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2017 DIGILAW 1114 (RAJ)

Kalli Meena W/o Shri Kajod Meena v. Rekha Devi Dhanka W/o Shri Babu Lal Dhanka

2017-05-01

ALOK SHARMA

body2017
ORDER : Mr. Alok Sharma, J. 1. Under challenge is the order dated 04.04.2017 passed by the Additional Civil Judge (Senior Division), Bassi (hereinafter ‘the Trial Court’) in Election Petition No.6/15. By the impugned order the Trial Court has held that the election petition filed by the respondent-election petitioner (hereinafter ‘election petitioner’) was not liable to be rejected under Order 7, Rule 11 CPC for reason of it not being presented by the election petitioner herself as purportedly mandatorily required under Rule 81 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter ‘the Rules of 1994’). It was held that the petition had been presented by her advocate under written authorization in terms of the Vakalatnama which was permissible under the explanation to Rule 81(1) of the Rules of 1994. 2. The issue of a valid presentation of an election petition under the Act of 1994 came up for consideration before the Division Bench of this Court in D.B. Civil Reference No.1/2017. Vide order dated 20.04.2017, the said reference was disposed of as under:- “8. We answer the reference as under:- An election petition presented by a Lawyer on the strength of a Vakalatnama would be deemed to have been duly presented if the language of the Vakalatnama expressly records that the Lawyer is authorised to present the election petition. It would then be a question of fact to be determined by the Tribunal keeping in view the language of the Vakalatnama. If the language of the Vakalatnama expressly records that the Lawyer is authorised to present the election petition, it would be a case of valid presentation of the election petition.” 3. Rule 81 of Rajasthan Panchayati Raj (Election) Rules, 1994 reads as under:- “81. Who may present election petition:- (1) A petition under Rule 80 may be presented by any candidate at such election. Explanation.- The petition shall be deemed to have been duly presented, if it is delivered by the person making the petition or by person authorised in writing in this behalf by the person making the petition. (2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 500/- along with the petition by way of security for the costs of the opposite party. (2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 500/- along with the petition by way of security for the costs of the opposite party. (3) The petitioner shall also send a copy of the petition under a certificate of posting to the District Election Officer (Panchayats) concerned.” 4. The question as to whether an election petition under the Act of 1994 has been presented by a counsel on behalf of the election petitioner after due authorization in writing is thus a question of fact to be determined in each case. In the instant case a reference to the “Vakalatnama” as appended to the additional affidavit filed by the petitioner-returned candidate (hereinafter ‘returned candidate’) before this Court evidences that the election petitioner had authorised her counsel to file the election petition against the returned candidate. The term of the Counsel’s engagement reads as under:- ‘kqYd ij vfHkHkk”kd fu;qDr dj izfrKk djrk gwa@djrh gwa fd mDr vfHkHkk”kd dh okn oknksrj vihy] vkosnu&i= iqujikoyksd] iqu% fopkj iqu% Lfkkiuk la’kks/ku o vfHk;ksx ;kfpdk;sa ij gLrk{kj djsaA vkSj izLrqr djsa fyf[kr izek.k ij izLrqr djsa ys[k&i= jkt iqLrd foHkkx esa izLrqr djsa vkSj ysa izekf.kr izfrfyfi ys] mrjkf/kdkjh gksus dk izek.k i= izLrqr djsa] leFkZu djsa la;qDr O;kij lfefr dk jkt-iqLrdky; djkosa] ‘kiFk&i= izLrqr djsa] le>kSrs o izfrHkwfr nsdj izek.khdj.k djkosa] dks”k U;k;ky; o vU; foHkkx jkT; ls :i;k ns o ysdj izek.khdj.k djkosa] iap fu’p; djsa vkSj iapk;rh fu.kZ; dk izek.kh dj.k djkosa fdlh fMxzh dk izorZu djkosa vkSj izek.k&i= ?kks”k fodz; ys fujh{k.k&i= laxzg djsa vU; vfHkHkk”kd o izfrfnu fu’p; ‘kqYd ij i{k leFkZu ds fu;r djsa o vU; dk;Zokgh vfHkHkk”kd djsa og viuh Lo;a dh dk;Zokgh ds leku Lohdkj gksxkA fu;fer vnkyr esa mifLFkr gksus dh rkjh[k is’kh dh tkudkjh j[kus dk nkf;Ro i{kdkj Lo;a dk gksxkA 5. The election petitioner thus in terms of his counsel’s engagement authorized him interalia to also present the election petition on her behalf. There was no material on record before the Trial Court nor is there before this Court to establish that at the time the election petitioner engaged her counsel under the aforesaid ‘Vakalatnama’, she was engaged in other litigation with the returned candidate to which the ‘Vakalatnama’ could relate. There was no material on record before the Trial Court nor is there before this Court to establish that at the time the election petitioner engaged her counsel under the aforesaid ‘Vakalatnama’, she was engaged in other litigation with the returned candidate to which the ‘Vakalatnama’ could relate. I find no force in the contention of the counsel for the petitioner that the words ‘election petition’ not being set out specifically in the Vakalatnama it cannot therefore relate thereto. An engagement of counsel by a client is a contract of agency. It is well settled that a contract of agency like any other has express conditions and can also have conditions necessarily implied contextually. The ‘Vakalaltnama’ quoted above specifically authorizes the counsel interalia to present the petition filed by the election petitioner against the returned candidate-who is named as a defendant their in. 6. I am of the considered view that in the overall facts of the case as obtaining, on the construction of the Vakalatnama signed by the election petitioner it is evident that her counsel was clearly authorised in writing to present the election petition on her behalf against the returned candidate, following his election to the post of Sarpanch, Village Piplya Bai Post Khijuria Brahmnan, Panchayat Samiti Bassi. The election petition was validly filed by counsel on behalf of election petitioner in terms of the explanation to Rule 81(1) of the Rules of 1994. 7. Consequently there is no illegality or perversity or for that matter any error of jurisdiction attributable to the impugned order dated 04.04.2017. The petition therefore stands dismissed.