High Court · 2006

Mr. Mcnoj Paranjpe, Advocct^ for the petitioner. Mr. N.K. Agarwai, Dy. Adv. ^eneral for rsspondent No.l, 10 & 11 on advance copy. Mr. Prween Das, Advocate ftji respondent No.2 on caveat. Heard iearned counsel for thj parties, The motter is being disposed ^f at the odniission s+age itseif, as very short question is invoived in this pet Ition. p^tit ') By this writ petition, the titioner has challenged the validity of order-dated 4.8.2006 (Annsxure Pl^ psssed by the Specified Officer (Sub C>ivisional Officer, Ambikapur) in Ctxse No.l7/A/89/2004-05 «vhereby the election of t.he petitiohsr herein to| the post of Sar-panch, St-am Psnchayat Bhitthikala has been declared nuli void by ailowing the eiection petition fiied by r'espondent No.2 herein. Leorned counsel for the petil |oner submitted that the petitioner was not cfforded reasonable opportunl |ty to adduce her evidence, whereas, respondsnt No.2 herein was givsn sufficient opportunity to adduce her evidence, which is evident from the Nanki Bai herself was recorded on ^act that evidence of r'espondent No.2- ll4 t.7.2005, whereas, the evidence of her two wltnesses was recorded on 18.4.t g006, thereafter the matter wss fixed for evidence of the petitioner here^ jn on 23.5.2006 and on that date, since the counsel for th®petitioner her^ sin wos not present, as hs was out of stotion due to his iiiness, the evidencje je of the petitioner herein was closed. On the other hand, learned c< lunsel for respondent No.2 arqued that ti'xi. Pand'iuyat^ (Cl^ iuii Pati'iiuiiia, Cun •upl Prut.lJ&tii^^ji^i Rulo 12 of XI-HC-78 '3^ -^WW^, »t0tfi|6, RKII+I^ *ll+lMl sti+llth ^; 200 aniOTTg^ (l?t3g^T) 3ii^?T^rR-fi<<) (TSTT 3TI^fT 9b^iEch STaTWHfsg'sn^r 2-t «hi<iTci<l1-< t<i4MTfftofl'<Ri«i< ^SI^ItTSn^T Disquoiification for Membership) |Ru!es, 1995 (for short 'Ruies, 1995') em'isages that 'it shall be the ^iuty o-f the parties to produce fheir witnesses on the date fixed for evfflence, and they shall not be sniitled to an adjournmeni' for non-attendance\ \of their witnesses', in the present case, even the petitioner herein fa!!ed tc| examine herself on the date fixed for her evidence i.e. on 23.5.2006. Theifefore, the order of Specified Officer- is perfectand legal. Havin9 heard lear'ned couns^ i^i for the parties, I have perused the record. Perusal ofrecord showsthatl the evidence of respondent No.2 herein was recorded on 14.7.2005 and tthereafter the evidence of her witnesses was reeorded on 18.4.; >. Accordingly, respondent No.2 was

2406. given more than one opportunity to ladduce her evidence and in the case of petitioner herein oniy on the very date the evidence was ciosed and it has been mentioned in the order sh^et that both the parties were present, the petitioner herein has not adduc4d her evidence, therefore, her evidence is closed. The petitioner's csse is on 23.5.2006 her advocate wos not present, as he was out of station moreover, it has not been recorded in the order sheet that the petition| ^r herein was asksd by the Specified Officer that she can adduce her evit ^ence by engaging cnother counsel or it has not been recordsd that she is ndt ready to give her evidence. Therefore, it cannot be said that learned Speci^ fied Officer- gave sufficient opportunity to the petitioner herein to adduce h^i tr evidence. P.T.O. XP-HC-78 3^ "ill^lWM, (STfl'M'IS, [qdiuy s *TW^fT SR*fT"»l ^ 200 311^1 4aqi (li<:l'dcl^'sr) sn^rwfeTg; crarw^Tsbtii* TOITW dfer snsST •y As -fcv as the provisions of is true that r-ule provides that it si^ajj Hule ^rafCTifrT WRTt'ff fec^ rfSreZTC ^3Tf^T3IT^T 12 of the Rules, 1995 is concerned, it be the duty of the parties