Smita Subhash Sawant vs Jagdeeshwari Jagdish Amin And Ors

3. In order to appreciate the issue involved in this appeal, it is necessary to state a few relevant facts:

(c) Challenging the election of the appellant herein, on 28.02.2012, respondent No.1 filed Election Petition No. 129 of 2012 in the Court of Chief Judge, Small Causes Court, Mumbai. After service of notice, the appellant herein appeared before the Chief Judge and filed written statement contesting inter alia on the ground that the said election petition filed by respondent No.1 herein was barred by limitation as provided in Section 33 (1) of the Act. According to the appellant, the election petition was required to be filed within 10 days from the date on which the list prescribed under clause (k) of Section 28 was available for sale or inspection as provided in Section 33 (1) of the Act. It was contended that since in this case, the list was published and was available for sale or inspection on 17.02.2012, hence, the limitation to file election petition was up to 27.02.2012 as prescribed under Section 33 (1) of the Act whereas the election petition was filed on 28.02.2012 by the election petitioner. It was, therefore, barred by limitation and hence liable to be dismissed as being barred by time. She also filed an application before the Chief Judge praying for framing the issue of limitation as a preliminary issue. Initially, the Chief Judge had rejected the said application but thereafter by order dated 30.07.2013 issued direction to try the said issue as a preliminary issue. After hearing the parties, by judgment and order dated 24.09.2014, the Chief Judge held that the election petition was within limitation. He accordingly entertained the election petition filed by respondent No.1 herein for being tried on merits.

5. Learned Counsel for the appellant while assailing the legality and correctness of the impugned order reiterated the submissions, which were urged by him before the Courts below. According to the learned counsel, both the Courts below erred in holding that the election petition filed by respondent No. 1 herein (election petitioner) is within limitation as prescribed under Section 33 (1) of the Act. In other words, it was his submission that both the Courts below should have held that the election petition filed by respondent No. 1 herein was beyond the period of limitation and in consequence was liable to be dismissed as being barred by limitation.

5. I, therefore, say that since the above-said Gazette Notification was published on 21.02.2012, election petition filed by me is within limitation considering Section 33(1) of the said Act.”

31. We accordingly, hold that the list prescribed under Section 28(k) was available for inspection and sale to the voters of the ward in question on 17.02.2012. In view of this finding, the limitation to file election petition would begin from 17.02.2012 and it will be up to 27.02.2012. In other words, period of limitation of 10 days prescribed for filing the election petition in Section 33 (1) of the Act would begin from 17.02.2012 and it would be up to 27.02.2012.

32. It was, therefore, necessary for respondent No.1 (election petitioner) to have filed the election petition on any day between 17.02.2012 to 27.2.2012. Since the election petition was filed on 28.02.2012, a date beyond 27.02.2012, it was liable to be dismissed as being barred by limitation. In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law. Indeed, no such argument was advanced by the learned counsel for respondent No.1 in this regard.

34. In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the two courts below when both proceeded to hold that the election petition filed by respondent No.1 on 28.02.2012 was within limitation. We accordingly hold that the election petition filed by respondent No.1 out of which this appeal arises was barred by limitation and hence it should have been dismissed as being barred by limitation.

35. The appeal is accordingly allowed. Impugned judgment is set aside. As a consequence, Election Petition No.129 of 2012 filed by respondent No.1 is dismissed as barred by limitation. There shall be no order as to costs.

September 04, 2015.