Orissa High Court
Bharati Behera vs Jhili Prava Behera And Another on 18 September, 2014
Equivalent citations: 2015 AIR CC 216 (ORI), (2016) 157 ALLINDCAS 646 (ORI), (2015) 2 CIVLJ 59, (2014) 2 ORISSA LR 1029, (2015) 1 CLR 108 (ORI), (2015) 119 CUT LT 663
Author: C.R. Dash
Bench: C.R. Dash
ORISSA HIGH COURT, CUTTACK.
W.P. (C) No. 26254 of 2013
In the matter of an application under Articles 226 and 227 of the Constitution of
India.
-----------------
Bharati Behera ... Petitioner
Versus
Jhili Prava Behera and another ... Opp. Parties
For Petitioner : M/s. Manoj Kumar Mohanty and T. Pradhan.
For Opp. Parties : M/s. Samir Kumar Mishra, J. Pradhan, S.K. Rout,
A.K. Behera and Miss P.P. Mohanty.
(for O.P. No.1)
Addl. Government Advocate.
(for O.P No.2)
-----------------
PRESENT:
THE HONOURABLE MR. JUSTICE C.R. DASH
-----------------------------------------------------------------------------------------------------------------------------
Date of final Hearing : 20.08.2014 Date of Judgment : 18.09.2014
-----------------------------------------------------------------------------------------------------------------------------
C.R. Dash, J.Whether an Election Case can be re-opened in a routine manner at the behest of one of the parties, after hearing is closed and the matter is adjourned to a future date for pronouncement of judgment, is the question that arises for consideration in the present writ petition.
2. The present petitioner is the election petitioner in Election Misc. Case No.1 of 2012 pending before the learned Civil Judge (Junior Division), Bhuban. Election for the post of Sarpanch of Ekatali Gram Panchayat under 2 Bhuban Block in the district of Dhenkanal was held on 15.02.2012. Opposite party no.1 Jhili Prava Behera won the election, whereas the present petitioner Bharati Behera lost. At the time of scrutiny of the nomination papers, the present petitioner had objected the nomination of the present opposite party no.1 on the ground that she is not eligible to contest the election, as she has given birth to three children, namely Sonalika Behera on 02.08.2002, Sibani Behera on 08.05.2006 and Subhransu Sekhar Behera on 24.12.2009 through her husband Nanda Kishore Behera. As all the aforesaid three children were born after the cut off date, i.e. 21.04.1995, opposite party no.1 is disqualified and is not eligible to contest the election for the post of Sarpanch of Ekatali Gram Panchayat. The Election Officer having eschewed the objection, allowed the nomination and opposite party no.1 got elected by polling highest vote. The petitioner was then obliged to file Election Misc. Case No.1 of 2012 on the selfsame ground. Opposite party no.1 filed written statement denying the allegation and took the positive stand that her alleged third child Subhransu Sekhar Behera is, in fact, the son of her husband's younger brother namely Jogananda Behera and his wife Annapurna Behera.
3. After the pleading was over, evidence from both the sides were led, though opposite party no.1 is alleged to have adopted dilly-dally tactics in adducing her part of evidence. Ultimately hearing was closed by the learned Election Tribunal on 08.10.2013 after hearing of the oral argument and the case was posted to 21.10.2013 for delivery of judgment.
4. On the basis of advance petition filed by learned counsel for opposite party no.1 however the case was re-opened again on 09.10.2013. Again argument was heard in part on different dates and on 28.10.2013 some documents were marked as Exhibits at the behest of opposite party no.1. On 3 15.11.2013 one witness was examined on behalf of opposite party no.1 and on 25.11.2013 two original documents along with specimen signature of Jogananda Behera were sent to the State Forensic Science Laboratory, Bhubaneswar for comparison of handwritings of Jogananda Behera.
5. Mr. Manoj Mohanty, learned counsel for the petitioner impugns the entire proceeding after 09.10.2013 as arbitrary, unjustified and without jurisdiction on the ground that learned Election Tribunal, after closing the hearing of the case, could not have re-opened the same while posting the case to a future date for pronouncement of judgment.
