Rajasthan High Court - Jodhpur
Gayad Ram vs Pratap Singh Bhati on 23 April, 2019
Equivalent citations: AIR 2019 RAJASTHAN 92, AIRONLINE 2019 RAJ 194, (2019) 3 RAJ LW 2241, (2019) 3 WLC (RAJ) 755
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10772/2018
Gayad Ram S/o Shri Gopa Ram, Aged About 53 Years, By Caste
Vishnoi, r/o Vishnu Ki Dhani, Tehsil Bilara, District Jodhpur.
----Petitioner
Versus
1. Pratap Singh Bhati S/o Shri Bheem Singh Bhati, Aged
About 50 Years, r/o Village Post Beenawas, Tehsil Bilara,
District Jodhpur.
2. The Election Officer, Bilara, District Jodhpur.
----Respondents
For Petitioner(s) : Mr.Arpit Bhoot
For Respondent(s) : Mr.G.R. Punia, Senior Advocate
assisted by Mr.D.S.Thind
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 12/04/2019 Pronounced on 23/04/2019
1. This Hon'ble Court had passed the following order on 30.01.2019 :
"Both the learned counsel submit that the Division Bench has already observed while deciding the appeal that the matter requires final adjudication at admission stage.
In view of the above, the miscellaneous application dated 23.01.2019 stands disposed of.
List this case for final disposal on 8 th February, 2019."(Downloaded on 28/06/2019 at 12:19:00 AM)
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2. In view of the aforequoted order as well as upon insistence of learned counsel for the parties, the matter has been heard finally.
3. This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:
"i) the impugned order dated 10.07.2018 (Annexure-
12) and the order dated 25.09.2017 (Annexure-6) passed by the learned election tribunal in Election Petition No.60/2015 (Pratap Singh Vs. Gayad Ram) may kindly be quashed and set aside; and
ii) the application (Annexure-4 & 8) filed by the humble petitioner may kindly be ordered to be allowed and the election petition may kindly be rejected; and
iii) any other order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the humble petitioner."
4. As the pleaded facts would reveal, the elections for the post of Sarpanch and other posts were conducted in the year 2015, and the present petitioner contested the said election and was declared as a winning candidate. The petitioner accordingly was elected as Sarpanch, Gram Panchayat, Chandelao, Panchayat Samiti Bilara, District Jodhpur. The respondent No.1 also contested the said election, but lost the same.
5. Thereafter, the respondent filed an election petition Section 43 of the Rajasthan Panchayati Raj Election Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj Election Rules, 1994 before the learned District Judge, Jodhpur District alleging use of corrupt practices by the petitioner in the election, coupled with (Downloaded on 28/06/2019 at 12:19:00 AM) (3 of 18) [CW-10772/2018] creation of forged and fabricated documents, while filing nomination form for the post of Sarpanch. After issuance of notices in the election petition, the petitioner contested the same and a written statement to the said election petition was also filed by the petitioner.
6. The petitioner filed an application on 05.05.2017 under Section 43 of the Rajasthan Panchayati Raj Election Act, 1994 read with Rule 82 of the Rajasthan Panchayati Raj Election Rules, 1994 alongwith Order 7 Rule 11 and Section 151 of the Code of Civil Procedure. As per the pleadings made in the writ petition, the petitioner in the said application has categorically pointed out that as per Rule 82 of the Rules of 1994, the Election Petition needs to be verified as per the provisions of the CPC, and the documents so filed by the election petitioner also needs to be verified.
7. Rule 82 of the Rules of 1994 reads as under:-
"Rule 82. Contents and verification of election petition.- (1) The petition shall contain a concise statement of the material facts on which the petition relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908), for the verification of pleadings.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified by him in the same manner as the petition."
8. The respondent No.1 filed a reply to the aforementioned application filed by the petitioner. Thereafter, vide the impugned order dated 25.09.2017 passed in the application preferred by the petitioner, the learned Tribunal has held the (Downloaded on 28/06/2019 at 12:19:00 AM) (4 of 18) [CW-10772/2018] election petition to be defective, but has granted one opportunity to the respondent to cure the defects in the election petition.
