Case Note & Summary
The petitioner, Prakash Devji More, was elected as a Councillor of the Municipal Corporation of Greater Mumbai (MCGM) on 23/02/2017. The respondent No.1, Komal Kamlakar Jamsandekar, his rival contender from Ward No.159, filed an Election Petition under Section 33 of the Mumbai Municipal Corporation Act, 1888, challenging his election. The petition alleged that the petitioner concealed certain information from the Returning Officer and furnished false or incorrect information in the affidavit filed along with his nomination paper, amounting to corrupt practices under Section 28F of the Act. The election petition was registered as Election Petition No.13 of 2017. The petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint. The learned Additional Chief Judge of the Small Causes Court at Mumbai rejected the application on 24/04/2019, recording that the application was filed after issues were already framed and was perceived as an attempt to protract the election petition. The court imposed costs of Rs.5,000 on the petitioner for adopting delaying tactics. Aggrieved by this order, the petitioner filed the present writ petition before the Bombay High Court. The High Court examined the sequence of events and the grounds raised in the election petition. The court noted that the election petition raised triable issues regarding concealment of information and furnishing false information, which could not be summarily rejected at the threshold. The court held that the trial court was justified in rejecting the application under Order VII Rule 11 CPC as it was filed belatedly after issues were framed, and the grounds raised could be considered during the trial. The High Court dismissed the writ petition, upholding the order of the trial court.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Election Petition - The court considered whether an application under Order VII Rule 11 CPC filed after issues were framed in an election petition should be entertained. The trial court rejected the application as a delaying tactic and imposed costs. The High Court upheld the order, holding that the application was filed belatedly and the grounds raised could be considered at trial. (Paras 1-2)
B) Municipal Law - Election Petition - Corrupt Practices - Sections 28F, 33 Mumbai Municipal Corporation Act, 1888 - The election petition challenged the election of a councillor on grounds of concealment of information and furnishing false information in the affidavit accompanying the nomination paper, alleging corrupt practices under Section 28F of the Act. The court noted that the petition raised triable issues. (Paras 2-3)
Issue of Consideration
Whether the trial court was justified in rejecting the application under Order VII Rule 11 CPC filed by the petitioner (elected councillor) seeking rejection of the election petition plaint, on the ground that the application was filed belatedly after issues were framed and amounted to a delaying tactic.
Final Decision
The High Court dismissed the writ petition, upholding the order of the trial court rejecting the application under Order VII Rule 11 CPC. The court held that the trial court was justified in rejecting the application as it was filed after issues were framed and amounted to a delaying tactic. The court also upheld the imposition of costs of Rs.5,000.
Law Points
- Order VII Rule 11 CPC
- Rejection of Plaint
- Election Petition
- Delaying Tactics
- Mumbai Municipal Corporation Act 1888
- Section 33
- Section 28F
- Conduct of Election Rules 2006
Case Details
2021 LawText (BOM) (12) 25
WRIT PETITION NO.637 OF 2020
Mr. Bharat Joshi with Mr. R. K. Mendadkar for the Petitioner, Ms. Asha Bhuta with Mr. Aditya Pawar for the Respondent No.1, Mr. Om Suryavanshi for the MCGM
Komal Kamlakar Jamsandekar & Ors.
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Nature of Litigation
Writ petition challenging the order of the Small Causes Court rejecting the petitioner's application under Order VII Rule 11 CPC for rejection of plaint in an election petition.
Remedy Sought
The petitioner sought to quash the order dated 24/04/2019 rejecting his application under Order VII Rule 11 CPC and to allow the application for rejection of the election petition plaint.
Filing Reason
The petitioner was aggrieved by the trial court's order rejecting his application under Order VII Rule 11 CPC, which sought rejection of the election petition plaint filed by the respondent No.1 challenging his election as a councillor.
Previous Decisions
The learned Additional Chief Judge of the Small Causes Court at Mumbai rejected the application under Order VII Rule 11 CPC on 24/04/2019, recording that the application was filed after issues were framed and was a delaying tactic, imposing costs of Rs.5,000.
Issues
Whether the trial court was justified in rejecting the application under Order VII Rule 11 CPC on the ground that it was filed after issues were framed and amounted to a delaying tactic.
Whether the election petition plaint disclosed a cause of action and could be rejected at the threshold.
Submissions/Arguments
The petitioner argued that the election petition did not disclose a cause of action and was liable to be rejected under Order VII Rule 11 CPC.
The respondent No.1 contended that the application was filed belatedly after issues were framed and was an attempt to delay the proceedings.
Ratio Decidendi
An application under Order VII Rule 11 CPC for rejection of plaint filed after issues are framed in an election petition can be rejected as a delaying tactic, and the grounds raised can be considered during trial. The court should not entertain such applications at a belated stage when the issues are already framed.
Judgment Excerpts
The petitioner, who is elected as a Councillor on 23/02/2017 of the Municipal Corporation of Greater Mumbai (for short, 'the MCGM') for a term of five years, is aggrieved by an order passed by the learned Additional Chief Judge of the Small Causes Court at Mumbai on 24/04/2019, thereby rejecting the application filed by him under order VII Rule 11 of the Code of Civil Procedure (for short, 'the CPC'), by which he sought rejection of the plaint filed by way of an Election Petition, calling in question his election as a Councillor.
The sequence of events would reveal that on the petitioner being elected as a Councillor in the year 2017, the respondent No.1-Smt.Komal Kamalakar Jamsandekar, his rival contender from Ward No.159, filed an Election Petition under Section 33 of the Mumbai Municipal Corporation Act, 1888 (for short, 'the Act'), calling in question his election as a Councillor.
The ground raised in the Election Petition by his rival, is to the effect that he has concealed certain information from the Returning Officer of the Election Commission and furnished false or incorrect information in the affidavit, which was filed alongwith the nomination paper.
Procedural History
The petitioner was elected as a Councillor on 23/02/2017. The respondent No.1 filed Election Petition No.13 of 2017 under Section 33 of the Mumbai Municipal Corporation Act, 1888 challenging the election. The petitioner filed an application under Order VII Rule 11 CPC seeking rejection of the plaint. The learned Additional Chief Judge of the Small Causes Court at Mumbai rejected the application on 24/04/2019, imposing costs of Rs.5,000. The petitioner then filed the present writ petition before the Bombay High Court challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VII Rule 11
- Mumbai Municipal Corporation Act, 1888: Section 33, Section 28F
- Municipal Corporation for Greater Mumbai Conduct of Election Rules, 2006:
