Subhash Kumar Sojatia vs Devilal Dhakad
2023 Latest Caselaw 4327 MP

                                                               1



                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                     EP No. 1 of 2019
                                      (SUBHASH KUMAR SOJATIA Vs DEVILAL DHAKAD AND OTHERS)



                          Dated : 20-03-2023
                                Shri Ravindra Singh Chhabra - Senior Advocate with Shri Mudit
                          Maheshwari - Advocate for petitioner.
                                Shri Rohit Kumar Mangal - Advocate for respondent No.1.

Shri Zameel Sheikh - Advocate for respondent No.2. Shri Palash Choudhary - Advocate for respondent No.8.

Parties are heard on IA.No.1962/2023, which is an application under Order IX Rule 7 read with Section 151 of CPC filed on behalf of respondent No.2 - Toofan Singh for cancellation of ex parte proceeding drawn against him.

2. Learned counsel for the respondent No.2 submits that he has contacted his lawyer, who has informed him that Court proceedings have been interrupted due to Corona Pandemic, therefore, he could not mark his appearance on the scheduled date and when he came to Indore on 13/03/2023, he came to know that matter has been proceeded ex parte against him vide order dated 15/09/2022. Due to the bona fide reason he could not appear before this Court. He is not aware of the procedure of Court, hence, he prays that ex parte proceeding drawn against him vide order dated 15/09/2022 be set aside.

3. Per contra, learned counsel for the petitioner opposes the application and prays for its rejection by submitting that after service of notice upon respondent No.2, counsel has filed his Vakalatnama on behalf of respondents No.2, 3 and 7 and sought time to file written

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/21/2023 3:40:36 PM

statement. On 16/05/2019, the respondent No.2 has filed his written statement. Post 04/07/2019, about 56 proceedings have been drawn by this Court but respondent No.2 choose not to appear before this Court. Although he is a formal party, on 14/03/2022, the Court has given permission to him to cross-examine the petitioner but he has not done so. The reasons assigned by the respondent No.2 do not appears to be bona fide. Hence, he prays that the application filed by the respondent No.2 be dismissed with exemplary cost.

4. From perusal of the record, it appears that respondent No.2 was remained present for more than 50 occasions during the trial of this Election Petition and since inception he is duly represented by his counsel, therefore, it cannot be said that respondent No.2 is not aware from the legal proceedings. He has not shown any proper reason for his absence. Respondent No.2 is a formal party and no relief has been claimed against him in the Election Petition. Hence, IA.No.1962/2023 is rejected. However, it is made clear that respondent No.2 shall be free to take part in the further proceedings of this Election Petition.

5. Both the parties are also heard on IA.No.1991/2023, which is an application under Section 151 of CPC seeking permission to cross- examine Subhash Kumar Sojatia (PW-1) with regard to issue No.9.

6. Learned counsel for the respondent No.1 submits that on 17/02/2023 the Court has allowed the application for amendment with regard to raising an objection against seeking relief for declaring the petitioner as an elected candidate. On 28/02/2023, this Court has also allowed the application for framing additional issue and accordingly, issue No.9 has been framed. The Court has also allowed an application for recalling PW-1 for re cross-examination. The respondent No.1 has

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/21/2023 3:40:36 PM

right to re cross-examine the petitioner in respect of the newly framed issue No.9 and without any delay he has filed this application. Hence, he prays that respondent No.1 be permitted to re cross-examine the Subhash Kumar Sojatia (PW-1) with regard to issue No.9.

7. In support of his contention, learned counsel for the respondent No.1 placed reliance upon the judgments delivered in the case of Prem Chand and Others Vs. Board of Revenue, Uttar Pradesh and Others reported in (2008) 10 SCC 533, Mohammad Ahmad and Others Vs. III Additional Civil Judge, Saharanpur and another reported in 2000 SCC OnLine All 486, Rachhpal Singh Vs. Sohan Singh reported in (2019) 13 SCC 667 and lastly on Nathpa Jhakri Power Corporation Vs. Rajindera Kumari and Others reported in 2001 SCC OnLine SC

8. Per contra, learned counsel for the petitioner opposing the application by submitting that additional issue framed by this Court is in the nature of recrimination and in absence of any notice to the High Court within a period of 14 days of Trial and further non-compliance of Section 97(2) of the Representation of the People Act, 1951 no evidence in respect of this issue can be led by the respondent in view of the specific prohibition by the Proviso to Section 97 of the aforesaid Act. He has placed reliance upon the judgment delivered by the apex Court in the case of Malaichami Vs. M. Andi Ambalam and Others reported in (1973) 2 SCC 170 and Anwari Basavaraj Patil and Others Vs. Siddaramaiah and Others reported in (1993) 1 SCC 636 and it has been submitted that application deserves to be dismissed with heavy cost.

9. Both the parties are heard at length.

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/21/2023 3:40:36 PM

10. Section 87 of the Representation of the People Act, 1951 provides as under:-

"87. Procedure before the High Court.-- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses 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.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition."

From perusal of the aforesaid provision as well as record, it is clear that this Court has framed an additional issue and also permitted the respondent No.1 to incorporate the necessary amendment. As per the order of this Court pleading has been accordingly amended, therefore, the concerned parties will be consequently required to file additional evidence as otherwise the pleadings will lose its efficacy. If parties are not allowed to produce additional evidence with regard to amendment of the pleading, it will be led to miscarriage of justice also. Amendment has been incorporated at later stage, therefore, there is no specific bar under Section 96 of the Representation of the People Act, 1951 for re cross-examination of the petitioner with regard to the amended pleadings.

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/21/2023 3:40:36 PM

11. Hence, IA.No.1991/2023 is allowed and in the interest of justice, respondent No.1 is permitted to re cross-examine the petitioner Subhash Kumar Sojatia (PW-1). Petitioner is also free to produce his evidence with regard to additional issue No.9.

12. In light of the aforesaid, petitioner Subhash Kumar Sojatia is directed to remain present before this Court on the next date of hearing for his re cross-examine by the respondent No.1 and other respondents in respect of additional issue No.9. List the matter on 28/03/2023. Matter will be taken up for hearing at 02:15 PM.

(ANIL VERMA) JUDGE Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/21/2023 3:40:36 PM