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2012 DIGILAW 241 (CHH)

Kichche Joga v. Lakhma Kawasi

2012-09-20

SUNIL KUMAR SINHA

body2012
ORDER Sunil Kumar Sinha, J. 1. The first respondent and 3 other candidates contested Assembly Elections, 2008 of Chhattisgarh Legislative Assembly from Constituency No. 90 i.e. Konta Constituency. Polling took place on 14.11.2008 and the result was declared on 8.12.2008. The first respondent was elected by a margin of 192 votes. He was a candidate of Indian National Congress. The petitioner was an electorate and his name finds place in the voter list of Konta Constituency. The election of respondent No. 1 has been called in question on the ground that various voters of Konta Constituency, who were residing in various Salwa Judum Camps on the date of the election, were not allowed to cast their votes by concerned authorities for want of their proper identification. The authorities concerned had not applied correct norms issued by the Election Commission of India for identification of the voters who were residing in Salwa Judum Camps. This has materially affected the election. If the voters of Konta Constituency, who were residing in Salwa Judum Camps, would have been allowed to cast their votes, the result of the election would have been different. Besides the above, the petitioner has also taken the plea of improper acceptance of nomination papers of respondent No. 1, which according to the petitioner would have been dismissed. The petitioner has also taken the plea of improper counting saying that irregularities were committed at the time of counting of votes of polling booth No. 56, as there is discrepancy in the documents of total votes cast in Electronic Voting Machine (EVM) and the total votes shown to be secured by the candidates. The petitioner has also taken the plea of misuse of the Government Machinery and that the expense incurred by returned candidate was much over the limit fixed. 2. I.A. No. 3 has been filed by respondent No. 1 under Order VII Rule 11 CPC for dismissal of the election petition at the threshold. 3. Mr. S.C. Verma, learned counsel appearing on behalf of respondent No. 1, submitted that the verification of the petition as also attestation of the copy of the petition supplied to the respondent were not proper. Therefore, as per Section 81 (3) of the Representation of People Act, 1951 (hereinafter referred to as the Act or Act, 1951), the election petition should be dismissed at the threshold. Therefore, as per Section 81 (3) of the Representation of People Act, 1951 (hereinafter referred to as the Act or Act, 1951), the election petition should be dismissed at the threshold. Apart from the above, he also argued that on a bare reading of the entire election petition, it does not disclose a tribal cause of action, therefore, on this account also the petition should be dismissed at the threshold. 4. On the other hand, Mr. B.P. Sharma and Mr. M.L. Saket, learned counsel appearing on behalf of the petitioner, opposed these arguments and submitted that the verification in the petition is proper; identical copies of the petition have also been properly attested by the petitioner; therefore, the ground taken by respondent No. 1 relating to verification cannot be sustained. The petitioner has challenged improper acceptance of nomination of respondent No. 1 and has also challenged the irregularities committed in counting of the votes and has raised various other grounds which disclose a cause of action in favour of the petitioner as per grounds contained in Section 100 of the Act, hence the application filed under Order VII Rule 11 CPC (I.A. No. 3) should be dismissed. 5. So far as argument relating to verification and attestation of the election petition is concerned, Mr. Verma has referred to Section 81 (3) of the Act, 1951. Section 81 (3) of the Act, 1951, provides that every election petitioner shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Mr. Verma has mainly contended that if the verification and attestation was not in proper manner and the election petition does not comply with the provisions of Section 81 or Section 82 or Section 117, that has to be dismissed under Section 86 (1) of the Act. 6. Order VI Rule 14 CPC, requires that every pleading shall be signed by the party and his pleader, if any. 6. Order VI Rule 14 CPC, requires that every pleading shall be signed by the party and his pleader, if any. It has always been recognized that if a plaint is not signed by the plaintiff or his duly authorized agent due to any bona fide error, the defect can be permitted to be rectified either by the trial court at any time before judgment, or even by the appellate court by permitting appropriate amendment, when such defect comes to its notice during hearing. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use (See Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 ). 7. In the instant case, though the relevant statute so mandates the dismissal, we find that the petitioner has properly verified the pleadings and has put his signature at the appropriate places which is required under the law. Mr. Verma has vehemently argued that the copy received by respondent No.1 was not properly attested by the petitioner under his own signature to be a true copy of the petition as per requirement of sub-section (3) of Section 81. We do not find above argument to be factually correct. Copies received by respondent No.1 have been filed on record by Mr. Verma. We see and find that every page in the copy of the petition, from page 1 to page 23, has been signed by the petitioner on the stamp of "true-copy" and the annexures filed along with the petition have also been signed by the petitioner by putting his signature over the stamp of "true-copy". Mr. Verma could not demonstrate as to how it was not a proper attestation. Sub-section (3) of Section 81 only requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of petition, which requirement we find to be fully complied in this matter. 8. For the foregoing reasons, we do not find force in the above argument advanced by Mr. Sub-section (3) of Section 81 only requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of petition, which requirement we find to be fully complied in this matter. 8. For the foregoing reasons, we do not find force in the above argument advanced by Mr. Verma and the same has to be rejected. 9. About the cause of action, we find that the petitioner has filed this petition on various grounds contained in Section 100 of the Act, 1951 and the ground relating to improper acceptance of the nomination of respondent No. 1 has also been taken. The petitioner has also taken a ground that respondent No.1 was not qualified to contest the election. We have mentioned earlier the other grounds taken by the petitioner. The election petition, whether discloses a cause of action has to be decided by taking averments in totality and by assuming them to be factually correct. Principle of taking full and comprehensive view of the pleading has to be applied. The averments made in the pleading cannot be read out of context or in isolation. The settled principle of law is that it is only if despite averments being taken as factually correct, the Court finds no cause of action emerging from the averments then it may be justified in rejecting the plaint under Order VII Rule 11 CPC, which principle is also applicable in election matters. My view is fortified by judgment of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy & Ors. 2012 AIR SCW 3824. Thus, the argument of Mr. Verma that the petition does not disclose cause of action for sending it to the trial cannot be accepted. 10. For the foregoing reasons, I.A. No. 3 deserves to be dismissed and is accordingly dismissed. 11. No cost. Application Dismissed.