:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1635 OF 2008 Sunil G.Shinde ...Petitioner Versus Eknath B.Gadkari and Ors. ....Respondents ====== Mr.B.D.Joshi and Neel Helekar, Adv. for the petitioners. Mr.S.S.Redekar, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 13TH MARCH, 2008. P.C. P.C. P.C. : : : 1. The petitioner is aggrieved by an order passed by the Small Causes Court in Municipal Election Petition No.21 of 2007. The petitioner before me is a Returned Candidate. The Election is called in question by the petitioner, who contested the same but lost. 2. The respondent no.3/petitioner before me applied to the Trial Court for framing an issue with regard to the maintainability of the Election Petition. :2: :2: :2: The power that was invoked by the petitioner is under Order 6 Rule 16 of the CPC and Order 7 and Rule 11(d) thereof. 3. The Trial Court has called for a say on this Application and has passed an Order that there are triable issues, so also, for the cause of Action. Additional issue may be framed but it is not necessary to try it as a preliminary issue. 4. Aggrieved by that order, the present petition is filed. 5. The petitioner has specifically taken a plea in the Written Statement, so also, in the Application, copy of which is annexed at Exhibit-C (page 50 to 52 of the petition paper-book), the petitioner in para-2 of the Application of the Application has specifically referred to the Election Petition, which do not discloe any cause of action. 6. Mr.Joshi, submits that a petition wherein corrupt practices are alleged cannot be entertained, :3: :3: :3: unless material facts are set out. The grievance is that material facts are not set out. The material facts have to be pleaded, the particulars may be supplied subsequently is the law in the submission of Mr.Joshi. Mr.Joshi submits that if the paragraphs referred to in the Election Petition are struck off, then, nothing remains in the Election Petition. The entire Election Petition deserves to be dismissed. 7. It appears that the Trial Judge has not adverted to the contents of the Application as well as submissions, but, straight away passed an Order that they are triable issues. It may be true that the hearing of the Election Petition cannot be compartmentalized in this case. However, the learned Judge would have been well advised in taking up the Application for striking off the pleadings and dismissal of Election Petition, before he proceeds with the Election Petition itself. All the more, when he had called for say of the Original Petitioner on the said Application. In such circumstances, the order under challenge is quashed and set aside. The Learned Judge is directed to hear the Application preferred by :4: :4: :4: the petitioner, for striking off the pleadings on the basis that the petitioner challenges the Maintainability of the Election Petition under Order 6 Rule 16 and Order 7 Rule 11(d) of the Code of Civil Procedure. The learned Judge to hear both sides and pass orders afresh and without being influenced by the observations in the impugned order. 8. Needless to state that when the Learned Judge decides the Application of the present petitioner, he shall grant an opportunity to the Original Election petitioner to oppose the said Application and if the said petitioner so desires, allow him to file a written say. The parties to appear before the Trial Court on the date and time stipulated by the Trial court and the Trial Court to endeavour and dispose off the Application within a period of six weeks from the date of appearance. Petition disposed off. No costs. sd/- **********