# Shahnawaj Ali v. Election Tribunal D.J. Muzaffarnagar & Ors

- **Citation:** (2024) 5 ILRA 1214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** Writ-C No. 27653 of 2023
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahnawaj-ali-v-election-tribunal-d-j-muzaffarnagar-ors-52024
- **Pages:** 11

## Headnote

Civil Law - U.P. Municipalities Act, 1916 -
Section20 - Prescribed Period of Limitation
for
Election
Petition
-
Presentation,
Admission, and Registration of Election
Petition - Applicability of Limitation Act and
General Rules - Period of Limitation: As per
Section 20 of the Act, an election petition
should be presented "within 30 days" after
the result of the election is announced by the
Returning Officer. The phrase "within 30
days" starts from the date when the result is
announced - Meaning of "Presented": The
word "presented" in the context of an
election petition conveys the act of giving,
filing, or delivering the petition. Presentation
is completed at the moment the petition is
given or delivered to the competent authority
- General Clauses Act, Section 10: If the
limitation period expires during a vacation,
the first opening day after the vacation is
considered the last day of limitation - General
Rules (Civil), 1957, Rules 13 & 32: During the
vacation period, except with the consent of
parties, no suit or case shall be heard on
declared holidays - Limitation Act: 1916 Act
does not provide specific provisions for the
applicability of Limitation Act except Section
12(2) in view of the Proviso to Section 23 of
1916 Act - Order IV, CPC: According to Rule
1, every suit is instituted by presenting a
plaint to the Court. Rule 2 requires the Court
to register the particulars of every suit in a
register. Admission and registration of a
plaint are distinct from its presentation and
are subsequent events subject to removal of
defects (Para 15, 16)

Civil Law - U.P. Municipalities Act, 1916 -
result of the election was declared on
13.05.2023 - Prescribed period of limitation
for filing the election petition was up to
12.06.2023 - Respondent filed the election
petition on 09.06.2023, along with an
application under Rule 13 of the General
Rules (Civil), 1957, seeking permission to file
the petition during the vacation period -
Application for leave was rejected due to
opposition by the returned candidate - A
second attempt was made on the opening
day after vacation, i.e., 01.07.2023, but
permission was again not granted due to the
petitioner's absence - Ultimately, the election
petition was admitted and registered on
03.07.2023 - Issue - Whether the election
petition filed by the respondent was within
the prescribed period of limitation ? - Held -
respondent demonstrated bona fides by
making sincere attempts to file the election
petition within the prescribed period of
limitation (i.e., 30 days from the declaration
of results) - Petition was not admitted and
registered
immediately
only
due
to
procedural delays (Para 19)

Dismissed. (E-5)

List of Cases cited:

## Text

1214 INDIAN LAW REPORTS ALLAHABAD SERIES
29, 30, 31, 32 & 33 of the judgment the
Supreme Court held held thus:

"29. It could thus clearly be seen that
the Court has carved out certain exceptions
when a petition under Article 226 of the
Constitution could be entertained in spite of
availability of an alternative remedy. Some of
them are thus:
(i) where the statutory authority has
not acted in accordance with the provisions of
the enactment in question;
(ii) it has acted in defiance of the
fundamental principles of judicial procedure;
(iii) it has resorted to invoke the
provisions which are repealed; and
(iv) when an order has been passed in
total violation of the principles of natural
justice.
30. It has however been clarified that
the High Court will not entertain a petition under
Article 226 of the Constitution if an effective
alternative remedy is available to the aggrieved
person or the statute under which the action
complained of has been taken itself contains a
mechanism for redressal of grievance.
31. Undisputedly, the present case
would not come under any of the exceptions as
carved out by this Court in the case of Chhabil
Dass Agarwal (supra).
32. We are therefore of the considered
view that the High Court has grossly erred in
entertaining and allowing the petition under
Article 226 of the Constitution.
33. While dismissing the writ petition,
we will have to remind the High Courts of the
following words of this Court in the case of
Satyawati Tondon (supra) since we have come
across various matters wherein the High Courts
have been entertaining petitions arising out of
the DRT Act and the SARFAESI Act in spite of
availability of an effective alternative remedy:
"55. It is a matter of serious concern
that despite repeated pronouncement of this
Court, the High Courts continue to ignore the
availability of statutory remedies under the DRT
Act and the SARFAESI Act and exercise
jurisdiction under Article 226 for passing orders
which have serious adverse impact on the right
of banks and other financial institutions to
recover their dues. We hope and trust that in
future the High Courts will exercise their
discretion in such matters with greater caution,
care and circumspection."
(Emphasis added)

12. The case in hand also does not
fall in the exception clauses.

13. In view of the above,
preliminary objection raised by the learned
counsel for the contesting respondent - bank
is upheld.

