JAGAT NARAYAN, J. - (1.) THIS is an appeal by one Birdha whose election petition filed under sec. 34 of the Rajasthan Municipalities Act 1959 challenging the election of Ranchhor Das to ward No. 2 of Merta Municipality has been dismissed by the Civil Judge, Merta under sec. 44 (3) on the ground that he failed to comply with the provisions of sec. 53 (1) inasmuch as the treasury receipt was not enclosed along with the petition.
(2.) A preliminary objection has been taken on behalf of Ranchhordas that this appeal is not competent as the treasury receipt showing that a deposit of Rs. 100/-has been made by the appellant in the Government treasury in favour of the High Court as security for the cost of the appeal was not enclosed with the memorandum of appeal. It was alleged on behalf of Birdha before the learned Civil Judge that the Government treasury receipt was enclosed with the petition and it has also been alleged on his behalf before me that the Government treasury receipt was enclosed with the memorandum of appeal. Both these deposits were made as civil court deposits. The current procedure for making such deposits is this. The person wanting to make a deposit presents a tender in triplicate in accordance with r. 255 of the General Rules (Civil) and r. 820 of the High Court (Rules ). The tender is presented before the Munsarim of the subordinate civil court concerned. In the case of the High Court the tender is to be presented before the Deputy Registrar (Judicial ). Cash is not accepted either in the subordinate courts or in the High Court. Cash challans are then prepared in triplicate in the form prescribed under the Treasury Manual and are handed over to the person desiring to make payment. He takes them to the treasury and after the money is deposited one of these forms is given back to him along with the receipt for the money. He takes this treasury challan containing the receipt to the office. Thereupon the tender forms handed over by him originally in the office are completed. One is handed over to the person who makes the deposit, one is kept on the record of the case and one is kept in the office. The treasury challan containing the receipt (this is referred to as the treasury receipt) is also retained in the office. In accordance with the above procedure only one part of the tender was kept on the file of the election petition when it was transferred by the District Judge to the court of the Civil Judge. The treasury receipt showing that the deposit of Rs. 100/- had been made was retained by the District Judge in his office. When a preliminary objection was raised against the maintainability of the election petition on the ground th$,t there was non-compliance of the provision contained in sec. 53 (1) then this treasury receipt was sent for. This treasury receipt goes to show that the required deposit was made in the treasury by the election petitioner on 6. 1. 64 namely the date on which he filed his election petition. There is an order by the District Judge bearing the date 6. 1. 64 on the treasury receipt to the effect that it should be kept on the file concerned. This shows that the treasury receipt was filed on 6. 1. 64. There is also a report by the clerk concerned on the back of the election petition to the effect that the necessary security deposit had been made by the petitioner. The allegation made by the election petitioner was that he filed the treasury receipt along with the election petition, but that it was removed subsequently from the file of the election petition, as it was needed by the Accounts Section of the District Judge's office for accounts purposes. The learned Civil Judge did not believe this allegation. He held that as the treasury receipt was not enclosed with the election petition there was non-compliance of sec. 53 within the meaning of sec. 44 (3 ). He accordingly dismissed the election petition. So far as the appeal is concerned the original tender presented by the appellant is on the file of the appeal, but the treasury receipt is not on the file. The tender goes to show that the deposit was made in the treasury on 30. 4. 64. The treasury receipt is on the record of the Accounts Section in accordance with the usual practice followed by the office which has been referred to above by me. The memorandum of appeal was presented on 2. 5. 64. An affidavit was filed by the clerk of Shri Chandmal that he presented the Treasury receipt along with the memorandum of appeal. This was filed by Shri Chandmal on 8. 8. 64, the date on which this appeal was first heard. An objection was taken on behalf of Chhanwar Singh respondent on 25. 7. 