APEX COURT DIGEST - Jan.2017 [5]

Election petition -  The  appellant  lost  election  from  Bhattiyat  Assembly  Constituency   of Himachal Pradesh Legislative Assembly held  in  2012  by  a  margin  of  111votes. He filed an election petition mainly on  the  grounds  under  Section 100(1)(d)(iii) of the Act -  Exercise of dual right of franchise by a voter and discrepancy between  the EVM record and the record maintained in Form 17-A at polling station  No.92-Kamla; - Improper reception of 30 postal ballot papers; and Discrepancy regarding 100 postal ballot papers-whether 597 or 697?” - issues framed - “2)   Whether the election petition is liable to be dismissed in limine  for lack of material facts and particulars, as alleged? 3)    Whether the election petition is not  maintainable  for  want  of  any cause of action, as alleged?” - High Court dismissed election petition on  preliminary issues under Or.14, rule 2 of C.P.C. - Apex court held that  High court committed a  grave error by considering the explanations offered in the replies  filed  by  the respondents. - further  held that After  the  1976 amendment, the scope of a preliminary issue under Order  XIV  Rule  2(2)  is limited only to two areas, one is jurisdiction of the court, and the  other, bar to the suit as created by any law for  the  time  being  in  force -Apex court further held thatThe court  exercised  its jurisdiction only under Section 83(1)(a) of the  Act  read  with  Order  VII Rule 11(a) of the Code. Since the scope of the enquiry at that stage has  to
be limited only to the pleadings  of  the  plaintiff,  neither  the  written statement nor the averments,  if  any,  filed  by  the  opposite  party  for rejection under Order VII Rule 11(a) of the Code or any other  pleadings  of the respondents can be considered for that purpose. -  Merely because it is a trial on preliminary issues at  the  stage of Order XIV, the scope does not change or expand.-Apex court held that  The appeal is however allowed, the impugned  order  is  set  aside  and  the election petition is remitted  to  the  High  Court  to  try  it  on  merits expeditiously, and being one filed in the year  2013,  preferably  within  a period of four months.

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