Reshamlal vs Panchuram Keshna Satnami and Others

Sunil Kumar Sinha, J.—Heard finally with the consent of learned Counsel for the parties.

Petitioner-Reshamlal has filed this petition challenging validity of order dated 26-4-2010 passed by the Election Tribunal in Election Petition No. 1 A 58/2009-2010; whereby, the Tribunal has closed the right of the Petitioner to file written statement.

The Petitioner is an elected Sarpanch of Gram Panchayat Devgadhiya, Tehsil Pandariya, District Kabirdham (C.G.). His election was called in question by Respondent No. 1 by filing an election petition before the Specified Officer/Sub Divisional Officer, Pandariya. The said Election Petition was filed on 9-3-2010. After issuance of the notice, the Petitioner caused his appearance and prayed for time to file written statement on 30-3-2010. The matter was adjourned granting time to the Petitioner. Thereafter, the matter was taken up on 12-4-2010 and on the said date, again, the Petitioner prayed for time, which was granted and then, on 26-4-2010, when the Petitioner again prayed for time to file his written statement, the same was refused and right to file written statement was closed by the Election Tribunal/Specified Officer.

Learned Counsel for the Petitioner submits that the provisions of CPC are made applicable vide Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rules, 1995") for deciding the Election Petition filed u/s 122 of the Panchayat Raj Adhiniyam, 1993. He submits that the right to file written statement has been closed even before expiry of the duration of extending period as provided under Order 8, Rule 1, Code of CPC (90 days). His submission is that when the impugned order is examined in light of the provisions of Order 8, Rule 1, CPC the same cannot be sustained, therefore, the impugned order may be set aside.

On the other hand, learned Counsel for Respondent No. 1/election Petitioner opposes these arguments.

Reply on behalf of Respondent No. 1 has been filed.

I have heard learned Counsel for the parties at length and have also perused the records of the election petition.

Rule 11 of the Rules, 1995 provides that subject to the provisions of these rules, every election petition shall be enquired into by the specified officer as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. This makes it clear that the provisions of Code of CPC are made applicable for the decision of the Election Petition filed u/s 122 of the Panchayat Raj Adhiniyam, 1993.

Order 8, Rule 1 of Code of CPC provides that the Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: provided that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

Apart from the provisions of Order 8, Rule 1, Code of Civil Procedure, there is no restriction in Order 8 that after expiry of 90 days, further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit. The provisions of Order 8, Rule 1 providing for the upper limit of 90 days to file written statement is directory. This is what the Supreme Court held in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), .

In the present case, the Election Petition itself was filed on 9-3-2010 and notices were issued and the date of appearance was fixed on 30-3-2010 and thereafter, adjournments were granted to file written statement and right to file the written statement was closed within a period of about 47 days. It appears that the Tribunal did not exercise its discretion to extend the time on the prayer of the Petitioner and passed the impugned order without adverting to the provisions of Order 8, Rule 1, Code of Civil Procedure.

For the foregoing reasons, the impugned order dated 26-4-2010 passed by the Election Tribunal as also the order passed by the Collectorate on 27-12-2010 cannot be sustained and both deserve to be quashed.

Accordingly, the writ petition is allowed and the impugned order dated 26-4-2010 passed by the Election Tribunal and the order dated 27-12-2010 passed by the Collector vide Revenue Case (Revision) No. 9 A-58/2009-2010 are hereby quashed.

The Petitioner is granted a month''s time from today to file written statement before the Election Tribunal, which shall be accepted by the Tribunal and the Tribunal thereafter shall proceed to decide the matter in accordance with law.

The writ petition is allowed to the extent indicated above.

No order as to cost(s).