Alok Sharma, J.Impugned in this petition purporting to be one both under Articles 226 and 227 of the Contitution of India is the judgment dated 20-8-2016 passed by the Additional Chief Judicial Magistrate and Civil Judge (Senior Division) Jhalrapatan District Jhalawar, where under the election petition filed by the respondent-election petitioner (hereinafter the EP) challenging the election of the petitioner-returned candidate (hereinafter the RC) was allowed and the election of RC as Sarpanch of village Panchayat Sameli Haat, Panchayat Samiti Manohar Thana District Jhalawar set aside.

2. Election of the RC to the post of Sarpanch of village Panchayat Samli Haat aforesaid was called in question under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter the of 1994) read with Rule 80 of the Rajasthan Panchayat Raj (Election) Rules, 1994 (hereinafter the Rules of 1994) by the EP inter alia alleging that the RC on the date of filing of nomination on 17-1-2015 had not attained the age of 21 years, a disqualification under Section 19 (a) of theof 1994. It was contended that as per voter ID bearing No.ATJ/0753848 dated 30-8-2013 issued by the Election Commission to RC her date of birth was 10-10-1995. In the voter list of 2014 her age shown as 19 years. And her date of birth recorded on 1-7-2000 when the returned candidate was admitted with scholar No. 399 in the Secondary School at Hirenkhedi Development Block Rajgarh, District Rajgarh M.P, and studied there from Class I to Class VIII was also 10-10-1995 as reflected in certificate No. 557/2 dated 2-2-2015 issued by the Principal, Government Secondary school Hirenkhedi. As such on the date when elections were held on 18-1-2015, she had not attained the age of 21 years. It was submitted that the documents filed by the RC purportedly issued by Government Girls Higher Secondary School Rajgarh indicating her date of birth as 10-10-1992 were forged and fabricated. It was also contended that at the time of filing nomination papers for the election in issue, the EP had raised the very same objection before the Returning Officer who however failed to consider them and illegally allowed the RC to contest election to the post of Sarpanch to which she was elected.

3. On notice on the election petition, the RC filed reply of denial stating that she was eligible to contest the election. It was her case that her actual date of birth was 10-10-1992 which was established by her horoscope and buttressed by the mark-sheet of Class VIII issued by Government Girls Higher Secondary School Rajgarh. She stated that her age mentioned in the voter list and date of birth in the Identification card issued by the Election Commission were both clerical mistakes by the concerned departments. She asserted that the documents relied upon by the EP were not verified in terms of Rule 82(2) of the Election Rules of 1994 and could not be relied upon. Other objections unrelated to the dispute as to the R.Cs age and her eligibility to contest the election to the post of Sarpanch were also taken.

4. Based on the pleadings, the trial court framed three issues. Loosely translated, the first was whether the RC was not 21 years of age on the date of filing her nomination papers to contest election for the post of Sarpanch, had consequently been wrongly allowed to contest and then elected to the post of Sarpanch of village Panchayat Semlihaat, Panchayat Samiti Manoharthana District Jhalawar. The second was as to whether the RC was entitled to cost of Rs. 10,000/- from the EP for filing a frivolous petition. The third related to relief.

5. In support of the election petition, the EP examined herself as PW-1, Brij Singh PW-2, Arun Kumar PW-3, and Seema Pupadhyay PW-4. She exhibited 15 documents. The RC despite several opportunities failed to produce any evidence oral or documentary. Her evidence was closed 6-8-2016. SBCWP No. 11316/2016 was filed and is also being disposed of today as the issue agitated therein is also being considered in the instant petition.

6. On consideration of the evidence before it, the trial court relied on the documentary evidence regarding date of birth of the RC to be 10-10-1995 such as the R.Cs transfer certificate (Ex.14), her mark-sheets of class I to VIII of the RC (Ex.15). Ex.6 (mark-sheet of class V certificate issued by the Principal Primary School Hirankhedi, Rajgarh, recording the R.Cs date of birth as 10-10-1995 as per entry in the scholar register, Ex.7 mark-sheet of class VIII issued by the Principal School Hirenkhedi also recording R.Cs date of birth as 10-10-1995, and Ex.8 the voter list, all showing that the RC had not attained the age of 21 years on 18-1-1995, when elections to the post of Sarpanch was held. It also relied upon challan (Ex.9) in FIR No. 49/2015 (Ex.11) registered at Police Station Manoharthana, District Jhalawar, for offences under Sections 420, 467, 468 and 471 IPC against the RC for reason of her using of forged and fabricated documents to contest election to the post of Sarpanch. The trial court after reckoning for the R.Cs evidence in defence such as class VIII mark-sheet allegedly issued by the Government Girls Higher Secondary School Rajgarh recording her date of birth as 10-10-1992 by a detailed reasoning held that the R.Cs date of birth was 10-10-1995, for reason of which in terms of Section 19(a) of theof 1994 she was ineligible to contest and be elected as Sarpanch in the election held on 18-1-2015. The first issue to that extent was thus decided in favour of the EP and against the RC. The second issue of the RC being entitled to costs was obviously in the circumstances held against her. Resultantly, the election of the RC as Sarpanch of village panchayat Semlihaat held on 18-1-2015 was set aside by the impugned judgment. Hence this petition.

