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2024 DIGILAW 1002 (RAJ)

Narayan Jhanwar, S/o. Shri Kanhaiyalal Jhanwar v. Sunil Jhanwar, S/o. Shri Indrachadn Jhanwar

2024-07-16

REKHA BORANA

body2024
ORDER : Rekha Borana, J. 1. The present revision petitions have been preferred against the order dated 02.09.2023 passed by the Additional District Judge, Nokha in Election Petition No.17/2023, 16/2023, 15/2023, & 18/2023 respectively, whereby the applications under Order VII Rule 11 of the Code of Civil Procedure as preferred by the present petitioner (hereinafter referred to as ‘defendant No.1’) had been dismissed. 2. The facts and grounds as raised being identical in all these matters, the same are decided by this common order. 3. Brief facts are that four different election petitions were preferred by Sunil Jhanwar, Narayan Ram, Mahendra Kumar and Sriniwas Jhanwar (respondent No.1 in each petition) challenging the election of the present petitioner defendant No.1 Narayan Jhanwar as Chairman of Municipal Board, Nokha. In the said election petitions, four different applications under Order VII Rule 11, CPC were preferred by defendant No.1 Narayan Jhanwar, the elected candidate, which were rejected vide four separate orders dated 02.09.2023 against which the present revision petitions have been filed. The facts of Civil Revision Petition No.136/2023 (Narayan Jhanwar vs. Narayan Ram) are being taken as the lead case. 4. The election petition was preferred by present respondent No.1 Narayan Ram (hereinafter referred to as ‘the plaintiff’) challenging the election of petitioner defendant No.1 Narayan Jhanwar as Chairman of the Municipal Board, Nokha. The ground of challenge was that defendant No.1 wrongly posed himself to be a candidate of Nationalist Congress Party (hereinafter referred to as 'NCP') and fraudulently got the election symbol of 'an analog alarm clock' allotted in his favour. It was averred in the election petition that defendant No.1, in connivance with defendant No.2, the Returning Officer, fraudulently made some alterations in his nomination Form and on basis of the said incorrect/fraudulent entries in the nomination Form, he was accepted as a candidate of NCP whereas defendant No.1 was neither a candidate of NCP nor could he be considered to be so. It has therefore been submitted that the nomination Form of defendant No.1 could not have been accepted as such and the improper acceptance of his nomination has materially affected his election (the returning candidate). 5. It has therefore been submitted that the nomination Form of defendant No.1 could not have been accepted as such and the improper acceptance of his nomination has materially affected his election (the returning candidate). 5. It has further been submitted that initially the nomination forms of respondent plaintiff Narayan Ram, petitioner defendant No.1 Narayan Jhanwar and two other candidates namely Mahendra Kumar and Sriniwas Jhanwar were accepted and that of Sunil Jhanwar was rejected and even the list thereof in the requisite format 4A after been signed by the Returning Officer, was issued and published on the same date i.e. 03.02.2021. However, at about 8:00-9:00 PM, a fresh list was issued by the Returning Officer illegally whereby the nomination forms of plaintiff Narayan Ram and Mahendra Kumar were declared to be rejected and that of Sunil Jhanwar was declared to be accepted. In the said manner, the nomination form of the plaintiff was illegally rejected because of which the election of the returning candidate has been materially affected. With the aforesaid submissions, the election of defendant No.1 had been prayed to be declared null and void. 6. An application under Order VII Rule 11, CPC was preferred on behalf of defendant No.1 Narayan Jhanwar in the said election petition with a submission that the election petition does not reflect any cause of action in terms of Rule 3 of the Rajasthan Municipalities Election Petition Rules, 2009 (hereinafter referred to as 'the Rules of 2009’) and hence, the same deserves to be rejected at the threshold. The said application as preferred by defendant No.1 has been rejected vide the order impugned dated 02.09.2023 against which the present revision petition has been filed. 