Narpat Ram Barwar v. Shri Mohan Meghwal — 1995 DIGILAW 960 (RAJ)

Honble ARORA, J. – This order will dispose of the two applications moved on behalf of the petitioner one under O. 14 R.2,C.P.C. by which a prayer has been made that issue No 1, which is a pure question of law, may be decided as a preliminary issue without going into the other issues, the second is an oral application made on 22.12.94 and it was prayed that the admission or denial of the documents which have been received by the Court in a sealed cover from the Office of the District Returning Officer, Jodhpur, may be got done and the third application has been moved on behalf of the respondent No. 1 on 7.12.94 for condonation of the delay in filing the List of Witnesses. (2). The facts which are necessary for the adjudication of these applications, in brief, are that petitioner Narpat Ram Barwar, in this election petition, called in question the election of Shri Mohan Meghwal to the Tenth Legislative Assembly of the State of Rajasthan from the Soorsagar Constituency (No. 185) of the Rajasthan State Assembly. The election of Shri Mohan Meghwal has been challenged by the petitioner on the grounds that (i) the nomination paper of Shri Mohan Meghwal was improperly accepted; (ii) he has adopted corrupt practice in the election; and (iii) he has not complied with the provisions of the Representation of People Act, 1951 and the Conduct of Election Rules, 1961. (3). Certain preliminary objections were raised by the respondent to the maintainability of the election petition, which were decided by this Court by the order dated 5th July, 1994. The preliminary objections were over-ruled and the respondents were directed to file reply to the election petition. Reply to the election petition was filed by the respondents and the case was fixed for settlement of the issues on 19.10.94. On 19.10.94, the petitioner moved an application for summoning certain documents from the District Election Officer/District Returning Officer. Respondent No. 1, also moved an application for summoning certain documents. Both these applications were allowed as they were not opposed and the District Election Officer/District Returning Officer (Collector, Jodhpur) was directed to send the documents mentioned in the application. The documents, called from the Collector, were received by this Court on 17.11.94. Respondent No. 1, also moved an application for summoning certain documents. Both these applications were allowed as they were not opposed and the District Election Officer/District Returning Officer (Collector, Jodhpur) was directed to send the documents mentioned in the application. The documents, called from the Collector, were received by this Court on 17.11.94. Item No.5, mentioned in the application, was not received due to wrong particulars given in the order/letter and, therefore, Shri Mala Ram, L.D.C. in the Office of the Collector, Jodhpur, who was present in the Court, was directed to send the required record forth-with. The admission and denial of the documents was made on 17.11.1994 and four issues were struck out. At that time, the documents were received from the Office of the District Election Officer (Collector, Jodhpur) which were in the sealed cover but admission and denial on these documents were not made. The parties were directed to, file list of the witnesses within two weeks and the case was fixed on 7.12.94. On 6.12.94, learned counsel for the petitioner moved an application under O.14 R.2. C.P.C. for deciding issue No. 1 as a preliminary issue. On 7.12.94, respondent No. 1 filed the list of the witnesses and, also, moved an application for condonation of delay in filing the list of the witnesses. Both these applications were opposed and arguments were heard on both these applicants on 22.12.94. During the course of arguments, learned counsel for the petitioner made an oral submission that the copy of the Caste Certificate, which was filed alongwith the nomination paper and which has been received in the sealed cover, may be opened and admission or denial of that document may be got done. This oral request of the petitioner was ob- jected by the learned counsel for the respondents and he prayed time for filing reply. The time was granted. Respondent No. 1 filed reply to the oral applications. The is how these three applications cameup for consideration before this Court. (4). The first application moved by the petitioner under O. 14 R. 2 C.P.C. in which a prayer has been made that issue No. 1 which is a pure question of law and can be decided without going into the other issues, may be decided first. The is how these three applications cameup for consideration before this Court. (4). The first application moved by the petitioner under O. 14 R. 2 C.P.C. in which a prayer has been made that issue No. 1 which is a pure question of law and can be decided without going into the other issues, may be decided first. The contention of the learned counsel for the petitioner is that the matter can be decided only by looking to the nomination papers and no evidence is required to be produced so far as this issue is concerned. Looking to the intention of the Legislature that the election petition may be disposed of at the early date as per time bound programme and when the election petition can be disposed of by this legal issue only, it is not necessary to go into the evidence on other issues. The contention, raised by the learned counsel for the respondent, on the other hand, is that a bare perusal of issue No. 1 clearly shows that this issue cannot be decided without taking the evidence of the parties. (5). Issue No. 1, which is relevant for adjudication of the present controversy, reads as under– ``Whether the nomination paper of Shri Mohan Meghwal has been accepted improperly by the Returning