LAXMAPPA v. ELECTION OFFICER RANEBENNUR — 1994 DIGILAW 238 (KAR)

H. N. TILHARI, J. ( 1 ) BY this petition, the petitioner has prayed for issuance of a writ of certiorari or writ or direction in the nature of certiorari quashing the Order dated 29-7-1994, copy of which has been annexed as annexure-b to the writ petition. The petitioner has further prayed for quashing of all the proceedings in the election petition No. 1 of 1994, pending in the court of munsiff court. ( 2 ) THE facts of the case in brief are that there had been election for the post of adhyaksha of karur gram panchayat and petitioner had been elected in that election. That respondent No. 3 filed election petition, as per allegations made in the writ petition, before the principal munsiff court, ranebennur and the same is pending now in the court of additional munsiff, ranebennur - respondent No. 4. Petitioner's case is that under Section 15 of the Karnataka panchayat raj Act, a dispute relating to election of member of panchayat can be challenged by way of election petition to be filed before the munsiff and by no other authority. The petitioner's case is that he had moved an application on 26-7-1994 questioning the maintainability of the election petition and he prayed that the question of maintainability of the election petition be decided as a preliminary issue. But the learned munsiff by his Order dated 29-7-1994 a copy of which is annexure-b, refused to decide the question of maintainability of the election petition as a preliminary issue, taking the view that the question involved in the writ petition to the effect that whether the present writ petitioner who is respondent in the election petition belongs to the scheduled caste community or not and the other question about maintainability of the petition, both can be considered and disposed off separately by one and the same Order and therefore, there is no need to record decision on preliminary issue first and thereafter proceed with that matter. ( 3 ) HAVING felt aggrieved from the Order dated 29-7-1994, the petitioner has preferred this petition under Article 226 of the constitution of India, seeking the above reliefs. ( 4 ) ON behalf of respondent No. 3 appearance has been put up by Sri R. L. Patil. I have heard the learned counsel for the petitioner Sri Mohan Shantangoudar counsel for the petitioner. ( 4 ) ON behalf of respondent No. 3 appearance has been put up by Sri R. L. Patil. I have heard the learned counsel for the petitioner Sri Mohan Shantangoudar counsel for the petitioner. Sri Shantangoudar very vehemently urged before me that the election petition was not maintainable in view of the provisions of Section 15 of the Karnataka gram panchayat raj Act, as the petition could be entertained by the munsiff as persona designata and not as a civil court. He submitted munsiff and munsiff court are not one and the same thing in the eye of law and therefore the munsiffs court had no jurisdiction to entertain the election petition. He submitted that this fact has been ignored by the munsiff that munsiff has been used as persona designata. Had the munsiff court applied its mind in respect of the matter, he would have and should have decided the preliminary issue. He submitted that refusing to decide this question of maintainability of the election petition, the learned munsiff i. e. , respondent No. 4 has refused to exercise the jurisdiction vested in it to decide an issue as a preliminary issue. As regard this contention, it has been submitted on behalf of respondent No. 3, by Sri R. L. Patil that the expression 'munsiff has been used not as persona designata but as a civil court. Order 14, Rule 2 of the CPC, as amended by civil laws Amendment Act, ACT No. 104 of 1976/1976, provides the Rule of procedure and law in this regard, as to when and where the court is always bound to try an issue as a preliminary issue or not. ( 5 ) ORDER 14, Rule 2 of the CPC, reads as under. "court to pronounce judgment on all issues: (1) notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. ( 5 ) ORDER 14, Rule 2 of the CPC, reads as under. "court to pronounce judgment on all issues: (1) notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try issue first if that issue relates to, (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. " ( 6 ) A reading of this Rule per se shows that firstly it provides that not withstanding the fact that the case can be decided on a preliminary issue, the court shall pronounce judgment on issues and this general doctrine is subject to what is provided in sub-rule (2) of Rule 2 of Order 14. Sub-rule (2) confers a power i. e. , the discretionary power on the trial court to decide certain issues as preliminary issues, if those issues are issues of law and relate to jurisdiction of the court or relate to a bar to the suit created by any law for the time being in force and in that situation court may postpone trial of other issues. Use of expression 'may try that issue as a preliminary issue' clearly indicates that power is there in a court to try certain issue as preliminary issue, provided the issue purely raises a question of law and touching jurisdiction of the court to try a suit or petition or that it touches the