14. The petition thus lacks merit
and is, accordingly dismissed on the ground
of alternative remedy.

15. Liberty rests with the petitioner
to avail the alternative remedy, if so advised.

16. Subject to the aforesaid liberty,
this petition is dismissed and is, accordingly,
consigned to records.
----------
(2024) 5 ILRA 1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ-C No. 27653 of 2023

Shahnawaj Ali ...Petitioner
Versus
Election Tribunal D.J. Muzaffarnagar & Ors.
 ...Opp. Parties

Counsel for the Petitioner:
5 All. Shahnawaj Ali Vs. Election Tribunal D.J. Muzaffarnagar & Ors.
1215
Ravi Ananad Agarwal, Shreya Gupta

Counsel for the Opp. Parties:
Vivek Kumar Singh

Civil Law - U.P. Municipalities Act, 1916 -
Section20 - Prescribed Period of Limitation
for
Election
Petition
-
Presentation,
Admission, and Registration of Election
Petition - Applicability of Limitation Act and
General Rules - Period of Limitation: As per
Section 20 of the Act, an election petition
should be presented "within 30 days" after
the result of the election is announced by the
Returning Officer. The phrase "within 30
days" starts from the date when the result is
announced - Meaning of "Presented": The
word "presented" in the context of an
election petition conveys the act of giving,
filing, or delivering the petition. Presentation
is completed at the moment the petition is
given or delivered to the competent authority
- General Clauses Act, Section 10: If the
limitation period expires during a vacation,
the first opening day after the vacation is
considered the last day of limitation - General
Rules (Civil), 1957, Rules 13 & 32: During the
vacation period, except with the consent of
parties, no suit or case shall be heard on
declared holidays - Limitation Act: 1916 Act
does not provide specific provisions for the
applicability of Limitation Act except Section
12(2) in view of the Proviso to Section 23 of
1916 Act - Order IV, CPC: According to Rule
1, every suit is instituted by presenting a
plaint to the Court. Rule 2 requires the Court
to register the particulars of every suit in a
register. Admission and registration of a
plaint are distinct from its presentation and
are subsequent events subject to removal of
defects (Para 15, 16)

Civil Law - U.P. Municipalities Act, 1916 -
result of the election was declared on
13.05.2023 - Prescribed period of limitation
for filing the election petition was up to
12.06.2023 - Respondent filed the election
petition on 09.06.2023, along with an
application under Rule 13 of the General
Rules (Civil), 1957, seeking permission to file
the petition during the vacation period -
Application for leave was rejected due to
opposition by the returned candidate - A
second attempt was made on the opening
day after vacation, i.e., 01.07.2023, but
permission was again not granted due to the
petitioner's absence - Ultimately, the election
petition was admitted and registered on
03.07.2023 - Issue - Whether the election
petition filed by the respondent was within
the prescribed period of limitation ? - Held -
respondent demonstrated bona fides by
making sincere attempts to file the election
petition within the prescribed period of
limitation (i.e., 30 days from the declaration
of results) - Petition was not admitted and
registered
immediately
only
due
to
procedural delays (Para 19)

Dismissed. (E-5)

List of Cases cited:
1. Sumitra Devi Vs Special Judge/Additional
District & Sessions Judge, E.C. Act, Hardoi & ors.
dt 12.6.2020

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Ms. Shreya Gupta, learned
counsel for the petitioner, Shri Vivek Kumar
Singh, learned counsel for the respondent
no.2 and perused the record on board.

2. Petitioner has invoked the
extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India
assailing the order dated 03.7.2023 passed by
District
Judge,
Muzaffarnagar
whereby
election petition filed on behalf of respondent
No.2
under
section
20
of
the
U.P.
Municipalities Act, 1916 (in brevity 'Act,
1916'.) has been admitted and ordered to be
registered as well as, simultaneously, notices
were ordered to be issued to the defendant
Nos. 2 to 11.

