Karan Sharma S/O Shri Purshottam ... vs Raghunath Agarwal S/O Gopal
2021 Latest Caselaw 3743 Raj/2

      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.

(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

(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"

(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.

(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.

(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.

(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

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