question of bar i. e. , bar created by the law time being in force. The use of expression 'may try' confers a discretionary power on the court to try that issue as a preliminary issue or not. It does not bind the court to try an issue as a preliminary issue every time. The use of expression 'may try' confers a discretionary power on the court to try that issue as a preliminary issue or not. It does not bind the court to try an issue as a preliminary issue every time. It may consider the circumstances and may come to a justified opinion as not to try an issue as preliminary issue and defer its trials and decisions with the trial of other issues and proceed to decide all the issues once and at the same time. But discretion is there only in those conditions otherwise if an issue touching jurisdiction is not one of pure law but it involves decision on questions of fact and law, touching jurisdiction. In those cases it is beyond doubt true that those issues cannot be tried as preliminary issues. ( 7 ) IN the case of Major S. S. Khanna v. Brig F. J. Dillon, their lordships of the Supreme Court have been pleased to observe as under: "under Order 14, Rule 2, code of civil procedure, where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the court confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally, all the issues in a suit should be tried by the court not to do so especially when the decision on issues even of law depends upon issues of fact, would result in a lop-sided trial of the suit. " ( 8 ) FOLLOWING this view of the Supreme Court which has been given in the context of unamended code of civil procedure, i. e. , Order 14, Rule 2 unamended, a full bench of the Allahabad High Court in the case of Sunni Central Wakf Board v. Gopal Singh Vishrad and Observed as under. " ( 8 ) FOLLOWING this view of the Supreme Court which has been given in the context of unamended code of civil procedure, i. e. , Order 14, Rule 2 unamended, a full bench of the Allahabad High Court in the case of Sunni Central Wakf Board v. Gopal Singh Vishrad and Observed as under. "the word "shall" used in old Order 14, Rule 2 has been replaced in the present Rule by the word "may". Thus now it is discretionary for the court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the court to decide an issue of law as a preliminary issue. Another change brought about by the amended provision is that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within the ambit of clauses (a) and (b) of sub-rule (2) of Rule 2 of Order 14. Clause (a) mentions "jurisdiction of the court" and clause (b) deals with "bar" to the suit created by any law for the time being in force. " ( 9 ) IN view of this settled principle of law that no doubt there is discretion vested in the court to try an issue as preliminary issue provided other conditions of the Rule are satisfied, it is discretionary and if discretion has been exercised judiciously to avoid lop-sided trial, the court cannot be said to have refused jurisdiction or committed any illegality, when it says all the issues can be tried together, to avoid delay. In the present case the learned munsiff has observed aa under. "though in view of Section 7 (17) of Karnataka panchayat raj Act, election petitions shall be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits, but the election petition cannot be considered as a suit. Even in the suit also, it is not mandatory on the court to raise preliminary issues, regarding the maintainability of the suits etc. , as preliminary issues. Hence, taking into consideration of the fact that present petition came to be filed more than six months back, the petition has to be disposed off at the earliest time. Even in the suit also, it is not mandatory on the court to raise preliminary issues, regarding the maintainability of the suits etc. , as preliminary issues. Hence, taking into consideration of the fact that present petition came to be filed more than six months back, the petition has to be disposed off at the earliest time. " ( 10 ) AFTER having made these observations and observed to the effect that the main point involved in the suit can also be decided without delay, the learned munsiff observed. "hence for the reasons discussed above I am of the considered opinion that it is not just and proper to try and to give finding regarding maintainability of the petition as preliminary point or issue. " hence I am of the opinion that the learned munsiff did not either commit any jurisdictional error or error of law apparent on the face of record in passing the impugned Order, dismissing the petitioner's application for trial of issue whether the petition is maintainable as preliminary issue. Petitioner's counsel has submitted on the merits that the petition is entertainable by the munsiff as persona designata, and munsiff and the munsiff court are different entities and they are not same persons in the eye of law and he has submitted that as munsiff, court had no jurisdiction to entertain the petition filed before the munsiff, so the proceedings which are pending in the court of munsiff are without jurisdiction and they should be questioned or in alternative a writ of prohibition be issued restraining them from