SMT. SUSHMA Vs. SUB DIVISIONAL MAGISTRATE KAIRANA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The order dated 19.4.2017 passed by the Prescribed Authority namely the Sub Divisional Officer, Kairana, District Shamli in rejecting the application dated 21.3.2017 under Order 7, Rule 11 C.P.C. in the election petition is under challenge. The election petition filed by respondent no. 2 is at the stage of evidence. The application under Order 7, Rule 11 C.P.C. dated 21.3.2017 was filed by the contesting respondent namely the petitioner herein with the specific ground that election petition was not presented personally by the election petitioner and as such it was liable to be rejected. The said application has been rejected by the order impugned on the ground that there is a direction of this court for expeditious disposal of the election petition, the plea of rejection of election petition having not been filed personally by the petitioner cannot be entertained.

(3.) Learned counsel for the petitioner placing reliance upon the judgment of this Court in Viresh Kumar Tiwari Vs. Additional District Judge, Ballia and others reported in 2014 (1) ADJ 486 submits that the law in this regard is fairly settled. The election petition is necessarily to be filed by the petitioner personally and non filing of the petition personally would be fatal leading to the dismissal of the election petition. The dispute being raised by the petitioner is regarding the maintainability of the election petition itself. The defect as pointed out by the petitioner herein is not a curable defect but fatal. There was no justification for the Prescribed Authority to proceed to decide the election petition on merits without deciding this question.