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2011 DIGILAW 926 (GAU)

Duter Padu v. Gadam Ete.

2011-11-24

I.A.ANSARI

body2011
ORDER I.A. Ansari, J. 1. This miscellaneous application has arisen out of an election petition which has given rise to Election Petition No. 3 of 2009. The respective cases of the parties to the election petition are, in substance, thus : (i) The election petitioner, Smti Duter Padu, had contested the Assembly Elections, in Arunachal Pradesh, held, on 13-10-2009, from No. 30 Along West (ST) Assembly Constituency, as a nominee of the All India Trinamul Congress. The respondent, Sri Gadam Etc. was the only other candidate, who had contested the election as a nominee of Indian National Congress. In order to appreciate the result of the election, so held, the following particulars need to be borne in mind so that the present miscellaneous application can be effectively disposed of. These particulars are as under: a. The total number of voters, in the said constituency, is 1,11,785. b. Votes polled, including Postal Ballots, were 10,228. c. Total number of Postal Ballots issued were 429. d. Postal Ballots polled, in favour of respondent, i.e., the returned candidate, were 218. e. Postal Ballots polled, in favour of the election petitioner, were 174. f. Votes polled by the respondent, i.e., the winning candidate, were 5,113. g. Votes polled by the election petitioner were 5,082. h. The total number of votes rejected were 33 (All Postal Ballots) The difference in the votes, secured by the election petitioner and the respondent, is, thus only 31 (thirty one) votes. The election petitioner has challenged the election of the respondent on the grounds that (a) the election of the respondent is illegal, null and void 'on the ground of improper reception of void Postal Ballots, which has materially affected the result of the election under Section 100 (1)(d)(iii)of the Representation of People Act, 1951 (in short, 'RP Act') and for a declaration that the election petitioner had, in fact, received the majority of the valid votes and (b) for a declaration that the election of the respondent is illegal, null and void, on the ground of commission of corrupt practices under Section 123 (7) of the RP Act. 2. 2. Basic complaint of the election petitioner, as discernible from the election petition, may, in brief, be set out as under : (i) Altogether 90 Postal Ballots of No. 30 Along West (ST) Assembly Constituency were booked, on 12.10.2009, at Along Post Office, by registered post by the Returning Officer (in short, 'RO'). Records, maintained by the RO, establishes the fact that 90 (later on, transpired to be 89) registered letters, containing Postal Ballots of the No. 30 Along 'West (ST) Assembly Constituency, 'were, in fact, received, on 12.10.2009, by Along Post Office. However, Postal Records, according to the election petitioner, show that after the registered letters containing the Postal Ballots were booked by registered post at the said Post Office, as many as 69 such Postal Ballots went missing from the custody of the postal employees, namely, Dipen Deka and Jatin Dihingia. The election petitioner also claims that the postal records confirm that out of the 90 Postal Ballots, only 21 of the Postal Ballots had actually been delivered to the genuine addressees by the Postal Department and, on delivery thereof being made, the said 21 Postal Ballots were also returned back to the RO by the Postal Department, but the remaining 69 Postal Ballots went missing and could not be traced out by the Postal Department at any point of time. (ii) It is the case of the election petitioner that these 69 Postal Ballots had actually been taken away by the supporters of the respondent after those were booked by registered post, on 12.10.2009, at the Along Post Office and, therefore, fake votes were cast by means of the said stolen Postal Ballots in favour of the respondent. (iii) According to the election petitioner, a bundle of the said 69 Postal Ballots, all forged and spurious, were delivered, by hand, to one postal employee, namely, Smti Sukuni Sharma, outside the said Post Office by some unidentified person, on 20-10-2009, at about 7 a.m. In turn, those 65 forged Postal Ballots were handed over to the Assistant Returning Officer (in short, 'ARO'). (iv) It is also the case of the election petitioner that records establish that as many as 40 Postal Ballots from the said bunch of 65 forged Postal Ballots had been counted in favour of the respondent by the RO and, in consequence of the reception of the said 65 Postal Ballots, respondent was declared to have won the election. The entire chain of events, contends the election petitioner, took place with the knowledge, consent and under the instructions of the respondent. 