Gayad Ram vs Pratap Singh Bhati And Ors

(1) SBCWP No.12422/2019:

The present writ petition has been preferred against the order dated 11.7.2019, whereby the learned trial court has accepted the application under Section 65 of the Evidence Act, filed by the respondent-election petitioner.

After arguing for sometime, Mr. Bhoot, learned counsel for the petitioner does not press the present writ petition, with liberty to raise appropriate challenge regarding admissibility of the documents and their grievances at appropriate stage.

Permission granted.

The writ petition is therefore, dismissed as not pressed, with liberty, as prayed for.

The stay application also stands disposed of accordingly.

(2) SBCWP No.13348/2019:

The present writ petition is directed against the order dated 28.8.2019 passed by the learned Election Tribunal - Senior Civil Judge, Jodhpur (hereinafter referred to as the learned trial court).

The learned trial court initially passed an order dated 11.7.2019 whereby an application filed by the respondent under Section 65 of the Evidence Act has been allowed. Against the order aforesaid, the petitioner filed a writ petition being SBCWP no.12422/2019, which has been dismissed as withdrawn by the order of even date.

After passing of the aforesaid order, the petitioner filed an application under Section 151 read with Section 114 of the Code of Civil Procedure and sought review of the order, inter alia contending that the court has permitted secondary evidence to be led even in respect of the documents, which were not on record of the court.

Narrating the facts briefly, learned counsel contended that in an election petition challenging petitioner's election, the respondent no.1 had submitted documents marked as exhibit in the affidavit as Exhibit 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20 and 25 (hereinafter referred to as 'first set of documents) alongwith the plaint, whereas the documents Exs. 3,18, 21, 22, 23, 24, 26, 27, 28, 29 and 30 (hereinafter referred to as the second set of documents) mentioned in the affidavit, were filed subsequently i.e., on 8.3.2017. He pointed out that no leave of the Court was taken prior to furnishing the same and the same were marked exhibit.

According to Mr. Bhoot, learned Court below has erred in permitting the respondents to lead evidence/secondary evidence, even with respect to the second set of documents for which neither any leave was obtained nor a specific order of taking them on record was passed.

Learned counsel for the respondent disputed this position and contended that all the documents, including the second set were filed with the plaint. To steer clear the doubt, this Court summoned the original record from the learned Court below.

Upon perusal of the record it transpires that the first set of documents had been filed on 28.12.2015,alongwith the plaint itself, whereas the second set of documents came to be filed by the respondent no.2 on 8.3.2017. It is to be noticed that no application under Order VII Rule 14 of the Code of Civil Procedure had been filed, with a view to seek leave to place them on record.

Mr. BK Vyas and Mr. DS Thind learned counsel for the respondents submitted that the petitioner has filed a frivolous application, with an intention to delay the proceedings. According to them, the documents have been placed on record of the trial Court on 8.3.2017 and the objection regarding requirement of seeking leave has been raised by the petitioner, at a belated stage, only after passing of order dated 11.7.2019 vide which the permission to lead secondary evidence in relation to these documents was granted. According to them, the conduct of the petitioner has amounted to acquiescence or waiver.

Learned counsel added that filing of an application under Order VII Rule 14 of the Code would be an empty formality in the present factual backdrop, inasmuch as these documents are very much on record and they are relevant for the purpose of adjudication of the election petition in question.

Having heard learned counsel for the parties and upon perusal of the record of the case, this Court finds that the second set of documents has been filed by the respondent no.2- election petitioner on 8.3.2017, without any corresponding application seeking leave to take them on record. Until and unless a leave has been granted, the documents filed with the Court cannot be said to be documents on record.

According to the provision of Order VII Rule 14 of the Code, the plaintiff has to file all the documents upon which he relies alongwith the plaint, after entering the same in a list. Sub-Rule (3) of Rule 14 of Order VII postulates that the document which ought to have been produced alongwith the plaint, shall not be received in evidence, without the leave of the Court. A perusal of the following part of the impugned order leaves no room for doubt that the second set of documents were never taken on record:

"हस्तगत प्रकरण में यह तथ्य तो सही है कि जिन दस्तावेजों को आदेशिका दिनांक 11.7.2019 के माध्यम से द्वितीय साक्ष्य के रूप में पेश करने की अनुमति प्रदान की गई थी, वह दस्तावेज सीपीसी के आदेश 07 नियम 14 के प्रावधानों के अन्तर्गत रिकोर्ड पर नही आए थे, परंतु उन्हीं दस्तावेजों को पेशी दिनांक 25.9.2017, दिनांक 10.7.2018 को न्यायालय द्वारा रिकोर्ड पर लिया गया है। यहॉ यह उल्लेख किया जाना उचित होगा कि दिनांक 8.3.2017 को न्यायालय में दस्तावेज पेश होने के पश्चात् उसके बाद पत्रावली में अनेकों पेशियॉ नियत होती रहीं, परंतु इस संबंध में अप्रार्थी संख्या 1 के द्वारा दस्तावेज रिकोर्ड पर लिये जाने की कोई आपत्ति नहीं उठाई गई थी। पेशी दिनांक 25.9.17 को भी दस्तावेज बाबत् राजस्थान पंचायत अधिनियम के अन्तर्गत नियम 82 के तहत आदेश किये जाते वक्त अथवा उससे पूर्व अप्रार्थी संख्या 1 के द्वारा कभी भी यह आपत्ति नहीं उठाई गई क दस्तावेज सिविल प्रक्रिया संहिता के प्रावधानों के अनुसार न्यायालय के समक्ष नहीं आए हैं।"

Non-compliance of mandate of rule 14(3) of Order VII is writ large. Hence, Court below has rejected petitioner's objection on the principle of waiver. Such approach cannot be countenanced.

Hence, the order dated 28.8.2019, passed by the Election Tribunal is quashed and set aside.

At this juncture, Mr. BK Vyas, learned counsel for the respondent submits that notwithstanding the above order, the respondent no.2 may now be permitted to move application under Order VII Rule 14 of the Code, seeking leave of the Court for taking these documents on record, as their relevance is not in dispute.

In the interest of justice, the respondent no.2 is permitted to file an application under Order VII Rule 14 of the Code, on the next date of hearing which is reported to be 12.9.2019, while giving a copy thereof to the present petitioner. Petitioner be given 3 days' time to file reply (if any), to the application aforesaid. The trial court shall decide the same within a period of seven days thereafter.

Needless to observe that the petitioner- returned candidate shall be free to raise all just objections in response to the application under Order VII Rule 14 of the Code.

The writ petition is allowed accordingly.

The record of the learned trial court be sent forthwith.

The stay application also stands disposed of

The present writ petition has been filed by the election-petitioner seeking appropriate direction for expeditious disposal of the election petition filed by him.

Mr. Thind, learned counsel for the petitioner submits that the election petition is pending for last four and half years and if the same is not decided expeditiously, the entire purpose of filing of the election petition would be defeated.

Mr. Bhoot, learned counsel appearing in the connected matters,is directed to accept notice on behalf of the respondent no.2.

Mr. Bhoot, learned counsel for the respondent fairly submits that he would not be seeking unwarranted adjournments and will cooperate with the trial Court to decide the election petition expeditiously.

In view of the aforesaid, this writ petition is disposed of with the direction to the learned trial court to decide the election petition as expeditiously as possible.