MANGAL CHARAN BEHERA Vs. BANAMALI BISWAL

JUDGEMENT

(1.) THE petitioner in this writ application has sought for quashing the order under Annexure -1 and for directing disposal of Election Misc.Case No.1 of 2003 pending before the Civil Judge (Junior Division), Balasore within a stipulated period. The petitioner was the returned candidate being elected as a Sarpanch of Markona Gram Panchayat situated under Simulia Block in the district of Balasore. The opp.party No.1 filed Election Misc.Case No.1 of 2003 before the Civil Judge (Junior Division), Balasore under the provisions of the Orissa Gram Panchayat Act. The admitted case of the parties is that the election was held on 19.2.2002 and the results were declared on 21.2.2002. The election petition was filed by opp.party No.1 on 15.4.2003 alongwith an application under Section 5 of the Indian Limitation Act, 1963. It appears that after filing of election petition along with the application for condonation of delay, the learned Civil Judge (Junior Division), Balasore condoned the delay by exercising power under the second proviso to Section 31(1) of the Orissa Gram Panchayat Act and issued notice to the present petitioner and other opposite parties therein. It further transpires that the present petitioner appeared in the said election case on 1.8.2003 and subsequently filed his objection/written statement to the Election Misc. Case. It also further transpires that the writ petitioner took a stand in his objection that the Election Misc.Case is barred by time. Thereafter, the petitioner filed an application under Order 14 Rule -2(2) of the Code of Civil Procedure, to decide the question of maintainability of the Election Misc. Case on the ground of limitation, as a preliminary issue. The said application having been rejected by the Civil Judge (Junior Division), Balasore, by this order dated 15.3.2004 (Annexure -1), the petitioner has preferred the present writ petition.

(2.) LEARNED counsel for the petitioner submits that admittedly the election petition having been filed with a long delay, i.e. beyond more than one year form the date of expiry of the period of limitation, the learned Court below should have allowed the application filed by the petitioner and should have decided the question of maintainability of the Election Misc. Case, on the ground of limitation, as a preliminary issue.

(3.) LEARNED counsel for the petitioner submitted that it is well settled in law that an ex parte order by which delay in filing the application is condoned, is always a provisional order and the said order is always subject to reconsideration after appearance of the adversary and an objection to the said order being raised. For the above contention, learned counsel for the petitioner has relied upon the decisions in Md. Abdul Kasim -v - Chaturbhuj Sahai (AIR 1922 Patna 47) and Puri Municipality -v - Madhusudhan Das (AIR 1961 Orissa 133).