SUKHPREET SINGH Vs. JATINDER KUMAR

JUDGEMENT

(1.) This appeal is directed against order of the Additional Deputy Commissioner-cum-Election Tribunal, Gurdaspur dated 23.02.2010 by which an application for recalling of the order dated 04.03.2009 by which election petition has been dismissed in default of appearance, has been dismissed.

(2.) The facts are not much in dispute. The appellant challenged the election of respondent No. 1 by way of an election petition filed under the Punjab State Election Commission Act, 1994 [for short "the Act"] and the Punjab Nagar Palika Election Rules, 1994. After the pleadings, issues were framed and the case was fixed for evidence on 04.03.2009. On that date, the appellant could not appear and election petition was dismissed in default of appearance. The appellant filed an application on 15.04.2009 for recalling of the order dated 04.03.2009 and deciding the election petition on merits. In the said application it was alleged that counsel for the appellant was present on 04.03.2009 who had come to the court firstly at 2.00 pm and thereafter at 4.00 pm and on inquiry it was learnt that the election petition has been dismissed in default of appearance sometime between 2.00 pm to 4.00 pm. The application was contested by the respondents on the ground that the application is not maintainable as it has not been signed by the appellant. It was alleged that the appellant was given 9 opportunities but no witness was produced.

(3.) Learned Counsel for the appellant has argued that issues were framed by the learned Election Tribunal on 10.12.2008 and the only effective date for leading evidence was given on 02.03.2009. The application for restoration was filed on the same day i.e. on 04.03.2009. However, the learned Tribunal dismissed the application vide impugned order on the ground that neither the application is signed by the election petitioner nor there was an affidavit in support thereto. Against the impugned order, the appellant has filed the present appeal and has also filed an affidavit of the appellant, his Advocate who had been regularly appearing before the learned Election Tribunal and had filed the application for restoration on the same day i.e. on 04.03.2009. He has relied upon a decision of this Court in the case of Sayian Singh v. Bishan Singh, 2000 124 PunLR 770 and a judgment of the Rajasthan High Court in the case of Om Parkash Vaswani v. Municipal Board Chittorgarh and Ors.,2007 5 RCR(Civil) 456 to contend that even if the application for restoration is not supported by an affidavit, the Court should be lenient to dispense justice instead of scuttle the bona fide rights of the appellant and secondly, if the application is signed by the Advocate and not supported by an affidavit of the appellant, it cannot be dismissed on the ground that it is not signed by the party as the Advocate is a duly authorized agent of the appellant who has explained his non-appearance in the application. On the contrary, learned Counsel for the respondents has submitted that filing of an affidavit in support of the application for restoration is a must in terms of the provisions of law.