Rajasthan High Court - Jaipur
Sitaram vs Radhey Shyam Vishnav And Ors on 3 July, 2017
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
(S.B. Civil Writ Petition No.8238/2017)
Sitaram son of late shri Nathu Lal Sahoo (Taili) resident of Taili Mohalla, infront of
Maheshwari Bhawarn, Madanganj Kishangarh, District Ajmer.
--- defendant/ petitioner
Versus
1. Radhey Shyam Vaishnav son of Shri Rama Kishan Vaishnav, by caste Sad, resident of
main road Sawantsar, ward No.45, Madanganj Kishangarh, District Ajmer.
--- Plaintiff/ respondent
2. Returning Officer (Municipal Council) SDM Kishangarh, District Ajmer.
3. District Election Officer, Ajmer, Collector Office, Ajmer.
--- Proforma/ defendant- respondents.
Date of Order: July 3, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. M.M. Ranjan, Senior Advocate with
Mr. Rajat Ranjan, for the petitioner.
Mr. Umesh Batwani, for the respondent.
BY THE COURT:
Under challenge is the order dated 23-5-2017 passed by the Additional District Judge Kishangarh, District Ajmer whereby the petitioner- returned candidate's (hereinafter `the RC') application under order 7 Rule 11 CPC has been dismissed.
Mr. M.M. Ranjan, Senior Counsel appearing with Mr. Rajat 2 Ranjan for the RC has emphatically submitted that the election petitioner filed by the respondent- election petitioner (hereinafter `the EP') impugning the RC's election as Chairman of Municipal Board Kishangarh on 9-9-2015, result whereof was declared on 21-8-2015, was not accompanied by a challan of Rs.1000/- as required under Rule 3(5) of the Rajasthan Municipalities Rules, 2009 (hereinafter `the Rules of 2009'). It was submitted that in this view of the matter albeit the requisite challan evidencing the deposit of Rs.1000/- under Rule 3(5) of the Rules of 2009 was deposited on 16-9-2015, before the expiry of statutory limitation of 30 days, yet the said belated deposit did not cure the initial defect in the election petition, which was fatal and the election petition was liable to be rejected as Rule 3(5) of the Rules of 2009 is mandatory in nature. He submitted that election petitions are neither based on common law nor equity but have to be filed and contested strictly as per the governing statutes. He submitted that as the election petition was not compliant with the mandate of Rule 3(5) of the Rules of 2009, when filed, it deserved dismissal forthwith. Senior counsel relied on the judgment in the case of Charan Lal Sahu Vs. Nandkishore Bhatt [AIR 1973 SC 2464], Aeltemesh Rein Vs. Chandulal Chandrakar [AIR 1981 SC 1199]. Relying on the case of Paonam Achou Singh Vs. Laishram Nandakumar Singh [(2007) Supreme (Gau) 722] Mr. M.M. Ranjan submitted that in a fact situation, similar to that in the 3 instant case, the deposit of security belatedly albeit within the period of limitation but subsequent to presentation of election petition was held by the Gauahati High Court to be of no avail and the election petition filed held liable to be rejected. He prayed that a similar view be taken in the instant case and the impugned order date 23-5- 2017 passed by the trial court be set aside allowing the RC's application under Order 7 Rule 11 CPC and the election petition be rejected.
Per contra, Mr. Umesh Batwani, counsel for the EP submitted that the issue agitated before the trial court in the application under Order 7 Rule 11 (d) CPC, which has been dismissed by the impugned order, is wholly covered by the judgment of this court in the case of Ashok Kumar Vs. learned ADJ No.2 Chittorgarh [Civil Writ (CW) No.7637/2016] decided on 8-8-2016. He submitted that therein the court referring to Rules 260 to 263 of the General Rules (Civil) 1986 has noted the procedure prescribed for deposit of money in court. It was held that as deposit of more than Rs.25/- could not be made without a specific order of the court, an election petition not accompanied by a challan for the statutorily prescribed amount could not be dismissed on that count when the requisite deposit under a challan within the period of limitation was subsequently made. Counsel submitted that it was also so in the instant case, where the election petition was supported by the 4 subsequent filing of challan of Rs.1000/- as required of Rule 3(5) of the Rules of 2009 within the period of limitation. He pointed out that the election petition was filed on 9-9-2015, and following an application filed before the trial court on 15-9-2015 in terms of Rules 260 to 263 of the General Rules (Civil), 1986 and passing of an order thereon the amount was deposited on 16-9-2015-- limitation for filing the election petition was available till 20-9- 2015. He submitted that in this view of the matter the application under Order 7 Rule 11(d) CPC was misdirected and has rightly been dismissed by the trial court.
Counsel for the election petitioner additionally submitted that the RC's application under Order 7 rule 11(d) CPC was not maintainable, as there was no legal prohibition which obstructed the filing of election petition whatever its merit before the trial court. Further neither the Act of 1994 nor Election Rules of 1994 set out any statutory consequence of the election petition not being accompanied by a challan of Rs.1000/- required by Rule 3(5) of the Rules of 2009 in the first instance if the challan was thereafter filed within the period of limitation. Counsel submitted that a disbarment in law has to be creature of statute and no such debar obtained.
Heard. Considered.
Order 7 Rule 11(d) CPC on which the RC's case was set up 5 provides that the court shall reject a petition which is barred by law. On specific query put to Senior counsel appearing for the RC, he was not in a position to point out from the Act of 1994 or Rules of 1994 any prohibition against filing of an election petition where the challan in proof of deposit of Rs.1000/- under Rule 3(5) of the Rules of 2009 was not filed alongwith it but thereafter filed within the prescribed period of limitation for laying of election petition. In this view of the matter it is clear that the application under Order 7 Rule 11(d) CPC on the ground agitated was not maintainable. I am thus inclined to accept the aforesaid argument of the counsel for the election petitioner. The question as was agitated as to whether or not the election petition was compliant with procedure prescribed was a question to be determined in the course of the trial on appropriate pleadings and objection taken therein by the RC.
Consequently, without going into the question as to whether the election petition was liable to be rejected despite the subsequent submission of the challan of Rs.1000/- within the period of limitation. I will be disinclined to interfere with the impugned order dated 23-5-2017 holding that the application under Order 7 Rule 11(d) CPC was ex-facie on the ground agitated therein not maintainable and was misdirected. It was hence rightly deserving of dismissal. The impugned order warrants no interference. 6
On the view taken by the court, the petitioner shall be free to agitate all manner of defences in his written statement as available to him in law against the election petition, including its maintainability. On defence/s taken. Issue/s be struck and decided on evidence laid at the trial and applicable law.
The petition stands accordingly dismissed.
(Alok Sharma), J.
arn/ 7 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.