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2. Applicant is the original respondent in the Election Petition whose election to 42nd Solapur (SC) Lok Sabha General Election Constituency, 2019 has been challenged by the respondent (original petitioner) by stating that the said election is void.

3. The applicant, upon receiving summons in the Election Petition filed a written statement accompanied with certain documents.

4. It is contended that the entire Election Petition hinges on a single allegation, namely the vulnerability of Electronic Voting Machines (EVMs) employed in general elections. The respondent- original petitioner contended that discrepancy of 132 votes existed between the votes cast and the votes counted.

17. In his reply, the respondent has raised several objections and grounds to reject the application under Order-VII, Rule-11 of the C.P.C. It is contended that the Returning Officer appointed by the Election Commission of India is entrusted with the responsibility of safe custody of the Electronic Voting Machines. Custody of the Electronic Voting Machines is also the responsibility of the Returning Officer/District Election Officer. The Returning Officer of Lokshabha Constituency of 42nd Solapur admitted in his Affidavit-in-Reply to the Election Petition that there is a difference in the polled votes and the counted votes. Non tallying of votes is in contravention of Section 65 of the Act. It is contended that the applicant has not approached this Court with clean hands as application seeking rejection of the Election Petition under Order- VII, Rule-11 of the C.P.C itself is not tenable since despite service of the Election Petition upon the applicant on 10 th July, 2019, a reply came to be filed on 8 th August, 2023 i.e nearly after 1490 days. In view of Order-VIII, Rule-1 of the C.P.C, written statement is to be filed within 30 days of receipt of summons. The Court may extend 10 of 59 AEPL-31043-2023.doc time by 90 days. As such, the application which has been filed after such a long delay needs to be rejected.

54. The present Election Petition appears to be in the nature of a Public Interest Litigation rather than an Election Petition. The respondent has predominantly challenged the functioning of the Electronic Voting Machine (EVM) and alleged concern about it's efficacy and reliability which is, indeed beyond the scope of an election dispute. This Court cannot, in an Election Petition, venture upon functioning and usage of Electronic Voting Machines (EVM) in the electoral process.

58. In the case of Dr. Aruna Mohan Mali Vs. Election Commission of India and others8 facts are almost identical. This Court had rejected the Election Petition under the provisions of Order-VII, Rule - 11 (a) of the C.P.C in absence of complete cause of action for declaring the election of respondent No.3 to be void under Section 100 (1) (d) (iv) of the Act.

59. Mr. Ganbavale states that the Hon'ble Supreme Court is seized of the issues concerning the functioning and efficacy of the Electronic Voting Machines (EVMs). The matter consisting the mode of conducting elections, including usage of EVMs' or ballet papers is a prerogative of the Election Commission of India in view 8 2022 SCC Online Bom 6299 57 of 59 AEPL-31043-2023.doc of the relevant statutory provisions. The contentions in the Election Petition would also reveal that there are no specific allegations in respect of election process of 42nd Solapur (SC) Loksabha General Election, 2019. Essentially, concerns raised by the respondent are in respect of Electronic Voting Machines, usage, electoral system without any particular allegations targeted at election process of Solapur Constituency. It is apparent that there is no ground as contemplated under Section 100 of the Act as to how the result of the election as regards the returned candidate has been materially affected.