IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6332 of 2010 1. POONAM KUMARI W/O UDAY SHANKAR SINGH R/O VILL & P.O.HATHIYAWA, P.S.&DISTT-SHEIKHPURA Versus 1. STATE CHIEF ELECTION COMMISSIONER, BIHAR GRAM PANCHAYAT RAJ ACT. THIRD FLOOR, BIRCHAND PATEL PATH, PATNA 2. DISTRICT ELECTION OFFICER-CUM-DISTRICT ................................. SHEIKHPURA 3. RETURNING OFFICER, S.D.O. SHEIKHPURA 4. ASSISTANT RETURNING OFFICER-CUM-BLOCK DEVELOPMENT OFFICER SHEIKHPURA 5. PATIMA DEVI @ PRATIMA DEVI W/O KAUSHALENDRA KUMAR R/O VIMAN, P.S.ARIYARI, DISTT-SHEIKHPURA 6. KAMALA DEVI W/O KRISHNA NANDAN PRASAD R/O VILL KAITHWA, P.S.& DISTT-SHEIKHPURA 7. MAMTA DEVI W/O ARUN KUMAR R/O VILL KHAKHRA, P.O. & P.S.ARIYARI, DISTT-SHEIKHPURA 8. RINA DEVI W/O MUKESH KUMAR R/O VILL PAIGAMBARPUR, P.O.MANIYANDA, P.S.ARIYARI, DISTT- SHEIKHPURA 9. SAVITRI DEVI WO RAJA RAM SINGH ----------- For the Petitioner : Mr. Sanjeev Ranjan and Mr. Rajeev Kr. Jha For respondent no.5 : Mr. Jitendra Kumar Raj For the Commission : Mr. Sanjay Nikesh. 3 21.5.2010 Heard the parties. Petitioner by this writ application challenging the orders dated 12.3.2010 and 31.3.2010 passed by learned Sub Judge I, Seikhpura ( Civil Judge, Senior Division). The said orders were passed in Election Petition No. 4 of 2006 filed by respondent no.5, who was the election petitioner challenging the election of the writ petitioner, who had elected as a member of Zila Parishad . Respondent no. 5 has since appeared and the original order sheet of the case was summoned by this Court and 2 has been perused. To say the least, the case records depicts a very sorry state of affairs. The election petition was filed in the year 2006 and there were various allegations made therein including that of wrong counting and specific case was that the Returning officer while counting votes wrongly rejected the votes of certain polling booths , which were marked by the wooden stump as invalid as they did not bear Swastik marks. The case was that the Swastik mark rubber got deepest and damage. What was available was the wooden stump. In the plaint, as recorded in the impugned order dated 31.3.2010, there was no reference to any written application filed at the time of counting before the results were declared praying for recount and protesting against wrongful rejection. In course of trial also no such evidence was brought on record, still suddenly on 18.12.2009 the election petitioner filed an application before Civil Judge for recount. The proprietary of which itself is questionable inasmuch as issues already having been framed, parties having been led evidence, there was no occasion for such an application. What is more surprise to the Court is that the application was entertained by the election tribunal and had fixed the date for hearing of the matter. While doing so, the election tribunal takes upon itself to direct the State to bring on records certain evidences. The judicial proprietary of such an order is again questionable. In a civil litigation it is the party who has to bring the evidence on 3 record and substantiate his claim. Admittedly, the election petitioner did not even summon those records. Then the matter was heard and judgment in part was delivered on 31.3.2010. Why I use expression ‘ judgment in part’ because the learned Judge decided some of the issues and postponed decisions on other issues for a later date. In the said order, he himself noticed that no evidence in terms of Rule 79 of the Bihar Panchayat Election Rules, 2006 asking for recount at the time of counting has been brought on record by the election petitioner. He himself noticed that the election petitioner in her stand is not clear whether she wants recount or re-totalling, yet for reasons best known to the learned judge being satisfied ordered recount inspite of vehement objection by the opposite party. As noted above, an order was passed on 12.3.2010, which is also impugned, which from the certified copy shows that first there was an order written in English and on the same date later another order was written in Hindi, which was not clear and as such the records were summoned. It transpired by the order dated 12.3.2010,as noted earlier, that he directed the Government pleader to produce certified copy of Form 20 and Form 21 by 18.3.2010. The Hindi order of that date is merely recorded that the order, as passed was shown to the learned lawyer for the applicant, the opposite party and the Government pleader. Thus, two issues arise. Firstly whether