Kamlendra Singh v. Shri Harsh Vardhan Bajpei

Order VII Rule 11(a) CPC.

¶7Having heard learned counsel for the parties, the Court is of the considered view that the election petition cannot continue and that the election petition deserves to be rejected under Order VII Rule 11 CPC. Also, the Court finds that there are such defects which would make the election petition not maintainable vis.-a-vis. the provisions of section 86(1) of 1951 Act.

¶8So far as the submission of learned counsel for the applicant that the election petitioner had no locus-standi, the Court is of the view that this submission holds no water. The election petitioner could have filed the election petition if he had considered that his nomination was wrongly rejected. However, the Court does find that since allegations of wrong educational qualifications had been alleged in certain paragraphs and giving of wrong educational qualifications would be considered as a corrupt practice, the Court is of the view that the election petition ought to have been accompanied by a Form-25.

¶9The Court finds that the election petitioner though had stated that he had filed the nomination paper along with the election petition, he had not done so. More so, in paragraph 6 of the election petition, the averment that the true copy of the nomination form was being filed as Annexure-4 was found incorrect as the Annexure-4 was only an alleged Form-26 and not the nomination which was to be filed with Form-2B. Also, the claim of the election petitioner in paragraph 8 that he was appending incorrect list of proposer with the nomination form was found incorrect since the petitioner has neither brought the incorrect nomination form having the list of proposers nor has he brought on record the fresh nomination form containing the correct list of proposers. The Court also finds that the averment made by the election petitioner in paragraph 7 that as per the election rules and the provisions of 1951 Act, the nomination form could be corrected and the list of proposers could be changed till the stage of scrutiny holds no water as neither the said rules have been brought on record nor have they been shown to the Court. The Court, therefore, finds no force in the claim of the election petitioner that his nomination was wrongly rejected. This has also been held by the Supreme Court in Shaligram Shrivastava vs. Naresh Singh Patel reported in (2003) 2 SCC 176. The relevant portion of the judgment is reproduced here as under :- "10. At the time of scrutiny the Returning Officer is entitled to satisfy himself that a candidate is qualified and not disqualified. Sub-section (2) of Section 36 authorises him to hold an enquiry on his own motions, though summary in nature. The Returning Officer furnished a proforma to the candidates to be filled on affidavit and filed on or before the date and time fixed for scrutiny of the nomination paper. Therefore providing a proforma, eliciting necessary and relevant information in the light of Section 8 of the Act to enquire as to whether the person is qualified and not disqualified, is an act or function fully covered under sub-section(2) of Section 36 of the Act. The Returning Officer is authorized to seek such information to be furnished at the time or before scrutiny. If the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the nomination papers, is obviously avoiding a statutory enquiry being conducted by the Returning Officer under Sub-section (2) of Section 36 of the Act relating to his being not qualified or disqualified in the light of Section 8 of the Act . It is bound to result in defect of a substantial character in the nomination. ………….. …………..

¶16Here we would like to point out that the directive of the Commission states "when a candidate files his nomination paper the Returning Officer or, as the case may be, the Returning Officer receiving the nomination paper shall hand over to him the enclosed letter, together with the proforma of affidavit annexed thereto to ascertain at the time of scrutiny of nomination as to whether the candidature is valid from the angle of Section 8 of RP Act, 1959", it would be better that for future the directive may find it feasible to require the Returning Officer to hand over the proforma of affidavit while issuing the nomination paper itself.

¶17In the case in hand the candidate had failed to furnish such information as sought on the proforma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the nomination paper could be made under Section 36(2) of the Act in the light of Section 8 of the Act. It certainly rendered the nomination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same." (emphasis supplied)

¶10The Supreme Court in V. Narayanswamy vs. C.P. Thirunavukkarasu reported in (2000) 2 SCC 294 also held that in the case when "material facts" were missing, the petition definitely had to be rejected at the outset but in the case when "material particulars" were missing, the petition could be cured subsequently. However, where in spite of having sufficient time to cure the defect in material particulars, the petitioner fails to cure the same then the petition had to be rejected.

