Rajasthan High Court - Jaipur
Smt. Tara Devi vs Smt. Sudesh Chaudhary on 12 August, 1997
Equivalent citations: AIR1998RAJ59, 1998(1)WLC186, 1997(2)WLN324
JUDGMENT Amaresh Ku. Singh, J.
1. Heard the learned counsel for the appellant and the learned counsel for the respondent.
2. This appeal is directed against the judgment dated 27th Jan., 1997 passed by the learned single Judge in S. B. Civil Writ Petition No. 4585/1997 Smt. Sudesh Chaudhary v. Civil Judge and another, whereby the writ petition filed by the respondent No. 1 Smt. Sudesh Chaudhary was allowed and the judgment dated 3rd October, 1996 passed by the learned Civil Judge (Sr. Division), Rai Singh Nagar was set aside and the election of the respondent No. 1 was held to be valid, to the office of Sarpanch, Gram Panchayat, 4 BLD. District Shri Ganganagar.
3. The facts relevant for the disposal of this appeal may be summarised as below.
4. The respondent No. 1 (petitioner) Smt. Sudesh Chaudhary contested the election of the Sarpanch, Gram Panchayat. 4 B.L.D. district Shri Ganganagar. In the election there were four candidates, namely Smt. Sudesh Kumari (respondent No. 1), Smt. Tara Devi (appellant) Gurmail and Vinod Kumar. Smt. Sudesh Kumari secured highest number of votes and she was declared elected as the Sarpanch of the Gram Panchayat and a certificate to that effect was issued on 1st Feb., 1995. The appellant Smt. Tara Devi filed an election petition before the learned Civil Judge (Sr. Division), Rai Singh Nagar, on 14th Feb., 1995, under Section 43 of the Act of 1994 read with Rule 80 of the Rules of 1994. In that election petition, the appellant Smt. Tara Devi challenged the election of the respondent No. 1, Smt. Sudesh Kumari on the ground that Sml. Sudesh Kumari was below 21 years of age on the date she was declared elected as Sarpanch of the Gram Panchayat 4 B.L.D., Shri Ganganagar. The election petition was contested by the respondent No. 1.
5. The learned Civil Judge (Sr. Division), who heard the election petition framed as many as 10 issues. Both the parlies were given opportunity to produce their evidence. After holding trial, the learned Civil Judge (Sr. Division) held that it was proved that Smt. Sudesh Kumari was below 21 years of age on the date of her election as Sarpanch. Consequently the election petition was allowed and the election of Smt. Sudesh Kumari was declared void. In her election petition Tara Devi had raised some other grounds also. In this appeal we are not concerned with the findings of the learned Civil Judge (Sr. Dn.) on those grounds.
6. Feeling aggrieved by the judgment of the learned Civil Judge (Sr. Dn.), Rai Singh Nagar, Smt. Sudesh Kumari, respondent No. 1, filed the S. B. Civil Writ Petition No. 4585 of 1996, Smt. Sudesh Chaudhary v. Civil Judge and another. In her writ petition, Smt. Sudesh Chaudhary challenged the judgment and decree passed by the learned Civil Judge (Sr. Division), Rai Singh Nagar, on the grounds that the election petition was not maintainable in view of the preliminary objections raised by her; that the burden of proof was wrongly placed on the respondent No. (sic) petitioner and the finding that the petitioner-respondent No. 1 was below 21 years of age on the date other election was erroneous and without sufficient evidence. The petitioner-respondent No. 1, therefore, prayed that the judgment and decree passed by the learned Civil Judge (Sr. Division), Rai Singh Nagar, declaring the petitioner's election as Sarpanch, be quashed and set aside.
7. The learned single Judge, after hearing the argument of both the parties and taking into consideration the facts and circumstances of the case, allowed the writ petition, set aside the judgment and decree dated 3rd October, 1996 passed by the learned Civil Judge (Sr. Division), Raisingh Nagar and declared the election of the petitioner-respondent No. 1 to be valid to the office of Sarpanch of the Gram Panchayat, 4 B.L.D. Hence this appeal.
