P.C.JAIN, J. - (1.)THE petitioner has filed this petition Under Section 115 C.P.C. against the order dated 24.7.1996 passed by the learned Addl. Distt. Judge, Churu in election petition No. 4/95 by which the learned Addl. Distt. Judge ordered for recounting of the votes that were cast in election of ward No. 9 of Ratan Nagar, Distt. Churu.
(2.)THE relevant facts may be recalled. The election to ward No. 9 of Ratan Nagar, Distt. Churu was held on 27.8.1995. The petitioner contested the above election. After completion of the voting, the result was declared on 28.8.1995 by the appropriate authority and the petitioner was declared duly elected to ward No. 9 of Ratan Nagar Municipal Board. In due course, the petitioner was also elected as the chairman of the Municipal Board, Ratan Nagar. On 26.9.1995, the next defeated candidate, respdt. No. 1 filed an election petition Under Section 36 of the Rajasthan Municipalities Act, 1959 (for short 'the Act') before the learned Distt. Judge, Churu. The election petition was filed on insufficient stamp papers, but, deficiency was made up by respondent No. 1 later on. It appears that the learned Distt. Judge thought it proper to transfer the above election petition from his file to the file of the learned Addl. Distt. Judge and passed an order accordingly. He also directed the parties to be present before the learned Addl. Distt. Judge on 4.11.1995. The petitioner contested the petition and filed reply to the petition on 3.7.1996. On the pleadings of the parties as many as 9 issues were framed on 24.7.1996. The learned Addl. Distt. Judge ordered to decide issues nos. 6, 7 and 8 and arguments were heard. By the impugned order, the learned Addl. Distt. Judge was of opinion that looking to the margin of win, it was necessary in the interest of justice recounting of the votes cast in the election. He, therefore, ordered recounting and fixed 21.8.1996 for recounting of the votes. Aggrieved by the above order, the petitioner has filed this petition. The petitioner has challenged the impugned order on the following two grounds, namely;
(1) According to Section 40 of the Act, such election petition may be presented to and shall be heard by the Distt. Judge sitting at the place where the Municipal Office is situated, or where there is no such district, the Civil Judge so sitting, or other Judge specially appointed by the State Government for the purpose. The proviso to the Section states that where an election petition is presented as aforesaid to a Distt. Judge, he may, for reasons to be recorded in writing, transfer the same for hearing and disposal to a Civil Judge, subordinate to him and sitting at the place where the Municipal Office is situated. In the instant case, the learned Distt. Judge, in flagrant violation, transferred the election petition not to the Civil Judge but to the Addl. Distt. Judge who is not an authority named in Section 40 of the Act to entertain and dispose of the election petition. The learned Addl. Distt. Judge therefore, had no authority to hear the election petition. (2) That the petitioner wanted to lead evidence on issue No. 2 which was with regard to recounting of the votes. The learned Addl. Distt. Judge did not allow the petitioner to lead evidence and without recording evidence of the parties and with no material justifying recounting, ordered the recounting which cannot be sustained in law. In support of this argument learned Counsel has relied on the following rulings -N. Narayan v. Semmalai : [1980]1SCR571 , Satyanarayan Dhoodhani v. Udai Kumar : AIR1993SC367 and Thakhur Sen Negi v. Devraj Negi AIR 1994 SC 2596.

The order of recounting is a material irregularity in exercise of jurisdiction and calls for interference in this revision petition.

(3.)LEARNED Counsel for the non -petitioner, on the other hand, supported the order of the learned Addl. Distt. Judge and submitted that the learned Distt. Judge did not contravene the provisions of Section 40 of the Act by transferring this election petition to the Addl. Distt. Judge. The Addl. Distt. Judge is a subordinate to him.