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2010 DIGILAW 351 (RAJ)

C. P. Joshi v. Kalyan Singh Chouhan

2010-02-10

PRAKASH TATIA

body2010
JUDGMENT Hon'ble TATIA, J.-The respondent sought dismissal of the election petition under Section 86(1) of the Representation of People Act, 1951 (for short "the Act of 1951") on the ground of non-supply of list of documents filed along with the present election petition, which is being decided by this order. 2. The respondent submitted this application under Section 86(1) of the Act of 1951 on the ground that though the copy of the election petition was served on the respondent containing pages from 1 to 26 with index, but does not contain the list of documents filed by the petitioner along with the election petition under rule 12 of the Rules in regard to the election petition under the Representation of People Act, 1951 read with Order 7 Rule 14 CPC and Order 14 Rule 4 CPC. This fact that copy of the list of documents has not been supplied to the respondent came to the knowledge of the respondent only when this Court on 19.11.2009, after giving reference of this list of document, allowed the petitioners application for summoning of the documents. In view of the above, this petition is liable to be dismissed as the election petitioner does not comply with the provisions of Sees. 81 or 82 or 117 of the Act of 1951. 3. The election petitioner submitted reply to the application and admitted that copy of the list of documents referred above, has not been served and supplied to the respondent and stated that it was not required to be supplied to the respondent as the list of document submitted by the petitioner at the time of presentation of the election petition, is neither annexure nor schedule to the election petition. It is also submitted that above list was produced in the Court when the election petition was presented before this Court and not "along with the election petition", therefore, was not required to be served upon the respondent along with the copy of the election petition. The petitioner denied that list of document forms part of the election petition. It is also submitted that above list was produced in the Court when the election petition was presented before this Court and not "along with the election petition", therefore, was not required to be served upon the respondent along with the copy of the election petition. The petitioner denied that list of document forms part of the election petition. It is also submitted that the respondent has filed this application to delay the proceedings of the election petition and the election petitioner seriously questioned the bona fide of the respondent in moving this application at this belated stage with the plea that the fact of submitting list of document by the petitioner in this election petitioner came to the knowledge of the respondent only from the order of this Court 19.11.2009 wherein there is a reference of this list. 4. The learned counsel for the respondent submitted that as per sub-rule (2) of Section 83 of the Act of 1951, any schedule or annexure to the petitioner is also required to be signed by the petitioner and verified in the same manner as the petition. Sub-rule (3) of Section 81 of the Act of 1951 also provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The learned counsel for the applicant relied upon the judgment of the Hon'ble Apex Court delivered in the case of Mulayam Singh Yadav vs. Dharam Pal Yadav (2001) 7 SCC 98 ). 5. In another case, M. Karunanidhi vs. H.V. Handa & Ors. & connected writ petitions ( AIR 1983 SC 558 ), Hon'ble the Supreme Court dismissed the election petition as copy of photograph was not supplied as required under Section 81 (3) of the Act of 1951. 6. 5. In another case, M. Karunanidhi vs. H.V. Handa & Ors. & connected writ petitions ( AIR 1983 SC 558 ), Hon'ble the Supreme Court dismissed the election petition as copy of photograph was not supplied as required under Section 81 (3) of the Act of 1951. 6. The learned counsel for the respondent vehemently submitted that the petitioner's contention that list of documents referred above is not part of the election petition, is factually wrong, as the list of documents was tagged in the election petition itself and when the election petition was submitted in the High Court, office also reported in the election petition that list of documents also have been filed in the election petition and while admitting the election petition, by order dated 25.2.2009, this Court specifically mentioned that along with the election petition, the list of documents has been filed. 7. The learned counsel for the petitioner submitted that when the averments are complete in the election petition, then the election petition cannot be dismissed on the ground of non-supply of evidence to the respondent. It is submitted that in the case of Smt. Sahodrabai Rai vs. Ram Singh Aharwar and others ( AIR 1968 SC 1079 ), Hon'ble the Supreme Court held that the documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or tiled with the election petition they are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. In said case, non-supply of the copy of the pamphlet was not found any good reason for dismissing the election petition. The same view was taken in the case of Mohan Rawale vs. Damodar Tatyaba Alias Dadasaheb and others (1994) 2 SCC 392 ). In the case of Manohar Joshi vs. Nitin Bhaurao Patil & Am. In said case, non-supply of the copy of the pamphlet was not found any good reason for dismissing the election petition. The same view was taken in the case of Mohan Rawale vs. Damodar Tatyaba Alias Dadasaheb and others (1994) 2 SCC 392 ). In the case of Manohar Joshi vs. Nitin Bhaurao Patil & Am. (1996) 1 SCC 169 ), it has been held that when the contents of the documents are fully incorporated in the election petition itself and the documents are produced merely of evidence of the averments made in the petition, the non-supply of such documents would not be fatal to the petitioner and that has been held after considering the object behind Section 81(3) of the Act of 1951 and in this case, Smt. Sahodrabai Rai's case (supra), M. Karunanidhi's case (supra) and other cases were also considered. The learned counsel for the petitioner, with the help of the judgment of the Hon'ble Supreme Court delivered in the case of A. Madan Mohan vs. Kalavakunta Chandrasekhara ( AIR 1984 SC 871 ) submitted that Hon'ble the Supreme Court even held to the extent that there was no requirement that the documents or the schedules should also have been served on the petitioner because if they were filed in the court it was always open to the petitioner to inspect them and find out the allegations made in the petitioner and that has been held so after considering the case of Sahodrabi's case (supra). 