NIRMAL SINGH, J. - (1.) THE question for consideration in this civil revision is whether a person who has filed a petition under section 176 of the Haryana Panchayati Raj Act, 1957 (hereinafter called the 'Act') is entitled to withdraw the petition under Order 23 Rule 1 C.P.C.?
(2.) THE facts for the disposal of this civil revision are that Mohinder Pal respondent No. 2 filed a petition challenging the election of respondent No. 3 on various grounds. Petitioner alongwith Krishan Chand, respondent No. 3 appeared before the Civil Judge and filed written statement. After filing the written statement, Mohinder Pal moved an application under Order 23(1) CPC for withdrawal of the petition. After hearing Mohinder Pal, learned Civil Judge (Jr. Division) Kurukshetra allowed the application. Petitioner moved an application for restoration of the election petition filed by Mohinder Pal and to transpose the petitioner from arraying the respondents as election petitioner. Notice of the application was given to Mohinder Pal. After hearing the parties, application was dismissed vide the impugned order. Aggrieved by which present petition has been preferred. Mr. R.S. Longia, learned counsel for the petitioner submitted that learned Tribunal has erroneously dismissed the application of the petitioner. He contended that before allowing the application for withdrawing the petition, no notice was served upon the petitioner. He further contended that there is no provision in the Act or under the rules framed thereunder to withdraw the petition. He also contended that provisions of Representation of People Act, 1951 (hereinafter called 'the People Act') are paramateria to the provisions of the Act. He submitted that under the Peoples Act, no petition can be withdrawn without giving notice to the interested party and in this case, petitioner being the interested party, was entitled to be heard before allowing the petition to be withdrawn. He submitted that by allowing the application for withdrawing the petition, the Tribunal had exceeded its jurisdiction. He contended that election petition is not a petition in personam but the petition filed is an action in rem as all the electoral of the constituency are to be affected. He further contended that once the Tribunal has taken the cognizance, then there is no provision in the Act to withdraw the petition. He further submitted that the Tribunal can grant or refuse the leave to withdraw the petition only after hearing all the parties. If any of the party want to continue the petition, the Election Tribunal cannot dismiss the application for withdrawal of the petition or abandonment of part of claim. On the asking of any party, the Tribunal is to adjudicate the controversy. He also submitted that the leaned Tribunal has erroneously applied the provision of Order 23 rule 1 CPC while deciding the application. He submitted that the said provisions are not applicable to the petition. In support of his arguments, he placed reliance in Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa, AIR 1958 SC 698, Judgal Kishore son of Lal Chand v. Doctor Baldev Parkash, AIR 1968 Punjab and Haryana 152 (F.B.), Bijayananda Patnaik v. Satrughna Sahu, AIR 1963 SC 1566.
(3.) MR . Arvind Singh, learned counsel appearing for the respondents submitted that Mohinder Pal, respondent was competent to withdraw the petition under Order 23 Rule 1 C.P.C. He submitted that the provisions of Civil Procedure Code are applicable to the petition filed under the Act. He further submitted that after filing the petition, respondent can withdraw the suit or abandon a part of claim. He contended that if the respondent after filing the petition wanted to withdraw the suit to file a fresh one on the same cause of action, then permission is necessary. The Court in its discretion may allow or reject the prayer made by a person. He further submitted that the judicial precedents cited by learned counsel for the petitioner are not applicable to the facts of the present case. He pointed out that all those cases are covered under the provisions of the People Act. He contended that under Sections 109, 110 of the 1951 Act, an election petition can only be withdrawn by the leave of the High Court and notice is required to be issued to all the parties. He further contended that the High Court shall direct the notice of withdrawal to be published in the official gazette within 14 days of such publication and any of the party can apply to be substituted as a petitioner in place of the party withdrawing the petition. He contended that there is no such provision under the Haryana Panchayati Raj Act.;