8. The learned counsel for the appellant has submitted that the judgment and decree passed by the learned Civil Judge (Sr. Division), Raisingh Nagar, could not be interfered with by the learned single Judge, under Article 226 or 227 of the Constitution because the scope of jurisdiction conferred by Articles 226 and 227 of the Constitution is very limited and the judgment and decree passed by the learned Civil Judge (Sr. Division) did not suffer from any such illegality or infirmity as could justify interference under Article 226 or 227 of the Constitution. It is further submitted by the learned counsel for the appellant that the findings of the learned Civil Judge (Sr. Division) were based on evidence which was relevant and admissible and the learned Civil Judge has not committed any error in giving the findings that the respondent No. 1 was below 21 years of age on the date of her election. In the alternative, the learned counsel for the appellant has submitted that even if there be any error in appreciating the evidence, committed by the learned Civil Judge (Sr. Division), Raising Nagar, the error cannot be correct under Article 226 or 227 of the Constitution. In short, the learned counsel for the appellant has supported the findings of the learned trial Judge and in the alternative raised the objection that even if there was any error committed by the learned trial Judge, that error was beyond the scope of Articles 226 or 227 of the Constitution.
8A. The learned counsel for the respondent has submitted that the learned Civil Judge (Sr. Division) committed a serious error of law by framing two Issues, that is Issue No. 10 and Issue No. 6 regarding the question whether Smt. Sudesh Chaudhary was below 21 years of age on the date of her election and he committed a serious mistake of law when he placed the burden of proving Issue No. 6 on the election-petitioner Smt. Tara Devi and placed the burden of proof of the Issue No. 10 on the respondent No. 1 Smt. Sudesh Chaudhary. It is further submitted by the learned counsel for the respondent No. 1 that the learned trial Judge did not consider the probity of the documentary evidence produced before him by the election-petitioner and by wrongly placing the burden of proof on the non-petitioner, Smt. Sudesh Chaudhary, decided the Issue No. 6 against her. According to the learned counsel for the respondent No. 1, the probity of the documentary evidence produced by the election-petitioner was almost zero and since the burden of proof was on the election-petitioner, the learned trial Judge committed an error apparent on the face of the record by giving a finding in favour of the election-petitioner. He has, therefore, prayed that this appeal be dismissed.
9. Only two questions arise for determination in this appeal. These are :--
(a) Whether the learned single Judge had no jurisdiction under Article 226 or 227 of the Constitution to quash and set aside the judgment and decree dated 4th October, 1996 passed by the learned Civil Judge (Sr. Division), Raishingh Nagar?
(b) Whether the learned Civil Judge (Sr. Division), Raisingh Nagar committed any error in arriving at the finding that the respondent No. 1 Smt. Sudesh Chaudhary was below 21 years of age on the date other election as Sarpanch, Gram Panchayat 4, B.L.D., Shri Ganganagar?
10. In Syed Yakoob v. Radhakrishnan, AIR 1964 SC 477, the Hon'ble Supreme Court observed (para 7) :--
"A writ of certiorari can be issued for correcting error of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in the excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly, be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ but not an error of fact, however, grave it may appear to be, In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or insufficiency of evidence led on a point and the inference of fact to be drawn from the finding are within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised." In para No. 8 of the judgment it was further observed :--
"What can be corrected by a writ has to be an error of law, but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of record."
11. In Babhutmal Raichand Oswal v. Laxmibai R. Tarte, AIR 1975 SC 1297, the Hon'bleSupreme Court observed (at Pp. 1301-03):--
"It is well settled by the decision of this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : AIR 1954 SC 215 that the :
". . . .Power of superintendence conferred by Article 227 is, as pointed by Harries, C. J. in Dalmia Jain Airways Ltd. v. Sukumar Mukhcrjee, AIR 1951 Cal 193 (SB) to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."
This statement of law was quoted with approval in a subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division, 1958 SCR 1240 : AIR 1958 SC 398 and it was pointed out by Sinha, J. as he then was, speaking on behalf of the Court in that case :
It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or Tribunal. Its function is limited to seeing that the subordinate Court or Tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. What Morris, L. J., said in Rex v. Northumberland Compensation Appeal Tribunal, (1952) 1 A11ER 122, in regard to the scope and ambit of certiorari jurisdiction must apply equally in relation to exercise of jurisdiction under Article 227. That jurisdiction cannot be exercised :
"as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings,"
If an error of fact, even though apparent on the face of the record, cannot be correct by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or Tribunal final on facts.
