The central legal point established in the judgment is the competence of the Appellate Court to consider existing evidence and the relevance of additional evidence in appellate court proceedings.

JUDGMENT :

M.M. Das, J. - The Petitioner is the returned candidate as Sarpanch of Anyashipur Grama Panchayat. The Sarpanch of the Constituency is the reserved Constituency for OBC/SEBC lady candidate. The Opp. Party No. 1 instituted an election dispute before the Learned Civil Judge (Junior Division), Jajpur being Election Petition No. 5 of 2007 u/s 31 of the Orissa Grama Panchayat Act, 1964 (for short, 'the Act').The Opp. Party No. 1 in the election petition alleged that as per notification of the State Government, the said post of Sarpanch is reserved for OBC/SEBC lady candidate and the present Petitioner is the daughter of one Amulya Singh, whose caste is "Kayasta" and after her marriage with one Biswajit Baral, who belongs to SEBC, she cannot take the benefit of her marriage to claim that she also belongs to OBC/SEBC. The Petitioner has filed her objection/written statement to the election petition stating, inter alia, that the Record of Rights standing in the name of her father does not show that her father belongs to "Kayasta" caste and, rather, in the Sabik settlement of 1910, the paternal family of the Petitioner has been recorded and known as "Sagarpesa" as sub-caste and she filed her nomination on the basis of the caste of her father. After her marriage in Baral family under the same Grama Panchayat, the Voters list has been corrected describing her as "Bebirani Baral". As such, she was not disqualified from filing the nomination. The Learned Election Tribunal returned all the findings in favour of the Petitioner and by Judgment dated 18.10.2007 dismissed the election petition. The Opp. Party No. 1 being aggrieved by the said Judgment of the Learned Election Tribunal, preferred Election Appeal No. 10 of 2007 before the Learned District Judge, Cuttack u/s 38(4) of the Act. During pendency of the appeal, the Petitioner filed an application under Order 41, Rule 27 C.P.C. read with order 16, Rule 14 C.P.C. to summon the Tahasildar, Bari for his examination as a witness requiring him to produce the relevant documents relating to the caste under dispute in the election petition. The Learned District Judge, by his Order Dated 19.5.2008 rejected the said petition as not maintainable. Being aggrieved by the order of rejection of the said application, the Petitioner has preferred the present Writ Petition seeking quashing of the said order and for directing the Learned District Judge to summon the Tahasildar as prayed for by the Petitioner.

2. Mr. Mishra, Learned Counsel for the Petitioner submitted that the specific plea of the Opp. Party No. 1 before the Learned Election Tribunal in the election petition was that the Petitioner belongs to "Kayasta" by sub-caste which does not come within the purview of OBC/SEBC and the Opp. Party No. 1 have never pleaded that the sub-caste "Sagarpasa" and the sub-caste "Sagarpesa" are two different sub-caste. It is an admitted case that the sub-caste "Sagarpasa" is included in the OBC/SEBC list. It is the further case of the Petitioner that the caste certificate of the brother of the Petitioner shows that he belongs to sub-caste "Sagarpasa" which is written in English whereas in the R.O.R the caste was indicated as "Sagarpesa" in Oriya. Mr. Mishra vehemently argued that the specific case of the Opp. Party No. 1 being that the Petitioner belongs to sub-caste "Kayasta", it is not open for the Opp. Party No. 1 to take a different plea before the Appellate Court by contending that the sub-caste "Sagarpasa" and "Sagarpesa" are two different sub-caste.

3. Mr. P. Kar, Learned Counsel for the Opp. Party No. 1 strongly objected to the contentions made by Mr. Mishra and submitted that the Petitioner no where in her written statement pleaded that "Sagarpasa" and "Sagarpesa" are synonymous.

4. The Learned Election Tribunal framed issue. No. 3 as to whether the Opp. Party No. 1 in the Election petition (Writ Petitioner) belongs to OBC/SEBC and while answering the said issue wrongly held that "Sagarpesa" sub-