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PETITIONER: MANGE RAM

       Vs.

RESPONDENT: BRIJ MOHAN AND OTHERS

DATE OF JUDGMENT03/08/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1983 AIR  925            1983 SCR  (3) 525  1983 SCC  (4)  36        1983 SCALE  (2)63

ACT:      Code of  Civil Procedure,  1908-O. XVl,  rs. 1  and 1A- Trial of  election  petition-Right  to  bring  any  witness, without applying  for summons,  for examination under r. 1A- Scope of-Can court decline to examine witnesses kept present by party  on the  sole ground that their names have not been set out in the list filed in compliance with r. 1?

HEADNOTE:      Sub-r. (1)  of r. 1 of O. XVI, Code of Civil Procedure, 1908 casts  an obligation  on every party to a proceeding to present a  list of witnesses whom it proposes to call and to obtain summonses  to such  persons for  their attendance  in court; sub-r.  (2) requires  that  the  party  seeking  such assistance from  the court  must make an application stating the  purpose  for  which  the  witness  is  proposed  to  be summoned; and  sub-r. (3)  confers a discretion on the court to permit  a party  to summon through court or otherwise any witness other  than those  whose names  appear in  the  list submitted under  sub-r. (1),  if such party shows sufficient cause for  the omission  to mention the name of such witness in the said list. Rule 1A of O. XVI enables a party to bring in any  witness without  applying for summons under r. 1 but this enabling  provision is ’ subject to sub-r. (3) of r. 1. Rule 22  of the  "Rules of  Procedure and  Guidance  in  the matter of  trial of  Election Petition  under Part Vl of the Representation of  the People  Act, 1951"  of the Punjab and Haryana High  Court merely  re-enacts sub-rs. (1) and (2) of r. 1 of o, XVI, C.P.C.      Sub-s. (1) of s. 87 of the Representation of the People Act, 1951  makes O.  XVI, c.P.c.  applicable to the trial of election petitions  and the  proviso thereto  gives the High Court the  discretion to refuse to examine any witness if it is of  the opinion  that the evidence of such witness is not material or  that the  party tendering such witness is doing so on  frivolous  grounds  or  with  a  view  to  delay  the proceedings.      The appellant,  who was  the petitioner  in an election petition, had  filed an  application seeking  permission  to produce and  examine witnesses  whose names  were set out in the application  and the court had passed appropriate orders thereon. When  the court  was recording  the evidence of the

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appellant he submitted another list of witnesses whom/he had kept present  in the court for being examined, but the court rejected the  same for  two reasons.  (i) that the appellant had not mentioned their names in the application made by him earlier; and  (ii) that  there was no mention of the purpose for which  they were  being  offered  for  examination.  The appellant challenged the validity of the Court’s order. 526      Allowing the appeal, ^      HELD: It  is obligatory on the party to a proceeding to file the  list of witnesses with the gist of evidence and to make an application for issue of summons as provided in sub- rs. (1)  and (2)  of r. 1, O. XVI only where the party wants the assistance  of the  court to  procure  the  presence  of witnesses; but  where the  party is in a position to produce its witnesses without the assistance of the court, it can do so under r. 1A irrespective of the fact whether the names of such witnesses  are mentioned  in the  list or  not and  the court cannot  decline to  examine them unless it proposes to act under  the proviso  to  sub-s.  (1)  of  s.  87  of  the Representation of the People Act, 1951. [531 G-H, 532 A]      (i) The obligation to file a list of witnesses with the gist of  evidence of each witness within the time prescribed under sub-r.  (1) of  r. 1,  O. XVI  is in  respect of those witnesses to  procure whose  presence the  assistance of the court is  necessary. And,  this ought  to be  so because the court  wants   to  be  satisfied  about  the  necessity  and relevance of  the evidence  of such  witness whose  presence will be  procured with  the assistance of the court. If mere omission to  mention the  name of  a  witness  in  the  list envisaged by  sub-r. (1)  of r.  1 would enable the court lo decline to  examine such  a witness,  r. 1A  would not  have omitted to  mention that  only those  witnesses kept present could be  examined whose  names are  mentioned in  the  list envisaged by sub-r. (1) of  r. 1  and who  can  be  produced without the  assistance of the court. The marginal note of r 1A reads:  "Production of witnesses without summons" and the rule proceeds to enable a party to bring any witness to give evidence or  produce documents  without applying for summons under r.  1. If it was implicit in r. 1A that it enables the party to  examine  only  those  witnesses  whose  names  are mentioned in  the list  filed under  sub-r. (1) of r. 1 whom the  patty  would  produce  before  the  court  without  the assistance of  the court, it was not necessary to provide in r. 1A  that the party may bring any witness without applying for summons under r. 1. [533 B-H]      (ii) The  contention that r 1A is subject to sub-r. (3) of r. 1 and therefore the court must ascertain how far sub-r (3) would  carve out  an exception to the enabling provision contained in  r. 1A  cannot be  accepted. Sub-r. (3) of r. 1 and r.  1A operate  in two  different areas and cater to two different situations.  Sub-r. (3)  of r.  1 confers  a wider jurisdiction on  the court to cater to a situation where the party has  failed to name the witness in the list and yet is unable to  produce him  on its own under r. 1A and seeks the assistance of  the court under sub-r. (3) of r. 1 to procure the presenee of the witness. [534 C-E]      (ii) Failure  to comply  with the  summons served  on a person entails certain consequences in law as provided in r. 10 of  O. XVI:  the court may issue a proclamation requiring him to attend to give evidence or to produce the document at a time  and place  named therein, or issue a warrant for his arrest with  or without  bail, or  impose a  fine on him, or order his property to be attached and sold. In view of these

