Madhya Pradesh High Court
Dilip Singh Tomar vs Chander Singh on 24 August, 2024
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2024:MPHC-IND:24507
1 WP-8933-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 24th OF AUGUST, 2024
WRIT PETITION No. 8933 of 2024
DILIP SINGH TOMAR
Versus
CHANDER SINGH AND OTHERS
Appearance:
Ms. Pranjali Yajurvedi, learned counsel for the petitioner.
None for respondent No.1 though served.
Shri Mukesh Parwal, learned Govt. Advocate for the respondents
No.5, 6 and 7.
ORDER
1. By this petition preferred under Article 226 of the Constitution of India, the petitioner has challenged the order dated 16.02.2024 (Annexure P/1) passed by the Specified Officer-cum-Collector, District Mandsaur, whereby the Election Petition preferred by him under Section 122 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 against the election of respondent No.1 on the post of Sarpanch of Gram Panchayat, Gram Aamlabe, Tehsil Jeerapur, District Rajgarh has been dismissed.
2. Learned counsel for the petitioner submits that after completion of final counting petitioner was declared successful but at the time of final result the said position was changed. The dispute in the matter is as regards recounting of votes and it had to be considered as to whether any application Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-08-2024 17:08:27 NEUTRAL CITATION NO. 2024:MPHC-IND:24507 2 WP-8933-2024 was submitted by the petitioner before the Returning Officer for recounting of votes. The total number of votes polled in the matter in favour of the petitioner were also required to be considered. The Election Petition is governed by the provisions of CPC thus issues ought to have been framed and decided after recording of evidence. No finding whatsoever have been recorded in respect of the factual aspects which arose in the matter for determination. The Election Petition has been decided in a very cursory manner hence the impugned order deserves to be set aside. Reliance has been placed on the decision of this Court in Kalka Prasad Vs. Ramji Lal and Others 2002 (3) MPLJ 121, Pramila Bai Vs. Sub Divisional Officer, Bareli and Others 1999 (2) MPLJ 209, Mumbi Bai Vs. State of M.P. and Others 2012 (2) MPLJ 456 and order dated 13.09.2023 passed in W.P. No.13777/2023 (Ramesh Bhabor Vs. State of M.P. and Others ).
3. Despite service of summons upon him respondent No.1 has not entered appearance for contesting the petition though he alone is the contesting party.
4. I have considered the submissions of learned counsel for the petitioner and have perused the record.
5. In so far as the ground raised by the petitioner to the effect that the Election Petition has been decided without framing of any issues, the pleadings of the parties i.e. the petitioner and respondent No.1 show that there are various factual disputes between them including the issue as to the number of votes which the petitioner secured in the election, whether he had made any application before the Returning Officer for recounting of the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-08-2024 17:08:27 NEUTRAL CITATION NO. 2024:MPHC-IND:24507 3 WP-8933-2024 votes and as to whether any such recounting was actually directed or made. However, no issues have been framed as regards the aforesaid disputes and the Sub Divisional Officer has proceeded straightaway to decide the Election Petition on merits and has dismissed the same. In view of existence of several factual disputes it was incumbent upon him to have framed appropriate issues on the basis of pleadings of the parties and permitted them thereafter to lead evidence on the same. However he has not done so.
6. This Court in Kalka Prasad (supra) has categorically held that in an Election Petition framing of issues and recording of evidence are necessary for its proper adjudication. It has been held as under:-
"11. The Tribunal had no jurisdiction or authority to entertain the petition as it was filed beyond the period prescribed for filing of an election petition. In these circumstances the learned Election Tribunal should have dismissed the petition. Apart from this, the order Annexure P-6 rejecting the application for framing of issues and recording of evidence was also unsustainable in law. The Supreme Court in the case of Makhan Lal Bangal v. Manas Bhunia, (2001) 2 SCC 652 has held that in an election trial evidence has to be adduced and issues are also to be framed. It has been held by the Supreme Court in the aforesaid case that trial of an election petition is like a civil trial and framing of issues and recording of evidence are necessary for the proper adjudication of the dispute. It has been observed in the aforesaid case as under:--
"An election petition is like a civil trial, the stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-08-2024 17:08:27 NEUTRAL CITATION NO. 2024:MPHC-IND:24507 4 WP-8933-2024 decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the Court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to the down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided." Similar views have been taken by this Court in the case of Hari Singh v. Anwar Khan, 2001 (1) MPJR SN 6."
7. In Ramesh Bhabor (supra) it has been held by this Court as under:-
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-08-2024 17:08:27NEUTRAL CITATION NO. 2024:MPHC-IND:24507 5 WP-8933-2024 "6] Be that as it may, on perusal of the impugned order it is apparent that the issues have not been framed. In such circumstances, it cannot be said that the election petition has been decided in accordance with law, as it clearly violates the principles of natural justice as the framing of issue is also an important aspect of the case, on the basis of which only the evidence is led by the parties and appreciated by the Trial Court."
8. In the circumstances as aforesaid, since issues have not been framed by the Sub Divisional Officer, who has decided the Election Petition in absence of the same, the impugned order cannot be sustained and deserves to be and is accordingly set aside. The matter is remanded back to the Sub Divisional Officer to proceed further in accordance with law after framing necessary issues.
9. The petition is accordingly allowed and disposed off.
(PRANAY VERMA) JUDGE ns Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 28-08-2024 17:08:27