Orissa High Court
G. Bijayalakshmi vs D. Aaswini Patra & Ors on 3 February, 2023
ORISSA HIGH COURT : C U T T A C K
W.P.(C) No.34168 of 2022
An application under Article 226 & 227 of
the Constitution of India, 1950
G. Bijayalakshmi : Petitioner(s)
-Versus-
D. Aaswini Patra & Ors. : Opposite Party(s)
For Petitioner : Miss D. Mahapatra
For Opposite Party No.1 : None
For Opposite Party Nos.2 & 3 : Mr. S. Mishra,
Addl. Standing Counsel
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & judgment : 03.02.2023
1. Heard the submissions of learned counsel for respective parties.
2. Core issue involved herein appears to be; there is rejection of an
application U/o.7 Rule 11 of C.P.C. at the instance of the return candidate
filed vide Annexure-2 and decided vide Annexure-4 an unreasoned one.
3. In the first instance considering the contention raised herein by the
learned counsel for Petitioner and learned State Counsel, this Court finds,
there is no appearance of contesting Opposite Parties in spite of repeated
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notice. It further appears, such application has been rejected by the order
dated 14.11.2022 with the following order:-
"Order Dtd.14.11.22
Advocates for both parties are present and filed
their respective haziras. Record is posed today for order.
Heard both the parties at length. Petition U/o.VII R-11 of
C.P.C filed by respondent No.1 is rejected in the interest
of justice. Put up later for settlement of issues."
4. Considering the allegation made by the Petitioner that there should
have been at least a reasoned order involving such important petition and
submission of learned State Counsel that there is no room for filing an
application U/o.7 Rule 11 of C.P.C. in an Election Dispute, this Court
though finds strength in the submission of learned counsel for Petitioner,
however, the Civil Judge (Jr. Divn.), Sheragada was required to get into
the case of the parties and even while rejecting such application ought to
have given reasons for such purpose. This Court while deprecating such
practice, hopes and expects, the Civil Judge (Jr. Divn.), Sheragada will
remain careful in disposing such type of applications in future.
5. Getting into the merit involving the application U/o.7 Rule 11 of
C.P.C., this Court reading through the provision at Section 35 of the
Odisha Grama Panchayats Act, 1964 finds, the provision reads as
follows :-
"35. Procedure before the [Civil Judge (Junior Division)]
:- (1) Subject to the provisions of this Act and the rules made
thereunder every election Petition shall be tried by the [Civil
Judge (Junior Division)] as nearly as may be, in accordance
with the procedure applicable under the Code of Civil
Procedure, 1908 (5 of 1908) to the trial of suits.
(2) The [Civil Judge (Junior Division)] shall not be required to
record or to have the evidence recorded in full but shall make a
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memorandum of the evidence sufficient in his opinion for the
purpose of deciding the case.
(3) The [Civil Judge (Junior Division)] shall, for the purpose of
deciding any issue receive so much evidence, oral or
documentary, as he considers necessary and may require the
production of any evidence.
(4) The [Civil Judge (Junior Division)] may, at any stage of
the proceedings require the Petitioner to give further security
for the payment of all costs incurred or which is likely to be
incurred by any Opposite Party and if within the time fixed by
him or within such further time as he may allow such security
is not furnished, he may dismiss the Petition.
(5) No witness or other person shall be required to disclose the
name of the person for whom he has Voted at an election.
(6) The provisions of the Indian Evidence Act, 1872 (1 of
1872) shall, subject to the provisions of this Act, apply in the
trail of an election Petition.
(7) Notwithstanding anything in any enactment to the contrary
no document shall be inadmissible in evidence on the ground
that it is not duly stamped or registered.
(8) Reasonable expenses incurred by any person in attending to
give evidence may be allowed to such person which shall,
unless the [Civil Judge (Junior Division)] otherwise directs, be
deemed to be part of the costs.
(9) Any order as to costs passed by the [Civil Judge (Junior
Division)] shall be executed by him on application made in
that behalf in the same manner and by the same procedure as if
it where a decree for the payment of money passed by himself
as suit."
6. Considering the submissions made by the parties and on plain
reading of the provision at Section 35 of the Odisha Grama Panchayats
Act, 1964, it clearly appears that the provisions of C.P.C. so far trial of
the proceedings under the C.P.C. are to be applied in case of trial in the
election dispute. This Court, therefore, observes, provisions other than
applicable to the trial of such proceedings are not applicable to the
proceeding under the Odisha Grama Panchayats Act, 1964. In no
circumstance there is any application of provision at Order 7 Rule 11 of
C.P.C. to the Election Disputes. Thus while observing that there is no
question of entertaining the application U/o.7 Rule 11 of C.P.C. but for
the raising of issue in such application, this Court observes, even though
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such an application is not entertainable at this stage, however the
questions raised therein are kept open and if raised through the written
statement and request is made for framing of such issues, then
appropriate issues shall be framed and trial of the whole election dispute
will also involve answering such issues.
7. Writ Petition stands dismissed but with the above observation. No
costs.
...............................
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
The 3rd day of February, 2023//
Ayaskanta Jena, Senior Stenographer
