Smt. Gouripriya Paraja vs Domai Naik and Another

M.M. Das, J.—Heard Mr. J. Patnaik, learned senior counsel for the Petitioner and Mr. Mishra, learned Counsel for the opp. party No. 1.

This writ petition has been directed against the order/judgment dated 18.9.2007 passed in Election Appeal No. 1 of 2007 by the learned District Judge, Koraput. The writ Petitioner was the defeated candidate in the election to the office of Member, Jaipur Panchayat Samiti from the Scheduled Tribe (W) Reserved Constituency of Pujariput Grama Panchayat. The opp. party No. 1 was the returned candidate. The writ Petitioner filed Election Petition No. 18 of 2007 challenging the election of the opp. party No. 1 on the grounds that (i) she was not eligible to contest the election as she is not able to read and write Oriya, (ii) she does not belong to Scheduled Tribe and, (iii) she filed a false affidavit before the Election Officer where, she suppressed the name of her husband. The Election Tribunal after hearing the election petition, by judgment dated 26.7.2007 declared the election of the opp. party No. 1 to the office of Member of Panchayat Samiti as null and void directing her to step down from the said office and further directed that the Collector-cum-Election Officer - opp. party No. 2 shall hold fresh election for that office within three months, if no stay order is obtained in the meanwhile. The opp. party No. 1 being aggrieved by the said order, preferred Election Appeal No. 1 of 2007, the judgment of which, is impugned in this writ petition.

The appellate Court after hearing the appeal, by the impugned judgment allowed the same setting aside the judgment of the Election Tribunal and thereby confirmed the legality of the election of the opp. party No. 1.

Mr. Patnaik, learned Counsel for the Petitioner vehemently urges that the entire judgment passed by the appellate Court is based on surmises and conjecture and the appellate Court has not met the reasons assigned by the Election Tribunal for declaring the election void.

It appears that the Appellant Court in the impugned judgment has considered all the three grounds, which were raised by the election Petitioner, but has held that the election Petitioner did not discharge the burden of proof u/s 101 of the Evidence Act by establishing that the opp. party No. 1 herein (the successful candidate) was not able to read and write Oriya. As a matter of fact, during hearing of the election petition, the opp. party No. 1 did not choose to enter into the witness box and deny the allegations made by the election Petitioner. No doubt, the Election Tribunal marked the documents under Exts. A to D, which contained the signatures of the opp. party No. 1 and the same were not disputed by the election Petitioner. The appellate Court further taking into consideration the affidavit filed by the opp. party No. 1 as well as the vakalatnama filed on her behalf has come to a conclusion that since the Petitioner did not discharge the burden of proof by showing prima facie that the opp. party No. 1 was unable to read and write Oriya, a presumption can be drawn from the above documents that she was able to read and write Oriya.

Mr. Mishra, learned Counsel appearing for the opp. party No. 1 strenuously urges that the appellate Court by taking into consideration the provisions of the Evidence Act and the documents exhibited by the Election Tribunal has rightly come to the conclusion that the opp. party No. 1 knew how to read and write Oriya.

On perusal of the impugned judgment, it appears that the appellate Court had observed that the Petitioner resides amongst Oriya speaking people all around and, therefore, she is presumably able to converse in Oriya and understand the language and came to the conclusion that she knew how to read and write in Oriya. Similarly, the reasons given by the Election Tribunal with regard to the caste of the opp. party No. 1 that she belongs to Scheduled Tribe has also not been discussed by the appellate Court in its proper perspective.

Mr. Mishra, learned Counsel further submits that during the course of hearing of the election petition, a petition was filed by the opp. party No. 1 seeking an adjournment to appear before the said Court for being examined. The said prayer was rejected and the case was preceded with thereby denying an opportunity to the opp. party No. 1 to rebut the evidence adduced by the Petitioner and substantiate the fact that the allegations made against her are untenable.

On perusing the impugned judgment of the appellate Court, it appears that the appellate Court has misdirected himself in holding that the burden of proof was on the election Petitioner to prove that the opp. party No. 1 was unable to read and write Oriya.

