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Rajasthan High Court · body

2004 DIGILAW 979 (RAJ)

Kan Singh Gehlot v. Ashok Gehlot

2004-07-15

P.C.TATIA

body2004
Honble TATIA, J.–The petitioner, by this election petition under Section 81 read with Sections 100 and 101 of the Representation of People Act, 1951 (hereinafter referred to as ``the Act of 1951), has challenged the election of respondent No. 1 who was declared elected by the Returning Officer as a Member of the Legislative Assembly from Sardarpura Constituency of City of Jodhpur, Rajasthan, on 4.12.2003. (2). Brief facts of the case as stated in the petitioner are that, the petitioner on an assurance given by the President of Indian National Lok Dal submitted his nomination paper before the Returning Officer, certified copy of which is placed on record as Annexure-1. The nomination of the petitioner was rejected by the Returning Officer vide order dated 15.11.2003 on the two grounds; firstly, out of ten proposers, names of six proposers are not available in the part number of the voter list and at the roll numbers which were disclosed by the proposers and the petitioner in petitioners nomination paper (Annexure-1). and second, on the ground that the petitioner could not submit authorisation from the political party concerned, in the forms A and B as required under sub-clause (b) and (d) of Rule 13 of the Election Symbols (Reservation and Allotment) Order, 1968. (3). According to the petitioner, the above mentioned objections were raised by the Returning Officer suo motu. As per Sub-section (5) of Section 36 of the Act of 1951, the Returning Officer was under statutory obligation, to grant time and opportunity of hearing to the petitioner to meet with the objections raised by the Returning Officer. The petitioner further submitted that the petitioner made oral request but time was not granted and the petitioners nomination was wrongly rejected by the Returning Officer. The petitioner placed on record certified copies of the entries evidencing the availability of the names of all the above petitioners six proposers in the voter list for the Sardarpura Constituency itself whose names were not found by the Returning Officer at the time of scrutiny of the petitioners nomination and on the basis of which the petitioners candidature was rejected by the Returning Officer. In view of the above facts, according to the petitioner, the petitioners candidature was wrongly rejected by the Returning Officer and consequentially, election of the respondent is liable to be set aside. (4). In view of the above facts, according to the petitioner, the petitioners candidature was wrongly rejected by the Returning Officer and consequentially, election of the respondent is liable to be set aside. (4). Learned counsel for the respondent in his arguments also submitted the petitioner has challenged the order of rejection of his nomination paper by the Returning Officer on the ground that the petitioner was not given time to submit his political partys authorisation letter. So far as challenge to action of the Returning Officer in taking decision about petitioners nomination as political partys candidate is concerned, a lok at petitioners pleadings are relevant and necessary for deciding respondents application seeking rejection of the election petition on the various grounds along with on ground of various pleadings, therefore, they are quoted in this judgment at relevant place. (5). The petitioner also submitted in the election petition that, aggrieved against the rejection of his nomination paper by the Returning officer, he submitted a representation to the Chief Election Commissioner, Delhi and he placed on record the copy of the said representation which is marked as Annexure-10. (6). Respondent No.1, returned candidate, submitted an application under Section 81 read with Section 83 and 86 of the Act of 1951 and under Order 7 Rule 11, C.P.C. and submitted that the election petition filed by the petitioner deserves to be rejected as no cause of action has been disclosed in the petition. Even from the perusal of Annexure-4 to Annexure-9, it is clear that part number and serial number of the electoral roll relating to the petitioners proposers, mentioned in the certified copy of the electoral roll for the Sardarpura Constituency are different from the one mentioned in the nomination paper and therefore, the nomination submitted by the petitioner was rightly rejected by the Returning Officer. Not only this but even in the nomination paper, there is one proposers name is shown as Kalesh whereas the petitioner admitted in rejoinder that Kalesh is not his proposer not is name of alleged proposer Kalesh is in the voter list of any constituency. Annexure-6 which is relating to Kamlesh and not relating to that Kalesh who is shown in the certified copy of the nomination paper of the petitioner. Annexure-6 which is relating to Kamlesh and not relating to that Kalesh who is shown in the certified copy of the nomination paper of the petitioner. It is strange that the petitioner in rejoinder virtually submitted that facts mentioned in the petitioners nomination paper and which can be read by naked eyes may be ignored and instead of the certified copy of the petitioners own nomination paper, the typed copy of the nomination paper, the typed copy of the nomination paper got prepared and supplied by the petitioner in the election petition be believed as true and correct copy of the original nomination paper. The election petition is, further liable to be dismissed as the petitioner deliberately with oblique motive and to mislead this court as well as the respondent No.1, submitted incorrect typed copy of the material document, his own nomination paper Annexure 1. Apart from above, it is also submitted that the allegations made in the election petition are absolutely vague and kept vague purposefully. It is also submitted that the petitioner did not verify the annexures appended to the election petition except Annexures. 