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TMI Blog1999 (3) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent in this appeal is the Returning Officer. The appeal is contested by the first respondent whose application O.A. No.36/87 for striking out paras 6 to 10, 11 to 18, 19,20, 26, 31 and 32 of the Election Petition and consequent rejection of the said petition at the threshold without going to trial was allowed by the High Court. 3. In the Election Petition, the appellant made the following allegations. The first respondent and his family were not residents of No.7, Nellithope Assembly Constituency but the first respondent managed to get the names recorded as voters in the constituency. The first respondent indulged in character assassination against the appellant personally attacking him in T.V. interview, in printed pamphlets distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. Nor was there any averment that any part of the election petition was unnecessary, scandalous, frivolous or vexatious or would tend to prejudice, embarrass or delay the fair trial of the suit. There was also no averment to the effect that the election petition was otherwise an abuse of process of Court. With regard to some of the allegations made in the petition, a plea was raised by the first respondent that they did not disclose a cause of action. 5. Sometime after filing such a counter-affidavit, the first respondent filed on 22.1.97 Original Application No.36/97 praying for striking out paragraphs 6 to 20, 26, 31 and 32 of the election petition and consequently rejecting the entire election petition in limine. In the said app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the first respondent and his application O.A. No. 36/97 was allowed. Consequently, under Point No.3 the Court rejected the main E.P. No.3/96. 7. It is that judgment of the High Court which is challenged before us. As rightly contended by the learned counsel for the appellant, the judgment of the learned Judge is obviously based upon a confusion of ideas and failure to appreciate the distinction between the provisions in Sections 81, 83 and 85 of the Representation of the People Act 1951 (hereinafter referred to as the `Act') on the one hand and Order VI, Rule 16 and Order VII, Rule 11 of the Civil Procedure Code on the other. The learned judge has chosen to test the veracity and sufficiency of the allegations in the election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified. 10. On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A. No. 36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order VII, Rule 11 (a), learned senior counsel for the first respondent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropositions are reiterated. 12. The following rulings relied on by learned senior counsel for the first respondent have no application here as they were all rendered in election petitions disposed after trial. (a) Surinder Singh Vs. Hardial Singh Ors. (1985) 1 S.C.C. 91. (b) Manohar Joshi Vs. Nitin Bhaurao Patil Anr. (1996) 1 S.C.C. 169. (c) Moreshwar Save Vs. Dwarkadas Yashwantrao Pathrikar (1996) 1 S.C.C. 394. (d) Ramakant Mayekar etc. Vs. Celine D'Silva(Smt.) Etc. (1996) 1 S.C.C. 399. 13. The decision in Ram Chand Bhatia Vs. Shri Hardyal (1986) 2 S.C.C. 121 making a distinction between statements assailing personal character and those assailing public or political character of a candidate is not relevant at this stage. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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