Alka Jain (Smt.) vs Smt. Nirmala Pathak

U.C. Maheshwari, J.—The petitioner has filed this petition under Article 227 of the Constitution of India for quashment of the order dated 10.9.2012, (Ann. P-1), passed by IIIrd Additional District Judge, Katni in Election Petition/MJC-5/12 whereby allowing the application of the respondent filed under Order 26 Rule 1, r/w Section 151 of CPC, (Ann. P-4) the direction to record her statements on commission has been passed. Pursuant to that the Commissioner has also been appointed. The facts giving rise to this petition in short are that the respondent herein after being elected as Mayor of Municipal Corporation, Katni is facing the trial of aforesaid Election Petition filed by the petitioner to challenge her election of Mayor. After recording the evidence of the petitioner on behalf of respondent the impugned application, Ann. P-4 to examine herself on commission was filed. Inter-alia in such application, it was stated that she being heart patient, her Angioplasty has been carried out on 1.9.2010, subsequent to that she is not in a position to walk on stairs. The Doctor has also advised her to avoid the activities of exertions. In further averments it is stated that on 1.9.2012 some problem occurred in her chest on which she got examined herself in Chandak Hospital and Diagnosis Centre on 1.9.2012. On such date the Doctor has advised her to take bed rest and avoid exertions activities for fifteen days and thereafter she was permitted to continue her regular life in accordance with the direction of Scott Hospital, New Delhi. In this regard some medical papers were also annexed with the application. In further averments, it is stated that concerning trial court of Katni is situated on the first floor and to reach such court a person is bound to go through stairs and in the aforesaid circumstances she is not in a position to go and attend the court for recording her deposition. With these averments the prayer for recording her depositions on commission is made.

The aforesaid prayer was seriously opposed on behalf of the petitioner on the ground that respondent no. 1 being elected Mayor is used to visit various places in the Municipal Corporation area of Katni to look after the work of Municipal Corporation. Besides this, she being political leader and Mayor is also attending various meetings of Corporation and also the functions and attending he political functions and meeting by going through the stairs on the Dais. In support of such contentions, some cutting of the daily newspapers were also placed on record to show that she is attending various functions either at the ground floor or on the Dais in the township of Katni. It also appears from the impugned order that such application is opposed on the ground that being elected Mayor she is always in a position to go anywhere for the work of the Municipal Corporation just to serve the public at large and in such circumstances she could come to the court also for recording her depositions and in such premises prayer for dismissal of the application was made.

On consideration the trial Court has allowed the application of respondent no. 1 for appointing of Commissioner on which the petitioner has come with this petition.

Shri Rakesh Jain, learned counsel for the petitioner after taking me through the averments of the petition as well as papers placed on record alongwith the impugned order said that even on taking into the consideration entire papers annexed with the application, Ann. P-4 as accepted in its entirety even then, after fifteen days from the date of 1.9.2012, the respondent has become in a position to visit anywhere and discharge her duties as Mayor of the town. In continuation, he said that mere on account of Angioplasty of the respondent no. 1 in the available scenario of the matter, the respondent could not be permitted to get recorded her depositions on commission, specially when she is visiting various places of town to discharge her duties as a Mayor. She is also participating in the meetings of the Municipal Corporation and its different committees. The Municipal Corporation office is also public office and in such premises she can come to the court also for her examination. He also said that if there is some problem with the respondent then in that circumstances, subject to appropriate order of the trial court her statements could be recorded at the ground floor of the court premises by the Commissioner so appointed by the Court. He also argued that looking to the nature of the dispute involved in the matter, the petitioner should not be insisted to visit the place of respondent either for recording her deposition or to cross examine her. He further said that cutting of the newspapers placed on record with this petition, Annexure P-6 collectively is sufficient to draw inference that the respondent is carrying out all other activities everywhere in the town not only on the ground floor but on the Dice for which a person is bound to go on height through stairs. Thus, only on account of Angioplasty Surgery, she could not be permitted to avoid her presence before the court to record her deposition. It was also argued that under the discretionary provision of Order 26 Rule 1 of the CPC, the respondent could not be extended the benefit to record her deposition on commission, who persistently for some ulterior reasons does not want to come to the Court for recording the deposition, and prayed for setting aside the impugned order by allowing this petition. In alternate, he prayed that in any case the trial court may be directed to record the depositions of respondent through Commissioner by making arrangements at the ground floor of the Court building.