3. Facts culled out from the record
are that election of Nagar Palika Parishad,
Khatauli, District Muzaffarnagar was held
on
04.5.2023
in
pursuance
of
the
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
notification promulgated on 09.4.2023. The
present
petitioner
has
been
declared
successful as President of Nagar Palika
Parishad. Having been aggrieved with the
result of the election declared on 13.5.2023,
respondent No. 2 has filed an election
petition on 09.06.2023 under Sections 19
and 20 of Act, 1916. Aforesaid election
petition was filed during summer vacation
along with an application under Rule 13 of
General Rules (Civil), 1957 (in brevity
'Rules, 1957') with a prayer to entertain the
election petition. Said application was
rejected, vide order dated 09.6.2023, and
next date fixed viz. 02.07.2023 for hearing
on admission of the election petition. On the
first opening day, after summer vacation, in
the month of July i.e. 01.7.2023, the election
petitioner
has
moved
miscellaneous
application to entertain and register the
election petition inasmuch as 01.07.2023
was the last date for the purpose of
limitation
to
register
the
same
and
02.07.2023, already fixed in the matter, was
Sunday. Learned District Judge has rejected
said miscellaneous application on the same
day i.e. 01.7.2023 and fixed next date on
3.7.2023 for registration of the election
petition. On the next date fixed i.e. 3.7.2023,
election petition has been admitted and
ordered to be registered, which is under
challenge before this Court.

4. Learned Counsel for the
petitioner,
while
assailing
the
order
impugned dated 03.7.2023, has advanced
two fold submissions; first, regarding the
delay in filing the election petition on the
ground that under section 20 of the Act,
1916 prescribed period of limitation is only
30 days since the date of result announced.
However, in the instant matter, election
petition has been filed and entertained on
03.7.2023, therefore, election petition was
filed at belated stage. She has laid emphasis
on Section 10 of General Clauses Act, 1963
and tried to submit that first opening day i.e.
01.7.2023 was the last date of limitation to
entertain the election petition under section
20 of Act, 1916. However, election petition
has been filed and entertained on 03.7.2023,
thus, election petition was time barred. It is
further submitted that law relating to the
election petition is a special law, therefore,
same may strictly be adhered to without any
relaxation or laxity at the part of any party.
The prescribed period of limitation as
enunciated under Section 20 of the Act,
1916 is mandatory in nature. Therefore,
court cannot extend the prescribed period of
limitation for filing the election petition on
its own wisdom unless there is a provision
under the law to condone such delay. It is
next submitted that previously the election
petition was refused to be registered twice
vide orders dated 09.6.2023 and 01.7.2023
respectively, however, same have not been
assailed before any competent court,
therefore, aforesaid orders became final
between the parties qua registering and
admitting an election petition filed by
respondent No 2.

5. Learned counsel for the
petitioner, in her second submission, has
questioned maintainability of the election
petition on two grounds; first, non-joinder of
the State as a defendant in the election
petition inasmuch as three State officers are
arrayed as defendants No.9 to 11 in the cause
title of the election petition, however, State
has not been impleaded through authority
competent and, second ground taken, qua
method to present the election petition, with
a plea, that same was not presented by the
election petitioner himself rather it was
presented through counsel, therefore, same
is filed in violation of the provisions as
enunciated under Section 20 of the Act,
1916. In support of her submission, learned
5 All. Shahnawaj Ali Vs. Election Tribunal D.J. Muzaffarnagar & Ors.
1217
counsel for the petitioner has cited following
judgments:-

1.
Sumitra
Devi
Vs.
Special
Judge/Additional District and Sessions
Judge, E.C. Act, Hardoi and others decided
by this Court on 12.6.2020.
2. Mahendra Vs. State of Up and
others, 2021 0 Supreme (All) 474
3. Akhilesh (Dr. Akhilesh Kumar
Dwivedi Vs. Shri Ramesh Chand), Neutral
Citation 2023: AHC: 157150
4. Ansar Ahmad Vs. Sub-Divisional
Officer, kairana and others, AIR 1998
Allahabad 341.
5. Smt. Sharda Devi Vs. State of UP
through Secretary and others Neutral
Citation 2012: AHC: 158098.
6. Reji Thomas and others Vs. The
State of Kerala and others, 2018 0 AIR (SC)
2236.
7. Ram Nath Priyadarshi Suman Vs.
The Chief Election Commissioner or India
and three others, Neutral Citation No.
2021:AHC:71133
8. Smt. Phool Kumar Vs. Subdivision Officer, Tehisl Maholi District
Sitapur and others in Misc. Single No. 7620
of 2020 decided on 9.11.2020
9. Mohan Lal and another Vs. State
of UP through Secretary in Election Petition
No. 1 of 2014 decided on 18.4.2014.
10. Smt. Sushma Vs. Sub-Divisional
Magistrate, Kairana and 23 others, Neutral
Citation No. 2017:AHC:77353.
11. Viresh Kumar Tiwari Vs.
Additional District Judge and others,
Neutral Citation No. 2013:AHC:177152.
12. G.V. Sreerama Reddy and
another Vs. Returning Officer and others in
Civil Appeal No. 6269 of 2008 decided on
11.8.2009.

