ORDER
D.V. Shylendra Kumar, J.
1. This application under Order VI Rule 16 of Code of Civil Procedure [for short the CPC] is by the respondent in an election petition presented under Section 81 of the Representation of People Act, 1951 [for short, the Act],
2. The petitioner, who claims to have made an attempt to file her nomination papers for seeking election to the Karnataka State Legislative Assembly from the K.R. Puram constituency and whose nomination papers did not even elicit any response from the returning officer, even as to accept the same forget about scrutiny and opining on the quality and fate of the nomination, has presented the election petition invoking grounds of Section 100(1)(c) of the Act, seeking for the following relief:
a) Pleased to declare the election to K.R. Pura Assembly Constituency as null and void and order fresh elections in the interest of justice and equity, as the petitioner is entitled for relief under Section 100(1)(c) Representation of People Act 1951, since rejection of petitioner's nomination paper at the threshold by the 4th respondent is illegal and improper.
(b) Pleased to direct the Respondent's No. 1 to initiate suitable disciplinary action against Respondent No. 4 as per provisions of Representation of People Act 1951, so that it serves as a deterrent and discourage such officer's from violating the statutory law and helps in upholding the constitutional right's of the Citizens in general and petitioner in particular.
(c) Pleased to issue any other suitable order and direction this Honorable Court deems fit under the facts and circumstances of this case in the interest of justice and equity.
3. To the petition, the chief election commissioner, election commissioners and election commission of India, the chief electoral officer, state of Karnataka, the district electoral officer, Bangalore urban district and the returning officer, K.R. Puram assembly constituency have been arrayed as respondents 1 to 4 respectively, whereas the returned candidate figured as fifth respondent to the election petition.
4. In the meanwhile, the registry having raised certain objections, particularly as to the tenability of the petitioner having impleaded certain statutory functionaries like respondents 1 to 4 as respondents and on this aspect this court permitted the petitioner to delete these respondents from the array of respondents, as per order dated 31-7-2008 and it was thereafter, notices had been issued to the respondents on the election petition.
5. After issue of notice to the respondents, while the service on the fifth respondent-returned candidate, a sitting member of assembly, with some efforts on the part of the petitioner and also through the normal process through court, having failed and being served through paper publication, taken out in the Prajavani Kannada daily dated 31-12-2008, the respondent (by then the sole respondent) has caused appearance through Counsel Sri C. Shashikantha
6. Respondent filed his objections/written statement to the election petition before the registry as on 7-3-2009. There being some delay in filing the written statement, an application for condoning the delay had been filed explaining the reasons for the delay and this court ultimately on examining this application and after hearing the Counsel appearing for the respondent and the petitioner, allowed the application in terms of the order dated 24-3-2009, as the petitioner was inclined to accept the condition of imposition of cost on the fifth respondent.
7. Thereafter, the petitioner filed an application in Misc Civil No. 6931 of 2009 under Section 151 CPC read with Section 87 of the Act seeking for permission to file rejoinder to the written statement filed by the fifth respondent. This application was allowed and the petitioner was permitted to file rejoinder as per the order dated 22-4-2009 and the matter was directed to be listed for framing of issues with liberty to the parties to file draft issues.
8. At this stage, the election petitioner had come up with another application in Misc Civil No. 10278 of 2009, seeking for restoring the original respondents 1 to 4 to their respective rank in the petition and then the fifth respondent, who had been served represented by Counsel by that time, and had filed his written statement to the petition and objections to the application, opposing the application very vehemently and therefore the petitioner and Sri Ashok Haranahalli, learned Advocate General appearing for the respondent were heard for passing orders on the application and an order was passed on 31-7-2009, dismissing the application. The matter was again adjourned to 21-8-2009 for framing of issues.
9. It was now the turn of the respondent to file an application [the present application] under Order VI Rule 16 CPC seeking for striking off of paragraphs 1.2, 1.5 to 1.12, 1.14, 1.15, II(a) to II(g), III(a) and 111(b) of the election petition and paragraph 13 of the rejoinder dated 6-4-2009.
10. Simultaneously respondent has also filed another application under Order VII Rule 11 of the CPC read with Section 81 of the Act in Misc Civil No. 15572 of 2009. However, at the request of the petitioner and as agreed by Sri. Ashok Haranahally, learned Advocate General appearing for the respondent, only the application in Misc Civil No. 15204 of 2009 is being taken up for disposal in this order.
