The provisions of the Code of Civil Procedure do not apply to Election Petitions under Section 31 of the Gujarat Panchayats Act, 1993, as these are inquiries, not trials.

JUDGMENT :

(UMESH A. TRIVEDI, J.)

1. RULE returnable forthwith. Mr. A.B. Gateshaniya, learned advocate waives service of notice of rule on behalf of respondent no.1.

2. This petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner challenging the order passed below Exh.11 by the Principal Civil Judge, Lakhtar, as Election Tribunal acting as such under Section 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as ‘the Act, 1993’), dated 12.09.2024 in Election Petition No.1 of 2024 allowing the application of respondent no.1 herein filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) whereby the Election Petition submitted by the petitioner came to be dismissed as a consequence. The impugned order further states that in view of the order passed below Exh.11 in that terms appropriate order be passed below Exh.1 itself. Though consequential order passed below Exh.1 is not annexed with the petition but consequence of allowing the application filed under Order VII Rule 11 of ‘the Code’, Election Petition came to be dismissed.

3. Heard Mr. Kirtidev Dave, learned advocate for the petitioner. According to his submission, apart from ‘the Code’ is not applicable to proceedings of the Election Petition filed under Section 31 of ‘the Act, 1993’, it could not be even allowed when objection as to its maintainability under Section 11 of ‘the Code’ stating it to be barred by resjudicata or issue estopple under Section 115 of the Indian Evidence Act, 1872. The said objection requires leading of evidence to prove whether the issue raised in the proceedings is barred by resjudicata or not, and therefore, in an application objecting the proceedings to be barred under Order VII Rule 11 of ‘the Code’ could not have been entertained by the tribunal. He has further submitted that though wrong provision is mentioned in application Exh.11 by respondent no.1 herein that Election Petition preferred by the petitioner is not maintainable in view of Order VII Rule 11 (d) of ‘the Code’, as there exists no cause of action to file such Election Petition. However, according to his submission, the ground of non disclosure of cause of action does not fall within Sub Rule (d) of Rule 11 of Order VII of ‘the Code’. Not only that, according to the submission, cause of action is already mentioned in the Election Petition preferred by the petitioner and it is not the case of the respondent that it does not disclose cause of action. Therefore, according to his submission, order impugned requires to be quashed and set aside and the Election Petition No.1 of 2024 is required to be restored to its original number before the learned tribunal.

3.1 Drawing attention of the Court to the decision of this Court in the case of Manjulaben Prakashkumar Chaudhary Vs. State of Gujarat and Ors. reported in 2017(3) GLH 65, more particularly, paragraph nos. 11 and 12, it is submitted that proceedings filed under Section 31 of ‘the Act, 1993’ manifest the legislative intention of providing a mechanism or forum for adjudicating election disputes presented by way of an election petition before the Civil Judge. The provision also further provides comprehensive procedure for determining the validity of an election. Sub Section (3) of Section 31 of ‘the Act, 1993’ specifically uses the expression “inquiry” which will not embrace the sense of “trial”. Correspondingly, an Election Petition cannot be equated with a “suit” filed in a Civil Court. Therefore, it is held, according to the submission of learned advocate for the petitioner, that the Civil Judge exercising power under Section 31 of ‘the Act, 1993’ is “persona designata” but not a Court despite the fact that he is expected to act in a quasi judicial manner. He has further submitted that though in that case, whether Civil Judge exercising power as Election Tribunal under Section 31 of ‘the Act, 1993’ is empowered to grant or refuse injunction