Case: Mange Ram Vs. Brij Mohan And Others

Appellant Shri Mange Ram contested the election to Haryana Legislative Assembly from Jind Legislative Assembly constituency. 14 persons offered themselves as candidates for the election. One Shri Brij Mohan, 1st respondent was declared elected. Appellant was defeated. The remaining candidates lost their deposits. Appellant called in question the election of the 1st respondent (the returned candidate) by presenting . an election petition under Sec. 81 of the Representation of People Act 1951 ( 1951 Act for short). To this petition, the returned candidate as well as all other candidates who lost the election were impleaded as parties. In the election petition, charges of corrupt practice and irregularities and illegalities in the conduct of election were made. The returned candidate contested the petition. After going through the pleadings of the parties, the Court ascertained the points on which parties were at variance and framed appropriate issues. The election petition reached the stage of recording evidence.It appears an application was file d by the appellant-election petitioner seeking permission to produce and examine witnesses whose names were set out in the application. It was averred in the application that the names of the witnesses whom he desires to produce are already mentioned in the appropriate paragraphs of the election petition and that the petitioner would keep the witnesses present. The learned Judge to whom the election petition was assigned made an order on November 29, 1982 that as and when witnesses are produced, appropriate orders will be passed determining whether the witnesses could or could not be produced. In the meantime, the evidence of election petitioner was being recorded. It appears that again on January 11, 1983, petitioner submitted a list of witnesses intimating to the Court that he desires to examine them. This was objected to by the returned candidate. The learned Judge after hearing the parties made an order upholding the objection raised by the returned candidate that the purpose for which the witnesses were offered is not mentioned in the list and therefore, the election petitioner could not be permitted to examine such witnesses. A further observation was made by the Court that the election petitioner could not be allowed to examine more witnesses whose names had not been mentioned in the list of witnesses submitted in accordance with the relevant provisions of theCode of Civil Procedure and the rules framed by the High Court. Accordingly, the learned Judge held that except Bahre son of Sher Singh, no other witness could be examined and that as soon as the evidence of the afore-mentioned witness was recorded, the Court would proceed to record the evidence on behalf of the returned candidate; and thereafter the matter will be set down for hearing oral arguments of the learned counsel of either side. It is this order which was questioned in this appeal by special leave.An election petition p resented under Sec. 81 of the 1951 Act must satisfy the requirements of Secs. 83 and 84. Chapter III in Part IV of the 1951 Act lays down the procedure for trial of election petitions.

Reasoning:
The analysis of the relevant provisions would clearly bring out the underlying scheme under order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A. The only jurisdiction the Court has to decline to examine the witness is the one set out in proviso to Sec. 87 (1) of 1951 Act, the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under sub-rule (1) of Rule 1 of order XVI. This scheme clearly emerges from the various provisions herein discussed.If the scheme of the various provisions is as herein discussed, obviously, the order of the learned Judge is wholly unsustainable. He declined to examine the witness by accepting the submission of the returned candidate that the names of the witnesses whom the appellant kept present in the Court were not mentioned in the list. This is the only ground on which the learned Judge declined to permit the appellant to examine his witnesses who were kept present in the Court and this ground is utterly unsustainable.