BALVANT SINH RAJPUT Vs. PATEL AHMED MOHAMMAD

JUDGEMENT

(1.) On 6.5.2019, the learned Advocate Mr.Vyas for the election petitioner having submitted the purshish at Exh.197 closing the evidence on behalf of the petitioner, the Court had directed the learned Advocate Mr.Champaneri for the respondent No.1 to furnish copy of affidavit of the witness to be examined on behalf of the respondent No.1 to the learned Advocate for the petitioner latest by 10.6.2019, and the matter was directed to be listed on 12.6.2019.

(2.) Today, the learned Advocate Mr.Champaneri for the respondent No.1 has submitted the application (Exh.198) under the provisions contained in Order XVIII Rule 3A read with Section 151 of CPC to permit the respondent No.1 - Returned Candidate to appear as his own witness at a later stage on account of his ill- health. After the submission of the said application, the learned Advocate Mr.Champaneri separately tendered a copy of "Discharge Summary" issued by the Metro Heart Institute with Multispecialty Hospital, Faridabad (Delhi- NCR). According to Mr.Champaneri, the respondent No.1 was hospitalized in the said hospital on 8.6.2019 and discharged on 9.6.2019, and therefore was unable to travel to attend the Court proceedings today. He further submitted that the provisions contained in the Order XVIII, Rule 3A of CPC are directory in nature, and therefore, considering special circumstances stated in the application, the same be granted.

(3.) However, the learned Sr. Advocate Mr.N. D. Nanavati for the election petitioner while vehemently objecting the said application submitted that the application is absolutely vague as there are no details mentioned about the ailment of the respondent No.1, nor any document, much less medical certificate has been annexed to the said application to substantiate the averments made in the said application. Relying upon the decision of the Bombay High Court in the case of Sanj Dainik Lokopchar An evening daily through its owner Kishor Baubhai Ruparel and Ors. Vs. Gokulchand Govindlal Sananda (in Writ Petition No.5124 of 2017 dated 11.10.2018), he submitted that the provisions contained in Rule 3-A of Order XVIII cannot be permitted to be misused by the respondent No.1 to fill in the lacuna or cover the loopholes of the evidence given by the witnesses. He also submitted that though the petitioner is running against time, he has no objection if the respondent No.1 is accommodated for couple of days, however, he be examined first before the other witnesses on his behalf are examined.