Rajasthan High Court - Jaipur
Khem Chand Meena vs Baluram Meena &Ors; on 27 February, 2018
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.16669/2016)
Khem Chand Meena S/o Shri Sampatram, aged about 43 years, by caste Meena, R/o Kyampur,
Tehsil Mahuwa, District Dausa (Raj.).
---- Petitioner/ Non-Applicant No.1
Versus
1. Balu Ram Meena S/o Shri Surjan Meena, By caste Meena, Norangwada, Tehsil Mahuwa,
District Dausa (Raj.)
2. District Election Officer, (Panchayat) Dausa District Dausa (Raj.)
3. Returning Officer (Election) Sarpanch Gram Panchayat Norangwada, Tehsil Mahuwa,
District Dausa (Raj.) through District Election Officer (Panchayat) Distt. Dausa.
--- Proforma Respondents/ Non-Appluicant No.2&3
Date of Order: February 27th, 2018.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Kamlakar Sharma, Senior Advocate with
Mr. M.S. Rajpurohit & P.C. Devanda, for the petitioner.
Mr. R.K. Agrawal, Senior Advocate with
Mr. Mamoon Khalid, for the respondent.
BY THE COURT:
REPORTABLE A challenge has been made by the petitioner-returned candidate (hereinafter 'the RC') to the impugned judgment dated 22-11-2016 passed by the Senior Civil Judge, Mahuwa, District Dausa (hereinafter 'the trial court') in election petition 2 No.16/2015 (47/2015) setting aside his election to the post of Sarpanch of gram panchayat Naurangwada, Panchayat Samiti Mahwa, District Dausa.
The facts of the case are that the election petitioner (EP) filed a petition on 4-2-2015 before the trial court challenging the election of the RC to the post of Sarpanch of village Naurangwada on the ground that votes at the said election were wrongly counted in breach of statutory provisions. Subsequently even while the earlier election petition was pending he filed another election petition on 21-2-2015 on the ground that the RC was charged by the court of Additional Chief Judicial Magistrate Mahuwa in case No.12/2011 for offences under Sections 452, 323, 325, and 341 IPC, in case No.41/2008 (BT No.651/2014) and case No.320/2009 (BT No.609/2014) the court of ACJM Sikarai, and facing trial. He was in terms of Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994 (hereafter `the Act of 1994') ineligible as the offences for which he was being tried were punishable by more than five years imprisonment, to contest the election. The RC's election to the post of Sarpanch was claimed by the EP to be liable to be set aside on the said ground. The election petition first filed on 4-2-2015 was then withdrawn on an application stating that a second election petition had been filed. 3
On service of notice on the petition, the RC filed reply of denial to the pending election petition and submitted that the EP's election petition No.2/2015, earlier filed having been was dismissed as withdrawn on 4-5-2015 without any liberty to pursue the second election petition, it was liable to be dismissed as barred by law in view of Order 2 Rule 2 CPC and Order 23 Rule 1 CPC. With regard to pendency of criminal cases, in which the RC was indeed charged and which were admittedly punishable by more than five years imprisonment, the RC's defence was that the charges did not relate to any moral turpitude.
On the basis of pleadings of parties the trial court framed three issues. Issue No.2 related to maintainability of the election petition. The other as to the RC's eligibility to contest the election of 2015.
The EP examined himself as Aw-1 and exhibited 38 documents. The RC examined himself as NAW-1 and exhibited 11 documents.
Considering the evidence of the parties the trial court vide judgment dated 22-11-2016 held that the second election 4 petition in the facts of the case was maintainable and set aside the election of the RC as Sarpanch of village Naurangwada on the ground of his ineligibility to contest in view of Section 19(gg) of the Act of 1994. Hence this petition.
On 20-4-2017, since issue No.2 regarding maintainability of the second election petition was addressed cryptically by the trial court, this court setting aside the judgment dated 22-11- 2016 passed by the trial court remanded the matter to it for decision on issue No.2 by a reasoned order. On a Special Appeal thereagainst, the Division Bench vide order dated 20-11-2017 set aside this court's order requiring that the petition be decided on its merits by this court itself. Whether the Division Bench can remand a matter to a Single Bench of this court, as it has, is another matter which the Division Bench in an appropriate case, when the question is raised, may address.
