G Y BHANDARE Vs. ERASMO DE JESUS JACK SEQUEIRA

JUDGEMENT

(1.) This is a petition filed for granting temporary injunction restraining the first respondent from attending the Lok Sabha and performing his duties as member of the Lok Sabha, till the disposal of the election petition. The first respondent filed counter opposing the petition. Preliminary objection raised on his behalf is that this Court has no jurisdiction to grant the temporary injunction prayed for. In support of that objection decision of the Allahabad High Court in Rameshwar Dayal v. Sub Divisional Officer, Ghatampur, 1963 AIR(All) 518 was cited. It was decided in that case that Rule 25 of the U.P. Panchayat Raj Rules lays down that subject to the provisions of the Act and the Rules every election petition will be tried by the Sub-Divisional Officer as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code 1908, to the trials of the suits, that the Sub-Divisional Officer trying an election petition following the procedure .laid down in the Civil Procedure Code for the trial of the suits has no power to grant temporary injunction, that injunction is a matter of power and not of procedure and that the language used in Rule 25 of the U.P. Panchayat Raj Rules is exactly similar to that used in Section 90(2) of the Representation of the People Act 1951. That decision was given keeping in view the fact that Section 92 of the Representation of the People Act conferred certain powers on the election tribunal in respect of the discovery and inspection and enforcing the attendance of witnesses etc. and if it was held that the election tribunal had been invested by Section 90(2) of the Representation of the People Act all the powers conferred upon the courts by the Civil Procedure Code , Section 92 of that Act would be wholly redundant. The Representation of the People Act 1951 was amended in 1966 and Section 92 of that Act was repealed. The present Section 87 of the Representation of the People Act provides that the High Court subject to the provisions of the Act and of any rules made thereunder shall try election petitions as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. When Section 92 has been repealed the decision of the Allahabad High Court cited on behalf of the first respondent cannot be of any use to him. The Supreme Court in R.M. Seshadri v. G.V. Pai, 1969 AIR(SC) 692 held:-

(2.) The point now to be determined is whether the petition is fit to be allowed. The petitioner contends that he filed this petition under Order 39, Rule 2, Civil Procedure Code I am unable to understand how this petition can come under that Rule. Even if it is considered that the election petition is a suit it cannot be said that it is a suit for restraining the respondent from committing any breach of contract or other injury of any kind. Temporary injunction under Order 39 Rule 2 can be granted only if the suit is for restraining the defendant from committing breach of contract or other injury of any kind. The election petition was not filed for that purpose and so this petition which is for granting the temporary injunction cannot be granted. The petition is rejected.