Here when we turn to the judgment of the High Court, we find that High Court has clearly misconceived the scope and extent of its power under Article 227 and overstepped the limits of its jurisdiction under that Article. It has proceeded to reappreciate the evidence for the purpose of correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise of its jurisdiction under Article 227. The District Court was the final Court of fact and there being no appeal provided against the findings of fact reached by the District Court, it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a Court of appeal and examine the correctness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under Article 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority, It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread apart of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do jurisdiction under Article 227. This is precisely what the High Court did in Nagendra Nath Bora's case, 1958 SCR 1240 : AIR 1958 SC 398 (supra) while setting aside the orders of the Appellate Authority under the Excise Act and that was disapproved by this Court in clearest terms. The exercise of the power of interference in that case was sought to be justified by reference both to Articles 226 or 227. So far as the exercise of jurisdiction under Article 226 is concerned, this Court pointed out that a writ or order of certiorari could be issued by the High Court only if there was an error of law apparent on the face of the record and no error of fact, howsoever, apparent on the face of the record, could be a ground for interference by the High Court exercising its writ jurisdiction. It was observed by this Court while applying this principle to the facts of appeals before it :
"In the judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdiction in respect of errors which cannot be said to be errors of law apparent on the face of the record. If at all they are errors, they are errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences. In other words, those arc errors which a Court sitting as a Court of appeal only, could have examined and, if necessary, corrected."
"The High Court, in its several judgments and orders has scrutinised, in great detail, the order passed by the excise authorities under the Act. We have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Article 226 of the Constitution is limited to seeing that the judicial or quasi judicial tribunals or administrative bodies exercising quasi judicial powers, do not exercise their powers in excess of their statutory jurisdiction but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and appellate authorities as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law, the High Court has no concern with the manner in which these powers have been exercised. In the instant cases, the High Court appears to have gone beyond the limits of its powers under Article 226."
This Court also held that the High Court was not justified in interfering with the orders of the Appellate Authority in exercise of its jurisdiction under Article 227, since this jurisdiction was limited only to seeing that the District Court functions within the limits of its authority and did not extend to correction of mere errors."
12. In Mohd. Yunus v. Mohd, Mustaqim, AIR 1984 SC 38, the Hon'ble Supreme Court observed (para 7):--
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunals functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error or law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunals purports to be based or to correct errors of law in the decision."
13. In Chandravarkar Sita Ratna Rao v. Asha S. Guram, AIR 1987 SC 117, the Hon'ble Supreme Court observed (paras 16 and 17):--
"Two questions require consideration-how far and to what extent in exercise of its jurisdiction under Article 226 or 227 of the Constitution and in this respect regarding power to deal with factual findings, the jurisdiction of the High Court is akin both under Articles 226 or 227 of the Constitution, can the High Court interfere with the findings of fact? It is well settled that the High Court can set aside or ignore the findings of fact of an appropriate Court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Courts below have come or in other words a finding which was perverse in law. This principle is well settled. In D. N. Banerji v. P. R. Mukherjee, 1953 SCR 302 at 305 : AIR 1953 SC 58 at p. 59, it was laid down by this Court that unless there was any grave miscarriage of justice on flagrant violation of law calling for intervention it was not for the High Court under Articles 226 or 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the Court has not misdirected itself either on law or on fact, then in exercise of the power under Article 226 or 227 of the Constitution, the High Court should refrain from interfering with such findings made by appropriate authorities.
XXX XX In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte, AIR 1975 SC 1297, where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a Court of Appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J., as the learned Chief Justice then was observed at page 1301 on the report as follows :
"The Special Civil Application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that Article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : AIR 1954 SC 215, that the :
".. . .power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB) to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors."
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division, 1958 SCR 1240 : AIR 1958 SC 398, and it was pointed out by Sinha, J. as he then was, speaking on behalf of the Court in that case :
"It is thus clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
14. In the same judgment at page 124 of the report, the Hon'ble Supreme Court observed :--
"It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings were perverse and not based on any material evidence or it resulted in manifest of injustice (See Trimbak Gangadhar Telang (AIR 1977 SC 1222) (supra)). Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion, therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the appellate bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error."
