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2014 DIGILAW 591 (ORI)

Radhika Padhan v. Debaraj Meher

2014-09-12

A.K.RATH, AMITAVA ROY

body2014
JUDGMENT Dr. A.K. Rath, J. This writ appeal has been filed under Clause 10 of the Letters Patent against the order dated 15.7.2014 passed by the learned Single Judge in WP(C) No.21530 of 2012. By the said order, the learned Single Judge dismissed the writ petition and thereby confirmed the order dated 6.11.2012 passed by the learned Civil Judge (Junior Division), Patnagarh, (in short, “the Election Tribunal”), in E.P No.2 of 2012 allowing the application filed by respondent no.1 under Order XVI Rule 6 & 7 of the Civil Procedure Code calling for the documents. 2. Bereft of unnecessary details, the short facts of the case of the appellant are that she is the elected Sarpanch of Padiabahal Grama Panchayat under Khaprakhol Block. Challenging her election, respondent no.1 laid an election dispute before the learned Election Tribunal which is registered as E.P No.2 of 2012. In the list of documents, he relied on three documents said to have been obtained under the RTI Act. He had not taken any steps to produce those documents. However, those documents were produced by the appellant. The documents relate to the birth of first and third child of the appellant. While the matter stood thus, respondent no.1 filed an application under Order XVI Rule 6 & 7 of the Civil Procedure Code for production of birth register from the custody of the S.D.M.O., Patnagarh and admission register from the custody of the Principal, Navodaya Bidyalaya, Belpada on the ground that the first document/register relates to birth of first child of the appellant in Sub-Divisional Hospital, Patnagarh and the second document relates to admission of third child of the appellant. By order dated 6.11.2012, learned Election Tribunal allowed the said application. Challenging the order dated 6.11.2012 of the learned Election Tribunal, the appellant filed WP(C) No.21530 of 2012. After hearing the matter at length, in an elaborate order, learned Single Judge dismissed the writ petition directing the Election Tribunal to take steps for expeditious disposal of the election petition. 3. Heard Mr. A.P. Bose, learned counsel for the appellant, Mr. S.K. Mishra, learned counsel for respondent no.1 and learned Addl. Government Advocate for respondent no.2. 4. Mr. Bose, learned counsel for the appellant, argued with vehemence that the order dated 6.11.2012 passed by the learned Election Tribunal is laconic one. 3. Heard Mr. A.P. Bose, learned counsel for the appellant, Mr. S.K. Mishra, learned counsel for respondent no.1 and learned Addl. Government Advocate for respondent no.2. 4. Mr. Bose, learned counsel for the appellant, argued with vehemence that the order dated 6.11.2012 passed by the learned Election Tribunal is laconic one. Though the learned Single Judge came to a finding that the said order is a laconic one, but decided the writ petition on merit instead of remitting the matter back to the learned Election Tribunal. He further submitted that respondent no.1 relied on three documents said to have been obtained under the RTI Act, but he did not take any steps to produce the same. Those documents were ultimately produced by the appellant. As would be evident from the said documents, respondent no.1 had resorted to falsehood so far as obtaining of document under the RTI Act is concerned. When the conduct of respondent no.1 smacks of mala fide, no further indulgence could have been given to him to seek production of those documents. He also challenged the admissibility of those documents. 5. Be it noted that by order dated 12.8.2014, learned Single Judge passed the order of stay of further proceeding in E.P No.2 of 2012 pending before the learned Election Tribunal. However, before receipt of the said order, the birth register from S.D.M.O., Navodaya Bidyalaya, Belpada and the admission register from the Principal, Navodaya Bidyalaya, Belpada had already been received by the learned Election Tribunal though the same had not been marked as exhibits. 6. In Roshan Deen v. Preeti Lal, (2002) 1 SCC 100 , the apex Court held that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. It was held that if justice became the by-product of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law. 7. In Ramesh Chandra Sankla and others v. Vikram Cement and others, (2008) 14 SCC 58 , the apex Court held that the jurisdiction of the High Court under Articles 226 and 227 is discretionary and equitable. 7. In Ramesh Chandra Sankla and others v. Vikram Cement and others, (2008) 14 SCC 58 , the apex Court held that the jurisdiction of the High Court under Articles 226 and 227 is discretionary and equitable. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must “advance the ends of justice and uproot injustice”. The apex Court further held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete the substantial justice. 8. When both the parties argue the matter at length in the writ petition, the High Court can decide the lis without being fettered by any technicalities. The Court/Tribunal may not assign good reasons while allowing/rejecting the application filed by any parties, but the same does not preclude the High Court in the writ jurisdiction to decide the entire issue. The power of the High Court is wide enough to issue writs. 9. The next question that survives for consideration is as to whether learned Election Tribunal committed any illegality in directing production of documents. 10. Section 35 of the Orissa Grama Panchayats Act, 1964 (in short, “the Act”) provides, inter alia, subject to the provisions of the Act and the rules made thereunder every election petition shall be tried by the Civil Judge (Junior Division) as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits. Under Section 37 of the Act, the Civil Judge (Junior Division) shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of discovery and inspection; enforcing the attendance of witness, and requiring the deposit of their expenses and compelling the production of documents. 11. Under Section 37 of the Act, the Civil Judge (Junior Division) shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of discovery and inspection; enforcing the attendance of witness, and requiring the deposit of their expenses and compelling the production of documents. 11. Order XVI Rule 6 of the Civil Procedure Code deals with summons to produce document. The same is quoted hereunder. “ORDER -XVI SUMMONING AND ATTENDANCE OF WITNESSES 6. Summons to produce document – Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.” 12. In Dolagovinda Pradhan and another v. Bhartruhari Mahatab, 1991(II) OLR 395, this Court held that while the Court giving direction for production of documents during the pendency of the suit, it must be satisfied that (A) the documents which are called for to be produced are in power and possession of a party against whom the order is made (B) Those documents relate to the mater in question in the suit. The documents must be such that they throw some light into the case and must be in possession of the party. But this power of directing the party to produce the documents is always subject to Sections 130 and 131 of the Indian Evidence Act. The Court has discretion in the matter relating to production of documents though it is a judicial discretion. It can only direct the documents to be produced in Court for inspection when they throw some light into the case and in possession of the party on the ground that the documents are related to the matter in question in the suit. 13. As would be evident from the order of the learned Single Judge, the documents regarding birth of first and third child of the petitioner which are sought to be called for certainly throw light on the date of birth of the petitioner’s children after the cut off date. The admissibility of the documents can be decided by the learned Election Tribunal after the same are marked as exhibits. The admissibility of the documents can be decided by the learned Election Tribunal after the same are marked as exhibits. In view of the analysis made in the preceding paragraphs, we are of the consensus ad idem that the appeal sans any merit. The writ appeal is accordingly dismissed. No costs. Amitava Roy, C.J. : I agree.