Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri S.K.S. Paliwal, learned counsel for the appellant and Sri Naveen Sinha, learned Senior Advocate assisted by Sri Kartikey Saran and Sri Sanjiv Kumar Yadav, learned counsel for the respondents.

2. Both the learned counsel for the parties jointly stated that the appeal may be finally heard and decided. Consequently, with the consent of learned counsel for the parties, this appeal has been finally heard.

3. This first appeal has been filed by the defendant-appellant under Rule 49 of The U.P. Kshetra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to be as ‘Rules’) for setting aside the judgment and order dated 19.9.2016 in Election Petition No. 02 of 2016 passed by the Court of District Judge, Azamgarh.

Facts:

4. Briefly stated the facts of the present case are that the plaintiff-respondent No. 1 and the defendant-appellant both have filed nominations on 5.2.2016 for the post of “Pramukh” of Kshetra Panchayat ‘Palhna’, District Azamgarh in the Election, 2016. Total number of elected members of the aforesaid Kshetra Panchayat were 56 and amongst them “Pramukh” was to be elected. The voting and counting of votes took place on 7.2.2016. As per instructions of the Election Commissioner, the voters were required to cast their preferential votes by mentioning the numericals 1, 2, 3 . . . in the ballot paper opposite the name of the candidates.

5. There were only two candidates in the aforesaid election for the post of “Pramukh” namely the plaintiff-respondent and the defendant-appellant whose names were mentioned in the ballot paper at serial Nos. 1 and 2 respectively. Both the candidates secured 28 votes each. According to the Returning Officer both the candidates secured equal votes and as such lottery took place in which the defendant-appellant was declared winner. However, in election petition the Court below found one vote casted in favour of the defendant-appellant to be invalid for the reason that in the said ballot paper although figure “1” was mentioned in order of preference against the name of the defendant-appellant but figure “II” was mentioned against the name of the plaintiff-respondent No. 1.

Submissions of the defendant-appellant:

6. Sri Shashi Nandan, learned Senior Advocate has submitted as under:

(i) The impugned judgment is ex parte, inasmuch as, on 19.9.2016 advocates were on strike and they abstained from work. Consequently, none of the counsel for the parties appeared before the Court in the aforesaid Election Petition and thus the impugned judgment was passed ex parte.

(ii) The finding of the Court below with regard to the identification of the voter afterwards because of putting the figure “II” against the name of plaintiff-respondent in terms of Rule 26(3)(d) of the Rules is beyond pleadings.

(iii) The ballot paper in question was never rejected by the Returning Officer under Rule 26(2)(b) of the Rules and as such the question of declaring the vote as invalid by the impugned judgment is erroneous.

(iv) Once the first preference vote casted by the ballot paper in question in favour of the defendant-appellant was found to be valid, there was no occasion to look into the second preference vote in terms of Rule 26(2)(c) of the Rules since there were only two candidates.

(v) Mere putting the figure “II” against the name of plaintiff-respondent for second preference vote is not indicative of identity of voter. Hence, the provisions of Rule 26(3)(d) of the Rules are not attracted at all.

(vi) No reasons have been recorded by the Court below in the impugned judgment for its finding of identification of voter afterwards in terms of Rule 26(3)(d) of the Rules.

(vii) Even the ballot paper in question was not summoned and produced before the Court below.

7. Sri Shashi Nandan has pain takingly referred to various portions of the impugned judgmen