7. Learned counsel for the petitioner submitted that the rejection of the application under Order VII Rule 11, CPC is wholly illegal as a bare perusal of the plaint/election petition as preferred by the plaintiff makes it clear that no pleadings have been made in the complete petition which can be summed up to conclude that any cause of action arose to the plaintiff to lay the said petition. Counsel submitted that in terms of the Rules of 2009, the election of any person as a Chairperson can be questioned only on the grounds as enumerated in Rule 3 of the said Rules. Counsel submitted that in terms of the Rules of 2009, the election of any person as a Chairperson can be questioned only on the grounds as enumerated in Rule 3 of the said Rules. So far as the grounds (a) to (d) of Rule 3 of the Rules of 2009 are concerned, the same do not require any proof as to how a returning candidate has been materially affected by the said election. But so far as a petition under ground (d) of Rule 3 of the Rules of 2009 is concerned, the person/candidate challenging the election has to prima facie plead in what manner the result of the election has been materially affected. There being no pleading pertaining to the said fact in the complete election petition, no cause of action can be concluded to have arisen to the election petitioner and hence, the same deserves to be dismissed on this sole ground. In support of his submission, counsel relied upon the Hon'ble Apex Court judgment in the case of Shambhu Prasad Sharma vs. Charandas Mahant & Ors.; (2012) 11 SCC 390 . 8. The second ground raised by learned counsel for the petitioner is that the nomination Form of the plaintiff himself was rejected on 03.02.2021 and he did not even challenge the same. The plaintiff, who had not challenged the rejection of his own nomination Form, cannot be termed to be a candidate in the election so as to be entitled to challenge the election of the present petitioner. Counsel submitted that the plaintiff had no locus to challenge the election itself and hence, cannot challenge the acceptance of the nomination Form of the petitioner. Counsel submitted that the plaintiff cannot be termed to be materially affected by the result of the election so as to entitle him to file a suit/election petition in terms of Rule 3 of the Rules of 2009. In support of his submission, counsel relied upon the judgments passed by the Hon’ble Apex Court in the cases of : (i) Kanimozhi Karunanidhi vs. A. Santhana Kumar & Ors.; AIR 2023 SC 2366 . (ii) Mangilal Mandal vs. Bishnu Deo Bhandari; (2012) 3 SCC 314 . (iii) Santosh Yadav vs. Narender Singh; (2002) 1 SCC 160 . (iv) Shiv Charan Singh S/o Angad Singh vs. Chandra Bhan Singh S/o Mahavir Singh & Ors. (1988) 2 SCC 12 . 9. (ii) Mangilal Mandal vs. Bishnu Deo Bhandari; (2012) 3 SCC 314 . (iii) Santosh Yadav vs. Narender Singh; (2002) 1 SCC 160 . (iv) Shiv Charan Singh S/o Angad Singh vs. Chandra Bhan Singh S/o Mahavir Singh & Ors. (1988) 2 SCC 12 . 9. Per contra, learned counsel for respondent No.1 submitted that the application under Order VII Rule 11, CPC has been rightly rejected by the learned Court below as a bare perusal of the plaint/election petition makes it clear that specific and clear pleadings to the effect that the improper acceptance of the nomination form of the returning candidate has materially affected the election, had been made. Counsel pointed out to the specific paras in the petition wherein such pleadings had been made. 10. Counsel further submitted that even otherwise, the petitioner is estopped from raising any such ground as in the present matter, written statement had already been filed by him and no such ground as raised in the application under Order VII Rule 11, CPC had been raised in the written statement. Even issues have been framed in the matter and it is only after the matter being posted for plaintiff's evidence that the application under Order VII Rule 11, CPC was filed on a total new ground which was never ever raised in the written statement. Counsel submitted that it is the settled proposition of law that an election petition cannot be dismissed on frivolous grounds and a full fledged trial is essential wherein election of a candidate is under challenge. In support of his submissions, counsel relied upon the Hon'ble Apex Court judgments in the cases of Bhim Rao Baswanth Rao Patil vs. K. Madan Mohan Rao & Ors.; AIR 2023 SC 3574 and Kuldeep Singh Pathania vs. Bikram Singh Jaryal; AIR 2017 SC 593 . 11. In reply to the second ground as raised by learned counsel for the petitioner, learned counsel submitted that the rejection of the nomination Form of the plaintiff has also very much been challenged in the present election petition. Counsel pointed out to the paras wherein the pleadings qua the rejection of his nomination Form had been made. 12. 