HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.686 of 2010 (M/S) Dharam Singh S/o Harsh Singh … Petitioner Versus Ravindra Singh S/o Sri Karan Singh and others …. Respondents AND Writ Petition No.1121 of 2010 (M/S) Dharam Singh S/o Harsh Singh … Petitioner Versus Ravindra Singh S/o Sri Karan Singh and others …. Respondents AND Writ Petition No.1119 of 2010 (M/S) Dharam Singh S/o Harsh Singh … Petitioner Versus Ravindra Singh S/o Sri Karan Singh and others …. Respondents AND Writ Petition No.1294 of 2010 (M/S) Ravindra Singh S/o Shri Karan Singh … Petitioner Versus Election Tribunal / Addl. District Judge, U. S. Nagar …. Respondents Dated:- 17th August, 2010 Hon’ble Tarun Agarwala, J. In the election, on the post of Zila Panchayat Member, which was held in September, 2008, Dharam Singh was elected as the returned candidate and Ravindra Singh apparently lost the election. Ravindra Singh, being aggrieved, by the declaration of the result, filed an election petition under the Uttar Pradesh (Kshettra Panchayats and Zila Panchayats) Adhiniyam, 1961. During the pendency of the election petition, the returned candidate Dharam Singh filed various applications, which are subject matter of adjudication in various writ petitions filed by him before this court. One petition of Ravindra Singh has also been filed praying that the election petition should be decided in a time span as directed by this Court. All the writ petitions have been clubbed together and are being decided together. 2. Heard Mr. Arvind Vashisht, the learned counsel for the returned candidate Dharam Singh and Mr. S. K. Mandal, the learned counsel for Ravindra Singh, who has filed the election petition. Writ Petition No.686 of 2010 (M/S) 3. This petition is against the order dated 17.04.2010, whereby the application of Dharam Singh filed under Order 7 Rule 11 of the C.P.C. has been rejected. The learned counsel for the petitioner submitted that from a perusal of the election petition, no cause of action arises and, therefore, the election petition should be dismissed. For facility, the provision of Order 7 Rule 11 of the C.P.C. is quoted hereunder:- “11. Rejection of plaint.- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp- paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that 3 refusal to extend such time would cause grave injustice to the paintiff.” 4. The said provision indicates that the plaint could be rejected on various grounds and one of them is, that the plaint does not disclose a cause of action, which the petitioner Dharam Singh is relying upon. According to the learned counsel for the petitioner, paragraph 13 of the plaint, which discloses the cause of action, is vague and, consequently, on such vague grounds, the election petition could not be entertained and the application under Order 7 Rule 11 of the C.P.C. should have been allowed. 5. The submission of the learned counsel for the petitioner is bereft of merit. The cause of action has to be seen from the pleadings mentioned in the election petition and cannot be confined to one paragraph alone. From a perusal of the election petition, one finds that Ravindra Singh alleged that Dr. A. K. Verma declared the result on 14th September, 2008 declaring Ravindra Singh as the elected candidate. In paragraph 8, it has been stated that when Ravindra Singh went to the District Panchayat Office, he came to know that Dharam Singh has been elected and not Ravindra Singh. In paragraph 13, the allegation is that after the declaration made by Dr. A. K. Verma on 14th September, 2008 in favour of Dharam Singh is on account of fraud played by him and the said declaration should be declared illegal. 6. In my opinion, the election petition discloses sufficient cause of action for the court to entertain the election petition. The impugned order, in my opinion, does not suffer from any illegality. Sufficient cause of action is made out and the application of the petitioner under Order 7 Rule 11 of the C.P.C. was rightly rejected. This court finds that a frivolous writ petition has been filed by the petitioner in order to delay the election 4 proceedings. Consequently, the writ petition is dismissed with cost, which the court will quantify subsequently. Writ Petition No.1121 of 2010 (M/S) 7. This petition has been filed by Dharam Singh, the returned candidate against the order dated 04th July, 2009 wherein the court below allowed the plaintiff to withdraw its affidavits filed in examination in chief alongwith the documents. It transpires that the plaintiff Ravindra Singh filed various affidavits 53 Kha, 54 Kha, 55 Kha, 56 Kha and 57 Kha purportedly under Order 18 Rule 4 of the C.P.C., namely, the examination in chief of the plaintiff and his witnesses. Certain documents were also annexed in the affidavits which the plaintiff was