ORDER

1. Heard finally, with the consent of the parties.

2. This petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 13.1.2023, passed by respondent No.1/Sub-Divisional Officer (Revenue) in an Election Petition filed by the respondent No.2. The petitioner is the returned candidate, who was elected as Sarpanch from Gram Panchayat Borwal, Tehsil Jhirniyam, District Khargone (M.P.)

3. In brief, the facts of the case are that against the election of the petitioner, an election petition was filed by the respondent No. 2/Kailash Kirade on 21.7.2022. After the petitioner was served in the said election petition, an application under Order 7 rule 11 of the CPC was filed by him contending that the petition is liable to be dismissed as it does not confirm to the procedure as prescribed under rule 3 and 4 of M.P. Panchayat (Election Petitions, Corrupt Practices & Disqualification from Membership) Rules, 1995 (in short 'rules of 1995'). The petitioner's primary contention was that the petition has not been signed by the election petitioner and also that the necessary party as provided under Rule 4 has not been made a party. A reply to the aforesaid application was also filed by the respondent No.2, however, subsequently, the respondent No.2 also filed an application under Order 6 rule 17 of CPC for signing the election petition and another, under Order 1 rule 10 of CPC for impleading the party.

4. The petitioner's contention is that the learned Member of the Tribunal instead of deciding the petitioner's application filed under Order 7 rule 11 of CPC, has decided the aforesaid two applications filed by the election petitioner/respondent No.2, one under Order 6 rule 17 and the other, under Order 1 rule 10 of CPC and the record of election has also been called.

5. Counsel for the petitioner has submitted that the learned Member of the Tribunal has allowed the election petitioner to cure the defects whereas, the objection raised by the petitioner has not been decided. In support of his submissions, Shri Manuraj Singh, counsel appearing for the petitioner has relied upon decisions rendered by this Court in the case of Amol Singh v. Hamir Singh passed in W.P. No.1690 of 1995 dated 25.1.1996 reported as 1996 (1) M.P.W.N. 187, Satya Narayan S/o Onkarlalji Patidar v. Additional Commissioner, Ujjain and others reported as 2008(1) M.P.L.J. 505, Baijulal Verma v. Additional Collector, Chhindwara reported as 2009 (4) M.P.L.J. 548,, Rakesh S/o Narayanlalji v. Returning Officer Panchayat Nirvachan reported as 2012(4) M.P.L.J. 458.

6. On the other hand, counsel appearing for the respondent No.2 has relied upon a decision rendered by the Co-ordinate Bench of this Court in the case of Akbar Kha v. Prithviraj reported as 2017(4) M.P.L.J. 575, in which this Court has held that once an election petition is admitted, same cannot be dismissed later on for noncompliance of rules 3, 4 and 7 and it is held that compliance of rules 3, 4 and 7 is to be seen before admission of the election petition.

7. Counsel for the respondent No.2 has also submitted that the present petition itself is also not maintainable as remedy of revision is also available to the petitioner. In support of his submissions he has relied upon the decisions rendered in the case of Omkar Lal Asatkar v. Sub-Divisional Officer (Revenue), Lanji, Dist. Balaghat and others reported as 2001(1) M.P.L.J. 52; T. Phungzathang v. Hangkhanlian and Others reported as (2001) 8 SCC 358; Smt. Premlata Jaiwal v. State of M.P. and others reported as 2003 A I H C 2442; Mohammad Isha v. Vasudeo reported as 2008(1) M.P.L.J. 547.

8. In rebuttal, counsel for the petitioner has also relied upon a subsequent decision of this Court in the case of Vishnu Singh v. State of M.P. reported as 2018 (3) M.P.L.J. 671, in which this Court has held that objection by the petitioner to the maintainability of the election petition on the ground of non-compliance of rule 3(1) and (2