to producs their witnesses on the date fixeld for" evidence, and they shali not be entitled to an adjournment for non^ attendonce of their witnesses. but thot does not mean thateven in a case o1 reasonable cause the cdjournment shal! not be granted. In ordsr to inter'pr'et Rule| 12 of RuSss, 1995, it is nscessary +o examine whether the Specifiec) Officer is not entjtled to grant adjournments to the parties even the sufficient & reasonabie cause is there. In the matter of Raza ^uland 5ugar" Co. Ltd., Rompur Vs. The Municipal Board, Rampur" reportecf in AIR 196S SC 895 the Constitution Bench of Hon ble Apex Court he.'d t'hat; "the ifuestion whether' a ^articulw prowsion is mandatory or directory cannof be resotveS/by laying down any general rule and it woutd depend upoia the fact^ ofeach case and for that purpose the object of fhe stafute in /noAf fjtig ouf the provision is the defermining factof. The purpose for whi\ <5fh the provision has been made and its twture, fhe intention of the \ ^egistcrture in making the provision. fhe serious generat inconvenienc\ 's feii^one way 01 whether the provision is feii^one way t orinjustice to persons resulting fr'om •^one way or the other, the relations of ihe par+icular provision -to \thef firovisions dealing with the soirie subject and other cawderdfh ^iffns whi'ch may orise on the facts ofa fiarticulca- case including th^ language of the provision, have all to be taken into account in d ^rriving at the conclusion whether a particulat'provision is. wands^ory or directory". P.T.O. XI-HC-78 3:5T?!TFTRW, «T(1y'ie, Rti'ii'Hy *TTH(tl Sh*<l<sh ^ 200 3TI^T ira^? (yiI^d^iT) 3ii^r?iTR-fi+ tWT3t1^T*t<i+ ?RnWHf^(T3TI^T -^ <t>i<iFfi'in-i iiHciT ft tec^f <Riwi< ^sif^iTsn^T In tha matter of Sangranr! S| jngh V. Eiection Tribunal Kotah & Anr. reported in .4IR 1958 SC 425 the (fion b!e Apex Court he!d that; "Considering the provisions ^f the Code daaling with the triat of the suits, it was opined that; 'Now d code of procepure must be re9arded as such. It is procedure, sonfi justice and •further onfething designated to facilitate l's ends; not a Penal eniictnient for punishment and ^ incities; not a thing designed to trip people up. Too te|i fchnical construction of sections ieaves no roont for reasonable elasticity of inter-tsretation shoutd therefore be 9uarded 0901031 (provided ald'ays tha^ justice is done tp bot.h sides) Isst the very means esigned for the furtherance of justice be used to fri^ Istrcte it. There must be ever pi I'esent to the mind the fact that our iaws of procedur^ are grounded on a principle of natural Justics which ^squir'es that men shouid not be condemned unheard, Ithat decisions should not be reached behind theirl backs, that proceedings thot affect thei!- livesond property should not continue in their absence and tha) they shouid not be precluded from pgrticipating in Ifiem. Of course, there must bs exceptions and wher-e] they are ciearly defined they must be given effect |'o. But taken by and laroe, cnd subjcst ^e tiiat jsr'ovi.si;, oui1 iuw^ uf prut.tidui G SiiOU rtt- P.T.O. XI-HC-78 T5? •<<WICl<l, »Tfl^'16, Rldlti^<. %) *Trq<tT Sf>*ll<?b ^200 STI^Tyach ('i,c»I^GlS]ST) an^Twf^iR; (PITSn^Tsbfiti ?T(TTWStf?;cr 3TI^T -^ qiititci<fl-< ii*ii-iTffte^t<Ri«i< ^srf^iTsn^T be construed, where^ the lightofthat prin^ 'er that is reasonably possible, in ;ip!e." Again in thematter of Ste|te of Siyarat V. Ramprakash P. Puri reported in 1970 (2) SCR 875 the| Hon bie Apex Cour-t has held that; "Procedure has been descrfced to be a hand-maid and not a mistress of law, intendsd to| sub-serve and facilitate the cause of justice and not to go"/er1f or