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2017 DIGILAW 1184 (RAJ)

Sahina W/o Aslam v. Returning Officer (Panchayat) Gram Panchayat Jhiwana , Panchayat Samiti Tijara

2017-05-10

ALOK SHARMA

body2017
ORDER : 1. Under challenge is the order dated 1-5-2017 passed by Senior Civil Judge Tijara District Alwar dismissing petitioner-returned candidate’s (hereinafter ‘the RC’) application under Order 7 Rule 11 Mr. R.P. Singh Senior Advocate appearing with Mr. Shashikant Saini for the RC submitted that the trial court failed to appreciate that the election petition was neither presented by the Election Petitioner (hereinafter ‘the EP’) nor by a person authorised in writing by her and hence was not maintainable in view of Rule 81 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter ‘the Rules of 1994’). He submitted that a perusal of the presentation sheet qua the election petition (Annexure-1 to the petition) indicates that it was presented on 4-2-2015 by an Advocate one Sukhveer Yadav on the purported strength of his Vakalat nama alone which only authorised him to plead and argue the election petition, no more. Presentation of the election petition by a person authorised in writing by the election petitioner cannot relate to the Vakalat nama (Annexure-4 to the petition). Mr. R.P. Singh submitted that although the EP is purported to have signed the order-sheet drawn by the Munsarim, on the same day i.e. 4-2-2015, when the election petition was presented by her Advocate, the said signature from its placement on the order sheet makes it apparent that it was subsequently appended to the order-sheet and in the circumstances, the election petition, not duly presented, was liable to be dismissed forthwith. Mr. R.P. Singh emphatically submitted that trial on an election petition so presented, contrary to law would be a mere futility, an unwarranted drag on the court's precious time and harassment of the RC engaged in public office. Mr. R.P. Singh submitted that the election petition ought to have in the circumstances been dismissed as barred by law under Order 7 Rule 11(d) CPC. The trial court failed to exercise its salutary jurisdiction in not so doing. 2. Mr. R.P. Singh placed reliance on the judgment in the case of G.V. Sreerama Reddy Vs. Returning Officer [ (2009)8 SCC 736 ] to contend that presentation of an election petition through petitioner's advocate without the petitioner herself accompanying her was impermissible. Saleem Bhai Vs. The trial court failed to exercise its salutary jurisdiction in not so doing. 2. Mr. R.P. Singh placed reliance on the judgment in the case of G.V. Sreerama Reddy Vs. Returning Officer [ (2009)8 SCC 736 ] to contend that presentation of an election petition through petitioner's advocate without the petitioner herself accompanying her was impermissible. Saleem Bhai Vs. State of Maharashtra [ (2003)1 SCC 557 ] has been relied upon to contend that the power under Order 7 Rule 11 CPC can be exercised at any stage of the suit before the conclusion of the trial. Samar Singh Vs. Kedar Nath [ AIR 1987 SC 1926 ] was relied upon to contend that the court can exercise its power under Order 7 Rule 11 CPC and reject the election petition even after settlement of issues. Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust [ (2012)8 SCC 706 ] was adverted to, to contend that power under Order 7 Rule 11 CPC can be invoked to reject the plaint for non fulfillment of statutory requirements. 3. Mr. Ajeet Kumar Sharma, Senior Advocate appearing with Mr. V.K. Sharma for the EP submitted that the resort to Order 7 Rule 11(d) CPC, a second time over, in the underlying election petition by the RC was impermissible, palpably vexatious and a blatant attempt to delay the disposal of the election petition with the potential of RC's election being set aside. It was submitted that an application under Order 7 Rule 11 CPC was earlier filed by the RC on other varied grounds such as the copy of the notice sent to District Election Officer not having been annexed thereto and documents filed in support of the election petition neither being signed nor verified by the EP. That application under Order 7 Rule 11 CPC was dismissed on 12-2-2016. If at all the ground of election petition not having been presented in terms of Rule 81 of the Rules of 1994 was sought to be agitated by the RC, it ought to have been so when the earlier application under Order 7 Rule 11(d) CPC was first filed. A second application under Order 7 Rule 11(d) CPC was not maintainable. Mr. A second application under Order 7 Rule 11(d) CPC was not maintainable. Mr. Ajeet Kumar Sharma submitted that even otherwise, on merits the RC has no case, inasmuch as the trial court in