Birendra Mandal vs Irfan Ansari

I.A. No. 5851 of 2019

I.A. No. 5851 of 2019 filed under Section 151 of the C.P.C. on behalf of the sole respondent on 28.06.2019 was pressed on 08.07.2019 stating therein that this Court may allow one more witness namely, Sri Jiweshwar Mishra, who was the Election Agent of the sole Respondent in the 2014 Assembly Election, to be examined.

In para-3 of the I.A. it has been submitted that earlier in I.A. No. 6721/2018, the sole respondent had filed a tentative list of witnesses to be examined on his behalf whereby, altogether seven witnesses supposed to be examined and out of which, six witnesses have been examined and in the I.A., it has also been stated that the list of witnesses as given in Annexure-A to the I.A. is a tentative list and the respondent seeks leave of this Hon'ble Court to submit additional or further list of witnesses if any, as and when required.

It is further stated that so in view of the aforesaid leave taken by this respondent, the respondent herein prays for allowing one more witness on his behalf i.e. namely, Shri Jiweshwar Mishra, Son of Late Parmeshwar Mishra, Resident of Ward No. 13, Dumka Road, Dhandhra, District - Jamtara be allowed to be examined. It is submitted that Jiweshwar Mishra is the Election Agent of the sole respondent, but his name could not be given in the list of witnesses filed by the sole respondent earlier as he was severely ill at that point of time and therefore, he was not in a position to take long journey and stress, photocopy of prescriptions given by doctor is marked. Now, he is well and he is in a position to appear before this Hon'ble Court and to depose in the Court. So, I.A. may be allowed and respondent may be allowed to examine Jiweshwar Mishra as witness.

Reply to the I.A. No. 5851 of 2019 has been filed on behalf of the petitioner stating that the case is ready for final adjudication, as both the parties have examined their witnesses and evidence has been closed and also medical prescription of Jiweshwar Mishra shows that he is aged about 56 years and no serious ailment was shown and the reason best known to respondent no. 1, he was not examined earlier. So, the I.A. is fit to be dismissed.

After hearing the parties and after going through the record, it appears that I.A. No. 2439/2016 was filed on behalf of the sole respondent for recalling the order dated 08.04.2016 passed by this Court in this Election Petition, whereby the sole respondent was debarred from filing written statement in the case and under order dated 19.05.2016, I.A. No. 2439/2016 was allowed and the order dated 08.04.2016 passed in this Election Petition, so far it relates to debarring the sole respondent from filing his written statement in the case, was recalled and the written statement filed by the sole respondent was accepted.

Record also reveals that on 04.02.2017, vide order no. 26, 10 issues were framed and the case was fixed for filing of list of witnesses by election petitioner on 10.02.2017. The matter was listed on 10.03.2017 and I.A. No. 1758/2017 has been filed on behalf of the election petitioner which contains the list of official witnesses as well as the unofficial witnesses. Dasti summons was issued and Akhilesh Kumar Sinha, Returning Officer for his examination on 07.04.2017.

On 07.04.2017, I.A. No. 2460/2017 was filed on behalf of the sole respondent making preliminary objection that this election petition is fit to be dismissed under Order VII Rule 11 of the C.P.C., as no cause of action is mentioned in the election petition. Thereafter, the matter was heard on 28.04.2017 and it was reserved and pronounced on 05.05.2017 and I.A. was dismissed.

Thereafter on 21.07.2017, counsel for the respondent submitted that he has filed an SLP before the Hon'ble Supreme Court being SLP (C) No. 18298 of 2017 against the order dated 05.05.2017 passed in I.A. No. 2460/2017. On 21.09.2017, letter has been received from the Hon'ble Supreme Court informing that S.L.P. bearing No. 18298 of 2017 was dismissed.

It further appeared that the petitioner's witnesses have been examined and it was closed on 12.07.2018. Thereafter, respondent no. 1 has filed I.A. No. 6722 of 2018 which was allowed on 09.08.2018 and respondent no. 1 was directed to examine his witnesses and till 20.06.2019, respondent has examined six witnesses. The matter was listed on 01.07.2019, on which date, the instant I.A. has been filed.

This Court has taken judicial notice of the fact that the life of present Jharkhand Legislative Assembly completes in the month of December, 2019 and the election is due in the month of December, 2019 and the instant I.A. has been filed just to protract the trial of the election suit and the respondent was given ample opportunity to examine his witnesses, but he has failed to do so and has filed the instant I.A. to protract the trial of the election petition.

I find no merit in I.A. No. 5851/2019, accordingly, the same is rejected.

List this case on 18.07.2019 at 2:15 p.m.

Office is directed to give detail note about the number of I.A. filed on behalf of the parties, whether I.A. still pending or disposed of, so that further direction will be issued.