Debashish Samantaray .... ... vs Mohammed Moquim
2023 Latest Caselaw 3626 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                           ELPET No.6 of 2019

              Debashish Samantaray             ....      Election
                                                       Petitioner

                                 Mr.Gopal Agarwal,
                                 Advocate

                            -versus-
              Mohammed Moquim        ....              Respondent

                                 Mr. Bidyadhar Mishra,
                                 Senior Advocate
                                 CORAM:
                             JUSTICE S.K. SAHOO
                                   ORDER

Order No. 18.04.2023

I.A. No. 11 of 2023

108. This matter is taken up through Hybrid Arrangement (Video Conferencing/Physical Mode).

This application has been filed by the Election Petitioner under Order XVI of the Code of Civil Procedure read with Chapter XXXIII of the Rules to regulate the proceedings under the Representation of the People Act, 1951 and Rule 27(a) of Chapter VI of the Orissa High Court Rules with a prayer for grant of leave to the Election Petitioner to adduce evidence of Mr. Dipankar Acharya as P.W.2 on behalf of the petitioner in the ends of justice and equity.

Copy of the interim application has been served on the learned counsel for the respondent.

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Let the registry register the interim application. It is stated in the interim application that the Election Petitioner has filed a list of witnesses on 24.06.2022 and in the said list of witnesses, the name of Mr. Dipankar Acharya could not be mentioned due to oversight. However, it has been mentioned in the list that any other witness found to be necessary at the time of hearing will be examined on behalf of the Election Petitioner. According to Mr. Agarwal, learned counsel appearing for the Election Petitioner, Mr. Dipankar Acharya is a material witness, who has downloaded the Exts.1 to 4 and Exts.32 to 35 and has given certificates under section 65-B of the Indian Evidence Act and his evidence is very much necessary for the just decision of the case and unless leave is granted to adduce evidence of Mr. Dipankar Acharya, the Election Petitioner will be seriously prejudiced. Learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of Mange Ram -Vrs.- Brij Mohan and others, reported in AIR 1983 Supreme Court 925.

Mr. Bidyadhar Mishra, learned Senior Advocate papering for the respondent sought for one day time to file objection to the interim application. However, he submitted that the main ground of his objection is that the name of the witness Mr. Dipankar Acharya does not find place in the list of witnesses provided by // 3 //

the Election Petitioner on 29.06.2022 and he is not a material witness and that the respondent has a right to know the names of all the witnesses before hand. He placed reliance on the decisions of this Court in the cases of M/s. Bennett Coleman & Co. Ltd. and others -Vrs.- Janaki Ballav Patnaik reported in 1988 (I) Orissa Law Reviews 398 and Adaramani Dei and another -Vrs.- Ichhamoni Bewa and others, reported in 1979 (I) ILR Cut. 165.

In the case of Mange Ram (supra), the question of law that arose for consideration has been enumerated in paragraph 7 of the judgment, which reads as under:

"7. The neat question of law is : where a party to a proceeding does not wish to have the assistance of the Court for the purpose of procuring the attendance of a witness or witnesses, could he be denied E the privilege of examining witnesses kept present by him on the date fixed for recording his evidence, on the sole ground that the names of the witnesses and the gist of evidence have not been set out in the list which may or ought to have been filed in compliance with Order XVI Rule 1 of the CPC?

While answering the above question, the Hon'ble Supreme Court has held as follows :-

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"11. The analysis of the relevant provisions would clearly bring out the underlying scheme under Order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by Sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under Sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce // 5 //

documents through the witnesses who are called to produce documents under Rule 1A. The only jurisdiction the Court has to decline to examine the witness is the one set out in proviso to Section 87(1) of '1951 Act', the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the Court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the Court has no jurisdiction to refuse to examine the witness who is present in the Court on the short ground that the name of the witness was not mentioned in the list filed under Sub-rule (1) of Rule 1 of Order XVI. This scheme clearly emerges from the various provisions herein discussed."

