SUBASH CHANDRA BISWAL Vs. BAMADEV PATRA

JUDGEMENT

(1.) In the intra-Court appeal, the appellant-petitioner, i.e. the successful candidate in the election for Sarpach of Jharpada Gram Panchayat under Kantapada Panchayat Samiti, Cuttack assails the judgment passed by the learned Single Judge dismissing his writ petition, wherein he has challenged the order dated 05.07.2017 passed by the learned Civil Judge (Junior Division), 2nd Court, Cuttack in Election Misc. Case No.9 of 2017, thereby dismissing an application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code" for brevity.)

(2.) Facts of the case are not disputed. Both the appellant-petitioner and the opposite party-respondent were candidates for the post of Sarpach of Jharpada Grama Panchayat. The appellant was declared elected on 23.02.2017. The opposite party-respondent being unsuccessful candidate filed Election Dispute under Sections 30 and 40 of the Orissa Grama Panchayat Act, 1964, hereinafter referred to as the 'O.G.P.Act' for the brevity, which was registered as Election Misc. Case No.9 of 2017 challenging the election of the present petitioner-appellant. Hereinafter the appellant-petitioner will be referred as 'the returned candidate' and the respondent-opposite party will be referred as 'the election petitioner', for convenience. Immediately after receipt of notice, the returned candidate at the very threshold of the matter filed an application under Order 7, Rule 11 of the Code, seeking rejection of the election petition contending, inter-alia, that there has been a non-compliance of Section 31(1) of the O.G.P. Act, 1964 read with Rule 88 of the Orissa Grama Panchayat Election Rules, 1965. The returned candidate has specifically alleged that even though the election petition was filed on 8.3.2017, the security deposit was made on 14.3.2017, which is beyond the period of limitation and thus the contention was raised that the election dispute is barred by limitation and has to be rejected under provision of Order 7, Rule 11 of the Code. The election petitioner filed his objection to the petition, inter-alia, submitting that it is not correct to say that the security deposit has been deposited at a belated stage. He contended that the election dispute was presented along with challan for deposit the security amount before the registry on 8.3.2017. Only on registration of the case, the records were send to the appropriate court on 9.3.2017 and then the case was posted to 14.3.2017 on which date the Nazir of the court was directed by the concerned court to receive the security amount on the very same day. The election petitioner, thus, contended that it is not correct to say that the opposite party has not deposited the security amount on the date of filing of the petition and the delay, if any, has been caused only due to lack of prompt action by the court in seisin over the election dispute. It is under the circumstance, the election petitioner contended that there is no question of application of Order 7, Rule 11 of the Code to the case in hand. After hearing both the parties, the learned Civil Judge (Junior Division), 2nd Court, Cuttack was pleased to reject the application filed by the returned candidate, which was impugned before the learned Single Judge.

(3.) The learned Single Judge proceeded with the presumption that an application for challenging the election of returned candidate had to be accompanied by deposit in shape of a chalan, as provided under Section 31 of the Orissa Grama Panchayat Act and only after order of the court, such deposit is tendered by the election petitioner and therefore, he dismissed the writ application.