Rajasthan High Court

Gyan Singh S/O Late Shri Ladu Singh vs Smt. Sarju Devi W/O Shri Mahendra Singh on 22 February, 2024

Author: Mahendar Kumar Goyal

Bench: Mahendar Kumar Goyal

[2024:RJ-JP:8375]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                    S.B. Civil Writ Petition No. 12842/2023

Gyan Singh S/o Late Shri Ladu Singh, Aged About 70 Years, R/o
Village Badliya, Tehsil and District Ajmer.
                                             ----Petitioner/Non-Applicant No.2
                                        Versus
1.       Smt. Sarju Devi W/o Shri Mahendra Singh, Aged 31
         Years, R/o Village Badliya, Thasil And District Ajmer.


                                                         ----Respondent-Applicant

2. Chief Election Officer (Panchayat), Ajmer, District- Ajmer

----Respondent-Non-applicant No.1.

3. Returning Officer, Gram Panchayat Badliya, Panchayat Samiti Ajmer, Gramin, District - Ajmer Thorough District Election Officer (Panchyat) State Election Commission, Collectorate Premises, Ajmer

----Respondent-Non-applicant No.3

For Petitioner(s) : Mr. R.B. Mathur, Sr. Adv. Assisted by Mr. Varnit Jain Mr. Nikhil Simlote Mr. Salim Khan Gori For Respondent(s) : Mr. Govind Purohit

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

Date of Reserve : : 16/02/2024 Date of Pronouncement : : 22/02/2024

This writ petition under Article 226 of the Constitution of

India has been filed assailing the legality and validity of the order

dated 18.7.2023 passed by learned Additional Civil Judge (Senior

Division) No.1, Ajmer (for brevity, `the learned Election Tribunal')

in Civil Misc. Application No.159/2022 whereby, an application

filed by the petitioner/non-applicant No.2 (for brevity,`the non-

[2024:RJ-JP:8375] (2 of 7) [CW-12842/2023]

applicant no.2') under Order 7 Rule 11 CPC read with Rules 80 and

81 of the Rajasthan Panchayati Raj Election Rules, 1994 (for

brevity, `the Rules of 1994'), has been dismissed.

The relevant facts in brief are that the respondent no.1-

applicant (for brevity, `the applicant') filed an election petition

under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (for

brevity, `the Act of 1994') read with Rule 80 of the Rules of 1994

assailing the election of the non-applicant no.2 as Sarpanch, Gram

Panchayat Badliya, Panchayat Samiti Ajmer Rural. Therein, the

non-applicant no.2 filed an application under Order 7 Rule 11 CPC

read with Rules 80 and 81 of the Rules of 1994 challenging the

maintainability of the election petition alleging it not to have been

filed in accordance with the provisions of Rule 81 of the Rules of

1994. The application has been dismissed by the learned Election

Tribunal vide order dated 18.7.2023, impugned herein.

Assailing the order, the learned senior counsel for the non-

applicant no.2 submitted that while dismissing the application, the

learned Election Tribunal failed to appreciate that Rule 81 of the

Rules of 1994 mandates the election petition to be presented

either by the person making it or by a person authorised in writing

in this behalf by the person making the petition and in the instant

case, the election petition was filed neither by the petitioner nor,

by an authorised person on her behalf. Referring to and relying

upon a Division Bench order of this Court dated 20.04.2017 in

D.B. Civil Reference No.1/2017: Anju Singh vs. Gauri wherein,

while answering the reference, this Court has held that an election

petition presented by a lawyer on the strength of a Vakalatnama

would be deemed to have been duly presented if the language of

[2024:RJ-JP:8375] (3 of 7) [CW-12842/2023]

the Vakalatnama expressly records that the lawyer is authorised

to present the election petition, he would submit that since in the

present case, the lawyer, who presented the petition on behalf of

the applicant, was not specifically authorised in the Vakalatnama

to present it; but to file "Vaad" only, the election petition deserved

to be rejected under Order 7 Rule 11 CPC. Learned senior counsel

submits that in view of the trite law that an election petition is not

akin to a plaint and merely because the lawyer was authorised to

file "Vaad", it could not have been assumed that he was authorised

to file the election petition as well. Shri Mathur submitted that it is

a well established legal principle that while deciding an election

petition, the Presiding Officer functions as "persona designata"

and unless the lawyer presenting the petition is specifically

authorised to file the election petition, it cannot be held that the

requirement of the Rule 81 of the Rules of 1994 has been met.

He, therefore, prays that the writ petition be allowed, the order

dated 18.7.2023 be quashed and set aside and the application

filed by him under Order 7 Rule 11 CPC read with Rules 80 & 81 of

the Rules of 1994 be allowed. Shri Mathur, in support of his

submissions, relies upon following judgements:

1) Panna Ram vs. Ramu Ram, D.B. Special Appeal (Writ)

No.592/2019 dated 16.05.2019;

2) Samar Singh vs. Kedar Nath @ K.N. Singh & Ors.-1987

(Supp) Supreme Court Cases 663;

3) K. Kamaraja Nadar vs. Kunju Thevar & Ors. and one

connected matter-AIR 1958 SC 687;

4) K.V. Rao vs. B.N. Reddi-(1969) 1 SCR 679.

[2024:RJ-JP:8375] (4 of 7) [CW-12842/2023]

Per contra, learned counsel for the applicant submits that

Rule 85 of the Rules of 1994 provides that the procedure laid

down in the Code of Civil Procedure, 1908 in regard to suits, shall,

in so far as it can be made applicable, be followed in the hearing

of election petition hence, the learned Election Tribunal did not err

in dismissing the application filed by the non-applicant no.2 as the

counsel who presented the election petition was duly authorised in

this behalf. He, therefore, prays that the writ petition be

dismissed. He, in support of his submissions, relies upon following

judgements of this Court:

1) Smt. Kalli Meena vs. Rekha Devi Dhanka-2017 (1) WLC (Raj.) UC 726;

2) Geeta vs. Mithlesh-2018 (1) CJ (Civ.) (Raj.) 473.

