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2019 DIGILAW 241 (ORI)

Madhusmita Patra v. Taranisen Pati

2019-03-26

BISWANATH RATH

body2019
JUDGMENT : BISWANATH RATH, J. 1. This writ petition involves a challenge to the order dated 12.3.2019 passed by the Civil Judge (Junior Division)-cum- Election Tribunal, Jajpur at Annexure-6 whereby the Election Tribunal has allowed an application to call the Block Development Officer-cum-Election Officer, Dasarathpur Block-opposite party no.4 for evidence purpose by the election petitioner. Sri Mohanty, learned counsel for the petitioner taking this Court to the previous round of litigation, order of this Court and further to the application filed at Annexure-3 submitted that for no better application being filed by the petitioner, there is no proper consideration involving the impugned order. The impugned order also bears no reason for allowing such application. In the above background, Sri Mohanty, learned counsel appearing for the petitioner prayed this Court for interfering in the impugned order. 2. Learned Counsel appearing for the contesting opp. parties on the other hand taking this Court to the pleading in the election petition, the plea involving the application under consideration and the observation made in the impugned order submitted that there is no infirmity in the impugned order requiring interference of this Court in the same. 3. Considering the rival contention of the parties, this Court finds the question requires to be considered as to Whether in the circumstances and for the pleadings, further the development taken place in between, examination of the election officer-opp. party no.4 is relevant or not? 4. Considering the rival contention of the parties and on perusal of the election petition appended at Annexure-1 to the writ petition, this Court on perusal of the same finds there is clear allegation involving opposite party no.4 and there is specific averments made from paragraph 5 till paragraph- 26 involving the opposite party no.4. Further perusal of the petition under consideration of the impugned order at Annexure-3, this Court finds it can safely be said that the petitioner has made a clear case for examining the Block Development Officer-cum-Election Officer, Dasarathpur Block. In paragraph-2 involving the application considered vide the impugned order, the petitioner has made the specific pleading involving the Election Officer-the opposite party no.4 therein making out a clear case for examination of the Election Officer. 5. In paragraph-2 involving the application considered vide the impugned order, the petitioner has made the specific pleading involving the Election Officer-the opposite party no.4 therein making out a clear case for examination of the Election Officer. 5. In this view of the matter, for the specific allegations involving the opposite party no.4, this Court observes that there cannot be effective adjudication of the petitioner dispute in absence of evidence of opposite party no.4. It is at this stage, this Court considering the decisions cited by Sri Mohanty in the case of Kaliaperumal Vs Pankajavalli and Ors, (1999) 1 MadLJ 97, this Court going through the decision finds that the decision does not involve the election dispute. This Court here observes that the consideration for the examination of witness involving civil dispute and election dispute are altogether different. This Court thus finds no support from the decision to the case at hand. Looking to the background involving in the position of a defendant not being allowed to examine in chief by plaintiff cannot be equated with examination of an Election Officer being made a respondent in an Election Petition and the Election Officer may not be a necessary party in an election petition and remain neither a necessary party nor a proper party to an election dispute. May be the Election Officer is made a respondent bonafidely involving some of his action involving the election in question. ' 6. For the observation made herein and as this Court finds the examination of Election Officer becomes vital in taking a decision involving election dispute, this Court finds no infirmity in the impugned order requiring interference in the same. In the result, the writ petition stands dismissed. However, there is no order as to cost.