KIRITSINH JAMBHA RANA Vs. HARPALSINH GHANSHYAMSINH RANA

JUDGEMENT

(1.) RULE returnable forthwith. Mr. A.B. Gateshaniya, learned advocate waives service of notice of rule on behalf of respondent no.1.

(2.) This petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner challenging the order passed below Exh.11 by the Principal Civil Judge, Lakhtar, as Election Tribunal acting as such under Sec. 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as 'the Act, 1993'), dtd. 12/9/2024 in Election Petition No.1 of 2024 allowing the application of respondent no.1 herein filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') whereby the Election Petition submitted by the petitioner came to be dismissed as a consequence. The impugned order further states that in view of the order passed below Exh.11 in that terms appropriate order be passed below Exh.1 itself. Though consequential order passed below Exh.1 is not annexed with the petition but consequence of allowing the application filed under Order VII Rule 11 of 'the Code', Election Petition came to be dismissed.

(3.) Heard Mr. Kirtidev Dave, learned advocate for the petitioner. According to his submission, apart from 'the Code' is not applicable to proceedings of the Election Petition filed under Sec. 31 of 'the Act, 1993', it could not be even allowed when objection as to its maintainability under Sec. 11 of 'the Code' stating it to be barred by resjudicata or issue estopple under Sec. 115 of the Indian Evidence Act, 1872. The said objection requires leading of evidence to prove whether the issue raised in the proceedings is barred by resjudicata or not, and therefore, in an application objecting the proceedings to be barred under Order VII Rule 11 of 'the Code' could not have been entertained by the tribunal. He has further submitted that though wrong provision is mentioned in application Exh.11 by respondent no.1 herein that Election Petition preferred by the petitioner is not maintainable in view of Order VII Rule 11 (d) of 'the Code', as there exists no cause of action to file such Election Petition. However, according to his submission, the ground of non disclosure of cause of action does not fall within Sub Rule (d) of Rule 11 of Order VII of 'the Code'. Not only that, according to the submission, cause of action is already mentioned in the Election Petition preferred by the petitioner and it is not the case of the respondent that it does not disclose cause of action. Therefore, according to his submission, order impugned requires to be quashed and set aside and the Election Petition No.1 of 2024 is required to be restored to its original number before the learned tribunal.