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2014 DIGILAW 917 (KAR)

Shivappa Fakkirappa Badavannavar v. Manjunath

2014-10-20

S.ABDUL NAZEER

body2014
ORDER S. Abdul Nazeer, J. 1. These two writ petitions are directed against the Order on I.As.II and III in Election Petition No. 1/13 dated 07/01/2014 on the file of the II Additional District and Sessions Judge Dharwad. 2. First respondent filed Election Petition No. 1/13 on the file of the II Additional District and Sessions Judge, Dharwad, challenging the election of the petitioners herein for the seat of councilors/ corporators of the Corporation of Hubli-Dharwad Municipal Council, Ward No. 21 reserved for backward class "A" category. In the instant case, the petitioners filed application I.A.II under Order XVIII Rules 4 and 5 of the Code of Civil Procedure for adducing oral evidence of the parties and not to accept the evidence by way of affidavit and another application I.A.III under Order VI Rule 16 of the CPC to struck off paragraphs 7, 8 and 10 of the Election Petition. During the pendency of this case, the second respondent was transposed as petitioner No. 2. The application was opposed by respondent No. 1. The Court below dismissed both the applications. 3. The contention of the Learned Counsel for the petitioner is that the election petition is having a flavour of quasi criminal proceedings with the nature of the allegations made. Therefore, only oral evidence has to be recorded and evidence by way of affidavit should not be permitted. Secondly, it is contended that the first respondent has suppressed true facts and has mislead the Tashildar, Dharwad and has obtained a false, illegal, invalid and fabricated caste certificate. Learned Counsel further submits that the first respondent has not pleaded the material facts and particulars. In the absence of any particulars, paragraphs 7, 8 and 10 have to be struck off. 4. On the other hand, Learned Counsel for respondent No. 1 has sought to justify the impugned order. 5. I have carefully considered the arguments of the Learned Counsel made at the Bar and perused the materials placed on record. 6. It is not in dispute that as far as the trial of the election petition is concerned, the procedure applicable under the Code of Civil Procedure ('CPC for short) to the trial of suits has to be followed as nearly as possible, meaning to the extent possible. This confers an enabling power on the Civil Judge to evolve any fair procedure for the speedy disposal of the trial. This confers an enabling power on the Civil Judge to evolve any fair procedure for the speedy disposal of the trial. Order XVIII Rule 4of the CPC has been amended by Act No. 22/2002 with effect from 01/07/2002. It provides for recording of examination-in-chief of a witness on affidavit. The object of Order XVIII Rule 14 is to sub-serve the larger purpose of cutting down in the disposal time of recording evidence, thereby reducing the period of disposal of the cases by dispensing with the lengthy procedure of the Court recording evidence of every witness produced before it or summoned to appear before it. The earlier procedure resulted in the trial being inordinately delayed and was one of the main reasons for the docket explosion in the Courts. The amendment seeks to obviate the same by permitting examination to be on affidavit instead the examination-in-chief being recorded by the Court. Therefore, there is no bar for the Trial Court to record the evidence to permit the examination on affidavit instead of examination-in-chief recorded by the Court. 7. In the circumstances, there is no merit in the contention of the Learned Counsel for the petitioner that the Court below ought to have recorded the oral evidence and should not have accepted the evidence by way of affidavit. 8. Insofar as I.A. III is concerned, it is seen from paragraphs 7, 8 and 10 that the first respondent has clearly pleaded as to how respondent No. 1 was able to obtain a false caste certificate on 19.02.2013 using his political influence and contest the corporation election in Ward No. 21, reserved for Category "A". The allegations made above has to be considered in the course of the trial. The petitioner has to establish the same by producing supporting evidence, so that, it cannot be said that the allegations are without any proof or pleadings. 9. There is no merit in these writ petitions. They are accordingly dismissed. The Court below is directed to dispose of the matter on or before 31/12/2014. No costs.