6. Per contra, learned counsel for
the private respondent No.2 (election
petitioner) has contended that the case was
presented well within time on 09.06.2023 as
required under Section 20(1) of the Act,
1916, however, hearing of the case has been
deferred,
after
vacations,
for
dated
02.07.2024. Apart from that, vide order
dated 01.07.2023, presence of the election
petitioner has been acknowledged and the
next
date
fixed
on
03.07.2023
for
registration of plaint after hearing the
opposite party no.1 in the election petition
(petitioner herein). Application under Rule
13 of the Rules, 1957 has been numbered as
Misc. Case No.195 of 2023 whereby it is
evident that election petition was presented
within time. Learned counsel for the
respondent No. 2 has tried to submit that
presentation was done well within time and
normal date was fixed for admission and
registration of the plaint, therefore, election
petition cannot be treated to be filed beyond
prescribed period of limitation. It is further
contended that other submissions, as
advanced by learned counsel for the
petitioner, are still to be adjudicated upon by
the election tribunal, thus, the same cannot
be adjudicated directly before this Court.
The instant writ petition is liable to be
dismissed being misconceived and devoid
on merits.

7. In rejoinder, learned counsel for
the petitioner submits that the District Judge
has passed the order dated 09.06.2023,
01.07.2023 and 03.07.2023 in a very
perfunctory manner by using the words
'Panjikrit' and 'Angikrit' etc. which is not
sustainable in the eyes of law. Plea of equity
cannot be entertained in the matter of
election petition inasmuch as election law is
an special provision to entertain the election
petition. It is next submitted that the election
petition was filed on 03.07.2023 and
registered on 04.07.2023, which is evident
from Annexure-SA-1 to the Supplement
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
Affidavit filed by the petitioner. It is next
submitted that owing to non-joinder of State
of U.P., who is a necessary party under
Section 79 and 80 C.P.C., as well as proviso
to Order 1 Rule 9 C.P.C., election petition
filed on behalf of respondent no.2 is
incompetent in the eyes of law.

8. Having considered the rival
submissions advanced by learned counsel
for the parties and perusal of record it is
manifested that instant writ petition is
arising out of election petition filed under
Section 20 of the Act, 1916. The returned
candidate (petitioner herein) has questioned
the election petition filed on behalf of
respondent no.2 precisely on two grounds,
as advanced by learned counsel for the
petitioner, first; being barred by time and
second; being not maintainable on the
ground
of
non-joinder
of
the
State
Government and election petition has not
been presented personally by the election
petitioner.
Order
impugned
dated
03.07.2023 evince that the learned District
Judge (Election Tribunal) has simply
admitted the election petition filed on behalf
of respondent no.2 and issued a direction to
register the same. Simultaneously, notices
were ordered to be issued to other
defendants in the election petition except
defendant no.1 (petitioner herein).

9. This Court is skeptical of first
point advanced by learned counsel for the
petitioner qua filing of election petition
beyond prescribed period of limitation. The
provision for filing the election petition
assailing the election of members of Zila
Panchayat is enunciated under Section 20 of
the Act, 1916. Having considered the point
involved in the instant writ petition, scope of
discussing Section 20 of the Act, 1916 lies
in narrow compass except for the purposes
of limitation to file the election petition. For
ready reference, relevant part of Section
20(1) of the Act, 1916 is quoted herein
below :-

"20. Form and presentation of
election petitions.-(1) An election petition
shall be presented within 30 days after the
day of which the result of the election sought
to be questioned is announced by the
Returning Officer, and shall specify the
ground or grounds on which the election of
the respondent is questioned and shall
contain a concise statement of the material
facts on which the petitioner relies and set
forth of the full particulars of any corrupt
practices
that
the
petitioner
alleges,
including as full a statement as possible of
the names of the parties alleged to have
committed such corrupt practices and the
dates and place of the commission of each
such practice."

10. As per Section 20, as mentioned
above, election petition should be presented
within 30 days after the date of which the
result of election sought to be questioned is
announced by the returning officer. I am
convinced with the submissions as raised by
learned counsel for the petitioner that
election law should be interpreted strictly,
particularly, with regard to the prescribed
period of limitation for the purposes of
entertaining the election petition inasmuch
as there is no provision qua applicability of
the Limitation Act, except Section 12 (2) of
the Limitation Act as enunciated under
Proviso to Section 23 of the Act, 1916.
Therefore, the phrase ''within 30 days'' is
relevant which starts from the date when
result is announced by the returning officer.
It is admitted to both the parties, and also a
matter of record, that result of election for
the post of President, Nagar Palika Parishad,
Khatauli was declared on 13.05.2023,
therefore, limitation for filing the election
5 All. Shahnawaj Ali Vs. Election Tribunal D.J. Muzaffarnagar & Ors.
1219
petition available to respondent no.2 was up
to 12.06.2023. However, intending to avoid
any delay, respondent no.2 has filed the
election petition on 09.06.2023. Owing to
summer vacations in the month of June,
respondent no.2 has presented the election
petition along with an application under
Rule 13 of the Rules, 1957 for obtaining
permission to file the election petition
during vacation period. The Election
Tribunal, owing to oppose made on behalf
of the returned candidate, has rejected the
application to leave for filing the election
petition. Thereafter, second attempt was
made by respondent no.2 on 01.07.2023,
however, again permission has not been
granted for want of presence of the
petitioner and, ultimately, vide order
impugned
dated
03.07.2023,
election
petition was admitted and ordered to be
registered.