3. Further case of the election petitioner is as under : (i) Out of the several applicants, who had not received the Postal Ballots, 13 electors had filed affidavits before the RO testifying the said fact and, out of those 13 applicants, 5 persons, who had not received the Postal Ballots, had written letters to the RO, on 20-10-2009, informing him about the fact that they had not received Postal Ballot. This apart, the election agent of the petitioner lodged a written complaint with the RO, on 21-10-2009, requesting him to cancel all those 65 Postal Ballots recovered from Smti Sukuni Sharma and the said complaint, as regards the 65 Postal Ballots, was disposed of by the RO by the order, dated 22-10-2009, in presence of both parties to the election petition and the records confirm that those 65 Postal Ballots recovered, on 20-10-2009, from Sukuni Sharma, were the ones stolen froml the Post Office on 12-10-2009. On recovery of the 65 Postal Ballots from Sukuni Sharma, the RO had initially rejected 48 Postal Ballots holding them to be tampered, but, later on, counted, without any valid reason, in favour of the winning candidate, as many as 17 Postal Ballots out of the said lot (65-48=17). The act of reception of the said 17 Postal Ballots is under challenge in the present election petition. (ii) The election petitioner also contends that surprisingly enough, having rejected 48 Postal Ballots from the bundle of 65 Postal Ballots by his order, dated 22-10-2009, the RO had, eventually, counted, in favour of the respondent, another 23 Postal Ballots from the said lot of 48 rejected Postal Ballots. The reception of the said 23 Postal Ballots is also under challenge. The reception of the said 23 Postal Ballots is also under challenge. Thus, altogether 40 (17+23) forged Postal Ballots were, according to the election petitioner, counted in favour of the respondent from the bundle of 65 Postal Ballots, which were, admittedly, recovered from Smt. Sukuni Sharma, the same having been handed over to her by some unknown person outside the said Post Office. (iii) Thus, in total, as many as 40 Postal Ballots front the said bundle of 65 Postal Ballots were, ultimately, counted, submits the election petitioner, illegally in favour of the returned candidate. The Postal Department had not only lodged FIRs with the police informing them about the missing Postal Ballots, but had also initiated departmental proceedings against Smt. Sukuni Sharma. Depen Deka and Jatin Dihingia, the three Postal Department employees, who had been identified to be associated with the disappearance of the Postal Ballots. As a matter of fact, Sukuni arrested by police in connection with the said incident and her statement had been recorded and the case is still pending for investigation. (iv) The RO's record confirms that 90 (later on, transpired as 89) Postal Ballots were booked, on 12.10.2009, at the Along Post Office. Postal records confirm that out of those 90 Postal Ballots, 69 Postal Ballots went missing after those were booked on 12.10.2009, by registered post. Postal Department has confirmed and reconfirmed, by issuing communications, under the Right to Information Act, 2005 that 69 Postal Ballots went missing soon after those were booked on 12.10.2009, at Along Post Office. The Postal Department has also confirmed that the Department had never delivered any of the said 69 Postal Ballots to the addressees nor had those Postal Ballots been returned by the applicants through the Postal Department. The Post Masters of all the concerned Post Offices have confirmed the fact that the said Postal Ballots had never been received by the concerned Post Offices. As a matter of fact, by the letter dated 20-11-2009, the Postal Department had confirmed that those 69 Postal Ballots were traceless even several days after the poll results were declared. It is nobody case that the said 69 Postal Ballots were received by genuine applicants or that such applicants had, in fact exercised their franchise through those missing Postal Ballots or that those 65 Postal Ballots were delivered back to the RO through the Postal Department. 4. It is nobody case that the said 69 Postal Ballots were received by genuine applicants or that such applicants had, in fact exercised their franchise through those missing Postal Ballots or that those 65 Postal Ballots were delivered back to the RO through the Postal Department. 4. In the election petition, the petitioner has given a table, namely, "Table AB" giving therein the name, address, registered Letter Number and destination of each of the said 69 Postal Ballots, which went missing, on 12-10-2009, from the Along Post Office. The election petitioner has categorically pleaded that out of the 65 forged Postal Ballots recovered from Smti. Sukuni Sharma, the RO has, in fact, counted, in favour of the returned candidate, as it many as 40 forged Postal Ballots. That apart, another 4 void Postal Ballots, not belonging to the bundle of the said 65 Postal Ballots, the details of which have been furnished at paragraph 10 (XVII) to 10 (XIX) of the election petition, were also fraudulently issued and, subsequently, counted by the RO in favour of the returned candidate. Thus, according to the election petitioner, altogether 44 void Postal Ballots had been improperly received by the RO in favour of the returned candidate. These 44 Postal Ballots can be identified with certainty on the basis of available poll records/registers. If these 44 Postal Ballots are taken out of the purview of the poll process, then, the result of the election would be materially affected inasmuch as the election petitioner would become the winning candidate by a margin of 13 votes. 