Rakesh Kumar Jain, J.

1 This appeal is directed against order of learned Election Tribunal (Sub Divisional Magistrate), Sangrur, dated 25.9.2009, whereby election petition filed by respondent No.1 has been allowed and election of appellant rsos. 1 to 4 has been set aside.

2 Shorn of unnecessary details, it is suffice to mention here that election for panch of village Salempur was held on 26.5.2008 in which appellant Nos. 1 to 4 were declared elected. The said election was challenged by respondent No. l.by way of C.W.P.No. 17684 of 2008, which was disposed of on 04.10.2008 with a direction to respondent No. 1. to file an election petition.

3 t is pertinent to mention here that in the said order, the Court had not ordered for condonation of delay which might have occurred on the part of respondent No. 1 while pursuing his remedy in the writ jurisdiction. Ultimately, respondent No. 1 filed an election petition under Section 76 of the Punjab State Election Commission Act, 1994 (for short, -the Act-) for setting aside the election of the appellant Nos. 1 to 4 on the ground that his nomination paper has been illegally rejected. Admittedly, the election petition was filed on 15.12.2008.

4 Learned Election Tribunal framed as many as four issues, out of which one of the issues was -whether the petition in the present form is maintainable --. In any case, the Election Tribunal found that nomination papers of respon- dent No. 1. were illegally rejected, therefore, election of the appellants and performa respondent was set aside.

5 Aggrieved against the said order, appellant Nos. 1 to 4 have preferred this appeal before this Court in which besides other points, learned counsel for the appellants has argued that election petition by itself was barred by limitation and could not have been entertained much-less decided in favour of respondent No. 1. He submits that admittedly, the election took place on 26.5.2008 and election petition was filed on 15.12.2008. He further submitted that even if the time during which election petitioner was busy in pursuing his remedy in writ jurisdiction, is excluded, still election petition has been filed after expiry of 71 days from the order dated 4.10.2008, though as per Section 76 (1) of the Act. election petition should have been filed within 45 days from the date of declaration of result.

6 Learned counsel further submits that if election petition is not filed within 45 days, then under Section 80 of the Act, Election Tribunal has no other alternative but to dismiss the election petition then and there. In reply, learned counsel for the respondents have submits that manifest injustice has been caused to respondent No. 1 as he was deprived of his right to contest election due to illegal rejection of his nomination papers. It is submitted that responsdent No.l under bonafide belief, pursued his remedy in the writ jurisdiction of this Court and had immediately challenged the election, but because of ill advise, he could not file election petition within 45 days from 4.10.2008 onward. It is also submitted that the appellants herein, cannot take the plea of limitation at this stage a.s the same was not set up in defence. It is further submitted that so far as issue No. 3, is concerned, that was not pressed by the respondents because of the findings recorded by the Election Tribunal.

7 I have heard learned counsel for the parties and have perused the record with their assistance.

8 Before adverting to the rival contentions of learned counsel for the parties, a look at the relevant provisions of Act is necessary and for that purpose, Sections 76 and 80 are reproduced below --

Sec. 76. Presentation of petition.- (1) An election petition may be presented on one or more of the grounds specified in sub section (1) of Section 89 to the Election Tribunal by any candidate to such election or by any elector within a period of 45 days from the date of election of the returned candidate or if there are more than