The Court dismissed the writ petition under Article 227 challenging an order granting time to cure verification defects in an election petition. The Court found no miscarriage of justice as the petitioner had rectified the defect in accordance with the lower court's directions.
The writ petition stands dismissed.
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W.P.(C) No.247 of 2018
06. 08.08.2018
The petitioner by filing this application has invoked the jurisdiction of this Court under Article 227 of the Constitution in impeaching an order dated 01.12.2017 passed by the learned Civil Judge (Jr.Divn.), Sonepur in Election Misc. Judicial Case No. 01 of 2017.
The opposite party has filed an election petition under section 30 of the Orissa Gram Panchayat Act challenging the election of the petitioner to the post of Sarpanch of Baladi Gram Panchayat, seeking a declaration that said election of the petitioner as Sarpanch of said Gram Panchayat is invalid on the ground that the petitioner is unable to read and write Odia which is the mandatory qualification for the membership of the Gram Panchayat as required under section 11(b) of Gram Panchayat Act.
Mr.G. Misra, learned counsel for the petitioner and Mr. H.S. Mishra, learned counsel for the opposite party.
Perused the impugned order.
This petitioner had earlier approached this Court by filing a writ application i.e. W.P.(C) No. 15424 of 2017 assailing an order dated 21.07.2017 passed by the learned Civil Judge (Jr. Divn.), Sonepur in Election M.J.C. No. 1 of 2017.
The petitioner having filed an application for preliminary hearing of the election petition on the question of its maintainability and its being liable to be dismissed at
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threshold in view of non-compliance of the provision of section 33 (c) of Orissa Gram Panchayat Act without proper verification in accordance with the provision of order 6 rule 15 of the Code of Civil Procedure, the court below had rejected the same. That order having been questioned by filing the earlier writ application as already stated, this Court had disposed of the same directing the opposite party to raise all the issues for their decision in accordance with law.
After the above order, the petitioner raised the same issue with regard to absence of required verification by the opposite party to the election petition and prayed for rejection of the election petition under order 7 rule 11 of the Code. The court below this time has found such defect as regards the verification to be there in both the election petition filed by the opposite party and also in the show cause filed by the petitioner. It has been found that the verification as given in the election petition as well as the show cause are strictly not in consonance with the provision of order 6 rule 15 of the Code.
In that view of the matter, the court below has directed the parties to cure said defects in their respective pleadings by filing necessary application for amendment with further stipulation that in case such step is not taken within the period of 14 days, the parties would be precluded from proceeding further in the said matter.
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Mr. G. Misra, learned counsel for the petitioner placing reliance upon the decision of the Apex Court in case of R.P. Moidutty vs. P.T. Kunju Mohammed and another ; AIR 2000 SC 388 submits that the court below should not have shown any grace in the matter to the petitioner in further allowing her the time to cure the defect when the defect although had been pointed out at the initial stage, the petitioner has not paid any heed to the same for all these period. He further submits that the court below by passing the impugned order has travelled beyond the bounds of its authority.
Mr. H.S. Mishra, learned counsel for the opposite party submits that the opposite party having been directed to do the needful in curing the defect with regard to the verification of the election petition has already complied with the same and now the court below is proceeding with the recording of evidence in the trial of the election petition. He further submits that in such state of affair, the petitioner cannot be said to have persisted in pursuing the petition without proper verification as to be adversely affected inviting a fatal blow to his election petition which has been the view in case of R.P. Moidutty (supra). He therefore submits that at present the challenge to the order at the instance of the petitioner does not hold water.
Considering the submissions made and keeping in view the fact that such defect with regard to the verification in the election petition has been cured by the petitioner in
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obedience to the order of the court below without persisting in pursuing the defective petition which is being tried after rectification of the defect, this Court does not find that any such justification to interfere with the impugned order in exercise of the jurisdiction of this Court under Article 227 of the Constitution by going to say that by the said order, there has occasioned grave miscarriage of justice.
Accordingly, the writ petition stands dismissed.
…………………
D. Dash, J.
Aks
3 issues framed by the court
Whether the writ petition challenging the order granting time to cure procedural defects in verification should be allowed.
Whether the impugned order occasioned a grave miscarriage of justice requiring interference under Article 227 of the Constitution.
Whether the petitioner has cured the defect of insufficient verification in the election petition.
Colour shows how this judgement treated each authority
R.P. Moidutty vs. P.T. Kunju Mohammed and anotherDistinguished¶14
AIR 2000 SC 388 · Who else cites this
5 provisions across 3 enactments
Petitioner
Opposite Party
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
