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2019 DIGILAW 2958 (RAJ)

Gayad Ram v. Pratap Singh Bhati

2019-12-10

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - The present writ petition is directed against the order dated 22.11.2019, passed by learned Senior Civil Judge, Jodhpur (hereinafter referred to as "the Trial Court"), vide which petitioner's application under Order XIV Rule 2 of the Code of Civil Procedure has been rejected. 2. Succinctly stated, the pertinent facts are that the respondents filed an election petition against the present petitioner raising many grounds. In response to the petition so filed, the defendant filed a written statement. The issues were initially framed in the year 2017, which came to be amended and finally the following issues were framed on 06.11.2019: 3. Immediately after framing of the issues aforesaid, petitioner moved an application under Order XIV Rule 2 of the Code and requested the Court to decide issue No.3 as preliminary issue. 4. Petitioner'S application for deciding issue No.3 as preliminary issue, has been rejected by the learned Trial Court, inter alia, observing that only issues relating to law and the issues relating to jurisdiction of the Court can be decided as preliminary issues, whereas issue No.3 does not fall in the ambit of any of these two situations. 5. Feeling aggrieved of the order aforesaid, the petitioner has preferred the present writ petition. 6. Mr. Bhoot, learned counsel for the petitioner submitted that the provisions of order XIV Rule 2 of the Code of Civil Procedure are very clear and a Court is required to decide issue relating to law or concerning Court's jurisdiction as a preliminary issue. He submitted that the issue No.3 clearly bars the suit as it suffers from fundamental defect and, thus, the said issue was required to be decided as a preliminary issue being a pure question of law. 7. Mr. Thind, learned counsel for the respondents submitted that issue No.3 is based on fact depended upon evidence and does not deal with question of law or of jurisdiction of the Court concerned and, as such, the learned Trial Court was justified in rejecting petitioner's application. 8. Having heard learned counsel for the parties, this Court is of the considered opinion that issue No.3 ¼vk'kk izkFkhZ }kjk ;kfpdk ds leFkZu i= rLnhd ugh djok;k ftlls ;kfpdk iks"k.kh; ugh gS\½ is a neat question of law, for which no evidence is required to be led. This issue can be decided only by a look at the affidavit. 9. Having heard learned counsel for the parties, this Court is of the considered opinion that issue No.3 ¼vk'kk izkFkhZ }kjk ;kfpdk ds leFkZu i= rLnhd ugh djok;k ftlls ;kfpdk iks"k.kh; ugh gS\½ is a neat question of law, for which no evidence is required to be led. This issue can be decided only by a look at the affidavit. 9. The adjudication of this issue can render election petition not maintainable and, as such, the Court below has clearly erred in refusing to decide issue No.3 as preliminary issue no oral or ocular evidence is required to be considered for pronouncing upon such issue. 10. Ordinarily, having held so, this Court would have remanded the matter back to the Trial Court for deciding the issue No.3 as preliminary issue. However, looking to the fact that the present writ petition emanates from an election dispute and the respondents are showing desperation of getting their election petition decided, particularly because counsel appearing before this Court are representing the parties at Trial Court and they are well versed with the facts, this Court deems it expedient to decide such issue here itself. 11. A copy of the election petition has been placed alongwith the contentious affidavit filed in support of the election petition. (at page 35 of the paper-book). A simple look thereat shows that the same is duly attested - there is verification by the petitioner and the same has been sworn before the Oath Commissioner. Hence, issue No.3, as framed is decided against the writ petitioner and it is held that the affidavit in support of election petition has been verified and attested. 12. Mr. Bhoot, learned counsel for the petitioner, tried to argue that the verification is not in conformity with Order VI Rule 15 of the Code of Civil Procedure and such affidavit deserves to be taken off the record. 13. This Court does not deem it appropriate to dilate upon such argument advanced by Mr. Bhoot, as the issue in question is only with respect to factum of verification of the affidavit and not about the correctness of the verification. The writ petition, therefore, fails. 14. Stay petition also stands dismissed.