KANHAIYA LAL Vs. ANJU DEVI & ORS.

JUDGEMENT

(1.) IN this election petition, arguments were heard on the application filed by respondent No. 1 for taking on record list of witnesses with the prayer that such witnesses be called for examination. Ms. Anita Agrawal, learned counsel for petitioner/non -applicant, has opposed the application contending that list of witnesses, as per Rule 13 of the Rules in Regard to Election Petition under the Representation of People Act, 1951, was to be filed within seven days of the settlement of the issues. It is a mandatory rule which provides that no party shall produce or obtain process to enforce attendance of witnesses other than those contained in the above lists, the only exception being that this Court in its discretion may allow a party to produce witnesses in rebuttal. Rule 14 of the said Rules also provides that parties shall apply for the issue of witness -summons sufficiently in time for the attendance of witnesses after service and parties may produce witness without a summon on the date of the hearing, provided that they have filed a list of the same as required under Rule 12. Since the application for taking on record the list of witnesses has been filed 300 days after framing of the issues, the same cannot be said to be a list filed within the time and therefore the application deserves to be rejected. Rules 745 -M and 745 -N were originally inserted in the Rules of the High Court of Judicature for Rajasthan, 1952, which have been subsequently engrafted into the aforesaid Rules. In both the sets of Rules, maximum time period permissible for filing of list of witnesses is seven days from the date of settlement of issues. The provisions of Code of Civil Procedure contained in Order XVI would not apply because there is specific Rule on the subject. The issues were framed vide order dated 23.11.2011 and fixed the matter seven days thereafter on 30.11.2011 in conformity with the aforesaid Rules. The application filed by the respondent No. 1/applicant does not state any reason why such application has been filed with so much enormous delay of 300 days. It is argued that already four years have been gone by since filing of the election petition and the application has been properly filed with enormous delay in order to frustrate the election petition to make it infructuous. Learned counsel for election petitioner, in support of her arguments, relied on the judgment of this Court in Dinesh Joshi vs. Govind Singh & Ors.,, 2012 (2) WLC (Raj.) 315.

(2.) DR . Prakash Chandra Jain, learned counsel for the respondent, submitted that the application though delayed but has been filed with the purpose of producing necessary evidence before this Court so as to enable it to reach just and correct conclusion. Learned counsel referred to Sec. 87 of the Representation of the People Act, 1951 and argued that according thereto, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure under the Code of Civil Procedure, 1908, applicable to the trial of the suits and, therefore, provisions of Order XVI Rule 1 of the CPC, would apply to trial of election petition. In this connection learned counsel referred to Order XVI Rule 1A and argued that aforesaid provision provides that any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents. Therefore, the respondent No. 1 be permitted to bring her own witnesses except some of the important witnesses for which summons may be issued by this Court. In this connection, reliance has been placed on the judgment of this Court in Satnam Transport Company & Anr. vs. Prakash Mal Surana, : AIR 1981 Rajasthan 75. It is argued that in that case it was held by this Court that provisions of Order XVI Rule 1 of the CPC should be construed by the Courts liberally. The evidence should not be normally shut, unless the conduct of the parties is grossly negligent and there are serious laches on its part. Where the list of witnesses was not filed because the lawyer out of honest misconception of law believed that if the witnesses are brought and produced by the party, they will be examined by the Court, it must be treated as sufficient cause to permit defendant to examine witnesses, who were present in Court. The respondent No. 1 -applicant has filed the affidavits on 11.02.2013 and produced the witnesses in the Court and prayed that they should be examined.

(3.) DR . Prakash Chandra Sharma, learned counsel for the respondent, argued that without summons of this Court, the official witnesses, namely, the Tehsildar, Bassi (Serial No. 2), Shri Rajeev Kumar, Sub Divisional Magistrate -II, Head Quarter, Office of Divisional Commissioner, Delhi (Serial No. 10) and Shri M.S. Vats, Sub Divisional Magistrate, Connaught Place, Delhi (Serial No. 13), whose presence would be very necessary to determine the caste status of the applicant, which is the bone of contention between the parties in the present case. Learned counsel submitted that those witnesses may even be examined on commission as per discretion available to this Court under Order XVI of the CPC. In this connection reliance has been placed on the judgment of this Court in Satnam Transport Company, supra, and argued that mere absence of list of witnesses would not be a ground to refuse a commission. Learned counsel referred to Order XVI Rule 7A of the CPC and argued that the Court may on application of any party for issue of a summon for the attendance of 'any person', which indicates that such person may be even outside the list to be filed or filed with reference to Order XVI Rule 1. It is argued that this Court in Dinesh Joshi, supra, left the question whether the Court cannot on its own call a witness for examination with reference to its power under Order XVI Rule 1(3) open.