M.M.DAS, J. W.P.(C) NO.10770 OF 2010 (Decided on 03.11.2010) SABITRI BAGH ………. Petitioner. .Vrs. BHAJI BAGH ………. Opp.Party. (A) ORISSA PANCHAYAT SAMITI ACT, 1959 (ACT NO. 7 OF 1960) – SEC.44-C. (B) ORISSA PANCHAYAT SAMITI ACT, 1959 (ACT NO.7 OF 1960) – SEC.44-Q,44-H. (Para10 11) (C) ORISSA PANCHAYAT SAMITI ACT,1959 (ACT NO. 7 OF 1960) – SEC.44-Q. For Petitioner - M/s. Dr. A.K.Rath & A.K.Nath. For Opp.Parties- M/s. J.R.Dash & K.L.Dash M.M. DAS J. The petitioner was elected as Member of the Panchayat Samiti from Deul Padar Grama Panchayat under Tarbha Panchayat Samiti. His election as Member of the Panchayat Samiti was challenged by the opp. party before the learned Civil Judge, (Sr. Division), Sonepur in Election Dispute Case No. 7 of 2007. The learned Civil Judge by judgment dated 22.5.2008 dismissed the election petition on contest against the opp. party. Against the said order of dismissal, the opp. party preferred F.A.O. No. 18/22 of 2008, which has been decided by the learned Additional District Judge, Sonepur by judgment dated 4.5.2010 which is impugned in the present writ petition by the petitioner. 2. The learned Additional District Judge in the impugned judgment remanded the election dispute to the court of the learned Civil Judge (Sr. Division), Sonepur by passing the following order:- “The suit is remanded to the learned lower court as per Rule – 28, Order – 41 of C.P.C. with a direction that such Court shall take necessary steps at the expenses of the petitioner-appellant to produce the attendance of the concerned B.D.O.-cum-Election Officer, Tarbha for adduction of his evidence which would be confined to specific points as indicated in para-13 of this order and that the adduction of such evidence includes both oral and documentary as would be deemed appropriate to the learned lower court. The petitioner – appellant is directed to appear before the learned lower court on 15.5.2010 positively and to take steps accordingly for adduction of the evidence of the concerned B.D.O.-cum-Election Officer, Tarbha limited to the points referred above including production of documentary evidence as necessary. The O.P. is directed to participate in such hearing and to cross-examine, if necessary to such witness. All the expenses in this regard in procuring the attendance of the B.D.O.-cum-Election Officer and for other steps ancillary thereto shall be borne by the petitioner-appellant. The learned lower court is further directed to complete all the above ancillary proceedings and to send the record to this court by 15.7.10 positively.” 3. Substantially, Dr. A.K. Rath, learned counsel for the petitioner has raised two issues in the writ petition, namely, (i) the learned Additional District Judge had no jurisdiction to decide the appeal under section 44-Q of the Orissa Panchayat Samiti Act, 1959 (hereinafter referred to as ‘the Act’), and (ii) in an election dispute under the Act, the appellate court has no power to direct addition of party as well as to remand the case to the learned Civil Judge (Sr. Division), for fresh adjudication. 4. With regard to the first question raised, Dr. Rath submits that section 44-Q of the Act provides that any person aggrieved by an order passed by the learned Civil Judge (Sr. Division, under sub-section (1) or sub-section (2) of section 44-J of the Act can prefer an appeal before the learned District Judge having jurisdiction and, therefore, the learned District Judge acts as persona designata and not as the District Judge, as defined in the Orissa Civil Courts Act. Hence, the learned Additional Distinct Judge could not have exercised the appellate power and decide the appeal. 5. Mr. J.R. Dash, learned counsel for the opp. party, on the other hand, contends that a bare reading of section 44-Q of the Act would amply show that the appeal is to be preferred before the learned District Judge having jurisdiction meaning thereby the Distinct Judge should have jurisdiction over the area in which the Grama Panchayat is situated and the learned Civil Judge (Sr. Division), who tried the election dispute should be under his jurisdiction. He further submits that the appeal, in fact, was filed before the learned District Judge, Bolangir and was subsequently transferred to the learned Additional District Judge, Sonepur and unlike others Acts specifically mentioning that the court trying an election disputes acts as persona designata, the Panchayat Samiti Act does not specifically mention in either section 44-J or section 44-Q that the learned Civil Judge (Sr. Division) or the learned District Judge acts as persona designata and not as a court. 