11. The application is supported by an affidavit sworn to by the respondent, wherein it is indicated that the pleadings, both in the main petition and in the rejoinder, are liable to be struck off, being unnecessary, scandalous, frivolous or vexatious and they tend to prejudice, embarrass or delay a fair trial of the election petition and they are otherwise an abuse of the process of the court. It is sought to be indicated in the affidavit that the averments contained in paragraphs 1.2, 1.5 to 1.12, 1.14, 1.15, II(a) to II(g), III(a) and III(b) of the election petition and paragraph 13 of the rejoinder are liable to be struck off as the sentences in these paragraphs are unnecessary, scandalous, frivolous or vexatious and they tend to prejudice, embarrass or delay a fair trial of the election petition and they are otherwise an abuse of the process of the court.
12. The contents in paragraph 1.2 are sought to be struck off for the reason that it is lacking in material facts and so also the contents of paragraph 1.5, in the absence of material fact, the petition does not disclose a cause of action.
13. Same quality is attributed to paragraph 1.6 of the petition and so also paragraph 1.7, inter alia, indicating that the averments in these paragraphs do not even make out a plea to the effect that the petitioner was a duly nominated candidate in the election.
14. Paragraph No 1.7 is also alleged to suffer from want of material facts, so also paragraphs 1.10 and the averments in the rejoinder, not only lacking material particulars but also lacking in procedural requirement for an election corrupt practice and therefore suffers the consequence of being struck off.
15. Paragraph No 1.11 is also attributed with the same defect of lacking in material facts, particularly, in the context of want of full particulars relating to corrupt practice and should suffer the fate of being struck off.
16. Paragraph No III(a) is also indicated to be lacking essential particulars to be mentioned in a prayer column and being vague and nebulous, the prayer does not sustain by itself and if the prayer does not sustain, the election petition itself has to be dismissed and such is the prayer sought for in the application and the affidavit supporting the same.
17. The petitioner has filed her objections to the application. It is averred in the objection statement that the application is not tenable either in law or on facts; that it is liable to be rejected outright; that the election petition is filed under Section 81 of the Act questioning the illegality and improper rejection of the petitioner's nomination paper who is a duly nominated candidate to K.R. Puram Assembly constituency in the Karnataka State General Elections of the year 2008, even at the stage of presentation before the returning officer that this was so presented between 2 pm and 3 pm on 23rd of April, 2008 and was rejected by the returning officer observing that it did not mention new part numbers and serial number of 10 proposers as reflected in the electoral test of the constituency; that the returning officer had failed to adhere to the requirements of the Act while performing his duties as a returning officer; that he has failed in such duty; that the rejection of the petitioner's nomination papers at the threshold is in violation of the mandatory provisions of Sections 35 and 36 of the Act, specifically Sub-sections [4] and [5] of Section 36 of the Act and therefore amounts to rejection within the meaning of the proviso to Section 33(4) of the Act; that such averment in the form of concise statement of material facts has been pleaded in the election petition within the scope of a petition presented under the provisions of Section 83[1][a] of the Act; that the relief sought for on the ground of Section 100[1][c] of the Act, is to declare election of K.R. Pura Assembly Constituency as null and void on the premise that the petitioner's nomination papers had been wrongly rejected at the threshold and therefore the election petition is very much sustainable; that the grounds raised in the application regarding maintainability of the election petition were with reference to the requirements of Section 83[1][b] of the Act and such deficiency for the purpose of a petition under Section 83[1][b] of the Act is sought to be made subject matter for the application under Order VI Rule 16 of the CPC and therefore the application deserves to be dismissed.
18. Apart from other objections indicated herein, the delay of about one year in filing such an application from the date of the presentation of the election petition is also sought to be urged as a ground for rejection of the application.
19. Petitioner has made a request that though two applications are listed before the court and both could have been taken up for examination simultaneously, i.e., the application under Order VI Rule 16 of the CPC numbered as Misc. Cvl. 15204 of 2009 and the other application under Order VII Rule 11 of the CPC numbered as Misc. Cvl. 15572 of 2009 which is for dismissal of the election petition, whereas the former is for striking out of the different paragraphs in the petition referred to above, but to take up the application filed under Order VI Rule 16 of the CPC in the first instance, hear Counsel and the party and alter disposal the other application may be taken up.
