1 S.B. CIVIL WRIT PETITION NO.2645/2009. Subhash Chandra Vs. Shanti Lal & Ors. Date of Order :: 28th April 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Rakesh Arora, for the petitioner. Mr. B.L. Choudhary, for the respondent No.1 (Caveator). .... BY THE COURT: The writ petitioner, holding the office of Sarpanch of Gram Panchayat Badwai, District Chittorgarh, is defending an election petition (E.P. No. 5/2005) filed by the respondent No.1 (election petitioner) that remains pending in the Court of Civil Judge (Senior Division), Chittorgarh. In the said election petition, issues were framed on 04.08.2006 and the evidence of the election petitioner was completed on 13.11.2007. While the matter was fixed for the writ petitioner's evidence, certain applications were moved and after disposal of the same, evidence of the writ petitioner commenced wherein his statements were recorded on 25.05.2008. Thereafter, the matter was fixed on 29.05.2008 and at request, was adjourned to 04.07.2008 while granting last opportunity to the writ petitioner for the purpose of his evidence. On 04.07.2008, the statements of the witnesses Ratan Lal, Nand Lal and Natwar Lal were recorded as NAW-2 to 2 NAW-4. However, the writ petitioner filed an application with the submission that the witness Puran Mal, whose affidavit had already been filed, may be summoned stating the reason that since after filing of such affidavit, his relations with the said witness Puran Mal did not remain cordial and the witness was not attending the Court for evidence despite requests. The application so moved came to be rejected by the Trial Court same day and the evidence of the writ petitioner was closed down with the observations that sufficient opportunities had already been extended. The writ petitioner preferred a writ petition (CWP No. 4711/2008) questioning the said order dated 04.07.2008 that came to be allowed by this Court on 21.08.2008 by the following order:- “By the instant writ petition, the petitioner seeks quashing of the order dated 4.7.2008 (Annexure-5) passed by the respondent No.4, Civil Judge (Senior Division), Chittorgarh trying election petition (for short 'the trial court' hereinafter) closing the evidence of the petitioner. Heard counsel for the parties. Counsel appearing for the respondents submits the order impugned may be set aside and the trial court may be directed to summon the witness Puran Mal sought to be summoned by application Annexure-4. In view of the statement of counsel for the respondent, the writ petition is allowed, the order impugned dated 4.7.2008 is set aside and the application Annexure-4 is allowed. The trial court is directed to summon the witness Puran Mal for his evidence. If the witness Puran Mal fails to appear then his presence may be secured by bailable or non-bailable warrant as case may be. Next date as stated by the parties, before the Election Officer is 29th of August, 2008. The parties are directed to appear before the trial court on the next date 3 without any notice and the counsel for the petitioner undertakes to deposit the expenses for summoning the witness on the date fixed. However, it is made clear that on the next date, if the petitioner fails to deposit expenses for summoning the witness, no further opportunity for summoning the witness will be granted. There shall be no order as to costs.” The order-sheets as drawn by the learned Trial Court in the election petition after passing of the aforesaid order by this Court show that on 28.08.2008, upon production of the order of this Court, the witness Puran Mal was ordered to be summoned for 18.10.2008. On 18.10.2008, the Trial Court noticed that the process had been returned unserved for the witness being not available at the given address of Badwai village. It was asserted on behalf of the election petitioner that the witness was regularly moving around with the present petitioner and his service was being avoided intentionally. The Trial Court again directed bailable warrants to be issued to the said witness for 11.11.2008 and directed the election petitioner to get him served through identification. However, the matter was, adjourned on 11.11.2008 for the Presiding Officer being not available. On 28.11.2008, again, the process was received unserved and was again ordered to be issued for 15.01.2009 with the same stipulation. On 15.01.2009, for the process having not returned, the same was ordered to be issued yet again with the same directions; and the matter was adjourned to 25.02.2009. 4 On 25.02.2009, the election petitioner moved an application with the submissions that the witness Puran Mal was a close friend of the writ petitioner; and that the said witness Puran Mal had invited the writ petitioner as Special Guest on 19.01.2009 in the opening ceremony of his petrol pump. The Trial Court noticed the previous proceedings and the order passed by this Court and so also the submissions made by the election petitioner with reference to an invitation card wherein the writ petitioner was invited as Special Guest by the said witness Puran Mal. For the said invitation card having not been disputed, the learned Trial Court formed the opinion that the writ petitioner had obtained the orders while making wrong assertions before the Courts; and had attempted to abuse the process of law only in order to elongate the proceedings. The learned Trial Court concluded that the witness Puran Mal and the writ petitioner were having close relations and the writ petitioner could easily produce the said witness. Hence, while directing the petitioner to produce the said witness himself, the matter was posted for evidence on 20.03.2009. On 20.03.2009, the writ petitioner again made the request for summoning the said witness with the submissions that the witness was not attending the Court at his request. The petitioner submitted that he had earlier participated in the 5 opening ceremony of the petrol pump for that being a public related work and for himself being the Sarpanch. However, the application came to be rejected by the Trial Court same day declining the prayer as made by the petitioner for summoning the said witness; and the evidence was ordered to be closed. The petitioner has filed this writ petition questioning the aforesaid orders dated 25.02.2009 and 20.03.2009 particularly on the submissions that as per the order passed by this Court, the said witness is required