Dharmendra vs State Of U.P. And 4 Others
2025 Latest Caselaw 9976 ALL

Allahabad High Court

Dharmendra vs State Of U.P. And 4 Others on 1 September, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 

 

 

 

 
Reserved On: 19.08.2025
 
Delivered On: 01.09.2025
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
WRIT  C No. -  18710 of 2025 
 

 
Dharmendra
 

 
..Petitioners(s)
 

 

 

 

 
Versus
 

 

 

 

 
State of U.P. and 4 others
 

 
..Respondents(s)
 

 

 
Counsel for Petitioners(s)
 
:
 
Ajay Kumar Singh, 
 
Ashish Kumar Singh, Tejas Singh
 
Counsel for Respondent(s)
 
:
 
C.S.C., Narendra Kumar Pandey, Peeyush Kumar Shukla, 
 
Shailendra Kumar Singh
 

 

 
Court No.  9
 

 
HONBLE MANISH KUMAR NIGAM,J.

1. Heard learned counsel for the petitioner, learned counsel for the respondent and perused the record.

2. This petition has been filed challenging the order dated 15.05.2025 passed by Additional District Judge/Court No. 13, Varanasi in Election Petition No. 411 of 2021 rejecting the application filed by the petitioner under Order 7 Rule 11 C.P.C.

3. Brief facts of the case are that the election for the post of Pramukh of Kshetra Panchayat Pindra, Vikas Khand Pindra, Varanasi was held on 10.07.2021. The petitioner as well as respondent no. 2 were the candidates for the post of Pramukh Kshetra Panchayat. In the said election petition result was declared on 10.07.2021 in which the petitioner was declared elected as Pramukh. The respondent no. 2 filed an election petition under Rule 35 of the U.P. Kshetra Panchayat (Election of Pramukhs and Up-pramukhs and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the Rules of 1994) on various grounds on 05.08.2021. The petitioner appeared and contested the election petition and has also filed an application under Order 7 Rule 11 C.P.C. for rejection of the election petition on the ground that Sub-rule (2) of Rule 35 of the Rules of 1994 provided that the election petition shall be presented in person by the petitioner or if there are more than one petitioner, by anyone or more of them.

4. The case of the petitioner was that in the present case, the election petition was not presented by the respondent no. 2 but was presented by his advocate which is apparent from the endorsement made by the Administrative Officer, Varanasi wherein it has been mentioned that the claim petition was presented by Mr. Mahendra Nath Advocate. The petitioner prayed for summary dismissal of the election petition for non-compliance of Sub-rule (2) of Rule 35 of the Rules of 1994.

5. The respondent no. 2 filed his objection (paper No. 40 Ga) to the application filed by the petitioner denying the averments in the application filed by the petitioner under Order 7 Rule 11 C.P.C. The petitioner filed his cross-objection to the objections filed by the respondent no. 2 reiterating its stand that at the time of filing the election petition, the election petitioner was not present but the same was filed through counsel.

6. After hearing the parties the application under Order 7 Rule 11 C.P.C. filed by the petitioner was allowed by the Tribunal i.e. A.D.J., Court No. 13, Varanasi by judgment and order dated 30.09.2023 holding inter-alia that the election petitioner was not present at the time of presentation of the election petition and the same was filed through counsel relying upon various judgments cited by the parties in this regard. The order dated 30.09.2023, was challenged by the respondent no. 2 by filing Writ C No.37581 of 2023 which was allowed by this Court by judgment and order dated 06.01.2025. This Court in paragraph no. 6 & 7 of the judgment held as under:

6. The submissions of learned counsel for the petitioner to the effect that in the objection filed to the application filed by the respondent no.2, under Order 7 Rule 11, the election petitioner has specifically stated that the election petition was present at the time of filing of the election petition. It is further to be noted that a perusal of the impugned order dated 30.09.2023 would go to show that no finding has been recorded by the election Tribunal with regard to the presence of election petitioner at the time of filing of the petition and signature claimed by the petitioner to be present on the order sheet of 05.08.2021. The Tribunal further has not considered the fact that there was no denial of the respondent no.2 on the averment made by the election petitioner that he was present before the election Tribunal at the time of filing of the objection. The election Tribunal has relied upon the report of the Administrative Officer, who has made an endorsement that the election petition was presented by Advocate. It is not in dispute between the parties that the election petition is required to be presented before the District Judge, Varanasi, who is the election Tribunal.

