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2017 DIGILAW 649 (RAJ)

Kilki W/o Mangilal v. Saroj W/o Narayanram

2017-03-01

ARUN BHANSALI

body2017
ORDER : 1. This writ petition has been filed by the petitioner aggrieved against the order dated 14.2.2017 passed by the Chief Judicial Magistrate, Jodhpur District (Election Tribunal), whereby, the application filed by the petitioner seeking permission to summon witnesses under Order XVI CPC has been rejected. 2. Respondent-Smt. Saroj filed the election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 alleging disqualification against the petitioner with respect to having more than two children after the cut off date. 3. The petition was opposed by the petitioner by filing reply. After seeking several opportunities to produce the witnesses, the application (Annex.4) was filed on 4.2.1997 inter-alia seeking summoning of two witnesses named in the said application. Though no reply to the application was filed, the same was opposed by the respondent no. 1. 4. The Election Tribunal after hearing the parties came to the conclusion that after framing of the issues the petitioner did not file any list of witnesses and though the matter was pending for a long time for recording the evidence of the petitioner and after the last opportunity was granted on payment of cost, the present application was filed and consequently dismissed the application. The Tribunal also observed that the petitioner herein may appear in evidence and was granted last opportunity to produce all her witnesses and it was also directed that the witnesses present on next date would be examined. 5. It is submitted by learned counsel for the petitioner that the Tribunal committed an error in dismissing the application filed by the petitioner inasmuch as the witnesses which were sought to be summoned by the petitioner were necessary witnesses for disproving the case of the election petitioner and, therefore, the order impugned deserves to be set aside. It was also submitted that under the provisions of Order XVI CPC the petitioner is free to produce her witnesses. 6. Reliance was placed on Abdul Husen & Another vs. Shri Pyar Chand, 1999 (3) WLC 625 , Muddasami Venkata Narsaiah vs. Muddasani Sarojana, Civil Appeal No. 4816/2016 decided on 5.5.2016 by Hon’ble Supreme Court, Satnam Transport Company & Another vs. Prakash Mal Surana, AIR 1981 Raj. 75 . 7. 6. Reliance was placed on Abdul Husen & Another vs. Shri Pyar Chand, 1999 (3) WLC 625 , Muddasami Venkata Narsaiah vs. Muddasani Sarojana, Civil Appeal No. 4816/2016 decided on 5.5.2016 by Hon’ble Supreme Court, Satnam Transport Company & Another vs. Prakash Mal Surana, AIR 1981 Raj. 75 . 7. A bare look at the judgments in the case of Satnam Transport (supra) and Abdul Husen (supra) cited by the learned counsel for the petitioner would reveal that same pertain to the examination of witnesses produced by a party on its own, though names of such witnesses are not indicated in the list of witnesses and the same do not pertain to a case of summoning of witnesses where the list of witnesses itself has not been produced in the first instance. 8. The judgment in the case of Muddasani Venkata Narsaiah (supra) has no application to the facts of the present case as the same pertains to cross-examination of the witnesses. 9. Under the provisions of Order XVI Rule 1 CPC, a list of witnesses is required to be filed by a party desirous of obtaining any summons for the attendance of any person and if the party shows sufficient cause for the omission to mention the name of witness in the said list, the said witness can also be summoned. However, in a case where the list itself has not been produced, it is not permissible for a party to summon the witness, therefore, the plea has no substance. 10. In the present case, as has been noticed by the Tribunal and as submitted by the learned counsel for the petitioner, the matter is pending for evidence of the petitioner for long and after granting several opportunities, last opportunity was granted for production of witness on cost and at that stage without producing any witness, the application for summoning of the witnesses was filed. The Tribunal in those circumstances was even otherwise justified in dismissing the application filed by the petitioner. 11. In view of the above, there is no substance in the writ petition and the same is, therefore, dismissed.