ALOK SHARMA,J. - (1.) The only contention of Mr. Kamlakar Sharma Senior Counsel appearing for the petitioner-returned candidate (hereinafter 'the returned candidate') is that the impugned judgment passed by the Senior Civil Judge, Mahuwa, District Dausa (hereinafter 'the trial Court') on 22.11.2016 setting aside the returned candidate's election is vitiated inasmuch it was passed on the subsequent election petition filed when the earlier one on the same cause of action was pending. It has been submitted that thereafter the earlier petition was withdrawn without liberty to continue with the subsequent/second petition on the same cause of action. He submitted that the second election petition was not maintainable under Order 2, Rule 2 CPC read with Order 23, Rule 1 (4) CPC. And the trial Court has misdirected itself in relying upon the judgment of the Punjab and Haryana High Court reported in AIR 1985, page 219 to hold that if a second election petition is filed during the pendency of the first the provisions of Order 23, Rule 1 of CPC would not attract. So holding it then proceeded to allow the subsequent election petition on the same casue of action filed by the election petitioner setting aside the petitioner returned candidate's election. Mr. Kamlakar Sharma, submitted that the Trial Court overlooked the binding judgment of the Apex Court on the issue in the case of Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited, 2013 (1) SCC page 625. He referred to para 17 of the said judgment which reads as under:- "17. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in R. Vimalchand v. Ramalingam , holding that the provisions of Order 2, Rule 2 of the CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2, Rule 2 (3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order 2, Rule 2 of the CPC as already discussed by us, namely, that Order 2, Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2, Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 2, Rule 2 of the CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram and by the Bombay High Court in Krishnaji v. Raghunath. "
(2.) Mr. Gajendra Singh Rathore appearing for the respondent election petitioner (hereinafter 'the election petitioner') has relied upon the judgment of the Apex Court in the case of Kandapazha Nadar and Ors. v. Chitraganiammal and Ors. reported in 2007 DNJ (SC) Page 777 and in the case of Vimlesh Kumari Kulshresthas Sambhajirao and Anr. reported in 2008 DNJ (SC) 146 to contend that a second election petition filed during the pendency of the first election petition would not attract either Order 2, Rule 2 CPC or Order 23, Rule 1 of CPC. He submitted that aside of the merits of the matter even otherwise this Court should not entertain the petition at all in the exercise its equitable extraordinary discretionary jurisdiction and it is not obliged to interfere where, as in this case, setting aside of the Trial Court's order would entail upholding, the election of the petitioner returned candidate's despite his ineligibility for reason of his having been charged for several offences at the time of the election and being subject to a criminal trial.
(3.) Mr. Kamlakar Sharma, in rejoinder submitted that the issue with regard to the maintainability of the second election petition filed by the election petitioner during the pendency of the first which was then withdrawn without liberty to pursue the second filed on the same cause of action, is an issue of public importance as both Order 2, Rule 2 as also Order 23, Rule 1 CPC encapsulate public policy against multiplicity of litigation. It was submitted that the trial Courts should not be left to usurp jurisdiction where law bars it. It was submitted that the second election petition on the same cause of action not being maintainable a judgment thereon is non-est and cannot sustain. Mr. Kamlakar Sharma, finally submitted that the law clearly without exception is that an election on the post of Sarpanch can only be set aside in a duly constituted election petition. The one under which the returned candidate's election has been set aside not so being, this Court should not obfuscate the issue by a focus on the alleged ineligibility of the returned candidate on the basis of evidence recorded in a petition not at all maintainable. So doing would result in the Court suomoto exercising jurisdiction and proceedings as if in a petition for a writ of quo warranto.;