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2006 DIGILAW 1197 (RAJ)

Roop Dan v. A. C. J. (S. D. ) No. 2, Jodhpur

2006-04-17

DINESH MAHESHWARI

body2006
Judgment Dinesh Maheshwari, J.-This writ petition has been submitted against the order dated 111.2005 (Annexure 4) passed by the Additional Civil Judge (Senior Division) No. 2, Jodhpur in Election Petition No. 14-A/2005 refusing to take the written statement on record sought to be filed by the petitioner. 2. Briefly put the facts of the case and the proceedings before the Court below could be summarised thus: Kuna Ram Respondent No. 2 herein, has submitted an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 challenging the election of the petitioner Roop Dan as Sarpanch of Gram Panchayat, Bhatelai Purohitan in the elections held on 31.01.2005 on several grounds particularly regarding improper counting and improper refusal of rejection of ballot papers with the submissions that the returning officer has rejected number of valid votes and so also on the ground of various irregularities in the polling. Apart from joining the petitioner Roop Dan as Respondent No. 1, the other candidates in the same election, Hari Singh and Heera Ram have been arrayed as Respondent Nos. 2 and 3; and the Returning Officer and the District Election Officer have also been arrayed as Respondent Nos. 4 and 5 in the election petition. It appears that the election petition was presented to the District Judge, Jodhpur and was ordered to be registered on 10.03.2005 and notices were ordered to issued for the date of 08.04.2005. However, for clerical error, the notices were issued for the date of 05.04.2005 and hence the case was taken up on that date when the present petitioner (Respondent No. 1 in the election petition) put in appearance through Counsel. It was noticed that the Respondents No. 2 and No. 3 did not appear despite having been served; notice of Respondent No. 5 was not received back but that of Respondent No. 4 was returned back unserved. The matter was ordered to taken up on 08.04.2005. 3. On 08.04.2005, the service on Respondent No. 5 was ordered to be awaited but in relation to the Respondent No 4 it was ordered that on filing of the process fees, the notice be issued for 17.05.2005. 4. On 17.05.2005, learned Government Advocate put in appearance for the Respondent No. 5 whereas nobody was present for the Respondent Nos. 3. On 08.04.2005, the service on Respondent No. 5 was ordered to be awaited but in relation to the Respondent No 4 it was ordered that on filing of the process fees, the notice be issued for 17.05.2005. 4. On 17.05.2005, learned Government Advocate put in appearance for the Respondent No. 5 whereas nobody was present for the Respondent Nos. 2 and 3 and notice of Respondent No. 4 was received back unserved and the matter was adjourned to 26.05.2005. Noteworthy it is that on these dates of 05.04.2005, 08.04.2005 and 17.04.2005, the learned Presiding Officer was not available. 5. On 26.05.2005, the learned District Judge transferred the election petition for trial and disposal to the Court of Additional Civil Judge (Senior Division) No. 2, Jodhpur and the notice for Respondent No. 4 was ordered to be issued as the process fees and notices had been filed and the matter was fixed on 03.06.2005. 6. On 03.06.2005, the transferee Court ordered the election petition to be registered and further ordered that on filing of the process fees and notices, the same may be issued for Respondent No. 4 and the matter was adjourned to 08.07.2005. 7. On 08.07.2005, the learned Additional Civil Judge, (Senior Division) No. 2, Jodhpur found that nobody was present for the respondents despite notices on Respondents No. 1, 2, 3 and 5 having already been served and that no reply was filed. The learned trial Judge, therefore, ordered closure of the right to file reply and ordered issuance of fresh notice to the Respondent No. 4 because process fees and notices have already been filed. A noting made by the ministerial staff on the margin of this order sheet of 08.07.2005 shows that the notices were not issued because it had already been reported that the address of Respondent No. 4 was not correctly stated and the correct address of Respondent No. 4 was required to be filed. The matter was adjourned to 21.07.2005. 8. It was recorded in the order sheet of the next date, i.e., 21.07.2005, that the Counsel for the respondents were absent and that the Presiding Officer was on leave. Notices were ordered to be issued for Respondent No. 4 and the matter was adjourned to 04.08.2005. However, again a notice was made by the ministerial staff that the process could be issued only after filing of the process fess and notices. Notices were ordered to be issued for Respondent No. 4 and the matter was adjourned to 04.08.2005. However, again a notice was made by the ministerial staff that the process could be issued only after filing of the process fess and notices. 9. On the next date of 04.08.2005 again the Court ordered that the process fees and notices for Respondent No. 4 have been filed and the same may be issued. There appears yet another noting made by the ministerial staff in the margin of the order-sheet that the PF, notices, and copies were not filed. Be that as it may, on this date of 04.08.2005, the present petitioner submitted an application under Section 151, of the Code of Civil Procedure (CPC) alongwith his written statement and prayed that the same may be taken on record. 