6. Originally, the Orissa Zilla Parishad Act, 1959 (Orissa Act 7 of 1960) was enacted and there was no Panchayat Samiti Act. By the Orissa Zilla Parishad (Amendment) Act, 1961, the Act was renamed as Orissa Panchayat Samiti Act. A new Chapter – VIA was inserted and in section 44-B, the procedure to file an election petition was prescribed. As per section 44-B (2) (b) it was prescribed that in the case of an election in respect of Samiti, the Munsif having jurisdiction over the place at which the office of such Samiti is situated will have jurisdiction to try the election petition. Even in sub-section (3) of the said section, it was provided that an election petition may, either suo motu or on an application, be transferred by the District Judge, if presented before him, to any Additional District Judge or Subordinate Judge, who is subordinate to him in respect of a Parishad and if such election petition is in respect of a Samiti and presented before a Munsif, the same can be transferred as above by the District Judge to any other Munsif subordinate to him. Further amendments have been brought in 1965 and thereafter, ultimately culminating in the present form of the Act. A reading of the gradual development of the legislation which culminated in the present form of Orissa Panchayat Samiti At, 1959, would clearly go to show that the legislature never intended that the Subordinate Judge (at present Civil Judge (Sr. Division)) before whom the election petition is to be presented or the District Judge, who is the appellate authority should act as a persona designate. 2 7. Even otherwise, examining the question from another angle, it would be seen that section 44-B of the Act dealing with presentation of petition prescribes that the election petition shall be presented on one or more of the grounds specified in section 44-L before Subordinate Judge (now Civil Judge (Sr. Division)) having jurisdiction over the place at which the office of the Samiti is situated together with a deposit of Rs. 200/- as security within 15 days after the day on which the result of the election was announced. The proviso prescribes that the Subordinate Judge, if the court is closed on the last day of the period of limitation, the petition may be presented on the next day of which such office is opened and provided further that if the petitioner satisfies the Subordinate Judge that sufficient cause exists for failure to present the petition within the period aforesaid, the Subordinate Judge may in his discretion condone such failure. (emphasis supplied) 8. The Supreme Court in the case of State of M.P. and another v. Anshuman Shukla, AIR 2008 SC 2454, while examining the question of applicability of section 5 of the Limitation Act in respect of a revision before the High Court arising out of a reference under the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (29 of 1983), examined the question as to which is a court under the Indian Evidence Act. While examining the said question, referring to various earlier judgments of the apex Court, it was laid down that there exists a distinction between a court and the Tribunal. The very fact that the authorities under the Act are empowered to examine witnesses after administering oath to them clearly shows that they are “Court” within the meaning of the Evidence Act. The “Court” is defined in section 3 of the Indian Evidence Act, which reads thus:- “Court” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence. [ 9. Finding that the Tribunal under the said M.P. Act has been conferred various powers, the Supreme Court observed that there cannot be any doubt whatsoever that the authorities under the said Act are also “Court” within the meaning of the provisions of the Indian Evidence Act. It was observed that the definition of “Court” under the Indian Evidence Act is not exhaustive (See The Empress v. Ashootosh Chuckerbutty and others, ILR (4) Cal. (15) 483 (F.B.)). The Supreme Court, therefore, laid down that though the said definition of “Court” is for the purpose of the Indian Evidence Act alone, all authorities must be held to be Courts within the meaning of the said provision who are legally authorized to take evidence. The word “Court” has come up for consideration at different times under different statutes.The Supreme Court, thereafter, having analyzed various decisions held that the Tribunal under the M.P. Act for all intent and purport is a Court which has to determine a lis. 10. Applying the ratio of the said decision to the Orissa Panchayat Samiti Act, it would also be seen that the Subordinate Judge (Civil Judge (Sr. Division)) is empowered under section 44 (H) to exercise the jurisdiction vested in a court under the Code of Civil Procedure while trying a suit in respect of the matters mentioned in the said section which includes examining witnesses on oath. Hence, it is conclusively found that the Subordinate Judge, who is to try an election dispute under the Act as well as the appellate authority, i.e., District Judge cannot be held to be persona designata and they come under the definition of the “Court” as defined in the Indian Evidence Act. 11. Thus, the contention raised by Dr. A.K. Rath that the learned Additional District Judge has no power to decide the appeal cannot be accepted. 