11. Normally, as per law, suit is
presented during the regular court hours and
on the court working days. The exact time
and procedure for presenting a suit may vary
depending on the jurisdiction and the
specific rules and practices of the court
where the suit is being filed. For the
purposes of filing of a suit during the
vacation
period,
the
provisions
as
enunciated under Rule 13 and 32 of the
Rules, 1957 is required to be discussed,
which are quoted herein below :-

"13. Work on holidays. Except with
the consent of parties, no suit, case, or
appeal shall be heard on a day declared
holidays for the subordinate courts:
Provided that on a day declared
holiday for the subordinate Courts, a court
shall not refuse to do any act or make any
order urgently required or which may with
propriety be done or made out of Court.
32.
Time
for
presenting
applications.-Except as otherwise provided
by these rules, applications and petitions
which can be presented to the Munsarim of
a Court shall be received on any day other
than an authorized holiday between 10.30
a.m. and such hour as may be fixed by the
Court; provided that an application or
petition presented after such hour and before
4 p.m. may be received on the ground, if any,
of limitation or other urgent reason.
Presiding Officers when accepting plaints or
applications after Court hours will note on
such papers the time of their presentation."

12.

Rule
32
denotes
that
applications and petitions/plaints shall be
received by Munsarim of the court on any
day other than an authorized holiday
between 10:30 a.m. and such hours as may
be fixed by the court. It further denotes that
application or petition can be presented and
received even after such hours and before
4:00 p.m. on the ground of limitation or
other
urgent
reasons.
However,
the
Presiding Officer has been entrusted duty to
make a note on application or petition/plaint
the timing of presentation, in case, he
receives such documents after the prescribed
hours. The phrase used in Rule 32 i.e.
"except as otherwise provided by these
rules" indicates the exceptional provision
in Rules, 1957 wherein plaint/case/appeal
can be presented even during authorized
holiday. The provision as enunciated under
Rule 13 of Rules, 1957 is an exception to
Rule 32, which denotes that generally no
suit, case or appeal shall be heard on the
declared holiday for the subordinate court
except with consent of parties, however,
court shall not refuse to do any act or make
any order urgently required or which may
with propriety be done or made out of
court.
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Thus, it is evident that the
petitioner has attempted to present the
election petition within 30 days of
declaration of election result, however, same
has been got registered on 04.07.2023 in
pursuance of the order impugned dated
03.07.2023. In support of her submissions,
learned counsel for the petitioner has placed
reliance on the Full Bench decision of this
Court in the case of Sumitra Devi vs.
Special Judge/Additional District &
Sessions Judge & Others (Misc. Single
No.9920 of 2018 decided on 12.06.2020). In
the cited judgment, provisions to file
election petition under Section 12-C of the
U.P. Panchayat Raj Act, 1947 (in brevity
'Act, 1947') has been examined by the Full
Bench of this Court with respect to the
question referred before him, which are
quoted herein below :-

"1. Whether presentation of an
election petition by the election petitioner
personally is a mandatory requirement in
view of Sub-section 3 of Section 12 C(1) of
the Act, 1947 and Rule 3(1) of the Rules,
1994 and whether it's non-compliance is
fatal or it would merely be ari improper
presentation, a curable defect?
2. Whether the decision of the
Single Judge Bench of this Court in the case
of Viresh Kumar Tiwari (supra) lays down
the law correctly with regard to the question
framed at serial no. 1 or it is the division
Bench judgment in the case Lal Bahadur
Singh (supra) and the subsequent Single
Bench judgment in the case of Urmila
(supra) which lay down the law correctly?"

14. Learned counsel for the
petitioner further submits that provision of
Section 12-C of the Act, 1947 is pari materia
to the provisions of Section 20 of the Act,
1916, therefore, the ratio decided by the Full
Bench shall be made applicable as well in
the facts and circumstances of the present
case. I am not swayed by this submission
inasmuch as point of discussion in the
instant writ petition is very limited, to wit,
as to when election petition is trated to be
"presented". Question referred in the cited
case with regard to the method/procedure
for filing an election petition is not much
relevant to decide the instant writ petition, at
this stage. However I would like to rely on
Full Bench judgment to explain the phrase
''presentation''.