8. I considered the submissions of the learned counsel for the parties and judgments referred above. 9. Hon'ble the Supreme Court in the case of Mulayam Singh Yadav (supra) held that, whether particular piece of document or annexure or schedule is integral part of the election petition or not, is required to be decided objectively having regard to the facts and circumstances and not merely on the basis of the averments made in the petitioner and it does not depend on whether or not the draftman of the election petition has so averred. Hon'ble the Supreme Court in above Mulayam Singh Yadav's case (supra) further held schedule 14 video cassette which could not be placed between two leaves and could not have been bound with the election petition to be a schedule annexed to the election-petition as integral part of the election petition. Hon'ble the Supreme Court in above Mulayam Singh Yadav's case (supra) further held schedule 14 video cassette which could not be placed between two leaves and could not have been bound with the election petition to be a schedule annexed to the election-petition as integral part of the election petition. Therefore, in view of the above decision of the Hon'ble Supreme Court it is not relevant that a document or schedule or annexure has been physically made integral part of a bunch of documents by taking them together or not. Even admission of the election petitioner that the disputed document/article is integral part of election petition is not material. In the case of Smt. Sahodrabai Raj's case (supra), the petitioner herself admitted that the annexure in question was part of the election petition, yet the Hon'ble Supreme Court held that the issue is not resolved on how the election petitioner viewed the matter but from the point of view of the requirement of the law on the subject. It the light of the above reasonings, it is irrelevant that the petitioner has sewed the list of documents referred above in the election petition and presented it in the High Court as such making it physically part and parcel of the election petition. In the present case, the clerk put his office report that the list of documents was also filed in the election petition and this Court while deciding petitioner's application for summoning of documents referred in the petitioner's application observed that list of documents has been filed with election petition and that observation was when the issue whether this list is integral part of election petition and whether copy of it is required to be served upon the respondent was essential, was neither raised by any party nor decided by the Court. The Court took this fact into consideration for the purpose of timing at which the list of documents was filed and has not decided the issue whether the list of documents is part of the election petition or supply of its copy to the respondent was necessary nor it could have decided the present issue in the order dated 9.11.2009. 10. 10. To find out whether the list of documents produced by the election petitioner in the manner referred above is a schedule or annexure to the petition under Section 93(2) of the Act of 1951 and further whether it is a document, copy of which is required to be supplied to the respondent, it is necessary to look into the nature of the said document as well as it is necessary to look into the pleadings whether the pleadings contained all the material facts and said list of documents is supplement to the averments made in the election petition and, without help of the said list of documents, the petitioner's pleading is incomplete and the petitioner cannot get the relief. 11. So far as the averments in the election petition are concerned, they are self-content stating the complete facts. In the pleadings as stated in the election petition, the petitioner has, referred the facts relating to the documents mentioned in the list of documents independently to the list and if this list as such is taken out from the election petition even then the facts relating to the material averment for documents mentioned in the list of documents and for maintaining the election petition shall remain incorporated in the election petition. In the list of documents, there is a description of the documents only and that is already in the election petition also. 12. This list itself is not the evidence nor is required to be proved as document for the purpose of proving any fact pleaded by the petitioner and, therefore, this list of documents cannot be treated to be an annexure annexed to the election petition making the election petition complete with the help of list nor can be treated to be a document which is required to be proved as such. In any petition including the election petition, some documents/papers are required to be submitted along with the petition which includes the file cover, the prescribed form the submitting the process fees and Vakalatnama etc., without which the petition may not be processed for listing the petition in court and they are required to be filed along with the petition itself but that will not make those documents as integral part of the election petition and consequently, will not require supply thereof to respondent. The copies of those documents need not to be supplied to the respondent and the court is required to ignore the timing of the filing of such document, the manner in which such document was filed and is required to look into the object and purpose for filing the same and also required to find out the nature of the document to arrive at the conclusion that whether it is necessary and integral part of election petition or not. 13. At this juncture it will be appropriate to look