High Court · 2012

[4] I have heard Mr. SS Dey, learned counsel for the returned candid ate and Mr. RP Kakati, learned senior counsel appearing for the election petitio ner. Though in the application filed under Order 6 Rule 16 CPC (Misc. Case No.3 286/2011) it has been contended by the returned candidate that the election peti tion suffers from defect in verification of pleadings, as required under Section 83(1)(c) of the 1951 Act read with Order 6 Rule 15(4) CPC, apart from non compl iance of the mandatory provisions of Section 83(2) of the 1951 Act, no argument, however, has been advanced by the learned counsel appearing for the returned ca ndidate in that regard. The learned counsel only advanced the argument for stri king out the pleadings under Order 6 Rule 16 CPC as well as for dismissal of the election petition for want of cause of action, apart from non pleading of mater ial facts constituting cause of action. [5] Mr. Dey, learned counsel for the returned candidate referring to the pleadings in the election petition has submitted that even assuming that th ere was non compliance of Section 33-A of the 1951 Act by the returned candidate in not filing the affidavits as required under Section 33-A of the 1951 Act and under the order of the Election Commission of India dated 27th March, 2003, as pleaded by the election petitioner in the election petition, since Section 36(2) of the said Act does not contemplate rejection of nomination paper for non fili ng of such affidavits, the Returning Officer cannot reject the nomination paper on that ground and hence the pleadings in the election petition to the effect th at there was improper acceptance of the nomination paper of the returned candida te is unnecessary, scandalous, frivolous and vexatious and the election petition is nothing but the abuse of the process of the Court. It has also been submitt ed that the order of the Election Commission dated 27th March, 2003, which accor ding to the election petitioner, has been violated, being not the order made und er the provisions of the 1951 Act, violation of such order cannot be a ground fo r declaring the election of the returned candidate void under Section 100(1)(d)( iv) of the 1951 Act. Hence, according to the learned counsel, the pleadings to that effect in the election petition also need to be strike out. The learned co unsel further submits that since that is the only allegation in the election pet ition, on which the election of the returned candidate is called in question, th e election petition deserves to be dismissed for non disclosure of cause of acti on. It has also been submitted by Mr. Dey that the election of the returned can didate can be declared void by the High Court under Section 100(1)(d)(i) to (iv) of the 1951 Act only if the result of the election, in so far as it concerns th e returned candidate, has been materially affected, the same being condition pre cedent. In the instant case, according to the learned counsel, the election pet itioner in the election petition has not pleaded and even not made a whisper tha t because of the improper acceptance of the nomination paper of the returned can didate and for non compliance of the provisions of the 1951 Act as well as the o rder of the Election Commission, the result of the returned candidate has been m aterially affected and as such, the election petition deserves to be dismissed a t the threshold for want of pleadings to that effect in the election petition. [6] The learned counsel referring to the pleadings in the election p etition has submitted that it is evident therefrom that in fact there is no viol ation of the provisions of Section 33-A of the 1951 Act or the order of the Elec tion Commission dated 27th March, 2003, in the matter of filing the affidavits b y the returned candidate. The learned counsel drawing the attention of the Cour t to Section 33-A of the 1951 Act, which provides for furnishing information by way of affidavit relating to framing of charge by any Court of competent jurisdi ction against the candidate accused of commission of an offence punishable with imprisonment of 2(two) years or more in a pending case and of conviction of the candidate of an offence and sentenced to imprisonment for 1(one) year or more ot her than the offence under Sections 8(1) or (2) or (3) of the Act, has submitted that the election petitioner in the election petition has admitted filing of su ch affidavits, which, however, according to the election petitioner, is not (cid:28)dul y sworn affidavit (cid:29) because of the defect in number put by the Notary in the affi davits as, according to the election petitioner, while the serial number given b y the Notary in the affidavit dated 15th March, 2011 