Madhya Pradesh High Court
Subhash Kumar Sojatia vs Devilal Dhakad on 15 June, 2022
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ELECTION PETITION No. 1 of 2019
(Subhash Kumar Sojatia Vs. Devilal Dhakad & others )
Date: 15.06.2022
Shri Mudit Maheshwari, learned counsel for the petitioner.
Shri Rohit Kumar Mangal and Ms. Manjula Mukati, learned counsel
for the respondent No.1.
This order will dispose off I.A. No.3226/2022, an application under Order 6 Rule 2(3) r/w Section 151 of "Code of Civil Procedure 1908" r/w Section 87 of "The Representation of the People Act, 1951" and I.A. No.3229/2022, an application under Order 47 Rule 1 r/w Section 151 of "Code of Civil Procedure, 1908" r/w Article 215 of "The Constitution of India" r/w Section 87 of "The Representation of People Act", seeking review of the order dated 03.03.2020. Both the aforesaid I.A's have been filed on behalf of respondent No.1.
Firstly, I consider I.A. No.3226/2022, an application under Order 6 Rule 2(3) r/w Section 151 of "Code of Civil Procedure, 1908", which is hereinafter referred as "CPC, 1908" r/w Section 87 of "The Representation of the People Act, 1951", which is hereinafter referred as "The Act of 1951".
It is stated in the application that in the year 1976, Order 6 Rule 2 of "CPC, 1908" was substituted and amended w.e.f. 01.02.1977 and provides mandatory provisions that every pleadings which contains dates, sums and
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numbers which has been expressed in figure shall also be expressed in words, since the provision of Order 6 Rule 2 (3) of "CPC, 1908" is mandatory in nature, therefore, it has to be complied with in true and proper spirit and in absence thereof, the pleadings made by the petitioner expressing the dates, sums and numbers deserves to be struck off and since, the petitioner has not complied with the mandatory provision of Order 6 Rule 2(3) of "CPC, 1908" and the averments made in the petition memo with regard to date, sum and numbers has not been mentioned in figures, therefore, such part of pleadings in the petition memo deserves to be struck off/deleted. It is also mentioned that Section 87 of "The Act of 1951"
specifically provides the applicability of "CPC, 1908", therefore, mandatory provisions of "CPC, 1908" should be followed and prayed that the application may kindly be allowed and the pleadings in the petition memo which contains dates, sums and numbers and which were not written in words may be struck off/deleted. In support of the application, the respondent No.1 has filed his own affidavit.
In reply filed on behalf of the the petitioner to I.A. No.3226/2022, it is stated that the provisions of Order 6 Rule 2(3) of "CPC, 1908" are not mandatory but procedural. Non-compliance of the same is not fatal to the trial of an election petition. The defect, if any, as alleged by respondent No.1 is curable in nature. Reliance has been placed on Vidyawati Gupta Vs. Bhakti Hari Nayak & Ors., (2006)) 2 SCC 777 . It is also stated that the respondent No.1 at this stage is seeking deletion of certain pleadings of the election petition which has been admitted by the respondent No.1 in its reply to the election petition. It is also submitted that Section 87 of "The Act of 1951", stipulates that election petition is to be tried "as nearly as
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may be" in accordance with the provisions of "CPC, 1908" and thus, provisions of "CPC, 1908" cannot be said to be applicable fully.
It is also stated that the contents of an election petition must comply with Section 81 to 83 of "The Act of 1951". Order 6 of "CPC, 1908" has not been made specifically applicable to Section 83 of "The Act of 1951"
and Section 87 of "The Act of 1951" is applicable only to trial of an election petition and not for the pleadings, non-compliance of the same in the reply filed by the respondent No.1 is an admission to the fact that Order 6 Rule 2(3) of "CPC, 1908" is not applicable to the election petition. Further, respondent No.1 has also not mentioned any of the dates/figures in words in their reply, which is an admission of respondent No.1 to the proposition stated herein. Section 83 of "The Act of 1951" specifically stipulates the contents of election petition. It is also stated that the respondent No.1 has filed this application with intent to delay the trial of the election petition and it is an abuse of process of law and the present objection has been raised after a substantial delay of more than 3 years. No explanation has been given as to why this objection is being taken at such belated stage, therefore, prayed to dismiss the application with cost. In support of the reply, the petitioner- Subhash Kumar Sojatia has filed his own affidavit.
