Nima Tsering Khrime vs R.K. Khrimey

Manisana, J.—The operative portion of the order dated 18.9.1985 runs:

For the foregoing reasons, it is ordered that the issue Nos. 1, 2 and 3 shall be proved by affidavits (the affidavits of those important witnesses) and that the affidavits shall be read at the hearing as evidences subject to the provision under Order 19 of the Code (or its spirit) and the parties are directed to file their affidavits within a week from today. Let the matter be listed on 27.9.1985 for necessary orders. In the view of the matter, no order need be passed on the application for adjournment.

The Respondent has filed an application under Order 19, Rule 2, Code of Civil Procedure, to order the attendance of the deponents who have sworn affidavits in support of the Petitioner. The Petitioner has filed counter opposing the petition. The said order dated 18.9.1985 was passed in the light of the decision of the Supreme Court, in Khandesh SPG. and WVG. Mills Co. Ltd. Vs. The Rashtriya Girni Kamgar Sangh, Jalgaon,

In Khandesh Spinning v. Rashtriya Girni Kamgar Sangh (supra), the Supreme Court was construing Section 118 of the Bombay Industrial Relations Act, 1946 read together with Order 19, Code of Civil Procedure. Section 118 of the said Act confers on the Industrial Court the same powers as are vested in the Courts in respect of proof of facts by affidavits. In Khandesh Spinning (supra), the Supreme Court has held:

A combined effect of the relevant provisions is that ordinarily a fact has to be proved by oral evidence, but the Courts, subject to the conditions laid down in Order XIX, may ask a particular fact or facts to be proved by affidavits.

But the decision of the Supreme Court in Khandesh Spinning (supra) has been distinguished by a larger Bench, in State of Jammu and Kashmir Vs. Bakshi Ghulam Mohammad, In that case, the Supreme Court was construing Section 4(D) of the Jammu and Kashmir Commission and Enquiries Act, 1962. u/s 4(g) the Commission shall have the power of a Civil Court while trying a suit under the CPC in respect of receiving evidence on affidavits etc. The High Court has held that the power of the Commission to order a fact to be proved by affidavit ares object to the proviso to Order 19, Rule I of the Code and that the power cannot be exercised when a party desires the production of the persons swearing the affidavits for cross-examining them. The Supreme Court has reversed the decision of the High Court and has held that the Rules of Natural Justice require that a party against whom an allegation ii being inquired into should be given a bearing. The right of bearing does not include the right of cross-examination in the context of that case. The right of cross-examination must depend upon the circumstances of each case and also on the statute under which the allegations are being enquired into [See para 29].

The Supreme Court has further held:

It would appear, therefore, that Order 19, Rule l is intended as a sort of exception to the provisions contained in Order 18, Rule 4. The Act contains no provision similar to Order 18, Rule 4. Therefore, when Section 4(c) of the Act gave the Commission the power of receiving evidence on affidavits; it gave that as an independent power and not by way of an exception to the general rule of taking evidence viva voce in open Court. It would be natural in such circumstances to think that what the Act gave was only the power to take evidence by affidavit and did pot intend to be subject to the proviso contained in Order 19, Rule 1.

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We feel no doubt that the Act contemplated a quick disposal of the business before the Commission for, otherwise, the object behind it might have been defeated.

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The Commission would, of course, permit cross-examination in a case where it thinks that necessary....

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We also feel that the procedure before a body like the Commission has necessarily to be flexible.

The question which arises for consideration is how far the above observation of the Supreme Court will help in interpreting Section 87 of the R.P. Act together with Section 30 and Order 19 of Code of Civil Procedure. u/s 87, subject to the provisions of the R.P. Act and of any rules made there under, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits. The Supreme Court, in Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, has held:

This provision itself emphasises the fact that the whole of the CPC is not fully applicable. What the section provides is that the proceeding should be tried ''as nearly as may be'' according to the Code of Civil Procedure

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We are not prepared to hold that to strict the rules of pleadings prescribed by Order 8, Rule 3 of the Code may be blindly involved in election proceedings of this type.

(emphasis added )

u/s 86(7) of the R.P. Act, every election petition shall be tried as expeditiously as possible and endeavor shall be made to conclude the trial within 6(six) months from the date on which the election petition is presented to the High Court for trial.

In view of the discussion above, if the trial of the election petition is delayed the object behind it will be defeated and the procedure for trial of election petition has necessarily to be flexible consistent with the interests of justice, more particularly so, where the CPC is not wholly applicable. The Court would, of course, permit cross-examination in a case where it thinks that necessary. In addition to the above-discussion, the power of the Court under Order 19, Rule 2, Code of Civil Procedure, if it is applicable at all in the present case, is also discretionary. However, it is to be exercised judicially and not arbitrarily. In this view of the matter, the power of the Court is to be rarely exercised and the Court should not exercise such power unless it finds. It is necessary in the interests of justice.

The next question which arises for consideration is whether the deponents should be called for cross-examination by the Respondents. I have perused the pleadings of the parties. In the present case, the facts relating to the preliminary issues arc mainly of records as already observed in the previous order dated 18.9.85. The affidavits are for the purpose of linking materials on records. (sic) opportunity was also given to the Petitioner to file affidavits.

For the foregoing reasons, the petition is rejected. However, in the course of the hearing for decision on issue Nos. 1, 2 and 3, if it is found that it is necessary in the interests of justice to do so, any of the deponents may he called for cross examination.