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2011 DIGILAW 2650 (RAJ)

Dinesh Joshi v. Govind Singh

2011-12-01

MOHAMMED RAFIQ

body2011
JUDGMENT : Mohammed Rafiq, J. This application has been filed under Section 87 of Representation of the People Act, 1951 (for short -'the Act of 1951'), read with Order 13 of the Rules framed by High Court for Election Petition thereunder and Order 16 Rule 1 of Civil Procedure Code (for short-'CPC') for taking on record the list of witnesses and summoning the witnesses. 2. Shri J.P. Goyal, learned senior counsel for the petitioner has argued that the petitioner filed the application within a period of 15 days as prescribed by Order 16 Rule 1 because Section 87 of the Act of 1951 has extended provisions of Civil Procedure Code to the trial of an election petition before this Court. Even if, therefore, the separate rules are framed, the fact is that, the petitioner was mislead by provisions of Section 87 and on that basis bonafidely presumed that Civil Procedure Code is applicable and therefore filed the list of witnesses with somewhat delay. This constitutes sufficient cause for condoning the delay and taking the list of witnesses on record by invoking Section 148 or 151 of Civil Procedure Code and by applying the provisions of Section 5 of the Limitation Act. Learned counsel in support of his arguments relied on the judgment of Supreme Court in Salem Advocates Bar Association v. Union of India 2005(2) ACJ 492 (S.C.) : 2005(3) CivCC 420 (S.C.): 2005(6) SCC 344 and specifically referred to para 41 and 43 thereof, wherein the observations were made by the Supreme Court with regard to applicability of Section 148 and 151 Civil Procedure Code. His submission is that Section 148 has not been held to be so rigid. Section 148 limits the extension of time upto 30 days for doing any act prescribed or allowed by the Code, which the Court requires a party to do and has provided that Court may in its discretion enlarge such period not extending 30 days in total. The Supreme Court in Salem Advocates Bar Association, supra has held that when the circumstances warrant, the Court may extend such period further by invoking Section 151 of Civil Procedure Code. The Supreme Court in Salem Advocates Bar Association, supra has held that when the circumstances warrant, the Court may extend such period further by invoking Section 151 of Civil Procedure Code. He also relied on the judgment of Supreme Court in Lalithai Rai v. Aithappa Rai 1995(2) CivCC 685 (S.C.) : 1995(4) SCC 244 wherein also it was held that the courts below erred in dismissing the application enclosing the list of witnesses on the ground of delay. 3. Per contra, Shri Parag Rastogi, learned counsel for the respondent has opposed the application and argued that such list of witnesses according to Rule 13 of the Election Petition Under the Representation of People Act, 1951 was required to he filed within a period of seven days from the date of framing of issues. In the present case, the issues were framed on 09.11.2011 and the list of witnesses along with application was filed on 24.11.2011, therefore, this is barred by limitation and it cannot be taken on record. His submission is that if the election petitioner now wants to adduce his evidence, he has to himself bring witnesses without the assistance of the Court as per the provisions of Order 16 Rule IA of Civil Procedure Code. In this connection, he has relied on the judgment of Supreme Court in Mange Ram v. Brij Mohan & Ors. 1983(4) SCC 36 . 4. Shri Parag Rastogi, learned counsel for the respondent further submits that this issue has been decided by this Court in Shrilal Janva v. Udairam Dhakad 1981 RLW 37. In that case, this Court allowed the time of two weeks to the parties to the election petition to file list of witnesses, even though in Rule 13, which was originally inserted as Rule 745-M in the Rajasthan High Court Rules provided for a time limit of seven days. It was held that neither Section 5 of the Limitation Act, nor Section 151 of Civil Procedure Code would he applicable in such a situation and the delay caused in filing of the list, cannot be condoned. The similar view has been again expressed by this Court in Narpat Ram Barwar v. Shri Mohan Meghwal 1996(1) RL W Raj. 466. The Supreme Court in Anwari Kasavaraj Patll & Ors. v. Slddaramaiah & Ors. The similar view has been again expressed by this Court in Narpat Ram Barwar v. Shri Mohan Meghwal 1996(1) RL W Raj. 466. The Supreme Court in Anwari Kasavaraj Patll & Ors. v. Slddaramaiah & Ors. AIR 1994 SC 512 , has held that the provision of Limitation Act are not applicable to the proceedings of an election petition. In that case, the recrimination petition was filed with delay and it was held that such delay could not he condoned by invoking Section 5 of the Limitation Act. 5. Faced with this situation, Shri J.P. Goyal, learned senior counsel submits that this Court has the power to even otherwise summon the witnesses with reference to sub-rule (3) of Rule (1) of Order 16 because there are three provisions in Civil Procedure Code for three different situations namely sub-rule (1) of Rule (1) of Order 16, sub-rule (3) of Order 16 and sub-rule (1 A) of Order 16 of Civil Procedure Code. 6. Shri Parag Rastogi, learned counsel for the respondent opposed this argument by submitting that when In law, list of witnesses has not been summoned by the petitioner within a period of seven days, the petitioner has to himself produce the witnesses without the assistance of this Court. Shri Parag Rastogi, learned counsel for the respondent has argued that sub-rule (3) Rule (1) of Order 16 can be Invoked only if the election petitioner had failed to submit the list of witnesses and has made omission to mention the names of witnesses in such list, but the power may not be available to this Court in a case where there is no list at all within the prescribed period. 7. I have given my thoughtful consideration to the rival submissions and perused the material on record. 8. The question as to whether Section 151 of Civil Procedure Code can be invoked in such a situation or Section 5 of the Limitation Act can be applied to condone the delay in submitting the list of witnesses by the petitioner, has been concluded against the petitioner by two judgments of this Court in Shrilal Janva, (supra) and Narpat Ram Barwar, (supra). The Supreme Court in Anwari Basavaraj Patil, (supra) has also held that Section 5 of the Limitation Act would not be applicable to proceedings of an election petition and therefore the prayer of the petitioner for condoning the delay in filing the list of witnesses has to be rejected. Even otherwise, the law is well settled that when a specific provision is attracted in a fact situation, the provisions of Section 151 of Civil Procedure Code cannot be invoked to cover that situation. In the circumstances, therefore, petitioner has to himself procure the attendance of his witnesses and present them for evidence. 9. As far as the issue that this Court has the power to even otherwise summon the witnesses with reference to sub-rule (3) of Rule (1) of Order 16 Civil Procedure Code is concerned, it is left open to he raised by the parties and considered by the Court at a later stage because even in that, intention of the legislature appears to be to restrict that power for summoning very limited number of witnesses in extraordinary situation and exceptional circumstances for reasons to be recorded. Keeping that issue open, the matter is deferred to enable the petitioner to produce his witnesses in evidence. 10. The application is accordingly disposed of. Shri Parag Rastogi, learned counsel for the respondent submits that before the petitioner is allowed to produce his witnesses, let the arguments be heard on issue Nos.7, 8 and 9 and application under Order 6 Rule 16 and Order 7 Rule 11 Civil Procedure Code which may not require recording of any evidence. 11. This is also admitted by Shri J.P. Goyal, learned senior counsel appearing for the petitioner that arguments on those issues and the applications can be heard and decided without necessity of recording of evidence. 12. The petition is, therefore, ordered to be listed on 13.12.2011 with the observation that no adjournment shall he granted on that date.