Mr. Samir Mishra, learned counsel for opposite party no.1 however relying on the provisions contained in Order 18, Rule 17, C.P.C. read with Section 151 thereof, submits that at any stage before pronouncement of judgment a case can be re-opened to discover the truth, which is the very purpose of any judicial trial.
6. Mr. Manoj Mohanty, learned counsel for the petitioner relies on the cases of Arjun Singh vrs. Mohindra Kumar and others, A.I.R. 1964 SC 993 and Rasiklal Manikchand Dhariwal and Another vrs. M.S.S. Food Products, (2012) 2 SCC 196, to substantiate his contention.
Mr. Samir Mishra, learned counsel for opposite party no.1 on the other hand relies on the cases of K.K. Velusamy vrs. N. Palanisamy, 2011 (I) CLR (SC) - 961 and Doshei Dei and others vrs. Rama Rauta and others, 1985 (I) OLR - 12, to support his submission.
7. In the case of Arjun Singh (supra) the question of applicability of Order 9 Rule 7, C.P.C., after the ex parte hearing is completed, was in issue. Hon'ble Supreme Court, on a thorough discussion of the provisions of Order 9 4 Rule 7, Rule 13, Rule 6(I)(a), Rule 1, Section 151 and Order 20 Rule 1 of the C.P.C., held thus :-
"......In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit - (1) where the hearing is adjourned, or (2) where the hearing is completed. Where the hearing is completed, the parties have no further rights or privileges in the matter and it is only in the convenience of the Court that Order 20 Rule 1 permits, judgment to be delivered after an interval, after the hearing is completed. It would therefore follow that after the stage contemplated by Order 9 Rule 7 is passed, the next stage is only passing of a decree, which, on the terms of Order 9 Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order 9 Rule
13. There is, thus, no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the line of Order 9 Rule 7 ......."
Same is the view of Hon'ble Supreme Court in the case of Rasiklal Manikchand Dhariwal (supra) while dealing with the scope of Order 9 Rule 7. In that case also Hon'ble Court has held that once the suit is closed for pronouncement of judgment, there is no question of further proceeding in the suit.
8. Though in both the aforesaid cases Hon'ble Supreme Court were dealing with the scope and ambit of Order 9 Rule 7, C.P.C. when ex parte hearing in a suit has been completed, but the principle decided therein so far as reservation of a judgment and pronouncement of a judgment is concerned, is applicable to the facts of the present case in as much as there is no difference between closure of an ex parte hearing or closure of a contested hearing. Whatever be the case after closure of hearing, the obvious stage is pronouncement of judgment. The dictum of Hon'ble Supreme Court to the effect 5 that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment in full vigour apply to both the aforesaid categories of cases.
9. Hon'ble Supreme Court, in the case of K.K. Velusamy (supra) was dealing with the scope of Order 18 Rule 17, C.P.C. read with Section 151 thereof. In that case the two applications, one under Section 151, C.P.C. and another under Order 18 Rule 17, C.P.C. were filed with prayer to re-open the evidence and to recall P.Ws.1 and 2 for cross-examination when the arguments were in progress. Those petitions having been rejected by the Trial Court and the High Court concerned, the matter was brought before Hon'ble the Supreme Court. Hon'ble Supreme Court, ruling on the scope and ambit of Section 151, C.P.C. by referring to a number of judgments, in paragraph 16 of the judgment held thus :-
"16. We may add a word of caution. The power under Section 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 it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the Court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the Court finds that 6 evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application."
So far as the aforesaid case of K.K. Velusamy is concerned, hearing in the case had not yet been closed. Petitions under Section 151, C.P.C. and Order 18 Rule 17, C.P.C. were filed with prayer to re-open the evidence and to recall P.Ws.1 and 2 for cross-examination when the arguments were still in progress. We shall find out as to what is the meaning of "closure of a case / suit" is.
