Gauhati High Court
Sri Gadam Ete vs Smti. Duter Padu on 20 April, 2011
Author: P. K. Musahary
Bench: P. K. Musahary
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA,
MIZORAM & ARUNACHAL PRADESH)
ITANAGAR BENCH.
MC (E.P) NO. 01 (AP)/2011
IN
ELECTION PETITION 0 1 (AP)/ 2010
SRI GADAM ETE,
Son of Sri Binga Ete,
Resident of Village-Darka,
PO & PS - Aalo, District- West Saing,
Arunachal Pradesh.
.......Applicant/Respondent, in
Election Petition.
By Advocates:
Mr. S.S. Dey, Mr.H. Tangu.
-Versus-
SMTI. DUTER PADU, Wife of Sri Geyum Padu, Resident of Village- Darka, PO & PS- Aalo, District-West Siang, Arunachal Pradesh.
.............Respondent/ Election Petitioner.
By Advocates:
Mr. K. Ete, Mr. D. Padu.
BEFORE
THE HON'BLE MR. JUSTICE P. K. MUSAHARY
Date of hearing : 31-03-.2011
Date of Judgment & Order: 20 -04-2011
2
JUDGMENT & ORDER
(CAV)
Heard Mr. S. S. Dey, learned counsel for the applicant and also heard Mr. K. Ete, learned counsel, appearing for and on behalf of the respondent.
2. Applicant is the returned candidate. He files this application seeking leave of this Court to file the list of witnesses after completion of examination of witnesses of the election petitioner so as to ensure that his witnesses can not be influenced in any manner "by the election petitioner and also to avoid submission of irrelevant witnesses". This prayer has seriously been objected to by the respondent/election petitioner by filing an affidavit-in-opposition saying, amongst other, that such prayer of the applicant is not only wholly misconceived but also in direct conflict with the provisions of law.
3. Mr. Dey, learned counsel for the applicant submits that, under Order XVI Rule 1 of the Code of Civil Procedure, 1908, the party can submit the list of witnesses at a later stage and it is not mandatory that it should be submitted before 15 days after the date on which the issues are settled. In other words, he contends that the parties are not mandatorily required to submit the list of witnesses within 15 days from the date of settlement of issues by the Court. Countering his submissions, Mr. Ete, learned counsel appearing for respondent/election petitioner submits that the parties are compulsorily required to furnish the list of witnesses before 15 days of the settlement of issues and under no circumstances, the applicant/returned candidate could be permitted to file his list of witnesses after examination of the 3 witnesses of the respondent/election petitioner. Moreover, he submits that filing of the list of witnesses cannot be deferred to on the assumed ground that the applicant's witnesses could be influenced. He has also gone to the extent that if either of the parties fails to present their list of witnesses on the date fixed by the Court after the settlement of the issued, then, the consequence under the law would automatically follow and the defaulting party would not be eligible either to call in such witnesses nor ask for production of documents on which the party wants to rely upon through such witnesses.
4. The Representation of People Act, 1950 (hereinafter referred to as "the RP Act" only) is a self contained special Act and under Chapter III in Part-IV, the procedure for trial of election petitions has been laid down. The trial of election petitions is to be conducted as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure. It is necessary to refer to and reproduce Section 87 of the RP Act, as under:
"87. Procedure before the High Court- (1) Subject to the provision 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 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 4 witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of any election petition."
As the provision under CPC is to be followed as nearly as possible, the Election Tribunal is to follow the procedure laid down under Order XVI of the CPC for summoning and securing attendance of witnesses. There is no dispute raised by the parties in regard to the applicability of procedure laid down under Order XVI of the CPC to trial of election petition. The real dispute between the parties is restricted only to filing of the list of witnesses and precisely as to whether the respondent, in the election case, has the liberty to file list of witnesses after the examination of witnesses of the election petitioner has been closed.