proceeding with the trial of the election petition. ( 11 ) I have applied my mind to this aspect of the matter. If I leave this question to be decided by munsiff, it may lead to further delay and whether proceedings can be questioned or not, let it be considered. In my opinion there is no substance in the contention of the petitioner's counsel on this aspect as well. The use of expression 'munsiff here is indicative of munsiff as a civil court. Sub-section (1) of Section 15 of Karnataka panchayat raj Act, reads as under. "15. Election petition. In my opinion there is no substance in the contention of the petitioner's counsel on this aspect as well. The use of expression 'munsiff here is indicative of munsiff as a civil court. Sub-section (1) of Section 15 of Karnataka panchayat raj Act, reads as under. "15. Election petition. (1) no election to fill a seat or seats in a gram panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub-section (1) of Section 19 and Section 20 to the munsiff within whose territorial jurisdiction the panchayat area concerned or the major portion of the panchayat area concerned is situated by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs, within thirty days from, but not earlier than, the date of declaration of the result of the election of the returned candidate at the election, and if the dates of declaration of the results of their election are different, the last of those dates. " ( 12 ) THE expression used is munsiff within whose territorial jurisdiction the panchayat area concerned or the major portion of panchayat area concerned is situated. A reading of this expression very clearly indicates that here the expresson 'munsiff has been used as civil court. The territorial jurisdiction is defined of a court beginning from the ladder of original court to that of appellate court. The election petition can be filed by presentation of that election petition before the munsiff's court, within the time prescribed and the court of munsiff having jurisdiction over the area of panchayat, in the sense that area which is located within the territorial jurisdiction of that of munsiff s court. In chapter ii of the mysore civil courts Act, 1964, i. e. , ACT No. 21 of 1964 as amended by ACT No. 11 of 1965, provisions have been made about the establishment and constitution of civil court. In Section 3, class and designation of civil courts have been provided. Section 3 of the ACT reads as under: "3. Class and designation of civil courts. there shall be three classes of civil courts subordinate to the high court, namely, (1) the district court; (2) the court of the civil judge; and (3) the munsiff s court. In Section 3, class and designation of civil courts have been provided. Section 3 of the ACT reads as under: "3. Class and designation of civil courts. there shall be three classes of civil courts subordinate to the high court, namely, (1) the district court; (2) the court of the civil judge; and (3) the munsiff s court. " ( 13 ) SECTION 7 provides that on the establishment of munsiffs court, each munsiffs court shall be presided over by a munsiff. Munsiffs court have been defined as civil court and the presiding officer of the court of munsiff, it has been provided that he shall be the person who has been appointed to the post of munsiff. There would have been some force in the contention of the counsel for the petitioner, had the expression 'within whose territorial jurisdiction panchayat area' existed. The territorial jurisdiction of the munsiff has been defined under the civil courts Act, the area is defined not. Of any individual being, but of munsiffs court and when the expression 'munsiff is read coupled with the other expression 'within whose territorial jurisdiction the panchayat area concerned is situated, it leads me to hold that it refers to the court of munsiff and therefore, if the petition had been filed and is pending in the court of munsiff or additional munsiff, it cannot be gainsaid that election petition has not been maintainable. The expression munsiff used here refers to the expression munsiff court used in the Karnataka civil courts act. ( 14 ) THE expression "persona designata" means and refers 'a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character'. ( 15 ) THE expression 'munsiff used in Section 15 here does not refer him as an individual. The expression 'munsiff indicates the person belonging to the class i. e. , judicial officers known as munsiffs and fulfilling the character and virtues of that office that are vested in him when the appointment as such was made and particularly in view of expression 'having territorial jurisdiction over the panchayat area', thus indicates that munsiff has not been used as persona designate. ( 16 ) IN this view of the matter, it is hereby held that the proceedings which are pending are pending in a court which has got jurisdiction and once this view has been taken there is no case for issuance of either a writ of prohibition or for quashing of the Order dated 29-7-1994, or for quashing of the election proceedings. The writ petition as such is devoid of merits and is hereby dismissed. It is open to respondent No. 4 to proceed with the trial of the case. --- *** --- .