1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.214 OF 2010 IN WRIT PETITION NO.6947 OF 2009 WITH CIVIL APPLICATION NO. 10429 OF 2010 Gautam S/o Pandurang Bhalerao Age : 51 years,Occup.Municipal Councilor,Gangakhed, R/o Gangakhed, Tq.Gangakhed, District Parbhani. ...PETITIONER. VERSUS Gautam S/o Amrutrao Rohinkar Age 34 years,Occup. Business, R/o Gangakhed, Tq. Gangakhed, District Parbhani. ...RESPONDENT. ... Shri.P.V.Mandlik, Sr.Counsel i/b Shri.Amol Gandhi,Advocate for appellant. Shri.Sudhir K.Chavan,Advocate for Resp.No.1 Shri.S.D.Kaldate,A.G.P. for Respondents. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 18TH OCTOBER,2010. PER COURT : 1. Heard learned counsel for the parties. 2 2. Mr. Mandlik, learned Senior Counsel appearing for appellant submits that impugned order passed by the learned Single Judge, in Writ Petition No. 6947 of 2009 is patently illegal and erroneous, in as much as secrecy of the ballot will be affected in case the order passed by the trial Court is maintained. 3. The learned Senior Counsel further submits that trial Court has issued summons to witness Shri Mohammad Omar, Marketing Manager of Electronic Corporation of India. Ltd. Hyderabad (A.P.), who was authorized by State Election Commission of Maharashtra State, as an expert to opine on the functioning of the electronic voting machine. Consequent to the issuance of witness summons, Mr. K. P. Chandrashekhar appeared before the Court on behalf of Mr. Mohammad Omar, who was examined by the Court, inspite of objection raised by the appellant. 4. The learned Senior counsel further submits 3 that the provisions of Section 94 of the Representation of Peoples Act are violated due to examination of Mr. Chandrashekhar. The appellant is prejudiced, therefore, order impugned before Writ Court is required to be quashed and set aside. 5. Mr. Chavan, learned Counsel appearing for respondent-Election Petitioner filed affidavit-in- reply today. The Counsel further submits that Mr. Chandrashekar is 11th witness who was not cross-examined by the appellant herein. It is alleged that the appellant is prolonging hearing of the Election Petition. He was declared elected on toss, as both appellant and respondent received 411 votes each. 6. The learned counsel further submits that in view of provisions of Code of Civil Procedure, under Order 16 Rule 1-A, the Court is entitled to examine a witness, without summons. Though, witness summons was issued to Mr. Mohammad Omar, 4 he deputed Mr. Chandrashekhar, Engineer working with Electronic Corporation of India Ltd., Hyderabad (A.P.) as an expert. The respondent examined him. The application of the appellant for adjournment to cross examine Mr. Chandrakshekhar came to be rejected, by an order dated 13th August, 2009 and on the next day i.e. on 14.08.2009 Mr.Chandrashekhar was examined. The Writ Petition was filed on 26.08.2009 and the ‘Rule’ has been issued. 7. The learned counsel further submits that argument of the respondent is over and the matter is posted for hearing of the appellant before the trial Court. Five years term as councilor would be over after one year. The learned counsel further submits that the appellant has been successfully prolonging the matter from so many years, making election remedy futile. The learned counsel in support of his submissions placed reliance on following Judgments: 5 1.A Neelaohithadasan Nadar Vs. Georage Mascrene 1994(Supp.2)SCC 619. 2.Mange Ram Vs. Brij Mohan 1983(4) SCC 36. 8. We have perused the record before us, affidavit in reply, Judgments cited supra. We have considered the provisions of Code of Civil Procedure and provisions of Representation of Peoples Act. The learned Single Judge, while dealing with issue, observed that the questions raised by the appellant regarding validity and correctness of the order impugned in the Petition can be gone into, in the event, if the decision of the Election Petition goes against the appellant. In the facts of the case, it is clear that Mr.Chandrashekhar was permitted to be examined as an expert witness by the Court. Though, it is stated that he was not cross examined, his deposition is already on record. 9. In the light of the facts of the case, the learned Single Judge observed and in our view 6 rightly so that the appellant would be entitled to raise these questions, in case final decision in the election petition goes against him. In this view of the matter, we are not inclined to entertain the Letters Patent Appeal. The Letters Patent Appeal is dismissed. The dismissal of Letters Patent Appeal shall not affect merits of the Election Petition. 10. We find that Election Petition is pending since 2006, the same is required to be disposed of at the earliest. We expect that the trial Court should dispose of the matter at the earliest, on its own merits, in accordance with law. . In the light of dismissal of Letters Patent Appeal, nothing survives for consideration in the Civil Application, the same is disposed of accordingly. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK 7