5. To examine and decide the said question, it needs closure scrutiny of the provision made under Order XVI of the CPC. It is necessary to refer and produce the same as under:
"1. List of witnesses and summons to witnesses- (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.5
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be
recorded, permit a party to call, whether by
summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule(1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule(2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule(1), 1A. Production of witnesses without summons-
Subject to the provisions of sub-rule(3) of rule 1, any party to the suit may, without applying for summons under Rule 1, being any witness to give evidence or to produce documents."
Be it mentioned here that the issues have already been framed on 01.03.2011 but the election case could not be proceeded due to pendency of one SLP.
6. First of all, let me refer to sub-rule 1(1) of Rule 1 Order XVI. It requires the parties to submit list of witnesses not later than 15 days after the date on which issues are settled. Either of 6 the parties to the election case would like to examine his/her witnesses during trial. There may be two types of witnesses for the parties. In one set, the witnesses may be available readily for examination as and when required by the party. In other set, the witnesses are not readily available and he would require formal issuance of summons by the Court for their appearance to give evidence. In the later set of witnesses, the party, who wants to examine them as witnesses, has to take the assistance of the Court by way of issuing summons to them and in such a case, such party is required to furnish a list of witnesses in advance before fixing a date for evidence. The filing of such advance list is necessary to save the time because issuance of summons and serving the summons upon the witnesses by the Court is a time consuming process and much time cannot be spent on it inasmuch as the trial of election petition, so far as is practicable consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded under Section 86 (6) and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented as provided under Section 86(7) of the R.P. Act. And as soon as the Court fixes a date for recording evidence, the summons would be issued indicating the date fixed for evidence requiring such witnesses to appear on that date. For the purpose of ensuring attendance of any person before the Court as witness, a party desirous to examine him as witnesses should make an application stating therein the purpose for which the witness is proposed to be summoned under sub-rule (2) of Rule 1. Filing of list of witnesses, therefore, is, mandatory only if 7 the parties want to have the presence of some witnesses in their favour with the assistance of the Court through summons issued/served upon such witnesses.
7. The other set of witnesses in respect of whom the parties are sure that they could be produced by himself, no such list is required to be filed in advance and they can produce such witnesses before the Court on the date fixed for evidence. For this, the parties would be required to file a hazira (attendance) of the witnesses present in the Court before the proceeding starts. The enabling provision is Rule 1A under Order XVI of the CPC. Situation may arise that the parties to the election case feel necessary to call some more witness/witnesses apart from those persons named in the list of witnesses and they could be produced only through summons of the Court and their names could not be included in the list through oversight or by mistake but their evidence is required to be recorded. To meet this contingent situation, sub-rule(3) of Rule 1 CPC has been provided requiring the parties to make application showing sufficient cause for the omission in mentioning the names of such persons in the list of witnesses and the summons could be issued by the Court, if it is satisfied with the causes shown in the reasons recorded by the Court.
8. Reference may be made to Mange Ram Vs. Brij Mohan & Ors., reported in (1983) 4 SCC 36. In that case, an application was filed by the election petitioner after framing of the issues seeking permission to produce and examine witnesses, whose names were set out in the application and it was averred in the application that the names of the witnesses, whom he desires to produce are 8 already mentioned in the appropriate paragraphs of the writ petition and that the petitioner would keep the witnesses present. The learned Judge, trying the election case, passed an order to the effect that as and when witnesses are produced, an appropriate orders would be passed determining whether the witnesses could or could not be produced but in the meantime, the evidence of the election petitioner was being recorded. Then only election petitioner submitted a list of witnesses intimating the Court that he desires to examine them. It was objected by the returned candidate. It was held therein that party can himself produce witnesses on the date of hearing without soliciting Court's assistance for procuring presence of such witnesses and the Court has no jurisdiction to refuse to examine those witnesses on ground of non-mention of names and gist of evidence of such witnesses. It was also held that refusal to examine the witnesses can be justified only under proviso to Section 87 of the RP Act. Discussing various aspect of the matter, it was held by the Apex Court in paragraph 8 as under:
"8. Sub-rule (1) of Rule 1 of Order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Sub-rule (2) requires that the parties seeking the assistance of the court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is proposed to be summoned. Sub-rule(3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted in sub-rule(1), if 9 such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1-A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of Order XVI. If a reference to Rule 22 of the High Court Rules is recalled at this stage, it merely reenacts sub-rule (1) and sub-rule (2) of Rule 1 of Order XVI."