the Court himself 4 can order a party to produce certain evidence and then with reference to such evidence decide an issue and secondly in absence of an application under Rule 79 asking for recount at the time of counting, can recount at all be allowed. In my view both issues have to be answered against the election petitioner and both orders in that regard have to be set aside. Firstly, in a civil litigation the plaintiff has to satisfy on his own case and on basis of evidence as brought by him on record. In case there is any evidence, which is not available with him and is available with another party he has a right to seek discover, production and summoning the same but the Court on his own cannot take up this role because Court is not a party to the litigation rather is a adjudicator of the dispute. If a party, which had been bound to lead evidence on any issue based to do it then he must suffer. The court cannot make up the deficiency. These are well established principle but unfortunately the learned Judge summoned to be over anxious to do ‘Justice‘ .Thus, the order dated 12.3.2010 cannot be sustained and is quashed as such. Now we come to the order dated 31.3.20910, a perusal of the said order would show that as per evidence available on record and as per pleadings there was no case that any written application or written protest was made in terms of Rule 79 of the Election Rules. It is well settled that normally in absence of any such application made at the time of counting 5 before the results are declared , recount cannot be ordered. Thus, in view of the findings itself as recorded I am surprised how the learned judge ordered recount. In fairness to learned counsel for the respondent no.5, submits that the learned judge has not ordered a recount but has ordered mere inspection of votes. All that I can say is that in a democracy process where secret ballot has been cast, the secrecy of the votes are of primal importance and the secrecy of votes cannot be violated except on a valid ground of recount. The procedure of inspecting the votes before ordering final recount is unknown to law. In this connection I may refer to a recent judgment of the Apex Court directly on these issues being the case of Kattinokkaula Murali Krishna –v- Veeramalla Loteswara Rao & ors. Since reported in (2010)Supreme Court Cases 466.That case related the Panchayat election of Andhra Pradesh and in relation to an election petition with regard to the plea of recounting itself. Apex Court held that recount of ballot papers affects secrecy of ballot papers and cannot be directed as a matter of course. A clearly stipulated that before tribunal permits scrutiny of ballot papers and order recount, there are two basic requirements to be satisfied (i) election petition seeking recounting must contain an adequate statement of all material facts on which allegations of irregularity or illegality in counting are founded and (ii) on basis of evidence adduced in 6 support of the allegations the tribunal must prima facie be satisfied that making such an order of recount is imperatively necessary. Here there is absence of those still recount was ordered .Then the Apex Court has discussed with regard to the pleadings and the proof. It has clearly held that there cannot be proved of fact, which is not pleading in the plaint. Here in the present case it would be seen that there was no pleading of satisfaction of rule 79 of the rules. Thus, there could be no proof permitting to be brought on record of irregularity in count. If that be so then the issue of recount could not arise at all. Lastly this very peculiar way of delivering judgment on some issues differing on other issues is again something, which is not heard of . A judgment is conclusion arrived at the end of the trial after perusing the evidences. It is a decision at the end. There cannot be an interim judgment or a part judgment. Civil Courts normally has no jurisdiction to pass judgment in part. Thus, in my view, the orders date 12.3.2010 and 31.3.2010 passed by the election tribunal cannot be sustained and are set aside and the matter is remanded for rehearing and a fresh judgment in this regard. The District Judge, Seikhpura is directed to assign the case to any subordinate judge other than who had heard this matter earlier. With the aforesaid observations and directions, the writ petition is disposed of. Let records be immediately sent to the trial court by 7 special messenger. singh ( Navaniti Prasad Singh, J.)