The main legal point established in the judgment is the interpretation of the timing of the cause of action to file an election petition under Section 30 of the Orissa Grama Panchayat Act, 1964, and the implications of Order 23, Rule 1 of the Civil Procedure Code on the right to file a fresh case.

R. K. PATRA, J.

( 1 ) THE plea of the petitioner that the election petition challenging his election as Sarpanch is not maintainable having been rejected by the learned Civil Judge (Junior Division), Berhampur in the order dated 30-5-1999 at Annexure-1, he has come up with this writ petition for quashing of the same.

( 2 ) FACTUAL Matrix :for the election to the office of the Sarpanch, Kaluapalli Grama Panchayat the petitioner and opposite party No. 4 filed their nominations which were duly accepted. On 18-12-1996 the opposite party No. 4 filed M. J. C. No. 257 of 1996 in the Court of Civil Judge (Junior Division), Berhampur praying for rejection of the nomination paper of the petitioner. The said case was dismissed on 13-2-1997. In the meantime, i. e. on 14-1-1997 the election was held. On 21-1-1997 opposite party No. 4 filed M. J. C. No. 14 of 1997 praying for declaration that the petitioner was disqualified to contest the election. The allegation was that there was rigging of votes and casting of votes was done in the name of dead persons and absentee voters. On 27-1-1997 the election result was announced and the petitioner was declared elected. On 29-3-1997 opposite party No. 4 filed a petition in M. J. C. No. 14 of 1997 to withdraw the same with a right to refile a fresh election dispute. The learned Civil Judge on the same day (29-1-1997) passed order permitting him to withdraw the aforesaid case. In view of such order, M. J. C. No. 14 of 1997 stood withdrawn. Subsequently on 10-2-1997, he (opposite party No. 4) filed election petition bearing M. J. C. No. 29 of 1997 challenging the election of the petitioner on the same grounds/allegations made by him in M. J. C. No. 14 of 1997. The petitioner appeared before the learned Civil Judge and filed a petition contending that M. J. C. No. 14 of 1997 filed against him in which the very allegations were made having beenwithdrawn by him without obtaining leave to file a fresh case, M. J. C. No. 29 of 1997 is not maintainable, is already indicated, by the impugned order the learned Civil Judge overruled the petitioner's aforesaid preliminary objection.

( 3 ) THERE is no dispute that opposite party No. 4 in his petition seeking permission to withdraw M. J. C. No. 14 of 1997 did reserve his right to file a fresh case, if necessary. The learned Civil Judge on considering the matter allowed withdrawal of M. J. C. No. 14 of 1997 by order dated 29-1-1997 but it was not indicated in the order as to whether any liberty was given to opposite party No. 4 to file a fresh case. Therefore, the limited question that arises for consideration is in absence of any specific order granting liberty to institute a fresh case, whether the election petition (M. J. C. No. 29 of 1997) filed by the opposite party No. 4 challenging the election of the petitioner as Sarpanch is hit by sub-rule (4) of Rule 1 of Order 23, C. P. C.

( 4 ) IN order to appreciate the point at issue, a few facts are necessary to be taken note of M. J. C. No. 14 of 1997 was filed by opposite party No. 4 before declaration of the result of election with the following prayers :" (II) Call for the necessary documents, records etc. from the election of the post of Sarpanch of Keluapalli Grama Panchayat held in 14th January, 1997; and (iii) Declare the petitioner (i. e. the opposite party No. 4) as the uncontested and successful elected candidate for the post of Sarpanch of Keluapalli Gram Panchayat in this recent election; and" On 27-1-1997 result of the election was announced. On 29-1-1997 opposite party No. 4 filed the petition to withdraw M. J. C. No. 14 of 1997 which was allowed by the learned Civil Judge on the same day. Opposite Party No. 4 filed M. J. C. No. 29 of 1997 out of which the impugned order arises on 10-2-1997 with the following prayers" " (iv) On hearing set aside the election result dated 27-1-1997 of the Keluapalli G. P. as published by the respondent No. 1 which is null and void and cannot be effected, and decla