10. The aforesaid application under Section 151, CPC has been heard and decided by the learned Additional Civil Judge (Senior Division) No. 2, Jodhpur by the impugned order dated 111.2005. The learned Judge has proceeded to reject the application on the consideration that the respondent has taken several adjournments and opportunities for filing of the written statement but has not filed written statement in time and the application has been filed only after closure of the written statement and the same could not be allowed. 10.11. Assailing the order aforesaid, learned Counsel for the petitioner Mr. Vineet Jain has strenuously contended that the matter remained pending for service on Respondent No. 4 and, therefore, there is no delay caused by any act or omission on the part of the petitioner and this being a matter of election petition, the petitioner, the returned candidate, deserves an opportunity to place his defence on record and to contest the matter on merits. Learned Counsel for the contesting Respondent No. 2, the election petitioner, Mr. Ashok Bishnoi has emphatically refuted the submissions made by the learned Counsel for the petitioner and with reference to the order-sheets of the case has pointed out that the present petitioner has not only failed to submit written statement in time but moreover chose to remain absent on 08.07.2005 when the written statement was closed and was absent even on 21.07.2005. Learned Counsel has referred to the contents of the application submitted by the petitioner under Section 151, CPC (Annexure 3) wherein the petitioner has stated that the written statement was submitted on 21.07.2005 but for the Presiding Officer being not available, the Court reader asked to file the written statement on the next date. Learned Counsel has pointed out that such assertions are entirely incorrect in view of the facts noticed in the order-sheet of 21.07.2005 that the Counsel for the present petitioner was not available. Learned Counsel submitted that in view of the conduct of the petitioner, he is not entitled for any indulgence and the learned Additional Civil Judge has not committed any jurisdictional error so as to warrant interference by this Court in extra-ordinary writ jurisdiction. 12. Having heard learned Counsel for the parties and having perused the material placed on record, this Court is clearly of opinion that though the conduct of the petitioner cannot be said to be conductive to expeditious disposal of the election petition, however, for the peculiar facts and circumstances of the case and the subject matter of dispute, it appears appropriate that the petitioner be extended an opportunity to submit his written statement on record and to contest the matter on merits, subject of course, after putting the petitioner to specific terms. 13. So far the proceedings in the election petition are concerned, a comprehensive look at the order sheets makes it apparent that though the petitioner (i.e., Respondent No. 1 in the election petition) put in appearance on 04.05.2005, he did not file written statement till 04.08.2005, and that the written statement was filed only after the right to file written statement was already closed. It also appears that on consecutive two occasions, i.e., 08.07.2005 and 21.07.2005, the petitioner chose to remain absent. The assertions as made in the application Annexure-3 stand at square contradiction to the order-sheets of 08.07.2005 and 21.07.2005 and it cannot be accepted that the petitioner offered the written statement on 08.07.2005 or 21.07.2005. The petitioner has stated in the application that on 08.07.2005 time was sought for filing of the written statement. However, neither the Counsel nor the petitioner were even present before the Court on 08.07.2005. The petitioner has stated in the application that on 08.07.2005 time was sought for filing of the written statement. However, neither the Counsel nor the petitioner were even present before the Court on 08.07.2005. The petitioner has further stated that on 21.07.2005, the reply was offered but the Court reader asked for filing of the same on the next date for the Presiding Officer being not available. This assertion is also wrong as the absence of the petitioner and his Counsel has been recorded in the order-sheet of 21.07.2005. Moreover, if at all the petitioner has prepared the written statement and was ready to offer the same; and even if it be assumed that the Court reader asked for filing the written statement on the next date, nothing prevented the petitioner to supply a copy of the written statement to the other side, i.e., election petitioner. Nothing seems to have done in that regard. It is apparent that the application dated 04.08.2005 is not correct on material particulars. 