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1992 Supreme(Gau) 38
GAUHATI HIGH COURT
D. N. BARUAH, J.
Saingura -Appellant
Versus
F.Sapa and others -Respondent
Miscellaneous Case No. 1/92, in Election Petition No. 7/89 (G) and 1/91 (A/B)
Decided On : 21-02-1992
Mr. B. L. Wadehra, Mr. A. K. Bhatta-charyya, Mr. C. C. Deka, Mr. R. C. Bor-patragohain, Mr. A. K. Das, and Mr. K. Agarwal, Mr. A. M. Mazum-dar, Mr. M. K. Sarma, Mr. S. S. Dey, Mr. K. P. Pathak, Mr. M. Nath, Mr. M. Ahmed and Mrs. N. Saikia
The Code of Civil Procedure is applicable to election petitions in Mizoram, subject to the provisions of the Representation of the People Act.
Headnote:
ELECTION PETITION - MAINTAINABILITY - DELAY IN FILING LIST OF WITNESSES AND DOCUMENTS - SUFFICIENCY OF CAUSE - INTERPRETATION OF ORDER VII RULE 14, ORDER XIII RULES 1 AND 2, AND ORDER XVI RULE 1 OF THE CODE OF CIVIL PROCEDURE - APPLICABILITY OF THE CODE OF CIVIL PROCEDURE TO ELECTION PETITIONS IN MIZORAM.
Fact of the Case:
The petitioner filed an election petition alleging corrupt practices by the first respondent. The first respondent filed a written statement and raised preliminary objections, which were rejected by the court. The Supreme Court stayed further proceedings, but later directed the court to rectify defects. The petitioner then filed applications for issuance of summons to produce documents and to summon witnesses, which were opposed by the first respondent.
Finding of the Court:
The court held that the Code of Civil Procedure is applicable to election petitions in Mizoram, subject to the provisions of the Representation of the People Act. The court found that the petitioner had shown sufficient cause for the delay in filing the list of witnesses and documents, and that the first respondent would not be prejudiced if the witnesses were summoned and the documents were produced.
Issues: 1. Whether the Code of Civil Procedure is applicable to election petitions in Mizoram? 2. Whether the petitioner had shown sufficient cause for the delay in filing the list of witnesses and documents? 3. Whether the first respondent would be prejudiced if the witnesses were summoned and the documents were produced?
Ratio Decidendi: 1. The court held that the Code of Civil Procedure is applicable to election petitions in Mizoram, subject to the provisions of the Representation of the People Act. The court noted that Section 87 of the Representation of the People Act provides that election petitions shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure. 2. The court found that the petitioner had shown sufficient cause for the delay in filing the list of witnesses and documents. The court noted that the petitioner had explained that the delay was due to difficulties in communication between the petitioner and his counsel, and that the petitioner had filed the applications as soon as he became aware of the omissions. 3. The court held that the first respondent would not be prejudiced if the witnesses were summoned and the documents were produced. The court noted that the trial had not yet begun, and that the first respondent would have an opportunity to cross-examine the witnesses and challenge the documents.
Final Decision: The court allowed the petitioner's applications for issuance of summons to produce documents and to summon witnesses.
The petitioner filed the elec-tion petition alleging that the first respondent is guilty of corrupt practice within the mean-ing of Section 123 of the Representation of the People Act, 1951. The first respondent appeared on receipt of notice and filed written statement. However, he took several adjournments for filing the written statement, which compelled this Court to fix the case for ex parte hearing. Ultimately, the first respon-dent filed the written statement with a petition for setting aside the ex parte order and to accept the written statement. After hearing the parties, this Court set aside the ex parte order of hearing and accepted the written statement.
2. Thereafter, issues were framed and the case was posted for hearing. Meanwhile, the first respondent raised some preliminary objections as to the maintainability of the election petition and this Court rejected the preliminary objections by order dated 3-9-90. Against that order, the first respondent moved the Supreme Court. The Supreme Court admitted the petition and stayed fur-ther proceedings. By order dated 22-8-91 the Supreme Court disposed of the appeal with a direction to rectify the defects. This Court, thereafter, fixed 6-1-91 for trial of the cases at Aizwal, Mizoram.
3. In the meantime on 16-11-91 the elec-tion petitioner filed an application praying for issuance of summons to produce certain documents. In this petition, he inter alia, stated that his case was conducted by a counsel practicing and residing in New Delhi. Due to long and hazardous distance between Aizawl and New Delhi and other difficulties, he could not meet his counsel. Having faced with such difficulties, the election petitioner engaged another set of counsel practicing at Gauhati to conduct the case. These newly engaged counsel appeared on 19-9-91. Thereafter, on scrutiny of the records it was found that there had been omissions to call for the original manuscript of the documents described in the Schedule to the petition due to oversight and inadvertence. The petitioner further stated that all the documents except the documents mentioned in serial Nos. 11, 12 and 13 were already annexed to the election petition and copies thereof were furnished to the respondents. Besides, these documents listed in the Scheduled were required to be produced by the persons who were cited as witnesses on behalf of the election petitioner in the list of witness already filed. The docu-ments listed and mentioned in Schedule were in power and possession of the persons men-tioned in Column (3) of the Schedule. The petitioner further stated that this application was filed at the earliest opportunity after detection of the omissions. According to the election petitioner his case mainly based on these documents and if the documents were not called for, the petitioner would be denied fair trial which would cause serious prejudice to him.
4. The election petitioner filed a similar application on 17-12-91 also praying for is-suance of summons to produce documents.
5. Again on 20-1-92 the election petition-er filed yet another petition praying for issuance of summons to witnesses whose names were not mentioned in the list of witnesses already filed before this Court. In this petition, he had, inter alia, stated that a list of witnesses to be examined by the election petitioner was already filed and the same was on record. It was further stated that issues were settled on 6-12-90 and the list of witnesses was prepared by the counsel in consultation with petitioners representatives on 7-12-90. The petitioners representatives wanted to verify the names of the witnesses and, therefore, he intended to visit Gauhati. However, the list could not be filed as the representative of the petitioner failed to turn up for verification. Ultimately on 8-1-91, the petitioners counsel filed additional list of witnesses. The name of one witness, viz. Sri Oscar Fernandes was not mentioned in the list of witnesses filed earli