Mr. Kamlakar Sharma appearing with Mr. P.C. Devanda for the RC submitted that the subsequent election petition filed on 21-2-2015, when the earlier one on the same cause of action filed on 4-2-2015 was pending was not maintainable in view of Order 2 Rule 2 CPC. He submitted that the earlier election petition then being withdrawn without any liberty to continue with the 5 subsequent/ second petition on the same cause of action, the second petition also was liable to be dismissed. For this submission Senior counsel placed reliance on Order 23 Rule 1 CPC. Mr. Kamlakar Sharma submitted that the trial court misdirected itself in relying upon the judgment of the Punjab and Haryana High Court reported in AIR 1985 P&H 219 to hold that if a second election petition is filed during the pendency of the first, the provisions of Order 23 Rule 1 of CPC would not attract. Mr. Kamlakar Sharma also placed strong reliance on the judgment of the Apex Court in M/s. Virgo Industries (Eng) P. Ltd. Vs. M/s. Venturetech Solutions P. Ltd. [(2013)1 SCC 625] and submitted that on the authority of the Apex Court the second election petition was not maintainable for having been filed during the pendency of the first--more so when the first was subsequently withdrawn without liberty to pursue the second election petition. Mr. Kamlakar Sharma submitted that thus the trial court's findings on merit qua the RC's ineligibility are of no consequence as they have been arrived at in the course of an incompetent proceedings impermissible in law. And the impugned judgment be quashed and set aside for this reason alone, Mr. Kamlakar Sharma submitted.
Per contra, Mr. R.K. Agrawal, appearing for the EP 6 submitted that the second petition as filed during pendency of the first petition would not at all attract Order 2 Rule 2 CPC. Nor in the facts of the case Order 23 rule 1 CPC. Mr. R.K. Agarwal placed reliance on the judgment of the Apex Court in Vimlesh Kumari Kulshrestha vs. Sambhajirao & Anr. reported in [(2008)5 SCC 58], wherein the Apex court held that an inference in regard to grant of permission to file a suit afresh when the suit earlier filed is withdrawn under Order Order 23 rule 3 CPC, can be drawn from conduct of parties and the facts obtaining in a case. Mr. R.K. Agrawal submitted that aside of lack of merits in the petitioner's argument based on Order 2 rule 2 CPC on the maintainability of the second election petition, the first election petition was withdrawn under Order 23 rule 1 CPC with specific reference to the filing of the second election petition, thus exhibiting no intent to abandon the cause of action arising of the RC's election despite his ineligibility. Even otherwise this Court should not entertain this petition at all, Mr. R.K. Agrawal submitted, in the exercise its equitable extraordinary discretionary jurisdiction, as there is no plausible ground to impugn the finding of facts by the trial court that the RC was indeed ineligible under Section 19(1)(gg) of the Act of 1994, as he had suppressed the material facts when filing his nomination form, of his having been charged for offences punishable by imprisonment of more than five years, which 7 rendered him ineligible. He submitted that if the judgment of the trial court is interfered with on the technical ground of the maintainability of the second election petition, despite the withdrawal of the first to pursue the second, an ineligible person fraudulently elected despite his ineligibility will continue to occupy public office.
Heard counsel for the parties and perused the material available on record.
Order II Rule 2 CPC reads thus:
2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
(2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance 8 and successive claim arising under the same obligation shall be deemed respectively to constitute but one cause of action.
Order 23 Rule 1 CPC reads thus:
1.Withdrawal of suit or abandonment of part of claim (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rule 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.
(2) An application for leave under the proviso to sub-rule 1 shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(a) abandons any suit or part of claim under sub-
rule (1) or 9
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1) or to withdraw, under sub-rule (3) any suit or part of a claim, without the consent of the other plaintiffs.
