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2005 DIGILAW 593 (ORI)

Hemanta Kumar Meher v. Shiba Prasad Khamari

2005-10-05

M.M.DAS, P.K.TRIPATHY

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ORDER 05.10.2005 — Heard learned counsel for both the parties and on their consent this writ petition stands disposed of at the stage of admission. 2. Opposite Party, Shiba Prasad Khamari was elected as a Member of Remunda Samiti constituency held in the year 2002. Petitioner was contesting for the said post and challenged to the result of that election by filing Election Misc. Case No.9 of 2002 in the Court of Civil Judge (Senior Division), Baragarh. Both the parties being at issue on the election of the Opposite Party having a third child after the cut off date, they adduced oral and documentary evidence in support of their respective case. On assessment of the same, the trial Court found from the Birth Register and the report submitted by A.N.M. and Immuniza¬tion Register, Exts.1 to 7, the case of Opposite Party having a third child after the cut off date was proved to disqualify him to contest from the post of Member of the Panchayat Samiti. 3. Learned Civil Judge rejected the contention of the Opposite Party and the evidence produced by him that on the issue of he having third child, the decision of the learned District Judge on 26.09.2000 in Misc. Case No.1 of 1998, Ext.B, is not binding being not a judgment in personam. Opposite Party chal¬lenged that judgment of the learned Civil Judge in Election Appeal No.3/1 of 2004. Learned Addl. District Judge, Bargarh heard and disposed of the appeal being registered as Election Appeal No.3/1 of 2004 and delivered the impugned judgment on 10.09.2004. Learned Addl. District Judge held that the exhibited documents in proof of birth of the third child of the opposite party are public documents and accordingly acceptable, but such documents are not creditworthy in as much as the source from which information was received relating to the birth of that child in the family of the opposite party is not stated in such public documents nor by the official witnesses and even not by the other witnesses examined by the election petitioner. And apart from that the official witnesses, as noted in the impugned judgment, had no personal knowledge about birth of such a child in the family of the opposite party. In that context, the appel¬late Court also referred to Ext.B, i.e., the judgment rendered by Learned District Judge, Sambalpur in Election Misc. Case No.1 of 1998. That Misc. And apart from that the official witnesses, as noted in the impugned judgment, had no personal knowledge about birth of such a child in the family of the opposite party. In that context, the appel¬late Court also referred to Ext.B, i.e., the judgment rendered by Learned District Judge, Sambalpur in Election Misc. Case No.1 of 1998. That Misc. Case was registered on the application of anoth¬er person who challenged the candidature of the opposite party. In that judgment learned District Judge rejected the contention against the opposite party that he begot a third child after the cut off date. Learned. District Judge, in that case, held that the petitioner (in that case) could not prove birth of a third child after the cut off date. Learned Addl. District Judge there¬fore relied on that Ext.B in support of his finding that a case of birth of third child has not been proved against the opposite party to disqualify him. In that context he referred to the provision in Section 41 of the Indian Evidence Act and the case of M.G. Narayanaswami Naidu and another v. M. Balasundaram Naidu and others, A.I.R. 1953 Madras 750. 4. Learned counsel for the petitioner advances argument supporting the findings given by the learned Civil Judge on the same reasoning and criticize the reason assigned by the learned Addl. District Judge in rejecting his case on the issue of proof of third child of the opposite party. 5. After perusal of the judgment of the Courts below and evidence on record, both oral and documentary, we subscribe to the criticism made against the judgment of learned Addl. District Judge so far relating to acceptance of Ext.B as the proof that the third issue was not born to the opposite party. In that context, we find that learned Addl. District Judge has wrongly taken shelter of Section 41 of the Evidence Act and the ratio in M.G. Naranayanaswami’s case (supra). In the context of “relevancy of facts” as provided in Chapter-II, under sub- heading “judgments of Courts of justice when relevant” Section 41 only makes the judgment relevant relating to status if that arises out of pro¬ceedings for probate, matrimonial dispute, admiralty or insolven¬cy. The Election Misc. Case No.1 of 1998 who was not a case of that nature. Apart from that, Section 41 only states that judg¬ments in such cases are relevant. Learned Addl. The Election Misc. Case No.1 of 1998 who was not a case of that nature. Apart from that, Section 41 only states that judg¬ments in such cases are relevant. Learned Addl. District Judge failed to distinguish between the terms ‘relevant’ and ‘proved’. The approach of the learned Civil Judge was absolutely correct that Election Misc. Case No.1 of 1998 was not being between the parties in the present election dispute, therefore, any decision taken therein at the instance of another person though against the same opposite party, then also that is merely a relevant fact and not conclusive proof of the fact that opposite party did not beget a third child after the cut off date. In such type of cases dummy candidates creating such type of litigations and advancing mock contest granting a clean chit to a disqualifying person is a possibility which cannot be ruled out. Therefore, when the elec¬tion petitioner was not a party to that proceeding in Election Misc. Case No.1 of 1998 of the Court of District Judge, Sambal¬pur, therefore, the decision therein (Ext.B) neither operates as res judicata nor estoppel against the election petitioner. 6. Be that as it may, so far as the finding relating to doubtful nature of the documents, Exts. 1 to 7 in support of the claim of birth of the third child to the opposite party, we find that when the persons who have made entries in the register had no personal knowledge about such birth, when there is no endorse¬ment in relevant registers by the opposite party or his family members, when there is nothing on record to indicate that such intimation was given by the opposite party or his family members and above all, when the source of information is not disclosed in the above context, the aforesaid entries being part of public documents may be admissible, but cannot be recorded as proof of birth of third child conclusively. 7. On the basis of the aforesaid discussion of the facts and circumstances and the contention of the parties, though we set aside the finding of the learned Addl. 7. On the basis of the aforesaid discussion of the facts and circumstances and the contention of the parties, though we set aside the finding of the learned Addl. District Judge relat¬ing to acceptance of Ext.B as proof of the fact that the opposite party did not beget the third child after the cut off date, but keeping in view that once such an allegation has been made by the election petitioner (writ petitioner), then the burden of proof lies on him and in that context he could not prove such an alle¬gation against the opposite party through oral and documentary evidence Exts.1 to 7 and, therefore, the result of the appeal is non-interferable. Thus, we do not find it to be a fit case to exercise our writ jurisdiction to set aside the impugned judgment of learned Addl. District Judge, Bargarh in Election Appeal No.3/1 of 2004. Accordingly the writ petition is dismissed. No costs. Petition dismissed.