15. Section 20 of the Act, 1916
clearly denotes that election petition shall be
presented within 30 days. Thus, the phrase
''presented'' employed under Section 20 of
the Act, 1916 has got graver importance for
the purposes of deciding the limitation under
Section 20 the Act, 1916. At page 9 of the
judgment in the case of Sumitra Devi
(supra), the Full Bench of this Court has
expounded as under :-

"However, the words "presented by
any candidate' are significant. The word
"presented' is derived from the word
"present'. It conveys an act of presentation.
One of the meaning assigned in the
Chamber's dictionary (1993 Edition) to the
word 'present', which appears apposite in
the context of Section 12-C(3), is, to give, or
furnish, specially formally or ceremonially;
to deliver, convey or handover. Thus, the
word 'presented' conveys an act of giving,
filing or delivering, in the case of an election
petition. The word "present' has been
defined by the Oxford English Dictionary
(Second Edition, 2014) to mean, the act of
giving something to somebody especially at
a formal ceremony."

16. Thus, it is explicit that
presentation of the plaint (election petition)
is completed at that very moment, while it
5 All. Shahnawaj Ali Vs. Election Tribunal D.J. Muzaffarnagar & Ors.
1221
was
given/produced/furnished/delivered
before the authority competent in the
manner as prescribed by the Act, 1916. It
would not be out of place to mention that for
the purposes of deciding the election
petition, the procedure as provided in C.P.C.
(Act V of 1998) has been made applicable
by virtue of Section 23 of the Act, 1916
which denotes that except so far as may be
otherwise provided by this Act or by Rule,
the procedure provided in the C.P.C. in
regard to suits, shall, so far as it is not
inconsistent with this Act or any Rule and so
far as it can be made applicable, be followed
in the hearing of the election petitions.
While applying the provisions of C.P.C.,
Section 23 of Act, 1916 denotes some
provisos wherein certain provisions has
been mentioned to be followed on certain
events. To better explain the phrases viz
"presentation",
"admission"
and
"registration" of the suit, reference of
Section 26 C.P.C. and Order IV C.P.C.
would not be out of place. For ready
reference, Section 26 C.P.C. and Order IV
C.P.C. is quoted herein below :-

"Section 26. Institution of suits.-
(1) Every suit shall be instituted by the
presentation of a plaint or in such other
manner as may be prescribed.
(2) In every plaint, facts shall be
proved by affidavit.
Order IV
1. Suits to be commenced by
plaint.-(1) Every suit shall be instituted by
presenting a plaint [in duplicate] to the Court
or such officer as it appoints in this behalf.
(2) Every plaint shall comply with
the rules contained in Orders VI and VII, so
far as they are applicable
(3) The plaint shall not be deemed to
be duly instituted unless it complies with the
requirements specified in sub-rules (1) and
(2).
2. Register of suits. The Court shall
cause the particulars of every suit to be
entered in a book to be kept for the purpose
and called the register of civil suits. Such
entries shall be numbered in every year
according to the order in which the plaints
are admitted."

17. Section 26 C.P.C. denotes that
by way of "presentation of a plaint" or in
such other manner as may be prescribed,
every suit shall be treated to be instituted.
Likewise order IV C.P.C. denotes that
"presenting a plaint" [in duplicate] to the
court or such officer as it appoints in this
behalf, shall be treated as institution of a
suit. In the context of "election petition"
filed in Act, 1916, "suit" and "institution"
may have different connotation as envisages
in C.P.C., however, section 20 of Act, 1916
unequivocally enunciates that "election
petition shall be presented". Order IV C.P.C.
can easily be explained in two parts. Rule 1
denotes about instituting the suit through
presenting a plaint and Rule 2 denotes the
admission/registration
of
suit.
Mere
presentation of the plaint does not amount its
admission to register of the suit. After
presenting the plaint, it is to be scrutinized
by the Munsarim of the court, if there is any
defect in submitting the plaint, the plaintiff
is required to remove the defect which is a
procedural part before registration, for the
purposes of competence of the plaint to be
entered in the register of the suits. It would
not be befitting to discuss the remaining
contents of Order IV C.P.C., which relates to
competence of the suit, inasmuch as in the
matter in hands only presentation of the
plaint is to be considered for the purposes of
reckoning the limitation. Rule 2 of Order IV
C.P.C. abundantly make it clear that after
presenting the plaint there is a provision
where court shall cause the particulars of
every suit to be entered in a book to be kept
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
for the purposes and called the register of
civil suit. Such entry shall be numbered in
every year according to the order in which
plaints are admitted. Thus, admission of the
plaint and its registration as per satisfaction
of the court concerned, subject to removal of
defect, if any, is a distinct and subsequent
event to the presentation of the plaint as
enunciated under Rule 1 of Order IV C.P.C.

