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2008 DIGILAW 1622 (RAJ)

Kalyan Mal v. Jamna Ram

2008-07-04

NARENDRA KUMAR JAIN

body2008
JUDGMENT 1. - Admit. 2. At the request of the learned counsel for both the parties; the final arguments in the case were heard. 3. The respondent no. 1 - Jamna Ram fled an election petition before the Election Tribunal-cum-Civil Judge (Senior Division), Shree Madhopur challenging the election of petitioner - Kalyan Mal who was elected on the post of Sarpanch. The matter was fixed for non applicant's (petitioner herein) evidence on 25th April, 2008. The statement of NAW 13 Gopi Ram and NAW 14 Cheetar Mal were recorded. The petitioner moved an application that he wants to examine other witnesses also but his evidence was closed and case was fixed for final arguments. Being aggrieved with the same, the present writ petition has been preferred. 4. The learned counsel for the petitioner contended that on 25th April, 2008 two witnesses were examined on his behalf and he wanted to examine some more witnesses and for that purpose he moved an application in writing also that his other witnesses could not appear due to their Illness, therefore, some reasonable time may be granted to examine them. The trial court committed an illegality in rejecting the application and closing the evidence, therefore, impugned order be set-aside and he may be given one last chance to examine his witnesses. It is also contended that so far as delay of proceedings is concerned, the plaintiff can be compensated by way of awarding cost. 5. The learned counsel for the respondent no. 1 contended that election petition was filed by him in the year 2005 and his evidence was closed on 16th January, 2007 and since then 16 opportunities were granted to petitioner but for one reason or the other, he delayed the matter. He contended that earlier the last opportunity was granted to the petitioner on payment of cost but he is unnecessarily delaying the proceedings of the trial court by filing the frivolous applications. In alternative, the contended that in case this court is inclined to allow the petitioner to examine some more witnesses, then he may be directed to examine his remaining witnesses at his own on one day and heavy cost may be imposed on him. 6. I have considered the submissions of learned counsel for the pi The election petition was filed by the respondent no.1 in the year 200&. 6. I have considered the submissions of learned counsel for the pi The election petition was filed by the respondent no.1 in the year 200&. l iie petitioner was elected on the post of Sarpanch and his election has been challenged by respondent no.1. It is true that plaintiff's evidence was closed on 16th January, 2007 and since then 16 opportunities were granted to the petitioner but it appears that the petitioner being an elected Sarpanch wants to delay the proceedings of the trial Court. However, I find that on 25th April, 2008 also two witnesses were examined on behalf of the petitioner, therefore, it cannot be said that he did to examine any witness inspite of last opportunity granted to him. In the impugned order it is mentioned that on earlier occasions last opportunity was granted to the petitioner, therefore, it appears that the matter Is being delayed by the petitioner and the reason for It is obvious that he Is an elected Sarpanch and present case relates to challenge of his election. In these circumstances, I find that the order passed by the trial court is perfectly justified. However, in the interest of justice, I grant one last opportunity to the petitioner to examine his all remaining witnesses on the next date fixed in the trial court i.e. 11th July, 2008 at the cost of Rs. 3,000/- and with the clear understanding that no further opportunity will be granted to him and the trial court will decide the case thereafter finally. 7. Consequently, the writ petition is allowed. The petitioner is given a liberty to examine his all remaining witnesses at his own in the trial court on 11th July, 2008, the date fixed in the trial court. In case there is any unavoidable situation for the trial court on that day, then the case may be passed on for 14th July, 2008 for the said purpose, however, no further opportunity will be granted to the petitioner for the said purpose. The petitioner will pay Rs. 3000/- towards cost to the election petitioner before adducing his evidence and in case he fails to pay the amount of cost, then the trial court will not record his evidence and this writ petition will be deemed to have been dismissed. 8. With the aforesaid liberty, terms and directions the writ petition stands allowed. The petitioner will pay Rs. 3000/- towards cost to the election petitioner before adducing his evidence and in case he fails to pay the amount of cost, then the trial court will not record his evidence and this writ petition will be deemed to have been dismissed. 8. With the aforesaid liberty, terms and directions the writ petition stands allowed. So far as this writ petition is concerned, there will be no order as to costs.Writ petition allowed as above. *******