was 2563, in the affidavit dated 16th March, 2011, the serial number was put by the Notary as 2561, which, according to the election petitioner is a substantial defect rendering the affid avits as not duly sworn affidavits. The learned counsel submits that the Apex C ourt in People’s Union for Civil Liberties -Vs- Union of India reported in (2003 ) 4 SCC 399 has held that while filing of the affidavit with regard to the matte rs is to be insisted upon, the direction to reject the nomination paper for non furnishing or concealing the information and providing a summary enquiry at the time of scrutiny of nomination cannot be justified. The learned counsel, theref ore, submits that even if there is some defect in the affidavits, as alleged by the election petitioner, the same cannot be the ground for rejection of the nomi nation paper of the returned candidate by the Returning Officer. [7] Referring to order dated 27th March, 2003 issued by the Election Commission requiring filing of the affidavit furnishing the information disclos ing pendency of the criminal case for which cognizance has been taken by the Cou rt, the learned counsel has submitted that in view of the provisions contained i n Section 33-A of the 1951 Act, which provision has been inserted in the said Ac t after the judgment passed by the Apex Court in Union of India -Vs- Association for Democratic Reforms reported in (2002) 5 SCC 294, the Election Commission ca nnot insist filing of such an affidavit disclosing such information which is con trary to the provisions of Section 33-A of the aforesaid Act and consequently no n disclosure of such information relating to the pending case in which the cogni zance has been taken by the Court cannot be the ground for rejection of the nomi nation paper of the returned candidate by the Returning Officer. The learned co unsel has, however, submitted that by filing the subsequent affidavit dated 16th March, 2011, the returned candidate has disclosed the case pending against her, in which cognizance has been taken by the Court, though in the affidavit dated 15th March, 2011 such disclosure was not made. In any case, the learned counsel submits that in view of the Apex Court judgment in People’s Union for Civil Lib erties (supra) the nomination paper filed by the petitioner cannot be rejected f or furnishing the wrong information and for concealing the material information, if any, which affidavit is required to be filed in terms of the Election Commis sion’s order dated 27th March, 2003 issued pursuant to the directions contained in the judgments passed by the Apex Court in Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (supra). It has also been submit ted that filing of another affidavit subsequent to but before scrutiny of the no mination paper disclosing correct information is permissible. [8] The learned counsel, in view of the above, has submitted that ev en assuming that the pleadings in the election petition are taken to be correct, since filing of the affidavits by the returned candidate disclosing certain inf ormation as required under Section 33-A of the 1951 Act as well as under the Ele ction Commission’s order dated 27th March, 2003 is not in dispute and the nomina tion paper of a candidate for furnishing wrong information or concealing materia l information cannot be rejected, as held by the Apex Court in People’s Union fo r Civil Liberties (supra), the election petition does not disclose any cause of action and triable issue for trial of the same and hence is to be dismissed at t he threshold as the sword of Damocles should not be kept hanging over the head o f the returned candidate, who has been duly elected in the election and as per t he choice of the voters. [9] Mr. Dey, learned counsel for the returned candidate further subm its that the election petition filed by the election petitioner also deserves to be dismissed at the threshold for non pleading of material facts as required by Section 83(1)(a) of the 1951 Act. It has been submitted that though the elect ion petitioner has alleged violation of Section 33-A of the said Act, because of non disclosure of the information relating to taking cognizance by the Court in a criminal case against the returned candidate, the election petitioner has not disclosed the date of taking such cognizance, the case number as well as the Co urt by which such cognizance has been taken, which being the material facts to c onstitute violation of Section 33-A of the Act, non pleading of the same deserve s the election petition to be dismissed. [10] The learned counsel in support of his contention has also placed reliance on the decisions of the Apex Court in Vashit Narain Sharma -Vs- Dev Ch andra & Ors. reported in AIR 