Sri B.T. Ramachandra vs Sri Annappa C. and Venkatesh

A.N. Venugopala Gowda, J.—Respondent No. 1 has filed on 29.10.2011, Election Miscellaneous Petition No. 38/2011, in the Court of I Addl. Civil Judge and JMFC, Shimoga, against the petitioner and others, under S. 15 of the Karnataka Panchayat Raj Act, to pass a decree holding that the declaration of the petitioner herein as the Returned Candidate, as a result of counting which was held on 29.09.2011, as member of Pillangere Grama Panchayat, in connection with the election held on 26.09.2011 as null and void.

I.A. 1 filed under Order VII Rules 11(a) and (d) CPC, to reject the election petition having been dismissed on 27.01.2014, this writ petition was filed on 19.03.2014, to quash the said order and consequently allow I.A. 1 filed in the Trial Court.

Heard Sri A. Nagarajappa, learned advocate for the petitioner. Respondents though served through hand summons, have remained unrepresented.

Perused the writ petition record.

I.A. 1 was filed seeking rejection of the election petition, mainly on the ground that it does not disclose a cause of action and there being no material to proceed in the case, petition being not maintainable, be rejected. Statement of objections to I.A. 1 was filed on 13.08.2013. Whether the petition discloses cause of action or not is essentially a question of fact. The same must be found out from the averments made in the election petition itself. For the said purpose, the averments made in the election petition, in their entirety must be meaningfully read. However, the Court cannot probe into facts on the basis of controversy raised in the counter/statement of objections and cannot dissect the pleading into parts and consider, whether each one of them discloses a cause of action. At the stage of consideration of the application, the Court is not required to make an elaborate enquiry into doubtful or complicated question of law or facts and the consideration by the Court should be restricted to ascertaining, whether on the allegations made in the petition a cause of action can be found.

In Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, , Apex Court has held, as follows:

9...By the express terms of r. 5, cl. (d), the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown & the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him...

The impugned order, when read, does not indicate I.A. 1 having been considered by the Trial Judge, in accordance with law. There is casual approach and thus, the impugned order being vitiated is unsustainable. Since the Trial Court has failed to consider I.A. 1 on the touchstone of settled principles of law laid down in respect of scope of the provision under Order VIII Rule 11 CPC, exception can be taken to the impugned order.

In the result, the writ petition is allowed and the impugned order is quashed. The Trial Court is directed to reconsider I.A. 1 by keeping in view the observations made supra and in accordance with law and decide the same within a period of two months from the date a copy of this order becomes available. It is made clear that no opinion is expressed on the merit or otherwise of I.A. 1, which is required to be decided on its merit. Contentions of both sides are left open.

No costs.