BOSKA Vs. STATE ELECTION COMMISSION, HYDERABAD

JUDGEMENT

(1.) This Writ Petition is filed seeking the following relief:

(2.) Heard Sri P. Venu Gopal, learned senior counsel, appearing on behalf of Sri B. Mayur Reddy, learned counsel for the petitioner, Sri P. Sudheer Rao, learned Standing Counsel for Telangana State Election Commission, the learned Government Pleader for Panchayat Raj, Sri N. Praveen Kumar, learned Standing Counsel for Municipalities, and Sri C. Kalyan Rao, learned Standing Counsel for Gram Panchayat, for the official respondents, and Sri L. Preetham Reddy, learned counsel for respondent No.12.

(3.) Learned Senior Counsel Sri P. Venu Gopal has contended that in E.O.P.5 of 2019 filed by respondent No.12 herein, the petitioner herein was set ex parte on 16/2/2021 and as such, the petitioner has filed I.A. No.758/2021 under Order IX Rule 7 of the Code of Civil Procedure but the same was dismissed vide order dtd. 23/7/2021. Subsequently, the petitioner has filed C.R.P. No.1130 of 2021 challenging the dismissal order dtd. 23/7/2021 passed in I.A.No.758 of 2021. But, even before the CRP could be heard and orders passed on merits, the main EOP itself was allowed vide impugned order dtd. 1/9/2021 and the election of the petitioner was set aside on the ground that the petitioner had more than two children. Learned Senior counsel has stated that the documents relied by the respondent No.12 are fabricated documents and has drawn the attention of this Court to the Birth Certificate filed and relied by the respondent No.12 in the EOP. Learned Senior Counsel has further stated that the petitioner had only two children namely (1) Boska Rahul Ryan and (2) Boska Rishanth Ryan, who were born on 13/7/2012 and 8/3/2014 respectively. That even though the Birth Certificate relied by respondent No.12, who filed the E.O.P., shows the name of the parents as that of the petitioner and his wife and the name of the child as Boska Sharook Prins, but as a matter of fact, the actual Birth Certificate procured by the petitioner shows the names of the parents as Chinnaboska Pavitra and Chinnaboska Praveen and has also drawn the attention of the Court to the Aadhaar Card bearing No.4081 0624 6127, which shows the name of the cardholder as Chinnaboska Sharon Prince and the name of the father as Chinnaboska Praveen. Learned Senior Counsel has also relied on the National Food Security Cards issued by Department of Consumer Affairs, Food & Civil Supplies, Government of Telangana, bearing new Ration Card No.365390381375 to buttress his contention that the petitioner has only two children viz., Boska Rishanth Ryan and Boska Rahul Ryan. Even though, the learned Senior counsel has tried to argue the case on merits by raising various contentions, this Court is not inclined to deal with the matter on merits as the documents relied by the petitioner are not marked in the EOP and the respondent No.12 never had the opportunity to crossexamine the witness or produce contra evidence to rebut the document now relied by the petitioner in the present writ petition. 3. Per contra, the learned counsel for the contesting respondent No.12 has stated that even though several opportunities were given to the petitioner to contest the EOP, the petitioner did not choose to appear before the Election Tribunal and therefore the Election Tribunal had no other option but to set the petitioner ex parte. Learned counsel has further stated that even though the petitioner had knowledge about the filing of the EOP, he did not choose to participate in the proceedings and only after he was set ex parte, the present I.A.No.758/2021 is filed, and even the said I.A. is not filed within time, and therefore, the Tribunal has dismissed the I.A. That the order of the Election Tribunal passed in I.A.No.758/2021, dtd. 23/7/2021 has become final as in the C.R.P. filed against the said order, no orders were passed. Leaned counsel has further stated that even though the petitioner had filed CRP before this Court against the dismissal of I.A., no interim orders were granted by this Court. Hence, in the absence of the interim orders staying the proceedings before the Election Tribunal, the Election Tribunal has decided the main EOP itself on merits and passed the impugned order. Learned counsel has stated that once the order of setting the petitioner ex parte has become final, the petitioner cannot challenge the orders passed in the EOP and rely on the documents which have not been produced or marked before the Election Tribunal. Hence, he prayed to dismiss the writ petition.