Kanhaiya Lal vs Anju Devi and Others

Mohammad Rafiq, J.—In this election petition, arguments were heard on the application filed by respondent No. 1 for taking on record list of witnesses with the prayer that such witnesses be called for examination. Ms. Anita Agrawal, learned counsel for petitioner/non-applicant, has opposed the application contending that list of witnesses, as per Rule 13 of the Rules in Regard to Election Petition under the Representation of People Act, 1951, was to be filed within seven days of the settlement of the issues. It is a mandatory rule which provides that no party shall produce or obtain process to enforce attendance of witnesses other than those contained in the above lists, the only exception being that this Court in its discretion may allow a party to produce witnesses in rebuttal. Rule 14 of the said Rules also provides that parties shall apply for the issue of witness-summons sufficiently in time for the attendance of witnesses after service and parties may produce witness without a summon on the date of the hearing, provided that they have filed a list of the same as required under Rule 12. Since the application for taking on record the list of witnesses has been filed 300 days after framing of the issues, the same cannot be said to be a list filed within the time and therefore the application deserves to be rejected. Rules 745-M and 745-N were originally inserted in the Rules of the High Court of Judicature for Rajasthan, 1952, which have been subsequently engrafted into the aforesaid Rules. In both the sets of Rules, maximum time period permissible for filing of list of witnesses is seven days from the date of settlement of issues. The provisions of CPC contained in Order XVI would not apply because there is specific Rule on the subject. The issues were framed vide order dated 23.11.2011 and fixed the matter seven days thereafter on 30.11.2011 in conformity with the aforesaid Rules. The application filed by the respondent No. 1/applicant does not state any reason why such application has been filed with so much enormous delay of 300 days. It is argued that already four years have been gone by since filing of the election petition and the application has been properly filed with enormous delay in order to frustrate the election petition to make it infructuous. Learned counsel for election petitioner, in support of her arguments, relied on the judgment of this Court in Dinesh Joshi vs. Govind Singh & Ors., 2012 (2) WLC (Raj.) 315.

Dr. Prakash Chandra Jain, learned counsel for the respondent, submitted that the application though delayed but has been filed with the purpose of producing necessary evidence before this Court so as to enable it to reach just and correct conclusion. Learned counsel referred to Sec. 87 of the Representation of the People Act, 1951 and argued that according thereto, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure under the Code of Civil Procedure, 1908, applicable to the trial of the suits and, therefore, provisions of Order XVI Rule 1 of the CPC, would apply to trial of election petition. In this connection learned counsel referred to Order XVI Rule 1A and argued that aforesaid provision provides that any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents. Therefore, the respondent No. 1 be permitted to bring her own witnesses except some of the important witnesses for which summons may be issued by this Court. In this connection, reliance has been placed on the judgment of this Court in Satnam Transport Company and Another Vs. Prakash Mal Surana, It is argued that in that case it was held by this Court that provisions of Order XVI Rule 1 of the CPC should be construed by the Courts liberally. The evidence should not be normally shut, unless the conduct of the parties is grossly negligent and there are serious laches on its part. Where the list of witnesses was not filed because the lawyer out of honest misconception of law believed that if the witnesses are brought and produced by the party, they will be examined by the Court, it must be treated as sufficient cause to permit defendant to examine witnesses, who were present in Court. The respondent No. 1-applicant has filed the affidavits on 11.02.2013 and produced the witnesses in the Court and prayed that they should be examined.

It was argued that even of-course the list cannot be said to have been filed with delay because the list was filed immediately after evidence of the petitioner was concluded.

