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2003 DIGILAW 313 (ORI)

Rabinarayan Hati v. Nityananda Patra

2003-04-23

A.K.PATNAIK, P.K.MISRA

body2003
JUDGMENT A. K. PATNAIK, J. — The election for Panchayat Samiti Member of Rangani Grama Panchayat of Rajnagar Panchayat Samiti was held on 19.02.2002 in which the petitioner and opposite par¬ties 1 and 2 contested. Opposite party No. 1 filed an election petition numbered as Election Misc.Case No.1 of 2001 in the Court of the learned Civil Judge (Senior Division) -cum-Election Com¬missioner, Kendrapara stating, inter alia, that opposite party No.1 was declared elected initially by a public announcement, but thereafter the petitioner was declared elected after a show of re-counting by the Election Officer. The petitioner filed his show-case in the said Election Misc. Case No.1 of 2002 before learned Civil Judge (Senior Division) -cum- Election Commission¬er, Kendrapara on 15.7.2002. The petitioner also filed petitions on 15.7.2002 and 30.9.2002 challenging the maintainability of the election petition on the ground that the allegations are vague and imaginary and the election petition does not disclose a cause of action and further the election petition is not signed and verified as required under Section 44-D of the Orissa Panchayat Samiti Act, 1959. By order dated 29.01.2003, the learned Civil Judge (Senior Division) -cum- Election Commissioner has rejected the said petitions dated 15.7.2002 and 30.9.2002 of the petition¬er and has posted the election petition for hearing. Aggrieved by the said order dated 29.1.2003, the petitioner has filed this writ petition with the prayer to quash the said order passed in Election Misc. Case No.1 of 2002. 2. Mr. Sanjit Mohanty, learned counsel for the petitioner, submitted that it is well settled that an election petition can be dismissed by the Court if it does comply with the requirements of law relating to presentation or filing of an election petition and the learned Civil Judge (Senior Division) -cum- Election Commissioner has lost sight of this position of law and has rejected the petitions filed by the petitioner on 15.7.2002 and 30.9.2002 challenging the maintainability of the election peti¬tion. He submitted that although the Orissa Panchayat Samiti Act, 1959 makes no express provision for dismissal of an election petition at the threshold, Section 44-D of the said Act provides that an election petition must contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the plead¬ings. He further submitted that Section 44-F of the said Act provides that every election pettion shall be tried by the Elec¬tion Commissioner as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. According to Mr. Mohanty, therefore, if the election petition does not contain material facts or does not disclose a cause of action, the same may be dismissed by the Court under Order 6, Rule 16 and Order 7, Rule 11 of the C.P.C. Mr. Mohanty argued that since in the present case, the election petition did not disclose the material facts or a cause of ac¬tion,, the learned Civil Judge -cum- Election Commissioner should have held that the election petition was not maintainable. In sup¬port of the aforesaid submission, Mr. Mohanty cited the decision of the Supreme Court in V. Narayanaswamy v. C.P. Thirunavukkara¬su, AIR 2000 SC 694 . 3. In the aforesaid decision of the Supreme Court in V. Narayanaswamy v. C.P. Thirunavukkarasu (supra) cited by Mr. Mohanty, the Supreme Court has held : “It will be thus seen that an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such.......The defect of the type provided in Section 83 of the Act on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure........” The aforesaid judgment of the Supreme Court will show that for the purpose of considering a preliminary objection as to the maintainability of an election petition, the averments in the petition should be assumed to be true and the Court has to find out as to whether these averments disclose a cause of action and a triable issue as such. By the aforesaid judgment, the Supreme Court has further held that the defects of the types provided in Section 83 of the Representation of the People Act, 1951 can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. The aforesaid provi¬sions will further show that non-compliance of the provisions of Section 83 of the Representation of the People Act, 1951 will lead to dismissal if the matter falls within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure, 1908. 