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Judgment
Nirmal Singh, J.—The question for consideration in this civil revision is whether a person who has filed a petition u/s 176 of the Haryana
Panchayati Raj Act, 1957 (hereinafter called the ''Act'') is entitled to withdraw the petition under Order 23 Rule 1 C.P.C.?
The facts for the disposal of this civil revision are that Mohinder Pal respondent No. 2 filed a petition challenging the election of respondent No.
3 on various grounds. Petitioner along with Krishan Chand, respondent No. 3 appeared before the Civil Judge and filed written statement. After
filing the written statement, Mohinder Pal moved an application under Order 23(1) CPC for withdrawal of the petition. After hearing Mohinder
Pal, learned Civil Judge (Jr. Division) Kurukshetra allowed the application. Petitioner moved an application for restoration of the election petition
filed by Mohinder Pal and to transpose the petitioner from arrying the respondents as election petitioner. Notice of the application was given to
Mohinder Pal. After hearing the parties, application was dismissed vide the impugned order. Aggrieved by which present petition has been
preferred.
Mr. R.S. Longia, learned counsel for the petitioner submitted that learned Tribunal has erroneously dismissed that application of the petitioner.
He contended that before allowing the application for withdrawing the petition, no notice was served upon the petitioner. He further contended that
there is no provision in the Act or under the rules framed thereunder to withdraw the petition. He also contended that provisions of Representation
of People Act, 1951 (hereinafter called ''the People Act'') are paramateria to the provisions of the Act. He submitted that under the Peoples Act,
no petition can be withdrawn without giving notice to the interested party and in this case, petitioner being the interested party, was entitled to be
heard before allowing the petition to be withdrawn. He submitted that by allowing the application for withdrawing the petition, the Tribunal had
exceeded its jurisdiction. He contended that election petition is not a petition in personam but the petition filed in an action in rent as all the electoral
of the constituency are to be affected. He further contended that once the Tribunal has taken the cognizance, then there is no provision in the Act
to withdraw the petition. He further submitted that the Tribunal can grant or refuse the leave to withdraw the petition only after hearing all the
parties. If any of the party want to continue the petition, the Election Tribunal cannot dismiss the application for withdrawal of the petition or
abandonment of part of claim. On the asking of any party, the Tribunal is to adjudicate the controversy. He also submitted that the learned Tribunal
has erroneously applied the provision of Order 23 Rule 1 CPC while deciding the application. He submitted that the said provisions are not
applicable to the petition. In support of his arguments, he placed reliance in Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others,
, Jugal Kishore Vs. Doctor Baldev Parkash, , Bijayananda Patnaik Vs. Satrughna Sahu and Others, .
Mr. Arvind Singh, learned counsel appearing for the respondents submitted that Mohinder Pal, respondent was competent to withdraw the
petition under Order 23 Rule 1 C.P.C. He submitted that the provisions of CPC are applicable to the petition filed under the Act. He further
submitted that after filing the petition, respondent can withdraw the suit or abandon a part of claim. He contended that if the respondent after filing
the petition wanted to withdraw the suit to file a fresh one on the same cause of action, then permission is necessary. The Court in its discretion
may allow or reject the prayer made by a person. He further submitted that the judicial precedents cited by learned counsel for the petitioner are
not applicable to the facts of the present case. He pointed out that all those cases are covered under the provisions of the People Act. He
contended that u/s 109, 110 of the 1951 Act, an election petition can only be withdrawn by the leave of the High Court and notice is required to
be issued to all the parties. He further contended that the High Court shall direct the notice of withdrawal to be published in the official gazette
within 14 days of such publication and any of the party can apply to be substituted as a petitioner in place of the party withdrawing the petition. He
contended that there is no such provision under the Haryana Panchayati Raj Act.
Before appreciating the rival contention of the parties, it would be appropriate to notice the relevant provisions of Section 109 and 110 of the
1951 Act and Section 176 of the Haryana Panchayati Raj Act, which are as under:-
109.(1) An election petition may be withdrawn only by leave of the High Court. (2) Where an application for withdrawal is made under Sub-
section (1), notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in
the official gazette.
110.(1) If there are more petitioner than one, no application to withdraw an election petition be made except with the consent of all the petitioners.
(2) No application for withdrawal shall be granted, if in the opinion of the High Court, such application has been induced by any bargain or
consideration which ought not to be allowed.
(3) If the application is granted-
(a) the petitioner shall be ordered to pay the costs of the respondents thereof incurred or such portion thereof as the High Court may think fit.
(b) the High Court shall direct that the notice of withdrawal shall be published in the official gazette and in such other manner as it may specify and
thereupon the notice shall be published accordingly.
(c) a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of
the party withdrawing, and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the
proceedings upon such terms as the High Court may deem fit.
176(1) Determination of validity of election enquiry by judge and procedure,- If the validity of any election of a member of a Gram Panchayat,
Panchayat Samiti or Zila Parishad or Sarpanch of Gram Panchayat, Chairman or Vice Chairman, President or Vice President of Panchayat Samiti
or Zila Parishad respectively is brought in question by any person contesting the election or by any person qualified to vote at the election to which
such question relates, such person may at any time within thirty days after the date of declaration of results of the election, present an election
(petition) to the Civil Court having ordinary jurisdiction in the area which the election has been or should have been held, for the determination of
such question.
A perusal of Section 109 of the People Act shows that election petition can only be withdrawn with the leave of the High Court where an
application for withdrawal is made under Sub-section (1) to the said Section, notice of the application is to be given to all the parties to the petition
and shall be published in official gazette. Sub-section (2) further makes it clear that no application for withdrawal shall be granted if in the opinion
of the High Court such application has been induced by any bargain or consideration which ought not to be allowed. In case the petition is to be
allowed, the petitioner is to pay costs to the respondent. After allowing, the petition for its withdrawal, it has to be published in the official gazette
and in such other manner as it may specify and there upon the notice shall be published accordingly and further under Sub-clause (c) to Section
109 a person who might himself have a respondent may, within fourteen days of such publication, apply to be substituted as petitioner in place of
the party withdrawing and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the
proceedings upon such terms as the High Court may deem fit.
There are no provisions, in the Haryana Panchayati Raj Act, paramateria to Section 109 and 110 of the People Act.
The judicial precedents cited by learned counsel for the petitioner are also under the Representation of People Act. Their Lordships of the Apex
Court, after taking into consideration Section 109 and 110 of the 1951 Act have held that petition cannot be withdrawn under Order 23 Rule 1
CPC.
In the case in hand, on a due. consideration of the provisions of Sections 109 and 110 of the Representation of People Act and u/s 176 of the
Haryana Panchayati Raj Act, I am of the considered opinion that the provisions of Order 23 Rule 1 C.P.C. do apply to the election petition filed
under the Haryana Panchayati Raj Act. It is open to the petitioner to abandon his claim or abandon a part of his claim. There is no provision under
the Haryana Panchayati Raj Act to take leave of the Court for withdrawal of the petition or abandonment of part of claim. The permission is
required if a party wants to withdraw the petition and to file a fresh petition on the same cause of action, but in the instant case, the respondent
Mohinder Pal is seeking leave of the Court to file a fresh petition on the same cause of action. In the Haryana Panchayali Raj Act, there is no
provision for substitution in place of petitioner, who is withdrawing the petition.
For the reasons recorded above, there is no merit in the civil revision. The same is dismissed.