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2008 DIGILAW 822 (ORI)

Bhajaman Padhan v. Parsuram Dehury

2008-09-11

M.M.DAS

body2008
ORDER 11.09.2008 — Heard Mr. Dash, learned counsel for the peti¬tioner, Mr. Pattnaik learned counsel for the opp.party No.1 and the learned counsel for the State. 2. As Mr. Pattnaik has produced certified copies of the various orders passed by the Election Tribunal, I do not find it necessary to call for the lower Court records for verification of the same. 3. The writ petitioner in this writ petition has called in question the judgment dated 25.7.2008 passed by the learned District Judge, Dhenkanal in F.A.O. No.15 of 2007 confirming the judgment dated 21.6.2007 passed in Election Misc. Case No.13 of 2007 by the learned Civil Judge, (Junior Division), Dhenkanal declaring the election of the petitioner as Sarpanch of Govindprasad Grama Panchayat as null and void and further declaring the opp.party No.1 as Sarpanch. 4. Bereft of unnecessary details, relevant facts for the purpose of disposal of the writ petition are as follows : The petitioner was the returned candidate as Sarpanch of the aforementioned Grama Panchayat. His election to the said office was challenged in Election Misc. Case No.13 of 2007 by the opp.party no.1 before the learned Civil Judge (Junior Division), Dhenkanal under Section 30 of the Orissa Grama Panchayat Act on the ground that the petitioner was not eligible to contest as Sarpanch as he is unable to read and write Oriya, which is one of the conditions to be eligible to contest as Sarpanch under Sec¬tion 11 of the Orissa Grama Panchayat Act. From the certified copy of the order sheet produced before this Court, it appears that on 11.5.2007, the case was adjourned to 19.6.2007 i.e., on the date of reopening of the Court after summer vacation. On that date, the petitioner has filed an appli¬cation seeking liberty to examine himself as a witness being present in the Court. But the said prayer was rejected. It further appears from the certified copy of the order sheets that the learned Civil Judge (Junior Division), Dhenkanal has taken the pain of passing orders on 11.5.2007 in three phases. On that date, a petition was filed on behalf of the writ petitioner praying for an adjournment on the ground of illness of the peti¬tioner. It further appears from the certified copy of the order sheets that the learned Civil Judge (Junior Division), Dhenkanal has taken the pain of passing orders on 11.5.2007 in three phases. On that date, a petition was filed on behalf of the writ petitioner praying for an adjournment on the ground of illness of the peti¬tioner. The Court has recorded that the C.D.M.O. who was called upon to intimate the Court regarding the treatment which is being given to the opp.party No.1 (writ petitioner) on the previous day, wrote a letter dated 11.5.2007, i.e., the date on which the order was passed, regarding the health condition of the writ petitioner stating that the petitioner was in a position to attend the Court when the C.D.M.O. saw him on 9.5.2007 at 8.00 P.M. Thereafter, it appears that the Court directed the C.D.M.O. to enquire if the petitioner is found in a fit condition so as to be produced before the Court on the said date at 12.00 noon and then to send such person with the staff of the Sadar District Headquarters Hospital. In the event, the C.D.M.O. finds that the patient is not in a position to be sent to the Court, then he should report accordingly. The learned Civil Judge (Jr. Division), Dhenkanal even deputed a peon of the Court by orders passed on that date for carrying the message and to accompany the writ petitioner if he is found fit to come to the Court. The learned Civil Judge, thereafter, stating “Later/11.5.07” has passed the following order: “Office Peon Sri Padmanav Behera submitted his report re¬garding Court appearance of Sri Bhajaman Padhan (O.P. No.1) in this case. Perused the report of Sri Behera. The report of Court orderly reveals that, he intimated against the order in this Court to the O.P. No.1 and his attend¬ing personal but such personal refused the appearance of O.P. No.1). The Court Peon intimated this to the bed side Doctor. The Doctor said him that he shall make the necessary arrangement. Then the Court Peon returned to the Court and reported the matter in writing. Simultaneously, learned counsel for the petitioner also submitted that the O.P. No.1 is surrendered with his supporters at the D.H.H. Dhenkanal and is not responding the Courts order. The Doctor said him that he shall make the necessary arrangement. Then the Court Peon returned to the Court and reported the matter in writing. Simultaneously, learned counsel for the petitioner also submitted that the O.P. No.1 is surrendered with his supporters at the D.H.H. Dhenkanal and is not responding the Courts order. Learned counsel for the O.P. No.1 intimated the Court that he has advised the O.P. No.1 to obey the Court’s order at once. He further submitted to wait for some time before taking any stringent action of passing any further order. Put up at 12.30 P.M. for necessary order, awaiting the arrival the O.P. No.1. The learned counsel for the O.P. No.1 is hereby directed that if the O.P. No.1 disobeys the Court’s order, justified order shall be passed with adverse presumption against the O.P. No.1. Again, on the same day, the said learned Civil Judge has recorded the order to the following effect : “Later/11.5.2007. The O.P. No.1 namely Sri Bhajaman Padhan is brought to the Courts as is found fit to appear before the Court today. Basing on the fitness report of the C.D.M.O. Dhenkanal submitted vide letter No.1677 dtd. 11.5.07, the order for production of the O.P. No.1 is insisted, since this is a case wherein, allegation is that O.P. No.1 is not able to read & write. Further, today is a clearance day for the Civil Court, as Summer Vacation starts from 14.5.07 to 16.6.07 and 12.5.07, 13.5.07, 17.6.07 are public holidays. In view of the nature