20. Normally, any request made by any party seeking for certain accommodation on the matter of convenience is granted as a matter of course by the courts so long as the request and the consequential accommodation does not result in any inconvenience or injustice to the other side, granting the request does not result in any impropriety, irregularity, illegality in the consideration of the matter before the court and so long as it is not objected to by the other side, the learned Advocate General appearing for the respondent having not objected to this course of action, the application under Order VI Rule 16 of the CPC is taken up for examination in the first instance.
21. Submission of Sri Ashok Haranahalli, learned Advocate General appearing for the respondent is that the pleadings in the election petition does not make out a case of violation of the provisions of Section 100[1][c] of the Act; that the pleadings are woefully lacking for making out a case for such purpose, namely, that the nomination of the petitioner has been improperly rejected; that even in terms of the provisions of Section 81 of the Act, it is only a person who is a candidate at such election or any elector of the constituency who can present an election petition and subject to the fulfillment of the various requirements as indicated in the very Section and what can be the contents of such petition is clearly indicated in Section 83 of the Act; that the petitioner having not expressly claimed as a candidate in the election until and unless the petitioner has demonstrated that she was a 'duly nominated candidate' within the meaning of this phrase and in the absence of a plea to indicate that the petitioner was a duly nominated candidate at the elections as per the provisions of Section 79[b] of the Act which reads as under.
79. Definitions.-
(b) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election;
and if the petition is even lacking a plea to this effect that the petitioner was a duly nominated candidate at the elections, the petition is woefully lacking in containing a material fact within the scope of Section 83 of the Act; that the proposition that such an election petition can be rejected at the threshold even on applying the provisions of Order VI Rule 16 of the CPC i.e., by striking out such pleadings as are to be frowned upon under the provisions of Order VI Rule 16 of the CPC and also on the ground of striking out other irrelevant pleadings which are not material facts to the requirements of Section 83[1] of the Act and thereby petition failing is also well established by the authoritative pronouncement of the Supreme Court; that such is the meaning and understanding attributed to the provisions of Order VI Rule 16 of the CPC by the courts and applying this principle, the pleadings which attract action in terms of the provisions of Order VI Rule 16 of the CPC should not only be struck off but also the petition to be rejected, if the remaining pleadings have not made out any case of a proper presentation of the election petition by a person who could have presented the election petition as indicated in Section 81 of the Act.
22. It is in support of this submission, the following Judgments of the Supreme Court such as,
[a] Charan Lal Sahu v. Dr. A.P.J. Abdul Kalam and Ors. reported in : AIR 2003 SC 548.
[b] Potula Rama Rao v. Pendyala Venkata Krishna Rao and Ors. reported in 2007 AIR SCW 5320.
[c] Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi reported in : 1987 [Supp] SCC 93.
which have a binding effect on this court in so far as the law declared by the Supreme Court in these decisions and also Judgments of this court in the following cases;
[a] Sri Ramu v. Sunil Vailapure and Ors. reported in : ILR 2005 Kar 2823.
[b] A. Devegowda v. Puttanna and Ors. reported in 2005 AIHC 4600.
23. Sri Ashok Haranahalli, learned Advocate General has also submitted that the petition is also lacking in the plea that the candidature of the petitioner for filing the nomination paper had been duly supported by ten voters in the constituency whose name also figured in the electoral list of the constituency as admittedly the petitioner was not a voter in the constituency and was also not being sponsored by any recognized political party, the nomination papers would have been valid and would have become a valid nomination paper if and only if it had been supported or sponsored by ten voters in the constituency and a concise specific plea to this effect not forthcoming in the election petition, the petition suffers from the same vice of lacking a precise statement of material fact based on which a relief for setting aside the election can be granted.
24. It is to support this submission Sri Ashok Haranahalli, learned Advocate General has taken me through the statutory provisions of Section 100[1][a], [b] & [c], contents of Section 81, provisions of Section 79[b] of the Act which in turn is linked to Section 33 of the Act and also attention being drawn to Section 33[4] of the Act and the proviso to this statutory provision; that proviso to Section 33[5] of the Act, the provisions of Section 34[1][a] & [b] of the Act to contend that the petition lacked the plea that the petitioner had made the requisite deposit, all to submit that the averment in the petition did not make out a case of the petitioner being a duly nominated candidate for the election.
