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Himachal Pradesh High Court · body

1999 DIGILAW 148 (HP)

JAGJIWAN PAUL v. BIPIN SINGH PARMAR

1999-07-29

SURINDER SARUP

body1999
JUDGMENT Surinder Sarup, J.—This order will dispose of two applications (EMPs No. 11 and 12 of 1999). EMP No. 11 of 1999 has been filed by respondent No. 1, who is the returned candidate in the main Election Petition, under Order 16, Rules 2 and 4 read with Section 151, CPC for directing the petitioner to file a proper application and list of witnesses. EMP No. 12 of 1999 has been filed by the petitioner in the main Election Petition, under Section 151, CPC with the prayer that copies of birth and death registers of the persons mentioned in the list annexed with the application may be allowed to be produced and taken on the record. 2. No reply has been filed by the petitioner in the main Election Petition to the application of the returned candidate (respondent No. 1) vide EMP No. 11 of 1999, who has, however, filed a reply to EMP No. 12 of 1999, which as stated earlier, has been filed by the petitioner in the main case. 3, It is stated in the application under Order 16, CPC that the list of witnesses filed by the petitioner does not conform with Order 16, Rules 2 and 4 of the CPC as no purpose is mentioned for summoning of the witnesses. In para 4 of the application, examples in support of this objection has been given in detail. On these pleadings, a prayer has been made to this Court that list of witnesses may be put to the test of scrutiny and thereafter unnecessary witnesses named therein be deleted, and lastly the petitioner may be directed to file a proper list of witnesses in accordance with law. The application is duly supported by the affidavit of the applicant i.e. respondent No. 1 in the main case who is the returned candidate. 4. The learned Counsel for the parties have been heard at length. 5. The learned Counsel for the applicant respondent No. 1 has submitted that as required under Order 16, CPC, a party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. 5. The learned Counsel for the applicant respondent No. 1 has submitted that as required under Order 16, CPC, a party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. According to him, since the purpose has not been stated against each of the witnesses as per the list filed by the election petitioner, for which any such witness is proposed to be summoned by him, the entire list thus submitted by him should be scrapped and appropriate orders in consequence thereof may be passed by this Court in the main Election Petition in accordance with law. 6. On the other hand, the learned Counsel for the petitioner in the main case has referred to the pleadings as well as the order/ judgment of this Court dated January 5, 1999 passed in EMP No. 17 of 1998 arising out of this very same Election Petition No. 4 of 1998. On the basis of the same, he has submitted that the same not having been challenged or appealed against before the Apex Court has thus become final and the objection now sought to be raised, would tantamount to review of that order/judgment, if such objection is allowed by this Court at this stage. 7. After giving considerable thought to the respective contentions of the learned Counsel for the parties, I am of the view that there is no force in the objection raised by the learned Counsel for the applicant respondent No. 1. 8. No doubt, the purpose for which the proposed witnesses barring at serial No. 1 as per the list filed by the petitioner, has not been stated qua each one of them, yet the fact remains that the petitioner wants to examine the said witnesses in support of the allegations and pleadings contained in the main Election Petition. As rightly submitted by the learned Counsel for the non-applicant/petitioner the evidence has not to be disclosed in the pleadings. Moreover, as per the settled law, rules of procedure are handmaids of justice meant for advancing its cause, rather than to thwart or throttle it. In the considered view of this Court, the provisions of Order 16, Rule 1, CPC are merely directory and not mandatory on a bare reading of the same. Moreover, as per the settled law, rules of procedure are handmaids of justice meant for advancing its cause, rather than to thwart or throttle it. In the considered view of this Court, the provisions of Order 16, Rule 1, CPC are merely directory and not mandatory on a bare reading of the same. It bears mentioning at this stage also that the application is misconceived, in as much as it does not lie under Order 16, Rules 2 and 4, CPC as stated in the heading thereof. The objection raised in support of the application relates to the provisions of Order 16, Rule 1(2) thereof. 9. There is another angle also to this application. Admittedly, EMP No. 17 of 1998 was earlier filed by the applicant-respondent No. 1, inter alia, on the ground that the Election Petition does not disclose the material particulars and facts of the case, in as much as the petitioner has nowhere given the names of the voters, their parentage, the places there they cast votes etc. and that he has not mentioned as to what were the serial numbers of the votes which were alleged to have been wrongly counted in favour of respondent No. 1. It was also stated therein that the facts given in the Election Petition are totally vague and thus the same do not disclose any cause of action. After the reply was filed in that application, this Court had framed preliminary issues in respect of those objections, which, inter alia, were whether the main Election Petition lacks material particulars and concise statement of the same as required under Section 83 of the Representation of the People Act, 1951, hereinafter to be called "the Act", and whether it does not disclose any cause of action or ground for recounting, as alleged therein. Thereafter upon hearing