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Judgment
V. Dhanapalan, J.—This Application has been filed by the applicant, who is the election petitioner, praying to recall and reopen the evidence
of C.W. 1 and to mark the documents listed in the Schedule to the Judge''s Summons. According to the applicant, he explained the alleged
malpractices committed by the first respondent during the 2009 Parliamentary election in the amended Election Petition and in the affidavit filed
along with the petition. The first respondent also filed his amended written statement and counter statement in the matter and, thereafter, the trial
has commenced.
On behalf of the applicant, nine witnesses have been examined including him as P.Ws. 1 to 9 and he has also marked Exs. P-1 to P-29. When
the matter stood thus, he took an application in O.A. No. 48 of 2013 in the Election Petition to issue subpoena to the then District Election
Officer/District Collector of Madurai Parliamentary Constituency, in short, ""the Returning Officer"", to produce certain documents and to authorise
an official to adduce oral evidence. This Court, by an order dated 13.03.2013, directed the issue of subpoena to the Returning Officer and posted
the matter for his examination on 27.03.2013. Thereafter, the Returning Officer was examined orally and through him seven documents were
marked as C.Ws. 1 to 7. This Court directed the Returning Officer to submit the entire records relating to the complaints received and action taken
on the various alleged malpractices and code violations by the first respondent during the 2009 Parliamentary election at Madurai. On 15.04.2013,
the Returning Officer produced the entire documents contained in 3 bound volumes before the Court.
On 25.06.2013, the counsel for the applicant filed a search memo before the cross-examination of R.W. 1 in the Registry of this Court and
perused the entire documents handed over by the Returning Officer to the Court. On a perusal of the said documents, the counsel came across
several discrepancies and malpractices committed by the first respondent and his men which had been taken note of by the Returning Officer and
also about certain vital documents which would go to prove the case against the first respondent. The Returning Officer has investigated the
complaints about the money distribution in covers while taking aarthy, distribution and seizures of sarees, distribution of tokens, the report
regarding the telecast during the kumbabhishekam, the complaint against the Public Relations Officer etc. The documents detailed in the schedule
to the Judge''s Summons are very much vital for proper adjudication of the Election Petition and the same are available only with the Returning
Officer. Unless the same are marked, this Court would not be in a position to get to the bottom of the case. Therefore, it is necessary to bring on
record the documents detailed in the schedule and to mark the same as court documents.
Hence, this application at the instance of the applicant/election petitioner.
The first/contesting respondent has filed a counter affidavit, stating as under:
6.1. The substituted petitioner in the election petition, by way of this application, cannot recall and reopen the evidence of C.W. 1 and to mark the
documents listed in the schedule, as they are not part of the original election petition. None of the documents referred to in the Schedule to the
Judge''s Summons has been referred to in the election petition and, at this stage, the said documents cannot be received and such procedure is
unknown to law. This respondent was not in a position to know the identity, veracity of the documents and further he had no opportunity to raise
his view about the documents in the counter statement filed by him.
6.2. There is no provision in law to recall and reopen the case of C.W. 1 after chief and cross-examination of all witnesses has been over and,
therefore, the question of recalling C.W. 1 is not possible, as the applicant had the opportunity to mark all the documents while examining C.W. 1,
when he was in Court.
6.3. The applicant had filed nearly 53 documents along with the original election petition to support the allegations levelled against this respondent
that he was involved in electoral malpractices, but no document filed till now proved his involvement or his indirect contribution in consonance with
his party men to get involved in such acts that might impede conduct of free and fair polls.
6.4. The Election Officer had been examined in depth and recalling of the said Officer will amount to starting the proceedings afresh and moreover
marking 20 documents through this witness as claimed in the Judge''s Summons will further delay the proceedings especially when the proceedings
are at the final stage. When there is a specific direction from the Hon''ble Supreme Court to expedite the proceedings and this Hon''ble Court, on
the directions of the Supreme Court, was conducting the trial of the election petition on a day to day basis, and when nearly 9 witnesses from the
side of the applicant have been examined and several documents marked through them, particularly when the cross-examination of the said
witnesses is also over, the applicant, who is the substituted petitioner, cannot keep collecting evidence when the original petitioner has already filed
and relied on certain set of documents. If this application is allowed and 20 documents are marked, the authors of the documents, the persons to
whom the documents are given and the persons who are retaining the documents at present will all need to be examined and some persons who
were holding the post earlier are transferred and some have retired from service. The substituted election petitioner cannot add any more
documents particularly when examination of witnesses is over and the election petition is posted for arguments. When there is a specific provision
in the Representation of People Act for filing the election petition with annexure, documents and the way of attestation and verification, the
applicant, cannot, now seek any remedy as prayed for in the present application. The substituted petitioner has to follow the procedure laid down
in the Act and the documents filed along with the election petition must be verified in the manner provided for by CPC in compliance of Section
83(2) of the Act. No fresh evidence is permissible after completion of trial in the election petition. If this application is allowed, it may lead to
further delay, as this respondent may have to recall the substituted petitioner and other PWs. as also further chief of respondent''s witnesses in
order to speak about the allegations levelled in the documents described in the Schedule. In such circumstances, the same will be like ""re-trial"" of
the case and the same is not permissible in law. Accordingly, he prayed for dismissal of the application.