10. Andhra Pradesh High Court, in the case of Sultan Saleh Bin Omer vrs. Vijayachand Sirimal, A.I.R. 1966 Andhra Pradesh 295, took into consideration the provisions of Order 9, 10, 11, 12, 14, Order 15 Rules 1 & 3, Order 18 Rules 1, 2 & 17 and Order 20 Rule 1, and held thus :-
"(17) A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other hand, according to O.15, R.3, the hearing of the suit includes both production of evidence, as well as argument. It is in the option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin; and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. ......"7
From the aforesaid observation of the Hon'ble Andhra Pradesh High Court and from different provisions of the C.P.C. it is clear that a case or a suit is closed when the case is posted for judgment or for delivery of judgment on a future date.
After a case is closed, the judgment is to be pronounced either at once or at a future date, as has been provided in Order 20 Rule 1, C.P.C. If judgment is not pronounced at once, the record is kept by the Presiding Officer of the Court for preparation and pronouncement of judgment on a future date. Once the judgment is reserved, the next obvious stage is pronouncement or delivery of the judgment. Hon'ble Supreme Court in the case of Arjun Singh (supra) has ruled that there is no hiatus between reserving the judgment and pronouncing the judgment. If there is no hiatus or gap between the two stages (as aforesaid), can it be legally and logically held that any party has an endeavour to make in between to get the case re-opened for his purposes ? The answer would obviously be "no". The Civil Judge (Junior Division) in the present case having not been acted as a Civil Court, provision of Section 151, C.P.C. does not apply to assist the opposite party. No other provision is also applicable to get the case re-opened at such stage. If the judgment has been reserved, the next step is to pronounce the judgment by the prescribed time.
The other case relied on by Mr. Samir Mishra, learned counsel for opposite party no.1, i.e. Doshei Dei's case (supra) has no application to the present case, as the same relates to Order 18 Rule 2(4), C.P.C.
11. Viewed from this analysis, the Election Case in the present case was closed in all respect on 08.10.2013 when the case was posted for judgment to 21.10.2013. At this stage learned Election Tribunal has re-opened the case 8 and has allowed evidence to be adduced by the returned candidate (present opposite party).
12. As found from the copy of the entire order-sheets filed with the writ petition, learned Civil Judge (Jr. Division), Bhuban has not at all given any reason as to what prompted him to re-open the case after the case after the judgment was reserved. As a sound judicial principle, as discussed supra, once the judgment is reserved after completion of hearing, it cannot be routinely reopened at the behest of any of the parties, as has been done in the present case.
13. Mr. Samir Mishra, learned counsel appearing for opposite party no.1 takes exception to the submissions advanced by learned counsel for the petitioner on the ground that the petitioner could not have impugned number of orders in a single writ petition. Such a contention is misconceived in as much as the petitioner in the present case has impugned the action of the learned Civil Judge (Jr. Division), Bhuban in re-opening the case after the case was closed and adjourned for pronouncement of judgment, and the petitioner has further impugned the entire proceeding after 08.10.2013. The gist of the challenge is quashment of the entire proceeding after 08.10.2013 and not to challenge each order mentioned in the writ petition in piecemeal.
14. Taking into consideration all the aforesaid facts, the entire proceeding taken up by learned Civil Judge (Junior Division), Bhuban from 09.10.2013 is quashed and he is directed to pronounce the judgment, at best within thirty days from the date of receipt of a copy of this order.
15. Before parting with the order, I am constrained to observe here that when this Court had targeted disposal of the Election Misc. Case, vide W.P. 9 (C) No.25163 of 2012 and W.P. (C) No.15500 of 2013, it was incumbent upon learned Civil Judge (Jr. Division), Bhuban to dispose of the case by the date targeted. If it was not possible on his part to dispose of the case by the date targeted, it was incumbent upon him to write to this Court seeking permission for extension of time justifying non-disposal by the date targeted. There is nothing on record before me whether any extension of time was sought for by the learned Civil Judge (Junior Division) in the present case. In view of such fact, I refrain from taking any administrative action against the Civil Judge (Junior Division), Bhuban. He is however instructed to be very very cautious in future when dealing with matters targeted by higher courts.
The Writ Petition is accordingly allowed.
........................
C.R. Dash, J.
Orissa High Court, Cuttack.
The 18th day of September, 2014.
S.K. Parida, Secretary.