2-3, and 10, as required by Section 81 read with Section 83(2) of the Act of 1951 and, in absence of verification of the annexures, the election petition filed by the petitioner is not maintainable. It is also submitted that the verification of the election petition is not in accordance with the provisions contained in Section 83(1)(c) of the Act of 1951 and is also not in conformity with Order 1 Rule 15 C.P.C. and lastly, respondent No. 1 submitted that the election petition deserves to be dismissed as the petition suffers from the defect of misjoinder of parties as only necessary respondent was required to be impleaded as party, whereas the petitioner has impleaded other candidates as well as the Returning officer as party-respondents who are not the necessary party in the election petition. (7). The reply has been filed by the petitioner to the application of respondent No.1. The petitioner submitted that the petitioner pleaded all the material facts which are necessary to prove a case to succeed in the petition and, therefore, there is a complete discloser of cause of action. (7). The reply has been filed by the petitioner to the application of respondent No.1. The petitioner submitted that the petitioner pleaded all the material facts which are necessary to prove a case to succeed in the petition and, therefore, there is a complete discloser of cause of action. The petitioner in reply to the application, again reiterated that duty of the Returning Officer is quash-judicial in nature as held by the Honble Apex court and the Returning Officer was under obligation to hold a summary enquiry to determine the validity of the nomination paper filed by the petitioner after giving opportunity of hearing and time under Section 36(5) of Act of 1951. The petitioner submitted that entry at Sec. No. 3 in the nomination paper of the petitioner is of Kamlesh and not of Kalesh or Kailash. The petitioner for this, relied upon the typed copy of the nomination paper. The petitioner again reiterated that in view of Annexure-4 to 9, it is clear that six proposers names were very much available in the electoral roll of the Sardarpura Constituency. The petitioner, to meet the objection about the verification, submitted that Annexure 2, 3 and 10 have been verified and want of verification or defect in verification of the documents annexed to the petitioner, cannot be a ground for dismissal or the petition since the same is matter of procedure and is curable defect only, as held by the Supreme Court and also by the Rajasthan High Court and further submitted that the affidavit filed by the petitioner is verified in accordance with the law and, if there is defect, it is also curable. The petitioner submitted that he has impleaded all the necessary parties in the election petition and the rights of contesting candidates are involved and the Returning Officer has rejected the nomination paper, therefore, the petitioner impleaded all of them in the election petition and even if it is found that they are unnecessary parties, the election petition cannot be dismissed in view of the decision of the Honble Apex Court. (8). (8). The learned counsel for respondent No.1 advancing argument on the application under Section 81, 83 and 86 of the Act of 1951 and under Order 7 Rule 11, C.P.C. submitted that the petitioner was not a serious contender in the election and he himself deliberately and knowingly submitted nomination paper with wrong facts with oblique motive and with intention that his nomination paper may be rejected by the Returning officer so that he may use order obtained by his own engineering and by misleading Returning officer to challenge the election because respondent No.1 was formidable candidate for any contender for the Sardarpura Assembly seat and at the relevant time, was the Chief Minister of the Rajasthan, whereas the petitioner was not a serious candidate. The learned counsel for the respondent No. 1 frankly admitted that there is limited scope under Order 7 Rule 11, C.P.C. but vehemently submitted that the present petition falls within the four corners of the scope for rejection of the petitioners election petition under Order 7 Rule 11 C.P.C. as the petition does not discloses the cause of action and is a frivolous petition and has been filed to abuse the process of court and harass respondent No. 1. Learned counsel for respondent No. 1 relied upon the judgment of Supreme Court, Azhar Hussain vs. Rajiv Ghandhi, (1). Learned counsel for respondent No. 1 further submitted that complete time schedule has been given in the Act itself with, days within which every step is to be taken and completed and in some provision, even hours have been give in the Act itself for start of particular task and hour before which the task is required to be completed by the candidate. In such a position the compliance of all the provisions of the Act of 1951 for contesting election as well as for maintaining the election petition are required to be strictly construed so that election may not be disturbed on the behest of those elements who do not want that the mandate of public should be respected. In such a position the compliance of all the provisions of the Act of 1951 for contesting election as well as for maintaining the election petition are required to be strictly construed so that election may not be disturbed on the behest of those elements who do not want that the mandate of public should be respected. Learned counsel for the respondent, submitted that the petitioner did not submit political partys authorisation letter till statutory time limit, is an admitted fact and still without there being any factual foundation in the election petition as well as without pleading ground for that challenge assailing the order of the Returning