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2010 DIGILAW 1702 (PNJ)

Association of Surgeons of India v. Kuldeep Singh

2010-05-17

AJAY TEWARI

body2010
JUDGMENT Ajay Tewari, J.:- This petition has been filed against that portion of the order dated 5.3.2010 whereby the petitioners have been asked to produce the entire election record viz nomination papers, ballot papers, record pertaining to counting of ballot papers, identification slips of electorates including the number of ballot papers printed and number of ballot papers issued and received by the defendants along with register maintained by defendants relating to dispatch/posting of ballot papers to its members, register envelops and also the receipt register pertaining to receipt of ballot papers issued by the defendants, before the Court on the next date of hearing. 2. Respondent No.1 had filed a civil suit challenging the election to the post of President of the petitioner-association. One of the grounds taken was that the election had been rigged in so much as the postal ballots were either not sent or those postal ballots were used to exercise the voting rights of the members. 3. The trial Court noticed that it would be necessary for respondent No.1 to have access to the said record to be able to lead evidence of mal-practices and consequently directed the petitioners to produce the record on the next date of hearing. 4. Counsel for the petitioners has argued that this kind of omnibus fishing direction can not be permitted. He has also argued that by this process, respondent No.1 will come to know which of the electors has exercised his rights to vote and this would violate the electoral secrecy. He has further argued that if this procedure is allowed then similar suits may be filed at different places of the country and it would be extremely difficult for the petitioner-association to produce this voluminous record in all such Courts. Counsel for the petitioners has relied upon Smt. Rekha Rana v. Jaipal Sharma and others, [2009(4) LAW HERALD (SC) 2522 : 2009(3) LAW HERALD (P&H) 1876 (SC)] : AIR 2009 SC 2946 wherein the Hon’ble Supreme Court held as follows :- “ 15. Before closing, we may also deal with the argument advanced by learned counsel for the appellant in regard to the scope of Rule 93. The stand of the appellant is that the election petition lacks sufficient facts on the basis whereof the court could record the requisite satisfaction as stipulated in the said Rule before ordering inspection of the Electoral Roll. The stand of the appellant is that the election petition lacks sufficient facts on the basis whereof the court could record the requisite satisfaction as stipulated in the said Rule before ordering inspection of the Electoral Roll. Rule 93 provides that the documents mentioned in sub-rule (1) thereof shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the orders of the competent court. Clause (d) of sub-rule (1) of Rule 93 refers to marked copy of the Electoral Roll. It is trite that inspection under the said Rule can be allowed only when the following two conditions are satisfied: (i) The material facts on the basis of which inspection of documents is sought, must be clearly and specially pleaded; and (ii) The Court must be satisfied on evidence, even if in the form of affidavit, that it is necessary to allow inspection in the interest of justice. It is equally well settled that the inspection of the documents mentioned in sub-rule (1) cannot be allowed as a matter of course and a prayer for inspection must be refused by the Court if it is satisfied that in the garb of inspection, a defeated candidate is indulging in a roving enquiry in order to fish out materials for getting the election set aside....” 5. Counsel for respondent No.1 has, on the other hand, argued that the allegation of his client is that postal ballots have been misused and actually votes have been cast on those ballots by impersonation and by utilizing un-dispatched postal ballots. He has relied upon Sharvan Kumar vs Sumeet Kumar Garg, 2003(1) Civil Court Cases 456 (P&H) wherein this Court held as follows :- “ 5. I have thoughtfully considered the rival contentions raised by the learned counsel. It is appropriate to make a reference of the provisions of Order XI Rule 14 of the Code which deals with the production of documents and the same reads as under :- ‘ORDER XI DISCOVERY AND INSPECTION 1 to 13 xx xx xx xx 14. I have thoughtfully considered the rival contentions raised by the learned counsel. It is appropriate to make a reference of the provisions of Order XI Rule 14 of the Code which deals with the production of documents and the same reads as under :- ‘ORDER XI DISCOVERY AND INSPECTION 1 to 13 xx xx xx xx 14. Production of documents.- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right: and the Court may deal with such documents, when produced, in such manner as shall appear just.’ A perusal of above quoted rule shows that it deals with production of documents and there is hardly any room to refuse such a request. The only exception which could be is with regard to privilege documents under Sections 122, 123 and 124 of the Evidence Act, 1872. However, the rule is confined to production of only those documents which relate to any fact in issue or relevant facts. The same is entirely different than Rule 12 which is confined to discovery of documents. Under Rule 14, all the documents listed in the application are required to be produced as long as they are found to be relevant to any matter in question raised in the suit. However, the position is different in so far as discovery of documents is concerned which is dealt with by Rule 12 of Order XI of the Code. According to Rule 12, the Court may issue direction to any party to the suit to make discovery on oath of the documents which are or have been in his possession or power. If such discovery is found to be unnecessary, then such a prayer can always be declined on the ground that it is not necessary for disposing of the suit.” 6. Counsel for respondent No.1 has also relied upon New India Assurance Company Ltd vs Sumer Chand and others, 2005(2) Civil Court Cases 183 wherein the Rajasthan High Court held as follows :- “ 5. Counsel for respondent No.1 has also relied upon New India Assurance Company Ltd vs Sumer Chand and others, 2005(2) Civil Court Cases 183 wherein the Rajasthan High Court held as follows :- “ 5. In my considered opinion position of law as is found under Order 11 Rule 12 and 14 C.P.C is that the documents containing information, directly or indirectly, enabling a party to advance his own case or to damage his opponent’s are document which relate to the matter in question in the suit. In fact, the object of Order 11 Rule 12 is also to elicit admission from the opposite parties that may obviate the necessity to produce lengthy evidence and expedite disposal. 