In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on February 03,2010. Charanjit Kaur and others -- Appellants vs. Gurmeet Kaur and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Onkar Singh,Advocate,for the appellants Mr.NPS Mann,Advocate, for the respondents Rakesh Kumar Jain, J, (Oral) This appeal is directed against order of learned Deputy Commissioner-cum-Presiding Officer, Election Tribunal Gurdaspur, dated 05.8.2009, whereby election petition filed by the appellants challenging the election of respondent No.1 has been dismissed being time barred. Brief facts of the case are that in the general elections held on 26.5.2008, five members of Gram Panchayat, Mustafabad, Saidan, Tehsil and District Gurdaspur were elected . Election for the post of Sarpanch was held on 28.5.2008 in which respondent No.1 was declared elected. Her election was challenged by the appellants by way of C.W.P.No.13365 of 2008 but the writ petition was dismissed on 21.10.2008 with the following observations:- “ In view of the above, this writ petition is dismissed as withdrawn with liberty to the petitioners to file an election petition under Section 76 read with Section 89 of the Act, challenging the election of respondent No.1. In case, the election petition is filed within three weeks from today, the Election Tribunal is directed to decide the same on merits expeditiously”. The case of the appellants is that in terms of the aforesaid order, election petition was filed on 16.11.2008, but as the trial of the election petition was not making any headway, therefore, the appellants came to this Court by way of C.W.P.No.4252 of 2009 which was disposed of 5.8.2009 with a direction to the learned Tribunal to decide the election petition within a period of four months. It is submitted by learned counsel for the appellants that the election petition was decided on 05.8.2009 and the learned Election Tribunal has dismissed the election petition only on the ground that the same has been filed beyond a period of three weeks provided by this Court. It is further submitted that the learned Election Tribunal had committed an error of law while disposing of the election petition at the fag end of the trial, though according to Section 76 read with Section 80 of the Punjab State Election Commission Act, 1994, the election petition should have been dismissed at the threshold if it was beyond limitation. On the other hand, learned counsel for the respondents has argued that there is no error of procedure adopted by the learned Election Tribunal because the issue of limitation is a mixed question of law and fact which could always be decided after completion of pleading, framing of issues and obtaining evidence in that regard. I have heard learned counsel for the parties and have perused the record with their assistance. Before adverting to the rival contentions of the learned counsel for the parties, it is worth while to refer to the provisions of Sections 76,80 and 81 of the Act on which reliance has been placed by learned counsel for the appellants. Section 76 categorically provides that the election petition has to be filed within a period of 45 days from the date of declaration of result of election of the returned candidate. Section 80 provides that the Election Tribunal shall dismiss the election petition which does not comply with the provisions of Section 76 or section 77 or section 103. Section 81 provides that every election petition shall be tried by the Election Tribunal as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) to the trial of suits. So far as the present case is concerned, period of 45 days is not in dispute because if period of 45 days is to be taken from 26.5.2008, then it has long expired. In the present case, the question is whether the period of three weeks provided by this Court by virtue of C.W.P.No. 13365 of 2008 has to be strictly complied with by the learned Election Tribunal, or not. Concededly, election petition has been filed five days after the expiry of three weeks provided by this Court, therefore, it was patently barred by limitation, then the question arises whether the learned Election Tribunal was remiss in deciding the election petition after taking the evidence with regard to period of limitation or should have dismissed the election petition at the threshold. In my opinion, the question of limitation is a mixed question of law and fact because it has to be established by the defendants by leading cogent evidence, it could have been decided only after trial. As per own showing of the appellants, procedure provided under Section 81 of the Act and also the procedure under the Indian Evidence Act, 1872, have to be followed, meaning thereby that after framing of issues, giving proper opportunities to both the parties to lead their evidence and hearing arguments, then the matter has to be decided. The next question is whether the election petition is time barred or not ? The defendants have produced on record evidence to show that this Court had granted three weeks time from the date of passing of the order and rest was left with the Tribunal to interpret the order of this Court, which, to my mind, has rightly been interpreted by the learned Tribunal that three weeks would count from the date of passing of the order and would not be counted from the date of receipt of certified copy of the order. In view of the above, I do not find any merit in this appeal and the same is hereby dismissed. February 03,2010 (Rakesh Kumar Jain) RR Judge