Dr. Prakash Chandra Sharma, learned counsel for the respondent, argued that without summons of this Court, the official witnesses, namely, the Tehsildar, Bassi (Serial No. 2), Shri Rajeev Kumar, Sub Divisional Magistrate-II, Head Quarter, Office of Divisional Commissioner, Delhi (Serial No. 10) and Shri M.S. Vats, Sub Divisional Magistrate, Connaught Place, Delhi (Serial No. 13), whose presence would be very necessary to determine the caste status of the applicant, which is the bone of contention between the parties in the present case. Learned counsel submitted that those witnesses may even be examined on commission as per discretion available to this Court under Order XVI of the CPC. In this connection reliance has been placed on the judgment of this Court in Satnam Transport Company, supra, and argued that mere absence of list of witnesses would not be a ground to refuse a commission. Learned counsel referred to Order XVI Rule 7A of the CPC and argued that the Court may on application of any party for issue of a summon for the attendance of ''any person'', which indicates that such person may be even outside the list to be filed or filed with reference to Order XVI Rule 1. It is argued that this Court in Dinesh Joshi, supra, left the question whether the Court cannot on its own call a witness for examination with reference to its power under Order XVI Rule 1(3) open.

Dr. Prakash Chandra Jain, learned counsel for respondent No. 1/applicant, argued that since there are two Election petitions challenging the same election, in one of which reply has been recently filed and issues are yet to be framed, the same should be connected with present election petition in view of the provisions of Sec. 86(3) of the Act of 1951, so as to give opportunity to the respondent to produce his evidence.

Ms. Anita Agrawal, learned counsel for petitioner/non-applicant, appearing for petitioner/non-applicant opposed the application and argued that neither Rule 13 nor Rule 14 of the said Rules nor even the provisions of CPC provide for extension of period for filing of the list of witnesses. The provisions of the Limitation Act do not apply to the election petition as has been held by this Court in Shrilal Janva vs. Udairam Dhakad, 1981 RLW 37. The Supreme Court in AIR 1994 512 (SC) has also held that the provisions of Limitation Act are not application to the proceedings of an election petition. In any case, the respondent No. 1-applicant has not moved any application for condonation of delay nor assigned any reasons as to why list of witnesses has been filed with delay. It is argued that commission can only be issued in the circumstances mentioned in Order XXVI, which are that if a person is unable to attend the Court either on the ground of sickness or infirmity. Neither of the grounds exists in the present case, therefore, that provision cannot be applied here. Learned counsel relied on the judgment of the Supreme Court in F.A. Sapa Etc., Etc., Vs. Singora and others, and argued that the Supreme Court in that case held that our election law being statutory in character must be strictly complied with. In the list of witnesses, the respondent does not give gist of evidence which they propose to give. Various officials have been named by the respondent-applicant to prove certified copies of documents, which is unnecessary and unwarranted as presumption can be raised with regard to genuineness of such certified copies.

Ms. Anita Agrawal, learned counsel for petitioner/non-applicant, argued that another election petition was deliberately segregated by this Court because the respondent had been adopting delaying tactics. In fact the respondent avoided service in that election petition for quite a long time and when the notice along-with copy of the election petition was offered to the learned counsel appearing on her behalf in this election petition even then the learned counsel refused to accept the same, this Court therefore segregated two election petitions. Section 86(3) of the Act of 1951 gives a discretion to this Court to decide whether to try two election petitions simultaneously or separately. Once this discretion has once been lawfully exercised, both the election petitions not to be joined together because sole purpose of the respondent in asking so is to gain time and somehow frustrate the present election petition.

I have given my anxious consideration to rival submissions and perused the material on record.

