Narendra Singh vs Anil Kumar & Ors

Lok Pal Singh, J

Petitioner has invoked the extra-ordinary jurisdiction of this Court under Article 227 of The Constitution of India seeking a writ of certiorari quashing the impugned order dated 27.10.2017 passed by Ist Additional District Judge, Roorkee, in criminal revision no.41 of 2007.

Facts leading to filing of present writ petition are that the petitioner was elected as the Village Pradhan of Village Bahadurpur Saini Pargana and Tehsil Roorkee, in the year 2016. Respondent no.1 filed an election petition being Petition No.13 of 2016 under Section 12-C of the U.P. Panchayat Raj Act, 1947 against the petitioner, on the ground of unfair practice, etc. Petitioner contested the election petition and filed his written statement. On the pleadings of parties, Prescribed Authority/ Sub Divisional Magistrate, formulated relevant issues in the matter. Issue nos.4 and 9 were framed by the Prescribed Authority as follows:-

"4. Whether the petition is barred by provisions of Order 7 Rule 11 of C.P.C.?

Whether the petition has not been filed in accordance with law?"

After hearing learned counsel for the parties, Prescribed Authority/S.D.M., Roorkee, District Haridwar decided issue nos.4 and 9 as preliminary issues. While doing so, trial court recorded a finding that the plaintiff was required to issue notice to the opposite party u/s 80 of C.P.C. but the same has not been done, therefore the election petition is barred by the provisions of Section 80 of C.P.C., and accordingly decided these two issues against the election petitioner and dismissed the election petition for want of notice u/s 80 C.P.C., vide order dated 25.02.2017. Feeling aggrieved, the election petitioner/respondent no.1 preferred civil revision no.41 of 2017 before the District Judge, Haridwar. Revisional Court, vide judgment and order dated 27.10.2017, allowed the revision and remanded the matter back to the Prescribed Authority to decide the election petition afresh on merit, in accordance with law. Hence, this writ petition.

Learned counsel for the petitioner would submit that the election petition has rightly been dismissed by Prescribed Authority inasmuch the election petition was barred by the provisions of Order 7 Rule 11 C.P.C. He would further submit that the revisional court has exceeded in its jurisdiction while passing the impugned order. Learned counsel would place reliance on a judgment of Hon'ble Apex Court rendered in the case of Samar Singh Samar Singh vs. Kedar Nath alias K.N. Singh and others 1987 (Supp) SCC 663 and has invited attention of this Court towards paragraphs 4 and 5, which are extracted hereunder:-

"4. The question whether the High Court while trying an election petition has power to reject an election petition summarily under Order 7 Rule 11 of CPC is no longer res Integra as this controversy has been set at rest by this Court in Azhar Hussain v. Rajiv Gandhi . Bhagwati Prashad v. Rajiv Gandhi 1986 (4) S.C.C. and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi Judgment Today 1987 (2) 402. In these cases, this Court after detailed consideration held that an election petition is liable to be rejected summarily at the threshold under Order 7 Rule 11 of the CPC. However, the appellant contended that once written statement was filed and after the court applied its mind to the pleadings, raised by the parties and framed issues, it should be presumed that triable issues had been raised in the election petition and therefore the Court could not thereafter summarily reject the petition under Order 7 Rule 11 of CPC. In substance the argument is that once issues are framed the court must proceed with the trial, record evidence and only thereafter it should deal with the preliminary objection raised by the returned candidate that the election petition does not disclose any cause of action. Similar argument was considered and repelled by this Court in Azhar Hussain case in the following words:

In substance, the argument is that the court must proceed with the trial, record, the evidence, and only after the trial of the election petition is concluded that the powers under the CPC for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercised the mind of the respondent.

Proceeding further the Court observed:

The Courts in exercise of the powers under the CPC can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections.

The above view was reiterated by this Court in Bhagwati Prashad v. Rajiv Gandhi (supra) and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (supra). If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the CPC. If an election petition can be summarily rejected at the threshold of the proceeding we do not see any reason as to why the same cannot be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected, under Order 7 Rule 11 and the Court would be acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Court's power; it does not either expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the court to exercise that power at any stage. While it is true the ordinarily preliminary objection to be maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection can not be ignored. If the election petition does not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition, or the Court's power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The Court would be acting within its jurisdiction in exercise of its power under Order 7 Rule 11 in rejecting the same even after settlement of issues."

