Civil Revision No.861 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.861 of 2010 (O&M) Date of Decision 19.01.2011 Bimla Devi ...... Petitioner VERSUS The Presiding Officer, Election Tribunal (Deputy Commissioner), Barnala and another ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Pawan Kumar, Senior Advocate, with Mr.Saqib Ali Khan, Advocate, for the petitioner. Mr.Tribhawan Singla, Advocate, for the respondents. ***** A.N.JINDAL, J: This revision petition is directed against the order dated 09.12.2009, passed by the Presiding Officer, Election Tribunal (Deputy Commissioner), Barnala, allowing the application of respondent No.2 to lead additional evidence by way of summoning the ballot papers of Charan Singh @ Bhola Singh and Mukesh Kumar of ward No.11 of Booth No.23- 24 and also to compare their thumb impressions over the said ballot papers, which are said to be fictitious votes. Learned counsel for the petitioner has submitted that the impugned order is mis-conceived as the evidence, led by respondent No.2 before the Election Tribunal, has already been closed. Thereafter the application, filed by her for disobedience, was also dismissed. She, while considering the aforesaid two orders, moved a fresh application after the Civil Revision No.861 of 2010 (O&M) 2 Election Tribunal, Barnala was transferred and new incumbent was posted. Having perused the records of the case, the impugned order appears to have been obtained by respondent No.2 by concealment of facts. The Election petition was filed in June, 2008 and respondent No.2 was provided sufficient opportunities to lead evidence. Ultimately, on 12.02.2009, her evidence was closed by order. The relevant extract of the order is reproduced as under:- “The cross-examination of PW1 and PW2 is over. No other witness is present despite the petitioner was given five opportunities. Therefore, no further opportunity is justifiable and hence the evidence of the petitioner is closed by order. Now the case is fixed for respondent evidence for 26.02.2009.” On 12.01.2009, respondent No.2 moved two applications one for summoning the record of Municipal Election of Ward No.11, Municipal Council, Barnala, relating to Ballot slips & voter list of the Election Commissioner and voter list of Ward No.6, Municipal Council, Barnala during Municipal Council, Barnala Election, as held on 30.06.2008 and the other for obtaining the thumb impressions of Charan Singh @ Bhola Singh and Mukesh Kumar for comparison. However, the Election Tribunal, Barnala, vide order dated 12.01.2009, dismissed these applications. The relevant extract of the order is reproduced as under:- “No witness is present. Petitioner wants to summon the record and an application for summoning the record has been given with request that the thumb marks of Charan Singh and Mukesh Kumar be got examined from the experts. The last opportunity was given to the petitioner for leading evidence. The petitioner instead of bringing the evidence has given the application. It appears that the petitioner has given the application at this stage just to prolong the case, therefore, the present application(s) is Civil Revision No.861 of 2010 (O&M) 3 hereby dismissed and the last opportunity is given to the petitioner for producing the witnesses and these witness be summoned for evidence for 27.01.2009.” Thereafter, on 12.02.2009, the evidence of respondent No.2 was closed by order. In the meantime, Deputy Commissioner, Barnala, was transferred. On his transfer, respondent No.2 again moved an application (Annexure P-7), making the same prayer and it was further added that the ballot slips and the election convener be also summoned and the thumb impressions of Charan Singh @ Bhola and Mukesh Kumar be matched with the thumb impressions affixed on these slips and the said application was allowed vide order dated 09.12.2009. Respondent No.2 appears to have concealed the material facts while obtaining the impugned order. Firstly, she did not disclose if her evidence has already been closed by order, secondly, she had moved such application earlier which was also dismissed, thirdly, she has not mentioned any fresh grounds for moving the application afresh, as such, this Court is of the opinion that the application for additional evidence is misuse of the process and the impugned order has been obtained by concealing the true facts, hence, the said order is bound to be set aside. Resultantly, I accept the present petition and set aside the impugned order dated 09.12.2009. (A.N.Jindal) Judge 19.01.2011 mamta-II