5. It is also the pleaded case of the election petitioner that the respondent was all along aware of mischief played in respect of the Postal Ballots, but he or his election agent had never, at any point of time, raised any objection nor did anyone of them make any complaint before any authority or express their surprise. Till date, the respondent has maintained complete silence on the entire episode. On the contrary, the respondent has influenced the RO on 21-10-2009 and, at the counting hall, on 22-10-2009, pressurized the RO. As a sequel thereto, the said void Postal Ballots were counted in favour of the respondent thereby procuring the assistance of the RO for furtherance of his poll prospect. On the contrary, the respondent has influenced the RO on 21-10-2009 and, at the counting hall, on 22-10-2009, pressurized the RO. As a sequel thereto, the said void Postal Ballots were counted in favour of the respondent thereby procuring the assistance of the RO for furtherance of his poll prospect. It is those 44 void Postal Ballots, counted in favour of the respondent, which have materially altered the result of the poll. 6. In the backdrop of the case, which the election petitioner has set up, let me, now, consider the present misc, application. 7. While considering the present misc. application, it needs to be borne in mind that the case of the respondent is that of denial and that the respondent has not set up any specific case. 8. The material facts, giving rise to this order, which I propose to pass, can be well appreciated by taking note of the order, dated 03.11.2011, which was passed in this Misc. Application, made by the respondent. The order, dated 3.11.2011 is, therefore, reproduced below : By making this miscellaneous application, the applicant, who is respondent in the election petition, have sought for appropriate direction of the Court for issuance of summons to the witnesses, mentioned in the list of witnesses (Enclosure-1 to the Misc. Case) for recording their evidence in the present election petition. Heard Mr. S.S. Dey, learned counsel for the applicant, and Mr. S. Shyam, learned counsel for the election petitioner-opposite party Mr. Shyam, learned counsel for the opposite party, has raised objection to the prayer for summoning of the witnesses by pointing out Court that the respondent-applicant has the duty, under Order XVI, Rule 1(2) of the Code of Civil Procedure, to apprise the Court the purpose for which the witnesses are being sought to be summoned. Reacting to the submission, so made by Mr. Shyam, Mr. S.S. Dey, learned counsel for the applicant, seeks some time to file additional affidavit in this miscellaneous case. In view of the above and in the interest of justice, this miscellaneous case along with the election petition and other miscellaneous cases flied in the election petition, ore hereby directed to be listed, on 11-11-2011, for orders. In the meanwhile, the respondent-opposite party shall file additional affidavit, as has been sought for on his behalf. 9. In view of the above and in the interest of justice, this miscellaneous case along with the election petition and other miscellaneous cases flied in the election petition, ore hereby directed to be listed, on 11-11-2011, for orders. In the meanwhile, the respondent-opposite party shall file additional affidavit, as has been sought for on his behalf. 9. Subsequent to the passing of the above order, dated 3.11.201 the respondent has filed an additional affidavit and the election petitioner has filed her objection thereto. 10. Considering the fact that in his additional affidavit, the respondent claims to have assigned reasons for the purpose of getting summons issued to the witnesses, the relevant portion of the additional affidavit is reproduced hereinbelow : (a) In the list of witnesses submitted by the sole respondent of the election petition, the witness No. 1 is the sole respondent himself/ returned candidate and the witness No. 2 is his election agent whose evidences are very much relevant for proper adjudication of the election petition. (b) The witnesses No. 3, 4, 5 and 8 were the counting agents of the respondent in the election in question. Hence, their evidences are also relevant for proper adjudication of the election petition. (c) Tile witnesses No. 6, 7, 9 to 36 and 40 would like to adduce their evidences regarding postal ballots and casting votes by postal voters as well as to disprove other incorrect allegations made by the election petitioner. (d) The witnesses No. 37, 38, 39 are official agents who were deputed during counting process to supervise, as such, they are required to prove the authenticity of counting process and to clarify the allegations levelled by the election petitioner. 11. While considering the respondent's prayer for summoning the witnesses, it needs to be noted that the respondent has not only in the application, which has given rise to the present Misc. Case, but also in the additional affidavit has given a list of witnesses, which list includes not only the respondent himself and his election agents, but as 111 any as 39 other witnesses. It is, in the context of such an application, that the objection, raised by the election petitioner, needs to be considered. 12. Case, but also in the additional affidavit has given a list of witnesses, which list includes not only the respondent himself and his election agents, but as 111 any as 39 other witnesses. It is, in the context of such an application, that the objection, raised by the election petitioner, needs to be considered. 