Bhanwar Lal Bhadu vs Ved Prakash
2023 Latest Caselaw 8613 Raj

[2023:RJ-JD:35212]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11718/2023

Bhanwar Lal Bhadu S/o Kishna Ram, Aged About 68 Years, Motavaton Ka Bas, Gangani, Tehsil Baori, District Jodhpur

----Petitioner Versus

1. Ved Prakash S/o Bhagirath Brahman, Bada Bas, Gangani, Tehsil Baori, District Jodhpur

2. Ramrakh Father/o Pabu Ram, Maliyon Ka Bas, Gangani, Tehsil Baori, District Jodhpur

3. Baldev Spouse/o Bheeka Ram, Jatabas, Gangani, Tehsil Baori, District Jodhpur

4. Kanwar Lal Father/o Ramniwas Prajapat, Returning Officer, Panchayat Election 2020, Gram Panchayat Gangani, Panchayat Samiti Baori, District Jodhpur At Present Working As Govt. Higher Secondary School, Himmatpura, Tehsil Shergarh, District Jodhpur, Resident Of Mukam Post Tankla, Tehsil Nagaur, Panchayat Samiti Khinvsar, District Nagaur.

5. State Of Rajasthan, Through Election Officer, District Collector, Jodhpur

----Respondents

For Petitioner(s) : Mr. C.S. Kotwani For Respondent(s) : Mr. D.L.R. Vyas

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 13/10/2023 Pronounced on 17/10/2023

1. This writ petition under Articles 226 & 227 of the Constitution

of India has been preferred claiming the following reliefs:

"It is, therefore, most humbly and respectfully prayed that the writ petition may kindly be allowed and by issuing an appropriate writ, order or direction:-

i. The impugned order dated 4.8.2023 (Annex.6) passed by learned Additional Chief Judicial Magistrate No.7, Jodhpur

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Metro in Election Petition No.252/2020 may kindly be quashed and set aside;

ii. The application filed by the humble petitioner under Section 151 CPC (Annex.4), so also the application under Order 16 Rule 1(2) r/w Section 151 CPC (Annex.5) may kindly be allowed and the humble petitioner may kindly be permitted to produce the voters as witnesses; iii. The learned Tribunal may also be directed to summon the respondent No.4 Kanwar Lal as witness of the humble petitioner so as to prove the defence of the humble petitioner;

iv. Any other order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of humble petitioner."

2. Brief facts of the case, as placed before this Court by the

learned counsel of the petitioner, are that the petitioner was

elected as Sarpanch, Gram Panchayat, Gangani, District Jodhpur.

Thereafter, the respondent no.1 filed an election petition before

learned District & Sessions Judge, Jodhpur Metropolitan, against

the petitioner. The learned Court below, after completion of the

pleadings, framed certain issues, and posted the matter for

evidence of the parties.

2.1. During the evidence of the petitioner, he has preferred an

application under Section 151 CPC, stating therein that the voters

whose names have been deleted from the ward no. 10 and shown

in ward no.12, may be permitted to be examined. The petitioner

filed another application under Order 16 Rule 1 (2) read with

Section 151 CPC to summon the respondent No.4-Kanwar Lal S/o

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Ramniwas (Returning Officer) for examination in support of

defence of the petitioner.

2.2. However, the learned Court below vide the common order

dated 04.08.2023 impugned herein, rejected both the

aforementioned applications preferred by the petitioner. Hence,

the present petition has been preferred claiming the afore-quoted

reliefs.

3. Learned counsel for the petitioner submitted that the learned

Court below passed the impugned order on the application under

151 CPC on the ground that the respondent no.4 himself was

party in the election petition, and therefore, though he can be

permitted to appear as witness independently for his own

examination, but not in the capacity of the petitioner's witness, in

support of his defence in the election petition filed by the

respondent no.1. As per learned counsel, the said finding of the

learned Court below is not justified in law.

3.1. Learned counsel further submitted that the learned Court

below passed the impugned order, stating that the name of

witness whose examination was sought by the petitioner, was not

there on record, but despite the same, the petitioner wished to

produce the witnesses. Learned counsel urged that the said

finding is erroneous in the eye of law.

3.2. Learned counsel also submitted that in a situation, where the

name of the witness was not included in list of witnesses, the

Court concerned ought to allow the witness for examination, and

therefore on that count also, the impugned order is not justified in

law.