In view of the observations of the Hon'ble Supreme Court if can be said without any hesitation that the jurisdiction of this Court under Articles 226 and 227 of the Constitution is not as wide as that of a Court of appeal, but it does not mean that the High Court has no jurisdiction at all under Articles 226 and 227 of the Constitution to interfere with the findings of an inferior Court or tribunal even if the findings have been arrived at in violation of the principles of natural justice or in disregard of the express provisions of law or when the findings are based on no evidence at all and there is manifest injustice on the face of the record. In appropriate cases, this Court can exercise its powers under Articles 226 and 227 of the Constitution provided the conditions laid down for the exercise of jurisdiction are fulfilled.
15. In the instant case, the error apparent on the face of the record appears to be of two kinds. The first error is the error committed by the framing issue Nos. 7 and 10 about the same points i.e. the age of respondent No. 1 on the date of election. Issue No. 6 is so worded that the burden of proof has been placed on the election-petition (appellant), but issue No. 10 has been so worded that the burden of proof has been placed on the respondent No. 1 (Smt. Sudesh Chaudnary), non-petitioner in the election petition. In our. opinion, the learned Civil Judge did not commit any error in framing the issue No. 6, but he has committed a serious error of law by framing the issue No. 10 regarding the age of respondent No. 1 on the date of election as Sarpanch of the Gram Panchayat. The issue No. 10 was not only unnecessary, but appears to have caused serious prejudice to the respondent No. 1, inasmuch as the burden of proving her age on the date of election was placed on her.
16. The legal provisions contained in the Evidence Act regarding the burden of proof are very important. The party on whom the burden to prove a certain fact is placed is under a legal obligation to prove that fact. Of course, the party on whom the burden to prove a fact lies can discharge that burden by proving admission made by the opposite party or by producing direct evidence or by producing circumstantial evidence of the fact. The consequence of failing to prove the fact would be that the opposite party would not be required to produce evidence in rebuttal and the fact will have to be treated as not proved and the legal consequences would follow. The provisions as to burden of proof cannot be ignored, by the inferior Court or tribunal. They are as important as the presumptions of law, and therefore, the mistake committed by the inferior Court or tribunal by wrongly placing burden of proof on a party is an error which should be treated as an error apparent on the face of the record.
17. In Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 at page 1807 of the report the Hon'ble Supreme Court observed :--
"In Brij Mohan Singh v. Priya Brat Narain Sinha, (1965) 3 SCR 861 : AIR 1965 SC 282 a question arose whether the returned candidate had attained the age of 25 years on the date of his nomination. The High Court had set aside the election of the returned candidate on the ground that he was below the age of 25 years on the date of filing the nomination. This Court set aside the order of the High Court and upheld the election of the returned candidate on the ground that the burden of proving that the returned candidate had not attained the age of 25 years on the date of his nomination was on the election petitioner and since he had failed to prove that, the election of, the returned candidate could not be set aside."
18. In the same judgment at page 1808, the Hon'ble Supreme Court observed :--
"In our view the High Court's entire approach in considering the question of dates of birth was wholly misconceived. The burden to prove the face in issue, namely, the dates of birth of Hukmichand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained in the electoral roll regarding the age of two candidates was incorrect."
XXX XX In fact, burden was on the respondents to prove his case by producing the Hukmichand and Suraj Prakash Joshi, or their parents to prove and corroborates the dates of birth as mentioned in the school register and the certificate. If he failed to do that he could not succeed merely because appellant had not produced them."
19. In view of the observations of the Hon'ble Supreme Court, it can be said without hesitation that if the election of a candidate, who has been declared elected, is challenged in election petition on the ground that he had not attained the age prescribed by the statute for being elected, the burden to prove that he had not attained the age, would lie on the election petitioner. We, therefore, have no doubt that burden to prove that the respondent No. 1 had not attained the age of 21 years on the date of election, required to be placed on the election petitioner (appellant) and that burden could not have been placed on the respondent No. 1. The learned Civil Judge (Sr. Division) Raisinghnagar committed a serious mistake of law by framing issue No. 10 and placing the burden of proof on the respondent No. 1. It may be pointed out that the learned Civil Judge decided the issues Nos. 6 and 10 together and the effect of deciding both the issues together was that the learned Civil Judge misdirected himself as to the burden of proof leading in the age of the respondent No. 1 on the date of the election.
20. We are therefore, convinced that in this case there was in error apparent on the face of the record to justify the exercise of jurisdiction under Articles 226 and 227 of the Constitution by the learned single Judge.
