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Bijoyshree Rout Roy Vs. Madhusudan Panigrahi and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberMisc. Case No. 45 of 1985
Judge
Reported inAIR1986Ori105
ActsRepresentation of the People Act, 1951 - Sections 97 and 98; Code of Civil Procedure (CPC) , 1908 - Order 14, Rule 2; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantBijoyshree Rout Roy
RespondentMadhusudan Panigrahi and ors.
Appellant AdvocateAnanga Patnaik, ;L. Pangari and ;A. Pasayat, Advs.
Respondent AdvocateK.K. Jena, ;N.C. Panigrahi and ;Bibhudhendra Misra, Advs.
DispositionPetition dismissed
Cases Referred(Vidya Dhar v. Mohan Lal). Although
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....orders.c. mohapatra, j.1. the respondent no. 1 (the returned candidate) while filing the list of witnesses to be summoned to be examined by him has filed this application to permit him to file the list of witnesses and the list of documents to be called for so far as they relate to the issues on his application for recrimination, if and when the same is taken up for hearing.2. mr. b. misra, the learned counsel for respondent no. 1 has submitted that the summoning those witnesses to be present for examination would be prejudicial to respondent no. 1 inasmuch as there may not be any occasion for the same if it is found that the election of respondent no. 1 is not void. relying upon the majority view expressed in the decision reported in air 1964 sc 1200 (jabar singh v. ganda lal) mr. misra.....
Judgment:
ORDER

S.C. Mohapatra, J.

1. The Respondent No. 1 (the returned candidate) while filing the list of witnesses to be summoned to be examined by him has filed this application to permit him to file the list of witnesses and the list of documents to be called for so far as they relate to the issues on his application for recrimination, if and when the same is taken up for hearing.

2. Mr. B. Misra, the learned counsel for respondent No. 1 has submitted that the summoning those witnesses to be present for examination would be prejudicial to respondent No. 1 inasmuch as there may not be any occasion for the same if it is found that the election of respondent No. 1 is not void. Relying upon the majority view expressed in the decision reported in AIR 1964 SC 1200 (Jabar Singh v. Ganda Lal) Mr. Misra emphasised that the law envisages the trial of issues in respect of the grounds of Section 100 of the Representation of the People Act, 1951 first and after the Court declares that the election of the returned candidate is void, the issues relating to declaring another candidate elected as provided under Section 101 would arise and at that stage only the issues relating to recrimination under Section 97 may be required to be tried.

3. The majority view of the Supreme Court is as follows : --

'If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under Section 100 and the matter proceeds to be tried under Section 101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by Section 100(1)(d)(iii) and the latter part of the enquiry which is governed by Section 101(a) will have to be tried on a broader basis permittingthe returned candidate to lead evidence insupport of the pleas which he may have takenby way of recrimination under Section97(1).....'

This principle has found favour by the Supreme Court in two other decisions reported in AIR 1975 SC 2182 (Ram Autar Singh v. Ram Gopal Singh, and AIR 1985 SC 150 (Bhag Mal v. Ch. Parbhu Ram) cited by Mr. Misra. The context in which this majority view was given is completely different from the question at present. The two later decisions of the Supreme Court also were not dealing with a question as is raised now. In other words, Supreme Court was not dealing with the procedure for trial of the election petition in those decisions.

4. Section 98 of the Act provides that at the conclusion of the trial of an election petition, the High Court shall make an order : --

a) dismissing the election petition, or

b) declaring the election of all or any of the returned candidate to be void: or

c) declaring the election of ail or any of the returned candidate to be void or any other candidate to have been duly elected.

Section 99 provides for the consequential order to be passed while making the order under Section 98. Parliament also kept in view that separate trials may be necessary and in that view under Section 86(3) provided for the same only when separate petitions are filed challenging one election at the discretion of the Judge; No other ground is there for separate trial.

Section 87 of the Act provides that the trial of the Election Petition shall be in accordance with the procedure under the Code of Civil Procedure applicable to tht' trial of suits as nearly as may be subject to the provisions of the Act. No provision under the Act has been brought to my notice by Mr. Misra which would be inconsistent with Order 14, Rule 2 Civil Procedure Code. Thereunder, Court is to pronounce judgment on all issues. Same is the principle envisaged under Section 98 of the Act. Postponement of the settlement of other issues is possible only where the case or any part thereof may be disposed of on an issue of law only if that issue relates to the jurisdiction of the Court or being barred by law. Order 14. was amended by Act 104 of 1976 to avoid piecemeal trials and where answer to an issue would depend upon consideration of evidence even though it relates to jurisdiction or a bar of suit by any law, the same would be heard along with other issues.

5. Mr. Misra has relied upon a decision reported in I. L. R. (1983) Him Pra 391 (Vidya Dhar v. Mohan Lal). Although in the said decision, it has beer, held that the pleas of the returned candidate under Section 97 have to be tried after a declaration has been made under Section 100 of the Representation of the People Act, the Court did not defer filing of a list of witnesses in support of his pleas contained in the recrimination petition. It called upon the returned candidate to furnish the list of witnesses. It may however, be observed that the Himachal Pradesh decision has not taken into consideration, Order 14, Rule 2 Civil Procedure Code as amended.

6. Thus, in conclusion, the trial of all issues shall be taken up and list of witnesses and list of documents to be called for to settle all the issues framed shall have to be filed. There shall not be any piecemeal trial. I may make it clear that the power of the Court to summon any witness at any later stage is always there which can be exercised in proper cases if the situation so demands. In view of what I have stated, this petition has no merit and is accordingly, rejected. No costs.


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