ALKA JAIN Vs. NIRMAL PATHAK

JUDGEMENT

(1.) The petitioner has filed this petition under Article 227 of the Constitution of India for quashment of the order dated 10.9.2012, Ann. P-1., passed by IIIrd Additional District Judge, Katni in Election Petition/MJC-5/12 whereby allowing the application of the respondent filed under Order 26 Rule 1, r/w Section 151 of CPC, Ann. P-4. the direction to record her statements on commission has been passed. Pursuant to that the Commissioner has also been appointed.

(2.) The facts giving rise to this petition in short are that the respondent herein after being elected as Mayor of Municipal Corporation, Katni is facing the trial of aforesaid Election Petition filed by the petitioner to challenge her election of Mayor. After recording the evidence of the petitioner on behalf of respondent the impugned application, Ann. P-4 to examine herself on commission was filed. Inter-alia in such application, it was stated that she being heart patient, her Angioplasty has been carried out on 1.9.2010 , subsequent to that she is not in a position to walk on stairs. The Doctor has also advised her to avoid the activities of exertions. In further averments it is stated that on 1.9.2012 some problem occurred in her chest on which she got examined herself in Chandak Hospital and Diagnosis Centre on 1.9.2012. On such date the Doctor has advised her to take bed rest and avoid exertions activities for fifteen days and thereafter she was permitted to continue her regular life in accordance with the direction of Scott Hospital, New Delhi. In this regard some medical papers were also annexed with the application. In further averments, it is stated that concerning trial court of Katni is situated on the first floor and to reach such court a person is bound to go through stairs and in the aforesaid circumstances she is not in a position to go and attend the court for recording her deposition. With these averments the prayer for recording her depositions on commission is made.

(3.) The aforesaid prayer was seriously opposed on behalf of the petitioner on the ground that respondent no. 1 being elected Mayor is used to visit various places in the Municipal Corporation area of Katni to look after the work of Municipal Corporation. Besides this, she being political leader and Mayor is also attending various meetings of Corporation and also the functions and attending he political functions and meeting by going through the stairs on the Dais. In support of such contentions, some cutting of the daily newspapers were also placed on record to show that she is attending various functions either at the ground floor or on the Dais in the township of Katni. It also appears from the impugned order that such application is opposed on the ground that being elected Mayor she is always in a position to go anywhere for the work of the Municipal Corporation just to serve the public at large and in such circumstances she could come to the court also for recording her depositions and in such premises prayer for dismissal of the application was made.