SADASIBA PATTNAIK Vs. DIBAKAR PANDEY

JUDGEMENT

(1.) The petitioner in this writ application has prayed for quashing the order dated 9.1.2004 passed by the learned District Judge, Koraput, Jeypore in Election Appeal No. 13 of 2003 which was preferred by Opp.Party No. 1.

(2.) The petitioner was elected as a member of the Panchayat Samiti of Jharigaon from Chitabeda Grama Panchayat in the district of Nabarangpur. Opp.Party No. 1 who lost the election filed an election dispute being MJC No. 10 of 2002 before the Civil Judge (Senior Division), Nabarangpur. The main contention of opp.party No. 1 in the said election dispute was that the petitioner having two spouses on the date of his nomination, was ineligible to file his nomination and contest the election for being elected as the member of the Panchayat Samiti. The petitioner in his written statement/counter filed in the said election dispute, denied the allegation that he has two wives and asserted that one Bhagyalaxmi Patnaik is his only wife. It appears from the record that to prove his case, opp.party No. 1 who was the election petitioner, examined himself as P. W. 1 and two other witnesses and also exhibited four documents marked as Exts.1 to 4 which were certified copies of voter lists. The learned Civil Judge (Senior Division) after hearing the election dispute vide his judgment dated 30.12.2003 dismissed the same. Opp.party No. 1 has preferred Election Appeal No. 13 of 2003 before the District Judge, Koraput-Jeypore which is pending disposal. During pendency of the appeal, opp.party No. 1 filed an application under Order 41, Rule 27, C.P.C. to adduce additional evidence. In the said application, opp.party No. 1 has stated that for the first time, he could come to know on 18.11.2003 that Miss. Kanya Kumari Patnaik, daughter of the petitioner through his first wife-Rukmani Patnaik was admitted as a student in Ex-Board School, Jharigaon by the petitioner. Thereafter/he made an application on 20.11.2003 before the Headmaster of the said School and obtained the true copies of the extracts of Sl. Nos. 1924/7 and 1925/8 of the admission register in which at Sl. No. 1924/7 the name of Kanya Kumari Pattnaik has been entered as the daughter of the petitioner and his wife Rukmani Pattnaik with full particulars including signature of the writ petitioner. The learned District Judge on hearing the said application, by the impugned order under Annexure-3, allowed the same, permitting opp.party No. 1 to adduce additional evidence.

(3.) Mr. S. D. Das, learned senior counsel appearing for the petitioner submitted that though opp.party No. 1 failed to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, the learned District Judge acted contrary to law in allowing the application under Order 41, Rule 27, C.P.C. to adduce additional evidence. Mr. Das relying upon the decision in the case of Rajkishore Panda and Anr. v. Banitia Madhya Engrajee Bidyapitha and Ors., AIR 1987 SC (Orissa) 55 submitted that as held by the said decision, the provision of Order 41, Rule 27, C.P.C. is not intended to allow an unsuccessful litigant to patch up the weak part of his case and filling up lacuna by adducing additional evidence in appellate Court. He further relied upon the decision in the case of Mahavir Singh and Ors. v. Naresh Chandra and Anr. 2001 (I) OLR (SC) 689 in support of his contention that the appellate Court should not travel outside the record of the lower Court and cannot take evidence on appeal and Section 107(d) C.P.C. is an exception to the general rule where additional evidence is permitted to be taken only when the conditions and limitations laid down in the said rule are found to exist. Mr. Das relying upon the said decision also contended that the Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is to be exercised judiciously and sparingly. Attention of the Court was drawn to the memorandum of appeal filed by opp.party No. 1 before the learned District Judge where, according to Mr. Das, opp.party No. 1 categorically stated that the appellant has filed xerox copy of the memorandum of mark sheet of Kanya Kumari Patnaik, the daughter of the writ petitioner, issued by the Headmaster of Kodvatta High School in which the name of Rukmani Pattnaik as wife of the writ petitioner finds place and submits that this assertion clearly shows that the document sought to be produced as additional evidence was within the knowledge of opp.party No. 1 during pendency of the election dispute before the learned Civil Judge (Senior Division), Nabarangpur.