With consent heard finally.

The present petition under Article 226/227 of the Constitution of

India has been preferred by the petitioner taking exception to the

order dated 17.05.2023 passed by the Court of Sub-Divisional

Officer (SDO), Lahar, District Bhind, whereby an application

under Order 7 Rule 11 of the CPC filed by the petitioner as

respondent/returned candidate in election petition, which is being

preferred by the respondent No.2 has been rejected.

Precisely stated facts of the case are that the petitioner and

respondent No.2 participated in the election for the post of

Sarpanch in Gram Panchayat Sikri Jagir, Tahsil Lahar, District

Bhind. In the said election, respondent No.2 obtained 407 votes

whereas petitioner obtained 425 votes. Consequently petitioner

declared as elected/returned candidate by Annexure P/2.

Thereafter, election petition under Section 122 of the M.P.

Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter

3

referred as 'Act of 1993') was filed at the instance of respondent

No.2 with certain allegations in respect of improper conduct of

counting process.

3.

Notice was issued on 10.08.2022 and petitioner appeared before

the Court of SDO, Lahar, Bhind. He moved an application under

Order VII Rule 11 of the CPC seeking rejection of the election

petition as according to him, election petition was not duly

supported by the affidavit. Sub-Divisional Officer heard the rival

contentions and dismissed the application so preferred. Therefore,

this petition has been filed.

4.

It is the submission of learned counsel for the petitioner that the

election petition in respect of Panchayat is being governed by the

M.P. Panchayat (Nirwachan) Niyam, 1995 (hereinafter referred as

'Nirwachan Niyam, 1995') and the M.P. Panchayat (Election

Petitions, Corrupt Practices and Disqualification of Membership),

Rules 1995 (hereinafter referred as 'Election Petitions' Rules

1995'). As per Rule 5 of the Election Petitions Rules 1995,

contents of petition shall incorporate the signature of the

petitioner and verification of the contents of statements of all

material facts and particulars would be in manner laid down in the

Code of Civil Procedure, 1908 for the verification of pleadings.

Counsel referred the Order VI Rule 15 of the CPC and submitted

that verification of pleadings has to be in accordance with the

Clause 4 of said Sub-Rule 15 where it has been prescribed that

person verifying the pleadings shall also furnish an affidavit in

4

support of his pleadings. Here, in the present case, affidavit has

been filed but it has been sworn before the Oath's Commissioner

and not before the Judicial Magistrate First Class or Notary.

Oath's Commissioner is not the appropriate authority before

whom election petitioner could have sworn the affidavit because

of the effect of Rule 5 of the Commissioner of Oath's Rules, 1976

(hereinafter referred as 'Oath's Rules, 1976').

5.

According to the learned counsel for the petitioner, as per Rule 5,

the Commissioner of Oaths shall have power to verify affidavits

to be used in Courts by administering oaths and affirmations.

While referring the Rule 2 (b) where definition of 'Court' has been

defined, learned counsel stressed over the point that 'Court' means

only civil court under superintendence of the High Court. Here,

Court of SDO is not a civil court as per the definition given in the

Oath's Rules, 1976, therefore, affidavit sworn before Oath's

Commissioner cannot be treated to be an affidavit for the purpose

of election petition. This was the compliance which is mandatory

in nature and therefore, any omission or deficiency renders the

case vulnerable.

6.

For creating a distinction between the civil courts and revenue

courts, learned counsel for the petitioner referred Sections 3 and 5

of the CPC and submits that for the purpose of CPC, district

courts is sub-ordinate to the High Courts and as per Section 5,

revenue courts cannot act as civil courts be