Manindra Mohan Shrivastava, J.

By way of present writ petition under Article 226 of the Constitution of India, as originally filed, the petitioner sought to assail the correctness and validity of order dated 08-02-2016 passed by the Election Tribunal (Sub Divisional Officer (Revenue), by which, the petitioner's application for recalling order of ex parte proceedings against Presiding Officer and further prayer of summoning Returning Officer and Presiding Officer for evidence was rejected. By that time, final order was not passed and the proceedings remained pending. During the pendency of this writ petition, the Election Tribunal proceeded in the matter and passed final order on 15-02-2016 directing recount. This order was subsequently challenged by way of amendment.

2. Quintessential facts necessary for decision of the controversy involved in the petition are that the petitioner and the respondents No.4 to 9 contested election for the office of Sarpanch of Gram Panchayat Barpali. On 04-02-2015, voting had taken place and on that very day, votes were counted. As the petitioner and respondent No.4'smt. Urmila Patel secured equal votes, the procedure under Rule 83 applicable in the case of equality of votes was followed and as a result of toss, the petitioner was declared elected. Urmila Patel thereafter filed election petition seeking recount. The Election Tribunal, however, without framing any issue or recording evidence and without there being any trial, passed an order of recount, which was successfully challenged in writ petition filed by the petitioner i.e. WPC No.848 of 2015 which was allowed vide order dated 31-08-2015 on the consideration that without trial, recount was mechanically ordered. The case was remanded to the Tribunal to frame issues and allow the parties to lead evidence and thereafter, decide as to whether a case of recount is made out or not. After that, the parties led their evidence. At one point of time, during trial, the petitioner prayed for summoning as witness, the Returning Officer as well as Presiding Officer. That application was allowed by the Sub Divisional Officer/Election Tribunal, though with an observation that the Returning Officer and the Presiding Officer would be summoned for evidence after examination and cross-examination of the witness of the Election Petitioner and the Returned Candidate. The election petitioner-Urmila Patel examined herself, Keshav Lal, Kaushal Prasad as witnesses. The petitioner - Gauri Bai Patel examined Samay Lal Sidar as her sole witness. Thereafter, the Election Tribunal summoned the Presiding Officer for evidence. Though the Presiding Officer appeared on 13-01-2016, but an objection was made that the evidence of Presiding Officer be recorded along with the records only. On 22-01-2016, the application was rejected on the ground that the records relating to voting/counting are not available with the Presiding Officer. The election petition was fixed for recording evidence of Presiding Officer Shri Sant Ram on 29-01-2016. However, the Presiding Officer refused to take notice. He being a party respondent in the election petition, was proceeded ex parte and the case was directed to be listed for final arguments on 04-02-2016. On that date, the petitioner moved an application for summoning Returning Officer and Presiding Officer. That application was rejected by the first impugned order on 08-02-2016 which led to filing of the instant petition followed by challenge to the order of recount passed subsequently on 15-02-2016.

3. Learned counsel for the petitioner vehemently argued that the Election Tribunal has committed serious jurisdictional illegality as well as irregularity in not examining the Returning Officer and the Presiding Officer, though earlier, prayer of the petitioner was accepted and the Tribunal had passed an order for examination of the two witnesses, after the witness of the parties are examined and cross-examined. The Tribunal was under a duty