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2009 DIGILAW 32 (ORI)

PURNIMA PARIDA v. SUBASH CHANDRA DHAL

2009-01-12

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - Heard learned Counsel for the Petitioner and the learned Counsel for the opposite party, who has entered appearance as a Caveator. 2. The Petitioner is the returned candidate, whose election is under challenge in Election Misc. Case No. 12 of 2007 pending before the learned Civil Judge (Jr. Division), Jajpur Road. 3. It appears that during course of hearing, the Petitioner produced a copy of the birth certificate issued to him in Form No. 7 under the Registration of Births and Deaths Act, 1969 issued u/s 17 thereof showing the dates of birth of two children of the Petitioner. The opposite party No. 1 produced a document issued to him under the Right to Information Act showing that the Registration numbers reflected in the birth certificates produced by the Petitioner as serial Nos. 952 and 953 do not relate to the names mentioned in the birth certificates. The Petitioner filed an application to call for the Medical Officer, who in his capacity as the Registrar of Birth and Death, issued the said certificates. The said prayer having been rejected the Petitioner has filed this present writ application. 4. The learned Court below, while disposing of the writ application, in the impugned order dated 16.1.2008, rejected the prayer of the Petitioner on the ground that the Medical Officer, who issued Exts. C and D (Birth Certificates) need not be examined as his evidence is not required for the just decision of the case. Learned Court further observed that to find out the fact regarding the entry made in the birth certificates of C.H.C., Korei, it would be better to call for the original register containing the said Exts. C and D and for this reason any of the parties may make an application. 5. Though I do not find any illegality in the impugned order in rejecting the prayer of the Petitioner to call for the Medical Officer as a witness but as the Court, itself, has observed that calling for the birth register containing serial Nos. 952 and 953 would be essential for finding out the truth with regard to the allegation that Exts. 952 and 953 would be essential for finding out the truth with regard to the allegation that Exts. C and D are not genuine documents, the Court without waiting for an application to call for such register, from any of the parties, should have exercised the power conferred on it under Order XVI, Rule 7, CPC It is naive to state that once a Court comes to a conclusion that a particular document would be necessary for just adjudication of a case and would facilitate in arriving at the truth of the matter, it would be incumbent upon the said Court to call for the document suo motu even no prayer for the same has been made. I, therefore, while declining to interfere with the impugned order with respect to rejection of the prayer of the Petitioner, direct that the learned Civil Judge (Jr. Division), Jajpur Road, who is in seisin of the Election Case will call for the birth register from the C.H.C., Korei containing the Serial Nos. 952 and 953 and on production of the same, admit the same into evidence for comparing Exts. C and D with the respective entries in the said register. The learned Court below thereafter shall proceed with the matter in accordance with law. The Election Case being of the year 2007, the learned Civil Judge (Jr. Division), Jajpur 'load shall hear and dispose of the Election Misc. Case No. 12 of 2007 as expeditiously as possible preferably within a period of six months from the date of production of the certified copy of this order, before him. 6. With the aforesaid observations and directions the writ application is disposed of. 7. Urgent certified copy of this order be granted on proper application.