ANJU PARIHAR Vs. LOONI DEVI

JUDGEMENT

(1.) The present writ petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India seeking following reliefs:-

(2.) Succinctly stated facts of the present case are that the election of the petitioner pursuant to the election held on 10/10/2020, was challenged by the respondent- Looni Devi by way of an election petition filed before the District Judge, Jodhpur Metropolitan, mainly on the ground that the petitioner is a mother of three children and thus was ineligible to contest the elections as per Sec. 19(l) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'Act of 1994'). The said election petition was transferred to the Court of Senior Civil Judge No. 7 Jodhpur Metropolitan (hereinafter referred to as 'Election Tribunal') for trial. During the pendency of trial, the respondent moved an application dtd. 23/7/2024 under Order XXVI Rule 1 read with Sec. 151 of CPC, stating inter alia that the respondent wishes to get her evidence recorded through a Commissioner appointed by the Election Tribunal at her home on account of her illness. The grievance of the petitioner is that the learned Election Tribunal, after framing of the issues, has now while allowing the application dtd. 23/7/2024, directed vide impugned order dtd. 17/9/2024 (Annex.3), to get the statements of the respondent recorded at her home through commissioner appointed in this behalf and not before the learned Election Tribunal.

(3.) Learned counsel for the petitioner vehemently contended that the learned Election Tribunal has committed grave errors of facts as well as law in allowing the application dtd. 23/7/2024 filed by the respondent under Order XXVI Rule 1 read with Sec. 151 of CPC. Learned counsel submitted that impugned action of the Learned Tribunal in allowing the statements of the respondent to be recorded at her home is in complete disregard to the Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as 'the Rules of 1994'). Learned counsel further submitted that affidavit of the respondent for recording her evidence was filed way back in 2021, however, despite getting ample opportunities to remain present before the Election Tribunal for getting her statements recorded, the respondent failed to appear and now by way of filing an application under Order XXVI Rule 1 read with Sec. 151 of CPC, she simply intends to delay the trial. Learned counsel further submitted that no documents certifying her medical illness have been tendered before the Learned Election Tribunal in support of her application filed under Order XXVI Rule 1 read with Sec. 151 of CPC and thus the learned Election Tribunal ought to have rejected the same on this ground only.