In the case of M/s. Bennett Coleman & Co. Ltd. and others (supra), this Court in paragraph 7 has held as follows :-

"7. In the aforesaid background of the principles laid down by this Court, as well as the Supreme Court, there is no scope nor any law under which a party to a suit can be // 6 //

exempted from filing the list of his witnesses. It is to be remembered that parties to a suit high or low are placed at par without any distinction in order to enable them to place their cases properly before the Court. They should not only disclose the names of witnesses, but also be entitled to know the names of witnesses of the adversary. If this principle is not adhered to, there cannot be a fair trial."

In the case of Adaramani Dei and another (supra), this Court in paragraph 2 has observed as follows :-

"............As has been indicated above, the Code provides that after settlement of issues in a suit each party not later than fifteen days from the date when issues are settled has to submit a list of witnesses to be examined by it. This provision is meant to give notice to all the parties regarding the witnesses to be examined by their adversaries. ......... "

Sub-Rule (3) of Rule 1 of Order XVI of C.P.C empowers the Court to allow any witness to be summoned and examined by the parties, whose names do not appear in the list if any sufficient cause is shown. Rule 1-A of Order XVI of the C.P.C. provides that any party to the suit may bring any witness // 7 //

without applying any summons under Rule 1 to give evidence. Therefore, a mechanism or methodology has been provided to lead oral evidence and the said provisions do not shut out a party to examine a witness if the name of the witness is not filed when it was required to do so. Witness can be called and examined at a subsequent stage and leave of the Court has to be taken which can only be granted on sufficient cause being shown. Substantial justice must be made between the parties and this is a laudable feature of our judicial system. The approach of the Court in such matters should not be to defeat the ends of justice nor cause undue delay in the litigation between the parties.

After hearing the learned counsel for both the parties and going through the citations placed and averments taken in the interim application so also the evidence affidavit filed by Mr. Dipankar Acharya under Order 18 Rule 4(1) of C.P.C., I am of the view that the evidence which the Election Petitioner is proposing to give evidence through Mr. Dipankar Acharya, cannot be said to be frivolous or vexatious or his evidence would lead to delay the proceeding. There is no dearth of power with the Court to grant leave to a person to be examined as a witness even though his name does not find place in the list of witnesses. The evidence affidavit also indicates that he is a material witness for // 8 //

the Election Petitioner.

Therefore, in the interest of justice, I am inclined to accept the prayer made in the interim application and grant leave to the Election Petitioner to adduce evidence of Mr. Dipankar Acharya as P.W.2 on his behalf.

The I.A. is allowed.

( S.K. Sahoo) Judge

ELPET No.6 of 2019

109. The evidence affidavit is filed by Mr. Dipankar Acharya in Court today. Copy of the same has been furnished to Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the respondent.

Mr. Dipankar Acharya is examined in-chief as P.W.2. Ext.32/1 to 32/6, Ext.33/1 to 33/6, Ext.34/1 to 34/6 and Ext.35/1 to 35/6 are proved through him. He is cross-examined by the learned counsel for the Respondent in part and due to paucity of time, it is deferred.

On consensus of learned counsel for both the parties, further cross-examination of P.W.2 shall commence on 24.04.2023 at 2.00 p.m.

( S.K. Sahoo) Judge // 9 //

I.A. No. 10 of 2023

110. This application has been filed by the Election Petitioner under Chapter XXXIII of the Rules to regulate the proceedings under R.P. Act and Rule 27(a) of Chapter VI of the Orissa High Court Rules with a prayer for issuance of summon to the then Returning Officer of 90-Barabati Cuttack Assembly Constituency to give his evidence.

Copy of the interim application has been served on the learned counsel for the respondent, who has no objection to the prayer made.

Let the registry register the interim application. Considering the submissions made by the learned counsel for the respective parties and on perusing the grounds stated in the interim application, the prayer for summoning the then Returning Officer of 90-Barabati Cuttack Assembly Constituency is allowed.

Let Mr. Sukanta Kumar Pradhan, O.A.S.(S), the then Returning Officer of 90-Barabati Cuttack Assembly Constituency who is at present Private Secretary to the Minister, Water Resources, Commerce and Transport Department, Government of Odisha be summoned to give his evidence in the case on 26th April 2023 at 2.00 p.m. The summons shall be issued through Special // 10 //

Messenger, the cost of which shall be assessed and deposited by the Election Petitioner by tomorrow (19.04.2023).

( S.K. Sahoo) Judge PKSahoo