21. There is another error, which may also be called the error apparent on the face of the record. It was an error relating to determination of the degree of probity of the documents Exs. 5, 6 and 7. In State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118 ; (AIR 1983 SC 684), the Hon'ble Supreme Court observed :--
"Admissibility of a document is one thing and its probative value quite another -- these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil."
22. In view of the above observations of the Hon'ble Supreme Court it must be held that the probative value of a document which is relevant under Section 35 of the Evidence Act is different from the relevancy of the document, and the Court or Tribunal, entrusted with the duty of ascertaining a truth on the basis of the entries of a document, which is relevant under Section 35 of the Evidence Act must make effort to find out the probative value of the entries contained in the document. The necessity for ascertaining the probative value of the entries of a document, admissible under Section 35 of the Evidence Act arises from the fact that such document is a relevant fact constituting the circumstantial evidence on the basis of which a presumption may be drawn under Section 114 of the Evidence Act, having regard to common course of natural events, human conduct and public and private business in relation to the facts of the particular case. There is a substantial distinction between the direct evidence and the circumstantial evidence. In the case of direct evidence, once the Court comes to the conclusion that direct evidence produced before it is relevant, admissible and reliable, the Court without indulging in any further exercises under Section 114 of the Evidence Act may proceed to decide the fact under enquiry on the basis of the information communicated to it by direct evidence. On the other hand, in the case of circumstantial evidence even if the circumstances brought to the notice of the Court arc found to be relevant, admissible and duly proved, the Court is bound to act in accordance with the Section 114 of the Evidence Act before it draws a presumption about the fact under enquiry. The Court is bound to take into consideration all matters brought before it in accordance with law and to take into consideration common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. If any inferior Court or tribunal misdirects itself by acting upon any one circumstance, which does not fall within the definition of direct evidence, ignoring all other relevant circumstances required to be taken into consideration under Section 114 of the Evidence Act, it will have to be said that the inferior Court or Tribunal has committed error apparent on the face of the record. In the case of circumstantial evidence, the Court or the Tribunal has the legal jurisdiction and the duty to consider the probily of each and other every relevant fact, which is brought to its notice according to law. If the inferior Court or Tribunal does not exercise this legal jurisdiction for the purpose of ascertaining the fact under enquiry, the error committed by the lower Court or Tribunal would be within the scope of the jurisdiction under Articles 226 and 227 of the Constitution. We, therefore, hold that the learned Civil Judge (Sr. Div.) Raisinghnagar committed three errors of law: (a) by framing issue No. 10 and placing the burden of proof of age on the respondent No. 1; (b) by treating the entries of Exs. 5, 6 and 7 as direct evidence without ascertaining their probity under Section 114 of the Evidence Act and thereby omitted probiting to exercise the jurisdiction vested in him under Section 114 read with Section 3 of the Evidence Act; (c) by wrongly admitting in evidence the document Ex. 7, under Section 35 of the Evidence Act. Ex. 7 is the application form alleged to have been filled and signed by one Dharam Pal at the time of admission of Sudesh Kumari in Class IXth in Government Secondary School, Sherda. Dharam Pal was not a public servant and the entries of Ex. 7 were not made in performance of any public or official duty. Ex. 7 therefore could not be admitted in evidence under Section 35 of the Evidence Act.
23. Evidence Act is a complete Code relating to law of evidence in India. Whatever is not permitted to be produced in evidence under the Evidence Act is excluded. No evidence which is liable to be excluded can be permitted to be produced in evidence on the ground that it would help the Court in ascertaining the truth.
24. In Siris Chandra Nandy v. Rakhalananda, AIR 1941 PC 16 (18) their Lordships of the Judicial Committee considered the importance of the provisions of the Evidence Act. In the case before the Privy Council, the High Court had observed :--
"It must be recognised however, that the principle of exclusion adopted by the Evidence Act should not be applied so as to exclude matters which may be essential for the ascertainment of truth."
