1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6880 OF 2009 1. Dnyaneshwar S/o. Roopchand Sonwane .. Petitioners Versus 1. The Additional Divisional Commissioner, Nasik Division, Nasik and 30 others. .. Respondents. --- Mr. V.D. Hon, Advocate for petitioner. Mr. U.B. Bilolikar, Advocate for the respondent No.2. CORAM : R.M. BORDE, J. DATE : 28th April, 2010. PER COURT :- 1] Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing. 2] The grievance made by the petitioner in this petition is in respect of refusal by the Commissioner to accept the written statement 2 sought to be tendered on record by the petitioner/original respondent No.16. The respondent No.3 herein presented an Election Petition, challenging the elections of other respondents arrayed in the petition as well as the petitioner herein, as members of the Specified Cooperative Society for a period between 2008-09 till 2013. 3] The Election Petition is stated to be pending for final hearing before the Commissioner at Nasik. It is not necessary to go into the factual details of the matter. Some of the respondents presented written statement and controverted the contentions raised in the petition. The necessary issues have also been framed by the Commissioner. Initially, the petitioner herein/respondent No.16 presented an application in the pending Election Petition, requesting the Commissioner to frame certain preliminary issue as regards maintainability of the election petition. On the basis of the preliminary objections raised in the application, a request was made by the respondent to dismiss the Election Petition, in limine. 4] The Commissioner turned down the application, in view of the order dated 15/7/2009 on the ground that the issues have already been framed and thus, there is no need to consider the application. Another application was tendered by the petitioner requesting the Commissioner to accept the written statement, which request was opposed by the respondent. The Commissioner, however, in view of the order passed on 25/8/2009, refused to accept the written statement on the ground that recording of evidence has commenced and the issues are already framed. A similar 3 prayer was made by presenting another application on 10/9/2009. However, the said application presented by the petitioner was also turned by the Commissioner. Thus, the petitioner has approached this court making a grievance in respect of the orders passed by the Commissioner refusing to accept the written statement sought to be tendered by the petitioner on record. 5] I have perused the impugned orders and heard the arguments advanced by the parties. It transpires from the record that the issues in the matter are already framed by the Commissioner and in view of the interim orders passed in the instant petition, the evidence could not be recorded. Only because the issues are framed and the matter is at the stage of recording of evidence, cannot be an impediment in permitting the parties to present the written statement on record. With a view to have a fair trial in the matter, it was appropriate for the Commissioner to extend an opportunity to the petitioner for submitting his defence in the matter. So far as the initial order passed by the Commissioner, in respect of refusing to frame a preliminary issue and consider the Election Petition on merits, needs no interference. The matter is ready for recording of evidence. However, the petitioner needs to be extended an opportunity to put forth his defence in the form of written statement on record. There cannot be any impediment as contemplated by proviso to Rule 17 of Order VI of CPC in submitting the written statement, once the issues in the matter are framed. The Election Petitions are governed by Section 144T of the Maharashtra Cooperative 4 Societies Act and in view of sub-section (3) of Section 144T, the Commissioner, while exercising jurisdiction conferred on him under the chapter, has the same powers as vested in the court in respect of proof of facts by affidavit, summoning and enforcing the attendance of any person and examining him on oath; compelling discovery or the production of documents and issuing commissions for the examination of witnesses. The procedure to be followed at the trial of Election Petition is laid down under Rule 76 of the Maharashtra Cooperative Societies Elections to the Committees Rules, 1971. Rule 74 prescribes presentation of the Election Petition, whereas, Rule 75 gives details in respect of the parties to the petition. In the present case, the Commissioner is supposed to permit the parties to place their defence on record and examine the witnesses. The Commissioner is also invested with the powers to summon the witnesses and to permit examination of the witnesses on commission. In order to meet the ends of justice, it would be appropriate for the Commissioner to permit the petitioner herein to present his defence on record. 6] In the circumstances enumerated above, I am of the opinion that the request made by the petitioner in the instant petition needs to be considered favourably. The impugned orders passed in Election Petition No. 10/2008, by the Divisional Commissioner, Nasik dated 35/8/2009 and 10/9/2009, refusing permission to place on record the written statement sought to be tendered by the petitioner are quashed and set aside. The application tendered by the petitioner herein requesting the Commissioner to 5 permit him to place on record the written statement shall be deemed to have been allowed. The Commissioner shall proceed to hear and decided the Election Petition in accordance with law, after affording an opportunity of hearing to all the parties concerned. Rule made absolute in above terms, there shall be no orders as to costs. [R.M. BORDE,J.] Grt/-