Orissa High Court
Tapaswini Meher vs Premasila Bag on 23 November, 2012
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No. 19157 of 2012
In the matter of an application under Articles 226 & 227 of the Constitution
of India.
--------
Tapaswini Meher,
Wife of Padman Meher,
AT/PO: Agalpur, PS: Loisingha,
Dist: Bolangir.
... Petitioner
-Versus-
Premasila Bag,
Wife of Omkumar Bag,
Village/PO : Agalpur,
PS : Loisingha, Dist : Bolangir ... Opp. Parties
For Petitioner : M/s. H.S.Mishra, A.K.Mishra,
A.S.Behera & R.Dash
For Opp. Parties : --
----------
P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Order: 23.11.2012
B.N.Mahapatra,J. Petitioner, who is opposite party No.1 in the Election
Petition, has filed the present writ petition challenging the order dated
25.09.2012passed under Annexure-5 by the Additional Civil Judge (Junior Division), Loisingha (hereinafter referred to as 'Election Tribunal') in Election Dispute Case No.3 of 2012 rejecting application of the petitioner filed under Order XIV, Rule 2, CPC to frame and record preliminary issue on the point of limitation on the ground that the said order is illegal, arbitrary, mechanical with non-application of judicial mind and against the settled principle of law. 2
2. Petitioner's case in a nut-shell is that in Panchayat Election, 2012 she was declared elected as Sarapanch of Agalpur Grama Panchayat under Agalpur (Duduka) Block on 24.02.2012. The election-petitioner filed the Election Petition under Section 30 and 31 of the Orissa Gram Panchayat Act, 1964 (hereinafter referred to as 'GP Act') before the Election Tribunal challenging election of writ petitioner to the office of Sarapanch, Agalpur Grama Panchayat as null and void and declaring her as Sarapanch of the said Grama Panchayat. Cause of action arose on 24.02.2012 when the election of opposite party No.1-petitioner to the office of Sarapanch of Agalpur Grama Panchayat was declared and published under Section 15 of the G.P. Act. The election petitioner has verified and sworn an affidavit on 02.08.2012 (which as per the copy of the Election Petition No.3 of 2012 is 12.03.2012). On receiving notice, petitioner-opposite party No.1 filed her objection, inter alia, stating that the election petition was not within the time and the same is barred by limitation prescribed under Section 31(1) of GP Act. After issues were framed, opposite party No.1-petitioner filed a petition under Order XIV, Rule 2(2), CPC stating that the election petition was filed beyond the time prescribed under Section 31(1) of GP Act. Therefore, a prayer was made to frame preliminary issue on the point of limitation.
3. After hearing both parties, the learned Election Tribunal dismissed the application of opposite party No.1-petitioner. Hence, the present writ petition.
3
4. Mr.Mishra, learned counsel appearing on behalf of the petitioner submitted that the impugned order dated 25.09.2012 passed under Annexure-5 is not sustainable in law and liable to be set aside. In view of the law laid down by this Court in the case of Baishnab Charan Ray V. Debaraj Sahoo & Anr., AIR 2004 ORISSA 3, learned Court ought to have taken the matter of limitation and framed preliminary issue. The Lower Court has committed gross error of law by not taking into consideration the grounds taken in the petition as well as arguments advanced at the time of hearing with reference to case law cited before him. A bare reading of Election Petition goes to show that the election petition filed was barred by limitation. Without framing the preliminary issue on the point of limitation if the Trial Court will proceed that will not only amount to abuse of process of the Court, but also lead to undue harassment to the petitioner.
Mr. Mishra submitted that if the election petitioner wants to take advantage of Section 10 of General Clauses Act, 1897 he has to confirm to Order VII Rule 6 C.P.C. and specifically plead the ground upon which the exemption for limitation is claimed.
In support of his contention, Mr. Mishra placed reliance on paragraph 15 of the judgment of the Hon'ble Supreme Court in the case of the Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman Vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (II) OLR (SC) 501. 4
5. On the above contentions of the petitioner following questions fall for consideration by this Court:-
(i) Whether the Election Petition filed by the petitioner on 12.03.2012 is barred by limitation prescribed under Section 31(1) of the GP Act?
(ii) Whether the Election Tribunal is justified in rejecting the petition filed under Order XIV Rule 2(2), CPC for framing of a preliminary issue on the point of limitation?
