Case: Bhawani Das Vs. Jagjiwan Ram &amp; Others

1. This appeal, by special leave, is directed against an order passed by the High Court of Madhya Pradesh, during the trial of an election petition, refusing to examine witnesses sought to be produced by the appellant. The election petition related to the General Elections held for the Madhya Pradesh Legislative Assembly in 1967. Five candidates filed their nomination papers, one of whom was the appellant and the other four are the respondents in this appeal. The appellant withdrew his candidature and was not, therefore, a contestant at the time of the poll. Respondent No. 2, having received the highest number of votes, was declared elected. Respondent No. 1 had received the next highest number of vote and he filed the election petition challenging the election of Respondent No. 2. The appellant was impleaded as one of the respondents in this election petition. In Para 11 of the election petition, it was pleaded that the election of the successful candidate was void inasmuch as, inter alia, the corrupt practices mentioned later in the petition were committed by the candidate, and by the appellant and others with his consent. When giving details, it was pleaded that the appellant, in the presence of and with the consent of the successful candidate, addressed a public meeting organised for the election propaganda of the successful candidate on 2nd February, 1967, at village Sarvania Masani in the constituency and, in the course of his speech, said :"Joshiji, the Congress candidate, had put me up in the election as a candidate of Hindu Maha Sabha by giving allurement of money. Later on he came to give me Rs. 5, 000/- and said to contest the election. I did not fall prey to the pursuation and allurement of such a cow-killing (Gohatyari) Congress and did not contest the election."As a consequence of this pleading which charged the appellant with commission of corrupt prectice, the appellant also filed his written statement on 14th July, 1967, and denied the commission of this corrupt practice. On 2nd August, 1967, the Court fixed 30th August, 1967 for filing of draft issues by the parties and for giving the list of their witnesses. On 18th September, 1967, issues were framed and, then, on 7th December, 1967, the Court drew up a programme for recording evidence of parties according to which, the evidence of Respondent No. 1, the election petitioner, was to be recorded between 15th January and 23rd January, 1968. The further direction was that the respondents evidence was to be recorded between 25th January and 7th February, 1968. Since there was also a recrimination petition, the Court further directed that the evidence of the petitioner, who had filed the recrimination, was to be recorded from 12th February to 15th February, 1968, and the evidence of the respondent in that petition was to be taken between 19th February, and 22nd February, 1968; arguments were to be heard on 27th and 28th February, 1968.2. In accordance with this programme, the recording of the evidence of Respondent No. 1 was started on 15th January, 1968 and continued for some days. Thereafter, the proceedings had to be stayed because of applications moved in this Court against some of the interlocutory orders passed by the High Court and because of a transfer application. Ultimately, the recording of the evidence of Respondent No. 1, the election petitioner, was concluded on 16th September, 1968. Before the conclusion of this evidence, the appellant, on 26th August, 1968. Before the conclusion of this evidence, the appellant, on 26th August, 1968, filed in the Court a list, dated 24th August, 1968, containing names of 10 witnesses whom he proposed to examine in support of his defence. On the same day, the High Court rejected the prayer for examination of 9 out of 10 witnesses and only permitted the appellant to examine himself which, according to the Court, he could do after Respondent No. 2 finished his evidence.

Reasoning:
In this case, it is clear that the burden of proving the commission of the corrupt practice by the appellant with the consent of Respondent No. 2 lay on Respondent No. 1 so that, when the hearing of the election petition started, Respondent No. I was required to state his case and produce his evidence in support of the issue relating to commission of corrupt practices. Under sub-rule (2), the other parties were only required to state the case and produce their evidence thereafter. It is significant that in sub-rule (2) of Order XVIII, C.P.C., in laying down the procedure, the stage at which other parties are to be called upon to state the case and produce the evidence is very clearly indicated by using the word "then", so that there is no requirement on the part of other parties either to state their case or produce their evidence before the party, on whom the burden lies, has first produced and completed his evidence. In the present case, it is true that the recording of evidence of Respondent No. 1 began on 15th January, 1968; but for reasons with which we are not concerned, the recording, of his evidence continued and could only be completed on 16th September, 1968. Under Order XVIII, Rule 2(2), C.P.C., the opposite parties in the petition, including the appellant, could, therefore, be called upon to state their case and produce their evidence only after the 16th September, 1968. The procedure thus laid down in the Code does not envisage that any of those parties, who have to meet the case put forward by the election petitioner, should state their case or produce their evidence prior to the completion of the recording of the evidence of the electionappellant actually filed the list of his witnesses on 24th August, 1968, even prior to the completion of his evidence by Respondent No. 1. Clearly, therefore, this list of witnesses was filed by the appellant well before the stage at which he could be required to state his case and produce his evidence. We cannot understand why the High Court held that this list of witnesses had not been filed at the proper stage.5. It appears that the High Court took the view that this list had not been filed at the proper stage, because the Court had, at an earlier stage of the trial, directed all the parties to file their lists by 30th August, 1967 and had even drawn up a programme for recording of evidence of parties on 7th December, 1967. It seems that, in adopting this course, the High