Mr. M.S. Krishnan, learned Senior Counsel appearing for the applicant, would contend that on 25.06.2013, the counsel for the applicant filed a
search memo before the cross-examination of R.W. 1 in the Registry of this Court and perused the entire documents handed over by the Returning
Officer to the Court and, on a perusal of the said documents, the counsel came across several discrepancies and malpractices committed by the
first respondent and his men which had been taken note of by the Returning Officer and also about certain vital documents which would go to
prove the case against the first respondent. He would further contend that the Returning Officer has investigated the complaints about the money
distribution in covers while taking aarthy, distribution and seizures of sarees, distribution of tokens, the report regarding the telecast during the
kumbabhishekam, the complaint against the Public Relations Officer etc. and the documents detailed in the Schedule to the Judge''s Summons are
very much vital for proper adjudication of the Election Petition and the same are available only with the Returning Officer and, therefore, it is
necessary to bring on record the documents detailed in the schedule and to mark the same as court documents.
On the contra, Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the first respondent, would contend that examination of witnesses
on both sides is over; the proceedings in the Election Petition are at final stage; no fresh evidence is permissible after completion of trial in the
Election Petition and, if the application is allowed, it would only delay the proceedings and amount to re-trial.
Interestingly, in support of their contentions, both the learned Senior Counsel have relied upon a decision of the Supreme Court in K.K.
Velusamy Vs. N. Palanisamy,
I have heard the learned Senior Counsel for the parties on either side and also gone through the decision relied upon.
Before dealing with the application, it is pertinent to mention that the Supreme Court, by its order dated 16.08.2012, in SLP (Civil) No.
110/2012, has expected this High Court to conclude the trial of the election petition expeditiously. Pursuant to the said order of the Apex Court,
this Court is endeavouring to expedite the disposal of the election petition.
By this application, the materials sought to be marked as court documents are:
Communication, dated 22.04.2009, sent by Seetharaman, the then Madurai District Collector to Naresh Gupta, regarding the Meenakshi
Amman Kovil Kumbabhishekam live relay in local TV contained in Book No. II.
Communication dated 03.05.2009, issued by the then District Collector, Madurai District, to all candidates in Madurai Parliamentary
Constituency contained in Book No. V.
Reply Notice, dated 06.05.2009, by Pon Muthuramalingam the Chief Election Agent of the first respondent to District Collector, Madurai,
contained in Book No. V.
Communication, dated 02.05.2009, from Seetharaman, the District Election Officer, to Inspector General of Police and Superintendent of
Police, Madurai, regarding the distribution of money contained in Book No. V.
Letter, dated 03.05.2009, from Seetharaman, District Election Officer to Naresh Gupta, regarding the distribution of money contained in Book
No. V.
Communication, dated 06.05.2009, from Chandramohan to District Collector, regarding seizure of sarees from Jaihindpuram contained in Book
No. V.
Communication, dated 06.05.2009, regarding the distribution of sarees contained in Book No. V.
Communication, dated 07.05.2009, from Seetharaman, District Collector, to Election Observers contained in Book No. V.
Letter, dated 09.05.2009, from Seetharaman, District Election Officer, to Tapas Kumar regarding the amount seized during election contained
in Book No. V.
Report, dated 07.05.2009, submitted by Village Administrative Officer for misconduct contained in Book No. V.
Letter, dated 14.04.2009, from Jaykumar, Assistant Election Officer, to District Collector, regarding distribution of tokens contained in Book
No. III.
Communication, dated 14.04.2009, from Sirajudeen (Tahsildar) to Assistant Election Officer, regarding performance of aarthy contained in
Book No. III.