18.

Having
considered
the
provisions, as discussed above, in the given
circumstances of the present case, it is
evident that the election petition was
filed/presented
well
within
time
on
09.06.23, to wit, within 30 days from the
date of declaration of the result, however,
the election petition could not be admitted
and registered inasmuch as it was filed
during the summer vacation and opposite
party in the election petition (petitioner
herein), who had filed caveat application,
has not given his consent to entertain the
aforesaid election petition as required under
the provisions enunciated under Rule 13 of
Rules, Rules,1957. As per Rule 13 of Rules,
1957, consent of the other party is
mandatory for the purposes to entertain the
suit/election
petition
during
holidays/vacations. Thus, in absence of the
consent, learned District Judge has not
accorded leave for hearing the election
petition. On the said date i.e. on 09.6.2023,
learned Election Tribunal has deferred the
hearing on admission for 02.7.2023. Having
considered closing day on 02.7.2023, being
Sunday, and the 01.07.2023 as a last day for
the purposes of limitation, respondent no.2
has moved the miscellaneous application to
prepone the hearing of election petition on
admission,
however,
learned
Election
Tribunal
has
refused
to
accept
the
application for want of presence of the
caveator (petitioner herein) and fixed
03.07.2023 as a day for hearing on
admission. It is evident that respondent no.
2 has shown his bona fide conduct in taking
sincere attempt to file/present the election
petition well within prescribed period of
limitation i.e. 30 days from the date of
declaration of result. Under section 10 of the
General Clauses Act, as cited by learned
counsel for the petitioner, first opening day
after vacation, in case limitation expires
during vacation, shall be considered last day
of limitation. Respondent no. 2 was fair
enough in presenting plaint/election petition
second time before the Election Tribunal on
01.07.2023 which was the first opening day
just after summer vacations. The learned
Election
Tribunal,
vide
order
dated
01.07.2023, has returned categorical finding
that election petition will be registered after
hearing defendant no.1 (petitioner herein).

19. Thus, the election petition could
neither be admitted nor registered for want
of hearing accorded to the returned
candidate (petitioner herein). While passing
the order impugned dated 03.07.2023,
Election Tribunal has considered this aspect
of the matter and returned definite finding
that election petition was filed well within
the prescribed period of limitation i.e. 30
days and there is no such case where
election petition filed on behalf of the
plaintiff has been returned to him, rather
hearing on admission was deferred on
02.07.2023. It is further observed that,
owing to this event, plaintiff has moved a
miscellaneous application on 1.7.2023 to
admit and register the election petition on
the same day, however, admission and
registration of the election petition has been
deferred for want of presence of defendant
no.1 (petitioner herein). Finding returned by
learned Election Tribunal as mentioned
above has not been refuted by petitioner in
the instant writ petition. No specific plea has
been taken by the petitioner that election
5 All. Shahnawaj Ali Vs. Election Tribunal D.J. Muzaffarnagar & Ors.
1223
petition was never presented before the
Election Tribunal on 9.6.2023 or 1.7.2023.
Conversely, point of limitation as raised by
counsel for the petitioner pales into
insignificance in the light of the observation
made by Election Tribunal, as mentioned
above, in its order dated 03.07.2023.
Learned Election Tribunal, in its order
impugned, has tried as well to make out a
difference between the filing and admission
of the suit, as such, returned its finding that
election petition was filed/presented within
30 days from the date of announcement of
result, however, only admission of the
election petition has been deferred which
could be done even at later stage. Case law
cited by the counsel for petitioner as
mentioned above are not fully applicable in
the instant matter. Facts and circumstances
of
all
the
cited
cases
are
quite
distinguishable in the given circumstances
of the present case. All the judgments are
relied upon by the learned counsel for the
petitioner keeping in mind that delay was
caused in filing the election petition after
prescribed period of limitation. In the light
of the facts, as discussed in preceding
paragraphs, that no delay caused in
presenting
the
election
petition
by
respondent no.2 from the date of declaration
of result, the cited case, placed reliance by
the counsel for the petitioner, has got no
relevance. Learned counsel for the petitioner
has illegally assumed the condonation of
delay allegedly caused in filing the election
petition after prescribed period of limitation,
whereas, no such event occur in the given
circumstances of the present case wherein
election petition has been filed/presented at
belated stage or delay has indirectly been
condoned by learned Election Tribunal.
Conversely, learned Election Tribunal has
returned categorical finding that election
petition was filed on 9.6.2023 i.e. well
within prescribed period of limitation. Thus,
there was no occasion for respondent No. 2
to challenge the order dated 09.06.2023 and
01.07.2023 passed by election tribunals,
whereby hearing of said election petition on
admission was deferred. On the other hand,
even assuming for the sake of argument, as
advanced by learned counsel for the
petitioner, that election petition was filed
belated on 03.07.2023 and registered on
04.07.2023, respondent No. 2 (election
petitioner) can't be punished for the act of
court competent who has deferred the
admission and registration of election
petition presented within time, as discussed
above.