25. Their Lordships of the Privy Council disapproved the observations of the High Court and observed :
"It seems to their Lordships essential in the interests of the administration of justice in India that this mode of regarding the law of evidence should emphatically be stated to be unsound. What matters should be given in evidence as essential for the ascertainment of truth it is the purpose of law of evidence whether at common law or by statute to define. Once a statute is passed which purports to contain the whole law it is imparative it is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by the statute because to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not, are the result of long experience choosing no doubt to confine evidence to particular forms, and therefore eliminating others which it is conceivable might assist in arriving at truth. But that which has been eliminated has been considered to be of such doubtful value as on the whole to be more likely to disguise truth than discover it. It is therefore discarded for all purposes and in all circumstances. To allow a Judge to introduce it at his own discretion would be to destroy the whole object of the general rule. There is therefore no such principle as is suggested in the passage now under consideration."
26. The observations of their Lordships of the Privy Council clearly show that the Court and Tribunals have no legal jurisdiction to admit such evidence as is excluded by the provisions of the Evidence Act. Under Section 136 of the Evidence Act, it is the duty of the Court or the Tribunal hearing the case, to determine whether the evidence which a party proposes to produce before it is relevant. If the evidence which a party proposes to produce is not relevant the Court or the Tribunal hearing the case cannot permit the party to produce it before it. It would be useful to point out that even if evidence which is not relevant has been allowed to be produced, the Court cannot act upon it. The proviso given below Section 165 of the Evidence Act reads:--
"Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:"
27. The learned Civil Judge (Sr. Division) Raisinghnagar, has committed the serious error of admitting in evidence the application form Ex. 7 which is not relevant under Section 35 Evidence Act. Besides Ex. 7 has not been duly proved to have been filled and signed by the father of the respondent No. 1. We are therefore of the opinion that by admitting in evidence the document Ex. 7 and acting upon it without its being duly proved to have been filled and signed by the father of the respondent No. 1, the learned Civil Judge (Sr. Division) Raisghingnagar has committed an error which deserves to be regarded as an error apparent on the face of the record.
28. For the reasons mentioned above, we hold there were errors apparent on the face of the record, justifying the exercise of jurisdiction under Articles 226 and 227 of the Constitution by the learned single Judge, in view of Section 167 of the Evidence Act which reads as under :--
"Section 167.-- No new trial for improper admission or rejection of evidence-- The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision."
29. We, therefore, find no force in the objection that the learned single Judge had no jurisdiction to exercise powers under Articles 226 and 227 of the Constitution in the case.
30. The second question to be decided in this appeal is whether the findings of the learned Civil Judge (Sr. Div.) Raisinghnagar are such as call for interference by this Court under Articles 226 and 227 of the Constitution.
31. The appellant-election petitioner Smt. Tara Devi A.W. 1 examined herself and three witnesses, namely, Mahendra Singh A.W. 2, Jawarharlal A.W. 3 and Bhajan Lal A.W. 4, in support of the allegations made in the election petition. The non-petitioner-respondent No. I examined herself as N.A.W. 1 and produced her mother Smt. Vimla Devi N.A.W. 2 in rebuttal. The election petitioner (appellant) produced in evidence three documents for proving that respondent No. 1 was born on 5th July, 1976. These three documents are: (a) copy of the Scholar's register of Govt. Secondary School, Sherda (Ex. 5) where Sudesh Kumari had studied up to Class IXth, (b) transfer certificate (Ex. 6) purported to have been issued by the Head Mistress of Govt. Sr. Primary School, Sherda, where Sudesh Kumari had studied up to Class VIIIth, and (c) application form (Ex. 7) purporting to have been filled by Dharampal, father of Sudesh Kumari at the time of the admission of Sudesh Kumari in Class IXth, in Govt. Secondary School, Sherda.