Communication, dated 24.04.2009, from Superintendent of Police, Madurai District, to the Returning Officer, regarding distribution of
pamphlets, tokens and printed cards contained in Book No. III.
Communication, dated 01.05.2009, from D.S. Sukumar, the Special Deputy Collector to District Collector, regarding the distribution of
tokens and printed cards.
Communication, dated 18.04.2009, from Veera Raghavan, Assistant Collector to Editor Theekathir, regarding the proceedings of P.R.O.,
Madurai, contained in Book No. III.
Communication, dated 19.04.2009, from Saravanan, regarding the complaint against certain proceedings of PRO, Madurai, to Assistant
Collector, regarding press clippings contained in Book No. III.
Communication, dated 19.04.2009, from Veera Raghavan to District Collector, regarding the complaint against the PRO, Madurai, contained
in Book No. III.
Proceedings, dated 29.04.2009, of Public Relations Officer, Madurai, contained in Book No. III.
Communication, dated 30.04.2009, from Collector to Naresh Gupta, regarding the complaints against PRO, Madurai, contained in book No.
III.
Communication, dated 22.04.2009, from Chandramohan Tahsildar to District Collector, distributing tokens containing the photo of
Karunanithi contained in Book No. III.
At this point, the only question that arises for consideration is, whether this application for recalling and reopening the evidence of C.W. 1 to
mark the documents listed in the Schedule to Judge''s Summons is maintainable?
For deciding the above question, the relevant provisions for considerations are : Order XIV Rule 8, Order XVI Rule 7, Order XVII Rules 7
and 8 of Madras High Court Original Side Rules and Rule 3 of Madras High Court Election Petition Rules and Order 18 Rule 17 and Section 151
of the Code of Civil Procedure. The said provisions read as under:
14.1. Order XIV Rule 8 of Madras High Court O.S. Rules:
R.8. All applications other than those mentioned in Rule 10 infra shall be disposed of by a Judge; Provided that a Judge may refer any matter
brought before him under this rule to a Division Bench.
14.2 Order XVI Rule 7 of Madras High Court O.S. Rules:
An application for the production of records either in the custody of another Court or of other officers shall be made to the Master supported by
an affidavit of the party at whose instance such application is made setting out : (1) the document or documents the production of which is required;
(2) the relevancy of the document or documents; and (3) in cases where the production of a certified copy would answer the purpose, whether
application was made to the proper officer for a certified copy and the result of such application.
14.3. Order XVII Rules 7 and 8 of Madras High Court O.S. Rules:
R.7. Notwithstanding anything contained in Rule 6, the Court may for sufficient reasons direct any party to examine any witness in any stage of the
suit.
R.8. Every document proved or admitted shall immediately be endorsed with the following particulars viz., (1) number and title of the suit; (2) the
person producing the document; (3) the date on which it was produced and (4) the person for whom it was marked, and shall be signed or
initialled by the officer appointed for the purpose. The document shall then be filed as part of the record (Form No. 25).
14.4. Rule 3 of Madras High Court Election Petition Rules:
R.3. Every application in respect of an Election Petition shall be by Judge''s summons.
14.5. Order 18 Rule 17 of C.P.C.:
Court may recall and examine witnesses : The Court may at any stage of a suit recall any witness who has been examined and may (subject to the
law of evidence for the time being in force) put such questions to him as it thinks fit.
14.6. Section 151 of C.P.C.:
Saving of inherent powers of Court- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make
such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Order 18 Rule 17 of the CPC enables the Court, at any stage of a suit, to recall any witness who has been examined, subject to the law of
evidence for the time being in force, and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be
exercised by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the Court to exercise the said
power. The power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts it may have in
regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has
already been examined.
The said provision Order 18 Rule 17 is not a provision intended to enable the parties to recall any witnesses for their further examination-in-
chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. It is
primarily a provision enabling the Court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so
that the Court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the
parties to assist it by putting some questions.
Section 151 C.P.C. provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make
such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. In the absence of any provision
providing for further examination or cross-examination, for purposes other than securing clarification required by the Court, the inherent power u/s
151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further
examination. This inherent power of the Court is not affected by the express power conferred upon the Court under Order 18 Rule 17 of the Code
to recall any witness to enable the Court to put such question to elicit any clarifications.
Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been
explained by the Supreme Court in several decisions, as below:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on Courts. It merely recognises the discretionary
power inherent in every Court as a necessary corollary for rendering justice in accordance with law, to do what is right and undo what is wrong,
that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover
any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth
of such power is coextensive with the need to exercise such power on the facts and circumstances.
