-±- HIGH COURT OF CHHATTISGARH. BILASPUR Civil Revision No.14 of 2006 PETITIONER RESPONDENTS ASHOK KUMAR MEHRA ALIAS PAPPU aged about 49 years S/o Shri Daulat Ram R/o Ganjpara, Durg, Tahsil & District-Durg (C.G.) Versus 1) SMT. RAGINt DEVI W/o Shri Dhruv Kumar Caste Mehttar R/o Ganjpara, Utkal Colony, Durg, Tahsil & District-Durg (C.G.) 2. DISTRICT ELECTION OFFICER Through CoiJector, Durg (C.G.) 3. RETURNING OFFICER (Municipal Corporation) Locai Body Elections, Durg, Tahsii & District- Durg (C.G.) 4. UMESHMESHRAM S/o Yashwant Meshram R/o Gautam Buddha Nagar Uria, Tahsil & District-Durg (C.G.) 5. CHHABILAL S/o Atiab, R/o Ganjpara, Durg Tahsil & Distnct-Durg (C.G.) 6. SUSHILKUMAR S/o Manna Lai, R/o Djprapara, Durg, Tahsil & District-Durg (C.G.) PRESENT:- Shri V.G.Tamaskar, Counsei for the petitioner. Shri N.S.Dhurandhar, counsel for the respondent No.1. Shri Akhil Agrawal, P.L. for the State. ORDER (Passed on OZ-04=2007) The following order of the Court was passed by Dilip Raosaheb Deshmukh, J. The petitioner is aggrieved by an order dated 19-01-2006 passed by the District Judge, Durg in Misc. Judicial Case No.14 of 2005 whereby the election petition filed by the respondent No.1 under Section-441 of the Chhattisgarh Municipal Corporation Act, 1956 (hereinafter referred to as "Act") for declaring the election ofthe petitioner herein vold, was allowed. ^ ( , \^.'/ (2) Brief undisputed facts are that the petrtioner contested the electjon for the post of Counselor from Ward No.37, Azad Ward, Munidpal Corporation, Durg reserved for Scheduled Caste candidates oniy for the period December-2004-2009 and was declared elected. The respondent No.1 herein was also a candidate jn the said election for the post of counselor. (3) The respondent No.1 pleaded before the District Judge, Durg that during scrutjny of nomination papers on 02"12-2CX}4, an objection raised by her representative before the Retuming Officer that the petitioner herein was disqualified not belng a member of Seheduled Caste was turned down. Polling was held on 14-12-2004 and after counting of votes, the petitioner herein was declared eiected. The respondent No.1 also pleaded that the petitioner herein was originally a resident of Punjab and was "Punjabi Rajput" by caste which was also borne out from his schoot transfer certificate. It was also contended that in the schoot transfer certificate of the petitioner herein, his caste was mentioned as "Punjabi". The applicatjon filed by the petitioner herein for issuance of a caste certificate under "Mehra" category had aiso been dismissed by the Naib Tehsildar. In this manner, the petitioner herein nejther belonged to the Schedule Caste category nor had any caste certificate to that effect. It was specifically contended that the petitioner herein had, in the nomination papers falsely shown that he was "Mehra" by caste which fell under the category of Scheduled Caste. (4) The petitioner herein refused the notice issued by the learned District Judge and was proceeded ex-parte on 15-03-2005. Ex-parte evidence of the respondent No.1 herein was closed on 18-11-2005 and the argumente were finally heard on 25-11-2005 and the case was posted for orders on 01-12-2005. On the date of order i.e. 01-12-2005, an application under Order-9 Rule-7 of C.P.C. was filed by the petitioner herein for setting aside the ex-parte order and also for affording him an opportunjty of hearing which was dismissed on10-01-2006 on the ground that hearing having concluded the application under Order-9 Rule-7 of C.P.C. was not maintainable and it was open to the petitioner herein to file an application under Order-9 Rute-13 of C.P.C. However, the petitioner herein did not choose to fiie any application under Order-9 Rule-13 of -^- ^. C.P.C. and preferred this Civil Revision under Section-441 (F) (2) of the Act. \ (5) Shri V.G.Tamaskar, learned counsei for the petitioner argued as foliows:- (a) That the eiection petition was not duly verified and was therefore liable to be dismissed. Reliance was placed on Reau Mahesh alias Reau Maheshwar Rao Vs. Raiendra Pratap Bhani Dev and Another reported in (2204) 1 Supreme Court Cases46 and Aiav Kumar Poeia Vs. Shvam and Others reported in AIR-2004-SUPREME COURT-1941. (b) That the election petition was liable to be dismissed since an affidavit in support ofthe petition was not filed. (c) That an appljcation under Order-9 Rule-7 C.P.C. for giving an opportunity of hearing was rejected without application of mind. Reiiance was placed on Bhanu Kumar Jain Vs. Archana Kumar and Another reported in (2005) 1 Supreme Court Cases-787. (d) That the Naib Tehsildar who issued the caste certlficate was neither summoned nor examined as witness, in the absence of which, the genuineness of the assertion of the caste of the petitioner herein could not be determined. (6) On the other hand, Shri N.S. Dhurandhar, learned counsel for the respondent