1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.220 OF 2010 IN WRIT PETITION NO.6484 OF 2009 WITH CIVIL APPLICATION NO.10774 OF 2010 Bhaurao s/o Patilba Auti ... APPELLANT VERSUS Arun s/o Tulshiram Wagh & ors. ... RESPONDENTS ..... Shri A.N. Nagargoje, Advocate for the appellant Shri S.K. Shinde, Advocate for respondent No.1. ..... CORAM: P.V. HARDAS & N.D. DESHPANDE, JJ. DATED: 2nd August, 2010 PER COURT : 1. This Letters Patent Appeal has been filed by the appellant (original petitioner in Writ petition No.6484/2009), which came to be dismissed by the learned Single Judge of this Court by judgment dated 12.7.2010. 2. The challenge in the Writ Petition before the learned Single Judge was to the judgment and order rendered by the Additional Divisional Commissioner, Nasik Division, in Village Panchayat Appeal No.75/2009. The Additional Divisional Commissioner had allowed the appeal filed by the respondent herein, 2 who had challenged the order passed by the Additional Collector, holding that the respondent herein was disqualified under Section 14(J-1) on account of the fact that a third child was begotten to the respondent after the cut-off date. 3. While allowing the appeal which was filed by the respondent, the Divisional Commissioner found that the appellant herein had not submitted the certificate of the Village Panchayat in respect of the registration of the birth of the third child and the evidence of the Medical Officer was unreliable. 4. The learned Single Judge of this Court, while deciding the Writ Petition, found that the appellant had alleged that a third child was born to the wife of the respondent. The respondent herein, in the proceedings, had filed a certificate dated 24.6.2009, issued by the Swami Vivekanand Hospital, Narayangaon to the effect that there was no entry in the register of the said hospital in respect of the birth of the male child to Smt. Vaishali Arun Wagh on 28.11.2006. The aforesaid certificate had been issued by one Dr. S.G. Gosavi. The very same Medical Officer who had issued the said certificate was examined as a witness of the appellant herein. Dr. Gosavi’s evidence, therefore, was oral evidence, unsupported by any documentary evidence. It appears that, in the record of the hospital, there was an entry, which indicated that Smt. Sunita had delivered a male child on 28.11.2006. Dr. Gosavi 3 in his evidence had not clarified as to how a certificate dated 24.6.2009 was issued to the effect that there was no entry in the register regarding birth of the third child to the wife of the present respondent. The entries in the relevant record showed that initially the name of Smt. Vaishali was recorded in Column No.5 and it was subsequently scored off and thereafter name of Sunita was written. The appellant asserted that Vaishali and Sunita are the same person and they refer to the wife of respondent. The learned Single Judge, therefore, at paragraph 5 of the impugned judgment, observed that, the application which was filed by the present appellant was a belated application i.e. three years after the alleged birth of the third child and four years after the elections had been held. The learned Single Judge further expressed doubt about the record maintained by the hospital in view of the earlier certificate dated 24.6.2009. The learned Single Judge felt that no certificate regarding the unreliability of the said documents was further compounded by the fact that no certificate regarding the entry in the Village Panchayat record was placed on record of the Village Panchayat. The learned Single Judge, therefore, found that, considering the disputed question and probability of the hospital record not being authentic, upheld the order of the Additional Divisional Commissioner and found that there was no perversity in the order to warrant it being set aside. 5. Mr. Nagargoje, learned counsel for the appellant has 4 urged before us that the respondent herein had not filed any reply to the application submitted by the appellant before the first authority and had also not cross-examined the witness. It is also urged before us that the prayer which was made by the respondent in the appeal before the Commissioner was for remanding the matter. It is further urged before us that the appellant herein had tendered the document during the pendency of the writ petition, which showed that the birth of the third child was registered with the Gram Panchayat, but the said Civil Application came to be dismissed. Mr. Shinde, learned counsel for the respondent has supported the order in appeal as well as the judgment of the learned Single Judge. 6. Merely because a party has not controverted the allegations, that would not absolve the appellant herein from establishing the fact that the third child was born. The respondent herein had tendered a certificate, which certificate, according to us also, clearly obliterated the oral evidence of Dr. Gosavi. We concur with the view expressed by the learned Single Judge that the evidence of Dr. Gosavi could not be held as reliable. We, therefore, on that score, cannot fault the judgment of the learned Single Judge. It is then urged before us in respect of the second point, the appellate authority while examining the appeal, decided the appeal on merits. Regardless of the prayer made by the appellant before the appellate authority, if the appellate authority finds that the order of the lower 5 authority is perverse, the appellate authority certainly has jurisdiction in the power, to set aside the order of the lower authority. It need not be guided by the relief viz. the nature of the relief which is prayed for by the appellant. The appellant herein had tendered the Civil Application for placing the document on record. Beyond placing the document on record, nothing was done in respect of getting the documents either proved or annexed to the petition. Since the Writ Petition came to be decided on the basis of the material which was before the learned Single Judge, the learned Single Judge, after dismissing the Writ Petition, dismissed the Civil Application also. In that light of the matter, therefore, we do not notice any perversity in the reasoning of the learned Single Judge to warrant any interference in this Letters Patent Appeal under clause 15 of the letters patent. There is no merit in the Letters Patent Appeal. The Letters Patent Appeal is dismissed summarily with no order as to costs. 7. In the light of dismissal of the Letters Patent Appeal, Civil Application No.10774 of 2010 for stay is also dismissed. (N.D. DESHPANDE, J.) (P.V. HARDAS, J.) fmp/lpa220.10