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2022 DIGILAW 2030 (RAJ)

Lali Devi v. Monika

2022-07-14

MAHENDAR KUMAR GOYAL

body2022
JUDGMENT 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 26.05.2022 passed by learned Senior Civil Judge, Khetri, District Jhunjhunu in Election Petition No.2/2021 (CIS No.2/2021) whereby, an application filed by the petitioner/non-applicant No.3 for summoning a witness, has been dismissed. 2. The relevant facts in brief are that the respondent No.1/applicant filed an election petition challenging the election of the respondent No.3 as Panch, Gram Panchayat Sultana Ahiran, Tehsil Buhana, District Jhunjhunu. During the course of trial, the petitioner/non-applicant No.3 filed an application dated 08.04.2022 requesting the Court to summon the then Village Development Officer (for brevity "the VDO") along with original report of the Gram Panchayat which has been dismissed by the learned trial Court vide its order dated 26.05.2022, impugned herein. 3. Assailing the order impugned, learned counsel for the petitioner contended that the VDO was an important witness who could throw light on the controversy involved in the matter. He submitted that the VDO has prepared the report dated 29.09.2020 behind her back and hence, he was required to be cross-examined by the petitioner. He, in support of his submissions, relies upon a judgment of Hon'ble Apex Court of India in case of Mange Ram versus Brij Mohan & Ors.: (1983) 4 Supreme Court Cases 36 and a Coordinate Bench order of this Court dated 15.04.2013 passed in SB Civil Writ Petition No.3369/2013: Harjinder Singh versus Shyam Sunder & Ors. He, therefore, prayed that the writ petition be allowed, the order dated 26.05.2022 be quashed and set aside and the application filed by the petitioner be allowed. 4. Per contra, learned counsel for the respondent No.1/Caveator submitted that in her application, the petitioner has prayed for summoning the VDO as the report dated 29.09.2020 was required to be exhibited. He submitted that the aforesaid report has already been marked as Exhibit-10 on the record of the election petition and hence, the sole basis of the prayer did not survive. He, therefore, prayed for dismissal of the writ petition. 5. Heard. Considered. 6. He submitted that the aforesaid report has already been marked as Exhibit-10 on the record of the election petition and hence, the sole basis of the prayer did not survive. He, therefore, prayed for dismissal of the writ petition. 5. Heard. Considered. 6. While dismissing the application filed by the petitioner, the learned trial Court has held that the petitioner has prayed for summoning the VDO as she wanted to exhibit the report dated 29.09.2020 prepared by him with regard to existence of a toilet in her ancestral house; but, the report was already exhibited as Exhibit-10 in the file of the election petition and hence, it could not be exhibited again. It has been further observed by the learned trial Court that the petitioner did not submit any list of witnesses which was a condition precedent for summoning a witness through the Court. It has been held in the order dated 26.05.2022 that since, a certified copy of the report dated 29.09.2020 is already on record, which has been duly exhibited, its original record was not required. 7. This Court is not satisfied that the order dated 26.05.2022 passed by the learned trial Court in its judicious discretion suffers from any perversity or patent jurisdictional error so as to warrant interference of this Court in its writ jurisdiction. 8. Contention of the learned counsel for the petitioner that summoning of the VDO is necessary as the report has been prepared behind her back and she wants to cross-examine him, cannot be countenanced as it is impermissible for a litigant to cross-examine his/her own witness in normal circumstances. 9. The judgments relied upon by the learned counsel for the petitioner are of no assistance to him. Rather, in case of Mange Ram (supra), their Lordships of the Hon'ble Apex Court of India have held that advance filing of the list of witnesses with the gist of evidence of each witness within the time prescribed by Sub- Rule (1) of Order XVI Rule 1 CPC is mandatory as summoning the witnesses by the Court is time consuming process and to avoid the avoidable delay, it is an obligation on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. Indisputably, in the present case, the petitioner has not filed any such list of witnesses. 10. Indisputably, in the present case, the petitioner has not filed any such list of witnesses. 10. Similarly, the order of this Court dated 15.04.2013 in case of Harjinder Singh (supra) is of no assistance inasmuch as the election officer, who was shown as witness in the election petition was not produced by the election petitioner and hence, on the request of the non-applicant, this Court directed summoning the election officer as a witness as it was held that for proper adjudication of the election dispute, his presence was necessary. This is not the position obtaining in the present case. 11. The upshot of the aforesaid discussion is that the writ petition is devoid of merit and is dismissed accordingly.