Shri Adarshmuni Trivedi, learned Sr. Adv assisted by Shri Sampurna Tiwari, learned counsel for the respondent by justifying the impugned order said that the same being based on proper appreciation of the averments of the application, Ann. P-4 is in accordance with law and does not require any interference at this stage. In continuation he said that the respondent being heart patient should not be insisted to attend the court for recording her deposition. By referring the provisions of Order 26 Rule 1 of the CPC he argued that on sufficient circumstances the court has discretion to permit the party to examine himself/herself or the witnesses on commission and in such premises, the trial court has not committed any error in passing the impugned order. As the same was passed taking into consideration the medical papers and existing circumstances of the respondent as stated in the application, Annexure P-4. He further said that although the respondent no. 1 being elected Mayor of Katni is used to visit various places to look after the work of Municipal Corporation and also attending the meetings of the Municipal Corporation and it''s different committees but in any case, she is not in a position to go on first floor through staircase. Thus, she could not be insisted to come and record her depositions in the court. In support of his contention, he also placed his reliance on reported decisions in the matter of Smt. Annapurna Dubey Vs. Champalal @ Chaua and Another, in the matter of Ramrakhi Bai (Smt.) Vs. Pitambhardas reported in 2004, (1) Weekly Note 98 and in the matter of Laxmi Raj Shetty and Another Vs. State of Tamil Nadu, and prayed for dismissal of this petition.

Having heard the counsel at length keeping in view their arguments advanced, I have carefully gone through the petition as well as papers annexed with it alongwith the impugned order, Annexure P-1.

It is undisputed fact in the matter that the petitioner herein being defeated candidate from the respondent in the election of Mayor of the Municipal Corporation, Katni has filed the impugned election petition. Obviously it appears that there is political rivalry between the parties. So while deciding the impugned application, Annexure P-4 such aspect should have also been taken into consideration by the trial court whether in such scenario either of the parties should be directed to visit the place of the other party for recording the evidence through Commission. But it is apparent from the impugned order that such aspect was not taken into consideration by the trial court while allowing such application.

It is undisputed fact that from the date of electing the Mayor of Katni the respondent no. 2 is discharging her duties not only by attending the various meetings of the Municipal Corporation and its different committees but also visited various places where at the instance of the Municipal Corporation the development activities are being carried out. In the available circumstances and from the cuttings of different newspapers, Annexure P-6 collectively, it is apparent that the respondent being Mayor is used to visit various political functions and in that connection she also goes on Dais to deliver speech and it is a matter of fact that to approach the Dais a person has to go by the staircase. In such premises when the respondent no. 1 is visiting the various places for her political activities and the activities of the Municipal Corporation, then it could not be said that she is not in a position to come and attend the court for recording her deposition.

Apart the above, it is apparent that her Angioplasty Surgery was carried out near about before two years in the year 2010 and subsequent to that she has been discharging her duties as a Mayor and also as a political leader and such Angioplasty Surgery is not coming in her way to discharge such duties. But on account of such decease, she wants that her deposition should be recorded on commission at her residence as prayed in the application, Annexure P-4. Such conflicting position was not considered by the trial court with proper approach while passing the impugned order. It is needless to state here that the various Officers and officials of public sector who are facing such type of physical problems are working on their posts regularly and discharging their duties in regular course in their Offices, out of which some Offices are situated at the first floor or the other floor and to reach the same they use the staircase.

So, in view of aforesaid discussions mere on averments stated in the application it could not be said that she is not in a position to record her deposition before the Court or in any case, subject to order of the Court through Commissioner on the ground floor of the court premises.

In view of the aforesaid discussion according to which, the respondent is visiting and working at various public places of town for the public cause and also discharging duties as Mayor of the Municipal Corporation by attending the meetings and inspecting the work carried out by the Corporation in regular course, then it could not be said that she is not in a position to come and attend the Court to record her deposition. On the contrary, it appears that persistently the respondent is avoiding to attend the court for recording her deposition.

So far the case laws cited on behalf of the respondent are concerned, this court does not have any dispute regarding principles laid down in such cases but same are not giving the benefit to the respondent. The case law of Smt. Annapurna Dubey (supra) was decided taking into consideration that the concerning woman being age of 80 years was the patient of Arthritis and it is matter of fact that the patient of Arthritis can not walk properly and in such circumstances, the Commission was directed. In the present case, the age of respondent is only 60 years and she is not suffering any such decease like Arthritis. Other cases were also decided taking into consideration the different facts and circumstances in which the concerned person were neither the elected person nor the political Leader and in such situation by invoking the discretionary jurisdiction of the court, the Commission was directed. Besides this, in such cases two different stories of facts were not involved but in the present case one side the respondent is doing and discharging the function of Mayor and political leadership and other side she does not want to come to the court for recording her deposition. Thus, the cited cases are not helping to the respondent.

In the available circumstances the impugned order being perverse and contrary to the available scenario of the matter is not sustainable, hence by allowing this petition, the impugned order Annexure P-1 is set aside and pursuant to it the application of the respondent no. 3 filed under Order 26 Rule 1 of the CPC, Ann. P-4 is hereby dismissed and pursuant to it, the trial court is directed to record the deposition of respondent in the court. Simultaneously in alternate the trial court is directed that on facing any problem by the respondent to come on the first floor of the Court premises for recording deposition, then on making the request on her behalf, then her deposition be recorded through Commissioner by making arrangement at the ground floor of the court premises. The petition is allowed with aforesaid observations.

C c as per rules.