7. Mr. Kapil Gupta, counsel for the RC has submitted that the trial court committed a perversity in setting aside the election of the RC. He submitted that the RC was not provided adequate opportunity to produce her defence evidence which was peremptorily closed by order dated 6-8-2016. Mr. Kapil Gupta submitted that E.Ps evidence was completed after several opportunities on 12-7-2016 and the R.Cs evidence commenced only on 16-7-2016. On that day the RC and her witnesses could not appear in court due to heavy rains. The matter was adjourned to 25-7-2016 and then 6-8-2016 when on both occasions for unavoidable reasons requisite evidence was not produced. The trial court then peremptorily closed the R.Cs defence evidence on 6-8-2016. It was submitted that even though SBCWP No. 11316/2016 there against then was laid before this court, the trial court acted improperly and exercised its jurisdiction irregularly in proceeding with the election petition and setting aside the R.Cs election in the meantime by the impugned order. Mr. Kapil Guptas other submission was that on 30-10-2015, since no one had appeared on behalf of EP, her election petition was dismissed for non prosecution, but yet restored without jurisdiction by the trial court on 5-3-2016. It was submitted that the trial court was rendered functus officio following the dismissal of the election petition for non prosecution and had no authority to restore it to its original number on the E.Ps application under section 151 CPC. Mr. Kapil Guptas further contention was that since the election petition was not filed by the candidate herself and the documents filed along with the election petition not verified by the EP, it was not maintainable in terms of Rules 80, 81, and 84 of the Rules of 1994.

8. On merits, Mr. Kapil Gupta submitted that only the marksheet/Transfer Certificate of the RC from the Hirenkhedi Government Secondary School were produced by the EP from which her date of birth was sought to be proved as 10-10-1995. Neither the admission form nor the scholar register of the school, which were the primary evidence were exhibited or proved as required in law to establish the R.Cs date of birth being 10-10-1995. Yet, on this evidence the trial court has wrongly held the R.Cs date of birth to be 10-10-1995 instead of 10-10-1992. Mr. Kapil Gupta hastened to add that the R.Cs date of birth as 10-10-1995 in the voter ID of the RC issued by the Election Commission department and voter list of 2014 both were by themselves not proof adequate enough for the democratically elected R.Cs election to be set aside.

9. Counsel for EP supported the impugned judgment, emphatically asserting the well settled legal position that the jurisdiction of this court either under Article 226 or 227 of the Contitution of India is not one of appeal but merely supervisory. Counsel submitted that the impugned judgment is based on well considered findings arrived at by the trial court on an objective and wholistic consideration of the evidence on record both emanating from the EP and RC, and by no legal standard, the findings of fact of the R.Cs date of birth being 10-10-1995 based on the R.Cs ID issued by the Election Commission, and R.Cs transfer certificate (Ex.14), her mark-sheets of class I to VIII of the RC (Ex.15) Ex.6 (mark-sheet of class V certificate issued by the Principal Primary School Hirankhedi, Rajgarh, Ex.7 mark-sheet of class VIII issued by the Principal School Hirenkhedi also recording R.Cs date of birth as 10-10-1995, and Ex.8 the voter list, all showing that the RC had not attained the age of 21 years on 17-1-1995, rendering her ineligible to contest the election to the post of Sarpanch held on 18-1-2015 (being less than 21 years of age) can be held to be palpably perverse, patently illegal or suffering an error of jurisdiction. It was submitted that against the E.Ps documentary evidence duly proved no defence evidence obtained before the trial court. The R.Cs evidence was closed for the good reason that she did not bring any witness into the witness box despite three opportunities. The order dated 6-8-2016 closing the R.Cs defence evidence was indeed challenged in SBCWP No. 11316/2016, but no interim relief granted by this court. In the circumstances, it was only proper for the trial court to proceed with the election petition as it did keeping in mind that delay in the trial of an election petition works to the R.Cs advantage and public detriment of an ineligible candidate holding public office.

