Kamla Devi v. District Election Officer (panchayat)
2019-09-24
DINESH MEHTA
body2019
DigiLaw.ai
JUDGMENT Dinesh Mehta, J. - The petitioner-an elected Sarpanch, has challenged the order dated 17.09.2019, passed by learned Senior Civil Judge, Anoopgarh, vide which her application seeking appointment of Commissioner to record the evidence has been rejected, in an election petition filed by the respondent No.2, calling in question, her election. 2. Learned counsel for the petitioner, having narrated the facts, submitted that the petitioner is suffering from 'certain disease' and thus, unable to appear before the Court for completion of her evidence. 3. Inviting attention of the Court towards the provisions contained under Order XXVI Rule 4 of the Code of Civil Procedure, 1908, Mr. Jain argued that the Court below ought to have applied objective and liberal approach, instead of rejecting petitioner's application for recording her evidence through Commission. 4. I have heard learned counsel for the petitioner and perused the application, as well as the order impugned. 5. A perusal of the application filed by the petitioner seeking appointment of Commissioner shows that no reasons, much less cogent reasons have been given, so as to permit recording of evidence by Commissioner. The petitioner's averments in the application are omnibus and contain bald assertion that petitioner is indisposed. 6. During the course of arguments, Mr. Jain, learned counsel for the petitioner produced for perusal of the Court, two documents, first being a prescription slip dated 11.09.2019 of Government Community Health Center, Khajuwala and second being a laboratory report dated 11.09.2019, issued by Shri Balaji Laboratory Center, Khajuwala. 7. Though these documents do not form part of the record, but even they do not evince serious ailment, for which the petitioner can justifiably seek appointment of Commissioner. Needless it is to say that provisions under Order XXVI Rule 4 of the Code are discretionary in nature and they are to be used sparing, within the contours of statutory provisions. Commission cannot be issued as a matter of course. 8. No case for interference in supervisory jurisdiction of this Court is made out, in light of judgments of Hon'ble the Supreme Court in Shalini Shyam Shetty & Ors. Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and Surya Dev Rai Vs. Ram Chander Rai & Ors., (2003) 6 SCC 675 . 9. The writ petition fails. 10. The stay application is also dismissed.