ALOK SHARMA,J. - (1.) Under challenge is the order dated 1-5-2017 passed by Senior Civil Judge Tijara District Alwar dismissing petitioner-returned candidate's (hereinafter 'the RC') application under Order 7, Rule 11 CPC.
(2.) Mr. R.P. Singh Senior Advocate appearing with Mr. Shashikant Saini for the RC submitted that the trial court failed to appreciate that the election petition was neither presented by the Election Petitioner (hereinafter 'the EP') nor by a person authorised in writing by her and hence was not maintainable in view of Rule 81 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter 'the Rules of 1994'). He submitted that a perusal of the presentation sheet qua the election petition (Annexure-1 to the petition) indicates that it was presented on 4-2-2015 by an Advocate one Sukhveer Yadav on the purported strength of his Vakalat nama alone which only authorised him to plead and argue the election petition, no more. Presentation of the election petition by a person authorised in writing by the election petitioner cannot relate to the Vakalat nama (Annexure-4 to the petition). Mr. R.P. Singh submitted that although the EP is purported to have signed the order-sheet drawn by the Munsarim, on the same day i.e. 4-2-2015, when the election petition was presented by her Advocate, the said signature from its placement on the order sheet makes it apparent that it was subsequently appended to the order-sheet and in the circumstances, the election petition, not duly presented, was liable to be dismissed forthwith. Mr. R.P. Singh emphatically submitted that trial on an election petition so presented, contrary to law would be a mere futility, an unwarranted drag on the court's precious time and harassment of the RC engaged in public office. Mr. R.P. Singh submitted that the election petition ought to have in the circumstances been dismissed as barred by law under Order 7, Rule 11 (d) CPC. The trial court failed to exercise its salutary jurisdiction in not so doing.
(3.) Mr. R.P. Singh placed reliance on the judgment in the case of G.V. Sreerama Reddy v. Returning Officer, (2009) 8 SCC 736 to contend that presentation of an election petition through petitioner's advocate without the petitioner herself accompanying her was impermissible. Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557 has been relied upon to contend that the power under Order 7, Rule 11 CPC can be exercised at any stage of the suit before the conclusion of the trial. Samar Singh v. Kedar Nath, AIR 1987 SC 1926 was relied upon to contend that the court can exercise its power under Order 7, Rule 11 CPC and reject the election petition even after settlement of issues. Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 was adverted to, to contend that power under Order 7, Rule 11 CPC can be invoked to reject the plaint for non fulfilment of statutory requirements.;