11. In reply to the second ground as raised by learned counsel for the petitioner, learned counsel submitted that the rejection of the nomination Form of the plaintiff has also very much been challenged in the present election petition. Counsel pointed out to the paras wherein the pleadings qua the rejection of his nomination Form had been made. 12. Regarding the locus standi of the petitioner to prefer the election petition and challenge the election of the returning candidate, counsel submitted that Rule 3(2) of the Rules of 2009 specifically provides that the election can be questioned by a candidate or whose nomination has been rejected in such election. The petitioner’s nomination having been rejected, he is very much entitled in terms of Rule 3(2) to challenge the election of the present petitioner. In support of his submission, counsel relied upon the following judgments : (i) Thangjam Arunkumar vs. Yumkhan Erabot Singh & Ors.; AIR 2023 SC 4531 . (ii) Madiraju Venkata Ramana Raju vs. Paddireddigari Ramachandra Reddy & Ors.; AIR 2018 SC 3012 . (iii) Mahendra Pal vs. Ram Dass Malanger & Ors.; AIR 2000 SC 16 . 13. Heard learned counsel for the parties and perused the material available on record. 14. The issues which emerge from the aforesaid pleadings and arguments as raised are : (i) Whether the pleadings as made in the election petition by the election petitioner can be read so as to conclude a “cause of action” to have been accrued in his favour? (ii) Whether the specific pleading to the effect that the election of the returning candidate was materially affected, have been made in the election petition? and (iii) Whether the rejection of the nomination form of the election petitioner has been averred/challenged in the election petition? To conclude the same, an examination of the pleadings as made in the election petition would be appros. 15. and (iii) Whether the rejection of the nomination form of the election petitioner has been averred/challenged in the election petition? To conclude the same, an examination of the pleadings as made in the election petition would be appros. 15. In para 6 ¼d½ , it has been averred as under : ^^---vizkFkhZ la[;k 2 fjVfuZax vf/kdkjh }kjk vius inh; gSfl;r ds foijhr tkdj dkuwu o fu;eksa ds lkFk f[kyokM+ djrs gq, izFke lwph tks oS| uke funsZ'ku i=ks dh tkjh dh xbZ dks cnydj nwljh lwph tkjh dh tks ljklj 'kwU; o vekU; Fkh o gSaA fof/k vuqlkj vizkFkhZ la[;k 2 fjVfuZax vf/kdkjh }kjk ckn lafo{kk oS/k vH;fFkZ;ksa dh tks izFke lwph tkjh dh mlh ls pquko djok;s tkus pkfg, FksA ysfdu mlds }kjk vizkFkhZ la[;k 1 dks cstk Qk;nk igqpkus o eSykQkbZMyh cstk xtZ dh iwfrZ gsrq fof/k fo:) nwljh lwph tkjh dj izkFkhZ dk uke funsZ'ku i= Lohdkj djus ds i'pkr vuqfpr :i ls vLohdkj dj fn;k x;kA ftlls pquko ifj.kke ij lkjHkwr foijhr vlj iM+k gSA** In para 6 ¼x½ , it has been averred as under : ^^¼x½ ;g fd vizkFkhZ la[;k 2 fjVfuZax vf/kdkjh uks[kk }kjk fof/kekU; uke funsZ'ku i= dks ¼ftldh lwpuk iz:i 4 , ds rgr~ fjVfuZax vf/kdkjh us vius gLrk{kj dj tkjh dh Fkh½ fof/k dh voKk djrs gq,] fof/k fo:) rjhds ls [kkfjt dj fn;k rFkk laoh{kk jftLVj esa iwoZ esa vafdr laoh{kk dk;Zokgh ds i`"B dks dkuwu dh vogsyuk djrs gq, QkM+dj Qsad fn;k rFkk mlds LFkku ij ubZ laoh{kk cSBd dk;Zokgh fy[kh xbZ] tks fd iw.kZ:i ls fof/k fo:) Fkh o gSA ,d ckj uke&funsZ'ku i= fof/k ekU; ?kksf"kr gksus ds i'pkr~ mldks fdlh Hkh fLFkfr esa [kkfjt ugha fd;k tk ldrkA blds dkj.k pquko ifj.kke ij lkjHkwr vlj iM+k gSA** In para 6 ¼N½ , it has been averred as under : ^^¼N½ ;g fd us'kufyLV dkaxzsl ikVhZ ¼,u-lh-ih-½ ny }kjk jkT; bZdkbZ ds v/;{k ckcr o mlds }kjk [kM+s fd;s x;s vH;FkhZ ckcr~ dksbZ lwpuk jkT; fuokZpu vk;ksx dks izsf"kr ugha dh vkSj u gh v/;{k ds o izkf/kd`r O;fDr ds uewuk gLrk{kj izsf"kr fd;sA blfy, vizkFkhZ la[;k 1 u rks crkSj us'kufyLV dkaxzsl ikVhZ ¼,u-lh-ih-½ mEehnokj uke&funsZ'ku i= izLrqr djus gsrq etkt Fkk uk gh oksg us'kufyLV dkaxzsl ikVhZ ¼,u-lh-ih-½ ds mEehnokj dh gSfl;r ls pquko yM+us dk vf/kdkjh Fkk vkSj u gh us'kufyLV dkaxzsl ikVhZ ¼,u-lh-ih-½ dk vkjf{kr izrhd ^^?kM+h** vizkFkhZ dks vykWV fd;k tk ldrk FkkA vizkFkhZ la[;k 1 dks voS/k :i ls ÝkWM o lkftlkuk rjhds ls us'kufyLV dkaxzsl ikVhZ ¼,u-lh-ih-½ ds mEehnokj ds :i esa pquko yM+us dh NwV nh gS rFkk fuokZfpr ?kksf"kr fd;k gSA tks fof/k fo:) gksus ls pquko ifj.kke rkfRod :i ls izHkkfor gqvk gSA vr% pquko vizkFkhZ la[;k 1 fujLr ;ksX; gSA** 16. A bare perusal of the above pleadings clearly reflect that the specific ground of the result/election of the returning candidate having been materially affected because of the improper acceptance of his nomination has been pleaded in unequivocal and clear terms. By no stretch of imagination, it can be concluded that the petition suffers from inadequacy of pleadings so as to conclude that a cause of action had not arisen to the election petitioner. The improper rejection of the nomination form of the election petitioner and the improper acceptance of that of respondent No.1 have been clearly averred in the election petition so as to satisfy the requirement in terms of Rule 3 of the Rules of 2009. 