I had an occasion to deal with similar issue, albeit in the contest of default on the part of the petitioner in not filing the list of witnesses in time in the case of Dinesh Joshi, supra. That was a case in which the petitioner in election petition did not file list of witnesses in time. It was decided that he shall produce his own witnesses. But, in that case, relying on the judgment of this Court in Narpat Ram Barwar vs. Shri Mohan Meghwal, RLW 1996 (1) Raj. 466, it was held that Rule 13, which was originally inserted as Rule 745-M in the Rajasthan High Court Rules, provided for a time limit of seven days. Neither Sec. 5 of the Limitation Act nor Sec. 151 of the CPC would be applicable in such a situation and the delay caused in filing of the list, cannot be condoned. No doubt, issue whether this Court can under sub-rule (3) of Rule (1) of Order XVI can on its own summon the witnesses was left open. But, in the present case, list of witnesses has been filed by the petitioner with delay of more than 300 days from framing of the issues. Three persons, namely, the Tehsildar, Bassi (Serial No. 2), Shri Rajeev Kumar, Sub Divisional Magistrate-II, Head Quarter, Office of Divisional Commissioner, Delhi (Serial No. 10) and Shri M.S. Vats, Sub Divisional Magistrate, Connaught Place, Delhi (Serial No. 13), for whom it is prayed by the respondent that they should be summoned by this Court and the purpose for their production of Tehsildar is given to prove the bona-fide resident certificate of Kanhaiya Lal dated 06.08.2007 i.e. the petitioner and not the respondent. Presence of Rajeev Kumar was sought by issuing letter dated 06.02.2009 and that of Shri M.S. Vats for issuing the letter dated 11.01.2010 in respect of reply given by him to Shri Ajay Bhardwaj, pursuant to his application under Right to Information Act. Official certificates or letters which they have issued them by itself may not be sufficient reason for this Court to summon them on its own because sub-Rule (3) of Rule (1) of Order XVI of the CPC postulates that for adopting such a course, the party shall have sufficient cause for the omission to mention the name of such witness in the said list. Sub-rule (3) therefore presupposes filing of list in time and omission of those names therefrom. Here in the present case, the situation is entirely different. No list is filed within the prescribed period of seven days as per Rule 13 of the High Court Rules and list filed with delay of 300 days after framing of the issues, containing the names of those three witnesses, can be taken to have been filed under that provision. This provision possibly therefore cannot be applied to the facts of the present case. Rule 13 of the said Rules is reproduced hereunder for the facility of reference,

Issues will then be settled and the election petition will be posted for hearing. Within seven days of the settlement of issues, parties shall file list of witnesses and pay the process-fees and the travelling allowance and the diet allowance for those of them who are required to be summoned. No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the above lists:

Provided that it will be in the discretion of the Judge to allow a party to produce witnesses in rebuttal not included in the list on such terms as he may deem fit to impose, if there are sufficient reasons to do so.

Coming now to the question whether a commission can be issued for examining those witnesses, it must be observed that such a preposterous plea is noted only to be rejected. The commission as per the provisions of Order XXVI of the CPC can be issued only if the person, who is sought to be examined on commission is either exempted under the Code or is unable to attend the Court because of sickness and infirmity. There is no such case here therefore this argument cannot be accepted.

Adverting now to the plea whether the petitioner can on its own produce the witnesses, reference may be made to the judgment of the Supreme Court in Mange Ram Vs. Brij Mohan and Others, which also arose out of an election dispute. The Supreme Court in that case held that underlying scheme under order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules is that after the Court frames issues and serves notice on the parties enabling them to determine, what evidence oral and documentary, they would like to lead, a party can act either in accordance with the Rule 1 or Rule 2 of Order XVI. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file list of witnesses with gist of evidence of witness in the Court as directed by sub-rule (2) of Rule (1) and make an application as provided by sub-rule (2) of Rule (1). But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1-A of Order XVI irrespective of the fact that whether name of such witness is mentioned in the list of witnesses or not and the Court has no jurisdiction to decline to examine such witnesses except on grounds set out in proviso to Sec. 87(1) of the Representation of the People Act, 1951. It was held that sub-rule (3) of Rule 1 and Rule 1-A operate in two different areas and cater to two different situations, and there is no conflict between the two. While Sub Rule (3) of Rule 1 confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him on its own under Rule 1-A. In such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) of Rule I to procure the presence of the witness, The Court may, if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) of Rule 1, still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise ordinarily the Court would not order for procuring the attendance of a witness, whose name is not shown in the list.

