Kanhaiya Lal Saini And Ors vs Om Prakash Saini And Ors

Learned counsel for the petitioner submits that the judgment passed by the Election Tribunal, learned District Judge, Jhunjhunu, in election petition

preferred against the petitioner by respondent No.1 - Om Prakash Saini is liable to be set aside as the learned District Judge has, while deciding the

issue of limitation as against the election petitioner, proceeded to declare the election of the petitioner as legal holding the election petitioner to be an

ineligible. Learned counsel submits that once, the election petition was held to be barred by limitation, there could have been no occasion to proceed

further and decide the issue with regard to the ineligibility of the returning candidate, namely, petitioner.

Notices were issued, but no one has put in appearance on behalf of respondent No.1 and other respondents except respondent No.12 - Returning

Officer.

Learned counsel has relied upon the judgment in the case of Narne Rama Murthy Versus Ravula Somasundaram & Ors.: (2005) 6 SCC 614 to submit

that the question of limitation ought to have been decided at the outset even in the absence of a plea. In the present case, it was not a mixed question

of facts and law as the dates were apparent.

Learned counsel has also relied upon the judgment passed by a Coordinate Bench of this Court in the case of Smt. Barji Bai Versus Smt. Krishna

Devi: S.B. Civil Writ Petition No.16706/2016 decided on 5.1.2017 wherein the Coordinate Bench has also taken a similar view that when the question

of limitation is based on simple arithmetical calculation with reference to date of declaration of result and filing of the election petition and computation

of the intervening period. It sought to be decided at the threshold.

Learned counsel appearing for the respondent No.12 - Returning Officer does not contest the writ petition. In the circumstances where no one has put

in appearance on behalf of the other respondents, this Court deems it appropriate to proceed and decide the writ petition itself at this stage.

In Abdul Rahman Versus Prasony Bai: (2003) 1 SCC 488 the Supreme Court has held as under:

For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular

procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of

a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/constructive res judicata as also the maintainability of

the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary

issues.

Although in the election petition, the procedure to be followed is to be decided by the concerned Election Tribunal, still this Court is of the view that if

there is any question of limitation and issue has been framed with regard to it, the same has to be decided first whether as a preliminary issue or

otherwise.

In the present case, once, the Court below reached to the conclusion that the election petition filed by the respondent No.1, was barred by the

limitation, it would have further proceeded to decide and dealt in other issues and the election petition should have been thrown out at the outset.

In Suman Devi Versus Manisha Devi: (2018) 9 SCC 808, a similar view has been taken by the Apex Court wherein after considering the law at

length, the Apex Court held as under:

The Haryana Panchayati Raj Act 1994 is a complete code for the presentation of election petitions. The statute has mandated that an election

petition must be filed within a period of 30 days of the date of the declaration of results. This period cannot be extended. The provision of Section 14

of the Limitation Act 1963 would clearly stand excluded. The legislature having made a specific provision, any election petition which fails to comply

with the statute is liable to be dismissed. The High Court has failed to notice both the binding judgments of this Court and its own precedents on the

subject, to which we have referred. The first respondent filed an election petition in the first instance to which there was an objection to maintainability

under Order 7 Rule 11 of the CPC. Confronted with the objection under Order 7 Rule 11, the first respondent obviated a decision thereon by

withdrawing the election petition. The grant of liberty to file a fresh election petition cannot obviate the bar of limitation. The fresh election petition

filed by the first respondent was beyond the statutory period of 30 days and was hence liable to be rejected.

In view of the above, I am not required to further deal with other issues and hold that the learned District Judge has committed error in proceeding to

decide the issue with regard to the legality and validity of the election after it reached to the conclusion that the election petition fixed by the

respondent No.1 was barred by the limitation. Accordingly, findings in the order dated 15.1.2013 with regards to issue No.1 and relief are set aside.

The writ petition is accordingly allowed. No costs.