12. Resisting the prayer for summoning the witnesses, the election petitioner has filed her objection, 'which, in effect, runs as under : (i) The respondent's prayer for not only summoning his election agent, but also the respondent himself, is not only contrary to the principles of law enshrined in Order XVI, Rule 1 of the Code of Civil Procedure (in short the 'CFC') but the same defies all logic. Thus, the prayer for summoning even the respondent has been made with mischievous intention of avoiding the obligation, imposed by law, on the respondent, to give his evidence-in-chief on affidavit and, if the respondent's prayer is allowed, the same would result in abuse of law. This apart, the respondent has not furnished any explanation whatsoever as to why summons need to be issued to him and why he needs summons to be issued in order to secure presence of his election agent to give evidence. The purpose, contends the respondent, is obvious, the purpose being to circumvent the obligation of filing of examination-in- chief on affidavit. (ii) As far as witness Nos. 3, 4 and 8 are concerned, they were counting agents for the counting of votes from EVM and their evidence, points out the election petitioner, is not at all material for the purpose of the present case, which involves anomalies in acceptance of Postal Ballots and not other votes. As far as witness No. 5 is concerned, he was, submits the election petitioner, not even a counting agent and, hence, his evidence would have no relevance, more particularly, in the absence of any pleadings in the written statement in this regard inasmuch as the respondent's case, according to his written statement is merely a case of denial and he has no specific case to substantiate. In fact, points out the election petitioner, the respondent's denial, in his written statement, is vague and evasive inasmuch as the respondent's pleaded stand, as against the allegations made in the election petition, is that he can neither affirm nor deny. In fact, points out the election petitioner, the respondent's denial, in his written statement, is vague and evasive inasmuch as the respondent's pleaded stand, as against the allegations made in the election petition, is that he can neither affirm nor deny. (iii) The election petitioner also contends that as far as witness Nos. 6, 7, 9 to 36 and 40 are concerned, they are all businessmen, farmers and villagers. These persons are not Government servants and they were not, in any way, connected with Postal Ballots. There is no pleading in the written statement, which can be proved by oral evidence through any of these witnesses and, hence, testimony of such witnesses, according to the election petitioner would have no relevance in the present case and if the respondent is allowed to give evidence of such witnesses, on the strength of summons issued to them, then, it would only cause delay in the disposal of the election petition. The election petitioner also points out that the respondent cannot be allowed to give evidence dehors the pleadings in the written statement. (iv) It, is also agitated by the election petitioner that the respondent's case is, at best, a case of evasive denial inasmuch as the pleaded stand of the respondent is that the allegations, made in the election petition, can neither be affirmed nor be denied. Not to speak of the witness Nos. 37 to 39, there is, submits the election petitioner, no foundation in the pleadings of the respondent justifying any evidence to be adduced by any witness, particularly, when the respondent has not disclosed the purpose for which the witnesses are required to be summoned. The election petitioner contends that the purpose of summoning the witnesses is clearly an attempt to circumvent the rule of pleadings and to defeat the purpose with which Order XVIII, Rule 4 has been introduced by the Code of Civil Procedure (Amendment) Act, 2002, and such a prayer, if allowed, would be in conflict with the provisions of Order XVI, sub-rule (2) of Rule1 read with the proviso to Section 87 of the Representation of the People Act, 1951. The election petitioner also contends that except witness Nos. 1 and 2, respondent cannot, in the facts and attending circumstances of the present case, be allowed to examine, as a witness, any of the witness named in the respondent's list of witnesses. The election petitioner also contends that except witness Nos. 1 and 2, respondent cannot, in the facts and attending circumstances of the present case, be allowed to examine, as a witness, any of the witness named in the respondent's list of witnesses. This apart, for examining the said witnesses, submits the election petitioner, the respondent does not need issuance of summons and, as a matter of fact, none of the witnesses, whose names appear in Serial Nos. 3 to 40, is needed for effective decision of the election petition and that the respondent is trying to procure the presence of the witnesses on frivolous ground and with a view to delay the proceeding. This, according to the election petitioner, is evident from the fact that the respondent has completely failed to disclose any legally tenable purpose in order to get the witnesses summoned. The prayer for summoning the witnesses, submits the election petitioner, needs to be, and may, therefore, be rejected. (v) The respondent is, thus, contends the election petitioner, clearly trying to attempt to examine frivolous witnesses on the strength of summons to be issued by the Court with the sole object of delaying the trial of the election petition. The whole purpose, according to the election petitioner, is, thus, to delay the trial of the election petition on one pretext or the other. 13. Heard Mr. S.S. Dey, learned counsel, for the respondent-applicant and Mr. S. Shyam, learned counsel, for the opposite party-election petitioner. 