Debashish Samantaray ......... ... vs Mohammed Moquim
2023 Latest Caselaw 13869 Ori

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                       ELPET No. 06 of 2019


               Debashish Samantaray                    .........                      Election Petitioner

                                                   -Versus-

               Mohammed Moquim                        .........                       Respondent


                      For Petitioner:                     -            Mr. Milan Kanungo
                                                                       (Senior Advocate)
                                                                       Mr. Gopal Agarwal

                      For Respondent:                     -            Mr. Bidyadhar Mishra
                                                                       (Senior Advocate)
                                                                       Mr. Tarani Kanta Patnaik
                                          -------------------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Order: 08.11.2023

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S.K. SAHOO, J. After conclusion of evidence from both the sides on

01.11.2023, the case was posted to 06.11.2023 for argument.

On that day, Mr. Milan Kanungo, learned Senior Advocate along

with Mr. Gopal Agarwal, Advocate appearing for the Election

Petitioner Debashish Samantaray contended that the learned

counsel for the Respondent should begin the argument and

address the Court generally on the whole case and then from the

side of the Election Petitioner reply is to be given generally on

the whole case in view of the provisions enumerated under sub-

rules (2) and (3) of Rule 2 of Order XVIII of the Code of Civil

Procedure. He placed reliance in the cases of Balakrishna Kar

and another -Vrs.- H.K. Mahatab reported in A.I.R. 1954

Orissa 191, P.T. Anklesaria -Vrs.- Union of India reported

in 1973 SCC Online Bom. 123, Turner Morrison & Co. Ltd.

-Vrs.- Hungerford Investment Trust Ltd. reported in

(1969) 1 Comp.L.J. 94(Cal.) and Rasiklal Manikchand

Dhaeiwal and another -Vrs.- M.S.S. Food Products

reported in (2012) 2 Supreme Court Cases 196.

Mr. Bidyadhar Mishra, learned Senior Advocate being

ably assisted by Mr. Tarani Kanta Biswal, Advocate appearing for

the Respondent Mohammed Moquim, on the other hand,

referring to Section 87 of the Representation of the People Act,

1951 so also sections 101, 102, 103 and 106 of the Evidence

Act, which deal with burden of proof as well as Order 18, Sub-

Rules (3), (3-A) and (3-D) of Rule 2 of the C.P.C., submitted that

in the factual scenario, in order to substantiate the case of the

Election Petitioner, burden of proof lies on the Election Petitioner

and therefore, the learned counsel for the Election Petitioner

should begin the argument first and then from the side of the

Respondent, reply shall be given on the whole case. He placed

reliance on the decisions of the Hon'ble Supreme Court in the

cases of Tek Chand -Vrs.- Dile Ram reported in (2001) 3

Supreme Court Cases 290 and M. Chandra -Vrs.-

M.Thangamuthu and another reported in (2010) 9

Supreme Court Cases 712.

The question that now crops up for consideration is

whether after closure of evidence from both the sides, in a

election proceeding which party shall first advance the argument

and address the Court generally on the whole case and which

party is then to reply generally on the whole case.

Rule 2 of Order XVIII of the Code of Civil Procedure is

very relevant for answering the question, which is quoted herein

below in extenso:-

"2. Statement and production of evidence.-(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(3-A) Any party may address oral arguments in a case, and shall before he concludes the oral arguments, if any, submit if the Court so permit concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.

(3-B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

(3-C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.

(3-D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit."

In this election petition, prayer has been made, inter

alia, to declare that the nomination of the Respondent

Mohammed Moquim has been improperly and illegally accepted,

the nomination paper of the Respondent has not been submitted

in the prescribed form 2B and false affidavit in Form 26 has been

filed along with the nomination paper and therefore, the election

of the Respondent is to be declared void.

