RAJ NARAIN Vs. INDIRA GANDHI

JUDGEMENT

(1.) THE petitioner in this elec tion petition has applied under Order XI Rule 1 and Order XI Rule 12 of the Civil Procedure Code for leave to deliver interrogatories in writing for the exami nation of respondent No. 1 and for a direction to respondent No. 1 to make discovery on oath of the documents which are or have been in her posses sion or power relating to the questions arising in the petition; but it is contend ed on behalf of the respondent that the provisions of Order XI Civil Proce dure Code cannot be applied to election petitions. The arguments advanced on both sides have ranged over a wide field of both English and Indian law, but I shall endeavour to deal with them as succinctly as possible.

(2.) THE first point on which stress has been laid by learned counsel for the contesting respondent is that discovery as envisaged by Order XI, Civil Pro cedure Code has never been permitted in the trial of election petitions in Eng land. After jurisdiction was conferred by the Parliamentary Elections Act, 1868, on the Court of Common pleas to try such petitions, the court continued to follow the principles, practice and rules on which committees of the House of Commons had previously acted in deal ing with election petitions; and as point ed out in Wells v. Wren, (1880) 5 CPD 546 "it is admitted that the exhibition of interrogatories to the sitting member by an election committee was a thing un heard of."

(3.) APART from Section 92, the Representation of the People Act, 1951 contained another section dealing with procedural powers viz. Section 90 (2), which laid down that every election peti tion should be tried by the Tribunal "as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits," subject to the provisions of the Act and any rules made there under. The two Sections flow (2) and 92 continued side by side until 1966, when an amending Act (No. 47 of 1966) was passed, intro ducing a major change in procedure by entrusting the trial of election petitions to the High Court. As a result of this amending Act both Section 90 (2) and Section 92 disappeared and were replac ed by the present Section 87, the rele vant portion of which reads as follows:-