Officer as per Para No. 7 of the election petition and, therefore, his election deserves to be set-aside and the petitioner is entitled to be declared elected as a Member of the Rajasthan Legislative Assembly from Soorsagar Constituency. Arguments on this application were heard on 7.12.94. During the course arguments, Mr. Bhoot-learned counsel for the petitioner made an alternative submission that if the second part of issue No. 1 that the petitioner is entitled to be declared as elected from Soorsagar Constituency of Rajasthan State Legislative Assembly cannot be decided as a preliminary issue with- out recording evidence then the first part of this issue, which is a pure question of law. should be decided first and for that he agreed to file an application for splitting the issue on an objection raised by Shri Lekh Raj Mehta learned counsel for the respondent No. 1- and prayed for three days time to move such an application No such application for splitting the issue has been made by the petitioner till the date of arguments on this issue were heard and concluded. (6). (6). One of the grounds, on which the election of the respondent No. 1 has been challenged, is the wrong acceptance of the nomination paper of the respondent No. 1. Issue No. 1 is in two parts: (i) with respect to the improper acceptance of the nomination paper of the respondent No. 1 and setting-aside his election on this count, and (ii) to declare that the petitioner is a duly elected Member of the Rajasthan Legislative Assembly from Soor- sagar Constituency. Issue No. 1, therefore, requires detailed enquiry and cannot be adjudicated with out any evidence which is to be produced by the parties. The issue required detailed examination regarding proper or improper acceptance of the nomination paper of the respondent No. 1. An objection regarding improper acceptance of the nomination paper of res- pondent No. 1 came-up for consideration on the application dated 8.2.94 filed by the respondent No. 1 in which the respondent No. 1 prayed that the election petition entails dismissal as the Caste Certificate has not been enclosed with the petition. This objection was repelled by this Court vide order dated 5th July, 1994 with the following observations.– ``Having considered the rival submissions made at the bar, I am satisfied that this matter needs enquiry as to whether the nomination paper filed by the petitioner was rightly accepted or improperly accepted. That goes to the very root of the election petition and, therefore, it is serious question which has to be inquired into. Simply because a document which may prove this allegation has not been filed cannot entail dismissal of that allegation on the ground of attack because that document can be summoned from the Election Department or the petitioner can be asked to produce its original before the Court. Thus, to that extent, the objection of respondent No. 1 cannot be sustained. The issue No. 1, therefore, cannot be decided without any evidence. It is an issue which requires detailed investigation and both the parties have to lead their evidence in support of this issue. The issue does not involve the pure question of law which could be decided merely by seeing the nomination paper. The first application dated 6.12.94, filed by the petitioner, is, therefore, rejected. (7). It is an issue which requires detailed investigation and both the parties have to lead their evidence in support of this issue. The issue does not involve the pure question of law which could be decided merely by seeing the nomination paper. The first application dated 6.12.94, filed by the petitioner, is, therefore, rejected. (7). The second is the oral application moved by the petitioner on 22.12.94 by which a prayer has been made that the Caste Certificate which was filed alongwith the nomination paper and which has been received in the sealed cover, may be opened and admission or denial on that document may be allowed. This application is strongly opposed by the respondents. The contention of the learned counsel for the respondent No. 1 is that the document was available in the Court on 17.11.94 when the issues were stru- ck-out and after the issues were framed, the case is put for evidence and, now, the respondent cannot be asked, at this stage, to admit or deny this document as the stage of admission or denial has already over. Section 87 of the Act, 1951 provides the procedure for the election petition. Section 87 states that subject to the provisions of this Act or of any Rule made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure application under the Code of Civil Procedure to the trial of the suits. In exercise of the powers conferred by Sec. 46 of the Rajasthan High Court Ordinance, 1949 read with Art. 225 of the Constitution of India and the other powers enabling in this behalf, the High Court of Judicature for Rajasthan framed the Rules in regard to the election petition under the Representation of People Act, 1951. Rule 12 of the Rules provides that after the pleadings in the election petition are recei- ved, a date shall be fixed at the direction of the Judge for (i) discovery of the documents; (ii) inspection of the documents disclosed; and (iii) the production of the documents which are in the possession and power of the parties. Rule 13 of the Rules provides that the issues will then be settled and the election petition shall be posted for hearing. Rule 13 of the Rules provides that the issues will then be settled and the election petition shall be posted for hearing. There is no bar in the Rules or the Act so far as directing the parties to make admission or denial of the documents after issues are framed, is concerned. Order 12 Rule 3-A, C.P.C. authorizes the Court, at any stage of the proceedings before it, to call upon the party to admit