S. K. MAL LODHA, J. - (1.) THIS is a revisional application under Section 115 of the Code of Civil Procedure against the order of the Munsif, Churu dated March 30, 1978 passed in Election Petition No 7 of 1978 by which he accorded permission for amendment of the election petition to the non-petitioner.
(2.) A few facts deserve recall here. The non-petitioner filed an election petition under rule 78 of the Rajasthan Panchayat & Nyaya Panchayat Election Rules, 1960, hereinafter referred to as "the Rules") on March 15, 1978 praying therein that the election of the petitioner declared illegal and the non petitioner be declared as duly elected Sarpanch to the Gram Panchayat Khinwasar, Tehsil Churu. The non-petitioner moved an application under order VI, rule 17 CPC on March 27, 1978 stating that he may be allowed to amend the election petition by making necessary amendments. It was also mentioned that up to that stage notice to the petitioner has not been issued. The learned Munsif by his order dated March 30, 1978 accepted the application under order VI, rule 17, C. P. C. and ordered that since notice has not been sent to the petitioner so far, now notice be issued and the amended election petition be sent with it. Being aggrieved by the order dated March 30, 1978, the petitioner has come up in revision before this Court. A preliminary objection was raised by Mr. R. N. Bishnoi, learned counsel for the non-petitioner, that the revision application against the order dated 30. 3. 78 is not maintainable because the Munsif while trying an election petition under rule 78 of the Rules is not a court subordinate to the High Court and, therefore, his orders cannot be revised under Section 115 C. P. C. Mr R. N. Bishnoi, learned counsel for the non-petitioner has placed reliance on Keshri Prasad vs. Bodhraj (l) and Keshav Dev vs. Radhey Shyam, 2 ). Mr. K. N. Joshi. learned counsel for the petitioner, in reply to the preliminary objection, argued that the Munsif, while trying an election petition under rule 78 of the Rules, is not a persona designata and, therefore, his orders are revisable. Mr. K. N. Joshi, learned counsel for the petitioner, invited my attention to Bhonwri Singh vs. Dy. C. M. E. Loco Shops, Western Railway, Ajmer (3), Central Talkies Ltd. , Kanpur vs. Dwarka Prasad, 4), Sheo Shankar Choubey vs. The Bihar Hindu Religious Trust Board, 5), Rameshwar Lal vs. Jogendra Das, 6), Surendra Mohan vs. Dharam Chand Abrol (7), Badrinath Gupta vs. Estates Officer, Controller of Aerodromes) (8) and Thakur Das, dead) by LRs. , vs. State of Madhya Pradesh, 9) In order to appreciate the rival contentions of the learned counsel for the parties, I may read the relevant portion of rule 78, which is as under: - "78. Manner of challenging an election or co-option under Rules: - The election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up-Sarpanch of a Panchayat or as the member or Chairman of a Nyaya 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 or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds. " Rule 79 of the Rules provides as to who can present election petition. Rule 83 of the Rules deals with the procedure for hearing of an election petition. The material portion of this rule for the present purpose is as under:- "83. Hearing of petition: - The procedure provided in the Code of Civil Procedure,, Central Act V of 1908), in regard to suits, shall, in so far as it can be made applicable, be followed in the hearing of the petition: Provided that - (a ). . . . . . . . . (b) the Munsif or the Civil Judge, as the case may be, shall not be required to record evidence in full but shall only make a memorandum thereof sufficient in his opinion for 1908 the purpose of deciding the petition. (c ). . . . . . . . . (d) the Munsif, or the Civil Judge, as the case may be, shall only be bound to require the production of, or to receive, so much evidence, oral or documentary, as he considers necessary, and (e ). . . . . . . . . " Rule 84 of the Rules provides for power of the court hearing the petition. The material portion of it for the present purpose reads as under:- "84 Power of court hearing petitions.- The Munsif or the Civil Judge, as the case may be, hearing a petition shall have the same powers and privileges as a Judge of a Civil Court when trying a suit and may for the purpose of serving any notice or issuing any process or doing any other thing, employ an officer, clerk or peon attached to his court: Provided. . . . . . . . . . . . "
(3.) OTHER three important rules, which deserve mention here, are the Rr. 85, 86 and 86 A. Sub-r. 2 of r. 85 lays down that the Munsif or the Civil Judge, as the case may be, after pronouncing the order made under sub r. , 1) shall send a copy thereof to the Collector for taking further necessary action in pursuance thereof. Rule 86 of the Rules provides for the execution of order as to costs and amongst others lays down that "any order with regard to costs passed by the Munsif or the Civil Judge shall be executed by him on application made in that behalf in the same manner and by the same procedure as if it were a decree for the payment of money made by himself in a suit. Rule 86-A of the Rules makes provisions for general power of transfer or withdrawal. It provides that the District Judge within whose jurisdiction the place of headquarter of the Panchayat or Nyaya Panchayat, as the case may be, is situated, may at any stage of the proceedings withdraw any petition pending in the Court of any Munsif or Civil Judge subordinate to him, and - (i) try or dispose of the same or (ii) transfer the same for trial or disposal to the court of any other Munsif or Civil Judge within his jurisdiction, or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. In the light of these provisions of the Rules, It is to be determined whether the revision under Section 115 C. P. C. lies against an order of the Munsif acting as an Election Tribunal rule 78 of the Rules or not? In Surendra Mohan's case, 7), it has been observed: - "where the authority has been empowered to act judicially and possesses all the trappings of a court and has to abide by the rules of evidence then its selection by designation must be presumed to be as a court and not a person a designata. " In Badrinath Gupta's case, 8), it was held that the District Judge while hearing the appeal under section 9 of the Public Premises, Eviction of Unauthorised Occupants) Act, 1971 does not act as a persona designata but acts as a Civil Court subordinate to the High Court and that the District Judge has been prescribed as the appellate authority not in his personal or individual capacity but by virtue of the post that he is holding and no District Judge has either been designated as the appellate authority by name nor has any District Judge been singled out for functioning as the appellate authority. It was further held that moreover, the nature of his duties enjoined upon him to act judicially and he possesses all the trappings of a Court. The term "persona designata" in connection with the provisions of the Essential Commodities Act, 1955 came up for consideration before their Lordships of the Supreme Court in Thakur Dass's case, 9 ). The Sessions Judge was appointed as an appellate authority by the State Government under S. 6c of the Essential Commodities Act. In that connection it was observed: "the Sessions Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior criminal court in relation to High Court. Therefore, against the order made in exercise of powers conferred by sec. 6c, a revision application would lie to the High Court and the High Court would be entitled to entertain a revision application u/secs. 435 and 439 of the Code of Criminal Procedure, 1898, which was in force at the relevant time and such revision application would be competent. " In these circumstances, it was held that the Sessions Court is not persona designata. Reliance was placed in Badrinath Gupta's case, 8) on Surendra Mohan's case, 7) ;