M.L. Bhat, J. - (1.) The order of the respondent No. 2 dated 2.7.1990 confirming the order of stay granted by him exparte on 13.6.1990 is challenged in this writ petition. The impugned order is said to be without jurisdiction and bad in law. To appreciate the controversy it is necessary to live a brief resume of facts.
(2.) The petitioner and respondent No. 1 along with 25 others were candidates for the office of Sabhasad of the Nagar Mahapalika, Allahabad in the same Constituency, namely, the constituency of Ward No. 4, which is a double member constituency. The respondent No. 1 and one Sri Bhakt Ram were declared elected on 31.7.1989. The election of the respondent No. 1 was challenged through the medium of an election petition presented before the District Judge, Allahabad in accordance with the provisions of the U.P. Nagar Mahapalika Adhiniyam, 1959, hereinafter called 'the Act'. The election petition was transferred by the District Judge to the court of the respondent No. 2 who by his order dated 31-5-90 held the election of the respondent No. 1 void and declared the petitioner to have been elected as a member of the said Constituency. The said order is said to have taken effect on 1.6.1990 in terms of section 77 of the Act. An appeal was filed against the said order before the High Court under Section 74 of the Act and an application for staying the operation of the order dated 31-5-1990 was also filed along with the appeal. This Court issued notice in the stay matter and the said appeal is still pending for disposal.
(3.) Thereafter another application seems to have been moved before this court, which was also ordered to be listed but no exparte stay order was granted. The respondent No. 1 thereafter seems to have filed an application under Order 9 Rule 13 CPC before the respondent No. 2 for setting aside the ex parte order dated 31-5-1990. On the day when the said application was filed the respondent No. 2 granted an exparte stay order staying the operation of the judgment dated 31-5-1990 passed by him. The petitioner appeared before him and the said order was confirmed by the respondent No. 2 on 2.7.1990, the effect of this order is that the declaration of the petitioner as a successful candidate is stayed. The decision on selection petition holding the election of the respondent No. 1 as void is also stayed. On the basis of the aforesaid grounds the petitioner has challenged that the order of stay passed by the respondent No. 2 is without jurisdiction, bad in law and has caused miscarriage of justice.;