GOURAHARI PRADHAN Vs. ACHYUTANANDA JENA

JUDGEMENT

(1.) This writ petition is filed assailing the order dated 20.8.2018 passed by the Civil Judge (Jr.Divn.), Tigiria involving Election Misc. Case No.2/2017, vide Annexure-7.

(2.) Short background involved in the case is that the defeated candidate, the private opposite party as the petitioner initiated an election dispute under the Orissa Gram Panchayat Act involving the elected candidate, the present petitioner seeking thereby a declaration that the respondent therein, the petitioner herein has not received the majority of valid votes, further to declare the election of the sole respondent as Sarapanch of Achalakota to be void and set aside and further to declare the election petitioner, who has received the majority of valid votes elected as Sarapanch of Achalakota Gram Panchayat. Further facts reveal, based on filing of the election case registered as Election Misc. Case No.2/2017 and upon filing of the show cause by the respondent therein, further on completion of evidence from both the sides, the election petitioner, i.e., the private opposite party herein filed Miscellaneous Application requesting therein the trial court to accept the application for re-counting of all valid and rejected ballot papers of Achalakota Gram Panchayat and further for the petitioner therein making a strong prima facie case for re-counting, the Election Officer be directed to produce the Ballot Papers from his custody for re-counting purpose. Upon service of copy of this application, the present petitioner, the respondent therein filed objection resisting the maintainability of the application, taking the ground that such applications cannot be considered by way of interim relief and on the premises of prematureness of application. The respondent therein, i.e., petitioner herein also objected entertainment of any such application on the further submission that such application cannot be considered merely because the evidence is adduced. It was also contended therein that it is on the other hand, such application is required to be considered only during argument involving the evidence. It is on the premises that there is no commencement of argument of the election dispute, the petitioner also objected the stage of consideration of such application.

(3.) Resisting the order dated 20.8.2018, Sri R.K.Rath, learned senior counsel appearing for the petitioner being assisted by Sri H.N.Mohapatra, learned Advocate on reiteration of the grounds taken in the objection in the court below on the maintainability as well as the stage of consideration of such application as reflected herein above submitted that for the settled position of law, no such application should have been entertained in absence of advancement of argument involving the case and further for no dealing with evidence by the trial court, the impugned decision is so otherwise remains unsustainable. Sri Rath, learned senior counsel for the petitioner also contended that even though there is no bar for filing such application, looking to the main prayer involving the election dispute, the trial court remained fundamentally wrong in not understanding the stage of consideration of such application and the materials to be taken into account in considering such application. Sri Rath, learned senior counsel for the petitioner thus prayed this Court for interfering with the impugned order and setting aside the same.