Rajasthan High Court - Jaipur
Khem Chand Meena vs Baluram Meena&Ors; on 22 September, 2016
S.B. CWP No. 11947/16
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH,
JAIPUR
ORDER
S.B. Civil Writ Petition No. 11947/2016
Khem Chand Meena Vs. Baluram Meena & Ors.
Date of Order: 22nd September, 2016
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Mr. G.K. Garg Sr. Counsel with
Mr. Yash Sharma, for the petitioner.
Mr. Rajneesh Gupta, for the respondents.
The present writ petition has been filed under Article 227 of the Constitution of India, to assail the order dated 26.8.2016, whereby application filed by the petitioner under Order II Rule 2 CPC and Order XXIII Rule 1(4)(B) CPC was decided.
In the present case, two election petitions were filed by the respondent no.1. First election petition was filed on 4.2.2015 seeking re-count of votes as it was prayed that all the votes were not counted properly. Second election petition was filed on 21.2.2015 seeking disqualification of the petitioner on the ground that he was involved in a criminal case.
It is not denied by the learned counsel for the parties that the first election petition seeking re-count of votes was filed on 4.2.2015. It is also not denied that subsequently application dated 6.4.2015 was filed for withdrawing the first election petition. The learned counsel for the parties have also not denied that on 4.5.2015 the said election petition was dismissed as withdrawn.
What is the effect of withdrawal of the said election petition has been made subject matter of various applications.
The petitioner from day one of the withdrawal of first election petition by respondent no.1 has been pressing that since first election petition was dismissed as withdrawn without any liberty, the second election petition is not maintainable. Whereas, to contest the applications, contrary argument has been pressed into service by the election petitioner.
Firstly, an application under Order VII Rule 11 CPC was filed for dismissal of the plaint. The said application was dismissed by the court trying S.B. CWP No. 11947/16 2 election petition leading to filing of writ petition SBCWP No. 3247/2016 by the petitioner. A co-ordinate Bench on 14.3.2016 decided SBCWP No. 3247/2016 by holding as under:-
;kphx.k dh vksj ls tks vkjksi yxk;s x;s gSa fd iwoZ ;kfpdk yafcr jgus ds nkSjku vU; ;kfpdk is'k dh x;h] ;g rF; lk{; ls eksgrkt gSA ;g fcUnq ;kph vius tokc esa mBk ldrk gS vkSj tokc esa mBkus ds ckn U;k;ky; mlds Åij lk{; fojfpr dj fu"d"kZ fudky ldrk gSA vr% vkns'k 7 fu;e 11 lh- ih- lh- ds izko/kku bl rF; ij vkd`"V ugha gksrs gSaA ;kph us gekjs le{k U;kf;d n`"Vkar M/s Upadhyay and Co. V/s State of UP and others 1998 AIR (SCW) 3678 dk is'k fd;k gS] ftlesa vkns'k 23 fu;e 1¼3½ lh- ih- lh- ds rgr nwljh ;kfpdk is'k dj fcuk iwoZ okn dks U;k;ky; dh vuqefr ds okfil ysdj nwljk okn is'k djus dks mfpr ugha ekuk gS] ftlesa dksbZ fookn ugha gSA ijUrq bl vk/kkj ij vkns'k 7 fu;e 11 lh- ih- lh- ds izko/kku vkd`"V ugha gksrs gSa] ftlds fy, ;kph mfpr vkosnu fopkj.k U;k;ky; ds le{k is'k djus ds fy, Lora= gSA blh rjg U;kf;d n`"Vkar Sarguja Transport Service V/s State Transport Appellate Tribunal, Gwalior and Others 1986 JT 808 Hkh vkns'k 7 fu;e 11 ls lacaf/kr ugha gSA vr% mDr U;kf;d n`"Vkar ls Hkh ;kph dks dksbZ enn ugha feyrhA rnuqlkj bl ;kfpdk esa dksbZ lkj ugha ik;k tkrk gS vkSj ;g ;kfpdk vLohdkj dh tkrh gSA "
Thus, the co-ordinate Bench held that what is the effect of the withdrawal of the first election petition is in realm of evidence. The petitioner filed another application under Order XXIII Rule 1(3) CPC. The said application was also dismissed by the trial court. Aggrieved against the same, the petitioner filed writ petition bearing SBCWP No. 6651/2016. In the said writ petition, another co-ordinate Bench on 3.6.2016 held that since regarding the question of maintainability of second election petition, the trial court has framed an issue, no interference is warranted and by saying so the second writ petition so filed was also dismissed. It will be apposite here to reproduce the order dated 3.6.2016 passed by the co-ordinate Bench in SBCWP No. 6651/2016, as under:-