Officer which is clear from the arguments of the learned counsel for the petitioner. The grounds taken by the petitioner in the election petition are not grounds in eye of law, therefore, the petition is liable to be dismissed forthwith as the petitioner could not make out for holding trial, and rather all reasons are available for rejection of the petitioners elections petition. (9). In addition to above learned counsel for the respondent no. 1 vehemently submitted that the case of the petitioner before filing the election petition was that it is not at all necessary that proposers names should be in the current voter list. The petitioner placed on record a representation submitted by him to the Chief Election Commissioner which is dated 19.11.2003. Though there is no pleading and proof, how this representation was sent and served upon the Chief Election commissioner by the petitioner but since it is a document submitted by the petitioner and, at this stage, respondent No. 1 cannot question the document, therefore, respondent No.1 at this stage, submits that the petitioner himself till 19.11.2003, 4 days after the rejection of his nomination paper, was under impression that the names of proposers were in the voter list of the year 1995 and he was only under impression that names of all these six proposers must have been in the voter list of year 2003 and, therefore, he is his representation Annexure-10 emphatically by supplying underlining the plea, submitted that there is no instructions under Sec. 4 that the proposers names must have been in the voter list of the year 2003. The petitioner neither disclosed in Annexure-10 that his proposers names were available in the voter list of Sardarpura Constituency in the part, either disclosed in the nomination paper or in the part disclosed in Annexures 4 to 10. The stand taken by the petitioner as on 19.11.2003 appears to have been given up in the election petition. Rather the petitioner in rejoinder, admitted impliedly that he deliberately and knowingly supplied wrong particulars in his nomination paper submitted to the Returning Officer. It will be worthwhile to mention here that in his representation dated 19.11.2003 (Annexure-10), the petitioner stated that all the six proposers of the petitioners stated that all the six proposers of the petitioner are having their voter identity cards with them but the petitioner did not produce copies of these voter identity cards, therefore, it appears that the petitioner wanted to mislead this Court as well to respondent No.1 by taking different ground at different stage and without giving any explanation for taking plea in the representation (Annexure-10) and without furnishing why he furnished wrong particulars, so that the petitioner may after getting reply to the election petition, build up his case and may take or withdraw the ground which he has taken in his representation (Annexure-10) and may develop entirely a different ground than pleaded in the election petition. It is also submitted that in spite of respondents objection about maintainability of the election petition on ground of defect in verification, the petitioner instead of seeking correction with the leave of the court insisted to argue on the objection then it is clear that petitioner does not want to remove the defect if the defects are curable. If defects are curable and party does not wants to remove the defect in verification, the court has no option but to reject the petition itself at this stage only. Learned counsel for respondent No.1 relied upon the judgment of Honble Apex Court delivered in the case of R.P. Moidutty vs. P.T. Kunju Mohammad and another (2). (10). The learned counsel for the petitioner vehemently submitted that there is no defect in the verification and if there is any defect in the verification, either in the petition or in the affidavit or in verification of the documents, then that is a curable defect and the election petition cannot be dismissed on this ground. (10). The learned counsel for the petitioner vehemently submitted that there is no defect in the verification and if there is any defect in the verification, either in the petition or in the affidavit or in verification of the documents, then that is a curable defect and the election petition cannot be dismissed on this ground. Learned counsel for petitioner relied upon judgment of this court delivered in the case of Gurjant Singh vs. Krishan Chandre and Others (3). It is also submitted that Honble the Apex Court in the case of G. Mllikarjunappa and Another vs. Shamanur Shivashankarappa and Others (4), held that non- compliance with section 83(1) and (2) of the Act of 1951 or proviso and From 25 prescribed under Rule 94(A) cannot be ground to dismiss the election petition in limine under Section 86(1) of the Act of 1951 and even a wrong name in the from for his appointment as election agent cannot disentitle that person to file the election petition and also submitted that even if some of the parties are found not necessary, the election petition may not be rejected as held the case of B.S. yadiyurappa vs. Mahalingappa and Others in others, (5), and also relied upon the judgment of the Honble Apex Court reported in the case of and T. Phungzathang vs. Hangkhanlian and Others (6). It is also submitted that the mandatory provisions of law and the law laid down by the Honble Apex court have been altogether ignored by the Returning officer. It is also submitted that all disputed facts are required to be enquired by holding trial and the election petition of the petitioner cannot be dismissed at this stage without giving an opportunity to petitioner to prove the fact pleaded by him that petitioners proposers names were there in the voter list of the year 2003 itself and the Returning Officer, illegally rejected the petitioners nomination paper. (11). I considered the submissions of the learned