20. So far as the second submission
qua maintainability of the election petition
on two grounds, as advanced by learned
counsel for the petitioner, is concerned, I am
of the considered view that it would not be
befitting to address these points at this
juncture inasmuch as same has to be raised
at the first instance before the Election
Tribunal. After hearing both the parties and
appraising the evidence adduced by them,
the Election Tribunal shall decide such
points
on
its
own
merits.
Directly
entertaining
the
question
qua
non
maintainability of the election petition,
without being addressed on this point by the
court at the first instance, would not be
appropriate.
The
petitioner
(returned
candidate) has still an opportunity to raise
these objections in his written statement,
which can more appropriately be addressed
by the Election Tribunal.

21. In this conspectus, as above, in
my considered opinion, respondent no.2 has
presented election petition well within the
prescribed period of limitation as enunciated
under section 20 of the Act, 1916. There is
no apparent delay in filing the election
petition to annul the same under section 22
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
of Act, 1916 which denotes that not
complying the provisions under section 20
of the Act, 1916 would be resulted into
rejection of election petition. Finding
returned by learned Election Tribunal has
not specifically been denied in the writ
petition. Remaining point advanced by the
learned counsel for the petitioner is still
open to be raised before the Election
Tribunal. There is no justifiable ground to
entertain the instant writ petition and
interfere in the order impugned dated
03.07.2023 passed by Learned District
Judge (Election Tribunal), which is hereby
affirmed. There is no illegality, perversity or
irregularity in the order under challenge so
as to warrant the indulgence of this Court in
exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of
India. There is nothing on the record to
demonstrate as to how the present petitioner
is prejudiced, or if there is any likelihood of
causing miscarriage of justice to the
petitioner, owing to the order under
challenge.

22. Resultantly, instant writ
petition, being misconceived and devoid of
merits, is dismissed with no order as to cost.
----------
(2024) 5 ILRA 1224
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matter Under Article 227 No. 1073 of 2024

Satish Chandra Mishra ...Petitioner
Versus
Shri Gopal Mandir Virajman Thakur Ji
Maharaj & Radha Ji ...Respondent

Counsel for the Petitioner:
Puneet Sahai Bisaria

Counsel for the Respondent:
Neera Yadav, Mayank Sinha

Civil Law - Provincial Small Causes Court
Act, 1887 - Section 23 - Petitioner, a
tenant in suit property, for his ejectment,
Small Cause Suit has been instituted by
respondent, who claimed to be Trust
managing the affairs of Temple -Petitioner
filed application u/s 23 for return of plaint,
on the ground that there was serious title
dispute between contesting respondent
and Naresh Chandra Agarwal who claimed
himself to be Shebait of Temple, instituted
a
regular
suit
seeking
permanent
prohibitory
injunction
-
Application
rejected - Revision filed, also dismissed -
Impugned order - Held, where a party has
instituted a suit for injunction would by
itself not become a title dispute - Once Mr.
Naresh Chandra Agarwal, applied for bail,
himself admitted that he was not the
Manager of Temple, no occasion for tenant
to raise a title dispute as a third party -
Petitioner, not raised any title dispute as to
his status - How a tenant can non-suit the
plaintiff in an eviction suit on the ground
that someone has instituted a suit for
injunction - If remotely some dispute is
there, if accepted, tenant doesn't get a
right to stay back in tenanted premises
opposing the eviction suit. (Para 2, 3, 4, 15,
29)

Petition dismissed. (E-13)

List of Cases cited:

1. Mst. Bhagmani Devi Vs VIII A.D.J. and Anr.,
2011 (9) ADJ 567

2. Gurmala & ors. Vs Mohd. Ishaq & ors, (2013)
99 ALR 624

3. M. Siddiq (dead) through Legal
Representatives (Ram Janmabhumi Temple
Case) Vs Mahant Suresh Das & ors, (2020) 1
SCC 1

4. Mohd. Noor & ors.Vs Mohd. Ibrahim & ors,
(1994) 5 SCC 562