Nairaj Devi wife of Shri Umrav v. Aruna Kanwar wife of Shri Shailendra Singh
2017-04-17
ALOK SHARMA
body2017
DigiLaw.ai
JUDGMENT : Alok Sharma, J. Under challenge by the petitioner-returned candidate (hereinafter 'the RC') are the two orders dated 11-1-2017 and 21- 2-2017 passed by the Additional Civil Judge (Senior Division) No.2 Ajmer (hereinafter 'the trial court') allowing, by the first the respondent-election petitioner's (hereinafter 'the EP') application under Order 7, Rule 14 (3) CPC, and by the second, the EP's application under Section 65 of the Indian Evidence Act, 1872. 2. Heard counsel for the parties and perused the impugned orders. 3. With regard to EP's application under Order 7, Rule 14 (3) CPC, by the impugned order dated 11-1-2017 the trial court trying the election petition laid against the RC has held that the documents prayed to be taken on record by the EP, being the nomination form, declaration in support thereof, mark-sheet and transfer certificate filed by the RC before the Returning Officer were relevant for the just and proper adjudication of the election petition before it. It further held that so also were the documents sought to be taken on record of the trial court by the EP as had been gathered in the criminal investigation by the Investigating Officer in a FIR against the RC which inter alia were the correspondences between the SHO and District Education Officer Jaipur. It was held that the power of the trial court under Order 7, Rule 14 (3) CPC was discretionary in nature to be exercised where facts of the case warranted it to be so for just adjudication of the issue before the trial court and the documents were in any event not in possession of the EP at the time of filing of the election petition. Further they were in part also public documents referable to Section 35 of the Evidence Act, 1872, taking of which on the court's record would cause no prejudice as the evidentiary value thereof would be assessed by the trial court on probative worth of the evidence of the parties including the cross examination of the EP. 4. With regard to application under Section 65 of the Evidence Act, 1872 filed by the EP, the trial court held in its impugned order dated 21-2-2017 that the RC's nomination form, declaration in support thereof, mark-sheet and transfer certificate were the documents in possession of the RC, in respect of which under Section 65(a) of the Evidence Act, 1872 secondary evidence was permissible.
It was further held that the rojnamcha of the Rajasthan police, correspondence between the SHO Arai and District Education Officer Jaipur, Notification published in Shivira, as also the correspondence between the SHO Arai and the Registrar Cooperative Societies were public documents which in terms of Section 65(e) of the Evidence Act, 1872 could be proved by way of secondary evidence. 5. Mr. Ajeet Kumar Sharma, Senior Advocate appearing with Mr. V.K. Sharma for the RC has submitted that the impugned orders are vitiated by illegality and arbitrariness. It was submitted that in permitting the EP to lead secondary evidence of documents in issue, Section 65 of the Evidence Act has been misconstrued and there was no occasion for the trial court to grant the EP the indulgence of proving his case without leading primary evidence. He submitted that the pre condition for allowing secondary evidence under Section 65 of the Act of 1872 were not at all made out. It was submitted that the discretion of the trial court in allowing the EP's application under Order 7, Rule 14 (3) CPC was similarly, irregularly and illegally exercised without considering what lawful obstruction the EP suffered in not filing them with his election petition. 6. Mr. S.K. Saksena, appearing for the EP has supported the impugned order. 7. I am of the considered view that the power under Order 7, Rule 14 (3) CPC is to be exercised by the trial court in its discretion to meet the ends of justice in a particular case. It has been so in the instant case by the trial court in passing the impugned order dated 11-1-2017. The trial court has noted that the said documents could not at all be in possession of the EP in the normal course of events at the time of filing election petition. Application under Order 7, Rule 14 (3) CPC related to document in the possession of the RC himself and those collected by the police in the course of investigation against the RC in a FIR filed against him under sections 420, 467, 471 and 120B IPC relating to resort to forged class-VIII mark-sheet to contest in the election to the post of Sarpanch.
In any event no prejudice was occasioned to the RC by taking those documents on record of the trial court as he would have full opportunity to cross examine the EP thereon and also to bring rebuttal evidence, if so warranted. It has been concluded, and rightly so by the trial court, that the documents sought to be brought on its record under Order 7, Rule 14 (3) CPC were necessary for a just and proper adjudication of the issue under consideration. 8. As far as the impugned order dated 21-2-2017 is concerned whereby the EP has been allowed to lead secondary evidence with respect to RC's nomination form, his declaration in support thereof, mark-sheet, and transfer certificate, I am of the considered view that the said documents being not in the possession of the EP, but of the RC, in terms of Section 65(a) of the Evidence Act, 1872 it was an appropriate case for the trial court to allow leading of secondary evidence in regard thereto on the basis of copies thereof obtained by the EP. Similarly the permission granted by the trial court to the EP to lead secondary evidence with regard to Rojnamcha of Rajasthan Police, correspondences between the SHO Arai and the District Education Officer, Jaipur and the SHO Arai and the Registrar of Cooperative Societies was wholly in order. Inasmuch as the said documents partook the character of public documents in terms of Section 74 of the Evidence Act, and Section 65(e) of the Evidence act allows leading of secondary evidence in situations where the original is a public document within the meaning of Section 74 thereof. 9. Counsel for the RC has not been able to satisfy this court that the exercise of discretion by the trial court in passing the impugned order dated 11-1-2017 and 21-2-2017 is either perverse, patently illegal or vitiated by irregular exercise of jurisdiction. Contrarily both the impugned orders are well considered and an appropriate exercise of the court's jurisdiction on the underlying facts. The supervisory jurisdiction of this court under Article 227 of the Constitution of India cannot be invoked to set them aside. 10. There is thus evidently no force in the petition. Dismissed.