SITARAM Vs. RADHEY SHYAM VAISHNAV (RAJASTHAN)(JAIPUR BENCH)

JUDGEMENT

(1.) Under challenge is the order dated 23-5-2017 passed by the Additional District Judge Kishangarh, District Ajmer whereby the petitioner- returned candidate's (hereinafter 'the RC') application under order 7 Rule 11 CPC has been dismissed.

(2.) Mr. M.M. Ranjan, Senior Counsel appearing with Mr. Rajat Ranjan for the RC has emphatically submitted that the election petitioner filed by the respondent- election petitioner (hereinafter 'the EP') impugning the RC's election as Chairman of Municipal Board Kishangarh on 9-9-2015, result whereof was declared on 21-8-2015, was not accompanied by a challan of Rs.n 1000/- as required under Rule 3(5) of the Rajasthan Municipalities Rules, 2009 (hereinafter 'the Rules of 2009'). It was submitted that in this view of the matter albeit the requisite challan evidencing the deposit of Rs.n 1000/- under Rule 3(5) of the Rules of 2009 was deposited on 16-9-2015, before the expiry of statutory limitation of 30 days, yet the said belated deposit did not cure the initial defect in the election petition, which was fatal and the election petition was liable to be rejected as Rule 3(5) of the Rules of 2009 is mandatory in nature. He submitted that election petitions are neither based on common law nor equity but have to be filed and contested strictly as per the governing statutes. He submitted that as the election petition was not compliant with the mandate of Rule 3(5) of the Rules of 2009, when filed, it deserved dismissal forthwith. Senior counsel relied on the judgment in the case of Charan Lal Sahu v. Nandkishore Bhatt [AIR 1973 SC 2464], Aeltemesh Rein v. Chandulal Chandrakar [AIR 1981 SC 1199]. Relying on the case of Paonam Achou Singh v. Laishram Nandakumar Singh [(2007) Supreme (Gau) 722] Mr. M.M. Ranjan submitted that in a fact situation, similar to that in the instant case, the deposit of security belatedly albeit within the period of limitation but subsequent to presentation of election petition was held by the Gauahati High Court to be of no avail and the election petition filed held liable to be rejected. He prayed that a similar view be taken in the instant case and the impugned order date 23-5- 2017 passed by the trial court be set aside allowing the RC's application under Order 7 Rule 11 CPC and the election petition be rejected.

(3.) Per contra, Mr. Umesh Batwani, counsel for the EP submitted that the issue agitated before the trial court in the application under Order 7 Rule 11 (d) CPC, which has been dismissed by the impugned order, is wholly covered by the judgment of this court in the case of Ashok Kumar v. learned ADJ No.2 Chittorgarh [Civil Writ (CW) No.7637/2016] decided on 8-8-2016. He submitted that therein the court referring to Rules 260 to 263 of the General Rules (Civil) 1986 has noted the procedure prescribed for deposit of money in court. It was held that as deposit of more than Rs.n 25/- could not be made without a specific order of the court, an election petition not accompanied by a challan for the statutorily prescribed amount could not be dismissed on that count when the requisite deposit under a challan within the period of limitation was subsequently made. Counsel submitted that it was also so in the instant case, where the election petition was supported by the subsequent filing of challan of Rs.n 1000/- as required of Rule 3(5) of the Rules of 2009 within the period of limitation. He pointed out that the election petition was filed on 9-9-2015, and following an application filed before the trial court on 15-9-2015 in terms of Rules 260 to 263 of the General Rules (Civil), 1986 and passing of an order thereon the amount was deposited on 16-9-2015- limitation for filing the election petition was available till 20-9- 2015. He submitted that in this view of the matter the application under Order 7 Rule 11(d) CPC was misdirected and has rightly been dismissed by the trial court.