SRIBHAGWAN SINGH Vs. ARUNA DEVI

JUDGEMENT

(1.) HEARD the parties.

(2.) THE writ petitioner is the winning candidate in the Gram Panchayat elections. His election was challenged by respondent No 1. Before the Election Tribunal one of the pleas taken by the election petitioner that is respondent No. 1 before this Court was that there was irregularity in counting and protests of the election petitioner were not taken note of. The trial commenced. Before official witnesses who were also party -defendants in the election petition commenced their evidence, the writ petitioner filed an application before the trial Court that those official defendants be directed to produce complete videography of the counting process. From this, he intended to show that the plea taken by the election petitioner that she was protesting and was present would be falsified straightway. The trial Court deferred the said application. It held that once the official defendants and their witnesses were examined and if they failed to bring on record the videography, the petitioner, who was a co -defendant, could make a fresh application. The official defendants and their witnesses were examined. They did not bring on record the videography. The writ petitioner, in terms of the order earlier passed, made a fresh application for a direction to be issued to the official defendants to produce the videography. This time, the trial Court took a different view of the matter. The trial Court, by the impugned order, has mainly held that it is not sure as to the legality (admissibility) of the evidence in the shape of videography and further that calling for the same would delay the hearing of the election petition and on that view, dismissed the application of the writ petitioner which has brought the petitioner before this Court. Shri S.S. Dwivedi, learned Senior Counsel appearing for respondent No. 1 submits that the petitioner was defendant in the suit. He ought to have made an application in terms of Order 12, Rule 8 at the appropriate time and not having done so, he is precluded from asking for the production of the said videography. On the other hand, the learned counsel for the petitioner submits that in terms of Order 11, Rules 10 and 12, if the party, who was in possession of the evidence and who was noticed in Court thereto, failed to produce the same then Order 11, Rules 10. and 12 gave ample power to the Court to summon the same.

(3.) HAVING considered the matter, it is relevant to notice once that petitioner had filed an earlier application before official defendant witnesses started with their evidence, though after plaintiff closed her evidence, this application was not rejected but deferred awaiting depositions by official defendants. Once official defendants in whose possession the videography was and who had notice that the same was required in the suit failed to produce the same, the petitioner again petitioned. Those petitions can only be relatable petitions in terms of Order 11, Rules 10 and 12 and as those matters were directly in issue, the Court, in my opinion, was bound to direct the defendants to produce them, for the official defendants had no excuse in not producing them. Non - production of evidence by the official defendants could act of severe prejudice of the contesting private parties. This view of the fact the Election Tribunal failed to consider.