its impugned order dated 1-5-2017 has held as a fact that the EP herself was present at the time of presentation of election petition on 4-2-2015 and this was not open to question in view of the fact that the order-sheet of the said date records the signatures of the EP. It was further submitted that albeit the plain language of Order 7 Rule 11 CPC does not exclude any stage at which such an application can be filed, yet the factum of the delayed filing of the application, more so after the final arguments on behalf of the EP is indicative of the complete misuse of the process of the court and should be and was a factor with the trial court and also be with this court in the exercise of the court's discretion under Order 7 Rule 11 CPC. Mr. Ajeet Kumar Sharma submitted that besides, the jurisdiction of this court under Article 227 of the Constitution of India can only be exercised on the ground of perversity, patent illegality and error of jurisdiction and not against discretionary orders. He emphatically submitted that this court should come down hard on frivolous and vexatious petition filed against interlocutory orders of the trial, without just cause and only to make an attempt at delaying the final adjudication of underlying suits. Mr. Ajeet Kumar Sharma further submitted that this court vide order dated 22-2-2016 in SBCWP No.1979/2016, relied on the judgment in the case of Kailash Vs. Nanhku [ (2005)4 SCC 480 ] wherein the Apex Court considering the delaying tactics adopted by the defendants in election disputes observed, if not directed that the judge trying election petitions must handle the prayer for adjournments therein with firmness. He submitted that this court had in fact directed the trial court to decide the underlying election petition in issue within six months from the date of receipt of certified copy of the order. The RC is trying, by resorting to the second absurd application under Order 7 Rule 11 CPC only to delay the disposal of the election petition to his advantage of continuing as a Sarpanch. The RC is trying, by resorting to the second absurd application under Order 7 Rule 11 CPC only to delay the disposal of the election petition to his advantage of continuing as a Sarpanch. Such an application in fact is contumacious as the directions of this court on 22-2-2016 in SBCWP No.1979/2016 albeit to the trial court was also binding on the RC and she cannot arrogate to herself the uncontrolled right to overreach the court's order directly or indirectly. Mr. Ajeet Kumar Sharma prayed the petition be dismissed with exemplary costs. 4. Heard. Considered. 5. Of importance in the case is the fact of an earlier application under Order 7 Rule 11 CPC which was dismissed by the trial court on 12-2-2016. The RC did not in the said application set up a ground under Rule 81 of the Rules of 1994 with regard to the election petition not being presented by the election petitioner or by one duly authorised by her in writing. The RC at the stage of final arguments then filed the second application under Order 7 Rule 11 CPC which has been dismissed by the impugned order by the trial court. Section 141 CPC provides that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction. That would apply to applications under Order 7 Rule 11 CPC. I am of the considered view that thus an application under Order 7 Rule 11 CPC in a suit/election petition can be laid only on one occasion and repeated applications under the aforesaid provision cannot be filed nor could have been conceivably contemplated in law. Were it to be so, there would be multiple applications under Order 7 Rule 11 CPC leading to enormous delays in the disposal of the suits/election petitions. Issues of resjudicata would also arise on such multiple applications under Order 7 Rule 11 CPC. 6. The Apex Court in the case of Y.B. Patil Vs. Y.L. Patil [ AIR 1977 SC 392 ] reiterated the well settled legal position that the principles of res judicata can be invoked not only in separate subsequent proceedings, but also get attracted in subsequent stage of the same proceedings. 6. The Apex Court in the case of Y.B. Patil Vs. Y.L. Patil [ AIR 1977 SC 392 ] reiterated the well settled legal position that the principles of res judicata can be invoked not only in separate subsequent proceedings, but also get attracted in subsequent stage of the same proceedings. The RC not having invoked Rule 81 of the Rules of 1994 in her first application under Order 7 Rule 11 CPC, which was dismissed on 12-2-2016, (and which order has attained finality), she could not have filed the second application under Order 7 Rule 11 CPC purporting to invoke Rule 81 of the Rules of 1994. Such an application was barred by constructive res judicata. 