1. This is an appeal from a judgment and order of the High Court of Jammu and Kashmir setting aside the election of the appellant, Abdul Gani Namthali, to the Jammu and Kashmir Legislative Assembly from Khan Saheb Assembly constituency in the general election of 1967 on the ground that the nomination paper of the election petitioner Gulam Mohammad Paray was rejected improperly with the result that the election of the appellant became void.
2. The facts relevant for the disposal of this appeal are as follows. The general elections for the Jammu and Kashmir Legislative Assembly were ordered to be held in February 1967. The voters of Khan Saheb Assembly constituency were called upon to elect a member for the same under Section 48 of the Jammu and Kashmir Representation of the People Act, 1967 (hereinafter referred to as the 'Act'). In compliance with the public notices issued by the concerned authorities three persons filed nomination papers, namely, the petitioner, the appellant herein and one Razi Gulam Butt who figures as respondent No. 2 in the election petition. The nomination papers of the three candidates were taken up for scrutiny by the Returning Officer of the Assembly Constituency mentioned. He accepted the nomination papers of the appellant alone as valid and rejected those of the election petitioner and of the respondent No. 2 in the petition, No point is now made about the rejection of the nomination paper of the second respondent. As regards the election petitioner, an objection was raised by the appellant to the effect that he held a subsisting contract for execution of the work with the Government of Jammu & Kashmir at the relevant time and this disqualified him from standing as a candidate Under Section 24(d) of the Act. The appellant produced a certificate from the Block Development Officer, Bearwho, Ex RW 1/3 to show that the election petitioner had still in his hand certain work for execution under the State Government. On the basis of this certificate the Returning Officer rejected the three nomination papers of the petitioner In the election petition the petitioner questioned this rejection. The election petition was filed on March 4, 1967 and the appellant filed his written statement thereto on August 24, 1967.
3. Although seven issues were framed, only one relating to the rejection of the nomination papers of the petitioner was canvassed at the trial. The issues had been settled on September 2, 1967. In paragraph 5 of his written statement, the appellant pleaded that the petitioner was a Government contractor who had a subsisting contract and this disqualification existed both prior and after the filing of the nomination by the petitioner. The examination of the witness commenced on April 8, 1968 and on that date four witnesses were examined on behalf of the petitioner. The case was then adjourned to April 12, 1968 when the petitioner was examined as P. W. 5. The appellant examined the Returning Officer as P. W. 1 on the same date. The case was then adjourned to April 17, 1968 for the examination of the other witnesses of the appellant. The appellant was examined as R W. 2 on the 17th April and at his instance the case was adjourned to April 25. 1968 for the examination of one Ghulam Hussan Dar. On the last mentioned date the appellant moved an application with four documents as annexure thereto and prayed for permission to prove them in order to establish that there was a contract with the Government in which the election petitioner was interested but which had not been mentioned earlier either before the Returning Officer or in his written statement. The case stood adjourned till May 9, 1968 which was fixed for hearing of the said application and, for the filing of objections, if any, by the petitioner. On the adjourned date the petitioner filed a rejoinder objecting to the introduction of new material by the appellant. With the consent of the parties the matter was ordered to be put upon June 5, 1968 at Srinagar where the court was to move in the meantime. The matter was actually taken up on June 18, 1968 'subject to objection and on payment of Rs. 50/- as costs to the petitioner, condition precedent'. The costs were paid and accepted and the appellant led evidence in support of his new ground on June 24, 1968 and examined four witnesses. R. Ws. 3 to 6 and brought on record a number of documents. The petitioner was allowed time till following day as desired by him to lead his rebutting evidence. On June 25, 1968 the petitioner examined three more witnesses, P. Ws. 6, 7 and 8 and gave further evidence himself. The arguments were heard on 10th and 11th June, 1968.
4. At the hearing a preliminary objection was taken to the admissibility of the evidence adduced by the appellant in regard to the new ground. The objection was that before the appellant could be allowed to adduce, further evidence he should have prepared the ground therefor by filing a supplementary written statement and raising a new issue based thereon. The learned trial Judge held that no prejudice had been caused to the election petitioner who had been duly compensated by payment of costs which had been accepted and by the granting of liberty to him to lead further evidence in rebuttal of which he had availed himself On this basis the objection of the election petitioner was over-ruled.
5. Although the learned trial Judge allowed the appellant to raise a new ground of attack and adduce evidence thereon he came to the conclusion, on the material before him, that the election petitioner did not have any interest in Government contract within the meaning of Section 24 (b) of the Act and his nomination paper was therefore not liable to be rejected. In the result, he allowed the election petition and set aside the election.