25. Reference is also drawn to the provisions of Sections 35 and 36 of the Act regarding duties and responsibilities of the returning officer, manner of scrutiny of the nomination papers and emphasis is on submission that it is only a nomination paper which has been presented by a duly nominated candidate or a voter that merits a response of either acceptance or rejection by the returning officer and it is only the rejection of such a valid nomination paper in terms of Sub-section [6] of Section 36 of the Act which can constitute a ground for presenting the election petition in terms of Section 100[1][c] of the Act; that the petitioner having not even pleaded that a valid nomination paper had been presented and there was a rejection by the returning officer of that nomination paper, there is no plea for making out a case in terms of Section 100[1][c] of the Act and therefore the petition is one which is liable to be rejected at the threshold.
26. It is also submitted that reference in the different paragraphs of the petition to non-existent respondents, in the sense that, though the petition originally contained as many as five respondents, as per the order of this court the first four respondents having been omitted, pleading with reference to other persons who were initially shown as respondents but later on omitted, are unnecessary, redundant, pleading which is a mere surplusage and therefore attracts the provisions of Order VI Rule 16 of the CPC and all such pleadings are liable to be struck off.
27. It is also submitted, that as averred in paragraphs - 9 and 10 of the application, while the petition does contain allegations of corrupt practice, the particulars of precise corrupt practice being not pleaded in the petition is also fatal to the petition for non-compliance with the requirements of proviso to Sub-clause [b] of Section 83[1] of the Act.
28. Further submission with regard to the understanding of the provisions of Order VI Rule 16 of the CPC is that in terms of the Judgment of the Supreme Court in Potula Rama Rao's case [supra] as indicated in paragraph-6 of this Judgment, the Supreme Court while upholding the view taken by the High Court to strike out certain pleadings for not only attracting the provisions of Order VI Rule 16 of the CPC but also for not containing an express plea to the effect that the nomination of the petitioner as a candidate at the general election had been supported by ten voters in the constituency subscribing their signature and such particulars of the voters being absent in the election petition.
29. While substantial reliance is placed on this Judgment for not only striking out the pleadings but also for rejecting the petition as one not containing relevant, necessary, precise statement of fact, the other decisions referred to are also in the same line of thinking and particularly as in all these cases, the election petition itself had come to be rejected even at the stage of examination of the application under Order VI Rule 16 of the CPC and Order VII Rule 11 of the CPC, more so, as it is the settled principle in election law that a frivolous, untenable petition should not be entertained to consume the time of the court in an avoidable trial it' the petition does not deserve to go for trial and is one which deserves to be shot down at the earliest for not even fulfilling the statutory requirements as indicated not only in the Act but also as -supplemented by the procedure under the Code of Civil Procedure.
30. Countering such submissions, the petitioner has submitted that the application under Order VI Rule 16 of the CPC is not tenable for the simple reason that it does not make out a case as to which paragraphs of the petition suffers from which precise defect as indicated in Order VI Rule 16 of the CPC; that the invoking of the various grounds mentioned in Order VI Rule 16 of the CPC, namely, that a plea is either unnecessary, scandalous, frivolous or vexatious or deserves that it tends to prejudice, embarrass or delay fair trail of the suit or which is otherwise an abuse of the process of the court is not indicated in a precise manner, but it is in general and therefore for this reason the application should be rejected.
31. It is alternatively submitted that the petition in fact contains the pleadings which are all relevant and constitute material facts for the purpose of seeking relief of setting aside the election on the ground of wrongful rejection of the petitioner's nomination paper. Petitioner has drawn attention to Annexure-A to the petition which was the very nomination paper which was sought to be presented before the returning officer and in Form - 2B and submitted that the non-acceptance of this nomination paper by the returning officer is in contravention of the provisions of Section 36[4] of the Act and therefore amounts to wrongful rejection.
32. In this context, attention is drawn to paragraph-6 of the petition and sustenance is also sought to be drawn from the decision of the Judicial Commissioner of Manipur rendered in the case of Thounaojam Ningol Indrani Devi and Ors. v. The Municipal Board of Imphal and Ors. reported in AIR 1958 Manipur 27 to submit that the averment contained in the pleadings should be accepted at its face value for the purpose of scrutiny under Order VI Rule 16 of the CPC or even under Order VII Rule 11 of the CPC at the stage of examining a plaint or a petition at the threshold and submits that if the petition pleadings are taken as correct and at their face value the averments are sufficient to make out a case of rejection of valid nomination paper and therefore there is no need to reject the petition applying the provisions of Order VI Rule 16 of the CPC at this stage.