10. Heard learned counsel for the RC and EP. Perused the impugned judgment dated 20-8-2016. Considered.

11. The contention of Mr. Kapil Gupta that neither the admission form submitted by the RC while being admitted to School Hirenkhedi, nor the school register from the said school having been tendered in evidence by the EP, the R.Cs date of birth as 10-10-1995 was not proved is without force. The argument does not reckon for other admissible evidence of quite probative worth on record. In Chhedi Ram v. Jhilmit Ram [(1984)2 SCC 281] , also an election case, a Three Judge bench of the Apex Court held that in the facts of a given case, the court could hold as proved a fact if a reasonable probability on the evidence on record supported the conclusion. It was held that an impossible standard of proof should not be laid down. The above enunciation applies fully to the instant case where the EP had proved from the R.Cs transfer certificate (Ex.14), mark-sheets of class I to VIII of the RC (Ex.15). Ex.6, mark-sheet of class V issued by the Principal Primary School Hirankhedi, Rajgarh, recording the R.Cs date of birth as 10-10-1995, Ex.7 mark-sheet of class VIII issued by the Principal School Hirenkhedi also recording R.Cs date of birth as 10-10-1995, and Ex.8 the voter list, all showing that the RC had not attained the age of 21 years on 17-1-1995. Also noted was the fact that the RC contested the election on the basis of fabricated mark-sheets, for which a FIR was lodged and challan filed. It was thus proved to the satisfaction of the trial court on a wholistic appreciation of documentary evidence and oral evidence of four witnesses on record that the R.Cs date of birth was 10-10-1995 and since she had not attained the age of 21 years, when the election was held on 18-1-2015 she was not eligible to contest the election for the post of Sarpanch in view of Section 19(a) of theof 1994.

12. In the case of Narayan Govind Gavate v. State of Maharashtra [(1977)1 SCC 133] the Supreme Court has held that the result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the balance in favour of another. The weight of the evidence would be wholly against the party which did not bring any competing evidence before the trial court to displace the evidence of the other party buttressed by Sections 114(e) of the Evidence Act. In my considered opinion, therefore the voluminous evidence led by the witnesses of the election petitioner could not have been disbelieved in the facts of the case. On her part the RC had failed to bring on record any evidence of probative worth to dilute and rubbish the evidence of the election petitioner as she was under a legal duty with reference to Section 106 of the Evidence Act. No attempt was made to place on record of the trial court the birth certificate by the competent authority under the Registration of Births and Deaths Act, 1969, ration-card of the family members reflecting the age of the RC. It was for the RC to have laid positive evidence of probative worth before the trial court to dislodge the contra evidence of her date of birth amongst others from government documents. Reference in this regard can be had to L.N. Gadodia & Sons v. Regional Provident Fund Commissioner [2011(13) SCC 517], wherein the Apex Court held as under:-

"... When any fact is especially within the knowledge of any person, the burden of proving that fact lies on him. This rule (which is also embodied in Section 106 of the Evidence Act) expects such a party to produce the best evidence before the authority concerned, failing which the authority cannot be faulted for drawing the necessary inference."

13. It would also be profitable to refer to the Evidence Act. It defines "proved" as under:-

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

14. Proof of a fact is thus not dependent on a singular piece of evidence. It is a conclusion struck on consideration of multiplicity of evidences, laid by contesting parties, leading a prudent man to the supposition of the existence of a fact. In that perspective it would be well to again recapitulate that the E.Ps evidences in the form of the R.Cs transfer certificate (Ex.14), her mark-sheets of class I to VIII of the RC (Ex.15). Ex.6 mark-sheet of class V certificate issued by the Principal Primary School Hirankhedi, Rajgarh, recording the R.Cs date of birth as 10-10-1995 as per entry in the scholar register, Ex.7 mark-sheet of class VIII issued by the Principal School Hirenkhedi also recording R.Cs date of birth as 10-10-1995, and Ex.8 the voter list, all showing that the RC had not attained the age of 21 years on 17-1-1995, and the oral evidences of the EP herself as PW-1, Brij Singh PW-2, Arun Kumar, the Principal of the Sechool Hirenkhedi PW-3 and Seema Upadhyay, Principal, Government Girls Higher Secondary School Hirenkhedi PW-4 juxta posed to the R.Cs school certificate showing her date of birth as 10-10-1992 filed along with nomination paper were considered by the trial court and on appreciation, it concluded that the RC was not 21 years of age when she contested the election of Sarpanch on 18-1-2015. I am of the considered view that the trial court in coming to its conclusion has acted reasonably as would a prudent man in coming to a conclusion that the RC was not 21 years of age when she contested the election to the post of Sarpanch. No perversity nor patent illegality can be found in the trial courts judgment. Nor is the impugned judgment vitiated by an error of jurisdiction.

