Srimati W/o Prakash v. Hemlata W/o Shri Vijayveer Singh
2017-04-26
ALOK SHARMA
body2017
DigiLaw.ai
JUDGMENT : Mr. Alok Sharma, J. 1. The matter comes up on an application for dispensing with service of respondents No.2&3. 2. The respondent No.2 is already represented by Mr. Dilip Singh Kurka, hence the application to that extent stands infructuous. The respondent No.3, the Returning Officer is obviously a proforma party. Therefore his service is dispensed with. 3. The application stands disposed of accordingly. 4. The matter is taken up for admission on urgency indicated by counsel for the petitioner-returned candidate (hereinafter ‘the RC’). 5. This petition has been filed by the RC challenging the order dated 7-3-2017 passed by the Senior Civil Judge Bayana District Bharatpur dismissing his application under Order 7, Rule 11 CPC laid on multiple grounds. 6. Mr. Manoj Bhardwaj, counsel for the RC has however confined his arguments only to the validity and maintainability of the election petition presented by the respondent- election petitioner (hereinafter ‘the EP’) before the Munsarim of the District Court and not the District Judge himself. He submitted that both in terms of Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter ‘the Act of 1994’) and Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter ‘the Rules of 1994’) an election petition has to be presented before the jurisdictional District Judge. The plain language of Section 43 of the Act of 1994 and Rule 80 of the Rules of 1994 does not allow for the presentation of an election petition before the Munsarim of the District Judge, and such presentation is incompetent and no presentation in the eye of law. No such election petition can be proceeded with. He further submitted that Rule 85 of the Rules of 1994 confines the application of Civil Procedure Code, 1908 in respect of election petitions only to their hearing and not in respect of their presentation. Mr. Manoj Bhardwaj submitted that admittedly in the instant case the EP presented the election petition on 3-3-2015 before the Munsarim of the District Judge Bharatpur and it was put up before the District Judge only on 11-3-2015, by which time the period of thirty days limitation prescribed for filing of election petitions against the election of a returned candidate had expired. In the circumstances the election petition was liable to be rejected.
In the circumstances the election petition was liable to be rejected. Yet despite seeking rejection of the election petition on this count in an application under Order 7, Rule 11 CPC, the said application has been dismissed by the impugned order dated 7-3-2017. Hence this petition. 7. Heard. Considered. 8. Order 4, Rule 1 CPC provides that every suit shall be instituted by presenting a plaint in duplicate to the court or such officer as it appoints in this behalf. An election petition under Section 43 of the Act of 1994 is all but a suit tried by the District Judge under a specific statute. Rule 32 of the General Rules (Civil) 1986 provides that a Munsarim or Reader of a Civil Court appointed to receive plaints-as an election petition indeed is for all practical purposes, shall examine each plaint presented to him and shall report thereon on aspects of the jurisdiction of the court, the cause of action and whether it is within the limitation. I am of the considered view that in terms both of Order 4, Rule 1 CPC and Rule 32 of the General Rules (Civil) 1986 the presentation of the election petition by the EP before the Munsarim of the District Judge Bharatpur was wholly legal and valid-presented at it admittedly was within 30 days of the declaration of the result of the election on the post of Sarpanch. There is no force in the contention of counsel for the petitioner RC that General Rules (Civil) 1986 does not attract to an election petition under the Act of 1994 for the alleged reason of an election petition not being in the nature of a suit. 9. The impugned order is a well considered one, founded on specific statutory provisions and suffers neither from any perversity, patent illegality, misdirection in law or error of jurisdiction to warrant interference by this court under Article and 227 of the Constitution of India. Consequently, there is no force in the petition. It is dismissed.