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Rajasthan High Court · body

2016 DIGILAW 1803 (RAJ)

Basanti Devi W/o Shri Babulal v. Phula Devi Meena W/o Shri Nanulal Meena

2016-12-13

MOHAMMAD RAFIQ

body2016
JUDGMENT : Mohammad Rafiq, J. 1. This writ petition has been filed by the petitioner challenging order dated 24.11.2016 passed by Additional Senior Civil Judge cum Additional Chief Metropolitan Magistrate No. 3, Jaipur Metropolitan (for short 'the trial court') whereby application filed by the petitioner for summoning witnesses has been rejected. 2. Respondent No. 1-plaintiff filed an election petition challenging the election of the petitioner on the ground that the petitioner declared wrong date of birth of her daughter in nomination form. The petitioner filed certificate issued by the Principal of the School certifying date of birth of daughter of the petitioner as also inquiry report of Additional District Education Officer. To prove the aforesaid documents, the petitioner filed an application before the trial court for summoning witnesses namely Shailesh, Principal, Defence Public School and Smt. Padma Saxena, Additional District Education Officer. The trial court vide order dated 24.11.2016 dismissed the aforesaid application. 3. Learned counsel for the petitioner submitted that election petition is fixed at the stage of defence witness. The trial court has dismissed the application on the wrong premise that the petitioner has to prove her defence. Learned counsel for the petitioner argued that summoning of aforesaid witnesses is necessary to prove the aforesaid documents. Learned counsel submitted that though this Court has directed the trial court for deciding the case in fixed time, but this would not mean that the petitioner may be deprived from justice, particularly when time fixed by this Court is still remaining. 4. Learned counsel for Respondent No. 1 opposed the writ petition and submitted that application of the petitioner has rightly been dismissed by the trial court because this Court vide order dated 24.08.2016 passed in S.B. Civil Writ Petition No. 5791/2015 has directed the trial court to decide the election petition within a period of five months and the application was filed by the petitioner to delay the proceedings of the main election petition. Besides, the aforesaid application was filed by the petitioner after more than a period of one year after framing of issues whereas the petitioner was required to file list of his witnesses within 15 days from the date of framing of issues. 5. Besides, the aforesaid application was filed by the petitioner after more than a period of one year after framing of issues whereas the petitioner was required to file list of his witnesses within 15 days from the date of framing of issues. 5. After hearing learned counsel for the parties, this Court is of the view that aforesaid witnesses are necessary witnesses not only to prove the inquiry report, but also to divulge the facts in their knowledge regarding date of birth of daughter of the petitioner. Equities and fair play demand that the trial court should have permitted the petitioner to call the aforesaid witnesses as defence witnesses. As regards the delay, the same can be compensated by awarding cost in favour of Respondent No. 1. 6. Consequently, present writ petition is accepted and impugned order dated 24.11.2016 is set aside, however with cost of Rs.10,000/- to be paid by the petitioner to Respondent No. 1 before the trial court. The trial court is directed to call witnesses namely Shailesh, Principal, Defence Public School and Smt. Padma Saxena, Additional District Education Officer as defence witnesses upon deposit of process fee and diet fee as well as cost by the petitioner within two weeks. The trial court shall give short date for summoning the aforesaid witnesses and due opportunity shall also be given to Respondent No. 1 to extend cross-examination. In view of examination of aforesaid witnesses as defence witnesses, further time of one month is granted to the trial court to decide the election petition. Stay application also stands disposed off.