HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1400/2021
Karan Sharma S/o Shri Purshottam Gaur, Aged About 28 Years,
R/o Arihant Vatika, Sewage Farm, Sodala, Jaipur (Rajasthan).
----Appellant
Versus
1. Raghunath Agarwal S/o Gopal, Aged About 47 Years, R/o
B-209, The Grand Geejgarh, Hawa Sarak, Jaipur
(Rajasthan).
2. Ghanshyam Bhargava S/o Shivdayal Bhargava, R/o 3/55,
A.G. Colony, Bajaj Nagar, Jaipur (Rajsthan).
3. Rajkumar Agarwal S/o Namalum, R/o B-87, Bajaj Nagar,
Jaipur (Rajasthan).
4. Santosh Krishan Sharma S/o Gopal Krishan Sharma, R/o
F-429, Gandhi Nagar, Jaipur (Rajasthan).
5. Returning Office, Nagar Nigam, Jaipur (Greater) Ward No.
131 To 140 EVM UP Mahanirikshak, Panjiyan EVM
Mundrakan, Jaipur Varth-Dwitiya, Rajasthan.
6. Zila Nirwachan Adhikari, Jaipur Nagar Nigam (Greater)
Ziladish Karayalaya, Jaipur (Rajasthan). (Respondent No.
5 And 6 Deleted By Order Dated 12.07.2021 Of D.J. Jaipur Metro.)
----Respondents For Appellant(s) : Mr. Ashok Kumar Pareek, Adv.
Dr. Anil Sharma, Adv.
Mr. Shalendra Joshi, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order 16/08/2021 The instant appeal has been filed by the appellant-defendant challenging the order dated 31.07.2021, whereby the application filed by the appellant under Order 14 Rule 5 read with Section 151 CPC for amending and striking out issues has been partly allowed. (Downloaded on 18/08/2021 at 09:48:51 PM)
(2 of 7) [CMA-1400/2021] Learned counsel for the appellant-Mr. Ashok Kumar Pareek submitted that respondent No.1-Raghunath Agarwal has filed an election petition against the present appellant in respect of municipal elections for Ward No.134, Municipal Corporation (Greater), Jaipur.
Learned counsel submitted that the respondent No.1, in the prayer of his election petition, has specifically asked only for setting aside the election dated 01.11.2020 and declaration of result dated 03.11.2020. Learned counsel submitted that the prayer clause also included relief of cancellation of election and further direction to conduct the election afresh.
Learned counsel for the appellant submitted that in the election petition, filed by the respondent No.1, a reference was made in para Nos.7 and 8 that the nomination form of respondent No.1 was wrongly rejected and he was illegally deprived to contest the election.
Learned counsel submitted that though the averment with regard to improper rejection of the nomination form of respondent No.1, was specifically pleaded, however, no relief was claimed in the election petition seeking for a declaration that rejection of form of respondent No.1, was to be declared illegal.
Learned counsel submitted that initially the Election Tribunal framed two issues vide order dated 12.07.2021.
The issues, so framed, are reproduced hereunder for ready reference:-
" vk;k izkFkhZ ds fo:) izkFkZuk i= esa mYysf[kr vkijkf/kd ekeysa esa vkjksi fojfpr ugha gq, Fks vkSj bl dkj.k ls izkFkhZ dh vksj ls uxj fuxe t;iqj xzsVj ds okMZ uxj 134 ds ik'kZn in gsrq fd;s x;s ukekadu dks fjVfuaZx vkWfQlj uxj fuxe t;iqj xzsVj (Downloaded on 18/08/2021 at 09:48:51 PM) (3 of 7) [CMA-1400/2021] ¼mi&egkfujh{kd] iath;u ,oa eqnzkad t;iqj o`Rr&f}rh;½ }kjk fujLr djuk fo/k fo:) FkkA blfy, foi{kh la[;k 3 dks lQy izR;k"kh ds :i esa ?kksf'kr djus dk ifj.kke fnukad 03-11-2020 dks fujLr djokdj izkFkhZ iqu% pquko djokus dk vf/kdkjh gS \ .....izkFkhZ 2- vuqrks'k \ fook|d dk;e dj lquk;s o le>k;s x;sA mHk; i{k dh vksj ls vU; dksbZ fook|d ugha lq>k, x;sA "
Learned counsel submitted that issue No.1 was wrongly framed by the Election Tribunal, as there was no prayer in the election petition to declare the election as null and void.
Learned counsel further submitted that the Election Tribunal also did not frame the issues relating to limitation, cause of action, locus standi and effect of improper rejection of nomination form of respondent No.1 and its consequences.
Learned counsel submitted that the appellant accordingly moved an application under Order 14 Rule 5 read with Section 151 CPC.
Learned counsel submitted that four issues were requested to be framed by the appellant.
