Ningappa Siddappa Chougala Vs. the Secretary to the Department of Urban Development and Panchayath and ors.

- section 100: [a.s. bopanna, j] second appeal - suit for declaration and permanent injunction - plaintiff claimed to be the donee under the gift deed - finding of the lower appellate court that the gift deed ex.p1 cannot be accepted as the attesting witness not being examined - held, that the document marked as ex.p-1 is the certified copy of the gift deed which is marked as secondary evidence as provided under section 65 of the evidence act after laying the foundation vide ex.p-9 stating that the original of the document is deposited with the pld bank. however, the perusal of the records would indicate that the defendants have not raised any objection before the trial court for marking the certified copy of the document at the time of evidence nor is it indicated as a ground in the appeal memo before the lower appellate court. there is no objection raised at the stage of marking the document as secondary evidence though it is contended that the mode of proof is irregular and insufficient. the finding of the lower appellate court that the document at ex.p-1 being inadmissible is not sustainable. that apart, it is noticed that the endorsement (ex.p-9) issued by the bank is of the year 1996 and as such if the loan has been discharged and if the document is available with the plaintiff, it would be open for him to produce the same before the lower appellate court along with an application. matter is remanded to lower appellate court. - the petitioner apprehends and also reliable learnt that by the end of december 2004 a process of preliminary preparation for declaring the election to the said panchayat is directed to be completed and thereafter very soon the necessary election notification would be issued by the 2nd respondent'.it is only the apprehension of the petitioner that by the end of december 2004 preliminary process to declare election will be completed.orderv. gopala gowda, j.1. since this writ petition can be disposed of at the preliminary hearing stage itself, sri h.b. narayan, learned high court government pleader is directed to take notice on behalf of respondents 1, 3 and 4 and sri k.n. phanindra to take notice on behalf of 2nd respondent.2. heard the learned counsels for the parties.3. the petitioner is the adhyaksha of harugeri gram panchayat. he is seeking a prohibition to declare election to the said gram panchayat until his tenure is over. according to the petitioner, he has got another 6 months tenure of office.4. the prohibition sought for by the petitioner cannot be granted. declaration of election is not made. in paragraph 5 of the writ petition the petitioner has stated as under:'the petitioner apprehends and also reliable learnt that by the end of december 2004 a process of preliminary preparation for declaring the election to the said panchayat is directed to be completed and thereafter very soon the necessary election notification would be issued by the 2nd respondent'.it is only the apprehension of the petitioner that by the end of december 2004 preliminary process to declare election will be completed. despite that, the writ petition was filed on 11-1-2005, after the apprehended period was over. further, there is no cause of action for the petitioner to file this writ petition. that apart, in view of section 46 of the karnataka panchayat raj act, 1993, election cannot be declared until the term of office stipulated therein is over. if elections are held before the tenure is over, he is at liberty to challenge the same in accordance with law.5. the writ petition is dismissed with the aforementioned liberty.6. learned high court government pleader to file memo of appearance in two weeks.