JUDGMENT Vineet Saran, J.
1. In an election for the post of Gram Pradhan of the Village Chandauri Khas, Vikas Khand Rohta, Tahsil and District Meerut, the writ petitioner was declared elected. Challenging the said election, the respondent no, 2, Mahak Singh filed an Election Petition No. 8 of 2005 before the respondent No. 1. By an order dated 20.4.2006 passed by the respondent No. 1-Up Ziladhikari, Meerut, the application for recounting of votes filed by the election petitioner, respondent No. 1 has been allowed. Aggrieved by the said order, the petitioner has filed this writ petition.
2. I have heard Sri Vivek Chaudhary, learned Counsel appearing for the petitioner as well as learned Standing Counsel appearing for respondent No. 1 and Sri K.P. Tewari, learned Counsel appearing for the contesting respondent No. 2. A short counter affidavit has been filed on behalf of the contesting respondent No. 2, to which a short rejoinder affidavit has also been filed. Considering the nature of the order which is being passed and keeping in view that no useful purpose would be served by issuing notices to the other proforma respondents, with the consent of the learned Counsel for the parties, this writ petition is being disposed of at this stage. However, in case if the other respondents to whom notices have not been issued are so aggrieved, they shall be at liberty to file an application for modification, variation and/or recall of this order.
3. Brief facts giving rise to this case are that the application for recounting of votes filed by the election petitioner, respondent No. 2 was taken up for hearing on 17.4.200O. un the said date the arguments of the election petitioner were concluded in the absence of the counsel for the writ petitioner, and 19.4.2006 was the date fixed for orders, with liberty to the petitioner to file his written submissions. On 18.4.2006 the writ petitioner filed an application praying that because of certain personal difficulties and the death in his family, the counsel for the writ petitioner could riot appear on the date fixed and it was prayed that the case may thus be fixed for 21.4-2006 for hearing. Another application under Order VII Rule 11 C.P.C. had been filed on the said date i.e. 18.4.2006, raising preliminary objections.
4. On 19.4.2006 the application of the petitioner filed under Order VII Rule 11 C.P.C. was taken up for hearing and 20.4.2006 was the date fixed for orders on such application. It is note worthy that although on 17.4.2006 it was observed that 19.4.2006 was the date fixed for passing orders on the election petition itself, no such orders had been passed and after hearing, orders on the application under Order VII Rule 11 C.P.C. had been reserved. On a perusal of the order dated 20.4.2006 it is clear that thereafter, on 20.4.2006 the arguments of the learned Counsel for the election petitioner and other parties had been heard in the absence of the learned Counsel for the writ petitioner and the application of the election petitioner for recounting has been allowed. Challenging the said order, the petitioner filed a revision under Section 12-C of the U.P. Panchayat Raj Act before the District Judge. However, as contended by the learned Counsel for the writ petitioner, realizing that the revision was not maintainable in view of the judgments of this Court rendered in the cases of Bhagwat Prasad Misra v. Sub-Divisional Officer 1985 UPLBEC 115 and Dulhey Khan v. District Judge, Bndaun 1997 (88) Revenue Decisions 17, the writ petitioner filed an application on 26.4,2006 for withdrawal of the said revision. By order dated 26.4.2006 the revision has been dismissed as not pressed. In paragraph 31 of this writ petition, it has been categorically stated that "the said Civil Revision is not maintainable as a revision is maintainable only against the final judgment passed in the election petition and not against the orders passed during the proceedings" and as such, it has been contended that the application for withdrawal of the revision was filed solely on the ground that the writ petitioner had agitated the matter before a wrong forum and not because of merits of the case.
5. In the aforesaid facts, the learned Counsel for the writ petitioner has submitted that on 17.4.2006 the petitioner could not appear on personal grounds because of death in his family. On the application for recounting, no orders were ever passed on the date fixed, i.e. 19.4.2006. Thereafter without passing any orders on the application filed by the writ petitioner under Order VII Rule 11 C.P.C., on which arguments were heard on 19.4.2006;md 20.4.2006 was the date fixed for orders, it has been urged that no final orders On the application for recounting could have been passed. It has further been submitted that since the orders on the application under Order VII Rule 11 C.P.C. had been reserved and 20.4.2006 was the date fixed only for passing of such orders, the counsel for the writ petitioner did not appear, as no arguments were required to be advanced on the said date. According to the petitioner, the respondent No. 1 wrongly took up the election petition on merits on 20.4.2006, and proceeded to hear the application for recounting on merits and decided it on merits. The contention is that without having decided the application under Order VII Rule 11 C.P.C., on Which orders had been reserved, the application for recounting could ; not have been decided,
6. Sri K.P. Tewari, learned Counsel appearing for the contesting respondent No. 2, the election petitioner has, however, submitted that in view of the fact that the writ petitioner had withdrawn his revision before the District Judge, without liberty to file this writ petition, this writ petition cannot be entertained. In support of this submission, he has placed reliance of two decisions of the Apex Court ' rendered in the case of Sarguja Transport Service v. State Transport Appellate Tribunal and Avtar Singh v. Jagjit Singh .
