BERI, J.—By his order 9th March, 1971, the learned Civil Judge, Ajmer, has rejected the Municipal Election Petition of Madan Gopal Gupta because it was not presented to the District Judge himself but to the Musarim of that Court. Madan Gopal Gupta, the petitioner, appeals.

2. The facts, which it is necessary to notice for the disposal of this appeal, briefly stated are these: Dr. Leela Ram, respondent No. 1, was elected as a member from Ward No. 17 to the Ajmer Municipal Council and the petitioner and the respondents Nos. 2, 3, 4 and 5 were defeated. The election took place on 25-10-70 and the counting was made on 26-10-70 and on the same day the result was declared. A petition challenging the election was submitted on 25-11-70 before the Munsarim of the District Judge, Ajmer. By his order dated l9-1-1971 the petition was transferred to the Civil Judge, Ajmer An application was made by the respondent No. 1 on January 2, 1971, in which the respondent No.1 raised the grounds that the election petition was neither presented by the proper person nor before the appropriate authority as required by S. 36 of the Rajasthan Municipalities Act, 1959 (hereinafter called "the Act"). The learned Civil Judge thought it fit to decide the preliminary points and held that while the presentation of the petition by Shri B.L. Samdaria, Advocate, who was along with the petitioner was proper but held that the presentation having been made to the Munsarim of the learned District Judge and not to the District Judge personally, it was not presented before the competent authority as required by law and rejected the petition.

3. Mr. M.B.L. Bhargava, learned counsel for the appellant, submitted that presentation to the District Judges Munsarim was sufficient compliance of the provisions of sec. 40 of the Act; that the Code of Civil Procedure was applicable to Municipal Election petitions under sec. 41(3) of the Act; that any delay on the part of the Munsarim to place the petition before the learned District Judge was a lapse on the part of the Munsarim and should not prejudice the petitioners rights to seek justice; that the ruling of Bajrang Lal vs. Suraj(1) relied upon by learned Civil Judge was distinguishable and the case was covered by a Division Bench decision of this Court in Bansilal vs. ManoharlaI(2). He further submitted that the District Judge under sec. 40 was not a persona designate and the presentation to the Munsarim was perfectly valid.

4. Mr. Arjun Das, appearing for respondent No. 1, argued that the Civil Procedure Code was made applicable by S.41(3) for the trial of election petitions but it was subject to the provisions of the Act and the Act clearly provided in S. 40 that an election petition was to be presented to the District Judge personally and as he was a persona designate the presentation before the Munsarim was not proper and he placed strong reliance on Bajranglals case(l).

5. It will be necessary for the decision of this appeal to closely examine certain provisions of the Act. Sec. 40 reads as follows : —

"Sec. 40. Who shall hear petition—

(1) An election petition may be presented to and shall be heard by—

(a) the District Judge sitting at the place where the Municipal office is situated,

(b) where there is no such District Judge, the Civil Judge so sitting, or

(c) any other Judge specially appointed by the State Government for the purpose.

Provided that, where an election petition is presented as aforesaid to a District Judge, he may for reasons to be recorded in writing transfer the same for hearing and disposal to a Civil Judge subordinate to him and sitting at the place where the Municipal office is situated.

(2) The District Judge or Civil Judge or any other Judges to whom an election petition is presented or transferred and by whom it is heard in accordance with the provisions of sub-sec. (1) is hereinafter referred to as the Judge."

Note.—The italic is mine. The relevant part of sec. 41 reads,—

"Sec. 41 Procedure—(1) The Judge sha

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