1954 SC 513; in Kanhiya Lal Omar -Vs- R.K. Trivedi & Ors. reported in AIR 1986 SC 111; in Dhartipakar Madan Lal Agarwal -Vs- Rajiv Gandhi reported in AIR 1987 SC 1577; in Kripa Shankar Chatterji -Vs- Gurudas Ch atterjee & Ors. reported in (1995) 5 SCC 1; in Santosh Yadav -Vs- Narender Singh reported in AIR 2002 SC 241; in Ram Phal Kundu -Vs- Kamal Sharma reported in (2 004) 2 SCC 759; in Harkirat Singh -Vs- Amrinder Singh reported in (2005) 13 SCC 511; in Nandiesha Reddy -Vs- Kavitha Mahesh reported in (2011) 7 SCC 721; in Ram esh Rout -Vs- Rabindra Nath Rout reported in (2012) 1 SCC 762 and in Mangani Lal Mandal -Vs- Bishnu Deo Bhandari reported in (2012) 3 SCC 314. [11] Mr. Kakati, learned senior counsel appearing for the election pe titioner submits that the provisions of CPC are made applicable to the trial of the election petition by Section 87(1) of the 1951 Act and consequently the prov isions of Order 6 Rule 16 as well as Order 7 Rule 11 CPC are also applicable to the trial of the election petition. The learned counsel submits that the pleadi ngs in the election petition, therefore, can only be strike out on the grounds e numerated in Order 6 Rule 16 CPC and not for any other ground and similarly the election petition can be rejected on any of the grounds enumerated in Order 7 Ru le 11 CPC. Referring to the pleadings in different paragraphs of the election petition, wherein the allegation of non compliance of Section 33-A of the 1951 A ct as well as the Election Commission’s order dated 27th March, 2003 are made, i t has been submitted that those pleadings are neither unnecessary nor scandalous or frivolous or vexatious so as to strike it out under Order 6 Rule 16 CPC. It has also been submitted that the pleadings in the election petition being not t o prejudice, embarrass or delay the fair trial and also being not an abuse of th e process of the Court, the pleadings in the election petition cannot be strike out as contended by the returned candidate. Mr. Kakati submits that what have b een pleaded in the election petition are the material facts and what in fact had happened, i.e. non filing of the required affidavits, which constitute cause of action to go for the trial of the election petition and hence the election peti tion also cannot be dismissed on the ground of non disclosure of cause of action under Order 7 Rule 11 CPC. The learned senior counsel further submits that it is not required to be pleaded the case number, the date of taking cognizance and the Court by which such cognizance was taken as those facts are not material wi thin the meaning of Section 83(1)(a) of the 1951 Act, the allegation of the elec tion petitioner being non filing of a duly sworn affidavit, as required under Se ction 33-A as well as under the Election Commission’s order dated 27th March, 20 03. The learned counsel, therefore, submits that the election petition does not suffer from violation of Section 83(1)(a) of the aforesaid Act. Mr. Kakati, learned senior counsel referring to Section 33-A of [12] the 1951 Act and the Election Commission’s order dated 27th March, 2003 further submits that the affidavits required to be filed, under the said provisions of l aw as well as the Election Commission’s order issued in exercise of the power co nferred by Article 324 of the Constitution of India, unless are duly sworn affid avit, those cannot be taken as affidavits filed in compliance with the aforesaid requirement, consequently the Returning Officer has to reject the nomination pa per of a candidate, who has not filed the duly sworn affidavits. In the instant case, according to the learned senior counsel, the affidavits dated 15th March, 2011 and 16th March, 2011 are not duly sworn affidavits, there being discrepanc ies in the serial numbers put by the Notary notarizing the aforesaid affidavits, in as much as, while serial number 2563 was put in the affidavit dated 15th Mar ch, 2011, serial number 2561 was put in the subsequent affidavit dated 16th Marc h, 2011. [13] The learned counsel further submits that though Section 36(2) of the 1951 Act does not provide for rejection of nomination paper of a candidate for non compliance of Section 33-A as well as Election Commission’s order dated 27th March, 2003, the Returning Officer has to reject the nomination paper for n on filing of the affidavits as required by Section 33-A and under the Election C ommission’s aforesaid order, as the Election Commission has the authority to iss ue any order to ensure free and fair election in exercise of the power conferred by Article 324 of the Constitution of India, as held by the Apex Court in Asso ciation for Democratic Reforms (supra) and in People’s Union for Civil Liberties (supra). The learned senior