of allegation and the available nature of evidences on record, the insistence of the appearance of O.P. No.1 for his test of reading & writing is felt indispens¬able. However, when the order for the attendance of the O.P. No.1 was required and accordingly was intimated to the C.D.M.O. Dhen¬kanal vide memo No.929 dtd. 11.5.07 & the Court peon namely Sri Padmanav Behera was deputed on duty for such purpose to accompany the O.P. No.1 from the hospital to the Court, he returned and reported to the Court, the presence of all the learned counsels for the respective parties that, the supporters of O.P. No.1 are not allowing the removal of O.P. No.1 from the hospital to the Court despite the order of the Court sent through the C.D.M.O. Dkl. Learned counsel for the O.P. No.1 namely Sri Ajit Prasad Singh immediately interfered and sent a message to O.P. No.1 to appear before the Court, without any fuss. After a while the O.P. No.1 being accompanied with around 7 persons of his side (as per information of the Court Staff), came to the Court in an Ambulance. Doctor Sri Pratap Kumar Das and the driver namely Sri Biranchi Rout of the Dist. Headquarters Hospi¬tal, as have accompanied the O.P. No.1 in the alleged vehicle, their signatures have been obtained against the remarks column of this order. The O.P. No.1 did not appear before the Court, though all the learned counsels appearing for the respective parties and the P.O. waited for him for 25 minutes. The O.P. No.1 did not make himself available before the Court and was supported for such purpose by his supporter companions. Even when the Court peons namely Sri Padmanav Behera & Sri Rama Ch. Dalei went and compelled the attendance of the O.P. No.1 before the P.O. and the respective learned counsels of this case, the O.P. No.1 did not respond such compulsion. It is thus observed that, the O.P. No.1 though was fit to appear before the Court and even was brought to the Court, did not allow his tests for reading and writing. Even the O.P. No.1 did not respond the advice of his learned counsel Sri Asit Prasad Singh. Since this is a case to decide the eligibility of the O.P. No.1 and entitlement if any of the petitioner, hence, any other stringent steps against the O.P. No.1 for avoiding his test of reading and writing is not felt highly necessary. But all such activities shown from his side gave a conclusive presumption that he avoided and opted all such conducts, only because he does not know reading and writing. In this event any further evidences from any side is least required. Accordingly, put up the case record on 19.6.2007 for argument. Parties to be ready accordingly.” 5. A bare perusal of the said order dated 11.5.2007 dis¬closes the ignorance of the learned Civil Judge with regard to the procedure prescribed under the Code of Civil Procedure and also reflects innovative steps taken with regard to procurement of the attendance of a party before him, unknown to law. Parties to be ready accordingly.” 5. A bare perusal of the said order dated 11.5.2007 dis¬closes the ignorance of the learned Civil Judge with regard to the procedure prescribed under the Code of Civil Procedure and also reflects innovative steps taken with regard to procurement of the attendance of a party before him, unknown to law. It also discloses lack of rudimentary knowledge in passing the said order while dealing with an election petition under the Grama Panchayat Act. It further appears that in the said proceeding, as the writ petitioner was not examined, the learned Civil Judge proceeded to record an ex parte order holding that the petitioner did not know how to read and write Oriya even though, admittedly, the peti¬tioner was not examined as an witness and the said inference is only based on conjecture and surmises which, as it appears, the learned Civil Judge presumed due to non-examination of the writ petitioner. Even though an appeal was carried against the said order by the petitioner, the appellate Court made out a third ground, which was not the case of either of the parties, that the nomination paper by the writ petitioner was not filled up by himself, and therefore it was an irregular procedure and accept¬ing the findings of the learned Civil Judge confirmed the said order. 6. I have perused the appellate Court’s order. Considering the manner in which the final order has been passed in the elec¬tion dispute which has been confirmed in the appeal, I am of the opinion that the same cannot be sustained and accordingly, I quash both the orders dated 21.6.2007 and 25.7.2008 passed by the learned Civil Judge (Junior Division), Dhenkanal in Election Misc. Case No.13 of 2007 and the learned District Judge, Dhenka¬nal in F.A.O. No. 15 of 2007 respectively under Annexure-3 and 5 and the matter is remitted back to the learned Civil Judge (Junior Division), Dhenkanal, who shall proceed with the case from the stage when the evidence on the part of the election petitioner was closed by affording an opportunity to the writ petitioner to examine himself as a witness and granting him liberty to produce any other witnesses in support of his case. However, the entire process shall be completed by the end of November, 2008. However, the entire process shall be completed by the end of November, 2008. The evidence already recorded both on behalf of the election peti¬tioner as well as the writ petitioner, who was the opp.party No.1 in the election petition, shall be taken into consideration while passing the final order by the learned Civil Judge. For the above purpose, the writ petitioner and the opp.party No.1 herein shall appear before the learned Civil Judge (Junior Division), Dhenka¬nal on 24.10.2008 for carrying out the directions given above. The learned Civil Judge on 24.10.2008 shall fix a subsequent date and dispose of the matter in accordance with the directions given above. The writ petition is accordingly disposed of. Urgent certified copy of this order be granted as per rules. Petition disposed of.