Harry Griffin and Chamier, JJ.
1. The appellant and the respondent were rival candidates for a seat on the municipal board of Bareilly at an election held on the 18th of March, 1911. The respondent having been declared to have been duly elected, the appellant on the 24th of March, contested the validity of the election by a petition presented to the District Magistrate. On the 10th of May that petition was rejected, and on the following day the appellant brought this suit in the court of the Subordinate Judge of Bareilly claiming a declaration that he had been elected by a majority of the lawful votes given and, in the alternative, a declaration that the election was void having been held under rules which had been cancelled. This Court has already held that the suit is cognizable by a civil court, but the suit has been dismissed by an appellate order of the District Judge on the ground that the election was held under rules made in 1884, one of which barred jurisdiction of the civil court, and the appellant was not entitled to maintain this suit under some new rules made in July, 1910, or under Section 9 of the Specific Relief Act. The suit is obviously one of a civil nature, and it is unnecessary to cite authority for the proposition that it is maintainable in a civil court, unless it is barred by some Act of the Legislature or by some rule having the force of law.
2. Rules regarding elections of this kind in Bareilly were made in 1884 under Section 10 of Act XV of 1883. Rule No. 45 provided that the validity of an election might be questioned by petition to the District Magistrate presented within fifteen days of the election. Those rules were superseded by rules made in July, 1910, under Section 187 of the Municipalities Act, 1900, one of which expressly recognized the right of recourse to a 'competent court' to challenge the election. This Court has held [see Gur Charan Das v. Har Sarup (1912) I.L.R., 34 All., 391] that the competent court is the civil court. It is quite clear that the election now in question ought to have been held under the rules of July, 1910. The Local Government seems to have directed that this election should be held under the rules of 1884. That order does not appear to be a rule made under the Act, but appears to be merely an executive instruction to the Magistrate. The only rules of which we can take notice are the rules made under the Act. We must, therefore, hold that the election was contrary to law.
3. We have grave doubts whether the Government was competent to bar the jurisdiction of the civil court by means of a rule made under Section 10 of the Act of 1883. The respondent relies upon Clause (g) of Section 9 read with Section 10 of the Act, but that clause refers only to 'the system of representation and of election'. It is, however, unnecessary to decide this question, for the rules made under the Act of 1883 had ceased to have any effect before the election now in question was held. It is admitted that the election was not held under the rules of July, 1910, and cannot be justified by those rules. For the above reasons we hold that at the date of the election there was no provision having the force of law which barred the maintenance of the present suit. The suit was, therefore, maintainable. On the merits the appellant is entitled to a declaration that the election of the respondent was void having been held contrary to law.
4. The only other question is whether the suit was brought within time. The period of limitation prescribed by the rules of 1884 may be disregarded, both because it applies only to a petition to be presented to the District Magistrate and because those rules had ceased to have any effect when the election was held. If the rules of 1884 are disregarded, the limitation applicable to the present suit is that prescribed by Article 120 of Schedule 1 to the Limitation Act, 1908, and the suit was brought within time. We express no opinion upon the question of the validity of the rule made under Section 187 of the Municipalities Act, 1900, which prescribes a period of limitation for a suit to contest an election held under the rules of July, 1910.
5. We allow this appeal, set aside the decree of the court below, and give the appellant a declaration that the election of the respondent was invalid. The respondent must pay the appellant's costs in all three courts.