7. Further the Apex Court in the case of Ram Prakash Gupta Vs. Rajiv Kumar [2008(1) WLC (SC) Civil 158] has considered a case of delayed filing of an application under Order 7 Rule 11 CPC. The delay with reference to the stage of the suit has been held to be a factor which has to be reckoned for by the court while exercising its discretion under Order 7 Rule 11 CPC. The Apex Court in the aforesaid case set aside the order of the trial court as also the affirming order of the High Court where an application under Order 7 Rule 11 CPC was allowed at the belated stage of the trial after the plaintiff's evidence had been recorded. 8. In the instant case the second application under Order 7 Rule 11 CPC was filed by the RC on 26-4-2017 at the stage when in fact final arguments on the election petition were concluded by the EP on 20-4-2017. On analogy of the Apex Court's reasoning in the case of Ram Prakash Gupta Vs. Rajiv Kumar (supra) such inordinately delayed application in the court's discretion was to be dismissed and was so rightly by the trial court in the instant case. As an order on an application under Order 7 Rule 11 CPC is a discretionary one and does not relate to the defendant's right, the contextual facts are very relevant. It is quite apparent that the RC had no concern with her being pursued in an allegedly frivolous and vexatious proceeding while invoking Order 7 Rule 11 CPC. As an order on an application under Order 7 Rule 11 CPC is a discretionary one and does not relate to the defendant's right, the contextual facts are very relevant. It is quite apparent that the RC had no concern with her being pursued in an allegedly frivolous and vexatious proceeding while invoking Order 7 Rule 11 CPC. He only sought to delay the adjudication of the election petition by a disguised method of adjournment, i.e. moving as if with impunity, a misdirected second application under Order 7 Rule 11 CPC. 9. The judgments relied upon by the counsel for the RC are unexceptional on the principle enunciated that an application under Order 7 Rule 11 CPC can be moved at any stage. Yet it would strain credulity to visualise that the Apex Court intended to include in the sweep of its observations such applications in the midst of the final arguments. Hence the judgments relied on by Mr. R.P. Singh are not apposite to the facts of the case at hand. Contrarily the Apex Court in the case of Ram Prakash Gupta Vs. Rajiv Kumar (supra) set aside an order rejecting a plaint on an application under Order 7 Rule 11 CPC after the plaintiff's evidence had been recorded on the unarticulated premise that such application should not have been belatedly entertained. That is a more nuanced view on the matter in issue, which I would be inclined to follow. 10. Aside of aforesaid, an application under Order 7 Rule 11(d) CPC can be filed in the event of the suit being barred by law. And admittedly the RC's application filed on 26-4-2017 was so based. The question agitated therein that the presentation of the election petition was not in terms of Rule 81 of the Rules of 1994 however cannot be a question of law, but only a question of fact determinable on evidence recorded in the trial. The issue agitated by the EP in his application thus did not fall within the ambit of Order 7 Rule 11 CPC. In this context it would be relevant to state that in the reply to election petition, no defence of it not being maintainable for not having been presented in terms of Rule 81 of the Rules of 1994 was not taken by the RC. 11. In this context it would be relevant to state that in the reply to election petition, no defence of it not being maintainable for not having been presented in terms of Rule 81 of the Rules of 1994 was not taken by the RC. 11. I am of the considered view that this petition is absolutely without merit and a cynical misuse of judicial process by the RC both earlier before the trial court and now before this court seeking to invoke its salutary jurisdiction under Article 227 of the Constitution of India. That jurisdiction can be invoked, as repeatedly held by the Apex Court in situations of the judgments/orders of the courts/tribunals below being vitiated for reason of perversity, patent illegality or error of jurisdiction leading to manifest injustice. No such situation obtains even remotely in the instant case. 12. The petition is therefore dismissed with costs of Rs.50,000/- to be paid to Rajasthan State Legal Services Authority Jaipur within a period of sixty days from today. Non payment of the costs will entail their recovery as arrears of land revenue. For that the Rajasthan State Legal Services Authority will be free to take appropriate proceedings.