After the issues were framed, the Election Petitioner

examined himself and produced his evidence in support of the

issues and after closure of the evidence from his side; the

Respondent not only examined himself but also produced his

evidence. The evidence from both the sides not only included

oral evidence but also documentary evidence and after recording

of the examination in-chief and cross-examination, the witnesses

were discharged. The evidence from the side of the Respondent

was closed on 01.11.2023 and the case was posted to

06.11.2023 for argument.

Chapter XVIII deals with hearing of suit and

examination of witnesses. In view of Order XVIII Rule 1 C.P.C.

which deals with right to begin, it is stated that the plaintiff has

the right to begin and if the other criterias as laid down in Rule 1

are satisfied, then the defendant will have the right to begin.

Those criterias are the defendant admitting the facts alleged by

the plaintiff and contending that either in point of law or on some

additional facts alleged by the defendant, the plaintiff is not

entitled to any part of the relief which he was seeking. In the

case in hand, rightly the Election Petitioner began the evidence.

Rule 2 of Order XVIII C.P.C. deals with statement

and production of evidence and it states that the party having

the right to begin shall state his case and produce his evidence in

support of the issues which he is bound to prove and

accordingly, the Election Petitioner having right to begin adduced

his evidence and closed the evidence from his side. As per sub-

rule (2) of Rule 2 of Order XVIII C.P.C., it is the requirement of

law that the other party (in this case, the Respondent) shall then

state his case and produce his evidence (if any) and accordingly,

the Respondent adduced his evidence and closed the evidence

from his side. Sub-rule (2) of Rule 2 of Order XVIII C.P.C. further

states that after producing his evidence, the other party i.e. the

Respondent may then address the Court generally on the whole

case.

Needless to say that section 87 of the Representation

of the People Act, 1951 (hereafter '1951 Act') states that subject

to the provisions of 1951 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 to the trial of suits. Therefore,

since there is absence of any specific provision in 1951 Act or

any Rules made thereunder as to which party is to begin the

argument after closure of evidence from both the sides, it would

be guided by the provisions under C.P.C. as per sub-section (1)

of section 87 of the 1951 Act.

At this juncture, let me first discuss the citations

placed by the learned counsel for the Election Petitioner. In the

case of Balakrishna Kar (supra) while adjudicating an

application under section 115 of C.P.C. in which an order passed

by the Subordinate Judge, Cuttack calling upon the defendants in

a suit for defamation to begin their case was under challenge, it

was held by the Division Bench of this Court that the right to

begin is not the same as the adducing evidence in support of a

party's case. There is a distinction between the two. It is open to

the plaintiff to say that although he has the right to begin, he

may rest content with relying upon the averments made in the

written statement and may say he does not propose to adduce

further evidence, but the plaintiff should make this statement,

before the defendant is called upon to adduce evidence.

Accordingly, it was held that the Court below was erroneous in

calling upon the defendant to open his case even before the

plaintiff went into the box or testified the truth of his story and

ultimately, it was held that there has been clear breach of the

provisions of rules (1) and (2) of Order XVIII of the C.P.C. as

well as the rules of evidence.

The factual scenario in the case of Balakrishna Kar

(supra) is completely different from the case in hand. Here in

this case, we have crossed the stage of evidence adduced by

both the sides and now it is the stage of advancing argument.

Therefore, the ratio laid down in the aforesaid case is no way

helpful to decide the question arose for consideration.

In the case of P.T. Anklesaria (supra), a single

Judge Bench of Bombay High Court was called upon to decide

the question as to after closure of evidence from both the sides,

which learned counsel should address the Court, the learned

Judge held as follows :-

2. As the plaintiffs to Suit No. 432 of 1967 (the clearance contractors) had exercised the option under O. XVIII, r. 3 of the Code of Civil Procedure of reserving their evidence on the issues on which burden of proof was on the Government, the question as to the order in which the learned counsel should address the Court would have to be decided in reference to the provisions of the said rule. Before I go to that rule, however, I may refer to O. XVIII, r. 2 of the said Code which lays down the general rule that, when evidence on both sides has concluded, the party, other than the one which had the right to begin, must "address the court generally on the whole case." It further provides that the party beginning may then "reply generally on the whole case." A careful reading of O. XVIII, r. 2 shows two things: first, that it makes a distinction between an address and a reply to