15. On the issue of closure of R.Cs evidence, admittedly she was provided three opportunities to produce here evidence but she failed to do so. Therefore her evidence was closed on 6-8-2016. The Apex Court in the case of Kailash v. Nanhku [(2005)4 SCC 480] with reference to trials in election petitions held as under:-

"The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidate may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness."

16. The term of a Sarpanch is five years. Election petitions challenging the elections have to be expeditiously adjudicated. I therefore find no force in the contention of Mr. Kapil Gupta, counsel for the RC that merely because the EP allegedly had several opportunities to lead her evidence, similar indulgence ought to have been shown to the RC and three opportunities for leading her defence evidence was thus inadequate. There can be no equivalence in grant of adjournments and to invoke mathematical equality on the issue is legally unsustainable. From the documents annexed to the petition it transpires that the EP concluded her evidence between 23-9-2015 and 12-7-2016. The RC was admittedly allowed three opportunities to lead her defence evidence but neither she nor her witnesses were present before the trial court. There is no allegation of mala fides or bias against the trial Judge. I am therefore of the view that the closing of the R.Cs evidence in defence by the trial court was not a situation of discretion being exercised improperly, illegally or perversely. No interference therewith can be made.

17. The submission of Mr. Kapil Gupta with regard to the trial court having been rendered functus officio after the dismissal of the election petition in default on 30-10-2015 and consequently the restoration of the election petition to its original number by the trial court on 5-3-2016 following the E.Ps application being without jurisdiction is quite untenable. It is not in question that for the trial of an election petition under Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994, the provisions of Civil Procedure Code, 1908 apply. Thereunder application for recall of an order of dismissal in default lies with reference to section 151 CPC. It cannot therefore be doubted that the trial court trying the E.Ps election petition had such power. In Firdous Omer v. Bankim Chandra Dew [(2006)6 SCC 569] the Apex Court has held that every court has the power of restoring a suit so as to enable the parties to contest the same on merits. The court further observed that it was even possible to argue, that the power to dismiss a suit for default/non prosecution, carries with it the implied power to restore that suit. The Apex Court reiterated the oft quoted dictum that the law of procedure is the handmaid of justice. Hence it was held by the Apex Court that the position adopted by the Calcutta High Court that on the expiry of 30 days from the date of dismissal of a suit for default and on the order of dismissal being drawn up, completed and filed, the court becomes functus officio, was not sustainable.

18. Reverting to the facts of the case it thus has to be held that the trial court had jurisdiction to address an application for restoration of a suit dismissed in default/for non prosecution on 30-10-2015 and hence was not functus officio or lacked jurisdiction for restoring the election petition. Nothing illegal can thus be attributed to the trial courts restoration of the election petition vide its order dated 5-3-2016 after having earlier dismissed the election petition for default/non prosecution on 30-10-2015.

19. The other arguments advanced by Mr. Kapil Gupta that the election petition was liable to be dismissed for reason of the affidavit in support thereof not being properly verified and for the reason that it was not presented before the trial court by the EP are a non sequitur. No issue was framed on any of the above aspects by the trial court. No objection to non framing of such issue was taken by the RC as evident from the trial courts order-sheet dated 17-9- 2015. No evidence was laid thereon and no argument advanced before the trial court. Setting up the said grounds in this petition under Article 227/226 of the Constitution of India therefore cannot be permitted in a vacuum.

20. In a petition under Article 227 of the Contitution of India or for that matter one under Article 226 of the Contitution of India this courts powers are not appellate. For invoking the extraordinary jurisdiction of this court or for that matter its supervisory jurisdiction, the impugned judgment has to be established to be without jurisdiction, in violation of statutory provisions, misdirected in law and having entailed manifest injustice. None of the aforesaid situations is/are made out in the present case. The impugned judgment dated 20-8-2016 passed by the trial court is well considered and suffers no lacunae to warrant interference by this court.

21. For the aforesaid discussion, I find no force in the petition. Dismissed.