The question in this case, therefore, arises as to on which party the burden of proof would rest to prove the allegation that the opp. party No. 1 was unable to read and write Oriya. It is, therefore, to be examined as to whether, in the facts and circumstances of the case, the burden of proof of the above fact shifts from one party to the other. In McKelvey''s Evidence, the author states that the burden of proof is fixed upon the party, who has the duty of first going forward with the case. If he fails to introduce any evidence at all or if he fails to introduce sufficient evidence to justify a submission of the case to the Court, without any evidence being introduced by the other party, the verdict must go against him. However, if he introduces enough evidence to justify a submission of the case to the Court, the case may still be, as it were, hanging in the balance. The Court may or may not find from the evidence introduced that he has proved his case. If, however, he has introduced sufficient evidence to make out what is known as a prima facie case, then, in the absence of evidence to controvert such case, the Court may go in his favour. At this juncture, the Court enters into a decision, where a different sort of burden of proof which is not really a burden of proof at all, but only uses the said term, comes into play. When the party pleading a fact has introduced enough evidence to make out a prima facie case, the adversary is required to controvert or weaken the effect of that evidence already introduced. It is here, the burden shifts to the adversary to introduce rebuttal evidence for controverting the prima facie material introduced by the party pleading the fact, which can be nomenclatured as "shifting of the burden".

It is always possible to make an allegation in a negative form, so that the Defendant must answer it affirmatively, viz. where the Defendant said, "he had done the work properly", the Plaintiff having alleged apparently that it was "not done properly", it is here, the burden lies on the Defendant to prove the affirmative statement. The question, therefore, is one of fact, as to who substantially alleges the "affirmative in substance"? In Stephen''s Evidence Article 76, it has been stated that in considering the amount of evidence necessary to shift the burden of proof, the Court should have regard to the opportunity of knowledge with respect to the fact required to be proved, which may be possessed by the parties respectively.

In the facts of the present case, the election Petitioner pleaded that the opp. party No. 1 (returned candidate) did not know how to read and write Oriya. This negative allegation was affirmatively pleaded by the opp. party No. 1 by denying the same and stating that she knew how to read and write Oriya. It was, therefore, incumbent upon the Court below to examine on preponderance as to whether the negative assertion made by the Petitioner was prima facie shown to be existing, thereby shifting the burden of proof to the opp. party No. 1. The nature of negative allegation made by the Petitioner being denied by the opp. party No. 1, who further asserted in the affirmative that she knew how to read and write Oriya, it was within the exclusive domain of the opp. party No. 1 to substantiate by controverting the negative allegation made by the Petitioner and introducing evidence to the effect that she knew how to read and write Oriya and this burden of proof therefore clearly rested on her.

In view of the above, the learned appellate Court has clearly misconceived the facts of the case in coming to the conclusion that the burden of proof was on the Petitioner to conclusively prove the allegations made by her u/s 101 of the Evidence Act.

However, since the opp. party No. 1 could not adduce any evidence in support of her positive assertion that she knew how to read and write Oriya and as her prayer for adjournment was rejected by the learned Election Tribunal, this Court finds that this is a fit case, where the impugned order passed by the learned District Judge in Election Appeal No. 1 of 2007 should be set aside and the matter should be remitted back to the Election Tribunal for fresh adjudication by giving opp. party No. 1 an opportunity to examine herself before the Election Tribunal. The same is accordingly set aside as well as the judgment of the Election Tribunal under Annexure-1 passed in the Election Petition No. 18 of 2007 is also quashed and the matter is remitted back to the Election Tribunal, i.e., the learned Civil Judge (Sr. Division), Jeypore for affording an opportunity to the opp. party No. 1 to examine herself as a witness. The opp. party No. 1 shall also be granted opportunity to examine any other witnesses to negative/rebut the evidence adduced against her and prove her case. The learned Election Tribunal, however, shall consider all the three grounds raised by the election Petitioner and shall dispose of the case afresh by taking into consideration the materials and evidence already on record and the materials and evidence to be brought on record by the opp. party No. 1. The writ Petitioner as well as the opp. party No. 1 are directed to appear before the learned Civil Judge (Sr. Division), Jeypore on 25.9.2008 and produce the certified copy of this order and upon receiving the same, the learned Civil Judge shall fix a date for hearing and proceed with the case in accordance with the direction given above and shall dispose of the same by the end of November, 2008 keeping the observations made above in view. It is needless to mention that on the opp. party No. 1 examining herself and other witnesses, if any, the Petitioner will be at liberty to cross-examine them.

The writ petition is accordingly allowed.

Urgent certified copy of this order be granted as per rules.