1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R 1. S.B. Civil Writ Petition No.10040 of 2007 . Mahendra son of late Shri Tara Singh VERSUS The Additional Civil Judge (Senior Division) Jhunjhunu-cum- Election Tribunal, Jhunjhunu and Another 2. S.B. Civil Writ Petition No.236 of 2008 . Mahendra son of Late Shri Tara Singh VERSUS The Additional Civil Judge (Senior Division) Jhunjhunu-cum- Election Tribunal, Jhunjhunu and Another 3. S.B. Civil Writ Petition No.940 of 2008. Man Singh son of Shri Paras Ram. VERSUS Rajendra son of Shri Ramji Lal and Others 4. S.B. Civil Writ Petition No.2185 of 2008 . Mahendra son of late Shri Tara Singh VERSUS The Additional Civil Judge (Senior Division) Jhunjhunu-cum- Election Tribunal, Jhunjhunu and Another 5. S.B. Civil Writ Petition No.2439 of 2008. Man Singh son of Shri Paras Ram. VERSUS Rajendra sonof Shri Ramji Lal and Others Date of Order :::: 21/08/2009 2 Hon'ble Mr. Justice Dalip Singh Shri B.M. Sharma } Shri Lokesh Sharma } Counsel for the Petitioners Shri J.K. Singhi } Shri Sanjeev Kumar Mahala ] Shri Vimal Kumar Jain ] Shri D.P. Pujari ] Counsel for the Respondents Shri Pankaj Jain ] Per Court : These set of writ petitions, arise out of the same election petition being filed before the Additional Civil Judge (Senior Division) -cum- Election Tribunal, Jhunjhunu by one Rajendra Singh against the elected candidate Mahendra Singh. Facts, in brief, are that one Rajendra Singh filed an election petition challenging interalia the election of Mahendra Singh, as the Sarpanch of the Gram Panchayat, Ardavata, who was elected on the post in the election held in January/February 2005. In the election petition, the election-petitioner interalia sought the relief by way of recrimination that in place of Mahendra Singh, he may be declared as the elected Sarpanch after setting aside his election. 3 In the election petition before the learned trial Court an objection came to be raised by one Shri Mahendra Singh, who is the petitioner before this Court and the elected Sarpanch, that after the year 1994 i.e. in July 1998 the wife of Rajendra Singh (the election petitioner, who has sought interalia the relief of recrimination to be declared elected), gave the birth to a third child and, therefore, Rajendra Singh had incurred the disqualification under Section 19 of the Rajasthan Panchayati Raj Act, 1994, as no person having more than two children is eligible to contest the election to the Gram Panchayat. The matter came up before this Hon'ble Court earlier in S.B. Civil Writ Petition No.3470 of 2007 (Mahendra Vs. Additional Civil Judge (Senior Division) Jhunjhunu & Another) and before this Court Rajendra Singh submitted that “he is not claiming any relief to declare him elected and if the election petition is allowed, the election of the petitioner (Mahendra Singh) shall stand set aside. He only wants that the petitioner should not hold the post of Sarpanch during trial of the criminal case”. 4 Based on the above submission, which is recorded in the order dated 10.08.2007 in the aforesaid writ petition decided by this Court, the writ petition filed by Mahendra Singh against the order dated 11.04.2007 of the learned Additional Civil Judge (Senior Division) Jhunjhunu was disposed of. After the above proceedings came to be decided several applications were filed by the petitioner before the learned trial Court and on the basis of the orders passed in the same the writ petitions have come up before this Court and were heard together and are being decided together by this single judgment for convenience and brevity. I. Facts of S.B. Civil Writ Petition bearing No.10040/2007 (Mahendra Vs. Additional Civil Judge (Senior Division) Jhunjhunu & Another). This writ petition has been filed challenging the order dated 16.11.2007 passed by the learned Additional Civil Judge (Senior Division) Jhunjhunu by which the application filed by Mahendra Singh purporting to be under Order 16 Rule 6, C.P.C., wherein the relief claimed in the application was with respect to calling for the record from 5 the Roongta Hospital, Malviya Nagar, Jaipur and of Vidhya Mandir, Pilani to prove that Rajendra Singh's wife had been blessed with a third child on 12.08.1998 and the hospital record would prove the aforesaid fact. Similarly, the school record was said to be in respect of the same child pertaining to the date of birth of the child. The learned trial Court taking a note of the order of this Court in S.B. Civil Writ Petition No.3470 of 2007 decided on 10.08.2007 (supra) rejected the aforesaid application as this was not relevant after the relief of recrimination has been abandoned. Hence, this writ petition. I have heard the learned counsel for the parties and perused the record. The learned counsel for the petitioner does not dispute the fact that the application came to be filed only in view of the recrimination sought by Rajendra Singh in the election petition. 