into the relevant provisions of law, i.e. Order 7 Rule 14 CPC and Order 14 Rule 4 CPC. As per Order 7 Rule 14, CPC, if plaintiff sues upon a documents or relies upon documents and those documents are in possession or power in support of his claim, then he is required to produce such documents. Such documents are required to be filed with the list of the such documents when the plaint is presented in the Court. The documents if are not in power and possession of the election petitioner, then as per sub-rule (2) of Rule 14 of Order 7, CPC, the plaintiff is required to state in whose possession or power, such documents are. Therefore, the petitioner, in the present case, in self-contend election-petition, containing the statement of the fact and points of law submitted list of documents, merely disclosing that the documents are not in election-petitioner's power and possession and put such note in the list of documents. The petitioner submitted this list of documents so that the court may, if necessary, order for production of documents referred in the list by invoking power under Order 14 Rule 4, CPC, which provides that where the Court is of the view that the issues cannot be correctly framed without the inspection of some documents not produced in the suit and are in possession of other persons, so that the court may summon those documents for the purpose of framing of issues. The list of documents itself is not a material piece to prove fact and it is not annexure containing statement of fact necessary for completing the pleading, nor it is a statement of legal ground which required to be proved and it itself is nothing more than an information that the election petitioner is intending to summon the documents from the third party. No election petition can be dismissed on non-proving of the list of documents. Therefore, the list of documents cannot be and need not be an integral part of the election petition and its putting together with the election petition's papers and presenting along with the election petition, is itself is not sufficient to hold it to be an integral part of the election petition. 14. Hon'ble the Supreme Court in the case of Smt. Sahodrabal Rai's case (supra) held that "trial of the election petition has to follow as far as may be the provisions of the Code of Civil Procedure" and, thereafter, Hon'ble the Supreme Court compared the procedure provided under the Code of Civil Procedure with the election law to find out whether there is any difference in the two procedure and then held as under:- "We have already pointed out that Section 81(3) speaks only of the election petition. Pausing here, we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original. Even if this be not the case, we are quite clear that sub-section (a) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petitioner but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the farmer days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are than treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity, and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefor must be treated as a document and not as a part of the election petition in so far as averments are concerned. When the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be thought that she had not produced the dominant in time. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. It would be stretching the words of sub-section (2) of section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. In this particular case we do not think that the pamphlet could be so treated. We are, therefore, of the opinion that whether or not section 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regarding to the filing of the election petition or the service of the copies thereof and the order under appeal was therefore erroneous." 15. In view of the above decision of the Hon'ble Supreme Court, list of documents itself is not necessary document, copy of which is required to be supplied to the respondent along with copy of the election petition. In view of the above decision of the Hon'ble Supreme Court, list of documents itself is not necessary document, copy of which is required to be supplied to the respondent along with copy of the election petition. The petitioner's case stands on higher footing than the case before Hon'ble the Supreme Court in the case of Smt. Sahodrabai Raj's (supra), as the petitioner, merely complied with the requirement of law by submitting the list of documents. 16. It will be worthwhile to mention that in the case of Monohar Joshi (supra), Hon'ble the Supreme Court held that where contents of the documents are fully incorporated in the petitioner itself and the documents are produced merely as evidence of the averments made in the petition, non-supply of such documents would not be fatal to the petitioner. In view of the above reasons also, non-supply of list of documents to the respondent is not material nor it is fatal. 17. This application has been submitted by the respondent on 4.1.2010, in the election petition which was filed in the Court on 16.1.2009. Notice of the election petition was served upon the respondent in the month of April, 2009. The respondent submitted two applications earlier which were dismissed and, thereafter; the petition was posted for framing of issues and admission and denial, then on 8.12.2009 and 15.12.2009 the respondent sought adjournment and, thereafter, the respondent submitted this application with the plea that he came to know about this list of documents only when this Court passed the order on 19.11.2009, wherein there is a reference of this list. The plea taken by the respondent cannot be accepted as bona fide plea. Hon'ble the Supreme Court in the case of A. Madan (supra), as back as in the year 1994, held that if the documents were taken in court, it was always open to the party to inspect the documents and find out the allegations, obviously, contents of the documents. Therefore, the petitioner is required to be compensated with cost. 18. Hence, the application of the respondent dated 4.1.2010 filed under Section 86(1) of the Representation of the People Act, 1951 is dismissed with cost of Rs. 5,000/- 19. Put up on 16.2.2010 for admission, denial and for framing issues.