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2017 DIGILAW 1086 (ORI)

Sapuri Bariha v. Ahalya Bhue

2017-09-20

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the order dated 21.7.2017 passed by the learned Civil Judge (Junior Division), Sonepur in Election M.J.C. No.1 of 2017 (Annexure-4) has been sought to be quashed. 2. The brief fact of the case for filing this writ petition is that the petitioner is the Sarpanch of Baladi Grama Panchayat and the opposite party, who is the returned candidate filed an election petition with the following prayer:- “Hence pray that the Election Petition may kindly be admitted, issue notice to the OP and the Petition may kindly be allowed declaring the election of OP for the post of Sarapanch of Baladi GP as invalid & void & the petitioner may kindly be declared elected as the Sarapanch of Baladi GP in place of the Returned candidate in the ends of justice.” 3. In the election petition, ground has been taken for declaring the election of the post of Sarpanch of Baladi Grama Panchayat as invalid and void, as the petitioner is quite unable to read and write the Odia language, as per the provision provided under Section-11(b) of the Orissa Grama Panchayats Act, 1964 (in short “the OGP Act, 1964”). 4. On being noticed, the present petitioner has appeared before the court below and filed show cause refuting the allegations made in the election petition. 5. During pendency of the election petition, the present petitioner has filed another application before the court below on 6.7.2017 for preliminary hearing on the question of maintainability of the election petition contending inter alia therein that the election petition is liable to be dismissed at the threshold in view of the nature of the prayer made by the present opposite party. The court below vide order dated 21.7.2017 rejected the said application of the petitioner for dismissal of the election case, against which, this writ petition has been filed. 6. It has been contended by the present petitioner that a copy of the School Leaving Certificate received from the Government Primary School, Choukamal where the petitioner was prosecuting her study and the said certificate indicates that the petitioner has passed Class-V and on the strength of the said document, the nomination form as well as the required affidavit was submitted by her at the time of submission of her nomination form. 7. In view of such a factual backdrop, the decision of the court below while rejecting the application to decide the issue by way of preliminary issue in order to take evidence is nothing but the wastage of court’s time and will be said to be frivolous litigation. 8. Further averment has been made regarding the presentation of the petition as contemplated under the provision of Section-31 of the OGP Act, 1964, contains content of petition as provided under Section-33 of the said Act. The relief that may be claimed by the petitioner as contemplated under Section-34 of the OGP Act, 1964 and on the basis of non-following these provisions of law strictly, the election petition is ought to be rejected at the threshold, further contention is that the provision under Order 6 Rule 15 of the C.P.C. has not been followed. 9. Learned counsel for the petitioner has relied upon the judgment rendered by Hon’ble the Apex Court in the case of C.P. John v. Babu M. Palissery & Ors., reported in 2014 (II) CLR (SC) – 839; R.P. Moidutty v. P.T. Kunju Mohammed and another, reported in AIR 2000 SC 388 ; and Regu Mahesh alias Regu Maheswar Rao v. Rajendra Pratap Bhanj Dev and another, reported in (2004) 1 SCC 46 and on the strength of these judgments, it has been contended by him that only on the ground of petition having not been filed in compliance to the statutory provision, as required under the provision of Order 6 Rule 17 of the C.P.C., the election petition is fit to be dismissed. 10. Per contra, learned counsel appearing for the opposite party has vehemently opposed the prayer of the petitioner by submitting that what the petitioner has contended before this Court is not the part of the pleading before the court below and as such, on this ground alone, this petition is to be dismissed. 10. Per contra, learned counsel appearing for the opposite party has vehemently opposed the prayer of the petitioner by submitting that what the petitioner has contended before this Court is not the part of the pleading before the court below and as such, on this ground alone, this petition is to be dismissed. He has further submitted that it is the rule of pleading that the fact which has not been raised before the court below and if any order has been passed by it, it cannot be assailed by saying that the fact has not been taken into consideration rather, the principle of pleading is that if any point has specifically been pleaded before any of the forum either judicial or non-judicial, and if not considered, then only it would be said that the court of law has not exercised his mind while disposing of the application. But the petitioner neither has raised the issue of not following the principle laid down under Order 6 Rule 15 of the C.P.C. or any other point which has been raised before this Court by the petitioner. He has also further submitted that the petitioner has filed a show cause refuting the allegation revealed therein. Thereafter, filing another application after a month for preliminary hearing, but she has not been raised all the points in that petition. 11. The trial court, after taking into consideration the entire aspect of the mater especially the prayer of the petitioner, has rejected the petition as not maintainable in absence of any cause of action or in alternative framed the issue to hear the preliminary issue on the point of maintainability by assigning the reason that since the issue is purely based on facts and unless it will be scrutinized on the basis of evidence or the decision on the issue is sufficient for disposal of the entire case or a part of the case or the issue in question relates to jurisdiction of the court or a bar to the suit created by any law for the time being in force, are satisfied, the court will not be justified in trying an issue as a preliminary one. Accordingly, rejected the application and posted the case on 26.07.2017 for filing of list of witnesses and documents, if any. 12. Accordingly, rejected the application and posted the case on 26.07.2017 for filing of list of witnesses and documents, if any. 12. Learned counsel for the parties have been heard in detail and the documents available on record have been perused by this Court. 