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S. Lalitha Vs. Returning Officer-Cum-Assistant Commissioner, Kollegala Taluk, Chamarajanagara District and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 53087 & 55141 of 2016 (LB-ELE)
Judge
AppellantS. Lalitha
RespondentReturning Officer-Cum-Assistant Commissioner, Kollegala Taluk, Chamarajanagara District and Others
Excerpt:
.....with order petitions disposed of. (paras 4, 5) comparative citation: 2017 (1) kantlj..........the petitioner. 25. further, for the election petition, limitation of 30 days is fixed under the karnataka panchayat raj act. it is mandatory for the petitioner to present the petition before the court having jurisdiction within the said statutory period. if the petition is returned to the petitioner, and if the petitioner is permitted to present petition before the designated court having jurisdiction, the question of bar of limitation may also come into play. under these facts and circumstances, i am of the opinion the power under order 7, rule 10of cpc cannot be excised to the election petition and the petition cannot be returned to the petitioner with liberty present the same before the court having competent jurisdiction. hence, i find no merits in ia no. 3 filed by the petitioner.....
Judgment:

Vineet Kothari, J.

1. The petitioner has assailed the order dated 28-7-2016 passed by the learned Senior Civil Judge and Judicial Magistrate First Class, Kollegal, allowing the application filed by the 2nd respondent under Order 7, Rule 11 of Civil Procedure Code, 1908, while rejecting the application filed by the present petitioner under Order 7, Rule 10 of CPC for return of the plaint of election petition filed by the present petitioner.

2. The reasons assigned by the learned Court below in the impugned order is quoted below for ready reference:

"24. The Karnataka Gram Swaraj and Panchayat Raj Act, 1993 does not contain any provision regarding returning of the petition. The amended Act has also not given any power to the Court having no jurisdiction to return the election petition to submit the same before the Court having competent jurisdiction. Section 24-A as discussed earlier only empowers the Court to transfer the pending election petitions to the Court of competent jurisdiction after the commencement of Amended Act. It does not provides for returning of the election petition filed before the Court having no jurisdiction. It is to be noted here that, in the objection statement filed by the petitioner herself to IA No. 1 has contended that, the provisions of Order 7, Rule 11 of CPC will not be applicable to the election petition and it is applicable only to the suits. The said proposition of law is also admitted by the petitioner.

25. Further, for the election petition, limitation of 30 days is fixed under the Karnataka Panchayat Raj Act. It is mandatory for the petitioner to present the petition before the Court having jurisdiction within the said statutory period. If the petition is returned to the petitioner, and if the petitioner is permitted to present petition before the Designated Court having jurisdiction, the question of bar of limitation may also come into play. Under these facts and circumstances, I am of the opinion the power under Order 7, Rule 10of CPC cannot be excised to the election petition and the petition cannot be returned to the petitioner with liberty present the same before the Court having competent jurisdiction. Hence, I find no merits in IA No. 3 filed by the petitioner under Order 7, Rule 10 of CPC. As it is discussed earlier this Court has no jurisdiction to entertain the petition and as such the election petition is deserves to be dismissed under Section 17 of the Act. Since this Court has no jurisdiction to entertain the petition, the question of determining non-compliance of other statutory provisions by the petitioner does not arises. Even though the provisions of Order 7, Rule 11 read with Section 151 of CPC is not applicable to the election petition, but IA No. 1 is also filed under Section 17 of the Karnataka Panchayat Raj Act. As such I am of the opinion IA No. 1 filed by the petitioner is maintainable under law. Since, the petitioner has proved that this Court has no jurisdiction to entertain the petition, I am of the view that I.A. No. 1 is deserves to be allowed. Accordingly I answer Point No. 1 is affirmative and Point No. 2 is negative.

26. Point No. 3.-For the discussion above made, I proceed to pass the following order. -

ORDER

IA No. 1 is filed by respondent 2 under Section 17 read with Order 7, Rule 11 and Section 151 of CPC is hereby allowed.

IA No. 2 is filed by petitioner under Order 7, Rule 10 of CPC is hereby dismissed.

Consequently, the election petition filed by the petitioner under Section 171(1) of Karnataka Panchayat Raj Act, 1993 is hereby dismissed on the ground that, this Court has no jurisdiction to entertain the petition.

No orders to cost."

3. The learned Counsel for the petitioner has urged that in view of the amendment in the provisions of the Act, since the Designated Court for challenging the elections held in the Zilla Panchayaths after this amendment was notified, to be that of "District Judge" as per Section 2(9-A) of the Karnataka Gram Swaraj and Panchayat Raj Act, 2003, therefore, the learned Court below, where the earlier election petition was filed, ought to have returned the plaint filed under Order 7, Rule 10 of CPC instead of dismissing the same filed under Order 7, Rule 11of CPC.

4. Having heard the learned Counsel for the petitioner, this Court is satisfied that the petitioner can approach the District Judge who is the Designated Court now after the amendment in law by filing election petition with an application filed under Section 14 of the Limitation Act, 1963, seeking condonation of delay, if any, in filing the election petition before the said Designated Court, which will be considered in accordance with law and decided by the said Designated Court without being influenced by any observations made in this order or the order passed by the Court below.

5. With the aforesaid observations, these writ petitions are disposed of without interfering with the impugned order. No costs.


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