SANDEEP MEHTA - (1.) Heard learned counsel for the petitioner. Perused the material available on record.
(2.) By way of this writ petition under Article 227 of the Constitution of India, the petitioner Kesar, being the elected Sarpach and defendant in the court below, has approached this Court for assailing the order dated 22.11.2018 whereby, the Election Tribunal rejected the application filed by the petitioner under Order 16 Rule 3 CPC and turned down the prayer made by her to summon the Secretary of the Education Board concerned for testing the veracity of the Certificate (Ex.A/2). The contention of Shri Kothari was that unless and until, the scribe of the document is examined in evidence, the Court cannot admit the same as substantive piece of evidence. In support of this submission, Shri Kothari placed reliance on the Judgment rendered by the High Court of Bombay in the case of Om Prakash Berlia & Ors. vs. Unit Trust of India & Ors ., reported in AIR 1983 Bombay 1.
(3.) Needless to say that the burden of proving a document on the anvil of admissibility with reference to the provisions of the Indian Evidence Act is on the party who relies upon the same. The document (Ex.A/2) was exhibited by the plaintiff. Mere marking of exhibit on the document would not mean that its admissibility as substantive piece of evidence has been decided by the Court without any scope for rebuttal. The petitioner would have the opportunity to assert before the court at the stage of final arguments that the document cannot be read in evidence in absence of the concerned witness being summoned to prove the same. As and when such argument is advanced, the trial court shall be under an obligation of law to decide the same objectively and by assigning proper reasons. The observation made by the learned trial court in the impugned order that there is no requirement of summoning the Secretary of the Education Board concerned would not in any manner prejudice the right of the petitioner to question the admissibility of the document at the stage of final arguments.;