6 It is also not disputed that before this Court, as recorded, in the order dated 10.08.2007 in S.B. Civil Writ Petition No.3470 of 2007 Rajendra Singh has given up the relief with regard to declaration that he be declared elected in place of Mahendra Singh and was only satisfied in case the election of Mahendra is set aside. In that view of the matter, the documents, which are sought to be called and produced before the Court by Mahendra Singh, the elected candidates, who are petitioners before this Court have no relevancy, so far as the merits of the case are concerned, which pertains to whether Mahendra Singh was disqualified to be elected on account of pendency of criminal trial/cases against him. In that view of the matter, I find no infirmity in the impugned order, as documents, which are sought to be summoned and produced before the Court have no relevancy after the order recording the abandoning of relief of recrimination in the order dated 10.08.2007 of this Court. Accordingly, this petition deserves to be dismissed and the same is hereby dismissed. The interim stay order passed by this Court dated 06.12.2007 stands 7 vacated. II. Facts of S.B. Civil Writ Petition bearing No.2185 of 2008 (Mahendra Vs. The Additional Civil Judge (Senior Division) Jhunjhunu and Another). This petition has also been filed by Mahendra Singh, the elected Sarpanch against the order dated 13.12.2007 (Annexure-4) on the application dated 03.12.2007 (Annexure-2) by which the petitioner sought the relief that the election-petitioner Rajendra Singh be directed to amend his pleadings in the petition in view of the order dated 10.08.2007 passed in S.B. Civil Writ Petition NO.3470 of 2007. I have heard the learned counsel for the parties and perused the record, including the application under Section 151, C.P.C. which has been filed as Annexure-2. The prayer made in the application is as follows : "अत: दरÉ वाः त ूः तुत कर िनवेदन हɇ Ǒक यािच को मानन ◌ीय उÍ च Û यायालय के आदेश Ǒदनांक 10.8.2007 के अनुसार चुनाव यािचका मɅ उिचत संशो धन करवाने जाने का आदेश Ǒदया जावɅ, ताǑक ǒवप¢ी Ʈारा अपनी ूितर¢ा मɅ उिचत साआ य ूः तुत कȧ जा सके, संशोधन के अभाव मɅ यािच कȧ चुनाव यािचका खाǐरज 8 फरमायी जावɅ तथा खचा[ मुकदमा Ǒदलवाया जावɅ ।" It is not in dispute that this relief has been sought in the application is as a result of the abandoning of the relief in the main petition regarding recrimination by the election petitioner Rajendra Singh, as has been recorded earlier in the order of this Court dated 10.08.2007 passed in S.B. Civil Writ Petition No.3470 of 2007. The learned counsel was at a loss to explain as to how and under what provisions it is necessary that on account of abandoning of the relief or part thereof the plaintiff or as in the present case the election petitioner is required to amend his pleadings. I have considered the submissions of the learned counsel for the parties made at the bar in the light of the provisions contained under Order 23 Rule 1, C.P.C. The aforesaid provisions enables the plaintiff to abandon the relief claimed in the suit or any part thereof during the pendency of the suit and it is not mandatory under the law for the plaintiff to seek an amendment as a consequences thereof. 9 In that view of the matter since the election petitioner Rajendra Singh has abandoned his prayer with regard to the relief of recrimination and seeking relief of declaration that he be declared elected no necessary or consequential amendment was at all necessary to the election petition. In the facts and circumstances of the case, therefore, I do not find any jurisdictional error having been committed by the learned trial Court so as to call for the interference in the writ jurisdiction under Articles 226 and 227 of the Constitution of India against the impugned order dated 13.12.2007 by which the application under Section 151, C.P.C. seeking the aforesaid relief has been rejected. The learned trial Court has very rightly observed that it appears that the whole intention of the petitioner, who is the successful candidate is to avoid the trial within the stipulated period so that he may enjoy the full term of five years. While dismissing this petition, it is directed that the learned trial Court would put a remark against the prayer made in the election petition filed by the election 10 petitioner Rajendra Singh relating to recrimination as having been abandoned. This writ petition is without force and is accordingly dismissed. III. Facts of S.B. Civil Writ Petition bearing No.236 of 2008 (Mahendra Vs. Additional Civil Judge (Senior Division) Jhunjhunu and Another). This writ petition has been filed by Mahendra Singh, who was declared elected on the post of Sarpanch and against whom Rajendra Singh has preferred the election petition, challenging the order passed by the learned trial Court dated 15.12.2007. By the impugned order the application submitted by Mahendra Singh seeking adjournment on account of his illness and requesting that the statements of his other witnesses may be recorded first, as he is unwell was rejected. The learned trial Court while rejecting the application took into consideration the medical certificate, which was filed, along with the said application in support of the plea that Mahendra Singh had been advised a week's 11 complete bed-rest. The learned trial court after going through the medical certificate found that the doctor, who had issued the same had not advised that the patient Mahendra Singh required complete bed rest nor had the doctor opined that the patient Mahendra Singh was seriously ill and was not in a position to appear before the Court. Before this Court the petitioner has neither produced the application, which was filed before the learned trial court nor the copy of the medical certificate issued by the treating doctor in support of the plea that Mahendra Singh was not in a position to appear before the Court. In that view of the matter, the plea, which was raised before the learned trial Court and the reasons given by the learned trial Court for rejecting the application seeking exemption cannot be disputed, as there is no material before this Court to show that there is any error of jurisdiction committed by the learned trial Court in refusing the prayer for exempting the petitioner to appear, as a first witness. 