IMPORTANT POINT
A witness summoned under Part B of the Delhi High Court (Original Side) Rules, 1967 to produce documents only cannot be subject to cross-examination on matters beyond the summoned record.

JUDGMENT

Manoj Kumar Ohri, J. (Oral)

O.A. 59/2023

1. By way of present chamber appeal filed under Chapter II, Rule 5 of Delhi High Court (Original Side) Rules, 1967 read with Section 151 CPC, the applicant/respondent No.1 (hereafter, `the applicant') has assailed the order dated 10.05.2023 passed by the Joint Registrar (hereafter, the `impugned order').

2. Briefly, in the captioned election petition, the petitioner has challenged the election of applicant as MLA from Assembly Constituency-15, Shakur Basti, New Delhi. The impugned order came to be passed in the context of cross-examination of petitioner's witness namely Prashant Tanwar, Assistant Electoral Registration Officer who had been summoned to produce and prove: i) petitioner's affidavit submitted alongwith his nomination paper on 21.01.2020 in respect of election held on 08.02.2020 of the aforesaid Assembly Constituency, ii) complaints lodged by petitioner's election agent dated 02.02.2020 and 03.02.2020, iii) complaint lodged by petitioner's election agent dated 01.02.2020 and iv) the affidavit filed by applicant of the election expenditure.

3. The controversy arose when the aforesaid petitioner witness appeared and was sought to be cross-examined by the applicant for matters beyond the summoned record. Vide impugned order, the learned Joint Registrar sustained the objections raised by the petitioner. The respondent being aggrieved by the aforesaid order has preferred the present chamber appeal.

4. The short issue involved in the present case is whether a formal witness summoned under Part B as per the Delhi High Court (Original Side) Rules, 1967 can be subject to cross-examination on matters beyond the summoned record.

5. Mr. Nandrajog, learned Senior Counsel appearing for the applicant contended that the factum of petitioner seeking to summon a person from the office of State Election Commission to produce and prove documents, the person can no longer be characterised only as a formal witness who could not be cross-examined. In such eventuality, Section 139 of the Evidence Act would not be applicable. In support of his submissions, learned Senior Counsel placed reliance on the decision in Sharons Link Logistics v. UNI Trade Logistics, 2023 SCC OnLine Del 1267.

6. Mr. Gupta, learned Senior Counsel appearing for the petitioner, while supporting the impugned order, submitted that the witness in question was sought to be summoned through I.A. Nos. 8249-50/2023 which came to be allowed on 28.04.2023, after recording no objection from the respondents. It is further submitted that the aforesaid witness was summoned only to produce the said documents and not to give any oral evidence. The applicant however, had sought to cross-examine the said witness in relation to the defence raised by him in the case. Pertinently, for the said purpose, the applicant had also cited one Ashwani Gupta as a witness under Part C. In support of the submissions, reliance is placed on the decision in Eknath Prabhakar Morajkar & Anr. v. Bhanudas Prabhar Morajkar & Ors., 2021 SCC OnLine Bom 3613.

7. Having heard the learned counsels for the parties, this Court finds no merit in the chamber appeal in the facts of the present case. Chapter XI of Delhi High Court (Original Side) Rules, 1967 deals with Evidence and Witnesses. Rule 3 provides for the format in which the list of witnesses is to be filed. The said Rule requires the party to classify a witness in the following manner:

"Part-A Witnesses required to be examined on Commission and Video conferencing.

Part-B Witnesses required to produce documents only and who are not required to give oral evidence.

Part-C Witnesses required to give oral evidence and also to produce documents, including expert witnesses.

Part-D Witnesses required to give oral evidence but from whom no documents are required to be proved."

8. The petitioner had summoned the official in question under Part B i.e., a witness required to produce documents only and not to give any oral evidence.