that address; and secondly, that it proceeds on the principle that the party which has to unfold its evidence first must have the last word in addressing the Court. Curiously enough, however, O. XVIII, r. 3 with which the Court is concerned in the present case, does not use the term "address" at all, but deals only with the "reply" which is to be given to the evidence produced by the defendant on the issues in regard to which the onus is on the defendant, as well as the general "reply" to the whole case.

3. One thing which O. XVIII, r. 3 makes clear is that it contemplates separate replies by each of the parties. In my opinion, however, each of those replies must, naturally and necessarily, be preceded by an address, as the plain dictionary meaning of the term "reply" as well as the sense in which the Legislature has used the term "reply" in O. XVIII, r. 2 which is in pari materia, clearly show. Reading O. XVIII, r. 3 in that manner, the procedure which it, in my opinion, lays down by clear implication is that the plaintiff must first address specially on the evidence led on the issues in regard to which the onus is on the defendant; the defendant must then reply specially to the plaintiff's address on that evidence; that must be followed by a general

address by the defendant on the whole case; and ended up by a reply by the plaintiff generally on the whole case. The position, therefore, is that, in between the special address by the plaintiff on the evidence on issues in regard to which the onus is on the defendant and the general address by the plaintiff on the whole case, will be sandwiched addresses, which may be consolidated into one address by the defendant, both on the evidence on the issues in regard to which the onus is on the defendant, as well as on the whole case. This order would, in my opinion, also be in conformity with the principle embodied in O. XVIII, r. 2 to which I have referred viz., that since on the issues in regard to which the onus is on the defendant, it is the defendant who first places his cards on the table, he should have the last word with the Court on that evidence; and since the general evidence in the case is first led by the plaintiff, he should have the last word in addressing the Court generally on the case. In my opinion, this is the only reasonable construction that can be placed on O. XVIII, r. 3 of the Code of Civil Procedure which makes no express provision either for an "address" by the plaintiff specially on the evidence on the issues in regard to which the onus lay on the defendant, or for a general "address" by

the defendant, on the whole case. It may, in passing, be mentioned that the Allahabad High Court, has amended the provisions of O. XVIII, r. 3 so as to make the position in regard to the order in which the parties are to address the Court quite clear, though what it provides is quite different from my interpretation of O. XVIII, r. 3 as applicable to this Court. Whichever be the course preferred, it is desirable that an appropriate amendment clarifying the position should be made in O. XVIII, r. 3 of the Code of Civil Procedure as applicable to this Court which contains these apparent lacunae. It should also be mentioned that O. XXXV, r. 7 of the Rules of the Supreme Court in England contains provisions of an entirely different nature in regard to the order of addresses and is, therefore, of no assistance for the purpose of construing O. XVIII, r. 3 of the Code of Civil Procedure.

There is one thing which may, however, be noted, and that is, that sub-r. (1) of O. XXXV, r. 7 of the Rules of the Supreme Court in England gives the widest possible discretion to the Court to give directions in regard to the "order of speeches at the trial."

While observing as above, the learned Judge directed

the order of addresses in which it was held that the counsel for

the 6th defendant will address the Court generally.

In the case of Turner Morrison and Co. Ltd.

