B.R Arora, J.:— This appeal is directed against the judgment dated 20-1-97 passed by the Civil Judge (Senior Division) cum Chief Judicial Magistrate, Hanumangarh, by which the learned Civil Judge dismissed the election petition filed by the appellant-petitioner.
2. Learned counsel for the appellant, though challenged the order passed by the learned Civil Judge on merit as well as on the ground of jurisdiction, but the appeal can be disposed of only on the question of jurisdiction of the trial Court in passing the decree and it is not necessary to go into the merits of the appeal.
3. The contention of the learned counsel for the appellant is that the power to hear the election petition under the Municipalities Act is vested in the District Judge having jurisdiction over the area in which the Municipal Office is situated, or to the Additional District Judge subordinate to the District Judge, to whom the District Judge, after assigning the reasons, has transferred the election petition for hearing and disposal and the Civil Judge, who passed the order, has no jurisdiction to hear and decide the election petition.
4. The contention of the learned counsel for the respondents, on the other hand, is that no such objection regarding jurisdiction was taken by the appellant before the learned Civil Judge and, therefore, now, in view of Section 21 of the C.P.C, the appellant-petitioner cannot be permitted to raise such objection regarding the question of jurisdiction in the appeal. It has, also, been contended by the learned counsel for the respondents that even on merit, the appellant has no case and no prejudice has been caused to the appellant. Even on merit, the judgment is sustainable and no purpose will be served in remanding the case.
5. I have considered the submissions made by the learned counsel for the parties.
6. The question, which requires consideration is: whether the decree and judgment passed by the learned Civil Judge can be sustained and whether the objection regarding jurisdiction can be taken in an appeal ?
7. Section 40 of the Rajasthan Municipalities Act, 1959 (for short, ‘the Act’) deals with the Authority which shall hear the election petition. The amended Section 40, which was substituted by the Second Amendment Act, 1994, reads as under:—
“Section 40. Who shall hearing petition. (1) An election petition may be presented to, and shall be heard by, the District Judge having jurisdiction over the area in which the municipal office is situated:
Provided that where an election petition is presented as aforesaid to the District Judge, he may, for reasons to be recorded in writing, transfer the same for hearing and disposal to an Additional District Judge subordinate to him.
(2) The District Judge or Additional District Judge by whom it is heard in accordance with the provisions of Sub-section (1) is hereinafter referred to as the ‘Judge’.”
8. Section 40 of the Act authorises only the District Judge or the Additional District Judge having jurisdiction to hear the election petition. No other authority has been authorised by the Act to hear and decide the election petition under the Rajasthan Municipalities Act. The learned Civil Judge, under Section 40 of the Act, was not vested with the powers to adjudicate the election petition under the Rajasthan Municipalities Act. The decree and judgment passed by the learned Civil Judge was, therefore, wholly without jurisdiction and deserves to be quashed and set-aside.
9. The next question which requires consideration is: whether the objection regarding the jurisdiction can be taken in appeal? When the Court, which has decided the matter, had no jurisdiction to adjudicate he dispute, the decree passed by such Court is nullity and its validity can be questioned at any time, even in an appeal or even during the execution proceedings. Consent of the parties or the silence or inaction of the parties in challenging the jurisdiction will not confer the jurisdiction on the Court to adjudicate the dispute which otherwise the Court has no jurisdiction to decide. The authority of the Court to adjudication can be challenged at any stage. It has been held by the Hon'ble Supreme Court in: Kiran Singh v. Chaman Paswan (1) that:—
“It is fundamental principle that a decree passed by a Court with out jurisdiction is nullity and that its validity could be set-up whenever and wherever it is sought to be enforced or relied-upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.”
The learned Civil Judge had no jurisdiction to adjudicate the matter. The objection regarding jurisdiction, thus, can be raised at any time even during the appeal.
10. I have not expressed any opinion on merits of the case and the matter has been decided purely on the question of jurisdiction. The controversy involved in the merits of the case will be adjudicated by the trial Court.
11. In the result, the appeal filed by the appellant is allowed. The decree and judgment passed by the learned Civil Judge is set-aside and the case is remanded to the District Judge to hear and decide the election petition in accordance with law. The District Judge will be free to transfer the election petition for adjudication to the Additional District Judge subordinate to him after assigning the reasons.
In the facts and circumstances of the case, the parties are left to bear their own costs.
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