1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9694 OF 2009 Arif Ibrahim Choudhari .. Petitioner Vs. Vahida Aayyaj Nayakwadi & Ors. .. Respondents Mr. A. A. Kumbhakoni, Sr. Counsel i/b Mr. A. M. Kulkarni for the Petitioner. Mr. Uday P. Warunjikar with Mr. Nitesh Bhutekar & S. K. Mulla for Respondent No.1. Mr. N. V. Walawalkar, Sr. Advocate i/b Mr. G. H. Keluskar for Respondent Nos. 3 & 4. CORAM : MRS. R. S. DALVI, J. DATE : 21st January, 2010. P.C. 1. Heard. 2. Rule. Rule is made returnable forthwith. 3. Respondent No.1 is the real contesting party. 4. Heard Advocate for the petitioner as well as Advocate for respondent No.1. 2 5. The petitioner contested the election of respondent No. 4-Corporation as a Corporator. His name was on the voters’ list. He was elected. His election is challenged in an Election Petition by respondent No.1 on the grounds that he was not 21 years of age. The Petitioner filed his written statement. In his written statement the petitioner mentioned his age as well as the age of his brother showing their respective birth dates. The petitioner contended that since his name was in the voters’ list, he must be taken to be 21 years of age and that aspect cannot be challenged in an Election Petition. The petitioner filed separate application for determination of the preliminary issue. He claimed that the petition is required to be dismissed under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908. He sought to raise the issue as to “whether the Election Petition was barred by the principles under Election Law in India, by the principle of estoppel, waiver, acquiescence ?” 6. Petitioner relies upon that the judgment of the Hon’ble Supreme Court in the case of “R. Chandran Vs. M. V. Marappan (AIR 1973 SUPREME COURT 2362)” wherein it is held that, once a person’s name has been included in the electoral roll, his qualifications to be included in that roll cannot be questioned either 3 when he tries to cast his vote or to stand for election or even after the election is over. It is observed that the names of the voters are incorporated in the roll only after scrutiny by the Returning Officer and there is no room for further difference of opinion on the matter. The respondent has relied upon a judgment of the learned Single Judge of this Court which is contrary to the above judgment. The learned Single Judge does not appear to have been shown the judgment in “R. Chandran Vs. M. V. Marappan (Supra)” Hence, that judgment would be taken as per in curium. 7. The preliminary issue has to be determined based upon the bar created by any law. Even the question of rejection of the plaint has to be considered upon the bar created by any law. Mr. Kumbhkoni argues that the Supreme Court Judgment in the case of “R. Chandran Vs. M. V. Marappan (Supra)” constitutes the law laid down by the Supreme Court. Once it is law of the country as laid down by the Supreme Court, as much as by legislations, that the election of a person or the voting by a person whose name appears in the electoral roll cannot be challenged on the ground that he is below 21 years age, that bar would have to be considered as preliminary to the determination of any other issue in the 4 election petition. Similarly that bar would have to be considered for rejection of the plaint, if such application is made. 8. It is argued by Mr. Warunjikar Advocate for the respondents that the application is made under Order VII Rule 11 (d) of the Code of Civil Procedure which is for rejection of plaint and not for determination of the preliminary issues. The determination of the preliminary issues are under Order 14 Rule 2 of the Code of Civil Procedure. 9. Under both the provisions bar created by any law is required to be seen. Under Order 14 Rule 2 of the Code of Civil Procedure, the Court may try the issue of law first if it relates to the bar created by any law. Under Order VII Rule 11 (d) of the Code of Civil Procedure the Court may reject the plaint, at any stage, if it appears that the plaint is barred by any law. It does not matter under which procedure the application is filed. The substance of the application is to be seen. The substance is that without going into a full trial or hearing the parties upon other issues or upon recording oral evidence, the issue which can be determined as preliminary to the others must be determined. 5 10. The application for rejection of the plaint can be made at any stage. It can be made as soon as the plaint is filed even before any written statement is filed. After the pleadings are complete, the Court has to frame the issues. At such times, the Court may frame an issue as an issue of law relating to the jurisdiction of the Court or the bar created by any law. 11. Since the Election Petition from the statement made therein is shown to be barred by the law laid down by the Supreme Court, the determination of that issue resulting in the rejection of the plaint, has to be determined by the Court. The petitioner’s application is in that behalf. The learned Civil Judge Senior Division, Sangli before whom the application is filed, was called upon by the petitioner to frame that issue as preliminary issue and to determine that issue. The learned Judge has rejected the application on the ground that preliminary issue has not to be framed under Order VII Rule 11 (d) of the Code of Civil Procedure as such issue would have to be framed only under Order 14 Rule 2 of the Code of Civil Procedure. The learned Judge is technically correct. However, the substance of the application is the disposal of the Election Petition based upon the petitioner’s age in his 6 application dated 05.09.2008. 12. Mr. Warunjikar argued that in an application which is filed under Order VII Rule 11 (d) of the Code of Civil Procedure no preliminary issue can be framed. The plaint itself is required to be rejected or the application for rejection is to be rejected. 13. The learned Judge shall consider the application of the petitioner under Order VII Rule 11 (d) of the Code of Civil Procedure and dispose of that application by rejecting the petition or rejecting the application. 14. Writ Petition stands disposed of accordingly. Rule is made absolute accordingly. (R. S. DALVI, J.)