JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by one Bajrang Lal against the decision of Munsiff, Sawai Madhopur, acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules setting aside his election to the office of Sarpanch of Gram Panchayat Alanpur on an election petition filed by Suraj respondent No. 1. The writ petition has been contested on behalf of Suraj.
(2.) THE election to the office of Sarpanch of Alanpur Panchayat was held on 1. 1. 65. Bajrang Lal, Suraj, Kanhaiyalal and Ram Gopal filed their nomination papers. THE nomination paper of Suraj was rejected by the Returning Officer on the ground that he was disqualified under sec. 11 (k ). THE election was contested by Bajrang Lal, Kanhaiya Lal and Ram Gopal. Bajrang Lal was declared as duly elected having polled the highest number of votes. His election was challenged by Suraj on the ground that his nomination paper was wrongly rejected. THE election petition was contested by Bajrang Lal on the ground that Suraj's nomination paper was rightly rejected and also on the ground that the election petition was not presented within limitation to the proper authority as prescribed under rule 78. The learned Munsif held that the election petition was properly presented as prescribed under rule 78 and that the nomination paper of Suraj was wrongly rejected. It is contended on behalf of Bajrang Lal that these findings are erroneous. So far as the finding that Suraj's nomination paper was wrongly rejected is concerned it is a finding of fact which is not vitiated by any error which can be corrected on a writ of certiorari. The learned Munsif found that Suraj did not sell vegetables and no tax for selling vegetables could be imposed upon him. Further he found that no bill of demand in respect of this tax was ever presented to him. So far as the other finding of the learned Munsif is concerned the facts are these. The election took place on 1. 1. 65 and the last day for presenting the election petition was 31. 1. 65. There was a court of Munsif at Sawai Madhopur, but the presiding officer was on leave from 3. 1. 65 to 1. 3. 65 The office of the court of Munsif was however open and the Reader was on duty. But no order had been passed authorising him to receive plaints under order 4, rule 1 C. P. C. Suraj presented the election petition to the Reader on 31. 1. 65. When the learned Munsif resumed charge on 2. 3. 65 he took cognizance of the election petition. The material part of rule 78 runs as follows - "the election. . . . . . of any person. . . . . . . . . as the Sarpanch. . . . . . . . of a Panchayat may be called in question by presenting a petition to the Munsif, or, where there is no Munsif, to the Civil Judge, within whose jurisdiction the place of Headquarters of the Panchayat. . . . . . . . . . . is situated, within thirty days from the date on which the result of such election or. . . . . . is declared. . . . . . . . . " The contention on behalf of the petitioner is that as the Munsif of Sawai Madhopur was on leave there was no Munsif and the election petition should have been presented to the Civil Judge, Gangapur in whose jurisdiction the head-quarter of the Panchayat is situated. In my opinion it cannot be said that there was no Munsif at Sawai Madhopur within the meaning of rule 78 merely because the presiding officer of the court was on leave. The court of Munsif, Sawai Madhopur, was in existence and had not been abolished and a Munsif was bound to be posted sooner or later. In these circumstances the absence of the Munsif can only be regarded as temporary. In the temporary absence of the Munsif even though the Reader was on duty the court will be deemed to have been closed within the meaning of sec. 4 Limitation Act. The consequence of putting any other interpretation would cause serious difficulties. For it may be that there is no Munsif's court, but there is only a Civil Judge's court having jurisdiction over the area where headquarter of the Panchayat is situated. On the day on which the election petitioner may want to present his election petition the Civil Judge may be absent. The petition cannot be presented under rule 78 to the District Judge in the absence of the Civil Judge. Nor is order 4, rule 1 C. P. C. applicable to the presentation of an election petition. The proper interpretation of the law in my opinion therefore is that if there is a court of Munsif, but the Munsif is absent, the court should be treated as being closed within the meaning of sec. 4 Limitation Act. In this connection I may refer to some decided cases. In Nur Muhammad vs. Ghulaman (1) the Subordinate Judge of Bamrala used to sit for a week every month at Ludhiana. During his absence at Ludhiana, the plaintiff presented his plaint at Samrala, which was accepted by the Naib Sheriff of the court. No arrangements had been made for the reception of plaints during the absence of the Subordinate Judge from Samrala. The suit was within time when the plaint was presented, but had become time-barred when it was placed before the Subordinate Judge on his return from Ludhiana and was therefore dismissed. It was held that the plaint was not properly presented to the Naib Sheriff as he was not authorized to receive plaints under O. 4, R. 1; but the court at Samrala must be taken to have been closed during the period of his absence and under sec. 4, Limitation Act, that time must be deducted in computing the period of limitation. The same view was taken in the following three cases, Hirania vs. Ram Piari (2), Kirode Chandra Das vs. Ramani Mohan Dhar (3) and K. P. Sinha vs. Jatindra Nath (4 ). Under sec. 29 of the Limitation Act the provisions of sec. 4 of that Act are applicable to the presentation of an election petition under the Rajasthan Panchayat Act. I accordingly hold that the Court of the Munsif, Sawai Madhopur, will be deemed to have been closed upto 1. 3. 65 and the election petition will be deemed to have been presented before the Munsif on 2. 3. 65 when he resumed charge on the expiry of his leave. : The election petition was presented within limitation as the time between 31. 1. 65 and 1. 3. 65 is to be excluded under sec. 4 of the Limitation Act. In view of my above findings the writ petition is dismissed. In the circumstances of the case, I leave the parties to bear their own costs of it. The order staying fresh election is vacated. . ;