No.1 argued in support of the impugned order and pointed out that the petition under Section-441 of the Act was not only duly verified but was aiso supported by an affidavit of the respondent No.1 herein. It was also contended that the case law cited relates to a case under the Representation of People Act and does not come to the rescue of the petitioner herein in any manner. It was also contended that in Misc. Judicial Case No.14 of 2005, hearing having been conduded, an application under Order-9 Rule-7 of C.P.C. did not lie on the date of pronouncement of order and was therefore rightly dismissed. Lastly, it was submitted that it was not the case of the respondent No.1 that the petitioner herein had filed a faise caste certificate showing his caste as -\' "Mehra" but the case of the respondent No.1 herein before the District Judge, Durg was that the petitioner herein did not possess any caste certificate and had filed a false nomination paper and afRdavit before the Returning Officer showing him as belonging to the Scheduled Caste category. (7) Having heard rival submissions, 1 have perused the record of Misc. Judicial Case No. 14 of 2005. l am of the considered opinion that for the reasons mentioned hereunder, this Civil Revision must fail. Under Section- 441 of the Act, any decision of the Court on an election petition is open to challenge on any of the following grounds:- (a) That the decision is contrary to law, and; (b) That the Court has exercised jurisdiction not vested in it by taw or h^s failed to exercise jurisdictlon vested in it by law. -\^ (8) ArQuments advanced by learned counsel for the petitionerherein would therefore be required to be tested on the above touchstone only. So far as the contention of tearned counsel for the petitioner herein that the election petition was neither verified nor supported with an affidavit is concerned, it is liable to outright rejection since the election petition under Section-441 of the Act is not only duly verified but was also supported by an afRdavit ofthe respondent No.1 herein. (9) It is settled law that the remedy under Order-9 Rule-7 of C.P.C. for filing an application by the defendant for being afforded an opportunity of hearing is available before the conclusion of hearing and not thereafter. In the present case, the arguments were finally heard on 25-11-2005 and the case was posted for orders on 01-12-20C®.An application under Order-9 Rule-7 of C.P.C. filed on 01-12-2005 was therefore liable to outright rejection and was rightly dismissed by the Court below. The case of Bhanu Kumar Jain (Supra) cited by learned counsel for the respondent No.1 herein is cleariy distinguishable and does not apply to the present case. (10) It is not the case of the respondent No.1 that the petitioner had filed a bogus caste certificate before the Returning Officer. It was specificaily ^ ^— ^ \; pleaded that the petitioner herein did notpossess any caste certificate and had fiied a faise nominatjonpaper and affidavit. This question not being agitated by the petitioner herein befbre the lower Court in any manner as the petitioner herein was proceeded ex-parte compiQtely destroys the arguments advanced by learned counsei for the petitioner herein in para-4(d) Supra. The respondent No.1 herein had proved the certlfied copy of the nomination papers Ex.P-3 and the affidavit Ex.P-4 filed by the petitioner herein showing his caste as "Mehra" | which feHs under the Scheduled Caste category. The wholly unrebutted evidence led by the respondent No.1 herein, oraias weli as documentary cieariygoes to show thatthe petitioner herein is a "Punjabi Rajpuf andjdoes not belong to the Scheduled Caste category. Schoo! leaving certificates ExP-1 & P-2 and a written objection made by the respondent No<1 herein before the Coiiector, Durg Ex.P-6 and copy ofthe order passe!dby the Naib Tehsildar vide Ex.P-8 whereby the application fited by th^ petitioner herein for issuance of caste certificate under "Mehra" caste bslonging to the Scheduied Caste category/was rejected and the memQ sent by the Naib Tehsiidar Ex.P-9 and the entry in the school admission register Ex.P-7 having been unrebutted clearly proved that the petitioner herein belongs to the "Punjabi Rajpuf category and notto the Scheduted Caste category of "Mehra". in this view of theTfiatter, the petitioner herein was disquaiified from contestlng eiection for the post of counselor.. ; (11) Havlng thus considered the arguments advanced by learned counse! for the petitloner herein and after perusjng the record of Mis6. Case No.14 of 2005, l am of the considsred opinion that no ground whatsoever is made outfor any interference in the impugned order passed bythe iearned District Judge,Durg. \j (12) !n the resuit, this Civi! Revision belng devoid ofmerit is iiabte to be and is accordingly disniissed. Sd/- iDUipRaosahebDeshmukh Judge :W!!M iisala I&B ii?ij ia