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2015 DIGILAW 2443 (ALL)

Sunita Yadav v. Prashant Kumar Singh

2015-08-17

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. Certified copy of the impugned order filed alongwith supplementary affidavit is taken on record. 2. By this petition under Article 227 of the Constitution, the petitioners seeks to challenge an order dated 28.7.2015 passed by Election Tribunal in Election Petition No. 1 of 2013. By the said order, the Election Tribunal has held that the controversy as to which of the facts stated in the affidavits of P.W.1 Prashant Kumar Singh and P.W. 2 Rameshwar Prasad Singh and the documents annexed therewith are relevant or are to be taken into consideration, shall be decided at the time of final disposal. The petitioner has been called upon to cross-examine P.W. 1 on the next date. 3. The petitioner is a returned candidate for the post of Pramukh Kshetra Panchayat Bhadohi District Sant Ravidas Nagar. The election of the petitioner was subjected to challenge by the first respondent by filing an election petition. Therein, the first respondent filed his affidavit by way of examination-in-chief (P.W.1) and that of his witness Rameshwar Prasad Singh (P.W. 2) along with certain documents and one compact disc annexed thereto. Upon such affidavits and documents being filed, the petitioner submitted an application 73-Ga, in which it is alleged that the assertions made therein are beyond the pleadings. It is further alleged that the documents filed alongwith the affidavit are not at all relevant for deciding the controversy involved, and as such, it was prayed that the Tribunal should refuse to take on record the affidavit of the first respondent and the documents annexed thereto. Similar request was made by filing an application (paper no. 74-Ga) in respect of the affidavit of P.W.2. It was alleged that the affidavit is contrary to Rule 40 of Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-pramukhs and Settlement of Election Disputes) Rules, 19941. 4. On such applications being filed, the Election Tribunal passed an order on 15.7.2015 requiring the petitioner to point out the assertions in the affidavits which were beyond the pleadings. The petitioner thereafter, has filed an application 76-Ga followed by application 77-Ga, in which, according to the petitioner, she had pointed out the assertions in various affidavits which are not relevant to the controversy involved in the petition. 5. The petitioner thereafter, has filed an application 76-Ga followed by application 77-Ga, in which, according to the petitioner, she had pointed out the assertions in various affidavits which are not relevant to the controversy involved in the petition. 5. The Election Tribunal thereafter, by impugned order dated 28.7.2015, has observed that the question as to which of the documents or the assertions made in the affidavits, are irrelevant, will be determined at the time of final hearing. The petitioner filed an application for review of the order dated 28/7/2015, which has been rejected by order dated 11/8/2015. Aggrieved by these orders, the petitioner has approached this Court by way of instant petition under Article 227 of the Constitution. 6. The first submission of learned counsel for the petitioner is that the assertions made in the affidavits of the witnesses, which are irrelevant and are of no assistance to the court in deciding the controversy, are liable to be expunged. In this regard, he has placed reliance on Rule 40, the relevant part of which, for convenience of reference, is reproduced below: - “40. In this regard, he has placed reliance on Rule 40, the relevant part of which, for convenience of reference, is reproduced below: - “40. Procedure: - (1) Except so far as provided by the Act or in the Rules, the procedure provided in the Civil Procedure Code, 1901 in regard to suits, shall, insofar as it is not inconsistent with the Act or any provisions of these Rules and it can be made applicable, be followed in the hearing of the election petitions: Provided that- (a) any two or more election petitions relating to the election of the same person may be heard together; (b) the Judge shall not be required to record or to have recorded the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case; (c) the Judge may, at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent; (d) for the purpose of deciding any issue the Judge shall be required to order production of or to receive only so much evidence, oral or documentary, as he considers necessary; (e) no appeal or revision shall lie on a question of fact or law against any decision of the Judge; (f) the Judge may review his decision on any poll or an application being made within fifteen days from the date of the decision by any person considering himself aggrieved thereby; and (g) no witness or other person shall be required to state for whom he has voted at any election.” 7. A perusal of the Rule 40 would make it clear that the procedure provided under the Civil Procedure Code, 1901 in so far it is not inconsistent with the Act and the Rules has been made applicable to the hearing of the election petitions. Learned counsel for the petitioner has placed reliance on Clause (d) of the proviso to sub-rule (1) of Rule 40. In his submission, only such part of the evidence is required to be taken on record, as is necessary for determining the dispute and the Tribunal is ordained to reject the part of evidence which is irrelevant. 8. The submission made is specious in nature. In his submission, only such part of the evidence is required to be taken on record, as is necessary for determining the dispute and the Tribunal is ordained to reject the part of evidence which is irrelevant. 8. The submission made is specious in nature. Clause (d) of the proviso to sub-rule (1) of Rule 40 is only an enabling provision, which permits the Election Tribunal to receive only so much of evidence, as it considers necessary. Under Clause (b) of Sub-Rule (1) of Rule 40, it is provided that the Election Tribunal shall not be required to record or to have recorded evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case. It thus follows that although the procedure prescribed under the Civil Procedure Code has been made applicable to the proceedings before the Election Tribunal but it is not bound to follow the detailed procedure prescribed thereunder. Similarly, clause (d) permits the Election Tribunal to record or to receive so much of evidence as is necessary for the dispute. It is also an enabling provision which permits the Tribunal to receive only so much of evidence as is necessary for deciding the controversy. It does not obligate it to adjudge, as a preliminary issue, as to which of the assertions made in the affidavit filed by way of examination-in-chief are irrelevant and should be expunged. If such an exercise is required to be carried out, it would become impossible for the Election Tribunal to proceed with the matter. 