counsel further submits that since the order passe d by the Election Commission dated 27th March, 2003 is an order made under the p rovisions of the 1951 Act for free and fair election, the election of the return ed candidate can be set aside by the High Court, under Section 100(1)(d)(iv) of the 1951 Act, there being non compliance of the Election Commission’s order date d 27th March, 2003 by the returned candidate for non filing of the affidavit as required. It has also been submitted that when the election petitioner has alle ged improper acceptance of the nomination paper by the returned candidate, it is not required to be pleaded that the result of the election, in so far as it con cerns the returned candidate, has been materially affected by such improper acce ptance of the nomination paper, for the simple reason that if the allegation of improper acceptance of nomination paper if accepted by the Court, the result of the returned candidate would automatically be materially affected and hence woul d be set aside. [14] The learned senior counsel in support of his contention has also placed reliance on the decision of the Apex Court in Kanhiya Lal Omar -Vs- R.K. Trivedi & Ors. reported in AIR 1986 SC 111. [15] I have considered the submissions of the learned counsel for the parties and also perused the pleadings in the election petition. [16] Sub-Section (1) of Section 83 of the 1951 Act requires that an e lection petition must contain a concise statement of all the material facts on w hich the petitioner relies. The pleadings in the election petition are required to be signed and verified in the manner laid down in the CPC for verification of the pleadings. Sub-Section (1) of Section 86 of the said Act mandates the High Court to dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117 of the 1951 Act. By virtue of the pro vision in Section 87 of the 1951 Act, the High Court is required to try the elec tion petition, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of the suit, subject to the provisions of the 1951 Ac t. The grounds on which the election of a returned candidate can be declared to be void by the High Court are set forth in Sub-Section (1) of Section 100 of th e Act. Clause (d) of Sub-Section (1) of Section 100, which provision is relevan t for the purpose of the present case, provides that the High Court shall declar e the election of the returned candidate as void, if the result of the election, in so far as it concerns a returned candidate, has been materially affected - ( i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the 1951 Act. [17] The provisions of Order 6 Rule 16 as well as Order 7 Rule 11 CPC would, by virtue of the provisions of Section 87 of the 1951 Act requiring tria l of the election petition in accordance with the procedure applicable under the CPC to the trial of the suits, would, therefore, be applicable for striking out the pleadings in the election petition and also rejection of the election petit ion, on any of the grounds enumerated therein. The pleadings in the election pe tition, therefore, can be struck out if any pleading is (a) unnecessary, scandal ous, frivolous or vexatious, or (b) tend to prejudice, embarrass or delay the fa ir trial of the suit or (c) otherwise an abuse of the process of the Court. The bar of striking out pleadings is extra ordinary in nature and must be exercised by the Court sparingly and with extreme care, caution and circumspection. If t he parties have not offended the rules of pleadings by making averment or raisin g arguable issues, the Court would not order striking out of the pleadings. The pleadings in the election petition can also be strike out on the ground of vagu eness. [Sathi Vijay Kumar -Vs- Tota Singh & Ors. reported in (2006) 13 SCC 353] . [18] The election petition can be rejected under Order 7 Rule 11 CPC, amongst other, on the ground of non disclosure of a cause of action or where th e election petition appears from the statement made in it to be barred by any la w. For the purpose of ascertaining the existence of cause of action, the electi on petition has to be read as a whole to find out the cause of action and cannot be read in isolation. The plaint can be rejected under Order 7 Rule 11 CPC if on a meaningful, not formal, reading of the plaint it is manifestly vexatious an d meritless, not disclosing a clear right to sue. The Court, however, cannot rej ect a particular portion of the plaint and strike out certain paragraphs. Wheth er a plaint discloses a cause of action or not, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts wh ich are required to be proved for getting the relief and for that purpose, the m aterial facts are required to be stated and not the evidence. So