IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 2401 of 2009 RAM ADHIN SINGH, SON OF LATE SHEO KUMAR SINGH, RESIDENT OF VILLAGE-ALADAHI, POLICE STATION- MOHANIA, DISTRICT- KAIMUR AT BHABHUA. ..................................................... PETITIONER Versus 1. THE STATE OF BIHAR THROUGH COLLECTOR, KAIMUR. 2. THE BLOCK DEVELOPMENT OFFICER-CUM-ELECTION OFFICER, BLOCK MOHANIA, DISTRICT- KAIMUR. 3. SHIVADHAR YADAV, SON OF CHHABINATH SINGH. 4. SURENDRA GUPTA, SON OF GHURAHU GUPTA. 5. RAM AWATAR SINGH, SON OF MOTI LAL SINGH. 6. NAND KISHORE SINGH, SON OF TUFANI SINGH, ALL ABOVE SL. NO. 3 TO 6 ARE RESIDENTS OF VILLAGE-AKORHI MELLA, POLICE STATION-DURGAWATI, DISTRICT- KAIMUR. 7. ANIL KUMAR, SON OF LATE RAMASHANKAR PANDEY. 8. ISHWAR CHANDRA PANDEY, SON OF MADAN MOHAN PANDEY. BOTH 7 TO 8 ARE RESIDENTS OF VILLAGE-JIGINA, P.O.-AKORHI, POLICE STATION-MOHANIA, DISTRICT- KAIMUR. 9. RAKESH SINGH, SON OF DINA NATH SINGH. 10. SURESH RAM, SON OF SHEO NATH RAM. BOTH SO. NO. 9 TO 10 ARE RESIDENTS OF VILLAGE- LURPURAWAN, POLICE STATION-MOHANIA, DISTRICT- KAIMUR. 11. BARHU RAM, SON OF MAKALA RAM. 12. SHEO DAYAL VISWAKARMA, SON OF PARUSRAM VISWAKARMA. BOTH 11 AND 12 ARE RESIDENTS OF VILLAGE-SHEAPOKHAR, POLICE STATION-MOHANIA, DISTRICT-KAIMUR. 13. VIJAY PRASAD BIND, SON OF DOMAN PRASAD, RESIDENT OF VILLAGE-BERRA, POLICE STATION-MOHANIA, DISTRICT-KAIMUR. 14. LALAN PASI, SON OF BAIJNATH PASI, RESIDENT OF VILLAGE- IDILPUR, P.S.- MOHANIA, DISTRICT- KAIMUR. 15. VIDYA SAGAR SINGH, SON OF BARI NARAYAN SINGH. 16. UDAY NATH PANDEY, SON OF LATE SARJU NATH PANDEY. BOTH SL. NO. 15 AND 16 ARE RESIDENTS OF VILLAGE-ALADAHI, POLICE STATION-MOHANIA, DISTRICT-KAIMUR. ………………………………………. RESPONDENTS ----------- 2 20/2/2009 Heard Mr. Vindhyachal Singh, learned counsel appearing on behalf of the petitioner and counsel for the State. An interlocutory order passed by the Election tribunal, a court of Munsif, dated 6th January 2009 in Election Petition is 2 the subject matter of this writ application. The factual matrix of this writ application would go to show that the petitioner is a returned candidate on the post of Mukhia, Akorhi Mela Gram Panchayat who is holding the said post since June 2006 and obviously he does not intend to get election case filed against him in his tenure of five years. The petitioner after being served notice of the election petition had appeared on 21.9.2006 and at the very threshold of the proceedings, he had alleged that there was a deliberate interpolation in the election petition filed by Respondent no. 16 for which action under Section 340 Code of Criminal Procedure should be initiated against Respondent no. 16 pursuant thereto an enquiry under Section 340 Cr.P.C. vide Miscellaneous Case no. 26 of 2006 was initiated and when the same was dismissed by the trial court on 20.11.2006, an appeal was carried by the petitioner before the Session Judge, Kaimur which was also dismissed on 6.12.2008 of course after consuming a period of two years with the following observations, namely : - “In any view of the matter in consideration of the plaint and W S I find that such correction does not materially affects the case of the appellant nor the same will affect the final decision of the Election petition as Votes of all the candidates of all the natures have to be counted. However, if, the appellant chooses he may seek for amendment his W S or may file an additional W S even at this stage of this suit as admittedly corrected copy of 3 the Mosanna was not supplied to him. In consideration of the arguments advance on behalf of the parties and also inconsideration of the discussions made above, I am also of the view that the impugned order requires no interference by this Court at this stage and the appeal deserves no merit.” The undaunting spirit of the petitioner however had made no compromise and he still insisted before the court of Munsif, the election tribunal, to initiate a fresh proceeding under Section 340 Cr.P.C. against Respondent no. 16 the election petitioner as also to permit him to file an additional written statement and recast the issues by way of framing additional issues on different aspects including one for interpolation in the election petition on the strength of certain observations of the Session Judge in his aforesaid order dated 6.12.2008 in the following manner:- “PROPOSED ISSUE TO BE RECAST 1. Whether the petitioner has got valid cause of action in view of the averment made in whole of the Election petition. 2. Whether the Election petition as filed in the court is liable to be rejected ? 3. Whether petitioner was not aware of the entries of the names of the persons belonging to the other Gram Panchayats at the time of the polling Votes and also at the time of the counting and recounting of the votes ?. 4. In issue no. 8 cast on 30.10.06 following be added at the end of the said issue “whether the endorsement made by the petitioner at the bottom of the petition 4 dated 17.6.2006 made after recounting was obtained forcibly at the point of gun by Returning Officer with the aid of other officers present at the time of Recounting 7 Does it contain his signature only on the entire endorsement ? 5. Whether Recounting on the request of the petitioner was done or not ? ” Such prayer of the petitioner has been however rejected by the learned Munsif the election tribunal by the impugned order dated 6.1.2009. Counsel for the petitioner was quite emphatic in his submission that the court below has committed a jurisdictional error in rejecting the prayer of the petitioner specially when there was observations to this effect in the order of superior court dated 6.12.2008. He had therefore insisted that this court should direct the trial court, not only to recast the issues as proposed by the petitioner but also allow him to lead evidence on such additional issues as proposed in the petition. In the opinion of this court the petitioner has come with such plea only with a view to delay the final disposal of the election petition which appears to be pending at the stage of arguments and in which the government pleader has already completed his arguments on 6.11.2009 itself, as is apparent from the concluding portion of the impugned order. Moreover