IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9934 of 2008 LALAN SAH Son of Suvaram Sah resident of village Saboul Kalha P.S. Simri Dist. Darbhanga Petitioner Versus 1.The Bihar State Election Commission though Chief Election Officer, Bihar, Patna. 2.The District Election Officer cum District Magistrate, Darbhanga 3.The Circle Officer cum Election Officer, Singhwara, Darbhanga 4.Kaushlendra Pathak, D.T.O. cum Election Observer, Singhwara, Darbhanga Respondent Ist set 5.Narendra Mandal S/o Late Vanai Mandal resident of village Harpur P.S.Simri Dist. Darbhanga Respondent 2nd set 6.Kapil Mandal Son of Bindeshwar Mandal resident of village Fatehpur P.S.Simri Dist. Darbhanga 7.Guddu Mandal S/o Triveni Mandal resident of village Harpur P.S.Simri Dist. Darbhanga Respondent 3rd set ----------- 05 24.06.2009 Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel representating respondent no.5. The challenge in the present writ application is to the order dated 16.5.2008 passed in Election Petition no.8 of 2006 by the court of Subordinate Judge I, Darbhanga. By virtue of this impugned order the learned court below acting as Election Tribunal has rejected the petition filed by the petitioner under Order VII rule 11 of the Code of Civil Procedure. The petition in question was for rejection of the plaint, in view of the fact that the election petition was not maintainable as it was barred by limitation. Contention is that since the result was declared on 19.6.2006, the election petition ought to have been filed within 30 days prescribed time. Since the petition was filed on 31.7.2006, it is barred on the face of it. The learned Election Tribunal has rejected the said petition - 2 - on the ground that the objection raised by the petitioner in the court below has been pressed after much delay that too after issues had already been framed and certain evidence has already been led. In that view of the matter, the court was of the view that the whole object of the petition under Order VII rule l1 of the Code of Civil Procedure was to delay the decision of the suit. The court also opined that since limitation is one of the issues which will be decided by the court, the petition deserved to be dismissed. The reasonings given by the court below are the reasonings which has been urged at the bar by the learned counsel representating respondent no.5. He submits that the petitioner does not want the petition to be decided and, therefore, he has adopted unique method to delay the proceeding one way or the other. To some extent the observation of the court below as well as submission of the learned counsel representating respondent no.5 could be correct but under law the issue of maintainability of the election petition on the ground of limitation will have to be decided as a first issue. No election petition can be maintained as it is filed after prescribed period under law. Law in this regard is well settled and is also reflected in a recent decision in the case of Shambhu Lal vs. The State of Bihar & ors reported in 2007(2)PLJR 698. learned Senior counsel representating Election Commission refers to above decision and submits that it is affirmed by the Division Bench in LPA no. 243 of 2007 vide decision dated 28.5.2007 That being the position, the writ application is allowed and - 3 - the impugned order dated 16.5.2008 is set aside. The matter is remitted back to the court below with a direction that it will first decide the question of limitation as preliminary issue and the fate of the suit will thereafter depend on such decision. The writ application is allowed. shahid (Ajay Kumar Tripathi, J)