long as the pl aint discloses some cause of action, which requires determination by the Court, the plaint cannot be rejected by invoking the order under Order 7 Rule 11 CPC. [ Mayar (H.K.) Limited & Ors. -Vs- Owners and Parties, Vessel M.V. Fortune Express & Ors. reported in (2006) 3 SCC 100]. [19] In an election petition, the material facts on which the petitio ner relies must be pleaded as required under Section 83(1)(a) of the 1951 Act an d when there is allegation of corrupt practice, the election petitioner must als o set forth full particulars of any corrupt practice including as full a stateme nt as possible of the names of the parties alleged to have committed such corrup t practice and the date and place of commission of each such corrupt practice, a s required under Section 83(1)(b) of the said Act. The said provision being man datory, non compliance of it entails rejection of the election petition under Se ction 86 of the Act. It is a settled position of law that while the material fa cts can be supplied subsequent to the filing of the election petition but before expiration of the time prescribed under Sub-Section (1) of Section 81 of the 19 51 Act for filling of an election petition, the particulars can be supplied even thereafter, in a given case. Once the period of limitation for filing the elec tion petition is over, no material facts can be supplied by the election petitio ner and in the event the election petition is devoid of material facts, the same then has to be dismissed. [20] The material facts, as held by the Apex Court, are those facts w hich would, based on the allegations made in the election petition, constitute t he cause of action as understood in the CPC. The requirement to state the mater ial facts is to make the opposite party understand the case he will have to meet . The omission of a single material fact leads to incomplete cause of action an d the statement of claim becomes bad, as cause of action means every fact, which would be necessary for the election petitioner to prove if traverse in order to support his right to the judgment of the Court. The material facts would also include positive statement of facts as also positive averment of a negative fact if, necessary. Whether the election petitioner has pleaded the material facts in the election petition, the test is - to examine, looking at the election peti tion, whether such pleadings in its face value constitute the cause of action or not. Unless all necessary facts, which constitute material facts, are pleaded, there is no question of allowing the election petitioner to lead evidences on s uch facts as no amount of evidence can cure the defect in the pleadings. Whethe r in an election petition a particular fact is material or not and as such requi red to be pleaded, depends on the fact of the said case. [Harkirat Singh; Dhart i Pakar Madan Lal; Nandiesha Reddy; Ramesh Rout (supra)]. The Apex Court in Azhar Hussain -Vs- Rajiv Gandhi reported in 19 [21] 86 SC 1253 has opined that the whole purpose of rejection of an election petitio n summarily under the provisions of the CPC is to ensure that the litigation whi ch is meaningless and bound to prove abortive should not be permitted to waste t he time of the Court and so that the concerned litigants are relieved of the psy chological burden of litigation. It has also been opined that the sword of Damo cles need not be kept hanging over the returned candidate unnecessarily without point or purpose. Hence the election petition can also be dismissed if the reli ef claimed cannot be granted after the trial is over, so that the unnecessary tr ial can be avoided consuming the Courts precious time. [22] In the instant case, one of the grounds on which the returned ca ndidate has prayed for rejection of the election petition is non pleading of mat erial facts affecting the result of the returned candidate because of the allege d improper acceptance of the nomination paper of the returned candidate. Accor ding to the returned candidate, there being no averments made by the election pe titioner in the election petition relating to materially affecting the result of the returned candidate because of improper acceptance of his nomination paper, there is no cause of action for trial of the election petition. [23] Section 100(1)(d) of the 1951 Act mandates the High Court to dec lare the election of a returned candidate void if the result of the election, in sofar as it concerns a returned candidate, has been materially affected, apart f rom others, by the improper acceptance of any nomination. In a case where there is allegation of improper acceptance of nomination paper of any candidate, othe r than the returned candidate, the election petitioner