Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 2405 (ALL)

ANITA v. ADDL. DISTRICT JUDGE,MUZAFFARNAGAR

2009-06-29

S.U.KHAN

body2009
JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the parties. 2. Petitioner was declared elected as Chairman Nagar Panchayat Bhokarheri, district Muzaffarnagar on 6.11.2006. Respondent No. 2, Smt. Bina was also contesting for the said post. She lost by a margin of about 640 votes. Respondent No. 2 filed election petition under Section 20 of U.P. Municipalities Act of 1960 against the petitioner challenging her election and seeking further relief that either she might be declared as Chairman of the Nagar Panchayat or re-election might be directed (Annexure IV to the writ petition is the copy of the election petition). The main ground taken in the election petition is that the writ petitioner i.e. elected candidate, opposite party in the Election Petition was under age as her date of birth according to her high school certificate was 18.6.1979 and on the date of nomination she was only 27 years and few months old while the minimum age prescribed is 30 years. Election petition is pending before A.D.J. Court No. 6, Muzaffarnagar in the form of Election Petition No. 519 of 2006. 3. In the election petition, writ petitioner filed applications under. Order VII, Rule 11, C.P.C. and Order VI Rule 16, C.P.C. The applications have been rejected through orders dated 29.1.2008, 23.10.2007 and 21.3.2007 copies of which are Annexures 1, 2 and 3. The said orders have been challenged through this writ petition. Through the first order dated 21.3.2007 application under Order VII Rule 11, C.P.C. was rejected. In the said application the main ground taken by the writ petitioner was that the objection regarding her age was not raised before the Presiding Officer at the time of nomination or election. It was also stated in the said application that full particulars and material facts had not been mentioned in the election petition. In my opinion the Court below rightly rejected the said application. In the election petition date of birth of the petitioner has been given. Thereafter, no further particular was required to be given. If a candidate is below the minimum prescribed age on the date of nomination then she is disqualified from contesting the election. The election petition fully disclosed cause of action. 4. In the election petition date of birth of the petitioner has been given. Thereafter, no further particular was required to be given. If a candidate is below the minimum prescribed age on the date of nomination then she is disqualified from contesting the election. The election petition fully disclosed cause of action. 4. It was also one of the objections taken in the application under Order VII Rule 11, C.P.C. that the plaint was not filed in duplicate and that as many copies of the plaint as there were defendants in the election petition were not supplied along with requisite fee for service of summons on the defendants within two days from the date of the order in that regard. 5. Through the second order dated 23.10.2007 (Annexure II) application of petitioner under Order VI Rule 16 was rejected. The petitioner had pleaded that full particulars and complete facts had not been mentioned in the election petition. Under the said Rule pleadings may be struck off if they are unnecessary, scandalous, frivolous or vexatious. It was further stated in the said application that material particulars had not been provided. The said application was rightly rejected. Similar pleas had already been taken in the earlier application under Order VII Rule 11, C.P.C. Even otherwise the case was not covered by Order VI Rule 16, C.P.C. Full particulars had already been given. The only ground taken in the election petition was that petitioner was under age. Regarding that ground the only particular which was required to be stated was the date of birth of writ petitioner. This fact/particular has specifically been stated in the Election Petition. 6. As far as third order dated 29.1.2008 (Annexure I) is concerned it was passed on the second application of the petitioner under Order VII Rule 11, C.P.C. In the earlier application filed under Order VII Rule 11, C.P.C. the ground taken was that election petition did not disclose any cause of action. In the second application, the ground taken was that plaint was not filed in duplicate and sufficient number of copies of plaint for being served upon the defendants had not been filed. The second application was under Order VII, Rule 11 (e),(f) and (g). In the second application, the ground taken was that plaint was not filed in duplicate and sufficient number of copies of plaint for being served upon the defendants had not been filed. The second application was under Order VII, Rule 11 (e),(f) and (g). Election petitioner/respondent No. 2 in this writ petition filed additional duplicate copy of the plaint stating that even though along with plaint its duplicate copy had been filed, however, it was not available in the record. 7. The Court below placed reliance upon the authority of the Supreme Court reported in AIR 2003 SC 189 (para 16), Salem Advocate Bar Association, Tamil Nadu v. Union of India, para 16 of the said authority is quoted below : "16. Our attention has been drawn to Order 7, Rule 11 to which clauses (e) and (f) have been added which enable the Court to reject the plaint where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of Rule 9 of Order 7. It appears to us that the said clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects, and in the event of the same not being done the Court will have the liberty or the right to reject the plaint." 8. Further argument was raised by the writ petitioner that election petition should be deemed to have been filed on the date on which defects were removed. This argument was rather fantastic and was also rightly rejected by the Court below. 9. In my opinion, the objections raised by the petitioner were unnecessary, scandalous, frivolous and vexatious. They also tended to delay the fair trial of the election petition and they amounted to abuse of the process of the Court (to borrow the terminology from Order VI Rule 16, C.P.C.). Filing repeated applications for different types of preliminary objections itself proves that intention of the petitioner was to delay the proceedings. Detailed particulars are required only when election is challenged on the ground of corrupt practice. Filing repeated applications for different types of preliminary objections itself proves that intention of the petitioner was to delay the proceedings. Detailed particulars are required only when election is challenged on the ground of corrupt practice. Election petition fully disclosed cause of action and there is no such defect either in the election petition or in the manner in which it was filed which could render the filing to be no filing in the eye of law. 10. Accordingly, writ petition is dismissed with exemplary cost of Rs. 25,000/- to be paid to Respondent No. 2 or deposited before the Courts below for immediate payment to respondent No. 2 by the next date which is fixed to be 20.7.2009. All the parties are directed to appear before the Court below on 20.7.2009. The Court below shall decide the election petition very very expeditiously. Absolutely no unnecessary adjournment in any form (which includes filing of any type of application) shall be granted to any of the parties . If any adjournment is granted, it shall be on very heavy cost which shall not be less than Rs. 1000/- per adjournment and the date shall not be adjourned for more than one week or by maximum two weeks. ———