33. It is also the submission of the petitioner that the petition is one which fulfils the requirements of Clause [a] of Sub-section [1] of Section 83 of the Act being a petition presented on the ground of Section 100[1][c] of the Act and not on the ground of the respondent having indulged in any corrupt practice but which alone would have attracted the requirement of Sub-clause [b] of Clause [1] of Section 83 of the Act; that the objections put forth in the application to the maintainability of the petition as well as for the prayer for striking off the pleadings are more based on the statutory provisions relevant in the context of Section 83[1][b] of the Act read with proviso to Section 83 of the Act and therefore submits that the pleadings cannot be struck off on such erroneous premise.
34. Substance of the argument is that the petition is one containing statement of material facts for setting aside an election only for rejection of the nomination paper and not based on the ground of corrupt practice alleged against the returned candidate. It is also further clarified that an averment to the effect that the returning officer has failed in his duty or acted in a high handed manner etc., which are all pleadings forming part of the petition are definitely relevant in the context of the provisions of Section 134 of the Act which reads as under:
134. Breaches of official duty in connection with elections.-
(1) If any person to whom this Section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine which may extend to five hundred rupees.
(1-A) An offence punishable under Sub-section (1) shall be cognizable.
(2) No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid.
(3) The persons to whom this Section applies are the district election officers, returning officers, assistant returning officers, presiding officers, potting officers and any other person appointed to perform any duty in connection with the receipt of nominations or withdrawal of candidatures, or the recording or counting of votes at an election; and the expression 'official duty' shall for the purposes of this Section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act.
and therefore such averments cannot be struck off notwithstanding the fact that the returning officer does not figure as a respondent in the petition as of now.
35. Reliance is placed on the decision of the Allahabad High Court in the case of Amarnath v. Janardan Prasad Ojha reported in : AIR 1988 Allahabad 116 in support of the submission that in the absence of an averment in the application to show that it was a precise infraction if any of the several possibilities in terms of Order VI Rule 16 of the CPC, no striking out of the pleadings can be directed.
36. Reliance is also placed on the Judgment of the Supreme Court in the case of Roop Lal Sathi v. Nachhattar Singh reported in AIR 1982 SC 1559 to support the argument that the applicability of the provisions of Order VI Rule 16 of the CPC cannot be merely as a matter of course; that the pleadings cannot be struck off even at the threshold when an application seeking for such striking out the pleadings has not made out an exact case of the particular violation contained in the averments in a particular paragraph of the petition and therefore submits that the application suffering from such defect should be rejected outright
37. Reliance is also placed on the Judgment of the Supreme Court in the case of D. Ramachandran v. R.V. Janakiraman and Ors. reported in : AIR 1999 SC 1128 to submit that the rejection of an election petition at the threshold by invoking the provisions of Order VI Rule 16 of the CPC and Order VII Rule 11 of the CPC either for the reason that something is lacking or that something is to be removed and therefore the petition is to be rejected should be applied only in a case where it is inevitably so and such of those provisions which have made out a case for trial and raised triable issues however remote it may be should not be struck down at the threshold with particular reliance being placed on paragraphs - 8 & 9 of this Judgment which reads as under:
8. We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court can not probe into the facts on the basis of the controversy raised in the counter.
9. Under Order VI, Rule 16, the Court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the process of the Court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified.
38. It is in the background of such pleadings in the application and submissions made at the Bar and with reference to the decisions relied upon by the parties, the application is to be considered and ordered.
39. I have bestowed my attention to the submissions and authorities relied upon by the petitioner as well as learned Counsel for the respondent.
40. In the first instance, the application being under Order VI Rule 16 of the CPC, the contents of this procedural provision of law is one that guides the examination, though that examination is undoubtedly has to be in the context and in the background of a petition presented under Section 81 of the Act read with the ground mentioned, namely, Section 100[1][c] of the Act.
41. A reading of the statutory provision of Order VI Rule 16 of the CPC which reads as under,
Order VI - Pleadings Generally: Rule 16. Striking out pleadings.-
The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the court.
indicates that it is a provision to enable for striking out such pleadings which are unnecessary, scandalous, frivolous or vexatious or which tend to prejudice, embarrass or delay fair trial of the suit or which is otherwise an abuse of the process of the court. The phrase 'unnecessary' can only be in the context and background of the purpose of the petition and prayer sought for and it is where the provisions of Sections 81, 83 and 100 of the Act. matters.