7. Having heard learned Counsel for the parties and considering the facts and circumstances of this case, in my view, this writ petition deserves to be allowed and the order dated 20.4.2006 deserves to be set aside.
8. I have gone through the decisions of the Apex Court as has been relied upon by the learned Counsel for the election petitioner, respondent No. 2, In my view, the ratio of the said decisions do not apply to the facts of the present case. In the case of Sarguja Transport (supra), the issue before the Apex Court was regarding the maintainability of a subsequent writ petition after one writ petition had been withdrawn by the same petitioner, without liberty to file a fresh writ petition. In the other case of Avtar Singh (supra), the case before the Supreme Court was regarding the maintainability of a suit 'where, after the plaint had been returned by the civil court for presentation to the proper revenue court after giving a finding that the civil courts did not have jurisdiction to try the suit, the revenue court also returned the plaint after holding that the revenue court has no jurisdiction to try the suit, in such circumstances, the suit again instituted before the civil court was held to be not maintainable as it amounted to resjudicata, since the civil court had already recorded a finding that it has no jurisdiction to try the suit.
9. In the present case, the revision challenging the order dated 20.4.2006 had been filed before the District Judge and realizing that, in view of the decisions of this Court in the cases of Bhagwat Prasad Misra v. Sub-Divisional Officer and Dulhey Khan v. District Judge, Budaun (supra), the revision would not be maintainable, the writ petitioner got the revision dismissed as not pressed and approached this Court in writ jurisdiction. It is not disputed by the learned Counsel for the respondent that in view of the aforesaid decisions of this Court, revision before the District Judge under Section 12-C of the Act would not be maintainable. However, it has been stated that L since the revision has been withdrawn, the writ petitioner would not have a right to file this writ petition, since no liberty was given by the revisional court for filing this writ petition.
10. Since the revision had been dismissed, not on merits but, only on the technical ground that the same was not pressed as the District Judge did not have jurisdiction to hear the revision under Section 12-C of the Act, in my view, this writ petition filed by the writ petitioner challenging the order dated 20.4.2006 would not be barred, or else, in the given circumstances, the petitioner would become remedyless, which would be contrary to the purpose and the scheme of the Act.
11. As regards the merits of the case, in my view, since the petitioner has not been heard on merits, and valuable rights of the writ petitioner are affected by the impugned order, the same deserves to be set aside, A perusal of the orders dated 17.4.2006 and 19.4.2006 clearly show that 20.4.2006 was the date fixed for decision on the application filed by the writ petitioner under Order VII Rule 11 C.P.C. and the election petition was not to be taken up for hearing on merits on that date. Despite that, a perusal of the impugned order dated 20.4.2006 makes it clear that the counsel for the election petitioner as well as other parties were heard on the said date and the decision on the application for recounting, tiled by the election petitioner, was passed on merits. Even otherwise, considering the grounds for non-appearance of the learned Counsel for the writ petitioner before the respondent No. 1 on 17.4.2006, which was for the reason that there was a death in the family of the writ petitioner and some close relatives of the writ petitioner had received serious injuries in the fire which broke out in the exhibition at the Victoria Park in district Meerut, in my opinion, the respondent No. 1 ought to have given one opportunity to the writ petitioner to be heard on merits.
12. In view of the aforesaid, the order dated 20.4.2006 which is impugned in this writ petition, is set aside. However it is directed that the parties shall appear before respondent No. 1 on 8"' May, 2006 alongwith a certified copy of this order and the respondent No. 1 shall proceed to hear and decide the matter in accordance with law, after giving opportunity of hearing to the parties without granting any unnecessary adjournments to either of the parties.
13. This writ petition stands allowed to the extent indicated as above. However, there shall be no order as to costs.
14. Let a certified copy of this order be issued to the learned Counsel for the parties by 5th May, 2006 on payment of usual charges.