or deny any document. The applicability of this provision of the Code of Civil Procedure has not been excluded either by the Act or by the Rules relating to the trial of the election petition. The documents were called on the request of the parties. They were received in the Court on the date when the issues were settled. The document mentioned at Serial Number 5 was not received due to wrong description which was, also, called and received by the Court. The only objection taken by the lear- ned counsel for the respondent No. 1 regarding the admission or denial is that the petitioner can prove these documents during the trial. It is true that the documents can by proved during the trial by the petitioner but why the respondent No. 1 cannot be asked to admit or deny the documents documents at this stage when they are already on record and O. 12 R. 3-A, C.P.C. authorised the Court, at any stage of the proceedings, to call upon any party to admit or deny the documents. The object of obtaining admission or denial is to do away with the necessity of proving the facts which are admitted by the parties and once a fact is admitted, it becomes concluded. There is no bar to the exercise of the powers by the Court on its own motion or even at the request of either of the parties to call upon a party, at any stage of the proceedings, to admit or deny the documents. The oral application of the petitioner dated 22.12.94 is, therefore, allowed and the respondent No. 1 is directed to admit or deny the documents received from the Office of the Collector and District Magistrate, Jodhpur, which are in the sealed cover. (8). The third application which requires adjudication, has been moved by the respondent No. 1 for condoning the delay in filing the list of the witnesses. (8). The third application which requires adjudication, has been moved by the respondent No. 1 for condoning the delay in filing the list of the witnesses. The issues were struck out on 17.11.94 and the parties were directed to file the List of Witnesses within two weeks. The petitioner filed the list of witnesses on 1.12.94 while the respondent No. 1 filed the list of witnesses on 7.12.94 alongwith the application for condonation of delay. Rule 13 of the Rules provides that within seven days of the settlement of the issues, the party shall file the list of witnesses and pay the process fee and travelling and diet allowance for those witnesses who are required to be summoned. Admittedly, none of the parties filed the list of witnesses within seven days. Though a period of seven days has been proved under rule 13 of the Rules but on 17.11.94 the time of two weeks was granted by the Court for filing the list of witnesses. The contention of the learned counsel for the respondent No. 1, in respect of this application for condonation of the delay, is that the time can be extended and the party can be permitted to file the list of witnesses even after the expiry of the time and as the trial has not yet commence, the list of witness can be taken on record. In support of his contention, learned counsel for the respondent has placed reliance over : Lalitha J. Rai vs. Aithappa Rai. (1) (9). The delay in filing the list of witnesses can be condoned only if the provisions of Section 5 of the Limitation Act are applicable to the trial of the election petition. The Representation of People Act, Act 1951 is a self contained statute and the powers of the Court are circumscribed by its pro- visions. The election petition is not like a regular suit. The proceedings are purely statutory proceedings, to which neither the procedure provided under any other law nor the principle of equity are applicable. For the trial of the election petition, only those Rules which the Statute makes, apply. The election petition is not like a regular suit. The proceedings are purely statutory proceedings, to which neither the procedure provided under any other law nor the principle of equity are applicable. For the trial of the election petition, only those Rules which the Statute makes, apply. The trial of the election Petition has to be made only in accordance with the provisons made in the Act, 1951 or the Rules framed thereunder and the Court cannot take resort to the provisions of the trial of the suits which are excluded by the Act. The provisions of Sec. 5 of the Act, 1951 or the Rules framed thereunder and the Court cannot take resort to the provisions of the trial of the suits which are excluded by the Act. The provisions of Sec. 5 of the Limitation Act are not applicable so far as the trial of the election petition is concerned. It has been held by the Supreme Court in : K. Venkateshwara Rao & Anr. vs. Bekkam Narsimba Reddy & Ors. (2) that `` the Limitation Act cannot apply to the proceedings like an election petition in asmuch as the Representation of People Act is a complete and self-contained Code which does not admit of the introduction of the principles or the provisions of law contained in the Limitation Act. The question regarding applicability of the provisions of Sec. 5 of the Limitation Act, 1963, came-up for consideration before the Honble Supreme Court in Hukumdev Narain Yadav vs. Lalit Narain Mishra, (3) and the Apex Court reiterated its views taken in K.V. Raos case (supra) and held in para No. 25 of the judgment that `` the provisions of Sec. 5 of the Limitation Act do not govern the filing of the election petition or their trial and in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay. (10). In view of the judgments of the Supreme Court, the provisions of Sec. 5 of the Limitation Act are not applicable so far as the trial of the Election Petition is concerned. The application dated 7.12.94, filed by the respondent No. 1 for condonation of delay in filing the list of witnesses, is, therefore, rejected.