Andhra HC (Pre-Telangana)
Botsa Appala Narasayya vs Smt. Raghunanda Lakshmi And Ors. on 23 October, 2003
Equivalent citations: AIR2004AP82, AIR 2004 ANDHRA PRADESH 82, (2004) 1 ANDHLD 19, (2004) 1 ICC 789, (2004) 1 ANDHWR 18, (2004) 2 CIVILCOURTC 112, (2004) 1 ANDHWR 715
ORDER P.S. Narayana, J.
1. Heard Sri Medamalli Balaji and Sri G. Ramgopal, the learned counsel representing the respective parties.
2. The civil revision petition is filed as against an order dated 1-8-2003 made in I.A. No. 643 of 2003 in Election O.P. No. 65 of 2001 on the file of the Senior Civil Judge, Vizianagaram.
3. The revision petitioner herein filed an application before the Court below under Order 18, Rule 17 and Section 151 of the Code of Civil Procedure praying for recalling of RW2 for further cross-examination. The gist of the affidavit filed in support of the application is that RW2 was examined on 17-4-2003 and the evidence was closed. Then the matter was posted for arguments but due to inadvertent mistake on his part, he could not instruct his counsel properly on the date of examination of RW2 and hence he wants to cross-examine RW2 further. Counters in detail were filed and the said application was opposed.
4. Sri Balaji, the learned counsel representing the petitioner had contended that by mistake proper instructions were not given and hence the petitioner should be given an opportunity of cross-examining RW2 as prayed for in I.A. No. 643 of 2003. The learned counsel also submitted that by virtue of Rule 7 of the Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads Rules, 1995 (for short "the Rules"), issued in G.O.Ms. No. 111, Panchayat Raj, Rural Development and Relief (Ele.III) Department, dated 3-3-1995 since the Code of Civil Procedure is applicable even in disputes of this nature before the Election Tribunal, the said application may be allowed, in the interest of Justice, and the petitioner may be permitted to cross-examine RW2.
5. On the contrary, Sri Ramgopal learned counsel representing the contesting respondent i.e., respondent No. 1 had taken this Court through the reasons recorded in the impugned order and had submitted that there are no bona fides at all in making this application and the view is only to delay the proceedings. The learned counsel also had placed strong reliance on a decision in Nagumothu Sriharinath v. Nagumothu Vari, .
6. In Election O.P. No. 65 of 2001 on the file of the Election Tribunal-cum-Senior Civil Judge, Vizianagaram, I.A. No. 643 of 2003 under Order 18, Rule 17 of the Code of Civil Procedure was filed praying the Court to recall RW2 for the purpose of further cross-examination. As can be seen from the affidavit, the only reason given is that on a particular day proper instructions could not be given to his counsel and hence the petitioner may be permitted to cross-examine RW2 again by way of further cross-examination. In the above cited decision it was held that the ground that counsel did not put certain material questions to witness when he was cross-examined as he was not properly briefed by party is not a relevant ground for granting permission for further cross-examination under Order 18, Rule 17, C.P.C.
7. Rule 7 of the aforesaid Rules reads as under :
1) "Every election petition shall be enquired into by the Election Tribunal, as early as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits;
Provided that it shall only be necessary for the Election Tribunal to make a memorandum of the substance of evidence of any witness examined by him.
ii) The Election Tribunal shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters :
a) discovery and inspection;
b) enforcing the attendance of witness and requiring the deposit of their expenses;
c) compelling the production of documents;
d) examining witnesses on oath;
e) reception of evidence taken on affidavit; and
f) issuing commissions for examination of witnesses, and may summon and examine suo motu any person whose evidence appears to him to be material."
8. It may be that the provisions of the Code of Civil Procedure also can be invoked in the proceedings before the Election Tribunal by virtue of the said Rule but there must be convincing reasons explained in the affidavit filed in support of the application for permitting the party to get a witness recalled. The ground mentioned in the affidavit is definitely a vague ground and hence It is not a bona fide application. In view of the same, civil revision petition shall stand dismissed being devoid of merits. No order as to costs. However, Inasmuch as the dispute is a matter relating to elections, the Election Tribunal-cum-Senior Civil Judge is hereby directed to dispose of the main matter as expeditiously as possible.