(supra) it is held as follows:

"8. At the end of the evidence a point was raised about the right to begin. Mr. Sankardas Banerjee for the plaintiff submitted that as the defendant had not called any witness and had not given oral evidence but has exhibited documentary evidence the defendant should begin. He relied on a practice note printed in the case of Weller v. O'Brien (1962) 1 W.L.R. 855 : (1962) 3 All E.R. 65. The practice note as reported is hardly on the point. That was a case which apparently was only concerned with the amount of damages because there the defendant had admitted liability. In cross-

examination of the plaintiff's witnesses in that case, certain documents of account of the business, not adduced in evidence on behalf of the plaintiff were put to them by defendant's Counsel and became exhibits in that case. The defendant in that case called no witnesses and the question arose whether by leading documentary evidence he had lost the right to the last speech. The report as it appears shows that there is hardly any authority on

this procedural point. There is a single line judgment of Barry, J., saying that his Lordship rules that the defendant had forfeited the right to the last speech on the ground that he had led documentary evidence even though no oral evidence had been adduced. The relevant provision is contained in our Order 18, rule 2 of our Civil Procedure Code. It provides that the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. Finally the party beginning may then reply generally on the whole case. The expression "his evidence" in Order 18, rule 2 does not state whether it is oral or documentary and if evidence means, as it normally should, both oral and documentary evidence, the party producing documentary evidence even though by way of cross-examination and making an exhibit on his behalf may be said to be producing his evidence within the meaning of Order 18, rule

2. Mr. Mukherjee for the defendant submitted that on the facts also this case was different from the practice note to on Waller v. O'Brien (1962) 1 W.L.R. 855 : (1962) 3 All E.R. 65, He points out that in the affidavit in opposition

of Hormasji it would appear that he has admitted all these very documents which were annexed to the defendant's petition and therefore there was really even no special documentary evidence adduced at the trial through the plaintiff's witnesses. It will be, however, not necessary to pursue this point any further. Apart from the special fact I would say that the expression "his evidence"

in section 136 of the Indian Evidence Act would include any evidence given either through witnesses and oral evidence called on behalf of the party giving it or through even cross-examination of the other party's witnesses and exhibiting them on behalf of the party who puts such case in cross-

examination and gets such document proved through cross-examination of the other party's witnesses. On that basis Mr. S. Mukherjee must therefore have to argue first for the defendant. I therefore hold on this point in favour of Mr. Sankardas Banerjee for the plaintiff and order that Mr. S. Mukherjee for the defendant would begin his arguments and address the Court generally on the whole case under Order 18, rule 2(ii)."

In the case of Rasiklal Manikchand Dhariwal

(supra), it is held that the Code of Civil Procedure is

comprehensive and exhaustive in the matters provided therein.

The parties must abide by the procedure prescribed in the Code

and if they failed to do so, they have to suffer the consequences.

As a matter of fact, the procedure provided in the Code for trial

of the suits is extremely rational, reasonable and elaborate. Fair

procedure is its hallmark. The Courts of Civil judicature also had

to adhere to the procedure prescribed in the Code and where the

Code is silent about something, the Court acts according to

justice, equity and good conscience. The discretion conferred

upon the Court by the Code has to be exercised in conformity

with the settled judicial principles and not in a whimsical or

arbitrary or capricious manner. Further while filling the vacuum

with exercise of judicial discretion, the Court ought to be

judicious and cognizant of the inherent principles of the Code

and must avoid laying down any norm which would defeat the

very essence of the statute. If the trial Court commits illegality

and irregularity in exercise of its judicial discretion, that

occasions in failure of justice or results in injustice, such order is

always amenable to correction by a higher Court in appeal or

revision.

On a conjoint reading sub-rules (1) & (2) of Rule 2 of

Order XVIII of C.P.C., it indicates that after the party having

right to begin states his case and produces his evidence in

support of the issues which he is bound to prove, the other party

has not only to state his case, but also produce his evidence and

then the address has to be made generally on the whole case by

the other party. Meaning of 'then' as per Cambridge Dictionary is

'next', 'after that', 'at that time'. Sub-rule (3) of Rule 2 of Order

XVIII C.P.C. states that after the address is made by the other

side generally on the whole case, the party beginning may then

reply generally on the whole case.

