JUDGMENT Rakesh Kumar Jain, J, (Oral).:- This appeal is directed against the order passed by Deputy Commissioner-cum Presiding Officer, Election Tribunal, Gurdaspur, dated 9.9.2009, whereby an election petition filed under Sections 76 & 89 of the Punjab State Election Commission Act, 1994 (for short, the Act), challenging the election of Balbir Singh, has been dismissed. 2. Brief facts of the case are that election to constitute Gram Panchayat, Jagowal Bet, District Gurdaspur, was held on 26.5.2008, in which 7 members from various categories were elected. In order to elect Sarpanch of the said village, a meeting was convened by the Returning Officer on 17.7.2008. The said meeting failed as the Presiding Officer did not come. Next meeting was scheduled for 19.7.2008 at 2.30.p.m and for that purpose, separate notices were issued by the Returning Officer on prescribed form. That meeting was attended by respondent Nos 2 to 4 in which respondent No.2 was declared to have been elected in terms of Rule 45-A of the Punjab Panchayat Election Rules, 1994 (for short, the Rules). 3. The appellant then filed a C.W.P.No.13111 of 2008 in this Court, seeking a writ in the nature of mandamus directing the official respondents i.e. respondent Nos. 1 and 2 to hold election of the Sapanch of Gram Panchayat, Jagowal Bet by allowing the petitioners to elect Sarpanch of their choice as they have got majority of four members out of seven members of the Panchayat. The said writ petition was disposed of by this Court in terms of an order passed in C.W.P.No.12694 of 2008 titled Gurmeet Singh Vs. State of Punjab and others decided on July 23,2008. The sum and substance of the said order passed in CW.P.No.12694 of 2008, was to file an election petition instead of approaching this Court by way of writ petition. 4. Consequently, the appellant filed an election petition before the Election Tribunal for the purpose of challenging the election of respondent No.2 on the ground that meeting dated 19.7.2008 has been held in their absence without notice to them. 5. On the pleadings of the parties, following issues were framed:- 1. Wehther the Election of respondent No.1 for the office of Gram Panchayat of Jagowal Bet is liable to be declared as illegal, null and void and set aside on the grounds mentioned in the petition ? OPP 2. Whether the election petition is not maintainable ?OPR 3. 5. On the pleadings of the parties, following issues were framed:- 1. Wehther the Election of respondent No.1 for the office of Gram Panchayat of Jagowal Bet is liable to be declared as illegal, null and void and set aside on the grounds mentioned in the petition ? OPP 2. Whether the election petition is not maintainable ?OPR 3. Whether the petition is time barred ? OPR 4. Wehther the Election Tribunal has not got the jurisdiction to entertain and try the present petition ? OPR 5. Relief: 6. The petitioner recorded his own statement as PW-1, whereas respondents Balbir Singh and Parshotam Lal got recorded their statements as RW-1 and RW-2, respectively. 7. Learned Tribunal dismissed the election petition only on the ground that the appellant and his supporters i.e. respondent Nos. 4 to 6 did not attend the meeting held on 19.7.2008 as they had refused to receive the notices served upon them. In that situation, the Presiding Office had no option but to elect respondent No.1. in their absence as Sarpanch from the members present in the meeting held on 19.7.2008 because Rule 45-A provides that in the adjourned/second meeting, coram is not required. 8. Notice of motion was issued in this case on 5.2.2010. In the meantime, Registry was directed to summon the record of the Election Tribunal through fax. Record has been received. 9. Learned counsel for the appellant has referred to Form No.10 and submitted that refusal service of summons effected upon the appellant and respondent Nos. 4 to 6 have not been acknowledged by way any independent witness. There is no evidence on record that the said summons were presented to the appellant who is alleged to have refused the same. He has also submitted that there is no time and date of refusal of summons that at what time, the summon was tried to be served upon the appellant or respondent Nos. 4 to 6. There is no evidence on record that the said summons were presented to the appellant who is alleged to have refused the same. He has also submitted that there is no time and date of refusal of summons that at what time, the summon was tried to be served upon the appellant or respondent Nos. 4 to 6. Learned counsel has further submitted that Section 81 of the Punjab State Election Commission Act, 1994 (for short, the Act) provides the procedure before the Election Tribunal that “subject to the provisions of this Act and of the rules made thereunder, every election petition shall be tried by the Election Tribunal as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure CPC 1908 ( for short CPC) to the trial of suits”. 10. It is submited that since the provisions of CPC have been made applicable, therefore, Order 5 Rule 17 of CPC comes to his aid which provides that in a case where receipt of summon has been refused, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides. In this regard, he has referred to the provisions of Order 5 Rule 17 of CPC which reads as under:- Procedure when defendant refuses to accept service , or cannot be found.— “Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasionable diligence, cannot find the defendant, (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and then shall return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed” 11. Learned counsel for the appellant has argued that the apellant has been in majority through out as they were 4 members on one side and 3 members were on other side as is evident from the record because the same four persons had filed the writ petition before this Court and even PW-1 has admitted in his cross examination that the appellant had majority of 4 members and their party is in minority. 12. Thus, learned counsel for the appellants has urged that if the appellants were in majority, then there was no question of his not attending the meeting on 19.7.2008 and allowing the minority group to elect their own Sarpanch. 13. 12. Thus, learned counsel for the appellants has urged that if the appellants were in majority, then there was no question of his not attending the meeting on 19.7.2008 and allowing the minority group to elect their own Sarpanch. 13. On the other hand, learned counsel for the respondents has vehemently argued that according to him, appellant and his supporters never attended the meeting on 17.7.2008 which was adjourned to 19.7.2008, but as the appellant was in majority at that time, therefore, he did not come in the meeting as he was apprehensive of his defeat at the hands of respondent No.2. It is submitted that the order passed by the Presiding Officer is totally in accordance with law. 14. I have heard learned counsel for both the parties and have perused the record with their assistance. 15. The basic question involved in this appeal is as to whether proper procedure was adopted at the time of service of notice dated 19.7.2008. 16. Undisputedly, summons bear the endorsement of the serving officer that the appellant and respondent Nos. 4 to 6 have refused to take summons which were served upon them for the purpose of attending meeting dated 19.7.2008. The question is whether report of refusal inspires confidence or not. In this regard, it would be suffice to say that CPC provides a procedure in case of refusal of service of summons by the defendant. In case the defendant refused to sign the acknowledge, the serving officer shall affix a copy of smmon on the outer door or some conspicuous place of his house in which the defendant ordinarily resides or carries on business or personally works for gain. 17. Admittedly, no such procedure has been adopted in the present case by the serving officer. Therefore, these report which has become the basis for passing the impugned order by the Election Tribunal, cannot be accepted by this Court as service upon the appellant and respondent Nos. 4 to 6. 18. Thus, I am of the view that the procedure carried out on 19.7.2008 in which members of minority group have elected the Sarpanch on the basis of report of refusal of summons by the appellant and respondent No.4 to 6 has to be set aside and I order accordingly. 19. 4 to 6. 18. Thus, I am of the view that the procedure carried out on 19.7.2008 in which members of minority group have elected the Sarpanch on the basis of report of refusal of summons by the appellant and respondent No.4 to 6 has to be set aside and I order accordingly. 19. The Deputy Commissioner, Gurdaspur is directed to hold fresh meeting for the purpose of election of Sarpanch, after giving due notice to all concerned in accordance with law, within a period of one month from the date of receipt of certified copy of this order. The appeal is, accordingly, allowed but without an order as to costs. The registry is directed to return the record of the case to the Election Tribunal, forthwith. --------------------