"Heard the counsel for the petitioner and perused the impugned order dated 13.04.2016 passed by the Senior Civil Judge Mahuwa District Dausa (hereinafter 'the trial court') in Election Petition No.16/2015.S.B. CWP No. 11947/16 3
The trial court has held that the question of maintainability of the second eviction petition filed even while the first was pending (but subsequently dismissed) with reference to Order 23 Rule 1(3) CPC was already an issue before it and hence to be addressed in the course of the trial. The election petition therefore could not be dismissed on the mere application filed by the petitioner-returned candidate under Order 23 Rule 1(3) of CPC. Further it is on record that the petitioner- returned candidate's application on the same issue under Order 7 Rule 11 CPC was dismissed by the trial court vide order dated 19.01.2016 which order was upheld by this Court in S.B. Civil Writ Petition No. 3247/2016.
I am of the considered view that there is no jurisdictional error, illegality or perversity in the order impugned passed by the trial court.
Dismissed."
After dismissal of the two applications and two writ petitions filed before this court, the petitioner filed another application under Order II Rule 2 CPC and Order XXIII Rule 1(4)B CPC, praying therein that second election petition is not maintainable and same be dismissed. The said application was also dismissed, hence, the third instant writ petition bearing SBCWP No. 11947/2016 has been filed.
Are courts bound by mentioning of sections or provisions or the courts have to decide issue in sum and substance? The real issue before this court pressed by the petitioner time and again is maintainability of the second election petition and allegedly abandoning of the claim made in the first election petition. For this purpose, he filed an application under Order VII Rule 11 CPC. Again at a later stage, second application was filed under Order XXIII Rule 1(3) CPC. The court noticing the fact that first election petition has been dismissed as withdrawn in SBCWP No. 6651/2016 on 3.6.2016 held that the said application is not maintainable as the court has framed a specific issue to this effect.
In the first round of litigation in SBCWP No. 3247/2016 decided on 14.3.2016, this court also held that the argument regarding maintainability of the election petition after withdrawal of the first election petition was kept S.B. CWP No. 11947/16 4 open, for the petitioner to urge the same at the final stage. How many times, the petitioner shall hammer the same argument by filing applications by invoking separate order or rules of CPC. Burdening the court with numerous applications and filing writ petitions in this Court is nothing but tactic on the part of the petitioner to delay the culmination of the proceedings. Different sections, different orders and rules cannot be misused by a litigant to exploit his ends. It is true that the civil litigation is tardy. It is also true that the result of the civil proceedings is delayed because of filing of numerous applications. It is true that to file different applications is a right of the litigant but for the same issue by clothing the same relief sought in different manner by filing different applications, under different section, order or rules serve cause of none. This petition is nothing but a misuse of process of law. Two orders passed by this Court in earlier two rounds of litigation, would have been sufficient for the petitioner to rest the matter and not to file fresh application. The order passed by two co-ordinate Benches should have been understood by the petitioner in sum and substance. Hence there is no merit in the present petition and same is dismissed.
Needless to say, the petitioner at the final stage can press all the provisions of law including Order II Rule 2 CPC to ventilate his grievance.
(KANWALJIT SINGH AHLUWALIA)J. Mak/-
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