9. Thereafter, the petitioner also filed an application under Section 151 CPC on 29.11.2017, alleging non-compliance of the aforementioned order dated 25.09.2017, whereby an opportunity was granted to the respondent to cure the defects in the election petition. In the said application, the petitioner has stated that despite the order dated 25.09.2017, the respondent has not been able to cure the defects even on the next date i.e. 23.10.2017, and on 03.11.2017 as well, the respondent has only put a note below Form No.3. As per the averments made in the said application, Form No.3 is merely a list of documents and as per Rule 39 of General Rules (Civil), the same does not fall within the definition of 'verification'.
10. The petitioner, during pendency of the aforementioned application dated 29.11.2017, has filed yet another application under Section 151 CPC on 15.02.2018 with a prayer that at the first instance, his earlier application under Section 151 CPC dated 29.11.2017 may be decided and the documents so submitted by the respondent may not be taken on record. The petitioner in the said application has also prayed for rejection of the election petition filed by the respondent.
11. The learned Tribunal, vide the impugned order dated 10.07.2018, has rejected the application filed by the petitioner under Section 151 CPC, while imposing a cost of Rs.1500/- upon the respondent, looking to the delay caused by him in curing the defects in the election petition.
12. Mr. Arpit Bhoot, learned counsel for the petitioner submitted that regarding verification of pleadings and the manner (Downloaded on 28/06/2019 at 12:19:00 AM) (5 of 18) [CW-10772/2018] in which the verification is to be done has been provided under Order 6 Rule 15 CPC, which reads as under:
"15. Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."
13. Learned counsel for the petitioner further submitted that the learned Tribunal, while deciding the application under Section 43 of the Rajasthan Panchayati Raj Election Act, 1994 read with Rule 82 of the Rajasthan Panchayati Raj Election Rules, 1994 alongwith Order 7 Rule 11 and Section 151 CPC vide the impugned order dated 25.09.2017, although has held that the election petition was defective, but has granted one opportunity to the respondent to cure the election petition, which is not permissible under the law.
14. Learned counsel for the petitioner has contended that the learned Election Tribunal has travelled beyond its powers and jurisdiction, as the election petition, in the appropriate manner, has been filed after expiry of the period of limitation, that is to say, the date of filing of duly presented election petition can be considered only as 05.02.2018, and not the actual date of filing (Downloaded on 28/06/2019 at 12:19:00 AM) (6 of 18) [CW-10772/2018] the such petition. Thus, as per learned counsel for the petitioner, the learned Tribunal has no jurisdiction to condone such delay in filing the appropriate election petition, as the settled law makes it amply clear that non-filing of mandatory requirement of furnishing the affidavit in the prescribed form entails a penal consequence.
15. Learned counsel for the petitioner further submitted that the election petitioner did not make any efforts to cure the defect for about three years and filed the election petition after an inordinate delay, but this aspect has not been considered by the learned Tribunal while passing the impugned order.
16. Learned counsel for the petitioner also submitted that despite the petitioner moving an application under Section 151 CPC with an averment that the compliance of the order dated 25.09.2017 has not been made, the learned Tribunal has given an erroneous finding that the verification of the documents filed by the respondent No.1 was in accordance with law, and that, the delay is not such so as to warrant rejection of the election petition itself.
17. In support of his submissions, learned counsel for the petitioner relied upon the precedent law laid down by the Hon'ble Apex Court in V. Narayanaswamy Vs. C.P. Thirunavukkarasu, reported in (2000) 2 SCC 294, relevant paras 7, 23 and 27 of which read as under:
"7. We may refer to the verification to the election petition and also to the affidavit, which is required to be filled, in the form prescribed, by the appellant:
VERIFICATION
1. Mr. V. Narayanasamy, son of Sri Velu, residing at No. 5, Ellaiamman Koil Street. Pondicherry-1, the petitioner herein do hereby declare that what all (Downloaded on 28/06/2019 at 12:19:00 AM) (7 of 18) [CW-10772/2018] stated in the above paragraphs 1 to 15 are all true to the best of my knowledge, information and belief.