counsel Shri M.S. Singhvi appearing for the respondent No.1 and learned counsel Shri Basti Chand Bhansali for the petitioner and perused the record. (12). Before proceeding, it will be just and proper to look into the scope of the order 7 rule 11 CPC. (11). I considered the submissions of the learned counsel Shri M.S. Singhvi appearing for the respondent No.1 and learned counsel Shri Basti Chand Bhansali for the petitioner and perused the record. (12). Before proceeding, it will be just and proper to look into the scope of the order 7 rule 11 CPC. To find out whether plaint discloses the cause of action or not only plaint is to be looked into and defense of the defendant, whosoever it may appear to be strong cannot be looked into. Whether the plaintiff will ultimately succeed in his case, is irrelevant question at this stage. If the plaint is based on documents, the court can consider the documents to find out cause of action. At this stage it is to be presumed the whatever plaintiff has submitted in this plaint is correct. Therefore, this court at this stage treating the facts stated in the plaint, in this case election petition, are to be true facts and since petition is based upon the documents Annex.1 to 9, therefore, proceeding to examine the election petition and the documents placed on record and relied upon by the petitioner to find out whether the election petition discloses a cause of action or not? (13). So far as the facts are concerned, there is no dispute that the particulars of the petitioners proposers given in the petitioners nomination paper are not the same as given in the voter list of the Sardarpura Constituency for which the election was held and is in question in this petition in view of Annex.1 and Annexs. 4 to 9 submitted by the petitioner himself. All proposers submitted their declaration in part 2 of the nomination paper that their names are entered in voter list of same constituency of that place given in it and they are putting their signatures in token thereof. The relevant particulars about proposers given in the nomination paper Annex.1 as well as their correct particulars as given by the petitioner by supplying certified copes of entries of names of the petitioners proposers in the voter list of the year 2003, are as under:- As given in Nomination Paper Annex.1 S.No. Part No. ofVoter list S.No. in the said part(of the Voter List) Name 1. 184-108 952 Kanhaiya lal 2. 184-108 954 Ratan Lal 3. 184-82 2622 Kalesh 4. 184-77 1358 Manoj 5. 184-77 1354 Nand Kishore 6. 184-108 952 Kanhaiya lal 2. 184-108 954 Ratan Lal 3. 184-82 2622 Kalesh 4. 184-77 1358 Manoj 5. 184-77 1354 Nand Kishore 6. 184-77 1359 Vinod 7. 184-144 543 Rajesh 8. 184-144 532 Virendra 9. 184-144 533 Jitendra 10. 184-144 546 Mahendra As given in Annex.4 to 9 submitted and relied upon by the petitioner. S.No. Part No. of Voter list S.No. in the said part (of the Voter list) Name 1. 184-164 802 Kanhaiyalal 2. 184-164 804 Ratanlal 3. 184-130 459 Kamlesh 4. 184-123 1107 Manoj 5. 184-123 1103 Nand Kishore 6. 184-123 1108 Vinod (14). As per sub-sec. (4) of the Sec. 30 of the Act of 1951, the Returning Officer is to satisfy himself that the names and electoral roll numbers of the candidate and his proposers as entered in the nomination paper are the same as those entered in the electoral rolls and in case it is found that they are not same, the Returning Officer is required to eject such nomination paper under clause (b) of sub-sec. 2 of Sec. 36 of the Act of 1951. Sub-sec. 4 of Sec. 36 provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Sub-sec. 5 of Sec. 36 provides that in case an objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it. Maximum time which can be given to the candidate is not latter than next day, following the next date for final scrutiny. (15). In the back ground of the above facts as pleaded in the election petition, it is admitted case of the petitioner that the names of the petitioners six proposers are neither in the entire part of the voter list for the constituency and also not at the roll number as given in the nomination paper of the petitioner (Annex.1). For, what else could have been done by the Returning Officer, there is no pleading. It is also not the case of the petitioner in his petition that with the particulars, as mentioned in the nomination paper, the petitioner nomination was valid nomination. For, what else could have been done by the Returning Officer, there is no pleading. It is also not the case of the petitioner in his petition that with the particulars, as mentioned in the nomination paper, the petitioner nomination was valid nomination. What can be gathered from the election petition of the petitioner is that, though the nomination paper submitted by the petitioner was not valid nomination paper but the Returning Officer should have given time to the petitioner was not valid nomination paper but the Returning Officer should have given time to the petitioner to meet with objection of the Returning Officer. It appears that petition founded only upon on the abstract principle of law that the Returning Officer is under obligation to grant time to the concerned candidate under sub- sec. (5) of Sec. 36 of the Act of 1951, against whose nomination paper, objection has been raised with assumption that there cannot be exception to proposition. In the entire election petition, there is no explanation from the petitioner why wrong particulars were given in his nomination paper. It appears that the petitioner was under impression that he had a right to submit the nomination paper with wrong material particulars and if any objection is raised, Returning Officer is under obligation is raised, Returning Officer is under obligation to grant him time. Petition proceeds on assumption that the petitioner has not obligation to disclose even in the election petition why he or his proposers submitted wrong particulars in the nomination paper. In view of the above facts and absence of any explanation in election petition, this court has not option but to accept that the petitioner and his proposers knowingly submitted wrong particulars in the nomination paper. (16). The grievance of the petitioner with all force is that he was not given opportunity to rebut the objection raised by the Returning Officer himself and simply on this ground alone, the order of the Returning Officer rejecting the nomination paper of the petitioner is illegal and liable to be se aside and consequentially election on the respondent no. 1 may also be set aside. Learned counsel for the petitioner heavily relies upon the judgment of the Honble Apex Court delivered in the case of Rakesh Kumar vs. Sunil Kumar (7). (17). 