JUDGMENT D.K. Seth, J.
1. The opposite party No. 3 filed Erection Petition No. 35 of 1995 before the District Judge, Azamgarh. The petitioner who was an elected Pradhan had filed an objection under Order VII. Rule 11 and prayed that the suit be dismissed on the ground that it had not disclosed any cause of action. Accordingly, a preliminary issue was framed. By an order dated 29th August, 1996, the preliminary issue was directed to be heard on 31st August, 1996. Subsequently, the matter was adjourned from time to time and ultimately the preliminary Issue was taken up on 23rd April, 1997. On the said date after hearing the same, the learned Judge came to the conclusion that for the purpose of deciding the issue, evidence is necessary and, therefore. It is desirable that the preliminary issue should be decided along with other Issues at the time of the disposal of the suit. This order has since been challenged by the learned counsel for the petitioner Mr. Faujdar Rai. He contends that it is only on account of change of the Presiding Officer, a different order has been passed. According to him, this issue can be decided on the basis of the pleadings Itself. No evidence is necessary. Mr. Rai had relied on the decision in the case of Samar Singh v. Kedar Nath and others, AIR 1987 SC 1926.
2. I have heard Mr. Faujdar Rai, learned counsel for the petitioner at length.
3. It is admitted possession that the question under Order VII, Rule 11 is to be decided on the basis of the pleadings made in the plaint. For such decision, it is not necessary to look into any amount of evidence. Therefore, the order dated 23rd April. 1997 does not seem to be a proper order. I have perused the plaint. It appears that in paragraphs 6 and 7, cause of action appears to have been disclosed. The plaintiff had alleged that there were Illegalities and irregularities in the conduct of the election in which he had been defeated after contesting. Whether the allegations made are correct or not, that can be decided on the basis of the evidence that might come. But the question of Order VII. Rule 11 is to be decided on the basis of the pleadings made, as it is. Whether the same is correct or not, cannot be gone into for the purpose of deciding the preliminary issue. As such, though I am not in agreement with the ground mentioned in the order dated 23rd April, 1997 but on the basis of the pleadings made in the plaint, it appears that the objection with regard to Order VII. Rule 11 about non-disclosure of cause of action cannot be sustained. Be that as it may, at this stage, this Court should not embark upon the exercise which should be exercised by the trial court. Then again, the election petition was filed in 1995 in the meantime, almost four years have lapsed. By reason of the interim order granted and the process undertaken, the petitioner had been successful in forestalling the proceeding though admittedly. there was no ground for Order VII, Rule 11, for these long years. An election is valid for a period of five years. If the preliminary issue is now directed to be determined in that event, it will frustrate the whole proceedings. In such circumstances. I am not inclined to interfere with the order dated 23rd April, 1997. Let this issue be also decided along with other issue.
4. The decision in the case of Samar Singh (supra) relied on by Mr. Faujdar Rai does not come to his rescue since it is apparent from the plaint that the cause of action has since been disclosed. In the said decision, it was held that if the election petition is liable to be summarily rejected at the threshold under Order VII, Rule 11 in that event, it ought to be done so. At the same time, it was also held that if it could be done so at the threshold that it can also be done at a later stage even after framing Issues or at the time of deciding the suit itself. Therefore, the said decision supports the view which I have taken in the decision of the said preliminary issue along with other issues at the time of the decision in the proceeding itself. Then again in the case of D. P. Maheswari v. Delhi Administration, AIR 1984 SC 153. the Apex Court had observed that preliminary issue should also be decided at the time of deciding all other issues, otherwise it will prolong the proceeding on preliminary issue which may be fought up to the Apex Court. This is more specific in an election petition since the election petition would become infructuous after five years. The petitioner has already been succeeded in forestalling the proceeding for almost four years. He cannot be permitted on absolute imaginary ground to forestall the proceeding any further.
5. In such circumstances, the writ petition fails and is, accordingly, dismissed. However, there will be no order as to costs.
6. Let this order be communicated to the Court below forthwith. The learned Court below shall decide the election petition, within a period of six months, from the date of communication of this order to the learned Court below. The parties shall take all steps to make the suit ready within a period of two months from this date.