Though Mr. Mishra, learned Senior Advocate

appearing for the Respondent placed sections 101, 102, 103 and

106 of the Evidence Act and contended that since burden of

proof lies on the Election Petitioner to substantiate his case and

since the Election Petitioner has already adduced oral as well as

documentary evidence to substantiate his case, the learned

counsel for the Election Petitioner should begin the argument

and justify as to how the case of the Election Petitioner is proved

on the basis of such oral as well as documentary evidence to

allow the prayer made in the election petition and then he can

reply from the side of the Respondent as to how the Election

Petitioner has failed in his attempt in to proving his case and he

can also substantiate the averments taken in the written

statement on the basis of the oral as well as documentary

evidence adduced from the side of the Respondent and from the

cross-examination of the witnesses examined by the Election

Petitioner and to dismiss the election petition.

At this stage, it would be profitable to discuss the

two citations placed by the learned counsel for the Respondent.

In the case of Tek Chand (supra), where the election of the

appellant from 61 Nachan (SC) Assembly Constituent was

declared void, the Hon'ble Supreme Court while adjudicating the

appeal filed by the appellant under section 116-A of 1951 Act,

allowed the appeal and observed that in a democratic set up, an

election of a returned candidate should not be easily vulnerable

to vague allegations or to averments made in an election petition

not substantiated or supported by positive, cogent and reliable

evidence. The verdict given by the majority of voters in a

constituency in favour of an elected candidate to represent a

constituency in a State Legislative Assembly or Parliament

cannot be lightly annulled or negatived in the absence of specific,

acceptable and convincing evidence in support of the grounds

raised in an election petition.

In view of the decisions cited by the learned counsel

for the Respondent in the case of Tek Chand (supra), no doubt

the Election Petitioner has to substantiate his case for declaring

the election of the Respondent to be void and he has also to

satisfy this Court as to how the evidence adduced on his behalf is

specific, cogent, reliable, convincing and positive so as to declare

the election of the Respondent to be void and the burden of

proof definitely lies on the Election Petitioner.

In the case of M. Chandra (supra), where the

election petition filed by the respondent no.1 challenging the

election to Tamil Nadu Legislative Assembly of Rajapalayam

constituency which was reserved for the members of the

Scheduled Castes was allowed, the appellant M. Chandra

challenged the judgment in the Hon'ble Supreme Court and the

Hon'ble Court held that the election petition must clearly and

unambiguously set out all the material facts, which the petitioner

is to rely upon during the trial, and it must reveal a clear and

complete picture of the circumstances and should disclose a

definite cause of action. One cannot file an election petition

based on frivolous grounds. The facts presented must be clear,

concise and unambiguous. For an election result to be annulled,

there must be positive evidence to prove illegality of the election.

The natural corollary is that the person who files an election

petition, must have a clear and definite case, to prove that the

election was illegal. Therefore, the burden of proof shall lie on

the petitioner filing the election petition.

The question is whether by beginning the argument,

the Election Petitioner can only discharge such burden of proof

and if he gives reply generally on the whole case after the

address is made by the counsel for the Respondent, he would be

precluded or deprived in discharging his burden of proof or in

any way he would be prejudiced?

The answer to this question would be 'no'.

The statute is very clear that after the other party

states his case and produces his evidence (if any), he has to

address the Court generally on the whole case. Though the word

'may' has been used in sub-rule (2) of Rule 2 of Order XVIII of

C.P.C., but whether a particular provision is mandatory or

directory depends upon the intention of the legislature and not

only upon the language in which it is used. The meaning and

intention of the legislature must be treated as decisive and they

are to be ascertained not only from the phraseology used but

also by considering the nature, design and consequences which

would flow from construing it one way or the other. While

highlighting the importance to interpret the language of the

statutes in the context and backdrop of the objective with which

the statute has been legislated, His Lordship Hon'ble Mr. Justice

O. Chinnappa Reddy in the case of M/s Girdhari Lal and Sons

-Vrs.- Balbir Nath Mathur and others reported in (1986) 2

Supreme Court Cases 237 has held as follows:

"9. So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language.

