JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution against an order of the Munsif, Rajgarh, acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960, allowing Badri respondent No. 3 to prosecute an election petition filed by Prabhu Singh who withdrew from it. The election petition has been contested on behalf of Badri.
(2.) CHHITARMAL petitioner, Prabhu Singh respondent No. 3 and Shri Kishan respondent No. 4 contested the election to the office of Sarpanch on 4. 1. 65. Chhitar Mal was declared as duly elected. His election was challenged by an election petition by Prabhu Singh. Badri and Shri Kishan who were the other defeated candidates were impleaded as respondents to this election petition. Badri filed a written statement supporting the election petition. During the pendency of the election petition Badri filed an application on 9. 4. 65 before the Tribunal praying that either he may be transposed as an election petitioner in place of Prabhu Singh or the latter should not be allowed to withdraw his election petition. This application was not accompanied by a security deposit of Rs. 50/ -. A copy of this application was delivered to Prabhu Singh on 26. 4. 65. On the same day he filed an application withdrawing the election petition and prayed for the refund of the security deposit. After hearing the parties the Tribunal passed an order on 21. 10. 65 allowing Prabhu Singh to withdraw the election petition as well as the security deposit, transposing Badri as an election petitioner and directing him to deposit Rs. 50/- as security within two days. Badri deposited the security on 23. 10. 65 and was treated as an election petitioner. Against this order the present writ petition has been filed. Having heard the learned counsel for the parties I am satisfied, that as held by their Lordships of the Supreme Court in Amin Lal vs. Hunna Mal (l), the provisions of order 1, rule 10 C. P. C. are applicable to an election petition subject to the law of Limitation. So far as Badri is concerned he was made a party within the limitation prescribed under rule 78 for presenting an election petition. He could be transposed as an election petitioner provided that he furnished the necessary security along with his application for transposition or at any rate before Prabhu Singh filed his application for withdrawal. For rule 79 (2) lays down that no petition shall be deemed to have been presented under these Rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party. Although strictly speaking Badri did not present the election petition he will be deemed to have presented the election petition within the meaning of rule 79 (2) when he filed an application for being transposed as an election petitioner. As was held in Ram Pratap vs. Yasin Mohammed (2) the Tribunal was bound to dismiss the election petition of Prabhu Singh as soon as he filed an application for withdrawal on 26 4-65. The election petition will be deemed to have been dismissed on that date as having been withdrawn. By then the security deposit had not been made by Badri. The result was that in the eye of law after Prabhu Singh had filed his application for withdrawal there was no election petition pending against the petitioner. If however Badri had made the security deposit along with his application for transposition before Prabhu Singh filed his application for withdrawal he would have been validly transposed as an election petitioner and could have prosecuted the election petition filed by Prabhu Singh. I accordingly allow the writ petition and hold that the election petition against the petitioner stood dismissed on 26. 4. 65 and Badri cannot be transposed as an election petitioner as he did not make security deposit by that date. In the circumstances of the case, I leave the parties to bear their own costs of this writ petition. .;