6. The questions to which we have to address ourselves in this appeal are: --
(1) Whether the trial Judge should have accepted the application of the appellant filed on April 25, 1968 and allowed evidence to be adduced without directing the appellant to file a supplementary written statement formulating his ground of attack and
(2) Whether on the evidence brought before the court the conclusion that nomination paper was wrongly rejected was justified?
7. With regard to the first point all that can be urged in avour of the election petitioner is that there was an irregularity which should not have been allowed to occur. There was no question of limitation involved in the application and the appellant merely sought to raise a new ground of attack of the same type as had been formulated in his written statement. If the appellant had been directed to file a supplementary written statement, the election petitioner would have had a right to file a reply thereto but on the facts of this case, it cannot be said that the absence of the written statement or of any reply thereto by the election petitioner has caused injustice to anybody. The procedure adopted, though irregular, was not illegal. The appellant led his evidence first on the new ground raised in his application of 24th May and brought forward the documents in support of his case. The election petitioner was ready with his own evidence to meet the challenge and as a matter of fact he succeeded before the trial court. The trial Judge gave him time to adduce his evidence and there was no complaint made by him that opportunity in this regard was not given to him Our attention was drawn by counsel for the respondent to Section 98 of the Act according to which every election petition is to be tried as nearly as may be in accordance with the procedure applicable under the CPC to the trial of suits. The proviso to Sub-section (1) of Section 98 lays down that:
'Provided that the Tribunal shall have the discretion to refuse for reasons to he recorded in writing to examine any witness or witnesses if it is of the opinion that their evidence 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 was contended on the strength of this proviso that it was the duty of the Tribunal to refuse to examine the witnesses produced after April 25, 1968. We do not think that the proviso has any application to the facts of this case. It merely gives the Tribunal the discretion to refuse to examine witnesses whose evidence in its opinion will not be material for the decision of the petition. It lays down no embargo on the Tribunal from allowing the examination of a witness merely because he is called to give evidence at a late stage of the proceedings. We are satisfied that the learned Judge did not exceed his jurisdiction in granting the application although he should have insisted on the appellant formulating his new objection in an additional written statement.
8. With regard to the second question all that we have to see is whether the appellant succeeded in establishing that the petitioner had an interest in a contract with the Government of the State. The provision in this regard which is somewhat different from Section 9-A of the Indian Act of 1963 is as follows:--
'Sec. 24. A person shall be disqualified for being chosen as, and for being a member of the Legislative Council-
(a) to (c) xx xx xx
(d) If, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by the Government;
(e) and (f) xx xx xx
The appellant relied on Ex. RW-6/1, the allotment order allottingearth work on the road from Khak to Darang kilometer seven toone Mohd. Sultan Ganai which was approved by Mohd. Manawar Wani, R. W. 6, Executive Engineer attached to the MuffassalDivision, Srinagar. This witness stated that the work had notbeen completed even on June 24, 1968, that no payment had beenmade and that the work was still under execution.
9. Mohd. Sultan Ganai was examined as R. W. 4. He admitted that the earth work at Khak Darang road had been given to him, that eighty percent of the work had already been executed and that the balance of work would be executed by him. He stated further that the petitioner was taken as & partner and a partnership deed was executed, signed by himself and the petitioner. The deed was registered and hence there can be no doubt about the authenticity of this document. The deed was marked as RW-4/1-A. This deed records that in the work relating to the construction of the road mentioned the election petitioner would be a partner and would have Rs. 0 12-0 share in the business, the remaining Rs. 0-4-0 being retained by Md. Sultan himself. The partnership would be at will but all the moneys would remain with the petitioner and he would keep regular accounts and none of the partners would be entitled to separate during the work of the partnership, The document which bears the date November 22, 1966 was registered on November 24, 1966. In cross-examination this witness was shown a letter dated January 4, 1967 marked as R. W. 4/2 and he admitted that he had sent this letter to the election petitioner. The letter purports to terminate the partnership between the parties with the complaint that although the partnership agreement was executed on November 29, 1966 the petitioner bad not fulfilled the same and had not shown any intention to complete the work. The relevant portion of this letter reads:--
'You are informed by letter ........ that this agreement has been cancelled i. e. you are no more partner in the aforesaid partnership. You are not responsible for any profit or loss in the aforesaid work. Treat the agreement or partnership as cancelled.
You have taken some goods from me i.e. baskets, spades and implements, the receipts of which you have executed in cash. Return the goods, failing which an action for the recovery of the amount for the aforesaid goods will be filed in courts of law.'
The further evidence of Mohd. Sultan in cross-examination was that at the time of the execution of the partnership deed he had invested Rs. 1200/- and subsequently thereto paid Rs. 200/-. These amounts had been given to the petitioner who maintained the accounts and had also issued a receipt for the amount. He admitted that he had made no mention of payment of these amounts in the letter of 4th January. Neither had he any occasion to look into the accounts relating to the work which was maintained by the election petitioner...