14. What Mr. S.S. Dey, learned counsel, for the respondent-applicant, submits, in support of the present application is, in brief, thus: The witnesses, who are sought to get summoned, are relevant witnesses for the purpose of the case of the respondent. In respect of most of these witnesses, the respondent does not know what would be the evidence of the witnesses and, that is why, he has asked for issuance of summons to the witnesses. Mr. Dey has, however, not explained as to why the respondent wants to issue summons to the respondent himself to give his evidence as a witness and why he is not willing to examine himself and his witnesses by furnishing their examination- in- chief by way of affidavits. 15. Responding to the submissions, made by Mr. Dey. Mr. Mr. Dey has, however, not explained as to why the respondent wants to issue summons to the respondent himself to give his evidence as a witness and why he is not willing to examine himself and his witnesses by furnishing their examination- in- chief by way of affidavits. 15. Responding to the submissions, made by Mr. Dey. Mr. Shyam, learned counsel for the election-petitioner, has drawn the attention of this Court to the provisions of Order XVI, Rules 1,1-A and 2 and also to the provisions of Order XVIII, Rule 4 coupled with the proviso to Section 87of the Representation of the People Act and submitted that the scheme of the Code warrants filing of examination-in-chief by way of affidavit and these provisions have been made to end not only delay, which may be caused if presence of witnesses is required to be obtained by getting summons issued to them, but also frivolous examination of witnesses. If a witness is summoned, his evidence, points out Mr. Shyam, need not be filed on affidavit with the result that the salutary provisions of Rule 4 of Order XVIII would stand defeated. 16. It is, therefore, according to Mr. Shyam, in exceptional cases that one can resort to summoning a witness rather than asking the party to produce the witness if the evidence of the witness is, otherwise, relevant. The party, who wishes to call a witness by getting summons issued to him, has, therefore, contends Mr. Shyam, the onus to satisfy the Court not only with regard to the purpose for which the witness is sought to be examined, but also with regard to the purpose for which his evidence cannot be given by way of affidavit. It would, therefore, be, reiterates Mr. Shyam, in exceptional circumstances that a Court can allow a witness to be examined by issuing summons to him. 17. In the light of the reasons, which have been assigned by the respondent in order to get not only himself, but his other witnesses examined on being summoned by the Court and also in the light of the grounds on which the election petitioner has resisted the respondent's prayer for calling of witnesses, three questions of law of immense importance arise. These questions are: (i) What object sub-rule (2) of Rule 1 of Order XVI seeks to serve by imposing on a party, which seeks to call a witness on the strength of summons, and the obligation to disclose to the Court the purpose for which witness is proposed to be examined on the strength of summons issued to him? (ii) What is the object with which Rule 4 of Order XVIII has been introduced by the Code of Civil Procedure (Amendment) Act, 2002 ? and (iii) Whether is correlation between Order XVI, Rule 1(2) and Order XVI, Rule 4 and, if so what is the correlation and what these two statutory provisions seek to obtain? 18. While considering the provisions of sub-rule (2) of Rule 1 of Order XVI, it needs to be noted that these provisions did not exist in the Code earlier and it was introduced on the basis of 54th Law Commission Report. While recommending the incorporation of sub-rule (2), the Law Commission observed, "There is however, one matter on which amendment is needed. We think that the purpose of calling a witness should be stated in application under Order XVI, Rule 1. Accordingly we recommend the insertion of the following sub-rule in Order XVI rule. (2) The purpose of summoning a witness shall be stated in the application under this rule. 19. It is on the basis of the above recommendations that sub-rule (2) of Rule 1 of Order XVI came into existence. Sub-rule (2) of Rule 1 of Order XVI is reproduced hereinbelow : (2) A party, desirous of obtaining any summons for the attendance of only person, shall file, in Court an application stating therein the purpose for which the witness is proposed to be summoned. 20. Sub-rule (2) of Rule 1 of Order XVI is reproduced hereinbelow : (2) A party, desirous of obtaining any summons for the attendance of only person, shall file, in Court an application stating therein the purpose for which the witness is proposed to be summoned. 20. While considering the significance of sub-rule (2) of Rule 1 of Order XVI, which mandates a party, desirous of obtaining any summons for the attendance of any person, to file in Court an application stating therein the purpose for which the witness is proposed to be summoned, it is imperative to note that under Order XVI, Rule 1-A, party to a suit may, without applying summons under Rule 1, bring any witness to give evidence or to produce documents provided that the name of the witness appears in the list of witnesses furnished to the Court and, if not, then, with the leave of the Court, provided leave is granted in terms of sub-rule (3) of Rule 1 of Order XVI. 21. There is, thus, no impediment on a party producing a witness, whose name appears in the list of witnesses, without issuing summons to the witness. If, however, the Court finds that the evidence of the witness is irrelevant, then, the Court would not allow such a witness' evidence to be brought on record but, more importantly, the fact remains that there is no bar to the producing of a witness by a party to the suit for the purpose of either giving evidence or for producing a document without a summons having been issued to the witness concerned provided that the name of the witness appears in the list of witnesses and, if not, then, with the leave of the Court. 