relying upon. The returned candidate, namely, the defendant Dharam Singh filed his objection 60-G alleging therein that the affidavits filed by the plaintiff annexing certain documents should not be taken on record. The defendant objected that the documents could not be brought on record at this stage and that the documents, if any, could be brought on record till the stage of the framing of the issues and, since the issues have been framed, these documents could not be brought on record nor could it be read in evidence. On such objection, the plaintiff made a statement that he does not wish to press his application 52-G and further wants to withdraw the affidavits of his witnesses filed under Order 18 Rule 4 of the C.P.C., since under Rule 11 of the Uttar Pradesh Zila Panchayat (Settlement of Dispute Relating to Membership) Rules, 1994, the plaintiff and his witnesses could lead oral evidence and that it was not required to file the evidence in chief on affidavits as contemplated under Order 18 Rule 4 of the C.P.C. On this statement, being made by the plaintiff, the trial court by its order dated 04th July, 2009 allowed the plaintiff to withdraw the affidavits, namely 52-G, 53-Kha, 58K, 57kha. The contesting defendant, namely, the returned candidate, Dharam Singh has filed the present writ petition, being aggrieved by the said order. 8. The learned counsel for the petitioner submitted that affidavits once filed under Order 18 of the C.P.C. cannot be returned and that the petitioner has lost the opportunity of cross- examining the witnesses under Section 33 read with Section 145 of the Evidence Act. The submission of the learned counsel for the petitioner is patently erroneous and misconceived. Neither Section 33 nor Section 145 of the Evidence Act is relevant at this stage. The affidavits filed under Order 18 Rule 4 of the C.P.C. alongwith the documents annexed thereto were left to be admitted and were objected by the petitioner defendant contending that such documents could not be brought on record since the stage of filing such document had already come to an end. On such objection being raised, the plaintiff made a statement that the affidavits alongwith the documents may be returned and that the plaintiff and his witnesses would lead oral evidence, which the court had allowed. 9. In the opinion of the court, the order passed by the court below does not cause any prejudice to the petitioner nor it affects the merits of the case. The plaintiff and his witnesses would be cross examined as and when the plaintiff and his witnesses lead their evidence, if any. The court finds that the petitioner cannot blow hot and cold at the same time. On one hand, the petitioner contends that the documents annexed to the affidavits should not be brought on record. On the other hand, the petitioner contends that the affidavit should remain on record and should be read in evidence on which, he should be allowed to cross examine the said witnesses. In my opinion, the filing of the affidavits under Order 18 Rule 4 of the C.P.C. is subject to orders of the court, namely, that the affidavits alongwith the documents are subject to formal admission, which had not been done at that stage. Before the affidavits and the documents could be admitted, the plaintiff made a request for its withdrawal, which has been allowed by the court below. Such withdrawal before the admission of the documents can always be permitted, which the defendant cannot object and, in any case, the defendant had objected to the filing of the documents, the same was allowed by the court below. 10. The contention of the petitioner that the affidavits should remain on record and the documents should be returned is patently erroneous. The documents are part of the affidavit and the defendant cannot contend that a part of the affidavit be retained and the document annexed thereto should be returned or should not be brought on record. In the light of the aforesaid, the court finds that the submission of the learned counsel for the petitioner is patently erroneous and cannot be taken into consideration. Further, the court finds that the impugned order is dated 04th July, 2009, whereas the writ petition was filed in July, 2010 after one year from the date of the impugned order. Such delay in filing the writ petition is patently indicative of the intention of the petitioner to delay the disposal of the election petition. Consequently, the writ petition is also dismissed with cost, which the court will indicate at the end of this order. Writ Petition No.1119 of 2010 (M/S) 11. The facts leading to the filing of the writ petition is that the petitioner-Dharam Singh filed an application under Order 6 Rule 17 seeking permission to amend his written statement. The contention of the petitioner was that certain facts