The issues suggested by the appellant in his application are reproduced hereunder for ready reference:-
"1- vk;k ;kph us ;kfpdk vUnj fe;kn dh is"k gSA 2- ;kph dh ;kfpdk es ;kfpdk is"k djus dk dkj.k dkWt vkWQ ,D"ku ntZ ugh djus dk ;kfpdk ij D;k izHkko iM+sxkA 3- ;kfpdk esa ;kph us viuh yksdl LVsUMk;h (Locus standi) ugh ntZ dh gS bldk ;kfpdk ij D;k vlj iMsxkA 4- ukekadu xyr rkSj ij [kkfjt fd;k x;k gS bldk vuqrks'k ugh pkgus dk ;kfpdk ij D;k vlj iM+sxkA"(Downloaded on 18/08/2021 at 09:48:51 PM)
(4 of 7) [CMA-1400/2021] Learned counsel submitted that by the impugned order dated 31.07.2021, the Court below has partly allowed the application and has permitted two issues to be added as issue No.1(A) and 1(B) relating to limitation and cause of action.
Learned counsel further submitted that the issue Nos.3 and 4, which were suggested in the application relating to locus standi and improper rejection of nomination form and its effect, have not been permitted to be framed as additional issues.
Learned counsel submitted that the Court below has wrongly come to the conclusion that the issue No.4 was already covered in the issue No.1, which was already framed by the Tribunal.
Learned counsel submitted that issue No.1, which was framed by the Election Tribunal, was based on a wrong premise, as there was no prayer in the entire election petition of the respondent No.1 where relief was sought to declare the action of the Returning Officer illegal and against the law, while rejecting the nomination form.
Learned counsel further submitted that for the error, which was committed by the Court below, while framing the issues vide order dated 12.07.2021, it was brought into notice of the Election Tribunal that in absence of the prayer and relief sought, the Tribunal could not have framed the issues in the manner, the same was framed.
Learned counsel for the appellant submitted that the power given under Order 5 Rule 14 CPC is required to be exercised in proper manner and the competent Court has power to amend the issue or frame the additional issues for determining the matters in controversy between the parties.
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(5 of 7) [CMA-1400/2021] Learned counsel submitted that the Court below has not kept in mind the object of Order 5 Rule 14 CPC, while passing the order dated 31.07.2021.
Learned counsel further submitted that even in the election petition, the relief, which is claimed, has to be specific and as per Order 7 Rule 7 CPC, if a particular relief is not claimed specifically, the Court cannot later on while deciding the main controversy, can grant such relief.
Learned counsel submitted that even prayer clause of the election petition of the respondent No.1, did not have an alternative relief of getting declaration that the nomination form was wrongly rejected by the Returning Officer.
Learned counsel for the appellant places reliance on a judgment of the Hon'ble Supreme Court in the case of State of Orissa & Anr. Vs. Mamata Mohanty {(2011) 3 SCC 436} To buttress his submissions, learned counsel submits that pleadings and particulars are very important for the Court to decide the rights of the parties in the trial.
Learned counsel, on the strength of said judgment, submitted that if the relief is not found on the pleadings, the same should not be granted.
Learned counsel for the appellant also places reliance on the judgment of the Hon'ble Supreme Court in the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors. {(2010) 1 SCC 234}.
Learned counsel, on the strength of said judgment, submitted that even the High Court, while considering the grant of relief, has to consider the relief claimed in the petition. (Downloaded on 18/08/2021 at 09:48:51 PM)
(6 of 7) [CMA-1400/2021] Learned counsel submitted that the general principle of CPC applies to the writ petition and as such the Court below ought to have kept such parameters in mind, while deciding the application filed by the appellant.
Learned counsel further submitted that the real controversy in the election petition can be decided only by considering the issue, which was suggested by the appellant about improper rejection of nomination form of the respondent No.1 and its impact in the entire election.
Learned counsel submitted that the Court below has committed serious illegality in passing the impugned order without following the proper procedure to decide the election dispute.
I have considered the submissions made by learned counsel for the appellant and perused the material available on record.
This Court finds that election petition has been filed by the respondent No.1 by making a specific plea i.e. nomination form was improperly rejected by the Returning Officer.
This Court further finds that the respondent No.1, in his election petition, has pleaded that on account of improper rejection of his nomination form, the election, so held for Ward No.134, was illegal and participation of appellant in the said election is liable to be declared against the law and the same is required to be cancelled.
This Court finds that once issue No.1 has been framed, whereby the Election Tribunal is required to consider the issue of improper rejection of nomination form of respondent No.1, framing of additional issue as suggested by the appellant, was not required in the facts of the present case.
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(7 of 7) [CMA-1400/2021] The submission of learned counsel for the appellant that since no relief has specifically been prayed by the respondent No.1 in his election petition to declare action of the official respondents to reject his form improperly, suffice it to say by this Court that in the election petition, if averment has been made and the entire basis of the election petition is improper rejection of nomination form, to cancel the election and a direction to hold fresh election, nothing more is required to be added by way of framing additional issues.
This Court further finds that the grievance, raised by the appellant with regard to the issue Nos.1 and 2 i.e. limitation and cause of action, has already been allowed by framing additional issues.
With regard to the issue Nos.3 and 4, as suggested by the appellant in the application, this Court finds that the Court below has kept in mind the real controversy, involved between the parties and accordingly the case is required to be considered after determination of the issues, which are involved in the election petition.
This Court finds that no error has been committed by the Court below and accordingly, the appeal has no force and is dismissed.
(ASHOK KUMAR GAUR),J Aarzoo Arora/Preeti Asopa/9 (Downloaded on 18/08/2021 at 09:48:51 PM) Powered by TCPDF (www.tcpdf.org)