Heard. Considered.

The issue involved herein as to entitlement of an advocate to

file the election petition under Rule 81 of the Rules of 1994 on the

strength of a Vaklatnama executed by election petitioner in his/her

favour, is no more res integra. A Division Bench of this Court has,

in D.B. Civil Reference No.1/2017, while answering the reference

held as under:

"An election petition presented by a lawyer on the strength of a Vakalatnama would be deemed to have been duly presented if the language of the Vakalatnama expressly records that the lawyer is authorised to present the election petition.

It would then be a question of fact to be determined by the Tribunal keeping in view the language of the Vakalatnama. If the language of the Vakalatnama expressly

[2024:RJ-JP:8375] (5 of 7) [CW-12842/2023]

records that the lawyer is authorised to present the election petition, it would be a case of valid presentation of the election petition."

In the instant case, indisputably, the counsel who had filed

the election petition on behalf of the petitioner, was authorised in

the Vakalatnama to submit "Vaad". The moot question before this

Court is whether on the strength of such Vakalatnama, the

counsel could be held to be authorised to file the election petition

in terms of Rule 81 of the Rules of 1994. Dealing with an identical

situation, a coordinate bench of this Court has, in the case of Smt.

Kalli Meena (supra), relying upon and referring to the aforesaid

Division Bench judgement, held as under:

"4. The question as to whether an election petition under the Act of 1994 has been presented by a counsel on behalf of the election petitioner after due authorization in writing is thus a question of fact to be determined in each case. In the instant case a reference to the "Vakalatnama" as appended to the additional affidavit filed by the petitioner- returned candidate (hereinafter 'returned candidate') before this Court evidences that the election petitioner had authorized her counsel to file the election petition against the returned candidate. The term of the Counsel's engagement reads as under:-

'kqYd ij vfHkHkk"kd fu;qDr dj izfrKk djrk g¡w@djrh gw¡ fd mDr vfHkHkk"kd dh okn] oknksÙkj] vihy] vkosnu&i= iqujikoyksd] iqu%fopkj iqu% LFkkiuk la'kks/ku o vfHk;ksx ;kfpdk;sa ij gLRkk{kj djsaA vkSj izLrqr djsa fyf[kr izek.k&i= izLrqr djsa ys[k&i= jktiqLrd foHkkx esa izLrqr djsa vkSj ysa izekf.kr izfrfyfi ys] mÙkjkf/kdkjh gksus dk izek.k i= izLrqr djsa] leFkZu djsa la;qDr O;kikj lfefr dk jkt- iqLrdky; djkosa] 'kiFk&i= izLrqr djsa le>ksrs o izfrHkwfr nsdj izek.khdj.k djkosa] dks"k U;k;y; o vU; foHkkx jkT; ls :i;k ns o ysdj izek.khdj.k djkosa] iap

[2024:RJ-JP:8375] (6 of 7) [CW-12842/2023]

fu'p; djsa vkSj iapk;rh fu.kZ; dk izek.kh dj.k djkosa fdlh fMxzh dk izorZu djkosa vkSj izek.k&i= ?kks"k foØ; ys fujh{k.k&i= laxzg djsa vU; vfHkHkk"kd o izfrfnu fu'p; 'kqYd ij i{k leFkZu ds fu;r djsa o vU; dk;Zokgh vfHkHkk"kd djsa og viuh Lo;a dh dk;Zokgh ds leku Lohdkj gksxkA fu;fer vnkyr esa mifLFkr gksus dh rkjh[k is'kh dh tkudkjh j[kus dk nkf;Ro i{kdkj Lo;a dk gksxkA

5. The election petitioner thus in terms of his counsel's engagement authorized him interalia to also present the election petition on her behalf. There was no material on record before the Trial Court nor is there before this Court to establish that at the time the election petitioner engaged her counsel under the aforesaid 'Vakalatnama', she was engaged in other litigation with the returned candidate to which the 'Vakalatnama' could relate. I find no force in the contention of the counsel for the petitioner that the words 'election petition' not being set out specifically in the Vakalatnama it cannot therefore relate thereto.

An engagement of counsel by a client is a contract of agency. It is well settled that a contract of agency like any other has express conditions and can also have conditions necessarily implied contextually. The 'Vakalaltnama' quoted above specifically authorizes the counsel inter alia to present the petition filed by the election petitioner against the returned candidate

--who is named as a defendant their in.

6. I am of the considered view that in the overall facts of the case as obtaining, on the construction of the Vakalatnama signed by the election petitioner it is evident that her counsel was clearly authorized in writing to present the election petition on her behalf against the returned candidate, following his election to the post of Sarpanch, Village Piplya Bai Post Khijuria Brahmnan, Panchayat Samiti Bassi. The election petition was validly filed by counsel on behalf of election petitioner in terms of the explanation to Rule 81(1) of the Rules of 1994."

[2024:RJ-JP:8375] (7 of 7) [CW-12842/2023]

In the aforesaid case, a coordinate bench of this Court has

categorically held that an election petition filed by a counsel

authorised in the Vakalatnama to submit "Vaad", meets the

requirement under Rule 81 for presentation of a valid election

petition. Therefore, this Court has no hesitation in holding that in

the instant case also, the election petition was filed by an

authorised person.

In view thereof, the judgements relied upon by the learned

senior counsel for the petitioner qua distinction in between a

regular suit and an election petition as also the judgements

holding the Election Tribunal as "persona designata", require no