I have considered the pleadings of the parties, submissions advanced by the learned counsel of petitioner and respondent No.1 and perused the record, which reveals that petitioner as well as respondent No.1 have not complied with the provisions of Order 6 Rule 2(3) of "CPC, 1908" in the petition and reply filed on behalf of respondent No.1.
The election petition was filed on 17.01.2019 and reply of the
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election petition was filed on behalf of respondent No.1 on date 13.08.2019 and even other respondent Nos.2, 3 and 7 on behalf of whom reply was filed, have not complied with the provisions of Order 6 Rule 2(3) of "CPC, 1908" and no objection was raised earlier and that type of objection firstly raised on 09.05.2022 by respondent No.1 through I.A. No.3226/2022, after about 3 years and 4 months from the date of filing of the election petition.
"Section 87 of "The Act of 1951" provides that :-
(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.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respect to the trial of an election petition.
So, as per the Section 87 (1) of "The Act of 1951", in trial of election petition, the provisions of "CPC, 1908" will not be fully applicable but those provision of "CPC, 1908" will be applicable which provides for trial of suits "as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908).
"Section 83 of "The Act of 1951" provides that :-
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(1) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.] So, Section 83 of "The Act of 1951" specifically provides the contents which must be pleaded in the election petition and the manner in which they are prepared, verified and signed. So, the provisions of Order 6 of "CPC, 1908" which will be applicable on election petitions are specifically provided under Section 83 of "The Act of 1951".
Therefore, this Court is of the view that the provision of Order 6 Rule 2(3) of "CPC, 1908" is not mandatory in nature for election petition and also not barred for election petition. Therefore, to avoid such further dispute based on this technicality, it is directed to the petitioner, respondent No.1 as well as other respondents, who have filed the reply under this election
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petition and participating in the case, that they do the needful to comply with the provisions of Order 6 Rule 2(3) of "CPC, 1908" in accordance with law before the next date of hearing. Thereby, I.A. No.3226/2022 stands disposed off.
Now, I consider I.A. No.3229/2022 an application under Order 47 Rule 1 r/w Section 151 of CPC r/w Article 215 of the Constitution of India r/w Section 87 of "The Act, 1951". It is stated in the aforesaid application that the petitioner has filed an application under Order 7 Rule 14 of "CPC, 1908" (I.A. No.1685/2020) seeking relief for taking CD/DVD along with certificate under Section 65B of Indian Evidence Act for taking on records. The respondent No.1 has submitted reply to that application and also filed an application under Section 151 of "CPC, 1908" r/w Section 138 of Indian Evidence Act, 1872 (I.A. No.1651/2020) stating that complete examination-in-chief of PW-1 has to be recorded. Vide order dated 03.03.2020, this Hon'ble Court has dismissed the I.A. No.1651/2020 by holding that the application is filed on apprehension and chief examination of the witness can be deferred. It is also stated that Section 138 of Indian Evidence Act specifically provides that re-examination can be made with prior permission of the court after satisfaction of the requirement of Section 138 of Indian Evidence Act. In the present case, while passing the order dated 03.03.2020, this Hon'ble Court has granted liberty for re-examination of PW-1 is an error apparent on the face of the record, because question of re-examination can be very well determined at the time of completing the cross examination and liberty for cross-examination cannot be granted well in advance otherwise the purpose of introducing Section 138 of the Indian Evidence Act would be frustrated and the witness would be in a position to
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fill up the lacuna and this process would be an endless process, therefore, the permission granted by this Hon'ble Court for further chief-examination in the shape of re-examination is not permissible in law and it is an error apparent on the face of the record which deserves to be corrected under Order 47 Rule 1 of "CPC, 1908" and under Article 215 of the Constitution of India. So prayed to allow the application and order dated 03.03.2020 may kindly be recalled and liberty to further chief-examination be withdrawn. In support of the application, respondent No.1 has filed his own affidavit. Learned counsel for the respondent No.1 has placed reliance upon BCCI Vs. Netaji Cricket Club, 2005 (4) SCC 741.