22. What is, now, most important to note is that when a party seeks to call a witness on the strength of summons irrespective of the fact as to whether such a witness is for the purpose of production of a document or for giving of evidence, the party must assign the reasons as to why a summon is required to be issued to procure the presence of the witness and/or why the witness cannot be produced without summons being issued to him. The aim of introducing sub-rule (2) if Rule 1 of Order XVI requiring a party to disclose the purpose, for which summons is sought to be issued, is really aimed at avoiding not only delay, but also frivolous-examination of witnesses. This would obviously mandate the party to disclose the reason for which the witness sought to be called by means of summons instead of the party producing the witness, The above procedure is in conformity with Rule 4 of Order XVIII, which has been introduced by the Code of Civil Procedure (Amendment) Act, 2002. Sub-Rule (1) of Rule 4 of Order XVIII, which is relevant for our purpose, is reproduced below. 4. Recording of evidence.--(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence : Provided that where documents are filed and the parties rely upon the document, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. 23. Rule 4 has been introduced on the recommendation of the 163rd report of the Law Commission. From a bare reading of Rule 4, what becomes clear is that in every case, whatever may be the nature of the case, the examination-in-chief of a witness shall be on affidavit and the copies thereof shall be supplied to the opposite party by the party, who calls the witness for evidence. This shows that, without exception, a witness' evidence, be he the party himself or his witness (i.e. the plaintiff or the defendant), in every case, the examination-in-chief of the witness must be filed on affidavit so as to not only save time, but also make the other parties aware as to what the witness' deposition would be. 24. It needs to be recalled that the Law Commission's recommendation to introduce sub-rule (1) of Rule 4 of Order XVIII was heavily resisted by the Members of the Bar, particularly, on the ground that the demeanor of the witness would not be known; whereas, in a trial, demeanor of a witness plays a crucial role. The Law Commission pointed out, apart from other things, that in the United States of America too, the evidence is not recorded by the Court. The Law Commission pointed out, apart from other things, that in the United States of America too, the evidence is not recorded by the Court. It is, rather, recorded in the office of the attorney of the parties concerned and the demeanor of the witness, as far as the examination-in-chief is concerned, is not available to a trial Court and, yet, there is no complaint as regards the fairness of the trial. The requirement, therefore, of producing an examination-in-chief on affidavit cannot be disallowed or dispensed with merely because of the fact that the parties' demeanor would not be noticeable to the Court. 25. Rule 4 of Order XVIII is general in nature and applies to both the classes of witnesses, whether the witness is produced by the parties or his presence is procured by means of summons. I do not find any force in the submission of Mr. Dey, learned counsel for the respondent, that there is any inherent impediment, on the part of the Court, to direct a witness, who is summoned, to file his examination-in-chief on affidavit. 26. An analysis of the scheme of the Code clearly shows that Rule 4 has been added for the purpose of adjudicating trials expeditiously and also for stopping frivolous examination of witnesses inasmuch as the affidavit, filed by a witness, would tell the party and the Court as to 'whether the evidence is relevant or irrelevant and the purpose for which the witness has been brought. This will make frivolous or mala fide examination of witnesses impossible and reduce thereby the period of completion of trial. 27. In the case at hand, Mr. Shyam, learned counsel, has considerable force in his submission that the respondent waited for producing his own witnesses until the conclusion of the recording of the evidence of the election petitioner and her witnesses and is, now, seeking summoning of witnesses by the Court. In the complete absence of any reason having been assigned by the respondent as to why he and his witnesses are required to be brought to the Court with summons issued to them, this Court is constrained to infer, as contended by Mr. Shyam, learned counsel for the election petitioner, that the purpose is to avoid filing of examination-in-chief on affidavit by the respondent for himself and for his witnesses. Shyam, learned counsel for the election petitioner, that the purpose is to avoid filing of examination-in-chief on affidavit by the respondent for himself and for his witnesses. Such a procedure, if allowed to be adopted, would defeat the very object with which Rule 4 has been introduced into Order XVIII. 