The court established that election petition rules permit the deletion of non-mandatory defendants, aligning with the principles of the Representation of People Act.

JUDGMENT

1. This civil misc. appeal filed under Section 32 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the Act of 2009') against the order dated 12.07.2021 whereby the application of the respondent moved under Order 1 Rule 10 (2) CPC was allowed and the names of defendant Nos.1 & 2 were deleted from the array of defendants.

2. Brief facts of the case are that the plaintiff-respondent filed an election petition before the Election Tribunal against the election of the petitioner as Member Ward No.134. An election petition was filed under Section 31 of the Act of 2009 and in accordance with Rajasthan Municipalities Election Petition Rules, 2009 (hereinafter referred to as 'the Rules of 2009'). At the time of filing of the election petition, he impleaded the Returning Officer and District Election Officer as the defendant nos.1 & 2 apart from the other defendant as well as the petitioner who participated in the election.

3. The petitioner submitted his written statement but did not object to the impleadment of the defendant nos.1 & 2 to the election petition, however, an application was moved by the Public Prosecutor before the Election Tribunal under Order 1 Rule 10 (2) read with Section 151 CPC for deleting the defendant nos.1 & 2 from the array of defendants. Consequent thereto, after hearing the parties, the application was allowed on 12.07.2021 and the name of defendant nos.1 & 2 was struck off from the array of defendants. Learned counsel for the petitioner submits that while deleting the defendant Nos.1 & 2, learned Tribunal has fallen in error in relying on judgment which were in relation to the Representation of People Act, 1951 (hereinafter referred to as 'the Act of 1951') and the provisions contained under the Act of 1951 are different from the Rajasthan Municipalities (Election) Rules, 1994 (hereinafter referred to as 'the Rules of 1994') and therefore there was no requirement to delete the said two defendant Nos.1 and 2.

4. Learned counsel has taken this Court to the provisions of the Act of 1951 and specially to Section 82 and other provisions of Chapter-II of Part VI of the Act of 1951 which lays down the presentation of election petition.

5. Learned counsel for the petitioner submits that so far as the provisions contained under Chapter-II of Part VI of the Act of 1951 is concerned, it specifically provides that in election petition the petitioner shall join as respondent to his petition all the contesting candidates where he is seeking declaration that he himself be treated to be duly elected or in cases where he is seeking any declaration to set aside the election of the Returned Candidate, he may also implead a candidate against whom allegations of corrupt practices are made.

6. However, he submits that if the election petition is filed under the Act of 1951 and if it does not comply with the provisions of Section 81 and 82 or Section 117, the High Court has to mandatorily dismiss the election petition but so far as the Rules of 2009 are concerned, he submits that as per Rule 3(4) while a similar provision as Section 82 has been incorporated but there is no such similar provision as provided under Section 86 and therefore he submits that it is not mandatory that only those candidates as mentioned in Rule 3(4)(a) and (b) should be the only defendants and other defendants can also be party in a municipal election petition. On account of their being parties, the election petition would not be liable to be dismissed and would not

be termed as defective. Therefore, the learned Tribunal was not required to delete the Election Officer and Returning Officer from the array of defendants. It has thus committed an error, moreso as the issue involved in the election petition was of wrongfully rejecting the nominations of the election petitioner namely plaintiff-respondent.

7. Learned counsel for the petitioner submits that the persons who could have best answered to the issue raised in the election