(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains
provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the
power of the Court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across
the powers conferred by the Code or in a manner inconsistent with such provisions. In other words, the Court cannot make use of the special
provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the Court being complementary to the powers specifically conferred, a Court is free to exercise them for the purposes
mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers
would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the Court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation
and the exercise of power depends upon the discretion and wisdom of the Court, and in the facts and circumstances of the case. The absence of
an express provision in the Code and the recognition and saving of the inherent power of a Court should not, however, be treated as a carte
blanche to grant any relief.
(f) The power u/s 151 will have to be used with circumspection and care only, where it is absolutely necessary, when there is no provision in the
Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to
prevent abuse of process of Court.
Earlier, the Code had a specific provision in Order 18 Rule 17-A for production of evidence not previously known or the evidence which
could not be produced despite due diligence. It enabled the Court to permit a party to produce any evidence even at a later stage, after the
conclusion of his evidence if he satisfied the Court that even after the exercise of due diligence, the evidence was not within his knowledge and
could not be produced by him when he was leading the evidence. That provision was deleted with effect from 01-07-2002. However, the deletion
of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended
structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of
evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the
proceedings under the pretext of discovery of new evidence.
The amended provisions of the Code contemplate and expect a trial Court to hear the arguments immediately after the completion of evidence
and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness
or for recalling any witness for further examination. But, if there is a time gap between the completion of evidence and hearing of the arguments, for
whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands on earlier, or some evidence
in regard to the conduct or action of the other party comes into existence, the Court may, in exercise of its inherent power u/s 151 of the Code,
permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the Court may deem fit to
impose.
To be cautious, the power u/s 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it
will defeat the very purpose of various amendments to the Code to expedite trials. But, where the application is found to be bona fide and where
the additional evidence, oral or documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering justice, and the
Court is satisfied that non-production earlier was for valid and sufficient reasons, the Court may exercise its discretion to recall the witnesses or
permit the fresh evidence. But, if it does so, it should ensure that the process does not become a protracting tactic. This is the law laid down by the
Supreme Court in the case of K.K. Velusamy, relied upon by the learned Senior Counsel for both the parties. In the said case, the Supreme Court
has discussed its earlier decision in the case of Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate,
The cardinal principle under Order 18 Rule 17 CPC for reopening and recalling the evidence has been interpreted by the Supreme Court many
a time. When Order 18 Rule 17 is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or
cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded, but it is
primarily a provision enabling the Court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so
that the Court itself can put questions and elicit answers coupled with the fact that once a witness is recalled for purposes of such clarification, it
may, of course, permit the parties to assist it by putting some questions, it is not for any party to make an application for recalling a witness to
reopen the evidence at the stage of conclusion of the trial.
In the instant case, the evidences of both sides have been concluded and, at this stage, the applicant has filed this application for recalling C.W.
1, in order to examine and mark certain documents. The provisions in the Madras High Court Original Side Rules relied upon by the learned
Senior Counsel for the applicant are not of much relevance and hence they are not discussed.
Section 86 of the Representation of the People Act, 1951, deals with the trial of election petitions. As per sub-section (6), the trial of an
election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its
conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. Under
sub-section (7), every election petition has to be tried as expeditiously as possible and endeavour has to be made to conclude the trial within six
months from the date on which the election petition is presented to the High Court for trial.
When the legislature has intended for expedition of the trial and disposal of any election petition within six months, the present Election Petition
having been of the year 2009 and the tenure of the 15th Lok Sabha is also coming to an end within a fewer months, with utmost caution, in order
to achieve the very object of the provisions of the Representation of the People Act, this Court has taken all endeavours to dispose of the matter at
the earliest, by granting necessary periodical adjournments for the reasons recorded, and has brought the election petition to the final stage of trial.
In the given situation, if the application is allowed and the witness is recalled as sought for by the applicant, it will only defeat the very object and
scheme of the Act and the principle enunciated by the Supreme Court in a catena of decisions. Moreover, the first respondent/returned candidate
is ready to proceed with and conclude the matter. When that be so, it is unfortunate for the applicant/election petitioner to come with this
application to reopen the evidence. Therefore, in the considered opinion of this Court, this application to recall and reopen the evidence of C.W. 1
and to mark the documents cannot be maintained at this belated stage of conclusion of trial. Application is dismissed. No costs.