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legal consequences ensuing from the issuance of a summons by the court and failure to comply with the same, the scheme of rs. 1  and 1A of O. XVI and r. 22 of the Rules framed by the High 527 Court envisaged  the filing  of a  List only  in respect  of witnesses whom  the parties  desire to  examine and  procure presence with  the assistance  of  the  court.  The  advance filling of  list is necessary because summoning of witnesses by court is a time-consuming process. [532 D-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 4379 of 1983.      From the  Judgment and  order dated  the 11th  January, 1983 of  the Punjab  and Haryana High Court at Chandigarh in Election Petition No. 3 of 1982.      S N. Kacker and V Mayakrishan for the Appellant.      A. K. Sen and Rathin Das for the Respondent.      The Judgment of the Court was delivered by      DESAI, J. On May 3, 1983 we made the following order:           "Special leave granted. The appeal is allowed.           The order  of the  High  Court  refusing  the      request  of   the  appellant  to  examine  his  54      witnesses who, according to him, were kept present      is  varied.   The  election   petitioner-appellant      herein  shall  produce  all  those  witnesses  and      examine all  or any of them whomsoever he wants to      examine out  of them  and in  respect of whom, the      Court did  not grant  permission to  examine.  The      examination shall be taken up day to day. No Court      assistance need  be  rendered  for  procuring  the      presence of all or any of them and the examination      shall  be  completed  within  a  span  of  7  days      commencing from  the date  on which the High Court      commences examination of witnesses. Subject to the      convenience of  the learned  Judge and the parties      recording of  evidence shall  be taken  up on this      side of the summer vacation of the High Court.           In the circumstances of the case, there shall      be no order as to costs. Reasons to follows." Here are the reasons. 528      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 filed by the appellant- election  petitioner   seeking  permission  to  produce  and

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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 the Code 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, 529 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 presented  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. Sec. 87 which is material for the present purpose reads as under:           87.  Procedure   before  the  High  Court-(1)      Subject to  the provisions  of this Act and of any      rules  made  thereunder  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,  1908  (5  of      1908) to the trial of suits:           Provided that  the High  Court shall have the      discretion to  refuse, for  reasons to be recorded      in writing, to examine any witness or witnesses if      it is  of the  opinion that  the evidence  of such      witness or  witnesses  is  not  material  for  the      decision  of   the  petition  or  that  the  party      tendering such witness or witnesses is doing so on      frivolous grounds  or with  a view  to  delay  the      proceedings.           (2) The  provisions of  the  Indian  Evidence      Act, 1872  (1 of  1872),  shall,  subject  to  the      provisions of  this Act  be deemed to apply in all      respects to the trial of any election petition."      Order XVI  Rule 1 which is relied-upon on behalf of the returned candidate reads as under.           "1.  List   of  witnesses   and  summons   to      Witnesses-(1) on  or before such date as the Court      may appoint, and not later than fifteen days after      the date  on which  the issues  are  settled,  the