32. We have carefully considered the oral as well as documentary evidence produced by the election petitioner (appellant). Election-petitioner Tara Devi (A.W. 1) did not give any evidence regarding the date of birth of Smt. Sudesh Chaudhary. Mahendra Singh, A.W. 2 is the Head Master of Govt. Secondary School, Sherda. He has given evidence to the effect that on 4th July, 1989 a candidate bearing the name of Sudesh Kumari was admitted in the school and she appeared in the final examination of Class Xth and passed the same on 23rd July, 1991. Mahendra Singh A.W. 2 has proved that name of Sudesh Kumari is entered in Scholar's Register No. 5 at Serial No. 1318 and according to entries of the Scholar's Register (Ex. 5) the date of birth of Sudesh Kumari is 5th July, 1976. It is also stated by Mahendra Singh A.W. 2 that at the lime of her admission, Sudesh Kumari had submitted the transfer certificate (Ex. 6) issued by Govt. Secondary Primary School, Sherda, from which Sudesh Kumari had passed the examination of Class VIIIth. Mahendra Singh A.W. 2 has further stated that application (Ex. P/7) was also submitted at the time of Sudesh Kumari in his school, but the signatures on this application were not made in hispresence, and therefore, he cannot tell, who had put the signatures on Ex. P/7. It is also stated by him that one Sahiram was the Head Master of the School on the day of admission of Sudesh Kumari, but he cannot tell whether the signatures on Ex. 7 were put by Sahiram. In cross-examination Mahendra Singh A.W. 2 has categorically stated that he is not acquainted with Sudesh Kumari nor he knew Dharmpal. The evidence of Mahendra Singh A.W. 2 proves nothing more than this that Ex. 5 is the copy of the Scholar's register maintained in his school and that Ex. 6 transfer certificate was available in the record of the school and Ex. 7 was also available in the record of the school. On the basis of the evidence of Mahendra Singh A.W. 2 it can be said that Exs. 5 and 6 are entries of the official record of the Government schools and these entries are relevant under Section 35 of the Evidence Act. Ex. 7 is the application form containing entries made by one Dharampal, who was neither an employee working in school, nor he was in any manner authorised to make entries in the record maintained by the Govt. Secondary School, Sherda. He has signed Ex. 7 in the capacity of the father of the candidate Sudesh Kumari. Ex. 7 is therefore, a private document and its entries are not relevant under Section 35 of the Evidence Act.
33. Jawaharlal A.W. 3 has not stated that he had any personal knowledge about the age of the respondent No. 1.
34. Bhajanlal A.W. 4 has stated that he knows Sudesh Kumari and her father. It is also stated by the witness that the objection was raised at the time of nomination, but for want of evidence, the objection was not upheld. None of the four witnesses produced by the election-petitioner (appellant) have made any statement regarding the age of respondent No. 1 on the basis of personal knowledge or special knowledge.
35. Ex. 7 is inadmissible in evidence under Section 35 of the Evidence Act. If Ex. 7 is excluded, there remain only two documents Exs. 5 and 6, on which the election-petitioner (appellant) could legally place reliance for the purpose of proving the allegations made in the election petition.
36. Exs. 5 and 6 are entries in the official record of the school. These entries were made by the Head Masters of the school in discharge of their official duties as headmasters. These entries are by themselves relevant under Section 35 of the Evidence Act. Had these entries been made by someone, who had personal knowledge, or special means of knowledge about the date of birth of respondent No. 1, these entries would have been entitled to be called direct evidence subject to the provisions of Section 32 of the Evidence Act. Since, the Headmaster, who made these entries in Exs. 5 and 6 is not shown to have had any personal knowledge or special means of knowledge about the date of birth of the respondent No. 1, it cannot be said that entries of Exs. 5 and 6can be regarded as direct evidence of the date of birth of Sudesh Kumari. The fact that these entries are relevant under Section 35 of the Evidence Act makes them relevant as pieces of circumstantial evidence for the purpose of Section 114 of the Evidence Act. We are therefore, of the opinion that since the entries contained in Exs. 5 and 6cannot be regarded as direct evidence of the date of birth of Sudesh Chaudhary, these entries can be regarded as pieces of circumstantial evidence only within the meaning of Section 114 of the Evidence Act and it is necessary to consider what is their probative value.
37. In Birad Mal Singhvi's case AIR 1988 SC 1796 the Hon'ble Supreme Court considered the probative value of the entries of the school record. At page 1806, the Hon'ble Supreme Court observed :--
"If entry regarding date of birth in the scholar's register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents hut the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evenditiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone also who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of document were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmichand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Mukmi Chand of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."
38. In the same judgment at page 1807, their Lordships further observed :--
"An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded."