Admittedly the second election petition filed on 21-2-2015 by the EP was within the period of limitation, though it indeed was during pendency of the earlier petition filed on 4-2-2015. There is indeed no dispute that subsequently the earlier petition was withdrawn by the EP on 4-5-2015 disclosing in his application for withdrawal the fact that the second election petition had been filed. And that no liberty was granted by the trial court in its order dated 4-5-2015. To start with on the facts of the case, I am of the considered view that no issue referable to Order 2 rule 2 CPC could be made out on the filing of the second election petition. No question of relinquishment of part of the claim to which the EP was entitled or omission to sue for one of the reliefs available to the EP arose therefrom. The EP had included the whole of the claim in the first election petition itself 10 praying that the election of the RC be set aside, and it is nobody's case that he had not sought all the reliefs he was entitled to on cause of action of the RC's election available to him. Also the second election petition did not set up a claim or sought relief not sought in the first. The only difference between the first and second election petition was the ground on which they were agitated, the claim in both was that RC was wrongly elected and the relief in both was that his election be set aside. Evidently the facts in the election petition laid by the EP are wholly distinct from the one in M/s. Virgo Industries (Eng.) P. Ltd. (supra).
The question which arises in this petition is with reference to Order 23 rule 1 CPC i.e. whether the second election petition filed on 21-2-2015 could be continued while the first filed on 4- 2-2015 was withdrawn on 4-5-2015 without liberty to pursue it or being so granted by the trial court.
From the facts on record, I am of the considered view that the withdrawal of the first election petition was not with an intent to abandon the challenge to the RC's election as Sarpanch and therefore the withdrawal evidently did not relate to Order 23 Rule 1(1) CPC. Perforce the withdrawal would relate to Order 23 rule 1(3) CPC. The withdrawal of the earlier election petition was on 11 the ground stated in the application for the purpose i.e. the second election petition had been filed. The unarticulated reason but clearly apparent was that the second election petition would be pursued. No doubt liberty to pursue the second election petition was not sought specifically, but yet it has to be so inferred, else why a reference to the second election petition having been filed would have been made in the withdrawal application allowed by the trial court on 4-5-2015.
It has been held in Haribasudev Vs. State of Orissa [AIR 2000 Orissa 125] that in situations where a suit is sought to be withdrawn with liberty to file afresh and yet only dismissed as withdrawn, the liberty to pursue the subsequent suit has to be implied for the reason that the prayer in the application to withdraw the suit with liberty to file afresh cannot be truncated. Similar is the view in Mulla's Code of Civil Procedure 17 th Edition page 674 under the head "Permission need not be express". In the instant case, the application to withdraw the earlier suit did indeed not pray for liberty to pursue the second election already filed, but in my considered view the statement of the fact of the second election petition being filed as made in the application for withdrawal was clearly a reflection of the intent to pursue it. That intent to pursue the second election petition would entail an 12 implied prayer for liberty to be granted even if not specifically asked for. In the circumstances, I would hold, based on the fact of absence of the intent to abandon the challenge to the RC's election evident from the disclosure of the filing of the second election petition in the withdrawal application, that it related to Order 23 Rule (1)(3) CPC. The said application could not have been truncated by allowing withdrawal of the earlier election petition without liberty to pursue the second one already filed. The withdrawal application being allowed vide order dated 4-5-2015 passed by the trial court, implied permission/ liberty to pursue the second election petition disclosed in the application itself. For this conclusion, I would also be fortified by well settled dictum that the rules of procedure are mere handmaidens of justice and have to be liberally construed to do substantive justice. They cannot be interpreted to non suit a litigant unless a specific and definite case of intent to abandon a cause of action is made out. It is not so in the instant case for reasons set out hereinabove.
The foundation of Mr.Kamlakar Sharma's argument is however based on the judgment of the Apex Court in case of M/s. Virgo Industries (Eng) P. Ltd. Vs. M/s. Venturetech Solutions P. Ltd. [(2013)1 SCC 625], I am of the considered view that the reliance is inapposite. M/s. Virgo Industries (Eng) P. Ltd. (supra) aforesaid 13 related to a second suit being filed for a relief (specific performance) when the said relief could be sought when the earlier suit was filed on the very agreement to sell for permanent injunction without leave to sue for the relief of specific performance available at the time when the first suit was filed. The Apex Court held that the second suit was not in the facts maintainable. It was in this factual background that in paras 16/ 17 it was held as under:-
16. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R.Vimalchand and M.Ratanchand v. Ramalingam, T.Srinivasalu & T. Venkatesaperumal (supra) holding that the provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order II, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC as already discussed by us, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram[7] and by the Bombay High Court in Krishnaji v. Raghunath[8].