1 may also be set aside. Learned counsel for the petitioner heavily relies upon the judgment of the Honble Apex Court delivered in the case of Rakesh Kumar vs. Sunil Kumar (7). (17). After the decision of the Honble Apex Court in Rakesh Kumars case (supra), there cannot be any dispute that in any case thee is objection against the validity of the nomination of the candidate is raised at the time of scrutiny, an opportunity to meet the objection is required to be given to the concerned candidate. In the above Rakesh Kumars case, an objection was raised by the Returning Officer himself. The objection raised by the Returning Officer was that since two candidates namely, Sunil Kumar and Vir Abhimanyu both submitted nomination papers as candidate set up by one political party BJP and by this the BJP has set up more than one candidates in election and therefore, no one could be treated as candidate set up by a recognised political party. The Returning Officer, therefore, rejected the nomination paper of the both candidates, Sunil Kumar as well as of Vir Abhimanyu in spite of the fact that candidate Sunil Kumar Submitted that the had made an application, at the time of scrutiny, stating that he was the official candidate of the BJP and requested for 24 hours time to produce official confirmation of his candidature. In these facts and circumstances Honble Apex Court held that the Returning Officer ought to have granted time to the concerned candidate to rebut the objection. (18). From the facts of above (Rakesh Kumars) case, it is clear that in that case the candidate submitted nomination paper with political partys authorisation in Forms A and B as required under Clause (b) and (d) of the Election Symbols (Reservation and Allotment) Order 1968 and there was no defect in the nomination paper of the candidates. The concerned candidate sought time to satisfy the Returning Officer about his official candidature at the time of scrutiny. At that very time the concerned candidate disclosed his plea and wanted to satisfy the Returning Officer that he is the authorised candidate, that too after submitting required Forms A and B duly signed by the National President and by State President of the recognised political party well in time permissible under Sec. 13 of the Election Symbols (reservation and Allotment) Order, 1968. In the facts of that case the Honble Apex Court held that the Returning Officer committed illegality by not granting time to the concerned candidate. in the peculiar facts, Honble the Apex Court held that the Returning Officer ought to have granted him time to meet the objection even if the (concerned candidate) had not sought the time. (19). It is true that Honble Apex Court in Rakesh Kumars case held that even if concerned candidate had not sought time to meet with objection, the Returning Officer ought to have granted time to said candidate to meet with objection. Under sub-sec. 5 of Sec. 36, time is required to be granted to meet with objection and not for doing nothing. In the entire election petition, the petitioner has not said that he had intention to meet with the objection raised by the Returning Officer and the election petitioner proceeded only on the abstract principle of law that the Returning Officer is under obligation to grant time to the concerned candidate against whose nomination paper, objection has been raised. In fact, it is the fundamental fact, which should have been pleaded in the petition and petitioner cannot rely upon that the court may presume petitioners intention is latent in the pleadings or the court may draw inference from the facts pleaded in the petition. Original jurisdiction, in the matter of challenge to election of Assembly seat, has been given to High Court which itself is sufficient indication about the importance of the matter. Vague pleadings may be ground for rejection of the election petition depending upon the facts of the case. In spite of above, this Court, even in absence of specific pleadings, presumed that petitioner wanted to meet with the objection raised by the Returning Officer and time could have been sought for meeting with the Returning Officers objection by the petitioner and petitioner sought time for that purpose, then what was the plea of the petitioner at that time is also not pleaded. Petitioner simply pleaded that he should time from the Returning Officer without disclosing his any defence and even without pleading whether, the request to grant time was oral or was in writing. Petitioner simply pleaded that he should time from the Returning Officer without disclosing his any defence and even without pleading whether, the request to grant time was oral or was in writing. Though, it is not the case of the petitioner in his pleadings that he disclosed his plea before the Returning Officer and even if the petitioner is permitted to take new plea of his defence to save his nomination paper from rejection in spite of the decision of Honble Apex Court delivered in the case of J.H. Patel vs. Subhan Khan (8), wherein it has been held ``the Court must, therefore, bear in mind this fact while deciding whether or not to entertain a fresh plea which was not put forward before the returning officer at the time of scrutiny of the nomination and rejection thereof. even then only plea of the petitioner in the election petition is that, he supplied (wrong) particulars of his proposers in his nomination paper and his proposers declared their particulars to the correct and the Returning Officer found that out of ten proposers six proposers names were not in the part number and at the serial numbers of the voter list of the constituency. Petitioner admitted in the election petition itself that those six proposers names were in different part of the voter list and at different serial number. Petitioner also placed on record the certified copies of the entries of the name of above six proposers as Annex. 