The Election Petition is a civil trial, and the judge conducting an inquiry is empowered to issue witness summons as provided under Section 418 of the Act.

JUDGMENT :

UMESH A. TRIVEDI, J.

1. By way of this petition, though stated to be under Articles 226 and 227 of the Constitution of India, an order dated 16.03.2022 passed by the Chief Judge, Small Causes Court, Ahmedabad below Exh. 24 in Election Petition No. 5 of 2021, is challenged by the petitioner, who is elected as a Councillor, whereby the learned Judge ordered to issue witness summons to Palabhai Jivabhai Parmar as mentioned in paragraph no.3(a) of application Exh. 24.

2. The petitioner as also respondent no.3 herein, are candidates contesting election of Councilor from Ward no.6 Nava Vadaj of Ahmedabad Municipal Corporation, which was conducted on 21.02.2021. The result thereof came to be declared on 23.02.2021, wherein, the petitioner herein was declared elected as Councilor of Ward no.6, Nava Vadaj of AMC. Being aggrieved by the outcome of election, respondent no.3 herein filed Election Petition no.5 of 2021 before the Small Causes Court, Ahmedabad under Section 16 of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred as ‘the Act’). During pendency of the same, vide application Exh - 24, respondent no.3, as election petitioner before the Election Tribunal, applied for issuance of witness summons to one Palabhai Jivabhai Parmar, who claimed to be the father-in-law of the petitioner, as according to the case of election petitioner i.e. respondent no.3 herein, the petitioner has suppressed her marital status and filled the nomination form on oath, which is incorrect. To prove the marital status of the petitioner herein, a request was made to issue witness summons. The learned judge, after hearing both the parties before it, vide impugned order, allowed the application Exh. 24 and directed the witness summons to be issued to the person named in paragraph no.3(a) of the application Exh. 24. It is that very order, which is under challenge, before this Court, by the petitioner.

3. Mr. Rohan Lavkumar for Nanavati Associates, learned advocate for the petitioner vehemently submitted that for any Election Petition filed under Section 16 of ‘the Act’, summary inquiry is provided for, and therefore, it has to be conducted as inquiry based on pleadings and production of documents only.

3.1 It is further submitted that the inquiry as provided under Section 16 of ‘the Act’ is not a trial, and therefore, no witnesses can be examined even on the request made by any of the parties for the purpose of deciding the Election Petition by the learned Election Tribunal.

3.2 In support of his aforesaid submission, Mr. Rohan Lavkumar, learned advocate for the petitioner has relied on the decision of the Madras High Court reported in 2000 (III) CTC 160 in the case of Aurobindo Ashram Trust represented by Managing Trustee Mr. Harikant C Patel and another Vs. Kamal Dora, more particularly, paragraph nos.9 and 10 thereof. It is submitted that issuance of summons for examining witnesses is not automatic but the Court is supposed to examine the bona fides of the requests to issue witness summons. It is further submitted that, based on the very same decision, respondent no.3 herein is trying to irritate, harass the petitioner and malign her as it is her case that she has never married but it was incumbent upon the Court before issuing witness summons to ascertain bona fides of respondent no.3 herein.

3.3 Another decision in the case of Saifuneessa Vs Assain N.K and others of the Kerala High Court reported in 2019 SCC Online Ker 5904 is relied upon, more particularly, paragraph no.12 thereof. It is submitted that Election Petition is not an action at law or a suit in equity, and therefore, no witnesses can be examined. There cannot be resort to the provisions of the Code of Civil Procedure, 1908. Therefore, the order impugned passed by the learned Tribunal is illegal. Therefore, he has submitted that the impugned order passed by the learned Judge below Exh. 24, issuing witness summons, be quashed and set aside and the petition be all