Leela vs Geeta

This intra court appeal is directed against interim order dated 14.8.18 passed by the learned Single Judge of this court whereby while allowing the stay petition preferred on behalf of the respondent-writ petitioner, the effect and operation of impugned judgment dated 9.7.18 passed by the Election Tribunal in Election Petition No.43/15 declaring the election of the respondent as Sarpanch, Gram Panchayat, Nokha, Chandawata illegal and void, has been stayed.

Learned counsel appearing for the appellant contended that the learned Single Judge without appreciating the evidence on record in correct perspective has erred in holding that the appellant has failed to prove that the document regarding academic qualification produced by the respondent at the time of filing of the nomination was not genuine. It is submitted that the learned Single Judge has applied the principle of strict proof applicable to criminal case whereas, in civil matters the issues are required to be decided on the basis of preponderance of probabilities. Learned counsel submitted that the learned Single Judge has seriously erred in recording the finding on various issues involved in the matter, while deciding the stay petition inasmuch as, the same is bound to prejudice the case of the appellant at the time of final adjudication of the matter.

On the other hand, the counsel appearing for the respondent submitted that even if the respondent has not appeared as witness and produced the evidence in support of her case, the appellant was under an obligation to prove her case, which she has failed to prove inasmuch as, no evidence was led to prove that the documents produced by the respondent in support of her academic qualification are fake. Learned counsel submitted that the learned Single Judge has only recorded the findings regarding the prima facie case in favour of the respondent and thus, the apprehension of the appellant that on account of the findings recorded by the learned Single Judge while deciding the stay petition, shall prejudice her case at the time of final adjudication is baseless.

We have considered the submissions of the learned counsel for the parties and perused the material on record.

A perusal of the order impugned reveals that after examination of the evidence on record and consideration of the rival submissions the learned Single Judge prima facie arrived at the finding that the appellant has not been able to prove her case set out in the election petition by cogent evidence on record and the documents produced on record were not proved in the manner required to be proved under the law and accordingly, while allowing the stay petition, the interim relief as prayed for by the respondent has been granted. In our considered opinion, the learned Single Judge having arrived at finding that the respondent has strong prima facie case in her favour, the discretion exercised in granting interim relief, lest an elected representative may not be ousted from the office pending disposal of the petition, appears to be just and proper and does not warrant any interference by us in exercise of intra-court appeal jurisdiction.

Regarding the findings recorded suffice it to say that while granting the interim relief the Court is required to see only prima facie case and not to record finding on main controversy involved and thus, any finding recorded while considering the prima facie case shall not prejudice the case of the petitioner. Obviously, the various issues involved in the petition shall be decided by the learned Single Judge after due consideration of rival submissions and material on record uninfluenced by the findings recorded regarding prima facie case, while deciding the stay petition. Thus, the apprehension of the petitioner is not well founded.

At this stage, learned counsel submitted that looking to the controversy involved, the writ petition preferred deserves to be decided expeditiously. It is always open for the petitioner to make a request in this regard before the learned Single Judge.

Accordingly, the special appeal is dismissed with the observations as above.