Saturday, 17 June 2017

Whether court can permit examination of party to suit at subsequent stage?

Learned counsel for the sole respondent, on the other hand, has
opposed the prayer and has placed reliance of the Order XVIII Rule 3-A of the
Code of Civil Procedure, which reads as follows :
“Party to appear before other witnesses - Where a party himself
wishes to appear as a witness, he shall so appear before any other
witness on his behalf has been examined, unless the Court, for
reasons to be recorded, permits him to appear as his on witness at a
later stage.”
It is submitted by the learned counsel for the sole respondent that
since two witnesses have already been examined in presence of the election
petitioner, the election petitioner himself cannot examine as a witness now. It is
submitted that if the election petitioner desired to be examined at a later stage, he
should have filed the application for the same on the same date, but he did not
seek the permission of the Court for his examination at a later stage and allowed
the other witnesses to be examined in his presence. Alternatively, it is submitted
by the learned counsel for the sole respondent that in any event, the election
petitioner should be examined after the examination of all the witnesses.
Having heard the learned counsels for both the parties, I am of the
considered view that the Order XVIII Rule 3-A of the Code of Civil Procedure is
not an absolute bar for examination of party to a suit at a later stage. There is
always a discretion of the Court to allow the party to be examined at the later
stage. Even Section 87 of the Representation of the People Act only states that the
procedure applicable under the Code of Civil Procedure for the trial of the suits
shall be followed by the High Court while trying an election petition, as nearly as
may be. There is no requirement of strict adherence to the provisions of CPC,
while trying an election petition.
In view of the aforesaid discussions, it is directed that the election
petitioner shall be examined in the case as witness on the next date. 
IN THE HIGH COURT OF JHARKHAND AT RANCHI
 E.P No. 11 of 2015

