CW 676/06-Sukhcharan Singh Dhillon Vs. State of Rajasthan & Ors. Judgment dt.12.5.09 1/4 S.B. CIVIL WRIT PETITION NO.676/2006 Sukhcharan Singh Dhillon Vs. State of Rajasthan & Ors. Date of order : 12th May, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Raman Deep Singh for Mr. HHS Kharlia for the petitioner. Mr. R.K. Singhal for the respondents. ----- 1. This writ petition is directed against the order of the learned trial court dated 7.1.2006 whereby the learned trial court allowed the application under Order 7 Rule 11 C.P.C. of the defendant, the elected Sarpanch of Gram Panchayat, 20 LM Lunia and rejected the election petition filed by the present petitioner, the defeated candidate. 2. The learned trial court held that the plaint did not disclose any cause of action in the election petition, therefore, the application of the defendant, the elected Sarpanch deserves to be allowed and the election petition was dismissed. 3. Mr. Raman Deep Singh, learned counsel for the petitioner has argued that as per the result sheet in the form No.7 Annex.1 annexed with the writ petition, the number of votes rejected is 60, whereas the number of votes in favour of the different candidates as given in same form comes to 3467 and if the rejected CW 676/06-Sukhcharan Singh Dhillon Vs. State of Rajasthan & Ors. Judgment dt.12.5.09 2/4 votes 60 are added to the number of votes cast in favour of the different candidates i.e. 3467 with the number of total votes cast would far exceed the number of votes cast as given in the said form No.7 at 3470. He explained that the number of votes cast to the candidate 3467 + 60 votes rejected would come to 3527 whereas the Returning Officer has taken the number of votes cast as only 3470 as given on the top of back of page of said form No.7 Annex.1. He further submits that the petitioner had made various averments in the election petition which could establish the misconduct on the part of the respondent No.4 and without allowing a liberty to prove his averments which discloses sufficient cause of action for approaching the election Tribunal, the court has rejected the said election petition on the application filed by the defendant under Order 7 Rule 11 C.P.C. and thus, there has been failure of justice by not trying the election by the learned trial court. 4. Mr. R.K. Singhal learned counsel on the other side opposes the averments made by the learned counsel for the petitioner Mr. Raman Deep Singh and vehemently submitted that even if all the rejected votes, if are counted in favour of the present petitioner, he cannot succeed, because the respondent No.4 has won the election by 194 votes and, therefore, no useful purpose would be served by trying the election petition on merits and the learned courts below has rightly rejected the said election petition by allowing the application CW 676/06-Sukhcharan Singh Dhillon Vs. State of Rajasthan & Ors. Judgment dt.12.5.09 3/4 under Order 7 Rule 11 C.P.C.of the defendant. 5. Having heard learned counsels and upon perusal of the record, this Court is of the opinion that the learned court below has erred in rejecting the election petition under Order 7 Rule 11 C.P.C. without trying the same on merits. The averments made in the election petition prima facie disclose cause of action in favour of the election petitioner and the election petition deserves to be tried on merit. It could be a matter of evidence for the petitioner to prove his various averments made in the election petition and irrespective of success in the election petition or not, the petition deserves to be tried on merit and the same could not have been thrown out at threshold. 6. Learned counsel for the petitioner also submitted that the application for amendment in the plaint filed under Order 6 Rule 17 C.P.C. was also rejected by the learned trial court only on the ground that the defendant has filed this application under Order 7 Rule 11 C.P.C. and, therefore, the said application was also rejected. 7. In view of the aforesaid order, the learned trial court shall also consider the said application under Order 6 Rule 17 C.P.C. afresh. CW 676/06-Sukhcharan Singh Dhillon Vs. State of Rajasthan & Ors. Judgment dt.12.5.09 4/4 8. Consequently this writ petition is allowed and the impugned order dated 7.1.2006 is set aside and the application filed by respondent-defendant No.4, Gurmail Singh under Order 7 Rule 11 is rejected. The matter is restored to learned trial court for trying the election petition on merits and expedite the trial and conclude the same preferably within a period of 6 months from today. No order as to costs. [ DR. VINEET KOTHARI ], J. itemNo.2 babulal