DINESH JOSHI Vs. GOVIND SINGH & ORS.

JUDGEMENT

(1.) This application has been filed under Sec. 87 of Representation of the People Act, 1951 (for short -'the Act of 1951'), read with Order 13 of the Rules framed by High Court for Election Petition thereunder and Order 16 Rule 1 of Code of Civil Procedure (for short-'CPC') for taking on record the list of witnesses and summoning the witnesses.

(2.) Shri J.P. Goyal, learned senior counsel for the petitioner has argued that the petitioner filed the application within a period of 15 days as prescribed by Order 16 Rule 1 because Sec. 87 of the Act of 1951 has extended provisions of Code of Civil Procedure to the trial of an election petition before this Court. Even if, therefore, the separate rules are framed, the fact is that, the petitioner was mislead by provisions of Section 87 and on that basis bonafidely presumed that Civil Procedure Code is applicable and therefore filed the list of witnesses with somewhat delay. This constitutes sufficient cause for condoning the delay and taking the list of witnesses on record by invoking Sec. 148 or 151 of Code of Civil Procedure and by applying the provisions of Sec. 5 of the Limitation Act. Learned counsel in support of his arguments relied on the judgment of Supreme Court in Salem Advocates Bar Association Vs. Union of India 2005(2) Apex Court Judgments 492 (S.C.) : 2005(3) Civil Court Cases 420 (S.C.): 2005(6) SCC 344 and specifically referred to para 41 and 43 thereof, wherein the observations were made by the Supreme Court with regard to applicability of Sec. 148 and 151 Civil Procedure Code. His submission is that Sec. 148 has not been held to be so rigid. Section 148 limits the extension of time upto 30 days for doing any act prescribed or allowed by the Code, which the Court requires a party to do and has provided that Court may in its discretion enlarge such period not extending 30 days in total. The Supreme Court in Salem Advocates Bar Association, supra has held that when the circumstances warrant, the Court may extend such period further by invoking Sec. 151 of Civil Procedure Code. He also relied on the judgment of Supreme Court in Lalithai Rai Vs. Aithappa Rai 1995(2) Civil Court Cases 685 (S.C.) : 1995(4) SCC 244 wherein also it was held that the courts below erred in dismissing the application enclosing the list of witnesses on the ground of delay.

(3.) Per contra, Shri Parag Rastogi, learned counsel for the respondent has opposed the application and argued that such list of witnesses according to Rule 13 of the Election Petition Under the Representation of People Act, 1951 was required to he filed within a period of seven days from the date of framing of issues. In the present case, the issues were framed on 09.11.2011 and the list of witnesses along with application was filed on 24.11.2011, therefore, this is barred by limitation and it cannot be taken on record. His submission is that if the election petitioner now wants to adduce his evidence, he has to himself bring witnesses without the assistance of the Court as per the provisions of Order 16 Rule IA of Civil Procedure Code. In this connection, he has relied on the judgment of Supreme Court in Mange Ram Vs. Brij Mohan & Ors. 1983(4) SCC 36.