3 12. With regard to the question as to whether the appellate court under section 44-B of the Act can exercise the power directing either addition of a party to the proceeding and/or remand of the case to the learned Civil Judge (Senior Division) to examine the Election Officer as a witness by way of additional evidence in accordance with Order 41, Rule 27 (b) C.P.C., it is seen that section 44-H of the Act specifically provides that the learned Civil Judge (Sr. Division) shall have the powers of a civil court which he has, while trying a suit, but in respect of the matters specifically mentioned in the said section. For better appreciation, section 44-H of the Act is quoted herein below:- “44-H. Powers of (Subordinate Judge)- The Subordinate Judge shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely: (a) discovery and inspection; (b) enforcing the attendance of witnesses and requiring the deposit of their expenses; (c) compelling the production of documents. (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses, and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (5 of 1898)”. Section 44-C of the Act specifically provides as to who are the parties to be impleaded as parties in an election petition, which is as follows:- “44-C. Parties to the petition- (1) An election petition may be presented by any candidate as such election. (2) A person whose election is questioned and where the petition is to the effect that any other candidate is to be declared elected in place of such person, every unsuccessful candidate who has polled more votes than such candidate shall be made opposite party to the petition”. 13. It is, therefore, clear from the above provision of the Act that the learned Civil Judge (Sr. Division) in an election dispute under the Act has no jurisdiction to direct addition or deletion of parties from the proceeding. The appellate court in a statutory appeal always has the powers which are exercisable by the trial court. But, however, the jurisdiction to remand a matter to the trial court is a special jurisdiction of the appellate court under the C.P.C. The appellate court under the Act, nevertheless, cannot exercise, the powers vested in an appellate court under Order 41 C.P.C. as the election dispute is to be decided strictly in accordance with the Act, there is no provision in the Act empowering the appellate court to remand an election dispute to the learned Civil Judge (Sr. Division). 14. It is submitted by Mr. J.R. Dash, learned counsel for the opp. party that no where, the appellate court in its judgment has directed impletion of the B.D.O.-cum- Election Officer as a party to the proceeding and, therefore, the question of jurisdiction of the appellate court to direct addition of party has no relevance to this case. 4 15. A reading of the judgment of the appellate court shows that in the body of the judgment, an observation was made that no issue has been framed as to whether the suit was bad for non-joinder of necessary/proper party nor it was raised by the opp. party-respondent in her pleadings. But as per Order 1, Rule 10 C.P.C., the court has got jurisdiction to direct any of the parties to the suit for addition of necessary or proper party for proper adjudication of the lis if it is felt necessary. It has been also observed that the learned trial court should have exercised its power under Order 1, Rule 10 C.P.C. by giving a direction to the election petitioner to add the Election Officer concerned as a party to arrive at a just decision on issue nos. 4, 6 and 7. Observing thus, the appellate court came to the conclusion that the election case being of the year 2007 and three years being lapsed out of the total term of five years, it is not felt necessary that it would be proper to frame such an issue for answering. But it would be appropriate for the interest of justice to direct the learned trial court to examine the Election Officer as a witness instead of adding him as one of the opposite parties to the suit. (emphasis supplied) 16. At the out-set, it may be mentioned that the learned appellate court has mis- directed himself by treating the election dispute as a suit. When section 44-C of the Act clearly states as to who are to be added as parties in an election dispute, the Court trying the election dispute or the appellate court, cannot exercise jurisdiction like a civil court by directing addition of parties in accordance with Order 1, Rule 10 C.P.C. in an election petition. The observations made by the learned appellate court, therefore, were mis-directed. 17. I have been taken through the materials which were brought before the court during trial of the election dispute. Considering such materials, I am of the considered view that the learned appellate court if felt that the evidence of the Election Officer was very much essential for just adjudication of the dispute should have summoned the Election Officer and recorded his evidence himself and should not have remitted the matter back to the court below for recording of the said evidence. Considering the scheme of the Act , it is clear that both the Civil Judge (Sr. Division) as well as the appellate court are to follow the procedures strictly in accordance with the Act and when the Act does not vest the jurisdiction on the said courts to exercise all the powers of the civil court as per the Code of Civil Procedure, it cannot be construed that the appellate court has jurisdiction under Order 41, Rule 28 C.P.C. to remit the matter back to the court below to take additional evidence. 18. In view of the above discussions, while setting aside the impugned order passed by the appellate court, the matter is remitted back to the learned Additional District Judge, Sonepur to summon the Election Officer and record his evidence himself giving opportunity to the petitioner to cross-examine him and upon recording such evidence shall consider the same along with other materials available on record and dispose of the election appeal afresh by the end of March, 2011. 19. With the aforesaid direction, the writ petition is allowed, but in the circumstances without cost. Writ petition allowed. 5