ORISSA HIGH COURT: CUTTACK W.P.(C) No.18314 of 2012 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------------- Banka Bihari Mohapatra, aged about 50 years, S/o. Late Bhupen Ch. Mohapatra, At/P.O. Putina, P.S. Kamarda, Dist: Balasore … Petitioner. -VersusGitagobinda Patra and others … Opp.Parties For Petitioner : M/s. B.S. Das, A.K. Panigrahi & M.K. Biswal For Opp.Parties : None ----------- PRESENT: THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA Heard and Disposed of on 16.10.2012 ORDER
B.N.Mahapatra, J.In view of the nature of order going to be passed in this writ petition at admission stage, there is no need to issue notice to opposite parties.
2. The petitioner in this writ petition challenges the order dated 17.7.2012 passed by the learned Civil Judge (Jr. Divn.), Jaleswar (Election Tribunal) in Election Misc. Case No.1 of 2012 (Annexure-5) allowing the petitions dated 22.6.2012 (Annexure-3 series) filed by the election petitioner. A further prayer is made for a direction for striking off 2 evidence of PWs- 3, 4 and 5 dated 06.08.2012 and 07.08.2012 under Annexure-6 series.
3. In Annexure-3 series, there are two petitions filed by the election petitioner, one with a prayer to call for the Admission Register from the Principal, S.R. Mahavidyalaya, Devog, Baliapal to prove that Sri Jyotiprakash Mohapatra, S/o-Bankabihari Mohapatra was born after the cut-off date, i.e., 13.3.1996 and another petition was made with a prayer to call for the Admission Register from the Headmaster, Lokanath High School, Mahagab, Balasore to prove the date of birth of Sri Jyotiprakash Mohapatra. To this effect, the present petitioner (opp. party no.1 in court below) filed objection under Annexure-4 stating therein that the said petitions should not be allowed on the ground that there is no pleading to the effect that the admission register of the said School and Mahavidyalaya are necessary to prove the date of birth of Sri Jyotiprakash Mohapatra.
4. Mr. B.S. Das, learned counsel appearing for the petitioner submits that two petitions dated 22.06.2012 filed under Annexure-3 series are not in the line of the pleadings made in the election petition. Therefore, the Election Tribunal is not justified to allow the said petitions of the election petitioner.
5. It is not in dispute that there is a pleading in the election petition that Sri Jyoti Prakash Mohapatra, the fourth child was born on 13.03.1996, i.e., after the cut off date for which opp. party no.1 is No.3 qualified to be elected to the post of Sarpanch. For ready reference, paragraph-4 of the election petition is reproduced below:“4. That, the O.P. No.1 had/has all total four children namely Sandhyarani, Ranjeeta, Debaprakash and Jyotiprakash, out of above four children the 1st three namely Sandhyarani, Ranjeeta and Debaprakash had/have been begotten prior to cut of line, i.e., 21.04.1995. But the last child Jyotiprakash had/has been begotten on 13.03.1996 which is admittedly after the above cut off line for which the Opp. No.1 was/is completely a disqualified candidate for the above post.”
6. From the above averments, it is crystal clear that the petitioner has taken a specific stand that Sri Jyotiprakash Mohapatra, the 4th child of the petitioner was born after the cut-off date for which he is not qualified to be elected to the post of Sarpanch. However, as stated by the petitioner, there is no pleading with regard to name of the School where the admission register of the students are maintained.
7. Paragraph 4 of the objection petition filed on behalf of opp. party no.1 reads as follows:“That, the petitioner is limited to the strength of his footing. Hereby filing petitions, petitioner have by passed the limitation which have been framed in law and not tenable. The averments of the misc. petition do not correspond to the descriptions of the petitions. As per provisions of law petitioner should seek relief within ambit of the pleading and any relief beyond pleading is not entertainable.”
