1. A challenge has been made by the petitioner-returned candidate (hereinafter ‘the RC’) to the impugned judgment dated 22-11-2016 passed by the Senior Civil Judge, Mahuwa, District Dausa (hereinafter ‘the trial court’) in election petition No.16/2015 (47/2015) setting aside his election to the post of Sarpanch of gram panchayat Naurangwada, Panchayat Samiti Mahwa, District Dausa.

2. The facts of the case are that the election petitioner (EP) filed a petition on 4-2-2015 before the trial court challenging the election of the RC to the post of Sarpanch of village Naurangwada on the ground that votes at the said election were wrongly counted in breach of statutory provisions. Subsequently even while the earlier election petition was pending he filed another election petition on 21-2-2015 on the ground that the RC was charged by the court of Additional Chief Judicial Magistrate Mahuwa in case No.12/2011 for offences under Sections 452, 323, 325, and 341 IPC, in case No.41/2008 (BT No.651/2014) and case No.320/2009 (BT No.609/2014) the court of ACJM Sikarai, and facing trial. He was in terms of Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994 (hereafter 'the Act of 1994') ineligible as the offences for which he was being tried were punishable by more than five years imprisonment, to contest the election. The RC's election to the post of Sarpanch was claimed by the EP to be liable to be set aside on the said ground. The election petition first filed on 4-2-2015 was then withdrawn on an application stating that a second election petition had been filed.

3. On service of notice on the petition, the RC filed reply of denial to the pending election petition and submitted that the EP's election petition No.2/2015, earlier filed having been was dismissed as withdrawn on 4-5-2015 without any liberty to pursue the second election petition, it was liable to be dismissed as barred by law in view of Order 2 Rule 2 CPC and Order 23 Rule 1 CPC. With regard to pendency of criminal cases, in which the RC was indeed charged and which were admittedly punishable by more than five years imprisonment, the RC's defence was that the charges did not relate to any moral turpitude.

4. On the basis of pleadings of parties the trial court framed three issues. Issue No.2 related to maintainability of the election petition. The other as to the RC's eligibility to contest the election of 2015.

5. The EP examined himself as Aw-1 and exhibited 38 documents. The RC examined himself as NAW-1 and exhibited 11 documents.

6. Considering the evidence of the parties the trial court vide judgment dated 22-11-2016 held that the second election petition in the facts of the case was maintainable and set aside the election of the RC as Sarpanch of village Naurangwada on the ground of his ineligibility to contest in view of Section 19(gg) of the Act of 1994. Hence this petition.

7. On 20-4-2017, since issue No.2 regarding maintainability of the second election petition was addressed cryptically by the trial court, this court setting aside the judgment dated 22-11-2016 passed by the trial court remanded the matter to it for decision on issue No.2 by a reasoned order. On a Special Appeal there against, the Division Bench vide order dated 20-11-2017 set aside this court's order requiring that the petition be decided on its merits by this court itself. Whether the Division Bench can remand a matter to a Single Bench of this court, as it has, is another matter which the Division Bench in an appropriate case, when the question is raised, may address.

8. Mr. Kamlakar Sharma appearing with Mr. P.C. Devanda for the RC submitted that the subsequent election petition filed on 21-2-2015, when the earlier one on the same cause of action filed on 4-2-2015 was pending was not maintainable in view of Order 2 Rule 2 CPC. He submitted that the earlier election petition then being withdrawn without any liberty to continue with the subsequent/ second petition on the same cause of action,