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2008 DIGILAW 385 (AP)

S. Nagarathnamma v. P. Muralidhar Reddy

2008-06-18

P.S.NARAYANA

body2008
ORDER Heard Sri Vedula Venkata Ramana, the learned Counsel representing the Revision Petitioner. The 1st respondent-petitioner was served but none represents the 1st respondent. 2. The Civil Revision Petition is filed under Article 227 of the Constitution of India as against an order made in I.A.No.394/2007 in Election O.P.No.3/2006 on the file of Junior Civil Judge, Pattikonda. The 1st respondent herein as petitioner filed the said I.A.No.394/2007 in E.O.P.No.3/2006 on the file of Junior Civil Judge, Pattikonda under Order IX Rule 9 Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) praying for restoration of Election Petition which was dismissed on 20-8-2007. The learned Junior Civil Judge, Pattikonda after referring to the provisions of the Code and also Rule 7 of the A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (in short referred to as 'the Rules'), came to the conclusion that no prejudice would be caused to the 1st respondent in the said application i.e., the Revision Petitioner, if the application is allowed and accordingly the application was allowed on condition that the petitioner in the said application i.e., the 1st respondent herein shall be present for cross-examination on 27-12-2007, failing which the petition stands dismissed. 3. Sri Vedula Venkata Ramana, the learned Counsel representing the Revision Petitioner would maintain that the learned Junior Civil Judge, Pattikonda, made the said order in I.A.No.394/2007 in E.O.P.No.3/2006 as Election Tribunal and the Tribunal is governed by the procedure specified by Rule 7 which deals with the procedure for trial of election petitions and in view of the fact that only certain provisions of the Code were made applicable and since the applicability of Order IX Rule 9 of the Code had not been specified, such power could not have been exercised by the said Tribunal. The learned Counsel placed strong reliance on the decision of the Division Bench of this Court in KUMMARI RAMULU v. GANGARAM PENTA REDDY AND OTHERS ( 2004 (3) ALT 788 (D.B.). The learned Counsel also further in all fairness would maintain that this application which had been thought of by the 1st respondent is a misconceived remedy but however it cannot be said that the 1st respondent is totally remediless may be that the party is entitled to move this Court under Article 226 of the Constitution of India. The learned Counsel also further in all fairness would maintain that this application which had been thought of by the 1st respondent is a misconceived remedy but however it cannot be said that the 1st respondent is totally remediless may be that the party is entitled to move this Court under Article 226 of the Constitution of India. 4. Heard the Counsel and perused the reasons recorded while allowing the application on condition by the learned Junior Civil Judge, Pattikonda in I.A.No.394/2007 in E.O.P.No.3/2006. 5. In Kummari Ramulu's case (referred above), the Division Bench of this Court at paras 9 and 10 observed as hereunder: "Rule 7 lays down the procedure for trial of election petitions. Sub- rule (1) says that every election petition shall be enquired into by the election Tribunal, as early as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits. It also provides that it shall only be necessary for the Election Tribunal to make a memorandum of substance of evidence of any witnesses examined by him. Sub- rule (2) simultaneously provides that the Election Tribunal shall have the powers, which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the matters enumerated therein. Rule 7 reads: "(1) Every election petition shall be enquired into by the Election Tribunal, as early as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits; Provided that it shall only be necessary for the Election Tribunal to make a memorandum of the substance of evidence of any witness examined by him. (2) The Election Tribunal shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters:- (a) discovery and inspection; (b) enforcing the attendance of witness and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) reception of evidence taken on affidavit; and (f) issuing commissions for examination of witnesses, and may summon and examine suo motu any person whose evidence appears to him to be material. The powers which the Election Tribunal has got while trying election petition, which are vested in a Court while trying the suit under the Code of Civil Procedure, are only for discovery and inspection, enforcement of attendance of witnesses and requiring deposit of expenses, compelling production of documents, examining witnesses on oath, reception of evidence taken on affidavit and issuing commission for examination of witnesses. Nowhere the rule makes a provision that Election Tribunal shall have the power to permit amendment of election petition or addition, substitution or deletion of parties, which is a specific power available to a Civil Court while trying a suit under the Code of Civil Procedure. Law enjoins upon trial of election petition expeditiously. That being the purpose, the Legislature in its wisdom rightly conferred specific powers on the Election Tribunal while trying election petition, which are enjoined upon a Civil Court while trying civil suit, and not all the powers exercisable by a Civil Court as provided under the Code of Civil Procedure. That being the purpose, it has to be assumed that the powers, which are not mentioned in the rules, cannot be exercised by the Election Tribunal. Moreover, power to permit addition of a party after the period of limitation in such a power that can be exercised only when it is specifically conferred on the Tribunal. For that a Division Bench of this Court in Beerapalli Swaminatha Janaki Venkata Ramana Reddy V. Attkuri Ammi Raju and others (ILR 1971 A.P. 277 (D.B.), while dealing with the question of power of Election Tribunal in ordering transposition of party under Order I Rule 10 of the Code of Civil Procedure while trying election petition under the Panchayat Samithis and Zilla Parishads Act, 1959, held that such a power is not conferred on the Tribunal and that the Tribunal can exercise only those powers which were conferred on it." 6. It is needless to say that Rule 7 lays down the procedure for trial of election petition and the election petition shall be enquired into by the Election Tribunal as early as may be in accordance with the procedure applicable under the Code for the trial of suits and further specifically the said Rule enumerates the powers of the Election Tribunal and also the limited applicability of the provisions of the Code. It is needless to say that Order IX Rule 9 of the Code is not specified in the said Rules. It is no doubt true that the Division Bench was considering an order made on an application filed under Order I Rule 10 of the Code in a election petition. But, however, the principle which had been clearly laid down by the Division Bench is that only such powers which had been specifically conferred by Rule 7 in relation to the applicability of the Code can be exercised by the Election Tribunal. In the absence of the same, it cannot be said that the Election Tribunal is entitled to exercise the power to restore the Election petition by setting aside the dismissal order on an application filed under Order IX Rule 9 of the Code. It is no doubt true that prima facie this appears to be causing some hardship. It is not as though in such cases, the aggrieved parties are remediless. Such parties are at liberty to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Suffice to state that this remedy of filing an application under Order IX Rules 9 of the Code is a misconceived remedy in the light of the clear language of Rule 7 specified above and also in the light of the decision of Division Bench in Kummari Ramulu's case (referred above). It is needless to say that the 1st respondent is at liberty to pursue the other lawful remedies available to him in accordance with law if the 1st respondent is so advised. 7. Subject to the above observation, the order impugned is set aside and the Civil Revision Petition is hereby allowed. No costs.