42. So far as the pleadings being 'scandalous', can only be with reference to a particular party and being 'frivolous' is again in the context of the petition and Vexatious' is again in the context of both the prayer in the petition and the consequence on the respondent or the defendant.
43. On the pleadings and supporting submissions by the petitioner and at the Bar, what at the best can be inferred is that certain pleadings are unnecessary and allowing a petition which is bereft of the basic plea of a material fact as envisaged under Section 83 of the Act may even amount to a possible abuse of the process of the court if the matter should go to trial unnecessarily and public time is spent on the same. The application per se does not pin point the precise defect which a particular plea in the petition suffers.
44. It is also to be noticed that striking out the pleadings means what is available in the petition which attracts any one of the above possibilities and obviously this cannot apply to a situation where a material relevant plea is absent.
45. Absence of a material relevant fact even as envisaged in terms of Section 83[1][a] of the Act is not one attracting the provisions of Order VI Rule 16 of the CPC per se. It is only because the learned Counsel for the respondent is conscious of this position, reliance is sought to be placed on the Judgment of the Supreme Court in Potula Rama Rao's case [supra]. However, a perusal of the Judgment and examination of the background of this Judgment inevitably shows that the High Court was examining a situation of considering both applications under Order VI Rule 16 of the CPC as well as Order VII Rule 11 of the CPC together and the combined effect of the two applications had resulted in the rejection of the election petition.
46. The striking out of the pleadings in a petition by itself cannot result in rejection of the election petition. It is only thereafter that if the petition is still wanting in any manner for being in conformity with any other statutory provision the next stage of the rejection of the petition may follow if it is so justified but an application under Order VI Rule 16 of the CPC by itself cannot achieve the object of an election petition being rejected.
47. It is therefore I am of the considered view that the Judgment of the Supreme Court in Potula Rama Rao's case [supra] does not constitute a direct and clear authority for understanding the scope of Order VI Rule 16 of the CPC alone but is a Judgment rendered in the context of working of the provisions of Order VI Rule 16 of the CPC read with Order VII Rule 11 of the CPC which is not the situation in the present case. The Judgment does not advance the case of the respondent for rejection of petition at this stage assuming that some pleadings are to be struck off.
48. Coming to the submission that the pleadings are bereft of a precise concise plea to make out a wrongful rejection of a nomination paper by the returning officer in terms of Section 100[1][c] of the Act even on the premise of the submissions made by Sri Ashok Haranahalli, learned Advocate General appearing for the respondent that such will be the resultant position on the examination of all relevant statutory provision, that again is not a situation fully envisaged within the scope of Order VI Rule 16 of the CPC as indicated above and examination of the pleadings at the threshold being on the basis of accepting them as they exist at their face value and not by examining the correctness or otherwise with reference to other statutory provisions and that too by a process of logic and working of the different statutory provisions in the context of the plea, submission of the learned Advocate General for striking out the pleadings and therefore to reject the petition cannot be accepted.
49. That may be an exercise which may be necessitated at a later stage, but definitely not at the stage of application under Order VI Rule 16 of the CPC and it is for this reason, I do not propose to examine other submissions made by Sri Ashok Haranahalli, learned Advocate General appearing for the respondent on this aspect of the matter. Other authorities relied upon by Sri. Ashok Haranahalli also being in the context of examination of the combined effect of operation of the provisions of Order VI Rule 16 read with Order VII Rule 11 CPC, while does not advance the case of the respondent, to reject the Election Petition itself, as is sought for by the learned Advocate General. Being distinguishable in the facts and in the background of the present examination of the impact of an application exclusively under the provisions of Order VI Rule 16 CPC the judgments do not constitute precedent for the present purpose and therefore they are not examined further.
50. In so far as striking out of pleadings is concerned, the sum and substance of the submission is one of petitioner making an effort to present her nomination paper and according to the petition as indicated in Annexure-A, non-acceptance of the returning officer for various deficiencies amounts to rejection of her nomination paper by the officer.
