TaxTMI 
TaxTMI 
2000 (1) TMI 1022
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....ration that the respondent no.1 was duly elected was also sought for. On trial the High Court has allowed the election petition and set aside the election of the appellant declaring the same to be void. No other direction has been made. The appellant and two other candidates who had contested the election were only arrayed as the respondents in the election petition filed before the High Court. It is not necessary to set out the pleadings, evidence and other details of the case in view of our having formed an opinion that the judgment under appeal suffers from a serious lacuna going to the root of the matter and therefore deserves to be set aside followed by a remand to the High Court with a direction to comply with the provisions of Section 99 of the RPA and thereafter decide the election petition afresh. The facts insofar as necessary to demonstrate the need for remand are stated in brief hereinafter. The principal ground on which the election of the appellant was sought to be set aside was that the result of the election, insofar as it concerns the returned candidate was materially affected by corrupt practices committed in the interests of the returned candidate by the agen....
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....red as elected. For all the aforesaid reasons, in my view, it is proved that corrupt practices had been committed under Sections 123(2), 123(4) and 123(7) of the Representation of the People Act, 1951 by the returned candidate and/or his agents and the election of 216 Sabang Legislative Assembly constituency declaring the respondent no.1 should be declared void. (Sic.) Considering all aspects of the matter I am of the view that corrupt practice under Sections 123(2), 123(4) and 123(7) of the Representation of the People Act, 1951 by the respondent no.1 and/or his agents has been proved in this case. Accordingly it is declared that the election of the respondent no.1 being the returned candidate from 216-Sabang Legislative Assembly Constituency is void. In addition to the findings arrived at (extracted and reproduced as hereinabove from the operative part of the judgment of the High Court), a few other findings from the body of the judgment, not all but only a few by way of illustration, are extracted and reproduced, so as to demonstrate how, in the light of its own findings, the High Court has failed in discharging its statutory obligation cast by Section 99 of the the RPA resu....
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....have sought for being impleaded as party-respondents or as intervenors in the appeal so as to lay challenge to the findings recorded and adverse remarks and observations made in the judgment under appeal which if not expunged may adversely affect service careers of the applicants. Their grievance is that they were not joined as parties to the election petition, they had no opportunity of hearing as they were never put on notice by the High Court and they have been condemned unheard. Section 98 of the RPA provides for an order at the conclusion of the trial of an election petition being made by the High Court whereby (a) the election petition may be dismissed, (b) the election of all or any of the returned candidates may be declared to be void, (c) in addition to the preceding relief, the election petitioner or any other candidate may be declared to have been duly elected. Section 99 provides as under :- 99. Other orders to be made by the High Court. - (1) At the time of making an order under section 98 [the High Court] shall also make an order - [(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording- (i) a f....
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.... Nitin Bhaurao Patil & Anr., (1996) 1 SCC 169, this court laid down the procedure which should be followed by the High Courts while disposing of such an election petition pointing out the fatal effect which non-compliance would have on the judgment of the High Court declaring void an election of the returned candidate. It was held:- Section 98 contemplates the making of an order thereunder in the decision of the High Court rendered at the conclusion of the trial of an election petition. . . . . . . . . . .There is nothing in Section 98 to permit the High Court to decide the election petition piecemeal and to declare the election of any returned candidate to be void at an intermediate stage of the trial when any part of the trial remains to be concluded. (Para 54) Sub-section (1) of Section 99 begins with the words At the time of making an order under Section 98 the High Court shall also make an order of the kind mentioned in clauses (a) and (b) therein. . . . . . . . There can be no doubt that the order which can be made under sub-section (1) of Section 99 has, therefore, to be made only at the conclusion of the trial of an election petition in the decision of the High Court made b....
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....rily in such a situation after setting aside the impugned judgment the matter is to be remitted to the High Court for deciding the election petition afresh after complying with the requirements of Section 99 of the Act by giving notice to the makers of the speeches and holding the requisite enquiry. The same view has been reiterated in Moreshwar Save Vs. Dwarkadas Yashwantrao Pathrikar, (1996) 1 SCC 394, wherein this court has pointed out an alternative to be followed by the Supreme Court avoiding the necessity to remand by deferring the decision in appeal and in the meantime issuing notice under Section 99 to those persons and after the requisite enquiry by the High Court, its finding in respect of those persons being called for, deciding the case against the candidate and the noticees at one time while deciding the appeal in the Supreme Court and then opined that in the case such second course did not appear to be appropriate one. All the decisions of this Court referred to hereinbefore are 3- Judges Bench decisions. A 2-Judges Bench has also taken the same view in Dr. Vimal (Mrs.) Vs. Bhaguji & Ors. (1996) 9 SCC 351. We too are of the opinion that the fatal defect as notic....
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....s as alleged in these sub-paragraphs also an omnibus issue no.3, has been framed. An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and....
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....defendant to the allegations of the petitioner on points of substance. The contradiction with which the trial and the judgment suffer is writ large. If a material proposition of fact or law alleged in the petition was not denied or was not specifically denied in the written statement within the meaning of Rule 5 of Order 8 of C.P.C. and such tenor of the written statement had persuaded the learned designated Election Judge in forming an opinion (belatedly while writing the judgment) that there was an admission by necessary implication for want of denial or specific denial then there was no need of framing an issue and there was no need for recording of evidence on those issues. Valuable time of the court would have been saved from being wasted in recording evidence on such averments in pleadings as were not in issue for want of traverse, if it was so! However, in the facts of the present case, we are of the opinion that the defective framing of the issues though material, has not vitiated the trial inasmuch as we are satisfied that the parties have gone to the trial with full knowledge of the allegations and counter allegations made in the pleadings. None of the parties has complai....
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....ion would have been effectively controlled, the recording of evidence could have been concluded in less than half of the time than what has been consumed and the bulk of the evidence could have been reduced to one-third or one-fourth of what it is. The reason behind giving such a long rope in examining and cross examining the witnesses, surprisingly enough what we were told is that in the trial of an election petition, the atmosphere is surcharged, conducting counsel get over-zealous and it is not considered advisable by the Court to interrupt the conducting of examination and cross- examination of the witnesses by the counsel. We are not amused at all. Curtailing delays is essential to expeditious disposal of the cases. Speedy disposal is the cry of the day. Courts cannot act as silent spectators when evidence is being recorded. Judges must have full control over the file and effectively conduct proceedings keeping in view that no litigant has any such right as to waste the precious time of the court. In almost all the courts in the country holding trials in civil and criminal cases, the oral examination of the witnesses though conducted in question-answer form by the counsel, i....
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.... It is not necessary to ask each witness whether he is appearing on sub-poena and to have the sub-poena produced for the perusal of the Court. Whether a witness is on sub-poena or not is a matter of record known to the parties, the court and the witness. If a doubt or dispute may arise reference can be had to the record. Such questions, asked in routine, add only to the length of the deposition and are avoidable. An election petition is not a dispute between the petitioner and respondent merely; the fate of the constituency is on trial. A Judge presiding over the trial of an election petition, and any trial for the matter of that, needs to effectively control examination, cross- examination and re-examination of the witnesses so as to exclude such questions being put to the witnesses as the law does not permit and to relieve the witnesses from the need of answering such questions which they are not bound to answer. Power to disallow questions should be effectively exercised by reference to Sections 146, 148, 150, 151 and 152 of the Evidence Act by excluding improper and impermissble questions. The examination of the witnesses should not be protracted and the witness should not fe....