6. Even document which will throw any light on the case is a document relating to a matter in dispute in the proceeding, though it might not be admissible in evidence. As a general rule, party is bound to produce every document in his possession or power which is material or relevant to the suit, unless it is covered by some established privilege. 7. The court has power and jurisdiction to make an order for production of documents at any time (stage) during the pendency of any suit. Such an order can be made only if two pre-conditions are satisfied, namely, that the documents must be in possession or power of the party against whom the order is made and secondly, the documents must relate to the matter in question of the suit.” 7. In my opinion, the first argument of counsel for the petitioners has to fail. The trial Court has rightly noticed that the whole case of respondent No.1 is based on the allegation of casting ballots by impersonation and that he could not lead any evidence till this record is produced before him. Whether the judgment of the Hon’ble Supreme Court in Smt Rekha Rana’s case (supra) based as it is on a construction of the Representation of People Act, and more particularly an election petition there under, would apply stricto sensu to a civil suit is just one point. Further even in that case, the Hon’ble Supreme Court held that ‘secrecy of ballots’ must yield to ‘purity of election’. 8. Further even in that case, the Hon’ble Supreme Court held that ‘secrecy of ballots’ must yield to ‘purity of election’. 8. As regards the second argument of counsel for the petitioners, it may be noticed that respondent No.1 is not seeking to see in which particular way the voter has voted but only material which would show how many ballot papers were actually dispatched, how many were sent back and whether the ballot papers received bear the signatures of the voters ( and this would also meet the argument based on the decision of the Hon’ble Supreme Court in Rekha Rana’s case (supra). 9. As regards the third argument of counsel for the petitioners, I find some weight in the same. However, counsel for respondent No.1 has countered this by stating that respondent No.1 has no objection in going to Chennai and inspecting the record. This offer completely displaces the argument of counsel for the petitioners. In fact, it may be noticed here that counsel for the petitioners has himself stated, on instructions from the Secretary of the petitioner-association who is present in Court, that he has no objection in showing the record relating to dispatch and receipt of ballot papers. In my opinion this offer further advances the case of respondent No.1 because if the petitioner-association is ready to show the record relating to dispatch and receipt of ballot papers to test the claim whether the same have been duly dispatched and received, it should have no objection in showing the other record also because it all deals with the allegation of respondent No.1 that in fact ballots have been cast by impersonation. 10. In these circumstances, it is directed that respondent No.1 can visit the office of the petitioner-association and can inspect the record sought by him in the said office. Thereafter, respondent No.1 would obviously have the right to summon any specific record which may tend to prove his allegation. For the purpose of ensuring access to the record, counsel for respondent No.1 has further prayed that some mechanism should be evolved whereby it can be ensured that the petitioners grant full access of the record. In this regard, he has further offered that respondent No.1 is willing to bear expenses of a Local Commissioner who may oversee the process of giving access of the record to respondent No.1. 11. The offer is eminently fair. In this regard, he has further offered that respondent No.1 is willing to bear expenses of a Local Commissioner who may oversee the process of giving access of the record to respondent No.1. 11. The offer is eminently fair. In the circumstances, Shri Rohan Chaudhary, Advocate of this Court is appointed as Local Commissioner to visit Chennai along with respondent No.1 to oversee that respondent No.1 gets access to the record sought by him. It would be prudent to make arrangements for the visit over two days. The Local Commissioner has indicated that it would be possible for him to visit Chennai on 10th and 11th of June, 2010. Counsel for respondent No.1 assures the Court that arrangements would be made for the Local Commissioner to fly to Chennai on the 10th of June, 2010 and come back on the 11th of June, 2010. Apart from Airline tickets, fee of the Local Commissioner shall be Rs.25,000/- all inclusive. Counsel for respondent No.1 undertakes to deposit the fee and hand over tickets to the Local Commissioner on or before 28.5.2010 so that he can finalize his travel plans. 12. With this modification, the present revision petition is disposed of with no order as to costs. 13. As the main petition has since been disposed of, all the pending civil miscellaneous applications, if any, also stand disposed of. 14. Copies of this order be given dasti to counsel for the parties as also to the Local Commissioner under the signatures of the Court Secretary. --------------