Verified at Chennai this 17th day of November, 1997.
sd/-
Petitioner.
AFFIDAVIT OF V. NARAYANASAMY I. Mr. V. Narayanasamy, son of Velu, I lindu, aged about 50 years, residing at No. 5, Ellaiamman Koil Street, Pondichery 1 now temporarily come down to Chennai, the petitioner in the Election Petition calling in question the election of Shree C. P. Thirunavukkarasu, the respondent In the Election Petition, makes solemn affirmation/ oath and say:
a) that the statements made in paragraphs 7 to 10 of the accompanying Election Petition about the commission of the corrupt practice of gratification as a motive or reward for securing votes and undue influence as referred under Section 123(1)(B) and (2) of the particulars of such corrupt practice mentioned in paragraphs 7 to 10 of the same petition are true to my knowledge.
b) That the statements made in paragraphs 7 to 10 of the accompanying Election Petition about the Commission of the corrupt practice of gratifications a motive or reward for securing votes and undue influence as referred under Section 123(1)(b) and (2) of the Representation of the People Act, 1951 and the particulars of such corrupt practice mentioned in paragraphs 7 to 11 of the same petition are true to my information:
c) That the statements made in paragraph 11 of the accompanying Election Petition about the Commission of corrupt practice of gratification as a motive or reward for securing votes and undue influence as (Downloaded on 28/06/2019 at 12:19:00 AM) (8 of 18) [CW-10772/2018] referred under Section 123(1)(B) and (2) of the Representation of the People Act, 1951 and the particulars of such corrupt practice mentioned in paragraph 11 of the same petition are true to my information.
23. It will be thus seen that an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 31, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the Court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment.
"Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., Clause (a) of Sub-section (1) of Section 83. Then under Clause (b) of Sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the (Downloaded on 28/06/2019 at 12:19:00 AM) (9 of 18) [CW-10772/2018] commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on Information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain uniformed under the verification clause as well as the affidavit, the unsworn allegations could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the CPC. Non- compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the CPC. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and (Downloaded on 28/06/2019 at 12:19:00 AM) (10 of 18) [CW-10772/2018] affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings, it is no part of duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court, however cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition.
27. It is contended by Mr. Bhandare that all the material facts have been stated in the election petition and that for lack of material particulars, the petition could not have been thrown out at the threshold. He said opportunity should have been given to the appellant to supply the material particulars. It is really of strange proposition to advance. Till the date of the impugned Judgment appellant had persisted that the petition did not lack material particulars and that the verification was in accordance with the Code and the affidavit in support of the corrupt practice in the form prescribed. Admittedly, the petition lacked material particulars, verification to the petition was not in accordance with the Code and the affidavit did not conform to the form prescribed. At the first opportunity, the respondent raised objection that the petition lacked both material facts and the material particulars and that the verification to the petition and the affidavit were in not in accordance with law. This was repeated in the miscellaneous application (Original Application No. 298/98), in the counter affidavit and in the reply to the miscellaneous application, the appellant persisted in his stand and (Downloaded on 28/06/2019 at 12:19:00 AM) (11 of 18) [CW-10772/2018] termed the objections raised by the respondent as irrelevant. It is not that the appellant did not have opportunity to correct his mistake which he could have easily done in the rejoinder filed by him to the counter affidavit of the respondent or even his reply to the miscellaneous application (O.A. No. 298/98). He had every opportunity even at that stage to supply the material particulars which admittedly were lacking and also to amend the verification and to file the affidavit in the form prescribed but for the reasons best known to him, he failed to do so. The existence of material facts material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those the Court has jurisdiction to dismiss the petition. High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo motu the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with the provisions of law is on the petitioner. (See in this connection Constitution Bench decision in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani : [1955] 2 SCR 428."