9. The said decision has been followed in Vidhyadhar Vs. Manikrao and Anr., reported in (1999) 3 SCC 573, wherein it has been held that a party may bring witnesses even without applying for court summons but leave of the court has to be obtained before proceeding to examine such witnesses. For better appreciation, the operative portion of the reasoning of the Apex Court under paragraph-31 is reproduced as under:
"31. These two Rules read together clearly indicate that it is open to a party to summon the witnesses to the court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the court, it may allow the party to produce a witness though he may not have been summoned through the court. Rule 1-A which was introduced by the Code of Civil Procedure (Amendment) Act,1976 with effect from 1-2-1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may being any witness to give evidence or to produce documents. Since this Rule 10 is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the court may be necessary but this by itself will not mean that Rule 1-A was in derogation of sub-rule (3) of Rule 1. ....... ........ ......
........ ....... " .
10. There is a decision by the Andra Pradesh High Court to the effect that filing of list of witnesses within 15 days is not mandatory and summons could be issued to persons to be examined as witnesses even in cases where no list of witnesses was filed and if the Court is satisfied with a reasons given by the party for the delay, summons could be issued to witnesses for which heavy cost can be imposed on the party seeking such relief.
It was so rendered in N. Balraju Vs. G. Vidhyadhar, reported in AIR 2004 AP 516.
11. A reference may be made to another case rendered by Chatisgarh High Court in Minor Dipika Vs. C.G. State Electricity Board, AIR 2007 CHH 1, wherein it has been held that the object of legislature in introducing Rule 1 and Rule 1A appears to be speedy disposal of the case and it does not appear to be the object beyond Rule-1 to deprive a party to examine witnesses, if he has failed to submit the list of witnesses and the Court has power to grant permission to call witnesses on showing sufficient cause.
12. On the basis of above discussion and in the light of the decisions of the Apex Court as well as some High Courts as referred to above, it may be concluded that filing of the list of 11 witnesses is compulsory in respect of witnesses, whom the party wants to produce through assistance of the Court by issuing summons and examine such witness during trial. There is no such provision that list of such witnesses must be filed before the Court in advance, before a date is fixed for recording evidence so that the summons could be issued upon the witnesses for their appearance on the date fixed for evidence. There is also no such provision that the list of such witnesses to be summoned by the Court should be filed within 15 days from the date of framing of issues. The respondent in the election petition would be called upon to adduce evidence of himself and his witnesses only after closure of evidence of the election petitioner and as such, it would not be proper and justified to compel the respondent in the election case to submit the list of witnesses, both in respect of the witnesses whom he would produce by himself, as well as the witnesses whom he intends to produce through summons of the Court, at this stage when the date for evidence of witnesses of the election petitioner is yet to be fixed and the process for recording evidence is yet to be started.
13. I find no reason for not allowing the applicant/returned candidate, respondent in the election petition, to give the liberty of submitting his list of witnesses at a subsequent stage during the stage for recording of witness of the election petitioner but before closing of evidence of her witness. The present applicant, in my considered view, has been able to make out a case for granting leave for filing his list of witnesses during the process of recording of the evidence but before conclusion of the evidence of the election petitioner. For this the Respondent in the election petition would be required to file a 12 petition/ requisition indicating the names of witnesses in respect of whom, summons should be issued for their attendance.
14. It is made clear that if the present applicant/returned candidate fails to submit the list of witnesses required to be summoned by the Court well in advance before closure of the evidence of the election petitioner, he would be required to file an application for summoning the witnesses, he desires to examine with necessary explanations/reasons to the satisfaction of the Court under Sub-rule (3) of Rule-1 of Order XVI of the CPC.
15. The application stands allowed. No costs.
JUDGE sd