MADHAB CHANDRA SWAIN v. ELECTION TRIBUNAL-CUM-MUNSIF
1986-11-06
B.K.BEHERA, K.P.MOHAPATRA
body1986
DigiLaw.ai
JUDGMENT : B.K. Behera, J. - The petitioner assails the order dated 15-4-1986 passed by the learned Munsif-cum -EIection Tribunal, Kendrapara, in Election Miscellaneous Case No. 10 of 1984 rejecting an application made by him for summoning P. W. 1, a junior Engineer, for further examination in order to substantiate his case that the opposite party No. 2, who was the sole contestant of the petitioner for the office of the Sarpanch of the Baro Grama Panchayat, had a subsisting contract with the State Government, by getting a document marked 'X' for identification while P. W. 4 was under examination admitted in evidence through P. W. 1 who was said to be competent to identify the writings and signatures of the opposite party No. 2. The Tribunal has rejected the application on the grounds that the petitioner had sufficient time and opportunity to prove the document in accordance with law and allowing such an application would cause undue delay in the proceeding and harassment to the opposite party No. 2 2. While the learned counsel for the petitioner has submitted that the impugned order would cause grave injustice to the cause of the petitioner and would stand as a hindrance to get at the truth, the learned counsel for the opposite party No. 2 has reiterated the same grounds taken by the Tribunal while rejecting the application. 3. The petitioner and the opposite party No. 2 were the sole contestants for the office of the Sarpanch. In the event of success of the petitioner in the election dispute, he would be entitled to a declaration that he was elected to the office of the Sarpanch. Undoubtedly, as has been submitted at the Bar by the learned counsel for both the sides, the documents sought to be admitted irv evidence on behalf of the petitioner is an important and material document, which was likely to tilt the balance one way or the other. True it is that adequate steps had hot been taken by the petitioner to have the document called for at a very early stage and to get it admitted in evidence properly, but as would appear from the materials placed before as, this document was brought on the record having been marked 'X' only for the .purpose of identification as P. W. 4 was not competent to formally prove the document.
After the petitioner closed his case, the opposite party No. 2 did not examine himself. It has been submitted on behalf of the petitioner that this had deliberately been done by the opposite party No. 2 in order to avoid confrontation with regard to the document in question. We express no opinion about it. It must, however, be said that had the opposite party No. 2 examined himself, the petitioner would have an opportunity of having the document proved through him. At the stage of hearing arguments, an application was put in to summon P. W. 1 for further examination. 4. The extraordinary judisdiction of this Court is exercised in such cases only when the circumstances necessitate such interference and this jurisdiction is to be rarely and in exceptional cases exercised at such interlocutory stages. However, as has rightly been submitted by the learned counsel for the petitioner on the basis of the principles laid down by this Court Niranjan Sahu Vs. Narasu Satpathy and Others an interlocutory order passed under the Orissa Grama Panchayat Act is not appealable to the Court of the District Judge Thus, the petitioner has no alternative remedy. In a similar case, this Court exercised its jurisdiction under Art. 226 of the Constitution of India and set aside the impugned order in that case allowing the prayer of the petitioner to re-examine the opposite party No. 1 for further examination. Reliance has been placed on behalf of the opposite party No. 2 on a decision of the Supreme Court reported in N.T. Veluswami Thevar Vs. G. Raja Nainar and Others. In that case, however, it was held that no interference was called for under Art. 226 of the Constitution of India as there was an alternative remedy available by way of appeal. 5.
G. Raja Nainar and Others. In that case, however, it was held that no interference was called for under Art. 226 of the Constitution of India as there was an alternative remedy available by way of appeal. 5. No doubt, in the event of the application made by the petitioner being allowed, some delay might have been caused in the disposal of the proceeding which had been continuing from the year 1984 and such an election dispute should expeditiously be disposed of, but in order to prevent miscarriage of justice which would affect the petitioner and to get at the truth, it would be just and reasonable, in our view, to set aside the impugned order passed by the Tribunal and direct the Tribunal to summon P. W. 1 for further examination and while doing so, it would be reasonable to compensate the opposite party No. 2 for the delay occasioned by the petitioner in making the application. 6. For the foregoing reasons, we would allow the writ application and set aside the impugned order as per Annexure-1 with a direction to the Tribunal to summon P. W. 1 for further examination only with regard to the proof of the document which has been marked 'X' for identification and then to afford an opportunity to the opposite party No. 2 to adduce rebuttal evidence, if any, only with regard to the document in question, subject to payment of Rs. 200/- (Rupees two hundred) as costs by the petitioner to the opposite party No. 2 within ten days hence. The learned counsel for the petitioner has undertaken on behalf of the petitioner that costs will be paid to the learned counsel for the opposite party No. 2 in this Court within ten days. If costs are not paid within ten days, hence the writ application shall stand dismissed without further being placed before us. If costs are paid, the directions made by the Court above are to be implemented. Both the parties are directed to appear before the Tribunal on 24-11-1986 for fixation of a date for the further examination of P.W. 1. The record of the Tribunal be sent down at once. The Election Tribunal will make an earnest endeavour to dispose of the dispute as expeditiously as is reasonably possible. K.P. Mohapatra, J. 7. I agree. Final Result : Allowed