4 to 9 on record in proof thereof that his proposers name were in the voter list for Sardarpura Constituency ignored that by these very documents he has proved decision of Returning Officer of rejection of his nomination paper legal and in accordance with law as Returning Officer was right in holding that petitioners proposers names are not in the voter list at places as mentioned in the petitioners nomination paper. (20). Opportunity to meet the objection about validity of the nomination paper of the candidate is required to be given so that candidate may satisfy the Returning Officer about validity and legality of his nomination paper. In view of the decision of Honble Apex Court (Rakesh Kumars case, (supra), if opportunity is not allowed to the concerned candidate, the order of Returning Officer is liable to be set aside. In view of the decision of Honble Apex Court (Rakesh Kumars case, (supra), if opportunity is not allowed to the concerned candidate, the order of Returning Officer is liable to be set aside. Normally, not giving opportunity to concerned candidate may be ground to challenge the order of Returning Officer and consequentially, election of the winning candidate but when it is found that the defect in nomination paper is an admitted fact and when petitioner failed to plead that defect kept in the petitioners nomination paper was curable or could or should have been ignored by the Returning Officer and further when there is not pleading that had he been given opportunity to meet with the objection by the Returning Officer, he could have cured the defect or could have satisfied the Returning Officer about validity of his nomination then it is clear case of non-discloser of the cause of action in the election petition. (21). In the case where wrong particulars are given in the nomination paper and on that basis nomination can be rejected by the Returning officer then the concerned candidate is required to plead reasons for furnishing wrong particulars in the nomination paper to rule our possibility of his taking benefit of his own wrong. When wrong material particulars in the nomination paper are given by the candidate or his proposers and Returning Officer rejects the nomination paper on such basis then to show that he himself has not engineered and obtained the order of rejection of his nomination paper to take some advantage out of that order of rejection, the candidate is required to plead specifically reasons for giving wrong particulars in the nomination paper. Without reasons and explanations, in the election petition, coming from the petitioner, there is no reason for not believing that the petitioner himself obtained the order of rejection from the Returning officer by misleading the Returning Officer. If reasons are not given in pleading of the election petition itself, the petitioner cannot lead evidence to prove the he himself did not obtain the order of rejection of the nomination paper in such facts because no evidence can be looked for which there is no pleadings. If reasons are not given in pleading of the election petition itself, the petitioner cannot lead evidence to prove the he himself did not obtain the order of rejection of the nomination paper in such facts because no evidence can be looked for which there is no pleadings. This position finds full support from the decision of Honble Apex Court given in the case of J.H. Patel vs. Subhan Khan (supra), Apex Court held as under:- ``It is not merely a question of equity but a question of principle that a person who deliberately and designedly fails to disclose information within his special knowledge and fails to produce material in that behalf thereby virtually engineering the rejection of his nomination cannot be permitted to raise a fresh ground which would adversely affect the opposite party. A party which does not come to court with clean hands cannot seek such an indulgence. Honble Apex Court, in the facts of above case held:- ``It leaves one with the impression that the rejection of the nomination paper was a planned action. In any case the respondent was himself to blame for the rejection of his nomination papers relating to the Channagiri Constituency. (22). A bare perusal of the pleadings and documents submitted by the petitioner himself it is clear that above Rakesh Kumars case has no application to the facts of this case. At this stage this Court presume all the bona fides in favour of petitioner still finds from petitioners pleadings that pleadings are not disclosing any cause of action to challenge the order of the Returning Officer rejecting the nomination paper of the petitioner, rather he had no other option in view of the facts disclosed by the petitioner in his election petition. The Annex.1 and 4 to 9, further justifies the action of the Returning Officer only. (23). There is one more ground pressed by the learned counsel for the petitioner and that is that the petitioner submitted his nomination paper as candidate of recognised political party and his nomination paper was rejected by the Returning Officer. After reading entire