the learned Counsel for the parties at length, the said EMP was dismissed by holding that the pleadings in the Election Petition contained material particulars and concise statement thereof as required under Section 83 of the Act and consequently it does disclose cause of action. The said order/judgment was passed by this Court in EMP No. 17 of 1998 on January 5, 1999. It is not disputed by the learned Counsel for the-parties that no challenge was laid against the same in the Apex Court. In other words, it has become final. The said order/judgment was passed by this Court in EMP No. 17 of 1998 on January 5, 1999. It is not disputed by the learned Counsel for the-parties that no challenge was laid against the same in the Apex Court. In other words, it has become final. It follows, therefore, that in case the objection raised at this stage, when the petitioner is ready with his evidence, is allowed, it would mean reviewing my order dated January 5, 1999 passed in EMP No. 17 of 1998. That would be absolutely contrary to law. There is thus no force in the objection raised in this application i.e. EMP No. 11 of 1998 and the same is wholly misconceived, rather it appears to have been filed merely to delay the proceedings in the Election Petition. 10. Adverting now to the other application i.e. EMP No. 12 of 1999, in the reply filed by the non-applicant/respondent No. 1, it has been stated that by permitting the petitioner to produce the copies of death and birth registers would tantamount to supplying material facts which have not been mentioned in the Election Petition, and no material facts can be supplied after the expiry of limitation for filing the Election Petition. Also, this would amount to amendment of certain pleadings i.e. sub-para (IX) (a) of para-11 of the Election Petition by supplying material facts in the form of death and birth certificates, which is impermissible in law. 11. In support of the objection contained in the reply to the application, the learned Counsel for the non-applicant/respondent No. 1 has placed reliance on a decision of the Apex Court in the case of K.D. Deshmukhv. Amritlal Jayaswal (1993 Supp.(l) Supreme Court Cases 50). In that case, the admitted position was that after the result of the election had been declared therein, then within 45 days thereof, Election Petition could have been filed. It was also the admitted position that when the amendment application was filed therein, the said period of 45 days had expired long back. The original petition challenging the election was filed on the ground of improper rejection of nomination papers of three candidates under Section 100(l)(c) of the Act, and by way of amendment, a ground was sought to be raised of improper acceptance of the nomination paper of the returned candidate himself under Section 100(l)(d) of the Act. The original petition challenging the election was filed on the ground of improper rejection of nomination papers of three candidates under Section 100(l)(c) of the Act, and by way of amendment, a ground was sought to be raised of improper acceptance of the nomination paper of the returned candidate himself under Section 100(l)(d) of the Act. That amendment having been allowed by the High Court, the Apex Court held in that case that the High Court was wrong in allowing the amendment application, in as much as no amendment could have been allowed by which totally a new ground was sought to be taken which was clearly beyond limitation on the date of filing the amendment application. 12. It is manifest that the decision of the Apex Court on which reliance has been placed on behalf of the non-applicant/respondent No. 1 by his learned Counsel, is distinguishable on the facts of the present case. Here, the applicant-petitioner has sought to produce copies of death and birth registers of the persons mentioned in the list attached with the same, which copies as per his own plea have been obtained by him from the concerned authorities, they not having been made available to him and thus could not be produced earlier also. 13. The prayer of the petitioner in EMP No. 12 of 1999 has to be considered in the context of his pleadings in the main Election Petition where in sub-para (IX) (a) of para 11, it has been stated that 31 votes were shown to have been polled by those persons who were dead. The main Election Petition having been upheld as containing material particulars and concise statement, as also disclosing cause of action as required under Section 83 of the Act, by the order/ judgment of this Court in EMP No. 17 of 1998 dated January 5, 1999, there cannot be any legal bar to the production of the said documents as prayed in paras-2 and 3 of the application. However, it is made clear that the applicant-petitioner shall confine the same to a total number of 31 such allegedly dead persons in terms of the pleadings in sub-para (IX) (a) of para-11 of his main Election Petition. 14. For the reasons recorded above, EMP No. 11 of 1999 filed by respondent No. 1 is dismissed with costs, quantified at Rs. 14. For the reasons recorded above, EMP No. 11 of 1999 filed by respondent No. 1 is dismissed with costs, quantified at Rs. 3,000, being the expenses/diet money of the witnesses summoned by the election petitioner for the date on which hearing of this application took place, for which reason,they could not be examined and had to be discharged. But the prayer in the other application filed by the petitioner i.e. EMP No. 12 of 1999 is allowed to the extent of permitting him to produce copies of birth and death registers of 31 such persons in the list attached with the application who were alleged to be dead and whose votes were alleged to have been cast during the election in question, which has given rise to the filing of the Election Petition. There will be no order as to costs in respect of disposal of EMP No. 12 of 1999. E.P. No. 4/99 allowed.