¶11The Supreme Court further in the case of Karim Uddin Barbhuiya vs. Aminul Haque Laskar & Ors. reported in 2024 SCC OnLine 509 held that definitely when the material facts were not given then the election petition had to be rejected and when material particulars despite opportunity were not provided then also the election petition had to be rejected under Order VII Rule 11 CPC.

¶12Under such circumstances, the Court is of the view that the election petition when is defective and cannot be entertained, it had to be rejected under Order VII Rule 11 CPC. The application is, therefore, allowed. The election petition is, therefore, rejected under Order VII Rule 11 CPC and the election petition, thus, stands dismissed. (Siddhartha Varma, J.) September 17, 2025 GS High Court of Judicature at Allahabad

HIGH COURT OF JUDICATURE AT ALLAHABAD Election Petition No. - 8 of 2022 Kamlendra Singh …..Petitioners(s) Versus Shri Harsh Vardhan Bajpai …..Respondents(s) Counsel for Petitioners(s) : Anjani Kumar Mishra, Gulab Chandra, In Person, Kamlendra Singh, Ravindra Pratap Singh Counsel for Respondent(s) : Mithilesh Kumar Rai, Ravi Anand Agarwal RESERVED Court No. - 43 HON'BLE SIDDHARTHA VARMA, J. Civil Misc. Dismissal Application No.5 of 2022 : (Under Order VII Rule 11(a) CPC read with Section 86(1) of Representation of People Act) 1. The instant election petition was filed with a prayer that the result of the returned candidate of the assembly constituency 262 North, Allahabad be declared null and void. The ground taken in the election petition was that since the nomination paper of the election petitioner had been improperly rejected, the election of the returned candidate be declared void. 2. It is the case of the election petitioner that the election was notified on 1.2.2022 wherein nomination was to be filed in between 1.2.2022 to 8.2.2022. The date of scrutiny of the nomination forms was 9.2.2022. The date of distribution of symbols was 11.2.2022 and the date of voting was 27.2.2022. The results were to be declared on 10.3.2022. The election petitioner, wishing to contest the assembly election as an independent candidate, had filed his nomination form and as per the election petitioner, a list of proposers as per section 33 of the Representation of the People Act, 1951 (hereinafter referred to as the "1951 Act") was given in the nomination form. It is the case of the election petitioner that on the date of scrutiny when the list of proposers was found to be comprising such names which were not to be found in the electoral rolls, the election petitioner ought to have been given an opportunity to give the correct list of proposers with the nomination form and, therefore, when that opportunity was not given to the election petitioner and the Returning Officer rejected the nomination form of the election petitioner then an illegality was committed and, therefore, the election petition be allowed. 3. During the pendency of the election petition, the elected candidate (hereinafter referred to as the "applicant") filed an application for the rejection of the election petition under Order VII Rule 11(a) of the Code of Civil Procedure read with section 86(1) of the 1951 Act. 4. Essentially, the application under Order VII Rule 11(a) CPC read with section 86(1) of the 1951 Act was filed alleging that there was absolute non-compliance of sections 81(1) and 81(3) of the 1951 Act. The applicant had submitted that the election petition could be challenged only on the grounds as were mentioned under section 100 of the 1951 Act and from the perusal of the grounds taken in paragraph 17 of the election petition, the grounds were not to be found. Apart from the fact that grounds were not to be found, the applicant raised the following issues :- (i) The copy of the election petition supplied to the returned candidate-applicant was not a true copy of the election petition; (ii) The Annexure-2 i.e. the notification dated 1.2.2022 mentioned in paragraph 3 of the election petition had not been annexed with the true copy supplied to the returned candidate; (iii) There was no verification of the election petition and also there was no administration of oath; (iv) Merely stating that any document was a true copy of the original did not make the true copy, a copy of the election petition; (v) In ground no.17(6), it had been stated that the improper rejection by the Returning Officer amounted to a corrupt practice but as per Rule 94(A) of the Conduct of Election Rules, 1961 (hereinafter referred to as the "1961 Rules") the prescribed Form-25 was not filed; (vi) The election petition was barred under Order VII Rule 11(a) CPC as no "material fact" averred in the election petition constituted a "cause of action"; (vii) An election petition is not an action at