The court emphasized that requests for summoning witnesses must be justified and not aimed at prolonging proceedings. Additionally, a party in the case cannot be called as the opposing party's witness.

JUDGMENT :

1. This writ petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs:

“It is, therefore, most humbly and respectfully prayed that the writ petition may kindly be allowed and by issuing an appropriate writ, order or direction:-

i. The impugned order dated 4.8.2023 (Annex.6) passed by learned Additional Chief Judicial Magistrate No.7, Jodhpur Metro in Election Petition No.252/2020 may kindly be quashed and set aside;

ii. The application filed by the humble petitioner under Section 151 CPC (Annex.4), so also the application under Order 16 Rule 1(2) r/w Section 151 CPC (Annex.5) may kindly be allowed and the humble petitioner may kindly be permitted to produce the voters as witnesses;

iii. The learned Tribunal may also be directed to summon the respondent No.4 Kanwar Lal as witness of the humble petitioner so as to prove the defence of the humble petitioner;

iv. Any other order or direction, which this Hon’ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of humble petitioner.”

2. Brief facts of the case, as placed before this Court by the learned counsel of the petitioner, are that the petitioner was elected as Sarpanch, Gram Panchayat, Gangani, District Jodhpur. Thereafter, the respondent no.1 filed an election petition before learned District & Sessions Judge, Jodhpur Metropolitan, against the petitioner. The learned Court below, after completion of the pleadings, framed certain issues, and posted the matter for evidence of the parties.

2.1. During the evidence of the petitioner, he has preferred an application under Section 151 CPC, stating therein that the voters whose names have been deleted from the ward no. 10 and shown in ward no.12, may be permitted to be examined. The petitioner filed another application under Order 16 Rule 1 (2) read with Section 151 CPC to summon the respondent No.4-Kanwar Lal S/o Ramniwas (Returning Officer) for examination in support of defence of the petitioner.

2.2. However, the learned Court below vide the common order dated 04.08.2023 impugned herein, rejected both the aforementioned applications preferred by the petitioner. Hence, the present petition has been preferred claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the learned Court below passed the impugned order on the application under 151 CPC on the ground that the respondent no.4 himself was party in the election petition, and therefore, though he can be permitted to appear as witness independently for his own examination, but not in the capacity of the petitioner’s witness, in support of his defence in the election petition filed by the respondent no.1. As per learned counsel, the said finding of the learned Court below is not justified in law.

3.1. Learned counsel further submitted that the learned Court below passed the impugned order, stating that the name of witness whose examination was sought by the petitioner, was not there on record, but despite the same, the petitioner wished to produce the witnesses. Learned counsel urged that the said finding is erroneous in the eye of law.

3.2. Learned counsel also submitted that in a situation, where the name of the witness was not included in list of witnesses, the Court concerned ought to allow the witness for examination, and therefore on that count also, the impugned order is not justified in law.

3.3. In support of such submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Vidhyadhar Vs Manikrao & Anr. (1999) 3 SCC 573; he further relied upon the judgment rendered by the Hon’ble High Court of Bombay in case of Dinesh Singh Bhim Singh Vs Vinod Shobhraj Gajaria & Anr. (Writ Petition No. 11185 of 2022, decided on 25.01.2023).

4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitione