MACHHLA Vs. BABITA KUMAR

JUDGEMENT

(1.) This writ petition has been field by the petitioner challenging order dated 17.09.2016 passed by Senior Civil Judge and Additional Chief Judicial Magistrate, Deeg, District Bharatpur(for short 'the Election Tribunal') whereby learned Election Tribunal has partly allowed the application filed by the respondent under Order 18 Rule 11 CPC and recalled witness Sanjay Sharma.

(2.) Contention of learned counsel for the petitioner is that on the date of filing nomination papers for the post of Sarpanch, the petitioner was fully qualified to contest the election, even then the respondent raised frivolous objection with regard to educational qualification of Class VIII and filed election petition on frivolous grounds. During pendency of election petition, the respondent filed application under Order 18 Rule 11 CPC and prayed to cross examine the then Head master, Maharshi Dayanand Poorv Secondary School, Sonkh, District Mathura(UP) on attendance register of Class VI of session 1992-93 and entrance form of the session 1992-93 issued under Right to Information Act and to exhibit the said documents.

(3.) The Election Tribunal vide order dated 17.09.2016, while partly allowing the application permitted exhibition of entrance form of the said school and also allowed the respondent- election-petitioner to examine the Head Master for that purpose. Therefore, the impugned order passed by the Election Tribunal is bad in the eyes of law. The Election Tribunal failed to consider the fact that the application filed by the respondent does not disclose the name of the witness who had been sought to be examined and in absence of the name of the witness, the application should have been considered as vague. The Election Tribunal further failed to consider that said witness was not Head Master of the said school in the year 1992-93, therefore, he was not at all competent to prove the documents, which were not under his control at the relevant time. Even earlier on 01.03.2016, the election petitioner filed an application before the Election Tribunal which vide order dated 12.04.2016 summoned the aforesaid witness along with SR Register of the School containing Serial Number from 826 to 1241 and said witness appeared before the Election Tribunal on 14.09.2016 and presented original SR Register of the School and deposited the same, but at that time he was not examined by the counsel for the respondent. But now the Election Tribunal, without considering such fact, has permitted the said witness to be recalled and exhibit entrance form of the year 1992-93 ignoring the fact that when the said witness appeared earlier, he categorically stated that those documents are of the date prior to his posting in the aforesaid school.