Rajasthan High Court
Lali Devi Wife Of Shri Kanwar Singh vs Monika Wife Of Naveen Kumar on 14 July, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8863/2022
Lali Devi Wife Of Shri Kanwar Singh, Aged About 48 Years, R/o-
Amarsar, Gram Panchayat Sultana Ahiran, Tehsil Buhana, District
Jhunjhunu (Raj.)
----Non Applicant No.3-Petitioner
Versus
1. Monika Wife Of Naveen Kumar, Aged About 25 Years, R/o-
Amarsar, Village Panchayat Sultana, Ahiran, Tehsil
Buhana, District Jhunjhunu (Raj.)
Applicant/Election Petitioner/Respondent
2. District Election Officer, Paden District Collector, District
Jhunjhunu, Office Of District Collector, Jhunjhunu (Raj.)
3. Returning Officer, Village Panchayat Sultana Ahiran,
Village Panchayat Election 2020, Leelaram Saini Son Of
Shri Mool Chand Saini, Resident Of Chacha Wali Dhani Tan
Papurna, Tehsil Khetri, District Jhunjhunu, At Present
Posted As Principal, Shaheed Rohitashwa Gurjar
Government Senior Secondary School, Kakriya Tehsil
Khetri, District Jhunjhunu (Raj.)
----Non Applicant No.1 & 2 Respondents
For Petitioner(s) : Mr. Brahma Prakash
Mr. Sandeep Singh Nirwan
For Respondent(s) : Mr. Sudhir Yadav
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
14/07/2022
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
(2 of 4) [CW-8863/2022]
by the petitioner/non-applicant No.3 for summoning a witness,
has been dismissed.
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.
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.
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
(3 of 4) [CW-8863/2022]
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.
Heard. Considered.
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.
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.
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.
The judgments relied upon by the learned counsel for the
petitioner are of no assistance to him. Rather, in case of Mange
(4 of 4) [CW-8863/2022]
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.
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.
The upshot of the aforesaid discussion is that the writ
petition is devoid of merit and is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J
Manish/89
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