51. Though it is sought to be submitted on behalf of the respondent that the petition averment itself concedes that the nomination papers having been supported by signature of ten voters, was not definitely a voter in the constituency, and could not be verified for want of nonavailability of the electoral list etc. and as the petitioner is admittedly not a voter in the constituency, the pleading virtually amounts to an admission that the nomination papers did not contain the signatures of ten voters in the constituency, supporting the candidature of the petitioner, that again was a matter for verification by the returning officer and to opine on that and on such examination if the resultant position was that the nomination paper if not supported by the requisite number of voters in the constituency having subscribed to the nomination paper, the nomination paper being liable to be rejected, is a matter which has to be inferred by the returning officer on examination of what was presented to him and not on the basis of a petition averment in the election petition, but as to whether the factum of non-acceptance of the paper presented by the petitioner before the returning officer, amounted to a rejection of the nomination paper is again a matter, which merits examination at a later stage and ground for striking out an existing plea, on the touch stone of the provisions of Order VI Rule 16 CPC.
52. The case of the petitioner is one of failure of duty on the part of the returning officer. As to whether there was such failure or not is a matter for examination. On the pleadings if it gives rise to a triable issue, and as to whether non-acceptance of paper presented as nomination paper, whether amounts to rejection will be begging the question at this stage, particularly, at the stage of consideration of an application under Order VI Rule 16 of the CPC to say that the presentation was not a valid nomination etc., because this argument is based on the lines of logic as is indicated above and as urged on behalf of the respondents.
53. It is for this reason, I am of the view that the pleadings in the petition does not warrant striking off and assuming that some pleadings are really not necessary, ultimately if the retaining or permitting the pleading to exist does not result in any prejudice or embarrassment to the respondent and at any rate, if at all there being certain complaint or allegation against the returning officer and his failure to adhere to the duties in terms of the statutory provisions and that being a relevant plea in the context of wrongful rejection of a nomination paper, I am of the view that there is no occasion to strike out the pleadings as is sought to be made out in the application.
54. Even with regard to the submission that some pleadings are surplusage, particularly, with the deletion of some of the respondents, it is to be noticed and as rightly pointed out by the petitioner that a statutory violation committed by an officer on duty, even by the returning officer while performing his statutory duty, definitely being a situation attracting the provisions of Section 134 of the Act and if such is the situation, to make out a wrongful rejection it definitely calls for examination of the petition at a point of time beyond the present stage and therefore by merely operating the provisions of Order VI Rule 16 the petition itself cannot be rejected as of now.
55. The non-impleadment or deletion of an earlier respondent and averment being in the context of the person being a respondent does not necessarily get itself converted into an unnecessary averment as it is relevant in the context of the provisions of Section 134 r/w Section 100(1)(c)of the Act.
56. It is for this reason, I do not find any need to strike down the pleadings, which are with reference to the complaint or the allegation made against an Officer or Returning Officer as in the present case.
57. An allegation of corrupt practice is normally one against a returning candidate and a complaint of failure of duty or violation of statutory provisions attributed to an Officer in terms of Section 134 of the Act, cannot be construed as an allegation of corrupt practice to attract the provisions of Section 100(1)(b) r/w the provisions of Section 83(1)(b) of the Act and proviso to Section 83 of the Act.
58. I am also of the view, that in examining the application under Order VI Rule 16 which is essentially a procedural aspect of the matter, it should not be given such importance or such prominence as to virtually preempt a substantive right like the right or the opportunities to a candidate to present an Election Petition in terms provisions of Section 81 of the Act and it is settled principle of law that the procedure, however, mandatory for compliance should not be at the cost of the substance of the matter, in the sense, the procedure should not come in the way or should not be interpreted in such a manner as to virtually destroy the purpose of the statutory provisions of Section 81 in the context of Chapter 11 of the Representation of the People Act, 1950.
59. It may not be necessary to go further into the question on the plea as averred in the petition, whether it amounted to rejection of the nomination paper or otherwise, as is sought to contend on behalf of the applicant, it should be examined independently, but not at the stage of examination of an application under Order VI Rule 16 of the CPC.
60. An application under Order VI Rule 16 is being incidental to the Election Petition under Section 81, which is the substantial provision for presenting an election petition and on examining the application as it is found that the applicant has not made out a case either on facts or in law in necessitating striking of the pleading in terms of this provision, the application is rejected.
61. List the application Misc. Cvl. 15572/2009 for arguments on 16.10.2009 at 2.30 p.m., as requested by petitioner as well as Sri. Shashikantha, learned Counsel for the respondent.