The petitioner has filed reply to I.A. No.3229/2022 and submitted that application for review of the Order 47 Rule 1 "CPC, 1908" is maintainable only if:- (i) Discovery of new and important matter or evidence which after the exercise of due diligence was not within knowledge of the petitioner or could not be produced by him. (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. It is also submitted that bare perusal of the instant application filed by the respondent No.1 would show that none of the conditions stipulated in Order 47 Rule 1 of "CPC, 1908" is satisfied, therefore, the present application deserves to be dismissed and order dated 03.03.2020 has been passed after due consideration of the legal provisions and there is no error apparent on the face of the record which may give rise to review petition. It is also stated that the respondent No.1 is seeking review of the order dated 03.03.2020 on the wrong pretext - that chief-examination of PW-1 has not been concluded. This is nothing but an attempt to any how avoid the cross- examination of the election petition. Vide order dated 13.02.2020, this
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Hon'ble Court has categorically observed that the examination-in-chief of the PW-1 has been concluded and the matter was thereafter fixed for "Cross Examination" and re-examination of PW-1, if required. Once the case has been fixed and Cross-Examination has begun, the case cannot be taken back step by fixing the case again at the stage of "Chief Examination". The limitation period to seek review or to challenge order dated 13.02.2020 has undoubtedly expired and therefore, the order darted 13.02.2020 has attained finality. The relief sought by respondent No.1 cannot be granted unless the order dated 13.02.2020 is reviewed/modified/set aside. Thus, the present application deserves to be dismissed with heavy cost.
I have considered the arguments advanced by the learned counsel for the parties, perused the records and the order dated 03.03.2020 of this Court. It reveals from the record that the chief-examination of the petitioner was recorded on 13.02.2020 and during the chief examination of PW-1, when the witness was intent to exhibit the CD as article A-1, it was found that the CD was in broken condition, and it is not possible to run the CD to see the contents of the same. At that point, the counsel for the petitioner prayed that the original CD was in possession of the District election officer and a copy may be prepared and produced before the court, which will take time, in that situation, chief examination of PW1 was deferred as mentioned in the statement sheet after para no. 9 but at the same time, examination of PW1 was continued as para no.10 and after the chief examination was completed and cross-examination on behalf of respondent no.1 was going to start, but due to inability of witness to continue to depose the statement because he expressed that he was not in a position to stand continue in the Court, the cross-examination and re-examination of PW1 was deferred till
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the next date of hearing.
On the next date of hearing i.e. 27/02/2020, an application IA No. 1685/2020 under Order 7 Rule 14(3 ) read with Section 151 of "CPC, 1908" was filed on behalf of the petitioner and an application I.A. No.1651/2020 under Section 151 of "CPC, 1908" read with Section 138 of Evidence Act was filed on behalf of respondent no.1. Both the applications were decided vide order dated 03/03/2020 and IA no 1685/2020 under Order 7 Rule 14(3) read with Section 151 of "CPC, 1908" was allowed and IA No.1651/2020 under Section 151 of "CPC, 1908" read with Section 138 of Evidence Act was rejected stating in para 6, which is reproduced as below:-
"6. It is clear from the aforesaid Section that witness shall be first examination-in-chief then cross-examination and then re-examination. It appears that the respondent No.1 has filed an application on apprehension that after giving evidence on the CD/DVD at the stage of re-examination, he may not get an opportunity to cross-examination. Aforesaid apprehension is baseless and not supported by any law. The examination-in- chief on the point of CD/DVD has been deferred and after cross-examination if re-examination is done on the CD/DVD then certainly the defendant No.1 shall get right to further cross- examine the PW-1 on that limited part of the evidence. Hence, the application is rejected."
Normally examination of a witness is carried out as per Section 138 of the Evidence Act but the proceeding dated 27/02/2020 shows that for early disposal of the election petition, there an attempt was made to complete the examination of PW1, even when the CD, which was intended to be produced in the matter as evidence was not available at that time, then in that case, it was appropriate to defer the chief examination of PW1 as
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mentioned in the "NOTE", and when the copy of the CD was made available, then the examination of PW1 should have been continued and completed in accordance with Section 138 of Evidence Act.
Now since, the copy of the CD is on record, and no cross- examination of PW1 was recorded then in the interest of justice it is directed that firstly the chief examination of PW1 be completed in all respect, then according to Section 138 of the Evidence Act cross- examination and re-examination of PW-1 be done. Thereby I.A. No.3229/2022 is disposed off.
List the case for further proceeding on date 29.06.2022.
(AMAR NATH (KESHARWANI)) JUDGE N.R. Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2022.06.17 19:02:21 +05'30'