To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary."

In certain circumstances, the expression 'may' can be

construed as 'shall' or vice versa. However, it cannot be ignored

that ordinarily 'may' should be read as 'may' which is permissive

and not obligatory. For the purpose of giving effect to the clear

intention of the legislature, 'may' can be read as 'shall' or 'must'.

Whether the word 'may' can be construed to be 'must' or 'shall'

has to be determined by the Court depending upon whether the

power was coupled with a duty to exercise the same or was it

conferment of power simplicitor. Whether or not the word 'may'

should be construed as mandatory and equivalent to the word

'shall' would depend upon the object and the purpose of the

enactment under which the said power is conferred as also

related provisions made in the enactment. The word 'may' has

been often read as 'shall' or 'must' when there is something in

the nature of the thing to be done which must compel such a

reading. Law is well settled that when the language is plain and

unambiguous and admits to only one meaning, no question of

construction of the statute arises, for the act speaks for itself. In

such a case, the external aids for interpretation should be

avoided. When a detailed procedure has been laid down in the

C.P.C. in a comprehensive and exhaustive manner for the trial of

the suits and there is no ambiguity in it and when the statute

clearly states that after the other side (in the present case, the

Respondent) states his case and produces his evidence, he may

then address the Court generally on the whole case and

thereafter, the party beginning (in the present case, the Election

Petitioner) may reply generally on the whole case, if this Court

directs the Election Petitioner to begin the argument first and

then ask the Respondent to give the reply, the same would be

against the letter and spirit of the provisions under sub-rules (2)

and (3) of Rule 2 of Order XVIII of C.P.C.

Procedural laws regulating proceedings in Court are

to be construed as to render justice wherever reasonably

possible and to avoid injustice from a mistake of Court.

Procedural laws, like the Code of Civil Procedure, are intended to

control and regulate the procedure of judicial proceedings to

achieve the objects of justice and expeditious disposal of cases.

When a statute prescribed to do a particular thing in a particular

manner, the same shall not be done in any other manner than

prescribed under the law.

The purpose behind beginning the argument from the

side of the Respondent is to satisfy this Court as to how the

Election Petitioner has failed in its attempt in substantiating

through oral as well as documentary evidence that the

nomination of the Respondent has been improperly and illegally

accepted and that the Respondent has not submitted his

nomination papers in the prescribed Form 2B and that he has

filed false affidavit in Form 26 along with the nomination papers

for which no relief can be granted to the Election Petitioner. After

the argument from the side of the Respondent is closed, since

the burden of proof lies on the Election Petitioner to substantiate

his pleadings, he has to reply and satisfy this Court through oral

as well as documentary evidence adduced during the proceeding

that the nomination of the Respondent has been improperly and

illegally accepted and that the Respondent has not submitted his

nomination paper in the prescribed Form 2B and has filed false

affidavit in Form 26 along with the nomination paper and

thereby, violated the election Rules and Acts for which the

election of the Respondent is to be declared void.

In view of the foregoing discussions, I am of the

humble view that it is the learned counsel for the Respondent

who is to address the Court first generally on the whole case and

then the Election Petitioner will give his reply generally on the

whole case. Needless to say that after the reply is given by the

Election Petitioner, if the learned counsel for the Respondent

feels it necessary to address this Court further, he can do so with

the permission of the Court.

Accordingly, the date is fixed to 13th November 2023

for argument and the learned counsel for the Respondent shall

begin the argument. The matter will be taken up at 2.00 p.m.

..............................

S. K. Sahoo, J.

Orissa High Court, Cuttack The 8th November 2023/PKSahoo

Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 08-Nov-2023 15:23:08