IMPORTANT POINT
The Election Tribunal has discretion in applying procedural laws and can appoint a commissioner for recording evidence, which is not contrary to established rules.

ORDER :

1. The present writ petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India seeking following reliefs:

“It is therefore, humbly prayed, that this Hon’ble Court may kindly be pleased to allow the writ petition:

(i) by an appropriate writ, order or direction, impugned order dated 17.9.2024 (Annex.3) passed in the Civil Misc. Case (Election Petition) No. 3/2022 (Looni Devi vs. Anju) in the Court of Senior Civil Judge No. 7, Jodhpur Metropolitan may kindly be quashed and set aside and the application (Annex.1) may kindly be rejected.

(ii) any other appropriate writ, order or direction which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner.”

2. Succinctly stated facts of the present case are that the election of the petitioner pursuant to the election held on 10.10.2020, was challenged by the respondent-Looni Devi by way of an election petition filed before the District Judge, Jodhpur Metropolitan, mainly on the ground that the petitioner is a mother of three children and thus was ineligible to contest the elections as per Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as ‘Act of 1994’). The said election petition was transferred to the Court of Senior Civil Judge No. 7 Jodhpur Metropolitan (hereinafter referred to as ‘Election Tribunal’) for trial. During the pendency of trial, the respondent moved an application dated 23.07.2024 under Order XXVI Rule 1 read with Section 151 of CPC, stating inter alia that the respondent wishes to get her evidence recorded through a Commissioner appointed by the Election Tribunal at her home on account of her illness. The grievance of the petitioner is that the learned Election Tribunal, after framing of the issues, has now while allowing the application dated 23.07.2024, directed vide impugned order dated 17.09.2024 (Annex.3), to get the statements of the respondent recorded at her home through commissioner appointed in this behalf and not before the learned Election Tribunal.

3. Learned counsel for the petitioner vehemently contended that the learned Election Tribunal has committed grave errors of facts as well as law in allowing the application dated 23.07.2024 filed by the respondent under Order XXVI Rule 1 read with Section 151 of CPC. Learned counsel submitted that impugned action of the Learned Tribunal in allowing the statements of the respondent to be recorded at her home is in complete disregard to the Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as ‘the Rules of 1994’). Learned counsel further submitted that affidavit of the respondent for recording her evidence was filed way back in 2021, however, despite getting ample opportunities to remain present before the Election Tribunal for getting her statements recorded, the respondent failed to appear and now by way of filing an application under Order XXVI Rule 1 read with Section 151 of CPC, she simply intends to delay the trial. Learned counsel further submitted that no documents certifying her medical illness have been tendered before the Learned Election Tribunal in support of her application filed under Order XXVI Rule 1 read with Section 151 of CPC and thus the learned Election Tribunal ought to have rejected the same on this ground only.

4. Drawing attention of the Court towards Rule 85 of the Rules of 1994, learned counsel submitted that a perusal of Rule 85 would make it amply clear that only a persona designata, (that is the Election Tribunal in the present case) could record the evidence in the matter and thus no one other than the Presiding Officer of the learned Election Tribunal can get the statements of the respondent recorded in the present case. Learned counsel submitted that recording of the statements of the witness Smt-Looni Devi by a Court Commissioner would not amount to recording of evidence in memorandum which