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2013 DIGILAW 287 (ORI)

RAMA MURTY @ RAMA MURT v. UDAYA GOMANGO

2013-08-07

S.C.PARIJA

body2013
JUDGMENT : S.C. Parija, J. - Heard learned counsel for the parties. The petitioner, who is the elected Sarpanch of Regada Gram Panchayat in the district Rayagada has filed this writ petition challenging the order dated 31.1.2013, passed by the learned Civil Judge (Jr. Division), Gunupur, in Election Petition No. 16 of 2012, rejecting the petitioner's application for considering the question of maintainability of the election petition on the ground of limitation, as a preliminary issue. 2. Learned counsel for the petitioner submits that in the election held for the post of Sarpanch of Regada Gram Panchayat of Rayagada district, this petitioner was declared elected on 22.02.2012. Being aggrieved by the result of the said election, opposite party no. 1, who was one of the contesting candidates, filed Election Petition No. 16 of 2012 before the learned Civil Judge (Jr. Division), Gunupur, on 26.3.2012, praying for declaring the election of the petitioner as void and to declare opposite party no. 1 as the elected Sarpanch of Regada Gram Panchayat. Along with the election petition, opposite party no. 1 also filed an application u/s 5 of the Limitation Act, for consideration of delay in filing the election petition. 3. The present petitioner appeared in the election petition pursuant to notice and filed an application to take up the question of maintainability of the election petition on the ground of limitation and to dismiss the same, being barred by time. 4. Learned Civil Judge by the impugned order has rejected the prayer of the petitioner, holding that as the question of limitation is a mixed question of law and fact, the same shall be considered at the time of trial of the election petition. 5. Learned counsel for the petitioner submits that as Section 31(1) of the Orissa Grama Panchayat Act clearly provides that an election petition has to be presented within 15 days of publication of result and in the instant case the result was declared on 22.02.2012 and the election petition has been filed on 26.3.2012, the same is barred by limitation. It is submitted that election petition having been filed beyond the prescribed period of limitation, the same is not a valid presentation as per law. Accordingly, it is submitted that unless the delay is condoned, the election petition cannot be taken up for hearing. 6. It is submitted that election petition having been filed beyond the prescribed period of limitation, the same is not a valid presentation as per law. Accordingly, it is submitted that unless the delay is condoned, the election petition cannot be taken up for hearing. 6. Learned counsel for the petitioner files a copy of the order of this Court dated 25.4.2012 in W.P.(C) No. 7367 of 2012, where in a similar case this Court has directed that the issue of limitation be taken up as a preliminary issue. 7. Learned counsel appearing for the opposite party no. 1 while supporting the impugned order submits that as the question of limitation involves mixed question of law and fact, for which evidence may be necessary, the same should be heard along with other issues, as piecemeal trial is not desirable. 8. In the present case, admittedly the election petition has been filed beyond the prescribed period of limitation, for which the election petitioner has filed an application u/s 5 of the Limitation Act for condonation of delay. As the maintainability of the election petition is dependent on adjudication of the question of limitation, it is desirable that the same should be taken up as a preliminary issue before proceeding with the trial of the case. Moreover, if the preliminary issue regarding maintainability of the election petition on the ground of limitation is decided in favour of the present petitioner, the necessity of a protracted trial can be avoided. 9. In view of the above, the impugned order of the learned Civil Judge (Jr. Division), Gunupur, dated 31.01.2013, passed in Election Petition No. 16 of 2012 is set aside and the matter is remitted back to the learned Civil Judge to consider the question of limitation as a preliminary issue, after giving opportunity of hearing to the parties. 10. Writ petition is accordingly allowed. 11. Issue urgent certified copy as per rules. Misc. Case Nos. 3005 and 16543 of 2013 12. In view of the order passed today in the writ petition, no order is necessary. Both the misc. cases are accordingly dismissed. Final Result : Allowed