64 in writing that the treasury receipt had not been filed with the memorandum of appeal, and it was in pursuance of this that the above affidavit was filed by the clerk of Shri Chandmal. On behalf of the respondent it is contended that the affidavit of the clerk of Shri Chandmal should not be relied upon as the tender form on the file of the appeal goes to show that the usual procedure was followed in this case, namely, that the tender was given to the person making the deposit and the treasury receipt was retained in the Office. The allegation made by the clerk is that he attached the treasury receipt with the memorandum of appeal when he presented it before the Stamp Reporter, but that latter on he was called by the cashier of the Accounts Branch of the High Court who asked him to bring the receipt of the treasury challan so that he might keep it with the record of the Accounts Branch. Further that he then took the treasury receipt to the cashier and brought the tender from him and gave it to the Stamp Reporter. This tender is on the file of the Court. It has not been explained how the cashier came to know that the clerk had filed the treasury receipt along with the memorandum of appeal. It seems to me that the clerk first took the treasury receipt to the cashier in accordance with the usual procedure and the latter gave him one foil of the tender duly receipted which was attached to the memorandum of appeal. This is the procedure which is usually followed in case of court deposits and the clerk would normally follow it. The first preliminary objection on behalf of the respondents is that there was non-compliance of the provisions contained in sec. 55 inasmuch as the treasury receipt was not enclosed with the memorandum of appeal. The entries in the treasury receipt are as follows : (1)Name and signature of person tendering the amount. . . Shri Chandmal Lodha, Advocate (2)Name and designation of person on whose behalf money is paid. . . (3)Full particulars of remittance and of authority. . . S. B. Civil Misc. Municipal Election Appeal No. . . /64 Birdha vs. Ranchhordas Security for cost of respondent (4)Complete classification : Major and Miner Head Detailed Head. . . Civil Court Deposit No. 120 Rajasthan High Court, Jodhpur (5)Accounts Officer by whom adjustable. . . (6) Amount rs. 100/- The treasury challan was signed by the Chief Accountant on behalf of the Deputy Registrar, Rajasthan, High Court, Jodhpur before it was presented to the treasury. The second preliminary objection on behalf of the respondents is that the treasury receipt does not show that the deposit was made in favour of the High Court.
(3.) COMING now to the facts of the main case no witness was examined orally on behalf of the election petitioner. Reliance was placed on the record of the case and the letter from the District Judge, Merta, dated 13. 3. 64 to the Civil Judge, Merta, which runs as follows : " In the above noted election petition the petitioner had deposited a sum of Rs. 100/-in favour of this Court as security for costs as shown in the original Government Treasury Receipt Challan No. 186, dated 6. 1. 64 ). The petitioner had enclosed this Government Treasury receipt along with the above election petition, but as the same was required for the purposes of accounting in the proper accounts register, it was taken by the Accounts Section on the file of Civil Court Deposit receipts. The Government Treasury Receipt (challan) is now returned for putting it back on the file of the above case pending in your Court. " Subsequently on 19. 3. 64 on the application of Ranchhor Das the learned District Judge made the following clarification of his letter dated 13. 3. 64 : " The application of Shri Ranchhor Das be sent to Civil Judge, Merta who is trying the election petition. Letter No. 230, dated 13. 3. 64 was sent by me on the verbal report of Shri Sukhdeo Prasad, Accounts clerk of District Court Merta. I have got no personal knowledge. This letter was sent for information as an administrative matter. This letter, therefore, be not considered as proof of any fact. The application of Birdha applicant on which order and the report of the office exists be also sent to Civil Judge, Merta. " Neither the letter of the District Judge nor the subsequent clarification made by him can be treated as evidence in the case as the learned District Judge was not examined as a witness. In order to rebut the allegation made by the election petitioner Ranchhor Das appeared as a witness. He filed a copy of the election petition bearing the signature of the lawyer of the election petitioner in which the particulars of the challan and the tender which are contained in para 9 of the election petition which is on the record are not entered. This paragraph runs as follows : ;g gs fd glc dkuwu :- 10@& ds dksvz Qh LVseil lkfk is'k gs o glc /kkjk 53 vkj-,e- ,dv] 1959 ds :- 100@& crksj Security of cost ds Government treasury esa tek djk;s tk pqds gsa ftldh jlhn lkfk is'k gsa jlhn ua- 186 rkjh[k 6-1-64 Bank of Bikaner and Jaipur, Branch Merta City Tender No. 241, dated 6. 1. 64 Hkh lkfk gsa He also stated that he inspected the file on 19. 2. 64 and 25. 2. 64 but the challan was not on the record of the election petition. He did not however say that when he inspected the file paragraph 9 of the petition did not contain the number of the treasury receipt and the number of the tender. ;