10. On June 25, 1968 when the petitioner was recalled for giving further evidence, he admitted the partnership deed between himself and Mohammad Sultan but stated that the partnership did not continue and it was in the first week of January 1967 that he received the letter Ex. RW-4/2 from Mohd. Sultan Ganai terminating the partnership business and thereafter he separated himself from the business and kept no connection with it. He admitted the receipt of RW-5/l showing payment to him of Rs. 1200/- by Mohd. Sultan but he denied having taken the further sum of Rs. 200/-from him. He also admitted that he did not send any written reply to Mohd. Sultan's letter of January 4, 1967.
11. The service of the notice of dissolution was sought to be proved through P W. 7 Qadir Rather who described himself as a labourer employed in the construction and repair of Darang Road. He purported to have worked as a labourer under Mohd. Sultan and claimed to be still working on the road. According to him it was 5 or 6 days after he had started work as such labourer that Mohd. Sultan had given him a letter to be made over to the election petitioner and he had accordingly carried that letter. His farther evidence was that he had never seen the election petitioner doing any work in connection with the construction of the road. In cross-examination he said that he had no idea of the distance between Khak and Darang. He had been to the house of the election petitioner 5 or 6 times and on one such occasion he had taken the letter given to him by Mohd. Sultan. On another occasion he had gone to borrow some money from the petitioner who was a big zamindar. He had never informed the petitioner that he was working for Mohd. Sultan. He admitted that it was only on the day previous to his being examined in court that the election petitioner had sent his son-in-law to his house requiring him to give evidence in court and it was about 10 or 20 days after he had taken work under Mohd. Sultan that he was asked to carry the letter.
12. The person who according to the election petitioner, wrote out the letter was one Janki Nath examined as P.W. 6. His evidence in examination-in-chief was that he had been asked to write the letter by Mohd. Sultan and he had done so. He wrote a letter at the dictation of Mohd. Sultan, read it out and explained to him whereupon Mohd. Sultan had signed it.
13. It being admitted that Mohd. Sultan held a contract with the State Government for execution of earth work on the Khak Darang road and had entered into a partnership agreement on December 22, 1966 with the election petitioner, the enquiry narrows down to ascertaining whether there had been a dissolution of partnership as alleged by the letter of 4th January, 1967. In our opinion the learned trial Judge came to a wrong conclusion on this aspect of the case. We find ourselves wholly unable to accept that the letter of January 4, 1967 was a genuine document of that it had been delivered to the election petitioner as alleged. The circumstances which have to be taken into consideration in this connection are as follows:
(1) The partnership was for construction of a load the execution of which was bound to take some time; as a matter of fact it had not been completed even in the middle of the year 1968 when the election petition was heard;
(2) The partnership was registered on December 22, 1966 and it was sought to be put on end to on the 4th January, 1967 in less than a fortnight on the plea that the election petitioner had evinced no intention to complete the contract and did not want to fulfil the agreement;
(3) According to the partnership deed the election petitionerwas to have Rs. 0-12-0 share in the partnership and he would be the person who would stand to loss more than Mohd. Sultan who had only a Rs. 0-4-0 interest therein;
(4) The notice of dissolution makes no mention of the amount of Rs. 1400/- paid by Mohd. Sultan and does not ask for repayment of the amount although it threatens recovery of the value of petty items like, baskets, spades and implements made over to the election petitioner;
(5) The election petitioner was to be accountable person but the notice of dissolution does not call upon him to render an account of the money in his hands or the disbursements made by him;
(6) Although the letter was written from Srinagar and threatens legal action. It was not drafted by a lawyer nor sent by post. The person who is alleged to have carried the letter is an ordinary labourer called over-night by the election petitioner to give evidence in his favour; and
(7) Lastly the petitioner did not think it necessary to sendany reply to this letter patting an abrupt end to the partnership.
14. The circumstances enumerated above can only point to one conclusion, namely, that the alleged letter of dissolution was not sent to the election petitioner on 4th January 1967. In our view it was manufactured for the purpose of the case and the learned trial Judge went wrong in accepting this document as a genuine one and believing the evidence of the witnesses to the effect that such a letter bad been written on the date mentioned or served on the appellant as deposed to by one of the winesses. The letter may have been scribed by P.W. 6 but it was not a document which saw the light of the day on January 4, 1967. It was evidently a fabricated letter.
15. In the result, we hold that the election petitioner had an interest in a contract for the execution of work for the State' Government and was disqualified for being chosen as and for being a member of the Legislative Assembly of the State, The appeal is therefore allowed and the election petition dismissed. But in the circumstances of the case, specially in view of the irregularity in the trial of the election petition we direct the parties to pay and bear their own costs throughout.