DAMODAR Vs. ANJU DEVI AND OTHER

JUDGEMENT

(1.) Through this writ petition under Article 227 of the Constitution of India, the petitioner herein being the election petitioner before the Election Tribunal, Merta has approached this Court for challenging the order (Annexure-7) dated 25.11.2017 passed by the learned Tribunal whereby, the learned Tribunal, recalled the order dated 02.11.2017 and whereby, the petitioner had been permitted to submit an inquiry report on record so as to prove her case before the Tribunal.

(2.) Facts in brief are that the petitioner herein filed the election petition in question against the respondents on various grounds including the ground of the respondent No.1 being disqualified from contesting the election for having more than 2 children as on the cut-off date. During pendency of the petition, the petitioner moved an application under Order 7, Rule 14(3) CPC for bringing on record a report of inquiry conducted by the Additional District Collector, Didwana in relation to these very allegations on record. The said application submitted by the petitioner was contested by the respondent and the learned Tribunal, accepted the same by a detailed order dated 02.11.2017 and took the report on record. However, the respondent No.1 moved an application under Order 47, Rule 1 CPC for recalling the said order dated 02.11.2017 on the ground that the inquiry report pertained to allegation of a preelection disqualification and hence, was thus not a document admissible in evidence in light of the decision rendered by this Court's Full Bench in the case of Sameera Bano (Smt.) and Ors. v. State of Rajasthan and Ors., reorted in 2007 (2) Civil Times 410) (Raj.). The learned Tribunal, accepted the said application of the respondent and recalled the order dated 02.11.2017 vide order dated 25.11.2017 and directed that the inquiry report in question shall be kept in 'D Part' of the file. The said order is challenged in the instant writ petition.

(3.) Shri Vishal Sharma learned counsel for the petitioner urged that the order under challenge is per se arbitrary and perverse and deserves to be quashed and set aside. He submits that the petitioner has a right to prove his case by leading appropriate evidence and denial of opportunity in this regard would amount to a failure of justice. He urges that the admissibility and relevance of the report in question can always be questioned by the respondent at stage of rebuttal and during final arguments, however, denying opportunity to the petitioner to lead evidence by presenting the inquiry report on record would amount to denial of a fair opportunity to prove her case. He relies upon the Single Bench decision in the case of Sarita v. Sumitra (S.B. Civil Writ Petition No. 379 of 2017 decided on 10.05.2017 and urged that in the said case, a charge-sheet filed by the police persuant to investigation of an FIR with the allegation of educational documents of the returned candidate being forged was alleged to be taken on record. He thus urges that the report in question is virtually at par with the charge-sheet and hence, the same was rightly taken on record by the learned Tribunal vide order dated 02.11.2017 and that the subsequent order 25.11.2017 whereby, the document was directed to be kept in 'D Part' is absolutely illegal and capricious. He craves acceptance of the writ petition on these grounds.