obstruct it. Like al! rules of procedure, this ru!e dem<i|ids a construction which would promote this cause." It is useful to quote the oft^ ^quoted passage of Lord Penzance in1879 (4) AC 504: " Procedure is but ths fflc^ |:hinery of the law after all channei and means whsreb^ )' iaw is administered and justice reached. It strongly depar^ |s from its office when in place of facilitating, it is permitted to obstruct and even extin9uish iegai ri9hts, and is thus mad l^ to govern which it ou9ht to sub- ssrve." It is oiso useful to reprodu< )e the possage ofjudgment in the csse of iaiwant Singh Bhogwansingh Vs. F firm Raj Singh Baldev Kishen reported in Ua 1969 Pufjob S. Haryana 197; " Promptitude snd dispatch |in the dispensation of justice is a desirsble thing but not ct ^he cost of Justics. All rules of procedure ore nothing but ^andniaids of justice. They cannot P.T.O. XI-HC-78 3:£T^TF)T?ra', 81x0*)'!®,(s|<rtiy^< *<IH(^1 Sh<4|ch WT 200 3TT^5T qgq? (^di^sl^liT) ?n^?r ?ir f^iw cTSJT 3ffT^T ^irNi ??<TTW CTf^tT 311^1 •u~ wiWt^ WRft'ff te^t ^TRTC ^;3rf^n'3i^r be construed in a rnanner, iwhich would hamper justice. As a general rutes, evidence shoujd |d never bs shut out. The fu!lsst opportunity should always (?e given to the parties to give evidence if the justice of th< case requires it. It is immoteria! if the originsl on'.issionto 91' \e evidence or to deposit process fee arises from negiigence o^ carelessness." In the mattsr of Topjjne Sh< in (2002) 6 SCC 33 the question ^es Ltd., V. Corpo-at'on Bank reported •i\~ consideration before the Hon b!e Ap£X -fo\ Court was that whether the State (Jonsumer' t5isputes Redrsssa! Commission could grant time to ths responden^ to fiie repiy beyond totcl period of 45 days in view of Section 123(2) of th| i^ Consumer Protection Act, 1986 and the Hon'bie Apex Court heid that: "..the intention to provide •ime frsme to fiie repty is realiy made to expedite the he^: |rin9 of such matters and avoid unnecessary adjourni*nent4 It w/as nsticed that no penai conssquences had been the prescribed time. The' p| pre^i.ribed if the repiy is not fiied in •ovision was held to be dir-ectory. It was obssrved that t!+ ti^e provision is more by wcy of procedure to achieve the ibject of speedy disposai of the case.' Ths Hon'bls Apsx Court i the matter of Saism <*.dvscate Ber Assoeiation, Tamii Nadu Vs. Unii i|»n of India reported in 2005 AIR SCW 3827 whiie interpreting the provi: iona of Order VIII Rule 1 of the CPC, P.T.O. XI-HC-78 3 T "ill^lcl'4, ffTnu'Ko, Rl'iwy *11HCTI SbKlch ^[ 200 sf^r <ra?R' (^ctf^ci^) 3n^?rgiTR-)i* traran^TaHrisfi BTcrrwHfitTsn^r _1 °bi<il7i<)1-f ><i'<r]Tfftec^t'<Ri<^i< ^3T1^IT3TI^T which prescribes maximurn 90 day^ period for filing the written statement by the defendant, he!d that; "We have to ascertain thel object which is required to be served by this provision and| its desiqn and context in which it is enacted. The use of wor4 'shali' i's ordinarily indicative of mondatory nature of The pr|ovision but having regard to the contsxt in which it is used or| having rsgard to the intention of the le9islation, the same cai^ be construed as directory. The rule in (juestion has to advan :e the cause ofjustice and not to defect it. The rules of pro| :edure are mode to advance the cause of justice and not to d) sfeat it. Constr-uction of the r-uie or procedure, which promote) justiceand prevents miscar'riage has to be prefer'red. The ru |es or procedure are hand-maid of justice and not its mistress.' In light of the above prin| !