17. In the light of the above discussions we are of the view that the present appeals deserve to be allowed. Accordingly we allow the same 14 and set aside the judgment and order dated 6.10.2009 passed by the High Court of Madras in C.R.P.PD. Nos. 3758 and 3759 of 2007.
Consequently, we strike off the plaint in O.S.Nos.202 and 203 of 2007 on the file of District Judge, Thiruvallur.
The court therefore faced with two views of Apex Court, the earlier one in the case of Vimlesh Kumari Kulshrestha (supra) in relation to Order 23 rule 1 CPC and the subsequent one in the case of M/s. Virgo Industries (Eng.)P. Ltd. (supra) in relation to Order 2 rule 2 CPC. Vimlesh Kumari Kulshrestha (supra) is more apposite to the issue in this petition, M/s. Virgo Industries (Eng) P. Ltd. (supra) more tangential and less of a precedential value.
The case at hand is not of not suing for all the reliefs available on a cause of action in the first instance and without leave of the court as was in M/s Virgo Industries (Eng) P. Ltd. (supra). The case at hand is with regard to an election petition for the whole of the relief without relinquishment of a claim or part thereof being filed on a stated ground, followed by a second election petition for the same/ whole relief on the same cause of action but on a different ground. And then the first election petition being withdrawn on disclosure to the trial court of a second election petition being filed. The question as to the maintainability of such a second election petition would have to 15 be addressed with reference to Order 23 rule 1 CPC. The case under consideration is as was in Vimlesh Kumari Kulshrestha (supra) where it has been held that a second suit filed on the same cause of action during the pendency of an earlier suit on similar cause of action Order 23 rule 1 CPC would not attract. In para 9 and 14 it was held:-
9. Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the respondent in regard to payment of proper court fee. We, therefore, are of the opinion that Order 23 Rule 1 of the Code was not applicable to the facts and circumstances of the present case.
14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. The respondent, therefore, was aware thereof.
They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said objection was accepted by the learned trial court. The respondent even accepted the costs as directed by the court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the order passed by the court. It is trite that even a presumption of implied grant can be drawn.
The upshot of the aforesaid discussion is that the EP's second 16 election petition filed on 24-2-2015 was rightly not dismissed. I am of the considered view that the second election petition filed on 21-2-2015 well within limitation was maintainable because while withdrawing the first election petition the EP had clearly stated in his application the fact of filing the second election petition and had impliedly sought permission to pursue it. There is no intention of the election petitioner deducible to abandon his cause of action. Conversely there was a contra indication from the filing of the second election petition on a more substantial and concrete ground rooted in Section 19(gg) of the Act of 1994. Resultantly while the trial court dismissed the first election petition as withdrawn, on facts recorded above, liberty to pursue the second election petition has to be implied. The impugned judgment dated 22-11-2016 passed by the trial court on issue No.2 holding the second election petition in the facts of the case to be maintainable, thus suffers no perversity or illegality.
On merit of the election petition it has been held from the evidence on record by the trial court that the RC was ineligible under Section 19(1)(gg) of the Act of 1994 having been charged, prior to the elections held in January, 2015 for the post of Sarpanch of village Naurangwada, Panchayat Samiti Mahuwa, District Dausa, by a court of competent jurisdiction for offences 17 under Sections 452, 323, 325 and 341 IPC punishable by imprisonment for more than five years as also in case No.41/2008 (BT No.651/2014) and case No.320/2009 (BT No.609/2014) the court of ACJM Sikarai. The trial court has rightly held that the RC in the circumstances even though had won the election for the post of Sarpanch was not entitled to continue in that capacity and his election was to be set aside. Senior counsel for the petitioner has not been even remotely able to impugn the said findings/ conclusions of the trial court on any legally plausible ground. No interference is warranted also on this aspect of the trial court's finding.
The petition stands accordingly dismissed.
(Alok Sharma), J.
arn/ 18 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.