18. Learned counsel for the petitioner has also placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari & Anr., reported in (2014) 5 SCC 312, relevant para 13 of which reads as under:-
(Downloaded on 28/06/2019 at 12:19:00 AM)
(12 of 18) [CW-10772/2018] "13. It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and courts have a duty to enforce the same with all rigours and not to minimize their operation. A right to be elected is neither a fundamental right nor a common law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute. The result announced by the Returning Officer leads to formation of a government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if recounting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow. "Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results". However, a genuine apprehension of miscount or illegality and other compulsions of justice may require the recourse to a drastic step.
19. On the other hand, Mr. G.R. Punia, learned Senior Counsel assisted by Mr. D.S. Thind submitted that the petitioner has adopted corrupt practices during the election, while creating (Downloaded on 28/06/2019 at 12:19:00 AM) (13 of 18) [CW-10772/2018] forged and fabricated documents, while filing nomination form for the post of Sarpanch.
20. Learned Senior Counsel further submitted that the basic order dated 25.09.2017 (Annex.6) was not challenged by the petitioner for about a period of one year, and thus, the same has attained the finality. As per learned Senior Counsel for the respondent, it was only after passing of the order on the application so preferred by the petitioner after 25.09.2017, that the petitioner has laid a challenge to both the orders, i.e. orders dated 25.09.2017 and 10.07.2018 passed by the learned Tribunal passed in favour of the respondent.
21. Learned Senior Counsel for the respondent also submitted that one writ petition laying challenge to two orders passed in two separate applications is not maintainable. In this regard, learned Senior Counsel for the petitioner has placed reliance on the judgment rendered by this Hon'ble Court at Jaipur Bench in Ramniwas Jat Vs. Madan Chamar & Ors., reported in 2019(1) DNJ (Raj.) 336, relevant para 10 of which reads as under:-
"10. I am of the considered view that this petition under Article 227 of the Constitution of India is liable for rejection at the threshold for misjoinder of causes of action as dismissal of two distinct applications one under Order 8 Rule 1A(3) CPC and the other under Order 14 Rule 5 CPC albeit by common order dated 31.05.2018 constituted two causes of action, one unrelated to the other. There is no linkage between the two orders impugned. Each therefore was to be challenged separately."
22. Learned Senior Counsel for the respondent also contended that the petitioner firstly joined the proceedings before (Downloaded on 28/06/2019 at 12:19:00 AM) (14 of 18) [CW-10772/2018] the learned Tribunal on 28.01.2016, and an application under Order 7 Rules 10 & 11 CPC was filed by the petitioner on 06.04.2016, which came to be rejected on 06.10.2016. Thereafter, one more application under Sections 148 and 151 CPC was filed by the petitioner with a prayer to take on record the belated written statement filed by the petitioner.
23. Learned Senior Counsel for the respondent further submitted that after framing of the issues, the election petitioner/respondent adduced his evidence on 08.03.2017, and at the level of cross-examination, the present petitioner moved another application under Order 43 read with Section 82 alongwith Order 7 Rule 11 CPC, which came to be rejected by the learned Tribunal on 25.09.2017.
24. Learned Senior Counsel for the respondent also submitted that in pursuance of the order dated 25.09.2017 passed by the learned Tribunal, the election petitioner/respondent submitted amended verified details of the documents on 03.11.2017.
25. Learned Senior Counsel for the respondent further submitted that the petitioner thereafter moved an application under Section 151 CPC, which was rejected vide order dated 10.07.2018 passed by the learned Tribunal. Thus, as per learned Senior Counsel for the petitioner, the petitioner, by way of filing different applications, only wanted to prolong the proceedings in the election petition.
26. Learned Senior Counsel for the respondent further submitted that there is a distinction between the 'material facts' and 'particulars'. As per learned Senior Counsel for the respondent, although in absence of mentioning of material facts, (Downloaded on 28/06/2019 at 12:19:00 AM) (15 of 18) [CW-10772/2018] the election petition cannot be permitted to adduce evidence relating thereto, nor will he be permitted to amend the petition after expiry of the period of limitation prescribed for an election petition. But as regard particulars, learned Senior Counsel for the respondent submitted that the election petition cannot be dismissed in limine for want of particulars, and if the Court finds that particulars are necessary, an opportunity should be given to the petitioner to amend the petition, incorporating the necessary particulars.