In the present case, as already discussed above, the respondents did not file the list of witnesses in time, therefore, there is no list filed within seven days but rather filed such list much after expiry of 300 days from the date of settlement of issues and therefore no such list as referred to in sub-rule (3) of Rule 1 of Order XVI of the CPC. There can thus be no case of omission of the name of witnesses from such list. Even otherwise also, the respondents have failed to show any reason whatsoever why it did not file a list within the time prescribed by law. Therefore, this Court though has requisite power to issue summons to witnesses not mentioned in the list but is not inclined to issue any such summon for their attendance as no case has been made out. However, to the extent the prayer of the respondent-applicant to produce her witnesses at her own, she has to be granted opportunity to produce such witnesses as she may desire to produce, subject to order that may be passed by this Court in view of proviso to Sec. 87(1) of the Representation of People Act, 1951.

The respondent in the list of witnesses has named as many as 44 persons as witnesses. The respondent has filed 23 affidavits of witnesses on one single day i.e. 11.02.2013. All affidavits are shown to have been attested on the same date. A perusal of all those affidavits shows that they are all verbatim and identical. The respondents have also produced certain persons on 12.02.2013, claiming them to be the witnesses, whose affidavits are so filed.

The Supreme Court on this aspect of the matter in the case of Mange Ram, supra, held that when the witness produced are by a party without assistance of the Court, the Court may decline the party to examine such witness only in view of the proviso to sub-sec. (1) of Sec. 87 of the Representation of the People Act, 1951. In order to examine the said proviso, Sec. 87(1) of the aforesaid Act with said proviso is reproduced herein for ready reference:--

Procedure before the High Court.--(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits;

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings,

The provisions of the Indian Evidence Act, 1872, (I of 1972) shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.

According to aforesaid proviso, if the Court is of the opinion that examination of witnesses is not material for decision of the petition or the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings of election petition, the Court shall have the discretion to refuse for reasons to be recorded in writing to examine such witness or witnesses.

We may, in this connection, refer to judgment of the Supreme Court in FA. Sapa, supra, held that our election law being statutory in character must be strictly complied with free from the influence by ever changing common law principles of justice and notions of equity. Para 15 of the aforesaid decision is reproduced herein,

It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election. law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds.

Reliance has been placed by the learned counsel for the respondent on the judgment of the Supreme Court in R.M. Seshadri Vs. G. Vasantha Pai, in which the Supreme Court after considering provisions of Order XVI Rule 14 of the CPC, held that if the Court was satisfied that a corrupt practice had in fact been perpetrated, may be by one side or the other, and it was absolutely necessary to find out who was the author of that corrupt practice, the Court has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved. But that was an altogether different facts situation and therefore this provision would not be applicable to the present case because the very opening of Rule 14 of Order XVI of the CPC provides that subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession. The opening word of Rule 14 of Order XVI thus clearly shows that it has been made subject to the provisions of the Code as to attendance and appearance, which would also include the provisions of Rule 1 and 1-A of the Order XVII of the CPC read with Rule 13 and 14 of the High Court Rules and therefore in the face of those specific Rules covering the field, Rule 14 of Order XVI of the C.P.C. would not apply to the present case.

This Court is of the opinion that permitting the respondent to produce wholesale number of witnesses, especially when already almost four years have gone by since the date of filing of the election petition and the remainder of the term of the respondent returned candidate is less than one year, would have the effect of further delaying the finalization of election petition and it is for this purpose that two election petitions were segregated because the respondent in both the election petitions, which have been found indulging in dealing with tactics in other election petitions, namely, Election Petition No. 4/2009, despite the specific orders passed by this Court, learned counsel appearing for the respondent refused to accept the summon and copy of the election petition. In those facts this Court has to pass detailed order on 17.05.2012 to segregated two election petitions. It is therefore not considered appropriate to now again combine trial of two election petitions because Sec. 86(3) of the Representation of People Act, 1951 confers discretion on this Court to decide whether or not to try two election petitions separately or together. For the same reason therefore this Court deems it appropriate to restrict number of witnesses to be produced by the respondent on his own to ten only and no more than that. Respondents are, therefore, directed to produce all ten witnesses on 4.03.2013 at 3.30 p.m. in the Court in order to get their statements recorded and, if their statements remain incomplete or are not recorded on that date, then respondents to produce them on further date fixed by the Court but conclude their statements positively in the month of March, 2013. Application is disposed of with the aforesaid direction.