the incidental observations of the Session Judge in his order dated 6.12.2008 quoted above also do not envisage such a 5 reopening of the hearing of the election petition. Infact, it is quite clear from the aforesaid alleged observations that the learned Session Judge had given no such directions to re-open the entire hearing of the election case. An observation by way of liberty to seek amendment in written statement of the petitioner will not and cannot mean that the trial court is bound to frame an additional issue and allow the petitioner to lead fresh evidence. It has to be noted that such a plea of their being interpolation in election petition and marked difference in the copy of the election petitioner with the original election petition could by itself have been raised in course of adjudication of election case but the petitioner had taken a circuitous route for delaying the proceeding of election case. As a matter of fact the proposed issue of alleged interpolation in election petition will have also no bearing on the only issue involved in the election petition, confined to the prayer of seeking recounting of votes because such an order if passed by the court below will be for recounting of votes of all the candidates and not only of the petitioner. Moreover when the court has itself clarified in the impugned order that the said plea of the petitioner will be considered at the time of final disposal of election case no. prejudice is going to be caused to the petitioner by not framing an additional issue. It is also evident that beyond the eight issues originally 6 framed on which the parties had already led evidence and had also concluded the arguments, the petitioner had proposed five additional issues which had an effect of reopening the entire hearing of the election petition. Such malafide effort of the petitioner was infact actuated by his dubious design to only keeping the election petition pending for the entire term of the five years and to get the election petition become infructuous. This Court must also hold that the prayer of the petitioner before the Court below for initiating a fresh proceeding under Section 340 Cr.P.C. despite dismissal of his earlier case in the manner indicated above was only a filibusterous attitude and the Court below had rightly rejected the same by the impugned order. In the opinion of this Court, the scope of framing of issues is well settled in terms of order 13 Rule 1 of the Code of Civil Procedure (C.P.C.) read with order 14 Rule 1 thereof according to which the Court has to adjudicate the case by deciding all the issues involved in the suit. Infact the Court can also examine any additional issue it germane and necessary to decide the case and the rule of procedure can not come in the way of substantial Justice. The provisions of C.P.C. being made applicable to the election cases under Rule 109 of Bihar Panchayat Election Rules, there is no difficulty for this Court to hold that the approach of the trial court in passing the impugned order does 7 not suffer from any jurisdictional error so as to be interfered by this Court exercising power under Section 227 of the Constitution of India. It cannot be forgotten that the impugned order refusing to frame additional issue at best is an interlocutory order which does not decide any issue and thus can also not be interfered in a routine and mechanical manner in exercise of power under Article 226 or 227 of the Constitution of India. . In the opinion of this Court such an order of the court below only to the extent of refusing to frame an additional issue in no way can be said to be either in excess of the power of the court or ex facie bad in law so as to be interfered by this Court in exercise of powers under Article 227 of the Constitution of India. Reference in this connection may be made to the judgment of Apex Court in the case of Industrial Credit & Investment Corporation of India Ltd. Vs. Grapeo Industries Ltd. & ors., reported in AIR 1999 SC 1975, laying down a law that the interim order passed by the Tribunal or subordinate court can be interfered by a writ court only if the same is without jurisdiction or ex facie bad in law. As a matter the scope of this court while exercising its power under Articles 226 and 227 of the Constitution of India against an interim order of Tribunal is also well settled, as may be found in the following passage of judgment of Apex Court in the case of Central Bank of India Vs. Gokal Chand reported in AIR 1967 8 S.C. 799. "All interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their cases in the pending proceedings. They regulate the procedure only and do not affect any right or liability of the parties. The expression 'interlocutory order' should be construed liberally including a number of steps taken by the court, such as, orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witnesses, inspection of premises, fixing date of hearing, admissibility of document or the relevancy of question etc. Ordinarily, a High Court in the exercise of the powers under Article 226 or Article 227 of the Constitution will not interfere with an interim or interlocutory order passed by a subordinate court or an inferior tribunal." In the light of the aforesaid findings relating to the nature and scope of the impugned order this Court must hold that this writ application directed against an interlocutory order is itself not maintainable. This Court would also find that the present writ application had been filed to only delay the final out come of the election case with a calculated aim and malafide design to get the election petition filed against the petitioner become infructuous on completion of the period of the tenure of his office of five years. Accordingly, this application being wholly frivolous 9 must be and is hereby dismissed. The Court in seisin of Election Case no. 812 of 2006 is directed to ensure that this election case is disposed of positively within a period of three months from the date of receipt/production of a copy of this order. The Court below after disposal election case within the time frame indicated above would submit its compliance report to this Court. Abhay Kumar (Mihir Kumar Jha, J.)