Madhya Pradesh High Court
Laxmikant Sharma vs Govardhan Upadhyay on 10 August, 2015
1 Election Petition No.28/2014
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE S.K. PALO
Election Petition No.28/2014
Laxmikant Sharma
Vs
Govardhan Upadhyay and Others
______________________________________________________________
Shri Shailendra Dwivedi, Advocate for petitioner.
Shri K.N. Gupta, Senior Advocate with Shri Ashish
Saraswat, Advocate for respondent No.1.
Shri Raghuveer Singh, Advocate, for respondents No.2 and
3.
Shri Rajnish Sharma, Advocate for respondent No.6.
Shri K.L. Tiwari, Advocate for respondent No.9.
Shri Sanjay Dwivedi, Advocate, for respondent No.10.
Respondents No.4, 5, 7, 8 and 11 remain ex parte.
ORDER
(..../08/2015) This order will govern the disposal of I.A.No.2878/15 filed by respondent No.1. The petitioner has filed the Election Petition under Section 80 and 81 of the Representation of People Act, 1951 ( for brevity "Act 1951") on the grounds under Section 123 of the Act 1951 seeking relief that the election of respondent No.1 from the Sironj Constituency in the Legislative Assembly of Madhya Pradesh be declared void and to declare the petitioner as the returned candidate from the same seat.
2 Election Petition No.28/2014 (2) At paragraph 13 of the petition, the petitioner has mentioned that petitioner carve leave to rely on these (filed) documents for the purposes of the instant election petition as also upon such documents to be produced later, as and when presented before this Hon'ble Court.
(3) In this background, Respondent No.1 filed I.A.No.1525/2014 under Order 11 Rule 12 and 14 of CPC. This Court allowed the application and ordered the petitioner to make the discovery on oath of the documents which are in his possession or power relating to the present election petition. The aforesaid exercise be completed by the petitioner within three weeks.
(4) The petitioner subsequently filed I.A.No.2853/2015, with an affidavit, pursuant to the above order and mentioned that, the petitioner is relying on the documents enclosed as per list of documents attached with the election petition and documents are duly verified according to the election law. The documents enclosed with the election petition be treated as a part of election petition and presently the petitioner did not have other documents in pursuance to the issues involved with the election petition and the petitioner on the basis of the documents has filed the election petition.
(5) In this background, the present petition has been filed by respondent No.1 and submitted that the affidavit dated 09.10.2014 filed by the petitioner be discarded on the following grounds:-
(a) The affidavit is not as per provisions contained in order 11 Rule 13 of C.P.C.
3 Election Petition No.28/2014
(b) The affidavit is not a prescribed format provided in Appendix "C " Form 5 of Code of Civil Procedure.
(c) The petitioner had avoided to state on oath about discovery on oath of the documents which are in his possession or power.
(d) The statement "presently I did not have any other documents in pursuance to the issues involved in the election petition" is contrary to the pleading in the main election petition.
(e) The affidavit is contrary to fact of paragraph 13 of the main petition.
(f) The affidavit has not been properly shown in as per provisions contained in Order 6 Rule 15 read with Order 19 Rule 3 C.P.C.
(g) The verification of the affidavit dated 09.10.2014 being defective deserves to consider for discarding the same.
(6) Replying the above, the petitioner has submitted that the petitioner has complied the order passed by the Court and filed the affidavit dated 09.10.2014. The petitioner has stated on oath that he is not having any document in his possession. The contends of the affidavits are according to Form 5 of Appendix "C". The language may defer but the same will not be treated as violation or disobedience of order passed by the Hon'ble Court. The petitioner has not caused any default under the law. The petitioner has specifically mentioned in the affidavit that he is not having any document in his possession. The petitioner is ready to submit another affidavit for the same purpose. The petition is made in accordance with Section 83 of the Act, 1951 and the defect under Section 83 of the Act are curable. The sentence of the petitioner at paragraph 13 of the main petition makes it clear that the petitioner having the 4 Election Petition No.28/2014 possession of any other document which is not submitted with the election petition, if the petition get any other documents from any source relating to the issues framed, he may produce the same. Therefore, it cannot be said that affidavit dated 09.10.2014 is contrary to the earlier pleadings. This affidavit is duly verified.
(7) Having heard both parties at length, it is found that by filing the affidavit dated 09.10.2014, the petitioner has made it clear that no document is in the possession of the petitioner. May be the petitioner failed to explain properly but plain reading of the affidavit does show that the petitioner intends to mention that petitioner has no document in his possession. If the affidavit is filed and the requisite information is given then the question of filing the affidavit in a prescribed format has no consequence. The meaning and intention of the petitioner is clear from the affidavit dated 09.10.2014.
(8) Reliance have been placed by the counsel for the respondent No.1 in M/s Babbar Sewing Machine Co. Vs. Trilok Nath Mahajan, AIR 1978 S.C.1436, Bala and others Vs. Gopal, 1988 JLJ 304, Baldev Singh Vs. Shinder Pal Singh and another (2007) 1 SCC 341 and Archdiocese of Bhopal Vs. Hasan Kabir and Others, 2010 (I) MPJR 50. With due respect these citations have no application in the present case, for the reason that the petitioner has not failed to comply with the order to answer interrogatories. As there is no obstinacy or contumacy on the part of the petitioner or there is willful attempt to discard the order of the Court, Order 11 Rule 21 of the CPC is not attracted.
5 Election Petition No.28/2014 (9) Even ascertaining that, certain circumstances, the provisions of Order 11 Rule 21 of CPC must be strictly enforced, it does not follow that a election petition can be lightly thrown out without adequate reasons. As there is no willful default and there is no willfully withholding the information or refusing to answer interrogatories the application of provision of Order 11 Rule 21 CPC is not established.
(10) Perhaps the word "presently" is making confusion for the respondent No.1. The petitioner in his reply has volunteered to file fresh affidavit. Therefore, it is directed to the petitioner to file a fresh affidavit within two weeks removing the word "presently" in it.
(11) With these observations, I.A.No.2878/15 is dismissed.
(S.K. Palo) Judge mani