in the election petition must plead the material facts how the election of the returned candidate has bee n materially affected by such improper acceptance of nomination paper. However, when there is allegation of improper acceptance of the nomination paper of the returned candidate, there is no necessity of pleading that it has materially aff ected the result of the returned candidate, as improper acceptance of nomination paper, if proved, cuts at the root of the election of the returned candidate. The contention of the returned candidate that the election petition needs to be dismissed for non pleading of the facts relating to materially affecting the res ult of the returned candidate because of the alleged improper acceptance of his nomination paper, therefore, cannot be accepted. For this reason, the decision s of the Apex Court as cited by the learned counsel for the returned candidate i n Vashit Narain Sharma; Kripa Shankar Chatterji; Santosh Yadav and Mangani Lal M andal (supra) relating to the requirement of pleading of material facts material ly affecting the result of the returned candidate have not been discussed. [24] As noticed above, according to the returned candidate, as the no mination paper of a candidate cannot be rejected for non compliance of Section 3 3-A read with the Election Commission’s order dated 27th March, 2003, the same b eing not a ground enumerated in Section 36(1) of the 1951 Act, the election peti tion deserves to be dismissed for want of cause of action. As discussed above, the pleadings in the election petition can be strike out on any of the grounds e numerated in Order 6 Rule 16 CPC and the election petition can be dismissed at t he threshold for non disclosure of cause of action under Order 7 Rule 11 CPC. I t can also be dismissed at the threshold to nip a meaningless litigation in bud which bound to prove abortive so as not to waste the time of the Court and also to relive the litigants from the psychological burden of litigation. In the ele ction petition, as noticed above, the sword of Damocles should not be kept hangi ng over the head of the returned candidate unnecessarily without any point or pu rpose. Article 324 of the Constitution of India is a reserviour of the [25] power of the Election Commission to act for the purpose of ensuring free and fai r election. The said provision of the Constitution empowers the Election Commis sion to exercise the residuary power in the infinite variety of situation that m ay emerges from time to time in a large democracy as every contingency could not be forseen or anticipated by the enacted law or the rules. The Election Commis sion can issue necessary directions to fill up the vacuum till there is legislat ion on the subject. It is a settled position of law that the word (cid:28)election (cid:29) in Article 324 is used in a wide sense so as to include the entire process of elec tion, which consist of several stages and it embrases many steps, some of which may have an important bearing on the process of choosing a candidate. Fair elec tion contemplates disclosure by the candidate of his past including the assets h eld by him so as to give a proper choice to the elector according to his thinkin g and opinion. The Election Commission also can ask the candidates about the ex penditure incurred by the political parties to maintain the purity of the electi on and in particular to bring transparency in the process of the election which includes the transparency in the candidate who seeks election or reelection. Th e electors have basic elementary right to know full particulars of a candidate, who is to represent them in the parliament where laws bind his liberty and prope rty may be enacted. The right to get information in democracy is flowing from t he Constitution. [Peoples Union for Civil Liberties; Kanhiya Lal Omar and Assoc iation for Democratic Reforms (supra)]. [26] The Apex Court, in view of the above, has issued the following d irections in Association for Democratic Reforms (supra). Paragraph 48 of which r eport is reproduced below:- (cid:28)The Election Commission is directed to call for information on affidavi t by issuing necessary order in exercise of its power under Article 324 of the C onstitution of India from each candidate seeking election to Parliament or a Sta te Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:- (1) Whether the candidate is convicted/acquitted/discharged of any criminal offe nce in the past- if any, whether he is punished with imprisonment or fine. (2) Prior to six months of filing of nomination, whether the candidate is accuse d in any pending case, of any offence punishable with imprisonment for two years or more, and in which chare is framed or