pleadings of election petition, when it was found difficult to know what petitioner wants to convey, on asking, learned counsel petitioner submitted that petitioner sought time from Returning Officer to submit partys authorisation before the Returning Officer on the date of scrutiny. After reading entire pleadings of election petition, when it was found difficult to know what petitioner wants to convey, on asking, learned counsel petitioner submitted that petitioner sought time from Returning Officer to submit partys authorisation before the Returning Officer on the date of scrutiny. It will be worthwhile to quote the paragraphs from the petitioners election petition where there are reference about this plea:- ``Facts:- 8. That on the date of scrutiny the Returning Officer suo moto raised the objection that out of 10(ten) proposers six proposers are not in the list of Electoral presently available and secondly party candidate of Indian National Lokdal was not received. It is to of place the Returning Officer ought to have granted time as prescribed by Section 36(5) of Representative of Peoples Act though oral request was made by the petitioner. 9. That the petitioner filed his nomination on behalf of Indian National Lok Dal on the assurance of Shri Vijey Singh Bhandari, President Jodhpur Zone and so also Shri Pooransingh Dabra, President of Indian National Lok Dal, Chandigarh (head office). (10). That the petitioner has mentioned in nomination two symbols ``Anak of Indian national LodDal and also `Chadi as independent candidate, which can easily be revealed from the nomination paper of the petitioner (Annexure-1) Grounds:- (A). That the nomination of the petitioner was improperly rejected by vide order dated 15.11.2003 on the ground that the six proposers names are not present electorols, and the authorisation name of candidate of Indian national LokDal at the time scrutiny. (F) That it is submitted in case controversy with regard to set up by Political Party or not. The Supreme Court held since the party has authorised one candidate as per law both the candidates have to be treated as independent candidate in sponsored by ten proposers. Thus rejection of the nomination is without jurisdiction. (24). This Court constrained to observe that such type of pleading quoted from the petition of the petitioner and typed as it is in the preceding para, clearly demonstrates a good example of incomplete, incorrect and vague pleadings. Not only these paras but pleadings contained in other different paras of the election petition are of the same nature. (24). This Court constrained to observe that such type of pleading quoted from the petition of the petitioner and typed as it is in the preceding para, clearly demonstrates a good example of incomplete, incorrect and vague pleadings. Not only these paras but pleadings contained in other different paras of the election petition are of the same nature. In the paras for facts, facts are not clear, in the paras for grounds, grounds are not clear and where judgments are referred, how they apply to the facts of the case, is not only not clear but the portion of the judgment of the Apex Court referred in para (F) of the grounds is the para which alone is a para making the case referred in the election petition of the petitioner, distinct and separate. The petitioners candidature was rejected on the ground that he is not having support of ten proposers which is required for the candidate, not set up by the political party and the petitioners candidature, therefore, was already considered as of independent candidate and his nomination paper was also rejected treating him as an independent candidate, claiming support of ten proposers. (25). On these pleadings, the petitioner wants to say that he is candidate set up by a recognised political party. It is not the case of the petitioner that he submitted Forms A and B as envisaged by paras 13 (c) and (d) of the Election Symbols (Reservation and Allotment) Order, 1968. The last date for submitting Forms A and B is the last date of making nominations only. Still petitioner says, that too without pleading, that he sought the time from Returning officer to furnish his political partys authorisation, on the day when scrutiny of the nomination papers was going on. The petitioner relied upon some judgment of the Supreme Court in para (F) of the ground. The ground in this para of in any para of the petition directly or even indirectly makes out of even suggests any claim of the petitioner as candidate set up by political party. If petitioner wants to say, though not suggested by the learned counsel for the petitioner in his argument, that if his nomination as candidate of political party cannot be accepted then the Returning Officer should have considered the petitioners nomination paper as of an independent candidate. If petitioner wants to say, though not suggested by the learned counsel for the petitioner in his argument, that if his nomination as candidate of political party cannot be accepted then the Returning Officer should have considered the petitioners nomination paper as of an independent candidate. If it is the case, petitioners nomination paper as independent candidate was considered by the returning Officer and was rejected. (26). Not only this but the petitioner gave name of one of his proposers as Kalesh which is clearly legible in the photo-stat copy of the petitioners nomination Annex.1. The petitioner in rejoinder to application of the respondent admitted that any voter having name Kalesh is not his proposer. It is very strange that petitioner went to the extent of saying that instead of name (kalesh) mentioned in the photostat certified copy of the nomination paper produced and relied upon in the election petition by the petitioner himself, its typed copy produced by the petitioner containing different name Kamlesh be accepted as correct document. By