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    parties shall present in Court a list of witnesses      whom they  propose to call either to give evidence      or to  produce documents  and obtain  summonses to      such persons for their attendance in Court. 530           (2) A party desirous of obtaining any summons      for the  attendance of  any person  shall file  in      Court an  application stating  therein the purpose      for which the witness is proposed to be summoned.           (3)  The   Court  may,   for  reasons  to  be      recorded, permit  a  party  to  call,  whether  by      summoning through Court or otherwise, any witness,      other than  those whose  names appear  in the list      referred to  in sub-rule  (1), if such party shows      sufficient cause  for the  omission to mention the      name of such witness in the said list.           (4) Subject  to the  provisions  of  sub-rule      (2), summonses  referred to  in this  rule may  be      obtained by  the parties  on an application to the      Court or  to such  officer as  may be appointed by      the Court in this behalf.           1A, Production  of witnesses without summons-      Subject to  the provisions of sub-rule (3) of Rule      1, any party to the suit may, without applying for      summons under  rule 1,  bring any  witness to give      evidence or to produce documents." Rule  1A  was  inserted  by  the  Code  of  Civil  Procedure (Amendment)  Act,  1956.  Both  Rule  1  and  1A  have  been drastically amended  by the  Amending Act,  1976 which  came into force  on February  1, 1977.  Rules 1  and 1A extracted hereinabove are  the amended rules in force from February 1, 1977.      At the hearing of the appeal, a statement was made that the Punjab  and Haryana  High Court has introduced a proviso to subrule (4) of Rule 1 of order XVI. It reads as under:           "Provided that no party who has begun to call      his witnesses  shall be entitled to obtain process      to enforce  the attendance  of any witness against      whom process  has not  previously  issued,  or  to      produce any  witness not  named in  a list,  which      must be  filed in  Court on  or before the date on      which  the  hearing  of  evidence  on  his  behalf      commences and  before the  actual commencement  of      the hearing  of such evidence without any order of      the Court  made in writing and stating the reasons      therefor." 531 In exercise  of the powers conferred by clauses 27 and 35 of the Letters  Patent and  Sec.  129  of  the  Code  of  Civil Procedure, 1908,  the High  Court of  Punjab and Haryana has framed rules  styled as  ’Rules of Procedure and Guidance in the matter  of trial  of Election Petitions under Part VI of the Representation  of the  People Act,  1951’  (High  Court Rules for  short). Rule  22 of  the aforementioned  rules is relevant. It reads as under:           "22(1) A  party  desirous  of  requiring  the      attendance of  his witnesses  at the  trial of the      petition through  the process  of the  High  Court      shall, within  fifteen days  of the  settlement of      the issues, make an application for the purpose to      the Registrar.  The said application shall contain      the names  of the said witnesses and a gist of the      facts to  be proved by each one of them. A copy of      the said  application shall, also, be delivered by      the party  or his Advocate to the Advocate for the

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    opposite party  or if  the same is not represented      by an  Advocate, to  the said  party, at  the same      time it is made to the Registrar. .. ,"      The neat  question of  law  is:  where  a  party  to  a proceeding does not wish to have the assistance of the Court for the  purpose of procuring the attendance of a witness or witnesses, could  he be  denied the  privilege of  examining witnesses  kept  present  by  him  on  the  date  fixed  for recording his evidence, on the sole ground that the names of the witnesses and the gist of evidence have not been set out in the  list which  may or  ought  to  have  been  filed  in compliance with  order XVI  Rule 1  of  the  Code  of  Civil Procedure ?      Sub-rule (1) of Rule 1 of order XVI casts an obligation on every  party  to  a  proceeding  to  present  a  list  of witnesses whom it t proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their  attendance in  Court. Sub-rule  (2) requires that the  parties   seeking  the  assistance  of  the  Court  for procuring  the   attendence  of   a  witness  must  make  an application  stating  therein  the  purpose  for  which  the witness is  pro posed to be summoned. Sub-rule (3) confers a discretion on  the Court to permit a party to summon through Court or  otherwise any witness other than those whose names appear in  the list submitted in sub-rule (1), if such party shows sufficient  cause for the omission to mention the name of such witness in the said list. Rule 1A in its 532 amended form  in force  since 1977  enables a party to bring any witness  to give  evidence or  to produce  documents but this  enabling   provision  is   subject  to  the  provision contained in  sub-rule (3)  of Rule  1 of  order XVI.  If  a reference to  Rule 22 of the High Court Rules is recalled at this stage,  it merely  reenacts sub-rule  (2) of  Rule 1 of order XVI.      If the  requirements of these provisions are conjointly read and  properly analysed,  it clearly transpires that the obligation to  supply the  list as  well as  the gist of the evidence of  each witness  whose name is entered in the list has to  be carried  out in  respect of  those witnesses  for procuring whose attendance the party needs the assistance of the Court.  When a  summons  is  issued  by  the  Court  for procuring  the   presence  of  a  witness,  it  has  certain consequences in law. If the summons is served and the person served fails  to comply  with the same, certain consequences in law  ensue as  provided in  Rule 10  of  order  XVI.  The consequence is  that where  the witness  summoned either  to give evidence  or to produce documents fails to attend or to produce the  documents in  compliance with such summons, the Court on  being satisfied of the service as provided therein and is  further satisfied that the person has without lawful excuse failed  to honour the summons, the Court may issue is a proclamation  requiring him  to attend to give evidence or to produce  the document  at a  time and  place to  be named therein; and a copy of such proclamation shall be affixed in the manner  therein provided. Simultaneously, the Court may, in its  discretion, issue  a warrant, either with or without bail, for  the arrest  of such person, and may make an order for the  attachment of  his property  for such  amount as it thinks fit.  Even if thereafter the witness fails to appear, the Court  may impose  upon him such fine not exceeding five hundred rupees  as it  thinks  fit,  having  regard  to  his condition in life and all the circumstances of the case, and may order his property, or any part, thereof, to be attached and sold  as provided  in Rule  12 of  order XVI. In view of

