-1- EP NO.01/2019
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
SINGLE BENCH: HON'BLE MR.JUSTICE AMAR NATH (KESHARWANI)
Election Petition NO.01/2019
Subhash Kumar Sojatia s/o late Shri R.M.Sojatia
vs.
Devilal Dhakad s/o Late Shri Jodhraj Dhakad & others
26.04.2022: (INDORE):
Shri R.S.Chhabra, learned Senior Counsel with Shri Aman
Arora for the petitioner.
Shri Rohit Kumar Mangal and Shri Sunil Verma, learned
counsel for the respondent No.1.
This order shall dispose of I.A.No.6952/2019, an application filed on behalf of the petitioner under Order 11 Rule 14 CPC for direction to the respondent No.1 to produce his Income Tax Returns along with computation for the financial year 2017-18 (AY 2018-19) & 2018-19 (AY 2019-20) and copy of the application for obtaining bank account details of Mr.Harish Marmat.
It is stated in the application that in para-16 of the written statement the respondent No.1 has stated that no income from fixed deposits has accrued to him and with regard to interest earned from his saving bank account he has not made any averment in his written statement. It is also stated that all incomes including interest income earned by an individual is required to be disclosed in the Income Tax returns. For the purpose of
-2- EP NO.01/2019 adjudicating whether interest income was actually earned by respondent No.1, the Income Tax Returns along with the computation for the Financial Year 2017-18 (AY 2018-19) and 2018-19 (AY 2019-20) are required to be assessed. The Income Tax Return for the Financial Year 2017-18 (AY 2018-19) and 2018-19 (AY 2019-20) of respondent No.1 are in his possession. The details disclosed by a person in his Income Tax Returns are personal information and the same is exempted from disclosure under Clause (j) of Section 81(1) of the RTI Act. It is also stated in application that in para-22 of the written statement of respondent No.1 has mentioned about the bank details of Mr.Harish Marmat and has filed it as Annexure R/16. However, respondent No.1 has not stated as to how he has obtained the bank account details of Mr.Harish Marmat. The respondent No.1 deserves to be directed to file copy of the application under the Right to Information Act or under any other law filed by him to obtain the bank details of Mr. Harish Marmat, therefore, contended that the aforesaid documents are relevant and material for the adjudication of the present election petition.
The respondent No.1 has filed a reply to the application under Order 11 Rule 14 CPC by submitting inter alia that the application is not maintainable at this stage in view of the provisions of Order 11 Rule 14 CPC. It is for the petitioner to prove his case in accordance with law, however, it appears that
-3- EP NO.01/2019 since the petitioner has failed to plead all material facts as per the requirement of section 83 of the Representation of Peoples Act, 1951, therefore, to fill-up the said lacuna he has been filing the interlocutory applications with regular intervals even after filing of the written statement. After filing of the written statement the petitioner has also filed applications I.A.No.6355/2019, under Order 11 Rule 1 CPC and I.A.No.6356/2019, application under Order 11 Rule 4 CPC, however, same were withdrawn on 06.09.2019. It is also averred in the reply that an affidavit should also accompany the application under Order 11 Rule 14 CPC but the petitioner has failed to do so, hence the application ought to be rejected.
In support of the submission made in application learned counsel for the petitioner during argument has placed reliance on the judgment of the Apex Court in the case of Basanagouda vs. Dr.S.B. Amarkhed and others (1992) 2 SCC 612.
Learned counsel for the respondent No.1 during argument in support of the contentions raised in the reply has placed reliance over the judgment in the case of Ravindra Bal Niketan Samiti, Sikar and others vs. Smt.Sushila Shrivastava and another AIR 1988 Rajasthan 177; The State of Punjab vs. Sodhi Sukhdev Singh AIR 1961 SC 493; S.P Gupta vs. Union of India 1981 Supp. SCC 87 Page 278; Rajesh Bhatia and ors. vs. G.Parimala and ors. 2006 (3) ALD 415; M/s Shri Shiv Shakti
-4- EP NO.01/2019 Agency vs. Vinod Kumar 2010 SCC Online Raj 2712; Manohar Joshi vs. Damodar Tatyaba @ Dadasaheb Rupwate and others (1991) 2 SCC 342; Baldev Singh Mann vs. Gurcharan Singh (MLA) & others (1996) 2 SCC 743 & Magraj Patodia vs. R.K. Birla and others AIR 1971 SC 1295.
I have considered the arguments advanced by the counsels for the parties, perused the pleadings of the parties and also gone through the citation placed before the Court.
Issue No.04 has been framed relating to the income from interest accrued on saving account as well as fixed deposit account. That issue was framed on the pleading of the petitioner, so to prove that issue, the burden of proof lies on the petitioner himself, therefore, to prove that issue the petitioner can call the concerned bank official with record complying the provisions of law. As per section 101 of the Evidence Act - "whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exists." So the burden to prove the averments made in the petition lies on the petitioner and it is well established principle of law that the plaintiff has to prove his own case as held in the case of Punjab Urban Planning and Development Authority vs. M/s Shivsaraswati Iron and Steel Re-rolling Mills 1998 (II) MPWN 187 (SC).
-5- EP NO.01/2019 In the case of Manohar Joshi vs. Damodar Tatyaba @ Dadasaheb Rupwate and others (1991) 2 SCC 342 Hon'ble Supreme Court has held that "where in election petition, a corrupt practice is alleged, the trial of an election petition on such charge is of a quasi-criminal nature and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge". In this case also "corrupt practice" has been pleaded by the petitioner and issue no.03 has been framed. Apart from that, in view of the provision of Order 11 Rule 14 CPC and law laid down in (1992) 2 SCC 612, the I.A.No.6952/2019 filed on behalf of the petitioner is not acceptable.
Order 11 Rule 14 CPC provides that:
14. Production of documents-- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
In the case of Basanagouda vs. Dr.S.B.Amarkhed and others (1992) 2 SCC 612, the Hon'ble Apex Court has held in para-7 as under:
7. "The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question. The court also has been given power to deal with the
-6- EP NO.01/2019 documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant consideration which the court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition."
So in the facts and circumstance of the case, the application under Order 11 Rule 14 CPC (I.A.No.6952/2019) is liable to be and is hereby dismissed.
Heard on I.A.No.2862/2022, an application filed on behalf of respondent No.1 under section 151 CPC for direction to the Principal Registrar for providing certified copy of the nomination form and affidavit.
Counsel for the petitioner has no objection. On due consideration, I.A.No.2862/2022 is allowed and the Principal Registrar of this Court is directed to do the needful for providing the certified copy as per the copying application filed by the respondent No.1 in accordance with the Rules.
Let the case be listed for cross-examination and re- examination of the witness on 09.05.2022.
(AMAR NATH (KESHARWANI) JUDGE hk/ Digitally signed by HARI KUMAR C G NAIR Date: 2022.04.28 19:01:45 +05'30'