^iple of iaw that procsdurai !aws are enacted to facilitate the justice 4' Ind further its ends and too technical construction of the provisions that leaves no room for reasonable elasticity of interpretation should therefore !fe guarded 09ainst (provided aiways that justice is done to both sides) !< the very meons designed for the furtherance of justice be used to f^ ^ustr-ate it; procedure cre groundsd on a pr'incipte of natur'aijustice and furt^ er that the rules of procedurs are made to advance cause ofjustice and not [to defeat it and construction of ruie or procedure which prorootes justice| snd prevents miscarrio9e has to be preferred. P.T.O. XI-HC-78 TST^TORTO, WTn'H'IS, [sli-11'My tfTKmaioich ?TT 200 3Tt^?[^a<») (yl^q^tf) w^rwR-ii* cT8IT3)T^Tshyi<o reiTWBfBcf-an^T -s. 'tii^ifa'ifl-i 4ititiTfftet^<Rt'«i< ^;3Tl^T3TI^?r Rule 12 of the Rules, 199?, i, which deals with the production of witnesses by the parties, has beer^ enacted with the intention to expedite the hearing of election petitions aniji to woid unnecessary adjournments, as the election petition requires expeifi allowed to take ursnecessary adjourr^ment itious heQring and parties should not be •r^ments. The true construction of Rule 12 wiit be that in cases where suffici) int and reasonoble couse is there, the Speclfied Officer should give edj journment. Ru!e 12 does not prohibit adjournments to be gr'anted by S[ lecified Officer" where reasonable and sufficient cause exists for the cjdjour-nment. The Specified Officer is required to ensure that unnecessar^ adjournments to delay the proceedings of the eiection petition shouid not b[ 9ranted. Looking to the.fccts of th^ case, it is the duty of the Specified Offtcer to assess the situation and |f he found that the party on account of sufflcient & reasonable cause 'is io|t able to assist the Court for adducin9 no[ evidence, in that case, normaliy, the Specified Offjcer is required to odjourn the matter, whereas, in the presertt oniy on the first date i.e. 23.5.2006, tl'hen the petitioner' herein herseif |sss present in Court, but her advocste was not present, her evidence abruptly closed without 9ivin9 her opportunity to examine herself or she was not asked that if she wants sngoge another counsel for adducinit her evidence, the only thing which has been recorded in the order sheet |s that the par-ties are present and as evidsnce has not beenadduced by f'he petitioner herein, her evidence was closed, wherecs, respondent No.2 h^s been given more than one opportunit/ to adduce her evidence. P.T.O. \'' XI-HC-78 3^ '^WW-t^, W^\»' ,fc|fllti^< *11*1WI shHlch ^ 200 3TT^?T iraq? ('{cli^af^liT) 3D^T?iTR.lich (Wsn^Tsbiro ??<TTW HfN W^T _<5 «hi<if<i<fl-< iii<-]TfflW^<Ri+<i< ^Stf^TSD^T In the circumstances, I am < ijif the considered opinion that the order inspugned suffsrs from pervsrsity, 1'hs same is licble to bs set asids snd ths matter' deser'ves to be femcnded bc|ck. Accordingly, the petition of ^he petitioner is allowed, impugned order dated 4.8.2006 (Annexure P-12) i| i|s hereby set aside and the matter is remanded back to the Specified Of-\ :icer (Sub Divisionat Officer, Ambikapur) with a diraction to dacide the matttr afrssh after giving opportunity to the petitioner to adduce her evidence for thst purpose, parties are direeted to r'eraain present before the Spe^ (ified Offlcer on 4th October 2006. The petitioner hsreiii to kesp at! her ii\ (fitnesses present on that date and the SDecified Officer to examine all tt| ^e witnesses produced by the petitioner herein and decide the matter afr^ |sh in accordance wit lcmi efter hearing both the parties. In view of above or'der', AA.I ..(W.5P. No.3529/06 and I.A. No.8181/06 stand disposed of. Cer'tified copy os per rules. Sd/- L.C.Bhado< Judge P.T.O. \- ^^ ^-