Krishna Nand Tripathi.
 V
Alok Chaurasiya .
CORAM :  MR. JUSTICE H. C. MISHRA

 Dated:19.8.2016.
Citation: AIR 2017 Jharkhand 22

 The present interlocutory application has been filed for permitting
the election petitioner to lead his evidence at a later stage. The necessity of filing
this application has been arisen, due to the fact that two witnesses on behalf of the
election petitioner have already been examined on 29.4.2016. Thereafter, the
present interlocutory application has been filed on 23.6.2016.
Counter affidavit to this interlocutory application has been filed by
the sole respondent, wherein it is stated that two witnesses had been examined on
29.4.2016, on which date, the election petitioner was also present in the Court.
The election petitioner, however, failed to get his evidence recorded as required
under Order XVIII, Rule 3-A of the C.P.C., and as such, now his evidence should
not be recorded.
Learned counsel for the election petitioner has drawn the attention
of this Court towards Section 87 of the Representation of the People Act, which
says that the every election petition shall be tried by the High Court, as nearly as
may be, in accordance with the procedure applicable under the Code of Civil
Procedure, to the trial of suits. It is submitted by the learned counsel for the
petitioner that there is no bar in the C.P.C., to examine the plaintiff at a later
stage. Learned counsel submitted that there is no illegality in examining the
election petitioner after the examination of two witnesses on his behalf.
Learned counsel for the sole respondent, on the other hand, has
opposed the prayer and has placed reliance of the Order XVIII Rule 3-A of the
Code of Civil Procedure, which reads as follows :
“Party to appear before other witnesses - Where a party himself
wishes to appear as a witness, he shall so appear before any other
witness on his behalf has been examined, unless the Court, for
reasons to be recorded, permits him to appear as his on witness at a
later stage.”
It is submitted by the learned counsel for the sole respondent that
since two witnesses have already been examined in presence of the election
petitioner, the election petitioner himself cannot examine as a witness now. It is
submitted that if the election petitioner desired to be examined at a later stage, he
should have filed the application for the same on the same date, but he did not
seek the permission of the Court for his examination at a later stage and allowed
the other witnesses to be examined in his presence. Alternatively, it is submitted
by the learned counsel for the sole respondent that in any event, the election
petitioner should be examined after the examination of all the witnesses.
Having heard the learned counsels for both the parties, I am of the
considered view that the Order XVIII Rule 3-A of the Code of Civil Procedure is
not an absolute bar for examination of party to a suit at a later stage. There is
always a discretion of the Court to allow the party to be examined at the later
stage. Even Section 87 of the Representation of the People Act only states that the
procedure applicable under the Code of Civil Procedure for the trial of the suits
shall be followed by the High Court while trying an election petition, as nearly as
may be. There is no requirement of strict adherence to the provisions of CPC,
while trying an election petition.
In view of the aforesaid discussions, it is directed that the election
petitioner shall be examined in the case as witness on the next date. At the request
of the learned counsels for the parties, put up this matter on 26.08.2016
at 2.15 P.M for examination of the election petitioner.
This interlocutory application is accordingly, allowed.
I.A Nos. 351 of 2016, 2624 of 2016 & 3041 of 2016
 These interlocutory applications have been filed for issuing
summons to the witnesses namely (i) Headmaster, Giriwar Uchha Vidyalaya,
Daltonganj, Palamau, (ii) Principal, G.L.A College, Medininagar, Palamau
(iii) Secretary, Jharkhand Academic Council, Ranchi, (iv) Public Information
Officer-cum-Deputy Election Officer, Palamau and (v) Deputy Superintendent,
Sadar hospital, Palamau, also mentioning the documents, which may not be called
for, to be proved by them.
An objection has been filed on behalf of the sole respondent to I.A
No.3041 of 2016, wherein it is stated that the witnesses as detailed in I.A No.3041
of 2016 may not be asked to appear with the documents, which have not been
enclosed in the election petition.
In the present case, the date of birth of the returned candidate is in
dispute. Photostat copies of the documents relating to the educational certificate
of the returned candidate have been brought on record in the Election Petition to-3-
show that the date of birth of the returned candidate is 15.2.1995 and accordingly,
he was not of 25 years of age in the year 2014, when the election had taken place.
In the written statement to the Election Petition, it has been stated by the sole
respondent that he had got those documents corrected.
It is submitted by the learned counsel for the petitioner that in view
of the written statement filed on behalf of the returned candidate, that the
documents relied upon by the petitioner were got corrected by the returned
candidate, the necessary information as sought under the R.T.I Act, which also
needs to be proved in the ends of justice. It is further submitted that these
witnesses are necessary to be examined and to prove the documents, as these
documents were obtained by the election petitioner subsequently, when it was
disclosed for the first time in the written statement that the documents relied upon
in the election petition had subsequently got corrected by the returned candidate.
It is submitted that these documents may be taken in evidence even with
objection, the admissibility whereof may be decided later on.
Learned counsel for the sole respondent, on the other hand, has
objected to the same and has submitted that there is no pleading in the election
petition regarding the documents which are being sought to be proved through I.A
No.3041 of 2016 and as such, they may not be admitted in evidence.
Having heard the learned counsels for both sides, I find that in the
present case, the certificates relating to the date of birth of the returned candidate
have been disputed by the sole respondent, i.e., the returned candidate on the sole
ground that subsequently those documents got corrected. This fact for the first
time came within the knowledge of the election petitioner after filing of the
written statement, which necessitated the election petitioner to get the necessary
information under the R.T.I. Act. Accordingly, I.A No.3041 of 2016 has been
filed, giving the details of some documents which the election petitioner intends
to prove in view of the statement made in the written statement. As such, prima
facie, they appear to be relevant facts, and in the ends of justice, those documents
are taken into the evidence and the sole respondent shall be at liberty to get his
objection recorded at the time of taking those documents in evidence. The
admissibility of such evidence shall be decided at the time of final arguments.
Let the Dasti summons be given to the election petitioner for
examination of the witnesses namely, (i) Headmaster / Principal In-charge,
Giriwar Uchha Vidyalaya, Daltonganj, Palamau, (ii) Professor-in-Charge /
Principal, G.L.A College, Medininagar, Palamau (iii) Secretary, Jharkhand
Academic Council, Ranchi, upon deposit of cost of the witnesses, if applicable,
for their appearance for their examination as witnesses of the election petition
onn02.09.2016 at 2.15 P.M. -4-
In the Dasti summons, the documents as detailed in I.A No.3041 of
2016 which are required to be called for and proved by the respective witnesses,
shall also be mentioned asking the concerned witness to appear with those
documents.
No summons needs to be issued to the Public Information Officercum-Deputy
Election Officer, Palamau and the Deputy Superintendent, Sadar
hospital, Palamau, as they are not required to be examined for proving any fact in
issue or relevant fact.
The other witnesses, mentioned in I.A No.351 of 2016, may be
produced by the petitioner at the later stage.
All the aforesaid three Interlocutory applications accordingly, stand
disposed of.
 ( H. C. Mishra, J.)
BS/
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