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2013 DIGILAW 374 (ORI)

TILOTTAMA BHOLA v. COLLECTOR J. S. PUR

2013-09-11

S.C.PARIJA

body2013
JUDGMENT : S.C. Parija, J. - Heard learned counsel for the parties. This writ petition has been filed by the elected ward Member of Ward No. 2 of Mouza-Badanga, under Balia Gram Panchayat in the district of Jagatsinghpur, challenging the order dated 12.09.2012, passed by the learned Civil Judge (Jr. Division), Kujanga, in Election Petition No. 10 of 2012, allowing the document produced by the opposite party No. 3 at a belated stage to be marked as Exhibit-7, in violation of the provisions of the Civil Procedure Code. 2. The brief facts of the case is that the opposite party No. 3 contested the election for the post of Ward Member of Ward No. 2 under Balia Gram Panchayat, in the district of Kujanga and having lost the election to the petitioner, she filed election petition before the learned Civil Judge (Jr. Division), Kujanga, which was registered as Election Petition No. 10 of 2012, alleging that the petitioner has three children and her youngest child has been born on 11.03.2004, after the cut off date and therefore she is disqualified for being nominated or elected as Ward Member u/s 25 of the Orissa Gram Panchayat Act. 3. The present petitioner appeared pursuant to notice and filed her objection/show-cause to the allegations made in the election petition. During trial of the election petition, the opposite party No. 3 filed a petition with a prayer to accept some documents as detailed in the memo as exhibits, on behalf of the petitioner, as those are public documents, with a further prayer to summon through court, the PHEO Kujanga CHC and Smt. Abanti Rout, Female Health Worker, Balia, to adduce evidence before the court. The present petitioner filed her objection to the said petition of the opposite party No. 3. 4. Learned Civil Judge considering the documents sought to be exhibited by opposite party No. 3 has allowed the photo copy of the Family Planning Sterilization Report of the petitioner, obtained under RTI Act by one Krutibasa Gochhayat, to be marked as Exhibit-7, as it was a public document, issued by the Medical Officer, Kujanga. 5. 4. Learned Civil Judge considering the documents sought to be exhibited by opposite party No. 3 has allowed the photo copy of the Family Planning Sterilization Report of the petitioner, obtained under RTI Act by one Krutibasa Gochhayat, to be marked as Exhibit-7, as it was a public document, issued by the Medical Officer, Kujanga. 5. As one Abanti Rout, Female Health Worker of Balia had put her signature in the application form of the Sterilization Report and as the PHEO, Kujanga, had issued the said document marked at Ext.7, learned Civil Judge felt that their evidence is necessary and has accordingly directed for issue of summons to them, with a direction to the PHEO, Kujanga, to produce the original form i.e. Sterilization Report of the petitioner. 6. Learned counsel for the petitioner submits that as the opposite party No. 3 has not disclosed as to why the document (Ext. 7) was not filed along with the election petition, as required under Order 7 Rule- 14 CPC or before settlement of issues, as provided under Order 13, Rule 1 CPC, learned Civil Judge was not justified in accepting the same at a belated stage, after the trial of the case had commenced at marking the same as Exhibit-7. In this regard, it is submitted that the opposite party No. 3 was required to file all the relevant and necessary documents upon which she relies, along with her election petition and in the present case opposite party No. 3 having not done so, she cannot be permitted to produce those documents at a belated stage, during trial of an election petition and pray for acceptance of the same. It is accordingly submitted that the impugned order of the learned Civil Judge, accepting the said document and marking the same Exhibit-7 cannot be sustained. 7. Learned counsel for the opposite party No. 3 has filed certified copy of the order dated 09.10.2012 from which it reveals that in the meantime the evidence of P.Ws.6 and 7 have been recorded and the documents have been marked as Exhibits-7/a, 8/a, 8/b and 8/c. Accordingly, it is submitted that the impugned order has already been worked out. 7. Learned counsel for the opposite party No. 3 has filed certified copy of the order dated 09.10.2012 from which it reveals that in the meantime the evidence of P.Ws.6 and 7 have been recorded and the documents have been marked as Exhibits-7/a, 8/a, 8/b and 8/c. Accordingly, it is submitted that the impugned order has already been worked out. It is further submitted that as the document (Ext.7) is a public document issued by the Medical Officer, Kujanga, which is relevant to adjudicate the dispute that the petitioner has more than two children after the cut off date and the learned Civil Judge having found it necessary for just and proper adjudication of the election petition, the impugned order cannot be faulted. 8. On a perusal of the impugned order it is seen that learned Civil Judge has taken into consideration the nature of documents called for and keeping in view the fact that the documents called for by opposite party No. 3 are public documents, which are relevant to adjudicate the dispute in the election petition, has allowed the same which cannot be faulted. 9. As regard the plea of the petitioner that the impugned order is in violation of the provisions of Civil Procedure Code, it may be stated here that the strict applicability of the procedure provided under the CPC is not required to be followed in an election dispute. This would be evident from the provision of Section 35 of the Orissa Gram Panchayat Act, which provides that an election petition shall be treated as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code. The Civil Judge shall not be required to record or to have the evidence recorded in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case. It is also provided that the Civil Judge for the purpose of deciding any issue, receive so much evidence, oral or documentary, as he considers necessary and may require the production of any evidence. 10. From the aforesaid provision contained u/s 35 of the Orissa Gram Panchayat Act it is clear that Civil Judge has to apply the procedure under the Civil Procedure Code, as far as possible and for the purpose of deciding any issue may receive such evidence, oral or documentary, as is considered necessary. 10. From the aforesaid provision contained u/s 35 of the Orissa Gram Panchayat Act it is clear that Civil Judge has to apply the procedure under the Civil Procedure Code, as far as possible and for the purpose of deciding any issue may receive such evidence, oral or documentary, as is considered necessary. Therefore, the procedures prescribed in the CPC are not strictly applicable to an election petition. 11. In the present case, as learned Civil Judge has came to the finding that the document (Ext.7) is a public document and the same is relevant and necessary for adjudication of the election dispute, with regard to the petitioner being disqualified for having more than two children after the cut off date, as provided u/s 25(1)(v) of the Orissa Gram Panchayat Act, the impugned order is proper and justified. Moreover, as the impugned order has already been worked out and the evidence of the witnesses i.e. P.Ws.6 and 7 have been recorded and relevant documents have already been marked as exhibits, it would not be proper to interfere with the same on procedural technicalities at this stage. 12. In view of the above, I do not find any infirmity or illegality in the impugned order passed by the learned Civil Judge (Jr. Division), Kujanga, so as to warrant any interference. 13. The writ petition being devoid of merits, the same is accordingly dismissed. Interim order dated 19.11.2012 stands vacated. Final Result : Dismissed