Per contra, learned counsel for the respondent no.1/election petitioner would submit that there is no requirement to serve notice u/s 80 C.P.C. in an election petition. He would further submit that the Prescribed Authority has committed patent error in law in dismissing the election petition for want of notice u/s 80 C.P.C. It is contended that issue was not framed by the Prescribed Authority to the effect that the election petition is bad in law in the absence of notice u/s 80 C.P.C., and simply on the basis of pleadings made in the written statement, issue nos.4 and 9 has been decided against the election petitioner/respondent no.1 and that too without assigning any reason. It is also submitted that the revisional court has rightly remanded the matter to the Prescribed Authority for deciding the election petition afresh in accordance with law.

I have heard learned counsel for the parties and perused the entire material available on record as well as have gone through the case-law referred by the counsel for the petitioner.

A perusal of the order of the Prescribed Authority would reveal that while deciding issue nos.4 and 9 the Prescribed Authority has not recorded any reason. It is settled proposition in law that reasons to record in a judgment are life of law and in absence thereof, judgment cannot be said to be legal. Proper reasoning is an imperative necessity so that the parties to the lis and so also the appellate/revisional Court, while examining the correctness of the order, could know as to on which basis, a particular conclusion is arrived at in the order.

Their Lordships of Hon'ble Apex Court in a recent judgment delivered in the case of Kushuma Devi v. Sheopati Devi (D) & Ors., JT 2019 (4) SC 163 has held has under:-

"9. This Court has consistently laid down that every judicial or/and quasi-judicial order passed by the Court/Tribunal/Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and findings on the submissions urged, it is not possible to know as to what led the Court/Tribunal/Authority for reaching to such conclusion.

The orders impugned in these appeals suffer from the aforesaid error, because, as would be clear from the perusal of the order, the High Court while passing the impugned order simply dismissed the writ petition without any discussion, finding and the reason."

Their Lordships of Hon'ble Apex Court in the case of Sunil Kumar Vaish State of Uttaranchal vs. Sunil Kumar Vaish (2011) 8 SCC 670 has held as under:-

"17. Of late, we have come across several orders which would indicate that some of the judges are averse to decide the disputes when they are complex or complicated, and would find out ways and means to pass on the burden to their brethren or remand the matters to the lower courts not for good reasons. Few judges, for quick disposal, and for statistical purposes, get rid of the cases, driving the parties to move representations before some authority with a direction to that authority to decide the dispute, which the judges should have done. Often, causes of action, which otherwise had attained finality, resurrect, giving a fresh causes of action. Duty is cast on the judges to give finality to the litigation so that the parties would know where they stand.

Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts' clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.

Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system."

Besides above, this Court also finds that without there being any issue framed in regard to the notice u/s 80 C.P.C., the Prescribed Authority has held that the election petition is barred by provisions of Order 7 Rule 11 and has dismissed the election petition as not maintainable. A perusal of the order passed by the Prescribed Authority would reveal that the Prescribed Authority has traveled beyond the issues which were under consideration before the Prescribed Authority. A petition, plaint or election petition can be dismissed, if from the pleadings made in the election petition, it appears to the court that the same is barred by any provision of law. In the present case, the Prescribed Authority has dismissed the election petition for want of notice u/s 80 C.P.C. If the provision of Section 80 of C.P.C. is applied, in that event the limitation which is prescribed for maintaining such election petition will be ineffective as the election petition has to be filed before the appropriate authority within 30 days from the date of declaration of the election result. If a litigant has to wait for 30 days for serving notice under Section 80 of the C.P.C. and then he files an election petition before the authority, his petition will be barred by limitation and thus such petition will be nipped in the bud. As such, I am of the considered view that notice Section 80 of C.P.C. is not necessary to maintain an election petition. The findings recorded by Prescribed Authority in this regard are illegal. Prescribed Authority has not considered this aspect of the matter and committed manifest error of law in rejecting the election petition for want of notice u/s 80 C.P.C., whereas the revisional court is justified in remanding the matter back to the Prescribed Authority. I do not find any illegality or jurisdictional error in the order passed by the revisional court.

Insofar as the case-law cited by the counsel for the petitioner is concerned, the same is not applicable to the facts and circumstances of the case.

For the reasons recorded above, writ petition fails and is hereby dismissed. Prescribed Authority/S.D.M. shall make every endeavour to expedite the hearing of the election petition and to avoid unnecessary adjournments in the matter.

No order as to costs.