8. For proper adjudication of issues involved in the present case, it is necessary to quote the relevant paragraphs of the impugned order (Annexure-5) passed which reads as follows:“On scrutiny it appears that the said documents already marked as exhibit – 1, 2, 3, 4 & 5 (with 4 objection) on behalf of the petitioner during trial even though O.P.W-1 raised objection to such marking. Since it has been R.T.I. true copy issued by the different P.R.O., so, it is necessary to call for the said documents to elucidate the real controversy of the said documents and it is very much essential to reach a conclusion of the dispute among the petition. Hence, for the interest of justice and to effective adjudication of the case the petition dt. 22.6.12 filed by the petitioner is allowed. Petitioner is directed to deposit the sum of Rs.700 for each documents separately tentatively towards produce of documents to give evidence positively by 22.7.12 and to take steps by filing requisites.”
9. It appears from order of learned Tribunal quoted above, that the documents filed by the election petitioner during trial have been marked as Exts.1, 2, 3, 4 and 5. In support of his contention that the fourth child was born after the cut-off date, those documents are obtained under the R.T.I. Act. In the interest of justice, the petition dated 22.6.2012 under Annexure-3 series filed by the election petitioner has been allowed by the learned Tribunal who directed the election petitioner to deposit the sum of Rs.700/- tentatively for each of the documents separately towards production of documents to give evidence by 22.7.2012 and to take steps by filing requisites.
10. Further submission of Mr. Das, learned counsel for the petitioner is that in absence of any pleading in the election petition with reference to the documents marked as Exts.1, 2, 3,4 and 5, the petition dated 22.6.2012 filed by the election petitioner should not have been allowed.
11. Above contentions of Mr. Das are wholly untenable in law. 5 Order VI, Rule 2, CPC postulates that every pleading shall contain, and contain only, the statement in concise form of the material facts on which a party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
12. The Hon’ble Supreme Court in the case of Sopan Sukhdeo Sable and others V. Assistant Charity Commissioner and others, (2004) 3 SCC 137.held that Order 6 Rule 2(1) C.P.C. states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
13. “Material facts”. are primary or basic facts which must be pleaded by the plaintiff or defendant in support of the case set up by him either to prove his cause of action or defence. (See Virender Nath Gautam v. Satpal Singh and others, AIR 200.SC 581).
14. This Court in the case of Doshei Dei and others V. Rama Tauta and others, 1985 (I) OLR 1.held that pleading shall contain material facts in concise form on which the party relies for his claim or defence, but not the evidence by which they are to be proved. (Also see Mst. Tabha Berihani V. Prafulla Candra Bhoi, 1997 (II) OLR 49.and Draupadi Patel V. Loknath Panda and others, (1998(I) OLR 550).
15. The Hon’ble Supreme Court in the case of Madan Gopal Kanodia V. Mamrai Maniram and others, AIR 197.SC 46.held that 6 Courts should not scrutinize the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds.
16. The Hon’ble Supreme Court in the case of Ram Sarup Gupta (dead) by L.Rs., V. Bishnu Narain Inter College and others, AIR 198.SC 124.held that it is well settled that in absence of pleading, evidence, if any, produced by the parties can not be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to knot the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to 7 trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. (Also see Bhagwati Prasad V. Chandramaul, AIR 196.SC 735).
17. It is true that the election petitioner has to strictly prove the pleadings made in the election petition. Undisputedly, in the present case election petitioner has taken specific stand in the election petition with regard to birth of 4th child after the cut off date as the ground to declare the election of returned candidate invalid.
18. For the reasons stated in the preceding paragraphs, further prayer made in the writ petition for striking off the evidence of PWs-3, 4 and 5 dated 06.08.2012 and 07.08.2012 also cannot be granted.
19. In view of the above, this Court does not find any infirmity or illegality in the order of the learned Tribunal and it is not a fit case where interference of this Court in exercise of its extraordinary power under Article 226 of the Constitution of India is called for. The Election Tribunal is justified in allowing the petition dated 22.06.2012 under Annexure-3 series by its order dated 17.07.2012.
20. In the result, the writ petition is dismissed. …... …………………….. B.N.Mahapatra, J.