27-A. Ordinarily, when a witness, who has been summoned, appears in the Court, the Court shall give him an option to either give examination-in-chief, on affidavit, or orally. In an appropriate case, however, the Court can nevertheless direct a summoned witness to file his examination-in-chief, by way of affidavit. Thus, though the Court has the power to waive the rigour of Order XVIII Rule 4, such a waiver has to depend on the facts of a given case. 28. It needs to be borne in mind that whether a witness is examined by a party by producing him, in the Court, by the party himself or by procuring the witness's presence by means of summons, the evidence of the party has to be relevant. However, mere relevance of the evidence, which the party seeks to obtain from a witness, is not and cannot be sufficient to issue summons to the witness. As an illustration, one can point out that a plaintiff may be a witness in a suit and he shall, ordinarily, give evidence himself without seeking summons to be issued to him. In a given case, however, when the plaintiff is an employee be his employer a Government or a private party does not grant him leave to go to the Court, such a plaintiff can seek summons to be issued to him by the Court. But if the plaintiff is, otherwise, a free person and not chained by any employment, he would remain free to appear as a witness and, in such circumstances, he cannot seek summons to be issued to him for the purpose of procuring his presence in the Court. The plaintiff, therefore, would be duty bound to disclose to the Court the reasons as to why issuance of summons to him is renecessary, when he, being the plaintiff himself, can always appear as a witness. 29. The plaintiff, therefore, would be duty bound to disclose to the Court the reasons as to why issuance of summons to him is renecessary, when he, being the plaintiff himself, can always appear as a witness. 29. Thus, the mere relevance of the evidence of a witness may not entitle him to issuance of summons and in addition to the fact that the witness is relevant, the party, seeking to call the witness, must be disclose to the Court the reason as to why it is not possible for the party to produce the witness without summons being issued to the witness. 30. In the case at hand, this aspect assumes great significance, because the respondent, in the case at hand, wants not only summons to be issued to him for the purpose of enabling him to give evidence, but also summons to be issued to all his witnesses including his election agent with, however, no allegation whatsoever against any of the witnesses that the witnesses are, otherwise, unwilling to come to the Court or are hostile to the respondent. 31. No convincing or plausible reason can, therefore, be said to have been assigned by the respondent for the purpose of getting summons issued to him, his election agent and other witnesses except the official witnesses, namely, witness Nos. 37, 38 and 39, who had been, according to the respondent, present, at the place of counting as supervisors. 32. In the case at hand, except contending that the evidence of the witnesses is relevant, no reason has been assigned by the respondent to show as to why the witnesses are required to be brought by issuing summons to them. I have already indicated above that in neither case, whether the witness has been produced by the party himself or his presence is procured on the strength of summons, evidence is possible to be given by a witness, which is irrelevant or inadmissible. Yet while it is possible for a party to produce a witness from his list for examination, it is not possible to obtain summons for securing the presence of a witness unless the party satisfies the Court that (apart from the fact that the witness's evidence is relevant), his presence needs to be obtained by issuing summons. Yet while it is possible for a party to produce a witness from his list for examination, it is not possible to obtain summons for securing the presence of a witness unless the party satisfies the Court that (apart from the fact that the witness's evidence is relevant), his presence needs to be obtained by issuing summons. In either case, the purpose of giving of examination-in-chief, by way of affidavit, cannot be defeated by procuring presence of a witness with the help of summons. 33. In the case at hand, the reason as to why the respondent wants summons to be issued to not only the respondent himself, even to his election agent has not been explained and could not be explained at the time of hearing of this Misc. Application. As far as witness Nos. 3, 4, and 8 are concerned, they are respondent's counting agents. Being counting agents, why the respondent cannot produce them as witnesses and why they cannot give their examination-in-chief on affidavit? There is no answer given to these crucial questions by the election petitioner nor is any convincing answer discernible, on this aspect, from the materials on record. This apart, as rightly pointed out, on behalf of the election petitioner, the witness Nos. 3, 4 and 8 are counting agents of the votes, 'which were counted from the EVM and, therefore, how these witnesses can be said to be relevant for the purpose of determining the correctness of the reception of the Postal Ballots ought to have been disclosed, but has not been disclosed by the respondent. Similarly, with