39. At page 1808 of the report, their Lordships again observed :--
"The appellant was declared elected as he had polled majority of valid votes. His election could not be set aside unless the respondent-election petitioner was able to prove that Hukmichand and Suraj Prakash Joshi had attained the age of 23 years on the date of nomination by producing cogent and reliable evidence before the High Court. The burden to prove that fact was on the respondent throughout and he could not and did not discharge that burden mere by producing the documentary evidence Exs. 8,9,10,11 and 12 or on the basis of the oral testimony of Anantram Sharma PW 3 and Kailash Chandra Taparia P.W. 5. As discussed earlier these documents do not conclusively prove the dates of birth of Hukmichand and Suraj Prakash Joshi. The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value. The High Court committed serious error in accepting the dates of birth as mentioned in the aforesaid documents. In our view the High Court's entire approach in considering the question of dates of birth was wholly misconceived. The burden to prove the fact in issue, namely, the date of birth of Hukmichand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained in the electoral roll regarding the age of two candidates was incorrect."
40. In view of the observations made by the Hon'ble Supreme Court, it must be said that the entries contained in Exs. 5 and 6 in spite of being admissible under Section 35 of the Evidence Act have no evidentiary value. In other words, these entries are not sufficient to prove that the respondent No. 1 was below 21 years of age on the date of election as Sarpanch of the Gram Panchayat 4 BLD, district Sri Ganganagar.
41. The learned counsel for the appellant has submitted that the respondent No. I Sudesh Chaudhary has appeared in the witness-box as N.A.W. I and her mother Smt. Vimla Devi N.A.W. 2 has been cross-examined in Court and horoscope has also been filed as evidence, and since Sudesh Chaudhary has failed to prove that the horoscope Ex. A/1 contains her correct date of birth, it should be held that the respondent No. 1 has failed in rebutting the correctness of the entries of Exs. 5 and 6 and on this ground the entries Exs. 5 and 6 should be taken as correct. In our opinion, this argument has no force at all. Since the burden to prove that the respondent No. 1 was below 21 years of age on the date of election was on the election petitioner-appellant, the legal responsibility of the respondent No. 1 was merely to rebut the evidence produced by the election-petitioner. The respondent No. 1 was not required to do anything more than rebutting the evidence produced by the election petitioner-appellant. In these circumstances, the weakness of the evidence produced by the respondent No. 1 cannot lead to the inference that the entries contained in Exs. 5 and 6 have a high evidentiary value. If any party, who fails to rebut the entries made in a public record, which is relevant under Section 35 of the Evidence Act the failure to rebut the entries cannot increase the evidentiary value of those entries. The evidentiary value of the entries will have to be assessed by the Court under Section 114 of the Evidence Act keeping in view all relevant facts and circumstances and the common course of natural events, human conduct, and public and private business. In the case of Birad Mal Singh's case (AIR 1988 SC 1796) (supra) a similar argument was made before the Hon'ble Supreme Court, but it was rejected. At page 1808 of the report, the. Hon'ble Supreme Court observed :--
"Since the appellant had not examined Hukmi-chand Suraj Prakash or their parents, the High Court drew adverse inference against him. The High Court committed serious error in doing so. There was no question of drawing adverse inference against the appellant, as the burden to prove the age of Hukmichand and Suraj Prakash Joshi was on the election petitioner and since he has failed to prove the same by cogent evidence no adverse inference could be drawn against the appellant. In fact, burden was on the respondent to prove hits case by producing the Hukmichand and Suraj Prakash Joshi, or their parents to prove and corroborate the dates of birth as mentioned in the school register and the certificate. If he failed to do that he could not succeed merely because appellant had not produced them. In the circumstances no adverse inference was at all possible to be drawn against the appellant for not examining Hukmi Chand and Suraj Prakash Joshi or their parents."
42. Since failure on the part of the respondent No. 1 to prove that the date of birth entered in horoscope (Ex. A/1) was her correct date of birth, cannot be the subject matter of drawing any adverse inference against her it cannot be held that the evidentiary value of Ex. 5 and 6 is increased on accounts of the failure on the part of the respondent No. I to prove the entry of date of birth mentioned in horoscope (Ex. A/1).
43. For the reasons mentioned above, we come to the conclusion that the learned Civil Judge (Sr. Div.) Raisinghnagar had committed a serious error of law by deciding the issue No. 6 in favour of election-petitioner-appellant and against the non-petitioner-respondent No. 1. In fact he had no evidence before him on which he could have given the impugned findings. The findings given by him were therefore, erroneous and unjust and the learned single Judge was justified in reversing them.
44. For the reasons mentioned above, we do not find any force in this appeal. It deserves to be dismissed and is hereby dismissed.