[2023:RJ-JD:35212] (4 of 7) [CW-11718/2023]

3.3. In support of such submissions, learned counsel relied upon

the judgment rendered by the Hon'ble Apex Court in the case of

Vidhyadhar Vs Manikrao & Anr. (1999) 3 SCC 573; he further

relied upon the judgment rendered by the Hon'ble High Court of

Bombay in case of Dinesh Singh Bhim Singh Vs Vinod

Shobhraj Gajaria & Anr. (Writ Petition No. 11185 of 2022,

decided on 25.01.2023).

4. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioner, submitted that the petitioner filed the

aforementioned applications just to prolong the proceedings of the

election petition pending before the learned Court below, and that,

the election had already been completed and documents relating

to the voters are already on record, and therefore, the learned

Court below had rightly dismissed the applications in question vide

the common order impugned herein.

4.1. It was further submitted that it was not necessary for the

concerned Court to call all the voters who participated in the

election, because a large number of voters used to participate in

the election. It was also submitted that the petitioner did not

mention the name of the witness (respondent no.4 herein) in the

list of witnesses, and despite the same, by way of filing the

application, he has sought summoning of the said person to

appear before the learned Court below as witness in support of the

petitioner's defence, which, in the present factual matrix, is not

permissible in law.

[2023:RJ-JD:35212] (5 of 7) [CW-11718/2023]

4.2. In support of such submissions, learned counsel relied upon

the judgment rendered by Hon'ble Apex Court in the case of

Kokkanda B. Poondacha & Ors. Vs K.D. Ganapathi & Anr.

(Civil Appeal No.2015 of 2011, decided by the Hon'ble Apex

Court on 22.02.2011); he further relied upon the judgment

rendered by this Hon'ble Court in case of LRs. Of Smt. Devi W/o

Morumal Vs LRs. Of Nemi Chand & Ors. (S.B. Civil Writ

Petition No. 11088 of 2017, and other connected matter

decided on 22.11.2021).

5. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgments cited at the Bar.

6. This Court observes that the respondent no.1 filed the

aforementioned election petition against the petitioner. During the

evidence of the petitioner, he has preferred an application under

Section 151 CPC, stating therein that the voters whose names

have been deleted from the ward no. 10 and shown in ward no.12,

may be permitted to be examined. The petitioner filed another

application under Order 16 Rule 1 (2) read with Section 151 CPC

to summon the respondent No.4 as witness. Thereafter, the

learned Court below vide the common order dated 04.08.2023

impugned herein rejected both the aforementioned applications.

7. This Court further observes that the petitioner seeking

summoning of the person for examination whose name was shown

in ward no.12 in series no. 246 to 384; the said person's name

was not included in list of the witnesses produced on record in the

election petition. This Court also observes that the petitioner

prayed for a huge number of persons to be summoned for

[2023:RJ-JD:35212] (6 of 7) [CW-11718/2023]

examination, without any cogent reason or justification therefor,

while claiming that their summoning and examination was

necessary for proper and effective adjudication of the election

petition.

8. This Court also observes that even though the petitioner was

given several opportunities on 10.05.2023, 24.05.2023,

24.05.2023, 03.06.2023, 06.07.2023, 19.07.2023, 24.07.2023,

25.07.2023 and 26.07.2023 for evidence, but despite the same,

the petitioner preferred application unnecessarily, so as to prolong

the proceedings in the election petition before the learned Court

below.

9. This Court thus observes that the prayer of the petitioner for

summoning the respondent no.4 as witness for examination, has

rightly been dismissed by the learned Court below because the

respondent no.4 was already a party in the aforementioned

election petition, and therefore, could not have been called as the

petitioner's witness.

10. This Court is thus of the opinion that the learned Court below

has passed the impugned order, while taking into due

consideration the overall facts and circumstances of the case as

well as after duly appreciating the material placed on record

before it.

11. The judgments cited on behalf of the petitioner also do not

render any assistance to his case.

12. Thus, in light of the aforesaid observations as well as looking

into the factual matrix of the present case, this Court does not

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find it a fit case so as to grant any relief to the petitioner in the

present petition.

13. Consequently, the present petition is dismissed. All pending

applications stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

SKant/-

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