Orissa High Court
Debashish Samantaray .... ... vs Mohammed Moquim on 2 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
ELPET No.6 of 2019
Debashish Samantaray .... Election
Petitioner
Mr. Milan Kanungo,
Senior Advocate
-versus-
Mohammed Moquim .... Respondent
Mr. Bidyadhar Mishra,
Senior Advocate
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No.
02.03.2023
97. This matter is taken up through Hybrid
Arrangement (Video Conferencing/Physical Mode).
Registry has pointed out that the serial numbers
of the orders dated 27.02.2023 have been
inadvertently mentioned as '94' and '95' instead of
'95' and '96' respectively.
The numeric '94' and '95' are scored out by me
in open Court and corrected by me in red ink as '95'
and '96'.
The Election Petitioner Shri Debashish
Samantaray is present in Court today. His cross-
examination is resumed. Mr. Bidyadhar Mishra,
learned Senior Advocate appearing for the respondent
cross examined him.
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The documents which were kept with the learned
Registrar (Judicial) in a sealed covers were opened in
Court today. The same be kept in sealed cover again.
During the course of cross-examination, the
certificate of oath of the Election Petitioner has been
marked as Ext.E/2, the certificate for receipt of oath
issued by the Returning Officer to the respondent
relating to his taking of oath on 02.04.2019 has been
marked as Ext.T, the checklist of documents in
connection with filing of nomination with respect to
the nomination of the Election Petitioner vide Sl.No.
06/LA/2019 (Ext.E), has been marked as Ext.U, the
checklist of documents in connection with filing of
nomination with respect the nomination of the
Election Petitioner vide Sl.No. 07/LA/2019 (Ext.F), has
been marked as Ext.V, the checklist of documents in
connection with filing of nomination by the Election
Petitioner vide Sl.No. 08/LA/2019 (Ext.G), has been
marked as Ext.G/2, the checklist of documents in
connection with filing of nomination with respect to
the nomination of the Election Petitioner vide Sl.No.
09/LA/2019 (Ext.H), has been marked as Ext.H/2,
the certified copy of the affidavit in Form 26 dated
02.04.2019 has been marked as 'X/1', the checklists
with respect to the nomination papers of the
respondent have been marked as 'X/2', 'X/3', 'X/4'
and 'X/5', the revised affidavit in Form 26 dated
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03.04.2019 has been marked as 'X/6' and the fresh
checklist issued by the Returning Officer to the
respondent dated 04.04.2019 has been marked as
'X/7'.
Further cross-examination is deferred to 6th
March 2023.
List this matter on 6th March 2023 and the
matter will be taken up at 02.00 p.m.
( S.K. Sahoo)
Judge
I.A. No. 03 of 2023
98. This interim application has been filed by the
respondent Mohammed Moquim for a direction to the
Chief Electoral Officer, Odisha, Bhubaneswar to
produce or cause production of the downloaded copy
of the affidavit in Form 26 dated 24.03.2014 filed by
the Election Petitioner Shri Debashis Samantaray
along with his nomination papers before the Returning
Officer of 90-Barabati Cuttack Assembly Constituency
for contesting the General Assembly Election-2014,
which is available in the website of the Election
Commission of India, being duly authenticated by the
C.E.O., Odisha or any other responsible officer
working under him.
The Election Petitioner has filed objection to
this interim application, inter alia, on the ground that
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the said affidavit is no way relevant for the just
decision of the present election petition and that there
is no issue in the present election petition with respect
to the affidavit filed in Form 26 by the Election
Petitioner in the General Assembly Election held in the
year 2014 and the respondent has filed this
application only to delay the trial of the present
election dispute and therefore, the interim application
should be dismissed.
Learned counsel for the Election Petitioner has
placed reliance on the decision of the Hon'ble
Supreme Court reported in (2011) 11 Supreme
Court Cases 786 (Kalyan Singh Chouhan -Vrs.-
C.P. Joshi), wherein it has been held as follows :
"28. Therefore, in view of the above, it is evident
that the party to the election petition must plead
the material fact and substantiate its averment by
adducing sufficient evidence. The court cannot
travel beyond the pleadings and the issue cannot
be framed unless there are pleadings to raise the
controversy on a particular fact or law. It is,
therefore, not permissible for the court to allow
the party to lead evidence which is not in the line
of the pleadings. Even if the evidence is led that
is just to be ignored as the same cannot be taken
into consideration.
Learned counsel also placed reliance on the
decision of the Hon'ble Supreme Court reported in
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(2011) 7 Supreme Court Cases 589 (Noor Sk.
Bhikan -Vrs.- State of Maharashtra and others),
wherein in paragraphs 11 and 12, it has been held as
follows:
"11. Another application was also filed being IA
No. 4/2004 for placing on record a copy of the
judgment passed by the Joint Civil Judge (Senior
Division) at Jalna in RCS No. 332/2001 entitled
Rambhau S/o Narayan Rokde v. State of
Maharashtra and Anr. All that has been averred in
this application is that the said suit has been
decided by the Court on 16th April, 2002 and has
a bearing on the issues involved in the present
matter. Nothing has been averred as to how this
judgment has any bearing on any of the issues
involved in the present case as none of the
parties to the present appeal are parties to that
suit, except the State. It is in no way clear that
the subject matter of that suit is the subject
matter of the present appeal. In any case, the
judgment was pronounced on 16th April, 2002
while the present application appears to have
been filed in 2008. No steps were taken to bring
this judgment on record of this Court for all that
period.
12. The counsel appearing for the applicant has
not been able to show us the relevancy of that
document to the present case. In fact, even in the
application there is no averment as to the
relevancy and necessity of the document to be
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brought on record by way of additional evidence
in the present case and for it to be read in
evidence. Thus, we do not consider it appropriate
and in the interest of justice to allow this
application. Consequently, the same is dismissed.
However, we make it clear that the parties
concerned will be at liberty to take steps against
that judgment and decree as may be permissible
to them in accordance with law."
After hearing the learned counsel for the
respective parties and on going through the
averments taken in the interim application and the
objection filed by the Election Petitioner and the ratio
laid down by the Hon'ble Supreme Court in the
aforesaid decisions, I am of the view that since there
is no issue in the present election petition with respect
to the affidavit filed in Form 26 by the Election
Petitioner in the General Assembly Election held in the
year 2014, there is no necessity for calling for the said
documents.
Accordingly, the interim application filed by the
respondent stands rejected.
The I.A. stands dismissed.
( S.K. Sahoo)
Judge
PKSahoo
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