1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.1745/2008 (Nakhta Ram Vs. Kheta Ram & Ors.) Date of order : 16.02.2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. N.K. Sharma for the petitioner. Heard learned counsel for the parties. In this case, the petitioner has prayed for quashing of the order dated 24.1.2008 Annexure-6 passed in Election Petition No.3/2007 by Civil Judge (S.D.), Phalodi and has further prayed that Civil Judge (S.D.) Phalodi may be directed to decide the aforesaid Election Petition expeditiously on the basis of the evidence recorded by the Addl. District Judge, Phalodi in the said election petition. In this writ petition, the petitioner has stated that earlier election petition filed by the petitioner was transferred under the orders of District Judge to the Addl. District Judge where the petitioner and the respondents participated in the trial but before decision, a letter was written to the 2 District Judge by Addl. District Judge that he has no jurisdiction to hear the election petition. Upon the said letter after perusing the provision of Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter for short “the Act” only), the District Judge, Jodhpur transferred the election petition to the Court of Civil Judge (S.D.), Phalodi District Jodhpur. Learned Civil Judge (S.D.), Phalodi proceeded to initiate trial for deciding the election petition but a prayer was made by the petitioner that the proceedings undertaken by Addl. District Judge with regard to trial of the case shall be taken into consideration and the matter may be decided on the basis of the evidence recorded by Addl. District Judge. The Civil Judge (S.D.), Phalodi passed an order dated 24.1.2008 (Annexure-6) whereby he has initiated the proceedings from initial stage and the matter was ordered to be listed on 29.2.2008 for framing issues. Learned counsel for the petitioner submits that the proceedings which took place in the Court of Addl. District Judge, Phalodi was within the jurisdiction of Addl. District Judge because no objection was raised by the respondents with regard to trial and the jurisdiction of the Court of Addl. District Judge, Phalodi. Later on when case was transferred from the Court of Addl. District Judge, Phalodi to the Court of Civil Judge (S.D.), Phalodi then petitioner raised an objection for fresh trial in 3 view of the judgment rendered by this Court in case of Sheojilal Vs. District Judge, Bundi & Ors., reported in 2008 (1) DNJ (Raj.) 318 in which it has been held that the proceedings conducted by Addl. District Judge cannot be said to be without jurisdiction. Learned counsel for the petitioner vehemently argued that the matter is squarely covered with the aforesaid judgment and the order dated 24.1.2008 passed by Civil Judge (S.D.), Phalodi may be quashed and direction may be issued to the Civil Judge (S.D.), Phalodi to decide the matter upon the evidence recorded by Addl. District Judge, Phalodi. Per contra, learned counsel for the respondents submits that in this case, the petitioner did not object the transfer of the Election Petition from the Court of Addl. District Judge, Phalodi to the Court of Civil Judge (S.D.), Phalodi, therefore, the judgment cited by learned counsel for the petitioner is not applicable upon the facts of the present case. Further, it is submitted that in view of the provisions of Section 43 of the Act, the District Judge is having jurisdiction to transfer the election petition to the Court of Civil Judge (S.D.), Phalodi after recording reasons for transferring the matter. Here in this case, the petitioner is not challenging the order of District Judge, Phalodi, transferring the election petition but he is objecting that Civil Judge 4 (S.D.), Phalodi shall not conduct fresh trial and shall decide the Election Petition on the basis of evidence recorded by the Addl. District Judge, Phalodi before transfer of Election Petition, which is not permissible under the law because Election Petition was transferred by the District Judge for trial to the Civil Judge (S.D.), Phalodi on the ground that the Addl. District Judge, Phalodi was not having jurisdiction, therefore, Civil Judge (S.D.) Phalodi is under obligation to decide the Election Petition after fresh trial. Therefore, there is no force in this writ petition and the order dated 24.1.2008 passed by Civil Judge (S.D.), Phalodi is perfectly legal and in consonance with the provisions of Section 43 of the Act. In this case admittedly, the petitioner is not challenging the order of District Judge, Jodhpur, transferring the election petition from the Court of Addl. District Judge, Phalodi to the Court of Civil Judge (S.D.), Phalodi. Therefore, when the petitioner is not challenging the said order then obviously, the Civil Judge (S.D.), Phalodi is required to conduct the fresh trial because as per District Judge matter was transferred on the ground that Addl. District Judge has no jurisdiction to decide the Election Petition. In this view of the matter, obviously the Civil Judge (S.D.), Phalodi is under obligation to proceed with the trial afresh. Therefore, the aforesaid judgment 5 cited by learned counsel for the petitioner is not applicable upon the facts of this case because the petitioner is not objecting the order made by the District Judge, Jodhpur for transferring the election petition from the Court of Addl. District Judge, Phalodi to the Court of Civil Judge (S.D.), Phalodi. In this view of the matter, I see no reason to interfere with the order dated 24.1.2008 passed by Civil Judge (S.D.), Phalodi, which is perfectly in consonance with the provisions of law. Accordingly, the writ petition is dismissed. (GOPAL KRISHAN VYAS), J. arun