13. The factual aspect, which is not dispute that the present petitioner is the winning candidate of the Grama Panchayat Election of Sarpanch of Baladi Grama Panchayat while the present opposite party, is the returned candidate, has filed election petition on the ground of eligibility of the petitioner by raising question of not knowing the eligibility condition of reading and writing Odia language, as required under provision of Section-11(b) of the OGP Act, 1964. 14. The trial court has issued notice upon the petitioner. She has appeared and filed show cause on 22.6.2017, as it would be evident from Annexure-2 wherein the allegation of the petitioner contained in the election petition (Annexure-1) has been refuted on merit. However, in one paragraph, i.e., paragraph-7, it has been stated that the election petition is barred by limitation, required cost for security which has not been deposited in time, the election petition has not been properly verified and therefore, the petition is not in proper form and liable to be rejected, save and except this statement, no other statement has been made by the petitioner raising the preliminary issue rather, the entire averment is on the basis of denial of the allegation which has been alleged by the opposite party in the election petition. After lapse of about 15 days, a petition was filed for preliminary hearing reiterating the fact which she has reiterated in the show cause by praying therein that the election petition be rejected being not maintainable or in the alternative to frame issue to hear preliminary issue on the point of maintainability. After lapse of about 15 days, a petition was filed for preliminary hearing reiterating the fact which she has reiterated in the show cause by praying therein that the election petition be rejected being not maintainable or in the alternative to frame issue to hear preliminary issue on the point of maintainability. The court below, while passing the order dated 21.7.2017, has rejected the petition by assigning the reason that the condition to decide the issue of preliminary one is not applicable at that stage, that is, there must be satisfaction of the court to the effect (a) that the issue is done of law only, that is, it requires no evidence or a title to be led, (b) the decision on the issue is sufficient for disposal of the entire case or a part of the case, (c) the issue in question relates to jurisdiction of the court or a bar to the suit created by any law for the time being in force. But according to the court below, no such condition is available warranting the court to decide the issue of maintainability by way of preliminary issue. Accordingly, held that the application is devoid of merit and posted the case on 26.7.2017 for filing of list of witnesses and documents, if any. 15. It is evident from the material available on record that the petitioner at the initial stage has filed show cause refuting the allegation leveled by the opposite party in the election petition simultaneously raising the issue of not filing the election petition as per the requirement of law and on that ground, the application filed by her is said to be not maintainable. But in the show cause, series of documents filed by her with a prayer that the election petition be kindly rejected at the stage of framing of issues itself and if not, after necessary hearing. Thereafter, she filed an application on 6.7.2017 praying therein to reject the election petition as not maintainable or in alternative to frame issue to hear preliminary issue on the point of maintainability. 16. In this petition, the petitioner has taken other ground that is the election petition is not in accordance with Order 6 Rule 15 of the C.P.C., which requires the procedure of verification of pleadings and in support of this argument, the judgments of Hon’ble the Apex Court, as referred hereinabove has been placed. 16. In this petition, the petitioner has taken other ground that is the election petition is not in accordance with Order 6 Rule 15 of the C.P.C., which requires the procedure of verification of pleadings and in support of this argument, the judgments of Hon’ble the Apex Court, as referred hereinabove has been placed. 17. It is not in dispute that if any statute procedural law is there and the provision has been made to make the pleading, the pleading is to be made strictly on the basis of the same. 18. This Court has gathered from the verification part of the election petition that the statement made from paragraph 1 to 7 have been said to be true to the best of knowledge and believe. The petitioner is questioning the verification part by saying that it is not strictly in accordance with Order 6 Rule-15 of the C.P.C., but very surprisingly, she has filed the show cause along with the verification that is also not in terms of the provision under Order 6 Rule-15 of the C.P.C. But fact remains that these points have not been raised before the court below and as such, it is not appropriate for this Court to interfere with the order dated 21.7.2017 passed by the trial court. 19. However, it would be appropriate to direct the parties to appear before the court below and raise all the issues before it and in that situation, the trial court will decide the same in accordance with law. 20. In view thereof, the writ petition is disposed of with the direction and observation made hereinabove. It is made clear that the trial court is to take decision on the basis of the merit of the case and in accordance with law.