Ikkeri Mohaddin Shazeer vs The State of Karnataka and Others

Aravind Kumar, J.—Election Petitioner in E.P. No. 1/2013 being aggrieved by order passed by the Civil Judge, (Jr. Dn.) and JMFC, Bhatkal, in dismissing IA-VIII filed for appointment of Court Commissioner and IA-IX filed under Order V Rule 3 r/w 151 of the CPC to summon the PDO, Jali Grama Panchayat, Jali, Bhatkal, and Chief Officer, Town Municipal Council, Bhatkal, to lead evidence having been rejected, has filed the present writ petitions.

I have heard arguments of Sri Gurubasavaraj, learned counsel appearing for the petitioner. Perused the case papers.

Petitioner herein had filed a similar application for appointment of Court Commissioner whereunder he had sought for appointment of an advocate as Court Commissioner for the purposes of ascertaining as to whether House No. 478 belongs to R-1 (returned candidate) and whether said house situated at Azadnagar is in the ownership of 1st respondent and along with it, petitioner had sought for direction to Court Commissioner to state measurement of said property and its number. Said application having been filed even prior to recording of evidence, came to be dismissed as premature by order dated 10.09.2013 passed in W.P. No. 82041/2013. Thereafter, parties have tendered their evidence and as such, Election Petitioner has revived his prayer for appointment of Commissioner by filing I.A. No. 8. In the normal course, this Court would refrain from exercising its supervisory jurisdiction when an order has been passed by the trial Court either appointing the Court Commissioner or rejecting the said prayer, until and unless, it is established that such order of appointment was not called for, being established by cogent material evidence available on record.

In the instant case, petitioner who has filed Election Petition challenging the election of 1st respondent on the ground that returned candidate is not an ordinary resident of the Town Municipal Council, Bhatkal, is attempting to improvise his case, stage by stage and step by step and in this direction, he has sought for appointment of Court Commissioner to find out as to whether 1st respondent is actually owning the said property namely property bearing No. 478 which property number has been indicated in the nomination form and whether the 1st respondent is residing in the said address. As rightly pointed by the trial Court, petitioner can as well apply for certified copies of those documents in respect of said property and produce the same to prove the issue cast in this regard. Having not taken such recourse, petitioner is attempting to fish out evidence through appointment of Court Commissioner. As such, trial Court has rightly rejected said application and it does not suffer from any infirmity calling for interference.

Second application which was filed under Order V Rule 3 of the CPC itself was not maintainable, inasmuch as, very reading of the provision would clearly indicate that in the event of court coming to a conclusion that the presence of plaintiff or defendant is necessary, it can issue summons to said plaintiff or defendant whom it feels is necessary for adjudicating the dispute and under the said guise, Election Petitioner cannot seek summoning of a witness. However, trial Court instead of rejecting the said application as not maintainable, has proceeded to delve upon the merits also and has found that summoning of said witnesses is not necessary since burden has been cast on the petitioner to prove as to whether 1st respondent is an ordinary resident of No. 478, Bhatkal, or not and said burden has to be discharged by petitioner by tendering evidence. In that view of the matter, I do not find any infirmity in the order passed by trial Court. Hence, petitions are hereby rejected.

Learned Additional Government Advocate is permitted to file memo of appearance within four weeks.