12 On the one hand the petitioner sought exemption from appearing before this Court on the ground of illness, whereas the petitioner had traveled to Jaipur for filing the writ petition bearing No.10040 of 2007, which was filed on 01.12.2007 itself and filed the present petition also as is evident from the record. I find no jurisdictional error having been committed by the learned trial Court in rejecting the application filed by Mahendra Singh. This writ petition is accordingly dismissed. IV. Facts of S.B. Civil Writ Petition bearing No.940 of 2008 (Man Singh Vs. Rajendra Singh and Others). This writ petition has been filed by one of the respondent namely; respondent No.2 Man Singh, who was the one of the candidate in the election of the Sarpanch of the Gram Panchayat. This petitioner Man Singh has filed the writ petition challenging interalia the order dated 27.10.2006 (Annexure-8) by which the application submitted under Order 1 Rule 10, C.P.C. has been allowed and the names of the defendants numbers 2 to 5 were 13 deleted on consensus as is apparent from the order, which reads “ "दोनो प¢ ने अनावँ यक प¢ाकारान ǒवप¢ीगण 2 से 5 को माना ।" So far as this petition is concerned in the light of the fact that the petitioner Rajendra Singh has abandoned his relief of recrimination i.e. of declaration that he is the successful candidate and be declared as the Sarpanch of the Gram Panchayat, the other candidates, who contested the election, including the petitioner Man Singh are no more necessary parties to the election petition, as now the sole relief is with regard to the eligibility of Mahendra Singh the elected Sarpanch on account of his alleged disqualification on the ground that he is facing criminal trial. In view of the above, I find no force in this writ petition, which appears to have been filed on 31.01.2008, after more than nearly one-&-half-years of the passing of the impugned order dated 27.10.2006 (Annexure-8) at the instance of the elected candidate Mahendra Singh, who has arrayed Man Singh the petitioner, herein as a witness (see Annexure-1 Page 13 in S.B. Civil Writ Petition No.236 of 2008, affidavit of Man Singh son of Shri Parsa Ram) after the order dated 15.12.2007 was passed. 14 The interim order passed by this Court dated 17.03.2008 stands vacated. The writ petition is accordingly dismissed. V. Facts of S.B. Civil Writ Petition bearing No.2439 of 2008 (Man Singh Vs. Rajendra & Others) This writ petition has also been filed by Man Singh, who was the respondent No.2 to the election petition against the impugned order dated 15.02.2008 (Annexure- 10). By this order the application submitted by the petitioner Man Singh under Order 1 Rule 10, C.P.C. for being impleaded as party to the election petition has been rejected. The said application filed under Order 1 Rule 10, C.P.C. is Annexure-6 on record. I have perused the impugned order and I find that the learned trial Court has given cogent reasons for rejecting the aforesaid application submitted by Man singh. The learned trial Court has observed that initially Man singh, the petitioner, herein, was impleaded, as the respondent No.2 in the election petition and he was served with the summon on 17.05.2005, but he did not appear 15 before the learned trial Court. Thereafter, an order to proceed ex-parte against him was passed by the learned trial Court, which was never challenged and no application for setting aside the same was filed. No reply having been filed and after receipt of the pleadings of the said parties the case was fixed for the evidence. After more than above 10-months of the order regarding ex-parte proceedings against Man Singh was passed, Man Singh moved an application for setting aside the ex-parte order on 09.03.2006. Thereafter, by the order dated 27.10.2006 on the prayer of the election petitioner the name of Man singh was deleted from the array of the parties. This order dated 27.10.2006 was not challenged before any forum or court for over the year and thereafter this application has come to be filed on 14.02.2008 (Annexure-9). Since in the election petition, the election petitioner has already abandoned his plea with regard to recrimination and seeking relief of declaration of the result in his favour, the other candidates, who contested the election are not necessary parties and, therefore, in view of abandoning of the said plea as recorded in the order of this 16 Court dated 10.08.2007 in S.B. Civil Writ Petition bearing No.3470 of 2007, I find no merits in this writ petition and this writ petition is accordingly dismissed. The interim order passed by this Court dated 17.03.2008 stands vacated. Since, the term of the Gram Panchayat is due to expire in February 2010 and sufficient time has been lost on account of the above litigations, the learned trial Court is directed to take steps to decide the election petition as expeditiously as possible. Consequently, all these five writ petitions are dismissed as aforesaid with cost of Rs.2,000/- (Rupees two thousand) in each of the petitioners to the respondent Rajendra Singh. (Dalip Singh) J. ashok/