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this legal  consequence  ensuing  from  the  issuance  of  a summons by  the Court  and failure  to comply with the same, the scheme  of Rules  1, 1A  of order XVI and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to t examine  and procure  presence with  the assistance of the Court. There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the presence of a witness, obviously the party can produce such witness on the date of 533 hearing and  the Court cannot decline to examine the witness unless the  Court proposes  to act under the proviso to sub- sec. (1)  of Sec.  87 of  the ’1951  Act’ which  enables the Court for  reasons to  be recorded  in writing, to refuse to examine any  witness or  witnesses if  it is  of the opinion that the  evidence of  such  witness  or  witnesses  is  not material for  the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or  with  a  view  to  delay  the  proceedings.  It, therefore, unquestionably  transpires that the obligation to supply the  list of  witnesses within  the  time  prescribed under sub-rule  (1) of  Rule 1 of order XVI is in respect of witnesses to  procure whose  presence the  assistance of the Court is  t necessary.  And this  ought to be so because the Court  wants   to  be  satisfied  about  the  necessity  and relevance of  the evidence  of such  witness whose  presence will be  procured with the assistance of the Court. This not only explains  the necessity  of setting  out the  names  of witnesses in  the list but also the gist of evidence of each witness. If  mere omission  to mention the name of a witness in the list envisaged by sub-rule (1) of Rule 1 of order XVI would enable  the Court  to decline to examine such witness, Rule 1A  of order XVI would not have omitted to mention that only those  witnesses kept  present could  be examined whose names are  mentioned in  the list  envisaged by sub-rule (1) and who can be produced without the assistance of the Court. Viewed from this angle, Rule 1A becomes wholly redundant. If it is  obligatory upon  the party  to mention the 1 names of all witnesses  irrespective of  the fact whether some or all of them  are to be summoned and even the names of those whom the party  desires to  produce without the assistance of the Court are  also required  to be mentioned in the list on the pain that  they may not be permitted to be examined, Rule 1A would have  given a  clear legislative  exposition  in  that behalf and  the marginal  note of  Rule 1A clearly negatives this  suggestion.   Marginal  note   of  Rule  1A  reads  as ’Production of  witnesses  without  summons’  and  the  rule proceeds to  enable a  party to  bring any  witness to  give evidence  or  to  produce  documents  without  applying  for summons under  Rule 1. If it was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are  mentioned in the list filed under sub rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule  1A that  the party  may bring  any witness  to give evidence  or  to  produce  documents  without  applying  for summons under  R Rule 1. Rule 1A of order XVI clearly brings to surface  the  two  situations  in  which  the  two  rules operate. Where the party wants 534 the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to  file the list with the gist of evidence of witness in the  Court as directed by sub-rule (1) of Rule 1 and make

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an application  as provided  by sub-rule  (2) of Rule 1. But where the  party would  be in  a  position  to  produce  its witnesses without  the assistance of the Court, it can do so under Rule  1A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.      It was,  however. contended  that Rule 1A is subject to sub-rule (3)  of  Rule  1  and  therefore,  the  Court  must ascertain how  far sub-rule (3) would carve out an exception to the  enabling provision contained in Rule 1A. There is no inner contradiction  between sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider  jurisdiction on  the Court  to cater to a situation where the  party has  failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to  seek the  assistance of the Court under sub-rule (3) to procure  the presence of the witness and the Court may if it is  satisfied that the party has sufficient cause for the omission to  mention the  name of  such witness  in the list filed under  sub-rule (1)  of Rule  1, the  Court may  still extend its  assistance for  procuring the presence of such a witness by  issuing a summons through the Court or otherwice which ordinarily  the court  would not  extend for procuring the attendance  of a  witness whose name is not shown in the list. Therefore,  sub-rule (3) of Rule 1 and Rule 1A operate in  two   different  areas   and  cater   to  two  different situations.      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 535 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

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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. Therefore, the  order of the learned Judge had to be quashed and was accordingly quashed and the appeal was allowed. H.L.C.                                       Appeal allowed. 536