LAHERI LADHARAM GARVA vs STATE ELECTION COMMISSION & ORS.

Rule. Mr. D. K. Puj, learned advocate waives service of notice of rule on behalf of the contesting respondent, that is, respondent No.3 and Ms. Roopal Patel, learned advocate waives service of notice of rule on behalf of the respondents No.1 and 2.

Having regard to the controversy involved in the present case, which lies in a very narrow compass, the matter was taken up for final hearing today.

Being aggrieved by the order dated 18.1.2017 passed by the learned Principal Civil Judge, Naliya, District Kachchh below applications Exhibit-9 and 10 in Election Petition No.2 of 2017, the petitioner has filed the present petition.

The facts stated briefly are that the petitioner herein presented a petition before the learned Principal Civil Judge, Naliya being Election Petition No.2 of 2017 challenging the election of the respondent No.3 as member of the Bita Gram Panchayat. In the said proceedings, notice came to be issued to the respondents on 11.1.2017 and the hearing was kept on 20.1.2017. It appears that on 17.1.2017, the third respondent moved an application under Order VII, rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") for rejection of the plaint. On the said application, notice

appears to have been issued and the hearing was kept on 18.1.2017. It appears that the petitioner could not be served as he was not in station and, therefore, could not remain present nor could he arrange for an advocate to appear before the learned Judge on 18.1.2017. By the impugned ex parte order dated 18.1.2017, the learned Principal Civil Judge has rejected the plaint under Order VII, rule 11 of the Code. Being aggrieved, the petitioner has filed the present petition.

Mr. Hitesh Acharya, learned advocate for the petitioner, assailed the impugned order by submitting that the same has been passed in complete breach of the principles of natural justice, as no opportunity of hearing has been afforded to the petitioner and an ex parte order has been passed rejecting the election petition filed by the petitioner.

On the other hand, Mr. D. K. Puj, learned advocate for the third respondent, submitted that the impugned order passed by the learned Judge is just, legal and proper and does not warrant interference by this court.

From the facts noted hereinabove, it is evident that notice was issued on the petition presented by the petitioner, returnable on 20.1.2017. The third respondent moved an application on 17.1.2017 and the learned Judge issued notice and fixed the hearing on 18.1.2017. The very fact that notice was issued on 17.1.2017 and the matter was kept for hearing on 18.1.2017 is indicative of the fact that there was hardly any opportunity of hearing granted to the petitioner. Under the circumstances, no fault can be found with the petitioner in not remaining present on 18.1.2017 to oppose the application

made under Order VII, rule 11 of the Code.

In the opinion of this court, the learned Judge while conducting any proceeding under any provision of law, is expected to give adequate opportunity of hearing to the parties before passing any order which affects their rights. In the present case, the petitioner has been totally non-suited, inasmuch as, the election petition presented by him has been rejected and the plaint has been returned under Order VII, rule 11 of the Code without affording any opportunity of hearing to him. The impugned order dated 18.1.2017 passed by the learned Principal Civil Judge, therefore, suffers from the vice of breach of the principles of natural justice and cannot be sustained.

For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order dated 18.1.2017 passed by the learned Principal Civil Judge, Naliya, District Kachchh below applications Exhibit-9 and 10 is hereby quashed and set aside. The applications Exhibit-9 and 10 filed by the respondent No.3 are hereby restored to file. The learned Principal Civil Judge shall hear and decide the same as expeditiously as possible and preferably within a period of two weeks from the date of receipt of a copy of this order. Rule is made absolute accordingly in the aforesaid terms with no order as to costs.

It is clarified that restoration of the applications shall not be construed as the court having opined on the maintainability of such applications in proceedings under section 31 of the Gujarat Panchayats Act, 1993.