Orissa High Court
WA/74/2019 on 16 March, 2021
W.A. No.74 of 2019
06. 16.03.2021 This matter is taken up through Hybrid mode.
Heard Mr. H.N. Mohapatra, learned counsel for
the petitioner and Mr. A.P. Bose, learned counsel for the sole
respondent. We have also heard Mr. A.K. Nanda, learned
Additional Government Advocate.
In this intra-court appeal, the petitioner in W.P.(C)
No.2480 of 2018 has assailed the order passed by the learned
Single Judge on 31.01.2019 disposing the writ application after
vacating the interim order passed earlier by the learned Single
Bench on 09.04.2018. The writ petition has been filed on
08.02.2018 and the interim order had been passed on
20.03.2018. The said interim order was modified on
09.04.2018. It is appropriate to take note of the exact words
used by the learned Single Judge in disposing the application:
"W.P.(C) No.2480 of 2018
8. 31.01.2019. Heard Sri H.N. Mohapatra,
learned counsel for the petitioner and Sri A.P.
Bose, learned counsel appearing for the opp.
parties.
Sri. A.P. Bose, learned counsel for
the opp. parties submits that in the meantime
not only the documents called for by the
impugned order have been kept in a sealed
cover but also the evidence from both sides
involving the documents have already been
closed. In such view of the matter, there is no
scope for interfering in the impugned order.
Interim order passed on 09.04.2018 stands
vacated.
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Considering that the evidence has
already been closed, the learned trial Court is
directed to dispose of the Election Misc. Case
No.3 of 2017 within a period of six weeks.
The writ petition stands disposed of.
Sd/-B.Rath".
Mr. H.N. Mohapatra, learned counsel for the Appellant
submits that a factually erroneous submission was made before
the learned Single Judge by the learned counsel for the
Opposite Party and basing of such erroneous submission, the
learned Single Judge acted and disposed of the writ petition.
Mr. A.P. Bose, learned counsel for the Respondent submits
that the submission made by the counsel for the Opposite Party
before the learned Single Jude is not erroneous to that extent.
He however admitted that the submission was erroneous to
some extent before the learned Single Judge as he was not
properly briefed by his client and was based on orders dated
11.07.2018 and 02.08.2018 of the trial Court.
Learned counsel for the Appellant draws our
attention to Annexure-7 series which is the certified copy of the
order-sheet in Election Misc. Case No.03 of 2017. On
26.03.2018, the matter was taken up by the learned Civil Judge
(Sr. Division), Nimapara, district Puri in Election Misc. Case
No.03 of 2017. He took into the consideration the stay order
passed by this Court and adjourned the case to 05.04.2018 for
awaiting orders of the High Court of Orissa. The case suffered
adjournment, and then, it was listed on 11.07.2018. On that
date, the Advocate for petitioners files a memo stating that the
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petitioner does not want to lead further evidence. Hence, the
evidence from his side is closed and then case was adjourned
to 19.07.2018 for evidence of the opposite parties. Then, the
election dispute suffered adjournment and it was posted on
02.08.2018. On that date, Advocate for petitioner was present
before the Election Tribunal. The opposite parties did not take
any steps. Hence, the case was posted to 09.08.2018 for
argument. On 09.08.2018, Opposite Party filed evidence
affidavit of D.W.1 and a petition to recall the order dated
02.08.2018. The same was posted to 02.08.2018 for objection
and argument. On 22.08.2018, the learned Civil Judge (Sr.
Division), Nimapara recalled the order dated 02.08.2018.
Mr. A.P. Bose, learned counsel for the
Respondent submits that developments after 02.08.2018 were
not known to him, when he made the submission before the
learned Single Judge that the evidences from both sides are
closed.
Be that as it may, we are inclined to allow the
appeal so that the order impugned in the W.P.(C) No.2480 of
2018 shall be adjudicated by the learned Single Judge on
merits.
Hence, the writ appeal is allowed, the order dated
31.01.2019 passed in W.P.(C) No.2480 of 2018 is hereby set
aside. The matter is remanded back to the learned Single
Judge assigned with hearing matters relating to the election
dispute before the learned Civil Judge (Sr. Division), Nimapara
with a further direction that the application should be
considered on merit and final judgment should be passed by
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this Court. We direct that the further proceeding of the Election
Misc. Case No.03 of 2017 of the court of learned Civil Judge
(Sr. Division), Nimapara, Puri shall remain stayed for the next
six weeks.
The writ petition is disposed of.
Urgent certified copy of this order be granted as
per rules.
S.K.Mishra, J.
Savitri Ratho,J.
TUDU
