Orissa High Court
Smt. Sarala Mallik vs Smt. Tapaswini Mallik And Others on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.1330 of 2022
Smt. Sarala Mallik .... Appellant
Mr. Anupam Rath, Advocate
-versus-
Smt. Tapaswini Mallik and others .... Respondents
Mr. D. K. Panda, Advocate for Respondent No.1
CORAM:
THE CHIEF JUSTICE
JUSTICE G. SATAPATHY
ORDER
05.05.2023
Order No.
Dr. S. Muralidhar, CJ.
06. 1. In the first place, a preliminary objection is raised by learned
counsel for the Respondent No.1 on the question of maintainability
of the present writ appeal relying on the judgment of the Full Bench
of this Court in Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz
2008(II) OLR (FB) 725, which has been affirmed by the Supreme
Court of India in Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz
(2010) 13 SCC 517.
2. The background to the objection is that the Appellant was elected
as Sarapanch of Ratnagiri Gram Panchayat. His election was
challenged by Respondent No.1 before the Civil Judge (Jr.Divn.)-
cum-Election Tribunal, Jajpur ('Election Tribunal'), in Election
Petition No.10 of 2022. The Appellant filed an application Order 7
Rule 11 CPC for rejection of the plaint on the ground that it failed
to contain material particulars. By an order dated 10th August, 2022
the Election Tribunal rejected the said application filed by the
Appellant.
3. The Appellant then filed W.P.(C) No.22309 of 2022 in this Court
challenging the said order dated 10th August 2022. By the impugned
order dated 27th September, 2022 the learned Single Judge
dismissed the said writ petition. In doing so, the learned Single
Judge was obviously exercising jurisdiction under Article 227 of
the Constitution of India. No writ appeal against such an order
would be maintainable in view of the judgment of the Full Bench of
this Court in Mahammed Saud (supra), which has been affirmed
by the Supreme Court.
4. Learned counsel for the Appellant, on the other hand, relies on
the decision of a Division Bench of this Court in Subash Chandra
Biswal v. Bamadev Patra 2019 (I) OLR 1037. However, it is not in
dispute that the said decision of the Division Bench did not take
note of the earlier decision of the Full Bench decision of this Court
in Mahammed Saud (supra).
5. Nevertheless, the writ appeal has also been examined on merits.
As noted earlier, the ground on which the rejection of the plaint
(election petition) was sought by the Appellant was that it did not
contain material particulars. The main ground of challenge to the
election of the Appellant as Sarpanch was that the present
Appellant had three children beyond the cut-off date and, therefore
was disqualified for contesting for the post of Sarpanch. Qua that
ground, there was pleading in the Election Petition of the fact of the
Appellant having more than three children with the dates of birth of
the three children being set out.
6. Learned counsel for the Appellant argues that the places of birth
of three children were not indicated and that the said detail was a
material particular. This Court is unable to agree. At the stage of
pleadings, as long as it is clearly stated that the present Appellant
had more than three children with their dates of birth being set out,
that would constitute a material particular. The mere fact that the
places of birth were not indicated would not mean that the petition
lacked material particulars.
7. It may be pointed out here that prior to this Court in the present
appeal staying further proceedings in the Election Petition by the
order dated 20th October 2022, two witnesses of the Election
Petitioner i.e. Respondent No.1 herein, had already been examined.
The transcript of their evidence has been placed before this Court
today, which is taken on record. Inasmuch as the trial is already
underway, the full facts concerning the ground of challenge will
obviously emerge in a short while.
8. For the aforementioned reasons, this Court is unable to find any
error having been committed by the Election Tribunal in rejecting
the Appellant's application under Order 7 Rule 11 of the CPC by
order dated 10th August, 2022. For that matter, no ground has been
made out to question the impugned judgment dated 27th September,
2022 of the learned Single Judge.
9. Consequently, the appeal is dismissed. The interim order passed
earlier stands vacated. A copy of the order be sent to the concerned
Election Tribunal i.e. the Court of the Civil Judge (Jr.Divn.)-cum-
Election Tribunal, Jajpur, who is seized of Election Petition No.10
of 2022, forthwith.
(Dr. S. Muralidhar)
Chief Justice
(G. Satapathy)
Judge
M. Panda
MRUTYUNJAY Digitally signed by
MRUTYUNJAYA PANDA
A PANDA Date: 2023.05.06 13:21:15
+05'30'