cognizance is taken by the court of la w. If so, the details thereof. (3) The assets (immovable, movable, bank balance, etc.) of a candidate and of hi s/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any publ ic financial institution or government dues. (5) The educational qualifications of the candidate. (cid:29) [27] The 1951 Act was, thereafter, amended by insertion of Sections 3 3-A and 33-B by the Representation of People (3rd Amendment) Act, 2002, which pr ovisions came into force with effect from 24th August, 2002 and 2nd May, 2002, r espectively. [28] The constitutionality of the provisions in Section 33-B of the 1 951 Act, which provides that no candidate shall be liable to disclose or furnish any such information in respect of his election, which is not required to be di sclosed or furnished under the 1951 Act or the rules framed thereunder, i.e. exc ept the information required to be furnished under Section 33-A, was put to chal lenge, which was declared as invalid by the Apex Court being violative of the Co nstitution in Peoples Union for Civil Liberties (supra). The Election Commissio n, thereafter, issued the notification dated 27th March, 2003 requiring the cand idates to file an affidavit duly sworn before a Magistrate, 1st Class or a Notar y Public or a Commissioner appointed by the High Court or the State disclosing t he information in regard to the matters specified in the Apex Court judgment in People Union for Civil Liberties (supra) and further intimating the candidates t hat non furnishing of the affidavits by any candidates shall be considered to be violation of the order of the Apex Court and the nomination of the candidates c oncerned shall be liable for rejection of the nomination of the candidates conce rned by the Returning Officer at the time of scrutiny. The format in which the affidavit has to be filed has also been annexed to the said order. In the instant case, according to the election petitioner himsel [29] f, 2(two) affidavits were filed by the returned candidate, as required under Sec tion 33-A read with the Election Commission’s order dated 27th March, 2003, one dated 15th March, 2010 and the other dated 16th Mach, 2010. Though in the first affidavit dated 15th March, 2010 (Annexure-3 to the election petition), the ret urned candidate did not disclose the fact of pendency of a case where cognizance has been taken by the Court, in the second affidavit dated 16th March, 2011 (An nexure-4 to the election petition), the returned candidate has disclosed the sam e. The Apex Court in Peoples Union for Civil Liberties (supra) has observed tha t while no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Association for Democratic Reforms (sup ra), the direction to reject the nomination paper for furnishing wrong informati on or concealing material information and providing for a summary enquiry at the time of scrutiny of the nomination cannot be justified. [30] The issue in the present election petition, as raised by the ele ction petitioner, is whether such affidavits are (cid:28)duly sworn affidavits’’ so as to construe the affidavit required to be filed under Section 33-A read with the order of the Election Commission’s dated 27th March, 2003, as according to the e lection petitioner, those affidavits are not duly sworn, there being inherent de fects in such affidavits. As discussed above, while scrutinizing as to whether the pleadings in the election petition discloses the cause of action, the allega tion made in the election petition has to be taken at its face value and treated to be correct. Hence it cannot be said that the pleadings in the election peti tion do not disclose any cause of action to go for trial as to whether the prope r affidavits were filed as required under Section 33-A of the 1951 Act read with the order of the Election Commission’s dated 27th March, 2003, and, if so, whet her it constitutes a ground for rejection of the nomination of the returned cand idate, consequently declaring the election of the returned candidate as void und er Section 100(1)(d)(i) and (iv) of the 1951 Act. [31] The election petitioner in the election petition has pleaded and narrated the facts as to why the affidavits filed by the returned candidate are not duly sworn affidavits and also as to why there was improper acceptance of n omination of the returned candidate. Such pleadings in the election petition, t herefore, cannot be termed as either unnecessary, scandalous, frivolous, vexatio us or tend to prejudice, embarrass or delay in the fair trial or otherwise an ab use of the process of the Court, so as to strike out such pleadings in the elect ion petition under Order 6 Rule 16 CPC. [32] Misc. Cases are, therefore, dismissed. No costs.