9. It is noticeable that by U.P. Act No.22 of 2002, Order 18 Rule 4 has been substituted. The provision for adducing oral evidence of the witnesses by way of examination-in-chief has been done away with and now it is provided that examination-in-chief of a witness shall be on affidavit. This has been done as it was noticed that the provision for leading oral evidence by way of examination-in-chief, was resulting in unnecessary delay of the trial. While carrying out such amendment, the legislature had never intended that if any assertion is made in the affidavit filed by way of examination-in-chief, which is irrelevant, the trial court shall be required to determine the said question as a preliminary issue and thereafter direct its expunction. While carrying out such amendment, the legislature had never intended that if any assertion is made in the affidavit filed by way of examination-in-chief, which is irrelevant, the trial court shall be required to determine the said question as a preliminary issue and thereafter direct its expunction. These are the questions which would be determined by the court at the time of hearing and it goes without saying that in case any of the assertions made in the affidavit, are not relevant, the same would be ignored. 10. The next contention of learned counsel for the petitioner is that certain documents have been annexed by the first respondent alongwith the affidavits filed by way of examination-in-chief. It is submitted that the documentary evidence should have been filed before the settlement of the issues. It is urged that the documents now filed, after the settlement of issues, cannot be taken on record, apart from being wholly irrelevant. 11. Under Order 7, Rule 14 the plaintiff is under obligation to file the documents upon which he sues or relies in support of his claim, alongwith the plaint. A document which ought to be produced in court by the plaintiff when the plaint is presented, shall not without the leave of the court, be received in evidence on his behalf at the hearing of the suit. Under Order 18, Rule 4 C.P.C., it is permissible for a party to annex documents alongwith affidavit filed by way of examination-in-chief. Relevant part of Order 18, Rule 4 is as under: - “Order 18, Rule 4.---- Recording of evidence L1) 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 documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.” 12. The documents which have been annexed by the first respondent alongwith the affidavit filed by way of examination-in-chief, according to the own case of the petitioner, are not of that category which were required to be filed alongwith the plaint/petition. On the contrary, according to the petitioner, these documents are irrelevant to the controversy involved. The documents which have been annexed by the first respondent alongwith the affidavit filed by way of examination-in-chief, according to the own case of the petitioner, are not of that category which were required to be filed alongwith the plaint/petition. On the contrary, according to the petitioner, these documents are irrelevant to the controversy involved. In such view of the matter, the provisions of Order 7, Rule 14 will not come into operation. On the other hand, as noted above, the documents can be filed by a party alongwith the affidavit submitted by way of examination-in-chief. It is another matter as to whether these documents are admissible in evidence or not or whether they have been proved in accordance with law or not. These are the questions which are yet to be considered by the court below while taking decision in the matter. However, it cannot be said that in case a document is not filed by a party before the settlement of the issues, then it is precluded from filing any document alongwith the affidavit filed by way of examination-in-chief. Thus, the second contention of the petitioner also does have any force. 13. In Waryam Singh v. Amarnath and another2 a constitution bench of the Supreme Court has held that the supervisory jurisdiction under Article 227 of the Constitution is to be exercised sparingly and only in order to keep the subordinate courts within the bounds of their authority and it is not meant to correct errors of fact or even of law. Same view was taken in a subsequent constitution bench judgement in State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela3. In a more recent judgement in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil4, the Supreme Court held that though the view taken in the case of Surya Dev Rai v. Ram Chander Rai and others,5 regarding maintainability of writ under Article 226 of the Constitution against orders of civil courts was referred to larger bench (and was not approved)6 but there was no divergence of opinion in relation to the principles laid down therein regarding the power of superintendence under Article 227. Their Lordships quoted with approval the following passage of the judgment from the case of Surya Dev Rai (supra) : - “38. Their Lordships quoted with approval the following passage of the judgment from the case of Surya Dev Rai (supra) : - “38. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.” 14. After analysing various decisions, the Supreme Court laid down in para 49, the guiding principles for exercise of supervisory power, some of which relevant for purposes of instant case are quoted below : - "49. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." (emphasis supplied) 15. In the end, it is submitted by learned counsel for the petitioner that the compact disc which has been filed in the court alongwith the affidavit, has not been made available to the petitioner. 16. Concededly, no such plea was taken by the petitioner in the court below. However, in paragraph 14 of the petition filed before this Court, it is alleged that the compact disc has not been supplied to the petitioner. If that be so, it is always open to the petitioner to raise such plea before the court below. In case, the compact disc or any part of the documents had not been made available to the petitioner, it shall always be open to the Tribunal to direct the first respondent to supply the same to the petitioner. However, for such reason, the impugned order cannot be interfered with. 17. No other submission has been made by learned counsel for the petitioner. 18. The petition lacks merit and is dismissed.