6. Since both the questions are inter-linked they are dealt with together.
Undisputedly, Order XIV, Rule 2(2), CPC provides that where issues both of law and of fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force and for that purpose the Court may if thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. Under Rule 2(2) of Order XIV, it is necessary for the Court to satisfy itself that the issue is one of law only, i.e., it requires no evidence to be led.
7. In the instant case, petitioner's sole case is that the result of the election was declared on 24.02.2012 under Section 15 of the GP Act and since the Election petitioner verified and sworn the affidavit on 5 12.03.2012 the said petition is beyond the period of limitation prescribed under Section 31 (1) of GP Act as the last date of period of limitation expires on 10.12.2012. Therefore, the Election Tribunal should have allowed the petition filed under Order XIV, Rule 2(2), CPC and framed a preliminary issue on the point of limitation.
8. At this juncture, it is necessary to extract relevant portion of Section 31(1) of GP Act which reads as follows:-
"31. Presentation of petition (1) The petition shall be presented on one or more of the grounds specified in Section 39 before the Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be prescribed in that behalf as security for costs within fifteen days after the date on which the name of the person elected is published under Section 15:
Provided that if the office of the Civil Judge (Junior Division) is closed on the last day of the period of limitation as aforesaid the petition may be presented on the next day on which such office is open:
Provided further that if the petitioner satisfies the Civil Judge (Junior division) that sufficient cause existed for the failure to present the petition within the period aforesaid the Civil Judge (Junior Division) may in his discretion condone such failure."
9. The above provision clearly reveals that an Election Petition is required to be filed within fifteen days after the date on which the name of the person elected is published under Section 15 of the GP Act. As per the first proviso, if the office of Civil Judge (Junior division) is closed on the last day of the period of limitation of 15 days, the petition may be presented on the next day on which such office is open. In the instant case, the last date 6 of limitation is 10th March, 2012 which is the 2nd Saturday and 11th March, 2012 is the Sunday on which day office of Civil Judge (Junior Division) remained closed and it opened on 12th March, 2012, on which day the election petition was filed. Therefore, there is no delay caused in presenting the Election petition as alleged by the writ petitioner. Therefore, on the basis of the petition filed by the writ petitioner under Order XIV, Rule 2(2), CPC, there is no question of framing of any preliminary issue on the point of limitation.
10. Decision of this Court in the case of Baishnab Charan Ray (supra) on which Mr. Mishra placed reliance is of no help to the petitioner for the reasons stated supra. The said decision on the other hand goes against the petitioner. In paragraph 8 of the said judgment, this Court held that the question of limitation is to be considered on perusal of averments made in the plaint.
In paragraph 8 of the Election petition, it is averred that the result was declared on 24.02.2012. Verification and affidavit in the said Election Petition were made on 12.03.2012. Therefore, it is not barred by limitation as per Section 31(1) of the GP Act.
11. Similarly, the decision of the Hon'ble Supreme Court in Simhadri Satya Narayana Rao Vs. MBudda Prasad & Ors., 1994 Supp (1) SCC 449 is of no help to the petitioner. On the other hand, it goes against the petitioner. In that case, respondent filed an election petition questioning the appellant's election before the A.P. High Court. The period 7 of 45 days for filing such petition provided under Section 81 of the R.P. Act 1951 expired on January 10,1990, but pursuant to Notification dated December 29, 1989 (see para 8) the High Court remained closed for Sankranthi vacation from Tuesday, January 2 to Friday January 12, 1990 (both inclusive) and January 13 and 14, 1990 were holidays being second Saturday and Sunday, the petition was filed on January 15,1990. The appellant (returned candidate), filed an application before the High Court praying that the election petition be dismissed, inter alia, on the ground of limitation.
The Hon'ble Supreme Court held that there are no rules or standing orders issued by the Andhra Pradesh High Court providing for a uniform pattern of working during the vacations. It is the notification notifying the Sankranthi vacation which would indicate the manner and extent of functioning of the High Court during the vacation. Whether the Registry was open, if so, to what extent and for what type of work, can only be spelled out from the contents of the notification. The notification nowhere stated that the Registry of the High Court would remain open. Notice to the effect that "the High Court of Andhra Pradesh will remain closed" cannot be understood by layman-litigant to mean that it would still be open for filing purposes. It is clear from the notification that the Andhra Pradesh High Court remained closed for all purposes except for applications of urgent nature for which vacation Judges and vacation officers were designated. No reasonable person could knock the door of the 8 High Court during that period for filing an election petition. There was no provision for filing of election petitions in the notification and as such the filing of the election petition by the respondents on reopening day of the High Court by invoking Section 10 of the General Clauses Act, was justified.