this, the petitioner has fully exposed himself before the court. The petitioner deliberately, to take benefit in future, (it may be petitioners misfortune that the future came at this early stage of the proceedings), submitted wrong typed copy of the Annex.1. The petitioner did not disclose in his petition that petitioners proposers name (Kalesh) in fact is not as visible and not, as it can be read in the nomination paper Annex.1 and the petitioner is giving correct name of his proposer in typed copy of Annex.1. nor the petitioner disclosed this fact before the objections was raised by the respondent in application seeking rejection of the petitioners election petition under Order 7 Rule 11 CPC and U/Sec. 81, 83 and 86 of the Representation of People Act, 1951. (27). Therefore, it is clear that pleadings in election petition do not disclose any cause of action to challenge the order of rejection of nomination of the petitioner by the Returning Officer. (27). Therefore, it is clear that pleadings in election petition do not disclose any cause of action to challenge the order of rejection of nomination of the petitioner by the Returning Officer. From the pleadings of the petitioner himself it is clear that petitioner himself provided ground for rejection of his nomination paper by the Returning Officer as there is no pleading of the petitioner why he and his proposers gave wrong particulars in the nomination on the basis of which the Returning Officer passed the order of rejection of the nomination paper of the petitioner and in view of the decisions of the Honble Supreme Court referred above petitioners election petition is liable to be rejected as no cause of actin is disclosed in the election petition. (28). Apart from above, the defect kept by the petitioner in his nomination paper, including one proposers (Kalesh) name was not in the voter list, were incurable defects in view of the decision of the Apex Court given in the case of Rafiq Khan & Another vs. Laxmi Narayan Sharma, (10) and Bhoghendra Jha vs. Manoj Kumar Jha (11). In the case of Rafiq Khan, Honble Supreme Court held that:- ``Unless the defect is one which can be per se noticed and corrected at the stage of Section 33 (4) or letter at the stage of Section 36(4) without the need to refer to various other documents the same cannot be said to be of a non-substantial character In both the cases (Rafiq Khans and Bhoghendra Jhas Cases) defects in the nominations were of furnishing wrong serial numbers as well as wrong voter lists part numbers as in the present case. In Rafiq Khans case Supreme Court held:- ``In the instance case also the defect as to the number could have been said to be not of a substantial character if the appellant had shown that the name of the proposers appeared on the very same sheet at Serial Number 138 instead of 136 i.e. only two steps away. (29). The petitioner even has not acted as man of ordinary prudence in putting forward his case and pleadings. A man of ordinary prudence will first disclose how the mistake was committed by him and in this case, mistake in particulars of six out of ten proposers. A man of ordinary prudence will thereafter submit explanation and reasons for the mistake. The petitioner even has not acted as man of ordinary prudence in putting forward his case and pleadings. A man of ordinary prudence will first disclose how the mistake was committed by him and in this case, mistake in particulars of six out of ten proposers. A man of ordinary prudence will thereafter submit explanation and reasons for the mistake. On the basis of the reasons for the mistake. On the basis of the reasons and explanations submitted by the said person only court can decide that whether it is a case of mistake or it is a case of mischief of the said person himself. It is not necessary that guilty person in all cases disentitle himself from seeking relief from the court of law but the person doing mischief may be denied relief depending upon the facts of the case. It is also not the case of the petitioner in his petition that the petitioner or his proposers believed the particulars to be correct or they were misled because of some bona fide mistake on their part. And when there is no pleading, the petitioner cannot lead any evidence on any explanation and consequently it is to be presumed that the petitioner was party in deliberately furnishing wrong facts in the nomination paper. When the petitioner himself furnished wrong particulars to the Returning Officer and signatures of the proposers in the nomination paper, he cannot challenge the rejection of his nomination paper. (30). So far as the objection of the respondent No. 1 on the ground of defective verification is concerned, it is procedural defect and the court may have granted time to the petitioner to remove the defect but since it is found that election petition is liable to be rejected as no cause of action has been disclosed by the petitioner in the election petition, ground does not survives. (31). (31). Since the petitioner has filed the election petition, without there being any reason and without laying down any factual foundation with absolutely vague pleadings and by suppressing important material facts which casts serious doubt about the purpose for which the election petition has been filed and the petitioner could not even orally explain his conduct before this court at the time of arguments on the application under Order 7 Rule 11 C.P.C. and has not even explained why the wrong particulars were supplied to the Returning Officer, compelling him to reject the nomination paper of the petitioner, therefore, the election petition deserves to be dismissed with exemplary cost of Rs. 10,000/-. (32). In view of above reasonings, the respondent no. 1s application under Order 7 Rule 11 CPC is allowed. The election petition filed by the petitioner is rejected with cost of Rs. 10,000/-.