CW – 533/2006 - Shyokaran Vs. Mukhram & Ors. : Order dt.28.4.08 1/3 S.B. CIVIL WRIT PETITION NO.533/2006 Shyokaran Vs. Mukhram & Ors. Date : 28.04.2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. G.R. Punia for the petitioner. Mr. Sajjan Singh ) for the respondents. Mr. K.R. Saharan) --------- 1. Heard learned counsel. 2. This writ petition is directed against the order dated 9.1.2006 of the Election Tribunal whereby the Election Tribunal while dealing with the Election Petition for the election of Sarpanch, Gram Panchayat Dei Daspura, Panchayat Samiti, Suratgarh, District Sri Ganganagar rejected the application of the present petitioner, the elected candidate which was filed in the said Tribunal under order 7 Rule 11 C.P.C. read with order 6 Rule 16 C.P.C. on the ground that the petitioner, the defeated candidate had filed the election petition which was defective and the petitioner had not impleaded the Returning Officer as the respondent in the election petition, therefore, the election petition was not maintainable. 3. Being aggrieved of the said order, the petitioner has preferred this writ petition in this Court. 4. After arguing the matter at some length, the learned counsel for the petitioner submits that the Election Tribunal may be directed to frame this as a preliminary issue in the election petition as CW – 533/2006 - Shyokaran Vs. Mukhram & Ors. : Order dt.28.4.08 2/3 to whether these defects are curable or not and whether the impleadment of Returning Officer in the matter is necessary or not and if the said issue is decided as preliminary issue the Election Tribunal may proceed with the election petition. 5. Learned counsel for the respondents though opposed these submissions and submits that the defects are curable and relied upon the decision of the Supreme Court in 2004 (11) SCC 196 Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh and others. He submits that there is no error in the impugned order and the present writ petition deserves to be dismissed. 6. The matter pertains to election of Sarpanch in the panchayat election held in 2005 and this Court while admitting the writ petition on 5.10.2006 had stayed the further proceedings before the Tribunal, therefore, the said election petition has not proceeded further. 7. After hearing learned counsels at some length, this Court is of the opinion that this matter can be disposed of by directing the Election Tribunal to frame the said issue raised by the present petitioner and contested by the respondents as a preliminary issue. Since the election petition was directed to be listed for framing of issues by the impugned order dated 9.1.2006, besides other issues this issue can also be framed by the learned Election Tribunal as preliminary issue to be decided in accordance with law. 8. Accordingly, this writ petition is disposed of by directing the Election Tribunal to frame the aforesaid issue as to defect in the CW – 533/2006 - Shyokaran Vs. Mukhram & Ors. : Order dt.28.4.08 3/3 memo of election petition and impleadment of returning officer as necessary party in the election petition as the preliminary issue and decide the same in accordance with law. 9. With these observations, this writ petition is disposed of. No order as to costs. 10. While deciding the aforesaid preliminary issue, the observations made in the impugned order shall not come in the way of Election Tribunal. The Election Tribunal is expected to decide the election petition expeditiously within a period of 6 months from today. [ DR. VINEET KOTHARI ], J. item No.14 babulal/-