27. In support of the aforesaid submission, learned Senior Counsel for the respondent relied upon the precedent law laid down by the Hon'ble Supreme Court in H.D. Revanna Vs. G. Puttaswamy Gowda, reported in 1999 SC CANDID 978, relevant para 23 of which reads as under:-
"23. This Court has repeatedly pointed out the distinction between 'material facts' and 'particulars'. In so far as 'material facts' are concerned, this Court has held that they should be fully set out in the Election Petition and if any fact is not set out, the petitioner can not be permitted to adduce the evidence relating thereto later; nor will he be permitted to amend the petition after expiry of the period of limitation prescribed for an Election Petition. As regards particulars, the consistent view expressed by this Court, is that the petition can not be dismissed in limine for want of particulars and if the Court finds that particulars are necessary, an opportunity should be given to the petitioner to amend the petition and include the particulars. The Constitution Bench in Shri Balwan Singh v. Shri Lakshmi Narain and Ors. : [1960]3SCR91 held that an election petition was not liable to be dismissed in (Downloaded on 28/06/2019 at 12:19:00 AM) (16 of 18) [CW-10772/2018] limine merely because full particular of a corrupt practice alleged were not set out. It was observed that if an objection was taken and the Tribunal was of the view that particulars had not been set out, the petitioner had to be given an opportunity to amend or amplify the particulars and that it was only in the event of non-compliance with the order to supply the particulars, the charge could be struck out."
28. Learned Senior Counsel for the respondent also contended that the election petition pertaining to the allegation of corrupt practices during the election, cannot be dismissed only on the ground of defects. In support of this submission, learned Senior Counsel for the respondent has placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Umesh Challiyil Vs. K.P. Rajendran, reported in 2008 SC CANDID 852, relevant para 14 of which reads as under:-
"14. However, in fairness whenever such defects are pointed then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/ cure the defects, it could result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of the CPC but in the present case we regret to record that the defects which have been pointed out in this election petition was purely cosmetic and it does not go to the root of the matter and secondly even if the (Downloaded on 28/06/2019 at 12:19:00 AM) (17 of 18) [CW-10772/2018] Court found them of serious nature then at least the court should have given an opportunity to the petitioner to rectify such defects."
29. Learned Senior Counsel for the respondent has also placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Abdulrasakh Vs. K.P. Mohammed & Ors., reported in 2018 SC CANDID 300, relevant para 18 of which reads as under:-
"18. We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar Pandey (supra). The observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, etc. would all fall within the said Section."
30. After hearing learned counsel of the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court finds that there is consistency in the precedent law that material facts and material particulars have to be considered by the courts on different pedestals. The precedent law is very clear that the in case of defect in material facts, the petition has to be rejected at the outset, but any defect pertaining to material particulars can be cured subsequently at the fair discretion of the court below.
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31. This Court has also seen that the permission to cure the defect was given to the respondent vide order dated 25.09.2017, which remained unchallenged, until the impugned proceedings resulting into order dated 10.07.2018, were initiated. The learned court below has observed that while such order permitting the respondent to cure the defect was passed on 25.09.2017, the respondent has cured the same on 05.02.2018. The learned court below has also observed that the time period taken on 25.09.2017 was consumed by the respondent for removing the defects.
32. This Court also finds that the learned court below has recorded that for the slight delay in curing the defects, it has decided to impose a cost, as that was sufficient to give meaning to the earlier order dated 25.09.2017. It has been specifically held by the learned court below that the defects in question were curable as they were pertaining to material particulars, which could have been cured, and not the material facts, which could not have been cured.
33. The judgments cited by learned counsel for the petitioner do not apply to the facts of the present case.
34. In light of the aforesaid observations, no interference is called for in the present writ petition and the same is accordingly dismissed.
(DR.PUSHPENDRA SINGH BHATI),J Skant/-
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