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2013 DIGILAW 479 (ORI)

Mamita Thati v. Nepura Pradhan

2013-11-27

A.K.GOEL, A.K.RATH

body2013
JUDGMENT : A. K. Rath, J. Assailing the order dated 13.9.2013 passed by the learned Single Judge in W.P.(C) No. 9766 of 2013, the appellant has filed the aforementioned appeal. 2. In the election for the post of Sarpanch, Baragochha Grama Panchayat, the appellant was elected as Sarpanch. Challenging, inter alia, the result of the election, respondent No.1 as petitioner laid an election dispute being Election Petition No. 5/2013 before the learned Civil Judge (Junior Division), Kantamal. 3. The case of the election petitioner is that actual name of the appellant is Sasmita Danta. She is the daughter of Bhumisuta Danta. She completed primary education from EGS M.E.School, Baragochha. Thereafter she took admission in Sri Jagannath High School, Sagada. After passing in the H.S.C. Examination, she took admission in Panchayat College, Palasgora. She married to one Santunu Thati, S/o-Alekh Thati and Smt. Pira Thati of village Baragochha and after marriage, she changed her name as Mamita Thati and enrolled her name in the electoral roll by giving false information regarding her age and name. The specific case of the election petitioner is that Sasmita Danta and Mamita Thati are one and the same person and her age is below 21 years as per the certificates granted by the educational authority. She is not eligible to contest the election for the post of Sarpanch and as such her election to the said post is null and void. A prayer has been made to declare the election petitioner as Sarpanch. Though notice was issued to the opposite party-appellant, but she refused to accept the same and as such set ex parte. 4. Pursuant to issuance of notice, the Election Officer, opposite party No.2 entered appearance and filed written statement denying the assertions made in the election petition. 5. On the rival pleadings of the parties, learned Civil Judge framed seven issues. To substantiate the case, respondent No. 1 examined ten witnesses and on her behalf nineteen documents were exhibited. The Election Officer-respondent No. 2 had examined him-self and on his behalf three documents were exhibited. 6. On a threadbare analysis of the evidence on record, both oral and documentary, and the pleadings of the parties, learned Civil Judge came to hold that the appellant was below 21 years of age at the time of filing of her nomination and as such, she was not eligible to contest for the post of Sarpanch. 6. On a threadbare analysis of the evidence on record, both oral and documentary, and the pleadings of the parties, learned Civil Judge came to hold that the appellant was below 21 years of age at the time of filing of her nomination and as such, she was not eligible to contest for the post of Sarpanch. Accordingly, her election has been declared as null and void and respondent No. 1 had been declared elected. 7. Thereafter, the appellant filed an appeal being Election Appeal Petition No. 4/2013 before the learned District Judge, Boudh. Learned District Judge dismissed the appeal and confirmed the judgment passed by the learned Civil Judge holding, inter alia, that election of the appellant to the post of Sarpanch, Bargochha Grama Panchayat is null and void, but then the order declaring respondent No. 1 as elected Sarpanch, Bargochha Grama Panchayat has been set aside. Being unsuccessful, the appellant filed writ petition before this Court which was registered as W.P. (C) No. 9766 of 2013. The learned Single Judge in an elaborate judgment, dismissed the writ petition and thereby confirmed the judgments passed by the courts below. The tenability and sustainability of the said order is assailed in this writ appeal. 8. Mr. H.S. Mishra, learned counsel for the appellant, argued with vehemence that no opportunity whatsoever was provided to the appellant by the learned Civil Judge. No notice had been served on the appellant and as such, she was set ex parte. On coming to know that she had been set ex parte, an application under Order 9, Rule 7, C.P.C. was filed before the learned Civil Judge (Junior Division) by enclosing therewith a number of documents, but then the same was rejected by the learned Civil Judge on 4.2.2013. He submitted that the Voter Identity Card and Voters List prepared by the Election Officer would unerringly show that the appellant was born in 1999 and she was 22 years at the time of filing nomination. He further submitted that as the author of the documents relied on by respondent No.1 had not been examined in the court below to prove the contents of the same, the same could not have been relied upon by the learned Court. 9. The appellant was set ex parte in the court below on 20.6.2012. Against the said order, she moved this Court in W.P. (C) No. 1224 of 2013. 9. The appellant was set ex parte in the court below on 20.6.2012. Against the said order, she moved this Court in W.P. (C) No. 1224 of 2013. After closure of the evidence, when the case was posted for judgment, she filed an application under Order 9, Rule 7, C.P.C. The said application was rejected on 4.2.2013. The writ petition was dismissed as not pressed. 10. Mr. Mishra cited the decision of the Honble Supreme Court in the case of Bhanu Kumar Jain v. Archana Kumar and another, (2005) 1 SCC 787 : ( AIR 2005 SC 626 ), to buttress his submission that in an appeal filed against an ex parte decree, the appellant can assail the judgment of the trial court on merit as well as the order setting him ex parte. We have perused the judgment in the case of Bhanu Kumar Jain (supra) and are of the view that the said decision is distinguishable on the facts and circumstances of the case. 11. The following three points fall for our consideration:- (i) Whether application under Order 9, Rule 7, C.P.C. is maintainable after closure of the evidence when the case is posted for judgment? (ii) Whether Sasmita Danta and Mamita Thati are one and same person? (iii) Whether the appellant was below 21 years at the time of filing of nomination? 12. In the case of Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 , the Honble Supreme Court held thus:- The opening words of that rule are, as already seen, Where the Court has adjourned the hearing of the suit ex parte. Now, what do these words mean? Obviously they assume that there is to be a hearing on the date to which the suit stands adjourned. If the entirety of the hearing of the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, R. 1, there is clearly no adjournment of the hearing of the suit, for, there is nothing more to be heard. If the entirety of the hearing of the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, R. 1, there is clearly no adjournment of the hearing of the suit, for, there is nothing more to be heard. XX XX XX If, therefore, the hearing was completed and the suit was not adjourned for hearing, O. IX, R.7 could have no application and the matter would stand at the stage of O. IX, R.6 to be followed up by the passing of an ex parte decree making R. 13 the only provision in Order IX applicable. In view of the above, we hold that application under Order 9, Rule 7, C.P.C. filed by the appellant before the court below is misconceived. 13. Whether Sasmita Danta and Mamita Thati are one and same person and the appellant was below 21 years old at the time of filing nomination, the same have been conclusively decided by three courts. We have gone through the judgments of the courts below as well as the learned Single Judge and are of the view that the concurrent finding of facts regarding the identity and age of the appellant cannot be faulted with, moreso when there is no perversity or illegality. 14. The appeal is devoid of any merit and is accordingly dismissed. Appeal dismissed.