regard to witness Nos. 6, 7, 9 to 36 and 40, there is nothing, in the application of the respondent, to show as to why these witnesses need to be called, by summons and why they cannot be produced by the respondent himself. This has been clearly done by the respondent for the purpose of avoiding filing of examination-in-chief of the witnesses on affidavit and thereby to defeat the object which Rule 4 of Order XVIII mandates, because Rule 4 provides that in every case, examination-in-chief of a witness must be filed on affidavit. No different is the position of the witness No. 5 as he was not even a counting agent and what role he played at the place of counting or in the said election involving Postal Ballots, has also not been disclosed. No different is the position of the witness No. 5 as he was not even a counting agent and what role he played at the place of counting or in the said election involving Postal Ballots, has also not been disclosed. 34. However, as the witness Nos. 37, 38 and 39 are officials, who were involved in supervising the counting process, they may be called by issuing summons to them, but even then, they shall, as the law has, now, been seen, need to give their evidence by means of affidavit unless, otherwise, allowed by the Court. 35. Mr. Shyam is correct that it defies logic as to why the respondent and his election agent require summons. In the light of the submissions made by Mr. Dey, this is aimed at avoiding their examination-in-chief on affidavit. 36. Mr. Shyam has also pointed out that as far as witness Nos. 6, 7, 9 to 36 and 40 are concerned, they all businessmen, farmers and villagers and no convincing reason has been assigned for examining them, particularly, when they are not Government employee and nothing to do with Postal Ballots. This apart, there is no pleading, in the written statement, which can be proved by oral evidence. It is not possible to infer as to how the testimony of these witnesses can be relevant in the context of the facts of the present case. It is also of great importance to note that the case of the respondent, as set out in his written statement, is one of denial. Mr. Shyam contends that the respondent's case is of evasive denial inasmuch as the pleaded case of the respondent, in the election petition, is that he can neither affirm nor deny the allegations made in the election petition. It is, thus, clear that the present petition, seeking to get summons issued to the election petitioner, her election agent and others, except the witness Nos. 37, 38 and 39, is nothing, but intended at delaying the trial. It is on such occasion that the proviso to Section 87comes into play. Section 87 with its proviso reads as under; 87. It is, thus, clear that the present petition, seeking to get summons issued to the election petitioner, her election agent and others, except the witness Nos. 37, 38 and 39, is nothing, but intended at delaying the trial. It is on such occasion that the proviso to Section 87comes into play. Section 87 with its proviso reads as under; 87. Procedure before the High Court-- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearby as will be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits : Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of Ow petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. 37. A bare reading of the proviso shows that it is not only a discretion, but a duty cast by law on the High Court to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if, in the opinion of the High Court, the evidence of such witness or witnesses is not material for the election petition or that the party, tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. [See Mange Ram v. Brij Mohan and others, reported in (1983) 4 SCC 36 ]. 38. [See Mange Ram v. Brij Mohan and others, reported in (1983) 4 SCC 36 ]. 38. An election petition is a civil trial, but the proviso to Section 87 carves out an exception to the application of the Code of Civil Procedure, which is applicable, otherwise, to an election petition, by laying down that a Court may not examine a witness in an election petition and decline to take evidence if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the election petition or that the party, tendering such witness or witnesses, is doing so on frivolous grounds or with a view to delay the proceedings. [See Kailash v. Nankhu and others, reported in (2005) 4 SCC 480 ]. 39. In the light of the facts stated above, when this Court finds that the respondent has not been able to assign any reason for obtaining summons to produce his witnesses, except the official witnesses, namely, witness Nos. 37, 38 and 39, this Court does not find that the respondent has been able to make out any case for issuance of summons to him, his election agent and other witnesses, except witness Nos. 37, 38 and 39, who are official witnesses. 40. Because of what have been discussed and pointed out above, this application partly succeeds. The respondent's application for allowing him and his witnesses to be produced by issuing summons to them is not allowed except in the case of witness Nos. 37, 38 and 39, who are official witnesses. 41. Let the election petition be listed, on 15.12.2011, for evidence of the respondent and his witnesses, let summons be issued calling witness Nos. 37, 38 and 39 to give their evidence in the election petition. With the above limited relief, observations and directions, this miscellaneous case shall stand disposed of.