The appellate court has the jurisdiction to decide the appeal and remand the case for additional evidence, but it must adhere to the procedures strictly in accordance with the Act.

JUDGMENT :

M.M. Das, J. - The Petitioner was elected as Member of the Panchayat Samiti from Deul Padar Grama Panchayat under Tarbha Panchayat Samiti. His election as Member of the Panchayat Samiti was challenged by the opp. party before the learned Civil Judge, (Sr. Division), Sonepur in Election Dispute Case No. 7 of 2007. The learned Civil Judge by judgment dated 22.5.2008 dismissed the election petition on contest against the opp. party. Against the said order of dismissal, the opp. party preferred F.A.O. No. 18/22 of 2008, which has been decided by the learned Additional District Judge, Sonepur by judgment dated 4.5.2010 which is impugned in the present writ petition by the Petitioner.

2. The learned Additional District Judge in the impugned judgment remanded the election dispute to the court of the learned Civil Judge (Sr. Division), Sonepur by passing the following order:

The suit is remanded to the learned lower court as per Rule - 28, Order - 41 of CPC with a direction that such Court shall take necessary steps at the expenses of the Petitioner-Appellant to produce the attendance of the concerned B.D.O.-cum-Election Officer, Tarbha for adduction of his evidence which would be confined to specific points as indicated in para-13 of this order and that the adduction of such evidence includes both oral and documentary as would be deemed appropriate to the learned lower court. The Petitioner - Appellant is directed to appear before the learned lower court on 15.5.2010 positively and to take steps accordingly for adduction of the evidence of the concerned B.D.O.-cum-Election Officer, Tarbha limited to the points referred above including production of documentary evidence as necessary. The O.P. is directed to participate in such hearing and to cross-examine, if necessary to such witness. All the expenses in this regard in procuring the attendance of the B.D.O.-cum-Election Officer and for other steps ancillary thereto shall be borne by the PetitionerAppellant. The learned lower court is further directed to complete all the above ancillary proceedings and to send the record to this Court by 15.7.10 positively.

3. Substantially, Dr. A.K. Rath, learned Counsel for the Petitioner has raised two issues in the writ petition, namely, (i) the learned Additional District Judge had no jurisdiction to decide the appeal u/s 44-Q of the Orissa Panchayat Samiti Act, 1959 (hereinafter referred to as 'the Act'), and (ii) in an election dispute under the Act, the appellate court has no power to direct addition of party as well as to remand the case to the learned Civil Judge (Sr. Division), for fresh adjudication.

4. With regard to the first question raised, Dr. Rath submits that Section 44-Q of the Act provides that any person aggrieved by an order passed by the learned Civil Judge (Sr. Division, under Sub-section (1) or Sub-section (2) of Section 44-J of the Act can prefer an appeal before the learned District Judge having jurisdiction and, therefore, the learned District Judge acts as persona designata and not as the District Judge, as defined in the Orissa Civil Courts Act. Hence, the learned Additional Distinct Judge could not have exercised the appellate power and decide the appeal.

5. Mr. J.R. Dash, learned Counsel for the opp. party, on the other hand, contends that a bare reading of Section 44-Q of the Act would amply show that the appeal is to be preferred before the learned District Judge having jurisdiction meaning thereby the Distinct Judge should have jurisdiction over the area in which the Grama Panchayat is situated and the learned Civil Judge (Sr. Division), who tried the election dispute should be under his jurisdiction. He further submits that the appeal, in fact, was filed before the learned District Judge, Bolangir and was subsequently transferred to the learned Additional District Judge, Sonepur and unlike others Acts specifically mentioning that the court trying an election disputes acts as persona designata, the Panchayat Sa