were required to be elaborated and in order to elucidate his contention the amendment was required. The amendment sought was that Dr. A.K. Verma-defendant no. 16 who had declared the result was not authorized to do so and was only authorised to count the votes and report the counting to the District Election Officer-defendant 7 no. 16. The Trial court, by an order dated 29.04.2010 allowed the amendment application on payment of cost, but, while allowing it, also directed that the cross-examination of the plaintiff made by defendant nos. 16 & 17 would not be read in evidence since defendant nos. 16 & 17 have been deleted by the Court from the array of parties. The petitioner being aggrieved by this part of the order has filed the present writ petition contending that the Court below was only confined to the consideration of the amendment application and was not confined to the appreciation of the evidence led by the plaintiff or by the appreciation of the evidence cross-examined by defendant nos. 16 & 17. 12. Having heard the learned counsel for the parties, the Court finds that the Trial court has traversed beyond its jurisdiction in making such observations while allowing the amendment application. The Court below was only confined to the validity of the amendment application. The Court was only required to consider as to whether the amendment application should have been allowed or not in the facts and circumstances of the given case. Once the Trial court found that the amendment application was liable to be allowed, nothing further was required to be done. The Trial court, in the opinion of the Court, committed an error while allowing the amendment application and also in giving a finding that the evidence recorded on the cross-examination of the plaintiff by defendant nos. 16 & 17 would not be considered. In the opinion of the Court, it was not the stage for appreciation of the evidence and, even otherwise, once the evidence had come on record, the same cannot be ignored nor the Court below could hold that the said evidence would not be taken into consideration. The court further finds that the learned counsel for the plaintiff- opposite party has conceded that it would make no difference to the plaintiff if the said evidence recorded on the cross- 8 examination of the plaintiff by defendant nos. 16 & 17 being taken on record. 13. In view of the aforesaid, the writ petition no. 1119 (MS) of 2010 is liable to be allowed. The impugned order dated 24.09.2010 in so far as the Trial court directs that the cross- examination of the plaintiff as recorded by defendant nos. 16 & 17 would not be considered in evidence is not tenable and is quashed and to that extent the writ petition is allowed. 14. A party has a right to raise such objection before the Trial court in order to protect his interest. But once such objections are being decided the party has to be cautious in approaching the higher forum, especially in a writ jurisdiction. The petitions filed under the supervisory writ jurisdiction, has to be sparingly used and cannot be made a forum to approach the writ court on a drop of a hat. In the present case, the Court finds that the petitioner is raising all sorts of objections before the Trial Court, for which, he has every right to do so, in order to protect his interest but, by taking such objection before a higher forum, the Court finds that the petitioner, namely, Dharam Singh is misusing the process of the Court. A writ jurisdiction cannot be used as a tool to delay the proceedings. The Court finds that the election petition was filed in the year 2008. Two years have nearly elapsed. The term of the elected member is five years and the Court finds that a concerted effort is being made by the elected candidate to stall the proceedings and prolong the litigation. Such tactics adopted by the returned candidate which the Court can see clearly from the ordersheet is deprecated. In the light of the aforesaid and in the facts and circumstances of the case, the Court finds that exemplary cost needs to be imposed upon the petitioner Dharam Singh for raising frivolous issues before this Court and in the circumstances of the case, the Court imposes a cost of Rs.25,000/- which shall be deposited by the petitioner before the Trial Court within two weeks from today. The amount so deposited can be withdrawn by the plaintiff Ravindra Singh without furnishing any security. 15. In the circumstances of the case, as stated aforesaid, the writ petition 1294 (MS) of 2010 filed by Sri Ravindra Singh is disposed of with a direction to the Trial Court to proceed with the election petition and decide the election petition on a day to day basis and ensure that the petition is disposed of on one way or the other, within six months. (Tarun Agarwala, J.) Dated 17.08.2010 LSR