The single judge bench of the Patna High Court held that any order/judgment passed by a Court or Tribunal even if it is ex parte is amenable to writ jurisdiction under Articles 226 and 227 of the Constitution of India and such power cannot be scuttled nor any embargo be fixed thereupon, on the plea of remedy provided under Order IX Rule 13 of the C.P.C.
Brief Facts of the Case:
The factual matrix of the case is that the state election commissioner notified the election for the post of Madhubani Zila Parishad. Constituency no. 12 was reserved for Extremely Backward Classes. The petitioner along with respondent no.6 and no. 5 filed his nomination paper for contesting the election in Constituency No. 12. Furthermore, the election was conducted and Petitioner was declared as the successful candidate. Respondent no. 5 aggrieved by the election result filed the suit on the ground that respondent no.6 contested the election on the forged and fabricated caste certificate.
The election tribunal set aside the elections and ruled the judgment in favor of the election Petitioner which resulted in the present writ petition.
Contentions of the Petitioner:
The Petitioner contended that the judgment passed by the election tribunal is only based upon the presumptions. It was also submitted that the election petitioner had to establish his case using the arguments made in the petition and the facts shown during the trial, not by assuming that, if Umesh Nat had not entered a contest, the petitioner would have won the election. Furthermore, it was submitted that the petitioner is the representative of the people, so if the election were to be ruled invalid, the people of Constituency No. 12 would be deprived of their ability to select a representative, which would ultimately mean that their right to democratization in the three tiers of democracy would be denied.
Contentions of the Respondent:
The Respondent submitted that the Order IX Rule 13 of the C.P.C makes it clear that, if an ex-parte decree is against the defendant, he may apply to the court that issued the decree for an order to set it aside. If the defendant can show the court that the summons was not properly served or that he was prevented from appearing when the suit was called for a hearing, the court will issue an order setting aside the decree against him on those terms. The present writ petition is not maintainable under this rule as the petitioner admitted that the notice was served and no reasonable reason was given to justify his absence. It was also submitted that in this election case, not only the principles but also the procedures—including the amendments—specified in the Code of Civil Procedure are applicable, except those that are expressly prohibited by any Act or rule under which the election is held.
Observations of the Court:
The Hon’ble Court observed that it is well established that an individual who was a candidate for an election has a statutory right to file an Election Petition under Section 137 of the Act, 2006, on the grounds specified under Section 139 of the Act, 2006, to challenge the election. This right is neither fundamental nor commonly held. The individual who is aggrieved by an order or judgment in an election petition filed under Section 137 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as "the Act, 2006") is not entitled to an appeal under the provisions of the Act, 2006. Because no remedy or appellate authority is specified, a writ petition under Article 226 is a suitable course of action.
It was also observed that if an ex-parte order or judgment causes harm to an individual, they have recourse under Order IX Rule 13 of the CPC. However, if the aggrieved party is satisfied that the judgment is per se illegal, perverse, wholly without jurisdiction, and not sustainable in law, they may challenge the order before the appropriate forum or court with jurisdiction to review the validity of the judgment on its merits.
It was noted that elections cannot be annulled or declared void based just on assumption and presumption; rather, their void nature needs to be crystal evident and point directly at a re-elected candidate.
Based on these considerations, the court was of the view that the learned tribunal erred in law by drawing a conclusion based on speculative assumptions and presumption and the case should be set aside. There is no evidence of corrupt practices by the returned candidate, nor is there any issue of valid votes being rejected in favor of respondent no. 5 or improper votes being received in favor of the returned candidate (petitioner).
The Decision of the Court:
With the above direction, the court set aside the order passed by the Court of Learned Sub-Judge-I, Civil Court, in the Election Suit. The court allowed the present writ petition.
Case name: Md. Tazuddin vs. The State of Bihar and Ors.
Case no.: Civil Writ Jurisdiction Case No.1717 of 2023
Coram: Hon’ble Mr. Justice Harish Kumar
Advocate for the Petitioner: Mr. Kalyan Shankar, Advocate
Advocates for the Respondents: Mr. Ajay, GA-5 Mr. Prateek Kumar Sinha, AC to GA-5
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