HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 1400/2021

Karan Sharma S/o Shri Purshottam Gaur, Aged About 28 Years,

R/o Arihant Vatika, Sewage Farm, Sodala, Jaipur (Rajasthan).

----Appellant

Versus

1.

Raghunath Agarwal S/o Gopal, Aged About 47 Years, R/o

B-209, The Grand Geejgarh, Hawa Sarak, Jaipur

(Rajasthan).

2.

Ghanshyam Bhargava S/o Shivdayal Bhargava, R/o 3/55,

A.G. Colony, Bajaj Nagar, Jaipur (Rajsthan).

3.

Rajkumar Agarwal S/o Namalum, R/o B-87, Bajaj Nagar,

Jaipur (Rajasthan).

4.

Santosh Krishan Sharma S/o Gopal Krishan Sharma, R/o

F-429, Gandhi Nagar, Jaipur (Rajasthan).

5.

Returning Office, Nagar Nigam, Jaipur (Greater) Ward No.

131 To 140 EVM UP Mahanirikshak, Panjiyan EVM

Mundrakan, Jaipur Varth-Dwitiya, Rajasthan.

6.

Zila Nirwachan Adhikari, Jaipur Nagar Nigam (Greater)

Ziladish Karayalaya, Jaipur (Rajasthan). (Respondent No.

5 And 6 Deleted By Order Dated 12.07.2021 Of D.J.

Jaipur Metro.)

----Respondents

For Appellant(s)

:

Mr. Ashok Kumar Pareek, Adv.

Dr. Anil Sharma, Adv.

Mr. Shalendra Joshi, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

16/08/2021

The instant appeal has been filed by the appellant-defendant

challenging the order dated 31.07.2021, whereby the application

filed by the appellant under Order 14 Rule 5 read with Section 151

CPC for amending and striking out issues has been partly allowed.

(2 of 7)

[CMA-1400/2021]

Learned counsel for the appellant-Mr. Ashok Kumar Pareek

submitted that respondent No.1-Raghunath Agarwal has filed an

election petition against the present appellant in respect of

municipal elections for Ward No.134, Municipal Corporation

(Greater), Jaipur.

Learned counsel submitted that the respondent No.1, in the

prayer of his election petition, has specifically asked only for

setting aside the election dated 01.11.2020 and declaration of

result dated 03.11.2020. Learned counsel submitted that the

prayer clause also included relief of cancellation of election and

further direction to conduct the election afresh.

Learned counsel for the appellant submitted that in the

election petition, filed by the respondent No.1, a reference was

made in para Nos.7 and 8 that the nomination form of respondent

No.1 was wrongly rejected and he was illegally deprived to contest

the election.

Learned counsel submitted that though the averment with

regard to improper rejection of the nomination form of respondent

No.1, was specifically pleaded, however, no relief was claimed in

the election petition seeking for a declaration that rejection of

form of respondent No.1, was to be declared illegal.

Learned counsel submitted that initially the Election Tribunal

framed two issues vide order dated 12.07.2021.

The issues, so framed, are reproduced hereunder for ready

reference:-

“ vk;k izkFkhZ ds fo:) izkFkZuk i= esa mYysf[kr vkijkf/kd

ekeysa esa vkjksi fojfpr ugha gq, Fks vkSj bl dkj.k ls izkFkhZ dh vksj

ls uxj fuxe t;iqj xzsVj ds okMZ uxj 134 ds ik’kZn in gsrq fd;s

x;s ukekadu dks fjVfuaZx vkWfQlj uxj fuxe t;iqj xzsVj

(3 of 7)

[CMA-1400/2021]

¼mi&egkfujh{kd] iath;u ,oa eqnzkad t;iqj o`Rr&f}rh;½ }kjk fujLr

djuk fo/k fo:) FkkA blfy, foi{kh la[;k 3 dks lQy izR;k”kh

ds :i esa ?kksf’kr djus dk ifj.kke fnukad 03-11-2020 dks fujLr

djokdj izkFkhZ iqu% pquko djokus dk vf/kdkjh gS \

…..izkFkhZ

2- vuqrks’k \

fook|d dk;e dj lquk;s o le>k;s x;sA mHk; i{k dh vksj

ls vU; dksbZ fook|d ugha lq>k, x;sA ”

Learned counsel submitted that issue No.1 was wrongly

framed by the Election Tribunal, as there was no prayer in the

election petition to declare the election as null and void.

Learned counsel further submitted that the Election Tribunal

also did not frame the issues relating to limitation, cause of action,

locus standi and effect of improper rejection of nomination form of

respondent No.1 and its consequences.

Learned counsel submitted that the appellant accordingly

mo