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2013 DIGILAW 305 (ORI)

ANUPAMA DASH v. ABHIMANYU MAHAPATRA

2013-08-14

S.C.PARIJA

body2013
JUDGMENT : S.C. Parija, J. - Heard learned counsel for the parties. This writ petition has been filed challenging the order dated 16.07.2012, passed by the learned Civil Judge (Sr. Division), Jajpur, in Election Misc. Case No. 4 of 2012, rejecting the petitioner's application filed under Order 14, Rule 2(2) C.P.C., for taking up the issue of maintainability of the election petition on the ground of limitation as a preliminary issue. 2. Learned counsel for the petitioner submits that admittedly as the election petition had been filed beyond the prescribed period of limitation, as provided u/s 31(1) of the Orissa Gram Panchayat Act, the same should have been taken up as a preliminary issue before proceeding with the hearing of the election petition. 3. Learned counsel for the opposite party no. 1 submits that the election for the post of member of Panchayat Samitee of Pritipur Gram Panchayat was held on 15.2.2012 and the result of the election was announced on 22.2.2012, declaring the present petitioner elected. Being aggrieved, opposite party no. 1 filed election petition before the learned Civil Judge (Sr. Divn.), Jajpur, on 28.3.2012, along with an application for condonation of delay of 15 days in filing the election petition, duly supported by a medical certificate. On the pleadings of the parties, learned Civil Judge has framed as many as seven issues, including the issue of limitation as issue no. III. It is further submitted that the evidence of the parties on all issues have already been completed and the matter is now pending for arguments and disposal. 4. On a perusal of the impugned order it is seen that the learned Civil Judge has come to hold that as the issue of limitation is purely a question of fact, which can be ascertained during the course of trial, there is no necessity for taking up the issue of limitation as preliminary issue and accordingly has rejected the application. 5. From the certified copy of the issues filed by learned counsel for the opposite party no. 1 it is seen that on the pleadings of the parties, learned Civil Judge has framed the following issues: ISSUES I) Whether the proceeding is maintainable? II) Whether petitioner has cause of action to file this suit? 5. From the certified copy of the issues filed by learned counsel for the opposite party no. 1 it is seen that on the pleadings of the parties, learned Civil Judge has framed the following issues: ISSUES I) Whether the proceeding is maintainable? II) Whether petitioner has cause of action to file this suit? III) Whether the petitioner has satisfy the Court that sufficient cause existed for the failure as to present the petition within the period of 15 days after the day on which the result of election was announced? IV) Whether the nomination paper dated 11.1.2012 filed by the O.P. No. 1 is genuine? V) Whether the information issued by Jajpur Municipality regarding date of birth of the children of O.P. No. 1 is correct? VI) Whether the result sheet in respect of the Election to the post of Panchayat Samiti member declared by the B.D.O., Binjharpur is valid? VII) To what other relief the petitioner is entitled? 6. Learned counsel for the petitioner does not dispute the framing of the aforesaid issues by the learned Civil Judge and that the evidence of parties has already been recorded and the matter is now pending for final argument and disposal. 7. Undoubtedly the issue of limitation is a mixed question of fact and law and factual aspects have to be gone into to determine whether the bar of limitation applies. As evidence would be necessary to decide the said issue, the same cannot be taken up as a preliminary issue, as provided under Order 14 Rule 2 C.P.C. Moreover, piecemeal trial of the case is not desirable and has to be avoided. 8. For the reasons as stated above and keeping in view the fact that the evidence of the parties have been completed in he meantime on all issues, including the issue of limitation, I do not find any justification to interfere with the impugned order. 9. It is needless to say that the learned Civil Judge, while disposing of the election petition shall not be influenced by the observations made in the impugned order. 10. W.P.(C) is accordingly dismissed. 11. Interim order dated 21.01.2013 stands vacated. Issue urgent certified copy as per rules. Final Result : Dismissed