Gursewak Singh vs Sandip Singh and Others

Navita Singh, J.

The appeal is filed against the order of the Election Tribunal, Bathinda passed on 11.11.2014, whereby respondent was declared elected as Panch of Gram Panchayat, Faridkot Kotli, Ward No. 7, Block Sangat, District Bathinda. The appellant, who contested the election and was declared defeated, came in appeal. Learned counsel for the appellant argued that the short ground alone, on which the appeal was liable to be allowed and the impugned order set aside, was that the election petition had not been presented in person by respondent Sandeep Singh. It was submitted that according to Section 76 of the Punjab State Election Act ("Act" for short), the petition was required to be presented in person and Section 80 of the Act provided that an Election Tribunal was bound to dismiss the petition if it was not so presented. In the present case, it came in evidence that the petition was not presented by respondent No. 1 in person and rather it was filed through counsel Mr. Sukhdeep Singh. Counsel for the appellant referred to the cross examination of respondent No. 1, where he admitted that the election petition was filed for him by Sukhdeep Singh Sidhu. It was stated that since there was admission on the part of respondent No. 1 that the petition was not presented by him, the same was liable to be dismissed.

Learned counsel for the contesting respondent, on the other hand, argued that in reply to the petition, no objection was taken by the appellant that the petition was liable to be dismissed as it was not presented personally by the petitioner Sandeep Singh and also no specific question was put to him in the cross examination that he had not presented the petition himself or that he was not even present there.

Counsel for the respondent relied on the judgment of the Supreme Court as Sheo Sadan Singh Vs. Mohan Lal Gautam, where it was held that if the petition was presented by clerk of the Advocate in the presence of the petitioner, the requirement of law was satisfied. This judgment will not help the respondent because in the present case it was not even proved that if the petition was presented or handed over in the Tribunal by the advocate Mr. Sidhu, the petitioner, i.e. the first respondent herein, was himself also present. Also even if no such objection was taken, it was for the Tribunal to have considered the legal aspect and Section 80 of the Act cast a duty on the Tribunal to dismiss the petitions, which were not presented in person by the petitioner concerned. Even where objections on legal points are not taken by the defending party, the court/Tribunal dealing with the matter has to see whether the petition or suit or appeal, as the case may be, was filed in accordance with law and the aspect of maintainability, limitation, court fee and jurisdiction etc. are to be seen by the court/Tribunal.

It was held by the Supreme Court in G.V. Sreerama Reddy and Another Vs. Returning Officer and Others, that election petition presented by advocate of the petitioner and not by the petitioner personally could not be entertained. The said judgment referred to by the counsel for the appellant was followed in the judgments, which were passed by the Coordinate Benches of this Court. Though those are not binding on this bench, yet it may be pointed out that the view taken in all those cases was that where election petition was not presented by the candidate himself, the petition was liable to be dismissed, though it may have been presented by the advocate.

Learned counsel for the appellant then argued that there was a requirement that every copy of the election petition for the respondent should be attested by the petitioner but in the present case it was not so done. In view of Sharif-ud-din Vs. Abdul Gani Lone, , the petition was liable to be dismissed on that score as well. Counsel for the respondent could not show anything to the contrary.

Counsel for respondent No. 1 referred to a single bench judgment of this Court titled Surjit Kaur v. Rajwant Kaur and others, 2011(3) R.C.R. (Civil) 187 where it was held that the Tribunal was required to decide the election petition by following the procedure laid down in the Code of Civil Procedure. The judgment being not delivered by a larger bench need not be considered. Also in that case, the duty was cast on the Tribunal to follow the procedure laid down in the said Code and thus it was for the Tribunal to have called upon the parties to file pleadings and lead evidence accordingly. As a sequel to the discussion made above, the appeal is allowed. The order passed by the Election Tribunal is set aside.