17. As held by the Hon’ble Apex Court in the case of Kuldeep Singh Pathania (supra), an election petition cannot be dismissed on preliminary issue while deciding an application under Order VII Rule 11, CPC on the ground that it lacked in material facts and did not disclose any cause of action. Further, the present one is not a case where the petition does not disclose a cause of action rather to the contrary, specific pleadings disclosing a clear cause of action have been made. 18. In the specific opinion of this Court, the learned trial Court, while distinguishing the judgments in Ramsukh vs. Dinesh Agarwal; (2009) 10 SCC 541 and Kanimozhi Karunanidhi vs. A. Santhana Kumar & Ors.; AIR 2023 SC 2366 and relying upon the other judgments as cited by learned counsel for the petitioner, rightly rejected the application under Order VII Rule 11, CPC as preferred by defendant No.1. In the case of Bhim Rao Baswanth Rao Patil (supra) the Hon’ble Apex Court held as under : "26. A plain look at the election petition reveals that apart from allegations pertaining to non-disclosure of criminal cases pending against the appellant, or cases where he was convicted, other averments and allegations have been made regarding non-compliance with stipulations regarding information dissemination and the manner of dissemination through publication in newspapers, the font size, the concerned newspapers' reach amongst the populace, etc. The alleged non-compliance with statutory and Election Commission mandated regulations, and their legal effect, cannot be examined in what are essentially summary proceedings under Order VII Rule 11, CPC, or even under Order XII Rule 6, CPC. The alleged non-compliance with statutory and Election Commission mandated regulations, and their legal effect, cannot be examined in what are essentially summary proceedings under Order VII Rule 11, CPC, or even under Order XII Rule 6, CPC. Even if the allegations regarding non-disclosure of cases where the appellant has been arrayed as an accused, are ultimately true, the effect of such allegations (in the context of provisions of law and the non-disclosure of all other particulars mandated by the Election Symbols orders) has to be considered after a full trial. The admission of certain facts (and not all) by the election petitioner cannot be sufficient for the court to reject the petition, wholly. Even in respect of the undeniable nature of the judicial record, the effect of its content, is wholly inadequate to draw a decree in part. This court has also ruled that the truth or otherwise of anything is ordinarily a matter of evidence, in a full-blown trial, in Virender Nath Gautam v. Satpal Singh & Ors. 2006 Supp SCR 413 : "52. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside." 19. So far as the ground raised by learned counsel for the petitioner regarding the non-maintainability of the election petition itself without the challenge to the rejection of the nomination form of the plaintiff is concerned, as observed above, firstly, in terms of Rule 3(2) of the Rules of 2009, the plaintiff being the candidate whose nomination form was rejected, is entitled to lay the present election petition. Secondly, the ground of rejection of his nomination form has very well been raised in the election petition. Thirdly, Rule 7 of the Rules of 2009 does not even provide for any relief qua the rejection of the nomination form of any candidate and as is the settled position of law, no relief beyond the scope of Rule 7 of the Rules of 2009 can be granted by the election tribunal. Thirdly, Rule 7 of the Rules of 2009 does not even provide for any relief qua the rejection of the nomination form of any candidate and as is the settled position of law, no relief beyond the scope of Rule 7 of the Rules of 2009 can be granted by the election tribunal. Therefore, no relief even otherwise could have been prayed for by the plaintiff qua his rejection of nomination form and even if the same would have been prayed for, it could not have been granted by the election tribunal. 20. In view of the above observations and analysis, the order impugned dated 02.09.2023 as passed by the Election Tribunal being in total conformity with law, does not deserve any interference and the present revision petitions are hence, dismissed. 21. Stay petitions and all pending applications, if any, stand disposed of.