1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: ORDER ::: Interlocutory Application No.6839/2010 IN S.B. Election Petition No.1/2009. C.P. Joshi. vs. Kalyan Singh Chouhan. Date of Order : 24th May, 2010 HON'BLE MR. PRAKASH TATIA, J. Mr.MS Singhvi ) for the petitioner. Mr.Ramesh Purohit ) Mr.Arun Bhansali ) Mr.LR Mehta ) for the respondent. Mr.Vijay Vishnoi ) Mr.Ramit Mehta ) - - - - - BY THE COURT : After framing of the issues on 5.5.2010 in this election petition, the respondent submitted this application on 11.5.2010, being IA No.6839/2010 and prayed for summoning of the following documents :- (1)Marked Copy of Electoral Roll relating to the Polling Station No.68. (2)Marked Copy of Electoral Roll relating to the Polling Station No.124. 2 (3)Marked Copy of Electoral Roll relating to the Polling Station No.192. (4)Register of Voters in Form No.17-A relating to the Polling Station No.68. (5)Register of Voters in Form No.17-A relating to the Polling Station No.124. (6)Register of Voters in Form No.17-A relating to the Polling Station No.192. (7)List of Tendered Votes in Form No.17-B relating to the Polling Station No.68. (8)List of Tendered Votes in Form No.17-B relating to the Polling Station No.124. (9)List of Tendered Votes in Form No.17-B relating to the Polling Station No.192. Heard learned counsel for the parties. The respondent in the application gave details of the documents referred above and stated only that the above documents are pertaining to Nathdwara Legislative Assembly Constituency No.176 regarding the election held on 4.12.2008 and shall be required for the purpose of resolving the controversy involved in the present election petition and, therefore, this application may be allowed and the above referred documents may be summoned. Learned counsel for the respondent submitted that even if it is not disclosed that for what 3 purpose, these documents will be needed by the respondent and even if they have not been relied upon in the reply to the election petition and even if they have not been entered in the list of documents, yet in view of the judgment of the Hon'ble Apex Court delivered in the case of Wilfred D'souza vs. Francis Menino Jesus Ferrao reported in 1977 SCR 942, the respondent has right to give evidence for all the tendered votes irrespective of the fact that the respondent has not relied upon the documents anywhere in the reply and has not entered the above documents in the list of documents of the respondent. It is submitted that the tendered votes presupposes that there is a claim of casting vote by other than genuine voter and the tendered vote is given to the person after satisfying about his identity by the competent officer as provided under the provisions of Representation of People Act, 1951 and, therefore, all the tendered votes are required to be counted in the election petition. Learned counsel for the petitioner vehemently submitted that the petitioner in the election petition pleaded that six votes cast at polling stations no.27, 61, 73, 117, 180 and 199 through Electronic Voting Machines in the name of voters at serial numbers 311, 1122, 146, 714, 866 and 502 respectively of the Electoral Roll of Nathdwara 4 Legislative Assembly Constituency No.176 be excluded by way of decoding from the total votes and the tendered ballot papers cast by genuine voters against these serial numbers be opened and counted. The petitioner also pleaded that the respondent's wife cast vote at two polling stations no.39 and 40 at S.No.484 and 727 respectively of the electoral of Nathdwara Legislative Assembly Constituency No.176 which may be decoded and excluded from the valid votes. According to learned counsel for the petitioner, the respondent contested these issues to the extent of allegations levelled by the petitioner and to rebut any of the allegations of the petitioner, the respondent has not set up any defence based upon the documents sought to be summoned. It is also not the case of the respondent that the documents sought to be summoned are needed to rebut the case of the petitioner, therefore, these documents are neither needed to prove the defence of the respondent nor needed for disproving/rebutting the case of the petitioner. It is submitted that it is settled law that evidence can be led in support of that pleading and these documents sought to be summoned are not evidence in support of pleadings of any of the parties. Learned counsel for the petitioner also submitted that the respondent has not submitted any recrimination petition wherein alone, the 5 returned candidate as respondent can claim any relief in his favour. I considered the submissions of learned counsel for the parties and perused the facts of the case. The respondent submitted this application for summoning of the documents by merely mentioning that for the purpose of resolving the controversy involved in the present election petition, the documents mentioned in the application are required. Learned counsel for the respondents even orally could not submit that to resolve which controversy, these documents are required much less to show that how these documents can be tendered into evidence when there is no pleadings with respect to these documents in the reply filed by the respondent. Not only this, there is no reference of these documents in the pleadings of the election petition and there is no issue framed which requires this documentary evidence for its complete and lawful decision. The judgment relied upon by learned counsel for the respondent in the case of Wilfred D'souza (supra) was rendered in the facts of the case that according to the petitioner, the respondent has been declared as returned candidate as he secured two votes more than the votes secured by the 6 petitioner and tendered votes are 10. The petitioner specifically pleaded that the votes initially and improperly received should be removed and all ten tendered votes should be accepted and counted. The Judicial Commissioner after recording of the evidence from the side of the election petitioner, who produced two witnesses, straightaway dismissed the petition holding that the evidence of two witnesses was not related to the tendered votes. The Hon'ble Apex Court held that the Judicial Commissioner's said finding was wrong and not giving opportunity to the respondent returned candidate to produce evidence in rebuttal was also wrong. Therefore, in that case, there were total 10 tendered votes for which the election petitioner himself prayed for counting of all the 10 tendered votes and, therefore, all the 10 tendered votes were subject matter of the issue before the Judicial Commissioner in the election petition. The documents were already summoned in that case before the evidence of the election petitioner. Here in this case, the parties i.e. both the petitioner and respondent are contesting only on 6 tendered votes and on the issue of casting 2 votes by the respondent's wife. Therefore, the judgment rendered in the case of Wilfred D'souza (supra) has no application to the facts of the case. In addition to the above, the application has 7 been submitted after inordinate delay without giving any sufficient cause for not filing this application before framing of the issues and there is no explanation if these documents were not necessary, then why the list of the documents containing the particulars of these documents with prayer for summoning of the documents has not been filed in time. Since the respondent failed to establish any case for summoning the documents referred in the application and the documents are not relevant for the purpose of deciding any issue and the documents are not relied upon documents by any of the parties, therefore, the present application of the respondent is hereby dismissed. No order as to costs. (PRAKASH TATIA), J. S.Phophaliya