7. Prima facie, this Court is of the opinion that the finding ought to have been recorded as to whether the order sheet of the election Tribunal would have primacy over an endorsement of the Administrative Officer and whether the election petitioner was present at the time of filing of the election petition on the basis of the alleged signature of the election petitioner on the order sheet and what would be effect of the signature of the election petitioner on the order sheet dated 5.08.2021. Such signature of the election petitioner on the order sheet dated 5.8.2021 may be reflected of the fact that the petitioner was present on the date when the election petition was presented before the Election Tribunal. Such finding of fact are firstly required to be recorded before proceedings. Accordingly, since it is admitted case of the parties that such finding has not been recorded. The impugned order dated 30.09.2023 is not sustainable and is hereby set aside.

7. After the order passed by the writ Court, the petitioner filed further objection (Paper No. 68Ga) inter-alia claiming that the election petitioner/respondent no. 2 was not present at the time of filing of the election petition on 05.08.2021 and the election petitioner has put his signatures on the order sheet after the order dated 30.09.2023 was passed by the Tribunal. It was also stated in the aforesaid objection that to the application (Paper No. 37 Ga) filed by the petitioner under Order 7 Rule 11 C.P.C., objections filed by the respondent no. 2 (Paper No. 40 Ga) there was no averment to the effect that on 05.08.2021, election petitioner was present before the election Tribunal at the time of presentation of the election petition and after the order dated 30.09.2023 following facts were added in the objection (Paper No. 40 Ga):

याचीका दाखिल करते समय याची उपस्थित था तथा उसका फोटो याचिका पर चस्पा है।"

8. It has also been stated that the photo copy of the objection (Paper No. 40Ga) which was supplied to the counsel for petitioner, there is no such averment. Counter objection was filed by respondent no. 2 to the objection filed by the petitioner.

9. After the remand by order dated 15.05.2025, the election Tribunal i.e. A.D.J. Court No. 13, Varanasi by its judgment and order dated 15.05.2025, rejected the application (Paper No. 37Ga) filed by the petitioner under Order 7 Rule 11 C.P.C., hence the present petition.

10. Learned counsel for the petitioner submitted that in his objection (Paper No. 40Ga), election petitioner/respondent no. 2 has not stated that at the time of presentation of the election petition he was physically present before the Tribunal. This averment has been added subsequently by the election petitioners after the order dated 30.09.2023. It has been further contended by learned counsel for the petitioner that the election petitioner also put his signatures on the order sheet dated 05.08.2021 subsequently after the order dated 30.09.2023 and has committed forgery in the court record.

11. Learned counsel for the petitioner relied upon the application (Paper No. 45 Ga) filed by the election petitioner with a prayer that in case there is any legal infirmity, the same may be permitted to be corrected and also relied upon the application (Paper No. 47 Ga) filed by the counsel for the election petitioner with the similar relief. The election petitioner has also filed objection to the aforementioned application referred above. It has also been contended by learned counsel for the petitioner that this Court while remanding the matter to the Tribunal for reconsideration, has directed the Tribunal to record a finding as to whether the order sheet of the election Tribunal would have primacy over an endorsement of the administrative officer and whether the election petitioner was present at the time of filing of the election petition on the basis of alleged signatures of the election petitioner on the order sheet and what would be the effect of the signature of the election petitioner on the order sheet dated 05.08.2021. According to the petitioner no such finding was recorded by the Tribunal while deciding and rejecting the application filed by the petitioner and Tribunal has therefore not complied with the direction given by the writ Court.

12. Per contra, learned counsel for election petitioner/respondent no. 2 submitted that as a matter of fact the petition was presented by the petitioner along with his advocate on 05.08.2021 which is apparent from the fact that the election petitioner has signed the order sheet on 05.08.2021. It has been further submitted by the learned counsel for the respondent no. 2 that in the objection (Paper No. 40 Ga) the election petitioner has specifically stated that at the time of filing of the election petition, election petitioner was present and his photo was affixed on the election petition. It has been also submitted by learned counsel for respondent no. 2 that the said endorsement has been made by pen which bears the initial of the counsel for the petitioner. Learned counsel for the respondent no. 2 further submitted that it is possible that the petitioner might have not made necessary corrections in the copy of objection (Paper No. 40 Ga) which was supplied to the petitioner. In this regard, learned counsel for respondent no. 2 relied upon the certified copy of the objection (Paper No. 40Ga) which has been filed along with this petition.

