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TMI Blog1987 (7) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... ared before the High Court, filed written statement and contested the election petition. On 10.12.1985 issues were framed thereafter respondent made an application for rejecting the election under Order 7 Rule 11 CPC on the ground that it disclosed no cause of action. A learned Single Judge of the High Court after hearing the parties at length rejected the election petition on the finding that the election petition did not disclose any cause of action. The appellant has challenged the correctness of the High Court order by means of this appeal. 3. The appellant who is an advocate appeared in person before us and argued his case at length. He made two submissions; firstly, he urged that under the CPC the High Court had no jurisdiction to entertain any application under Order 7 Rule 11 of CPC after the settlement of issues. Once issues were framed on the pleading of the parties the Court should have proceeded to record evidence and decide the issues on the basis of evidence produced by the parties and the petition could not be rejected at that stage on the ground that it did not disclose any cause of action. In the alternative appellant urged that the election petition disclosed c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised. With respect to the learned Counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercised the mind of the respondent. Proceeding further the Court observed: The Courts in exercise of the powers under the CPC can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction in exercise of its power under Order 7 Rule 11 in rejecting the same even after settlement of issues. 6. The appellant placed reliance on the decision of Assam, Allahabad and Gujarat High Courts in Santi Rajan Das Gupta v. Dasuram Mirzamal Firm AIR 1957 Assam 49, Kalawati Devi v. Chandra Prakash and Ors. and Devnarayan Ramsumar Tewari v. State of Bombay (now Gujarat) and Anr. . In Santi Ranjan Das Gupta v. Dasuram Mirzamal Firm (Supra), plaintiff's suit for recovery of money on the basis of acknowledgement of liability executed in writing was filed before the Trial Court. The defendant resisted the suit by fling a written statement and raising several legal pleas including a plea that there was no cause of action for the suit. The trial court on appraisal of the evidence produced before it decided all the issues in plaintiff's favour and decreed the suit. On appeal before the High Court the defendant argued that the plaint did not disclose any cause of action and the trial Judge failed to frame an issue on the point that the plaint itself was liable to rejection as it disclosed no cause of action. A Division Bench of the Assam High Court rejected the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it disclosed cause of action and only thereafter the Court may issue summons to the defendants but merely because the summons are issued, the defendants right to raise preliminary objection for rejection of the plaint on the ground that it disclosed no cause of action is not affected. If a plaint or an election petition does not disclose any cause of action, it does not stand to reason as to why the defendant or the respondent should incur costs and waste public time in producing evidence when the proceedings can be disposed of on the preliminary objection. There is basic difference between a suit and an election petition. A suit is initiated by a plaint, by a party against the defendant and generally the dispute is confined to the parties whereas an election petition raises dispute relating to election which affects and involves the entire constituency; the dispute is not confined between the parties to the petition. The provisions of the Civil Procedure Code as applicable to trial of suits have been made applicable under Section 92 to the trial of election petition as nearly as possible. It is well settled that the provisions of the CPC do not apply in their entirety to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the candidate or by an elector of the constituency as proposer. Rule 4 of the Conduct of Elections Rules 1961 prescribes nomination From 2-A for Elections to the House of People. Sub-section (4) reads as under: On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls: Provided that no misnomer of inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 33(4) of the Act. 11. In the instant case the appellant personally presented his nomination paper to the returning officer on 27.11.1984. The returning officer examined the same and he found that the name and electoral roll number of the appellant and his proposer as entered in the nomination paper were the same as entered in the electoral roll. The returning officer's attention was not drawn to any inaccurate description or printing error with regard to the appellant's name and his proposer in the electoral roll. On the other hand, we find that the appellant had given a solemn declaration on oath under Clause (d) of Form 2-A that his name and his father's name as mentioned in the nomination paper was correct. The appellant had enclosed a receipt showing that he had deposited a sum of ₹ 500/- as security deposit in accordance with Section 34, entries in that receipt also mentioned his name as Samay Singh s/o S.P. Singh. The appellant had therefore himself represented to the returning officer that he was Samay Singh s/o S.P. Singh as mentioned in the electoral roll and the entries in the nomination paper were the same as those contained in the elector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contesting candidates he would have fair chance of success at the election is totally misconceived. The appellant's name as declared by him was Samay Singh s/o S.P. Singh in accordance with the entry contained in the electoral roll, his nomination paper was validly accepted and he was allotted symbol of 'Lion'. If he was really serious to contest the election he could have done so and any discrepancy regarding his name in the ballot paper could not affect his chances at the election. It is a matter of common knowledge that the voters cast their vote not on the basis of name of the candidate but on the basis of symbol allotted to him. The appellant asserted that since his name was not corrected in the list of contesting candidate he did not carry on his election propaganda, and he lost interest in the election. This is quite strange logic, if the appellant was serious candidate he could have carried on his election campaign and persuaded the voters to cast their vote for the symbol of 'Lion' which admittedly related to him. The facts and circumstances available on record show that the petitioner was not serious in contesting the election. 15. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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