to be summoned; and the impugned orders as passed by the learned Trial Court cannot be sustained for being contrary to the order already passed by this Court. Learned counsel for the writ petitioner and the learned counsel appearing in caveat for the election petitioner (respondent No. 1) have been heard. The respondent No. 2 herein seems to have remained ex parte in the Trial Court and the respondent No.3 is a formal party. Having regard to the circumstances, while dispensing with service on the other respondents, it is considered appropriate to dispose of the matter finally at this stage itself. Learned counsel for the election petitioner (respondent No.1) has put a serious opposition to the challenge as made by the petitioner to the orders dated 25.02.2009 and 20.03.2009 with the submissions that since after passing of 6 the order dated 21.08.2008 by this Court, the only intention of the writ petitioner had been to anyhow delay the proceedings in the name of summoning of the witness Puran Mal, who is otherwise a close friend of the writ petitioner. Learned counsel particularly referred to the order-sheets dated 18.11.2008, 20.11.2008, and 15.01.2009 to submit that the writ petitioner never co-operated in getting the said witness served and in the given circumstances, when the learned Trial Court was satisfied of the otherwise intentions of the petitioner, it had rightly closed the evidence after granting another opportunity to the petitioner to produce the said witness. Having examined the material placed on record and having given a thoughtful consideration to the matter, this Court is unable to agree with the submissions as made on behalf of the election petitioner-respondent No.1; and is unable to countenance the approach of the learned Civil Judge in passing the orders rather contrary to the writ and directions already issued in the matter by this Court. The earlier order dated 04.07.2008 closing the evidence of the writ petitioner was set aside by this Court as agreed to by the parties on 21.08.2008; and the said witness Puran Mal was ordered to be summoned. In the order dated 21.08.2008, this Court made it clear that in the event of the witness failing to appear, his presence could be secured by bailable or non- 7 bailable warrant, as the case might be. The writ petitioner was required to deposit the necessary expenses; and it is not the case that the writ petitioner has not carried out the requirements of the order passed by this Court. Thereafter, it was required of the learned Trial Court to ensure compliance of the order passed by this Court in its letter and spirit. When the witness was not served with bailable warrant and the submissions were made on 18.10.2008 that the witness was moving around with the petitioner, the Trial Court directed bailable warrant to be issued again and put the responsibility rather on the election petitioner to get the said witness served through identification. As per the order-sheets dated 28.11.2008 and 15.01.2009, of course, it is noticed that the said witness was not served but it is nowhere clear as to what steps were taken by the election petitioner to get the said witness served. It appears that instead of taking appropriate steps for ensuring service on the said witness, the election petitioner (respondent No.1) proceeded to move an application on 25.02.2009 with reference to an invitation card where the present petitioner allegedly attended the petrol pump inaugural ceremony at the invitation of the said witness; and the election petitioner again emphasized on the fact that the witness was a close friend of the writ petitioner. The learned Trial Court, instead of looking at the requirements of the order passed by 8 this Court, unfortunately, proceeded to relay heavily on the said invitation card and concluded that the writ petitioner could produce the witness. The said piece of evidence, the so-called invitation card, even when taken on its face value, could not have been considered to be conclusive of the matter or of such circumstance whereby the order already passed by this Court was rendered redundant or was to be ignored. The observations as made by the learned Civil Judge to the effect that the order had been obtained from this Court after concealment of certain facts remain entirely unjustified. The learned Civil Judge could not have nullified the order passed by this Court on his assumption that there had been concealment of any fact before this Court. In the given circumstances, such a grievance, if at all, could have been made only and only before this Court. The significant aspects of the matter are that the order dated 21.08.20008 was passed by this Court specifically on the concession stated on behalf of the election petitioner that the learned Trial Court may be directed to summon the witness Puran Mal. This Court even made it clear that the presence of the said witness Puran Mal could be secured by bailable or non-bailable warrant, as the case might be. It is rather surprising that without going through the entire order passed by this Court, the learned Civil Judge would assume a 9 different state of affairs and different fact situation merely on the submissions as made by the election petitioner. Of course, the election petition is required to be dealt with expeditiously but in the name of expeditious trial, the entire burden of delay in the matter cannot be fastened on the writ petitioner. In any case, once this Court had issued the directions, that too on the consent of the parties, that the said witness was required to be summoned, it was obligatory on the part of the learned Civil Judge to have ensured the compliance of the order passed by this Court rather than by- passing the said order or making an order that stands in conflict with the order passed by this Court. The orders dated 25.02.2009 and 20.03.2009 cannot be approved. In the result, both the impugned orders dated 25.02.2009 and 20.03.2009 are quashed and set aside. The learned Trial Court shall ensure compliance of the order already passed by this Court on 21.08.2008 and for that matter, the learned Trial Court would be free to adopt all the necessary proceedings and to take necessary steps in order to secure the presence of the said witness Puran Mal. The writ petition is allowed as indicated above. However, in the circumstances, there shall be no order as to costs. (DINESH MAHESHWARI), J. 10 Mohan/