13. Learned counsel for the petitioner relied upon the judgments of Apex Court in case of Satya Narain v. Dhuja Ram and others reported in (1974) 4 SCC 237 and Chandra Kishore Jha v. Mahavir Prasad and others reported in (1999) 8 SCC 266 and judgment of this Court in case of Devendra Yadav v. District Election Officer/District Magistrate, Mau reported in 2011 SCC OnLine All 1579. Learned counsel for the respondent relied upon the judgment of the Full Bench in case of Sumitra Devi v. Special Judge/Additional District & Sessions Judge, E.C. Act, Hardoi and others reported in (2020) SCC OnLine All 829.

14. From the case law relied upon by the learned counsel for the petitioner it is settled that the provisions of Sub-rule (2) of Rule 35 of the Rules of 1994 are mandatory and the election petition has to be filed by the election petitioner in person or in case there are more than one, then by any of them. The judgment of Full Bench relied upon by the learned counsel for the respondent no. 2 will not be applicable to the present case in view of the fact that the said Full Bench judgment was rendered in respect of election petition filed under the Uttar Pradesh Panchayat Raj Act where the provisions are different. There was no such rule as in the present case, that the election petition has to be presented in person.

15. After considering the respective submission of the parties and from perusal of the order impugned, it is apparent that the Tribunal has recorded a finding that the administrative officer has recorded on the first page of the election petition that the same was presented by Mr. Mahendra Nath Advocate but on the order sheet dated 05.08.2021, following order was passed:

आज प्रस्तुत।

ग्राह्यता के बिन्दु पर सुना गया।

ग्राह्य किया जाता है।

प्रकीर्ण वाद के रूप में दर्ज रजिस्टर हो।

विपक्षी को नोटिस जारी हो।

दिनांक 25.08.2021को सुनवाई हेतु पेश हो।"

16. The Tribunal has also recorded a finding on the said order sheet the signature of election petitioner are there. Repelling the contention of the petitioner, that in the order dated 05.08.2021, there is no mention that the election petitioner was present and Tribunal has held that from the order sheet it is apparent that the election petitioner was present for the reason that the order sheet was signed by the election petitioner. Further finding has been recorded by the election Tribunal that merely by endorsement of the administrative officer mentioning Mr. Mahendra Nath Advocate has presented the election petition, no inference can be drawn that the election petitioner was not present at the time of presentation of the election petition because the election petitioner has signed the order sheet dated 05.08.2021. The signature on the order sheet shows the presence of the petitioner and therefore, the endorsement of the administrative officer is of no avail. Tribunal has also recorded a finding that the petitioner has not filed any evidence that on 05.08.2021 the petitioner was anywhere else nor has filed any evidence to prove that the signature on the order sheet was made by the election petitioner subsequently. The election Tribunal has also repelled the submission of the petitioner that from the application (Paper No. 45Ga and 47Ga) filed by the election petitioner and his advocate respectively praying for correction of any legal infirmity in the presentation will be considered as the election petitioner was not present at the time of presentation of the petition on the ground that there was no mention in application (Paper No. 45 Ga and 47 Ga) that election petitioner was not present at the time of presentation of the election petition and his presence be recorded and therefore, no inference can be drawn from paper No. 45 Ga and 47 Ga that the election petitioner was not present at the time of presentation of the election petition.

17. The Tribunal has recorded finding of fact that the order sheet was singed by the election petitioner on 05.08.2021 when the petition was presented which certifies the presence of the petitioner at the time of presentation of the election petition specially there was no evidence led by the present petitioner to dispute the signature or to the fact that the signature were put subsequently. Mere allegation on the part of petitioner that signature were made afterward without there being any evidence in support thereof, is of no avail.

18. So far as the contention of the learned counsel for the petitioner that the Tribunal has not complied with the direction issued by this Court is also not correct. The Tribunal has recorded a categorical finding that the report of the Administrative Officer will not override the order sheet of the case specially when the recital is only to the effect that the petition was presented by Mr. Mahendra Nath Advocate without there being any further report that the election petitioner was not present. The Tribunal has also recorded a finding that the signatures were put by the petitioner on the order sheet on 05.08.2021 and held that the election petitioner was present on the date of presentation of the election petition. Rejection of election petition or plaint under Order 7 Rule 11 C.P.C. is a drastic remedy and should not be lightly construed.

19. In my view, the petitioner has failed to assail the finding recorded by the Tribunal by placing cogent material before this Court. All the objection taken by the petitioner has been dealt with by the Tribunal and the finding of the Tribunal cannot be said to be perverse.

20. In view of the above, no illegality has been committed by the Tribunal in rejecting the application of the petitioner under Order 7 Rule 11 C.P.C.

21. The petition fails and is accordingly, dismissed.

(Manish Kumar Nigam, J.)

September 01, 2025

Ved Prakash