4. Section 44-D of the Orissa Panchayat Samiti Act, 1959 is similar to Section 83 of the Representation of the People Act, 1951 and is quoted herein below : “44-D. Contents of petitions-(1) An election petition- (a) shall contain a concise statement of the material facts on which the petitioner relies : (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice ; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings. (2) Any Schedule or Annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.” Section 44-D(1) (c) provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. This provision is identical with the provision of Section 83 (1) (c) of the Representation of the People Act, 1951. It has been held by the Supreme Court in Muraka Radhe Shyam Ram Kumar v. Roop Singh Rathore and others, AIR 1964 SC 1545 , that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908 for verification of the pleadings, as required by Clause (c) of Sub-section (1) of Sec¬tion 83 of the Representation of the People Act, 1951, is not fatal to the maintainability of the election petition. Hence, the contention of Mr. Hence, the contention of Mr. Mohanty, learned counsel for the petitioner, that the petition of opposite party No.1 before the learned Civil Judge (Senior Division) -cum- Election Commissioner was liable to be dismissed as not maintainable on the ground that it has not been verified and signed in the manner laid down in the Code of Civil Procedure, 1908 as required by Clause (c) of Sub-section (1) of Section 44-D of the Orissa Panchayat Samiti Act, 1959, is misconceived. 5. Clause (a) Sub-section (1) of Section 44-D of the Orissa Panchayat Samiti Act, 1959 provides that an election petition shall contain a concise statement of material facts on which the petitioner relies. Order 7, Rule 11 of the C.P.C. provides that a plaint shall be rejected where it does not dis¬close a cause of action. Hence, if the facts as stated in the election petition do not disclose a cause of action, the election petition is liable to rejected. The election petition has been annexed to the writ petition as Annexure 1. On a perusal of the same, it is difficult to hold that it does not disclose any cause of action so as to call for the rejection of the election peti¬tion at the threshold under Order 7, Rule 11 of the Code of Civil Procedure, 1908. We find from the petition dated 15.7.2002 filed before the learned Civil Judge (Senior Division) -cum- Election Commissioner that the petitioner’s case is that the allegations made by the opposite party No.1 in the election petition are vague, imaginary, concocted and false. As to whether the allega¬tions made in the election petition are vague, imaginary, con¬cocted or false can only be decided on the basis of the evidence led by the parties and not otherwise. Before evidence is taken, the Court has to decide the maintainability of the petition under Order 7, Rule 11, C.P.C. read with Section 44-D (1) (a) of the said Act assuming the averments in the petition to be true. 6. In the petition dated 30.9.2002 of the petitioner before the learned Civil Judge (Senior Division) -cum- Election Commissioner, the petitioner has stated that the maintainability of the election misc.case can be decided without evidence purely on point of law. 6. In the petition dated 30.9.2002 of the petitioner before the learned Civil Judge (Senior Division) -cum- Election Commissioner, the petitioner has stated that the maintainability of the election misc.case can be decided without evidence purely on point of law. Under Order 14, Rule 2 of the C.P.C., the Court can decide the maintainability of a suit on a point of law if it relates to the jurisdiction of the Court or a bar to the suit created by any law. In this case the petitioner has not shown that the learned Civil Judge (Senior Division) -cum- Election Commissioner has no jurisdiction to try the election misc.case or there was a bar created by any law to try the election misc.case. The petitioner’s case is that the allegations in the election petition are vague, imaginary, concocted and false. This case of the petitioner can only be considered after the evidence is led by the parties and not otherwise. In fact, this is what has been held by the learned Civil Judge (Senior Division) -cum- Election Commissioner, as he has held in the impugned judgment that the contentions raised by Mr. Rout, learned counsel for the opposite party No.1 (writ petitioner) can be considered at the time of considering the merit of the election case but not at this stage in view of the provisions of Order 14, Rule 2 of the C.P.C. 7. Neither in the petition dated 15.7.2002 nor in the petition dated 30.9.2002 has the petitioner made any prayer before the learned Civil Judge (Senior Division) -cum- Election Commissioner that any pleading in the election petition should be struck off under Order 6, Rule 16 of the Code of Civil Procedure, 1908. No such case under Order 6, Rule 16 of the Code of Civil Procedure, 1908 having been made out, the election petition was not liable to be dismissed under the said provision of law. 8. For the aforesaid reasons, we are not inclined to interfere with the impugned order dated 29.1.2003 of the learned Civil Judge (Senior Division) -cum- Election Commissioner, Ken¬drapara in Election Misc. Case No.1 of 2002 and we, accordingly, dismiss this writ petition and vacate the interim order dated 17.4.2002 passed by this Court. CH. P. K. MISRA, J. I agree. Petition dismissed.