14. However and apart from such shortcomings in the conduct of the petitioner, as noticed in the preceding paragraph, there are other relevant facts and factors which cannot be ignored and require consideration. It appears that the matter remained pending for service upon the Respondent No. 4, i.e., the Returning Officer against whom specific allegations have been made in the election petition. The noting as made by the ministerial staff in the margin of the order-sheets dated 08.07.2005 and 21.07.2005 show it clearly that the election petitioner himself failed to take appropriate steps to get the Respondent No. 4 served and did not submit correct notices on correct address of the Respondent No. 4 and on account of such default on the part of the election petitioner, the notices could not be issued. The submissions as sought to be made on behalf of the election petitioner that the present petitioner is responsible for delay in progress of the proceedings, do not appear to be correct and it is apparent that the election petitioner himself has largely contributed to this delay by not filing notices on correct and complete address. The submissions as sought to be made on behalf of the election petitioner that the present petitioner is responsible for delay in progress of the proceedings, do not appear to be correct and it is apparent that the election petitioner himself has largely contributed to this delay by not filing notices on correct and complete address. Viewed in the light of these state of affairs and the progress of the election petition, it is noticed that on 04.08.2005 when the application was submitted by the present petitioner for taking the written statement on record, the Respondent No. 4 was yet to be served. It appears that the written statement on behalf of Respondents No. 4 and 5 was filed on 29.09.2005 and was ordered to be taken on record. The learned trial Court, while passing the impugned order on 111.2005 refusing the application of the present petitioner has not noticed the fact that so far the Respondent No. 5 was concerned, going by the order dated 08.07.2005, reply on his part also stood closed by the force of the same order; and it has not been explained on record as to how the reply submitted by the Respondent No. 5 alongwith Respondent No 4 has been taken on record on 29.09.2005? The learned Judge has failed to consider that when the matter has been completed in relation to filing of the reply by the respondents only on 29.09.2005; and much prior to that the petitioner had already offered his written statement to be taken on record, the same could have been taken on record with reasonable terms as to costs without causing any prejudice to either of the parties. However, the learned Additional Civil Judge has preferred to rely more on technicalities and has proceeded to reject the application merely because several opportunities were taken. 15. This Court is clearly of the opinion that the rules of procedure are intended to serve the cause of justice and it is always preferred to decide an issue on merits rather than driving out a party from the Court on mere technicalities. 16. 15. This Court is clearly of the opinion that the rules of procedure are intended to serve the cause of justice and it is always preferred to decide an issue on merits rather than driving out a party from the Court on mere technicalities. 16. The Honble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005 (2) WLC (SC) Civil 242, has laid down several principles for dealing with various provisions of the Code of Civil Procedure particularly with reference to the amendments to the Code of Civil Procedure by the Amendment Acts of 1999 and 2002. In relation to the provisions of Order 8 Rule 1 of the Code of Civil Procedure, the Honble Supreme Court has been pleased to observe that the rule in question is to advance the cause of justice and not to defeat it. Construction of rules of procedure which promotes justice and prevents its miscarriage has to be preferred. The Honble Supreme Court has been pleased to hold thus,:- ".....In construing the provision of Order VIII Rule 1 and Rule 10 the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1." 17. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1." 17. It is apparent that denial of written statement on mere mathematical calculation of number of days is not envisaged by law and obviously, filing of the written statement ought not to have been denied by merely counting out the number of opportunities taken. 18. Applying the principles aforesaid to the facts of the present case, this Court is clearly of opinion that the written statement filed by the present petitioner ought to have been taken on record on reasonable costs. In view of the aforesaid, the impugned order dated 111.2005 (Annexure 4) cannot be sustained and deserves to be set aside and the written statement deserves to be taken on record. However, the petitioner having contributed to delay in the proceedings ought to be saddled with the costs and this Court is of opinion that the petitioner is liable to make payment of costs of Rs. 3,000/-to the contesting respondent for such delay before his written statement be taken on record. 19. As a result of the aforesaid, this writ petition succeeds to the extent indicated above; impugned order dated 111.2005 (Annexure 4) is set aside and the learned trial Court is directed to take on record the written statement already submitted by the petitioner, subject of course, to the condition that the petitioner shall make payment of costs of Rs. 3,000/-to the election petitioner on or before 20.04.2006. However, there shall be no order for costs so far this writ petition is concerned.