12. The stand taken by Mr. Mishra is that if the election petitioner wants to take advantage of Section 10 of the General Clause Act, 1897, he has to comply with Order VII, Rule 6, CPC and specifically plead the grounds upon which exemption for limitation is claimed. This stand of Mr. Mishra is not tenable in law. Section 10 of the General Clauses Act, 1897 provides that whereby any Central Act or Regulation made after the commencement of the General Clauses Act, any act or proceeding is directed or allowed or to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.
13. Order VII, Rule 6, CPC provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.
14. The judgment of the Hon'ble Supreme Court in the Church of Christ Charitable Trust & Educational Charitable Society (supra) has no 9 application to the present case. The Hon'ble Supreme Court while examining the provisions of Order VII, Rule 11, CPC at paragraph 5 held as follows :-
'5. the points for consideration in this appeal are :
(a) whether the learned single Judge of the High Court was justified in ordering rejection of the plaint insofar as the first defendant (appellant herein) is concerned ; and
(b) whether the Division Bench of the High Court was right in reversing the said decision?'
15. In paragraph 15 of the said judgment, the Hon'ble Supreme Court has held as follows:-
"15. It is clear that from the date the power of attorney is executed by the principal in favour of the agent and by virtue of the terms the agent derives a right to use his name and all acts, deeds and things done by him are subject to the limitations contained in the said deed. It is further clear that the power of attorney holder executed a deed of conveyance in exercise of the power granted under it and conveys title on behalf of the grantor. In the case on hand, though the plaint avers that the 2nd defendant is the agreement holder of the 1st defendant, the said agreement is not produced. It was also pointed out that the date of agreement is also not given in the plaint. We have already mentioned Form Nos.47 and 48 of Appendix A and failure to mention date violates the statutory requirement and if the date is one which attracts the bar of limitation, the plaint has to conform to Order VII Rule 6 and specifically plead the ground upon which exemption from limitation is claimed. It was rightly pointed out on the side of the appellant that in order to get over the bar of limitation all the required details have been mitted.' 10
16. In the case at hand, the election petitioner has not claimed to take any advantage of Section 10 of the General Clauses Act, 1897.
Further, since the election petition is not instituted after the expiration of the period prescribed of limitation there is absolutely no need to plead in the plaint any ground to claim exemption from the law of limitation. Period of limitation has been prescribed under Section 31(1) and the election petitioner has filed the petition within the period of limitation prescribed under Section 31(1). Since the petitioner is not claiming any exemption from the law of limitation there is absolutely no need on the part of the election petitioner to plead claiming exemption from law.
17. Further contention of Mr.Mishra that the petitioner having not pleaded in the Election Petition as to how the Election Petition has been filed within the time, the learned Election Tribunal is duty bound to frame preliminary issue on the point of limitation. Such contention of Mr.Mishra is misconceived and wholly untenable. If the Election petition is filed within the period of limitation prescribed under Section 31(1) of the GP Act, there is no need to plead in the election petition as to how it is within time. Once the election petitioner pleads that the election petition is filed within the period of limitation as provided under Section 31(1), if the opposite party wants to challenge such pleading of the election petitioner he has to plead as to how the said petition is not filed within the period of limitation. In the instant case, when in the Election petition the election petitioner pleaded that the election petition is filed within the time, in the objection filed by 11 opposite party No.1 he has not pleaded how it is not within time and in fact the election petition was filed within the period of limitation as provided under Section 31(1) of GP Act. Therefore, the claim of petitioner-opposite party No.1 that the election petition was barred by limitation is totally unfounded.
18. In view of the above, the Election Tribunal is justified in not framing preliminary issue on the point of limitation.
19. In the result, the writ petition is dismissed.
...........................
B.N.Mahapatra, J.
Orissa High Court, Cuttack Dated 23rd November, 2012/ss