Court was not following the procedure laid down in the Code of Civil Procedure which does not make any provision for filing of lists or drawing up of programme of recording evidence in the course of a trial of a suit. Our attention was drawn to Para 118 of the Rules relating to the Civil Procedure Code framed by the High Court of Madhya Pradesh in exercise of the powers conferred by Article 27 of the Constitution, read with Section 23 of the Madhya Pradesh Civil Courts Act, 1958 and all other powers enabling in that behalf. This Paragraph 118 does contemplate that courts, on completion of the interlocutory stage, will generally find it convenient to fix an early date called the "settling date" for giving in lists of witnesses and paying the necessary process fee and expenses. The paragraph goes on to say that, on that date, information should be obtained that will enable the probable length of the trial to be estimated, and a date or several consecutive dates should then be fixed for recording evidence. There is a note attached saying that, on the "settling date" the Court must insist on the parties taking all steps necessary to bring the case to trial, e.g., filing a list of witnesses to whom the issue of summons is required together with necessary particulars to permit the service of summons, paying necessary process fees and expenses, and in cases where parties propose to produce witnesses and do not require the issue of summons, indicating the number of each witnesses so as to permit an estimate of the length of trial, etc. The High Court seems to have adopted the procedure laid down by it in this Paragraph 118. Clearly, this paragraph is not a rule of procedure having the force of law and is not a part of the Code of Civil Procedure. It was not a rule framed by the High Court in exercise of its powers of framing rules under the Code of Civil Procedure. This paragraph only contains instructions intended to be carried out by subordinate courts issued by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. The procedure indicted in this paragraph was, therefore, not applicable to the trial of the election petition by the High Court itself. The procedure that the High Court was required to follows was that laid down by the Code of Civil Procedure which, as we have indicated earlier, gave the right to the appellant to state his case and produce his evidence only after Respondent No. 1 had completed the production of his evidence.6. It is also significant that, in filing the list of witnesses, the appellant did not make any request for issue of summons. The Court, no doubt, in its order, stated that the appellant had filed "process for 10 witnesses"; but, in fact, there was no process filed at all. All that was filed was a list of witnesses with a note in the list itself that the witnesses were to be kept present by the appellant. The appellant, thus, did not desire that summons should be issued to enforce attendance of the witnesses. He himself undertook to keep them present. No process was, therefore, required to be issued in pursuance of this list. Obviously, such a list of witnesses would be one envisaged by Rule 1-A of Order XVI, C.P.C. It is true that Rule 1-A Order XVI, C.P.C. refers to a list which has been filed on or before the day fixed for the hearing of evidence, and in this case the hearing of evidence of Respondent No. 1 had started on 15th January, 1968, but, in our opinion, in this rule, the expression "at any time on or before the day fixed for the hearing of evidence" is meant to indicate the day fixed for the hearing of the evidence of the particular party who has filed the list of witnesses. No doubt, in the present case, at an earlier stage, the Court had fixed dates for recording of evidence of opposite parties between 25th January and 7th February, 1968, but that orders became infructuous, because the evidence of Respondent No. 1 himself was to concluded before that period had expired. In fact, the recording of the evidence of Respondent No. 1 continued for another 7 months or more and was only completed on 16th September, 1968. The dates for the recording of evidence of the opposite parties, including the appelant, could only be some dates after 16th September, 1968, in accordance with the procedure laid down in Order XVIII, Rule 2(2), C.P.C. The list, which was field by the appellant was, therefore, one presented before the date fixed for the hearing of evidence of the appellant and the appellant had himself undertaken to keep the witnesses present. The order of the Court disallowing the production of witnesses mentioned in the list was, therefore, very clearly against the procedure applicable to the trial of the election petition.7. The only power, which the Court had to refuse the examination of these witnesses, on which reliance was placed on behalf of Respondent No. 1 is that contained in the proviso to Section 87 of the Act which lays down that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witnesses or witnesses if it is of the opinion that the evidence of such witnesses or witnesses is not material for the decision of the petition or that the partyIt also appears that the High Court of Madhya Pradesh, in exercise of its power under the Code of Civil Procedure, has added sub-rule (4) to Rule 2, Order XVIII of the Code to the following effectanything contained in this rule, the Court may order that the production of evidence or the address to the Court may be in any order which it may deemthis provision has neither been applied by the High Court for the purpose of disallowing production of evidence by the appellant, nor in it, on the face of it, applicable. It seems to be clear that the High Court was acting on the lines laid down in Paragraph 18 of the instructions issued by the Court for subordinate courts, and ignored the cardinal principle that rules of procedure are meant to advance the cause of justice and are not to be applied too technically to deprive a party of a fair opportunity of putting forward his case or meeting the case sought to be proved against him. While the appellant was not seeking any adjournment and was not trying to delay the proceedings by praying for issue of processes which might have taken time, there was no reason at all why his request for examination of his witnesses whom he promised to keep present, should have been refused. The order passed by the High Court was clearly unjustified.