Judgment · High Court

This revision petition is directed against the order dated 20.11.2010, passed by the learned District Judge, Dhubri in P.E.P. No.3/2008, whereby the petition fi led by the plaintiff/petitioner, under Order 18 Rule 17 of the Code of Civil Pro cedure for re-examination of pw-4, the official witness was allowed. Heard Mr. D Mazumdar, learned counsel for the petitioner and as well as Mr. AB S iddique, learned counsel for the respondent. On an application filed by the plaintiff/respondent for re-examination of the wi tness, p.w.4 in the above noted Panchayat Election Petition, the learned trial c ourt after being satisfied allowed the prayer, reflecting therein that some typi ng mistake were found to have been committed at the time of recording evidence o f p.w.-4. The learned trial court in order to ascertain the above facts, by the impugned order allowed re-examination of the witness, P.w.4. By filing this revision petition, the defendant/petitioner has expressed his app rehension that if the witness is allowed to be re-examined, the counting of the ballot papers will be carried out thoroughly by the witness at the time of his r e-examination, and if recounting of votes are carried out before the conclusion of the trial, it would be in violation of the provision of the Assam Panchayat ( Constitution) Rules, 1995 and the Representation of the Peoples Act, 1951.

Lear ned counsel for the petitioner has pointed out that the plaintiff/ respondent at the time of filing of the petition for re-examination of pw-4 has indicated in paragraphs 10 and 11 of his petition about the discrepancies in recording of the evidence by pw-4. Learned counsel submitted that on the guise of re-examination of P.w. 4, the witness cannot be asked to authenticate the statement of facts m ade by the plaintiff/respondents in the plaint. Obviously, it goes without saying that an official witness can not be forced to prove un-official documents and unauthentic facts and figures. An witness is not expected to vouchsafe facts which is not within his knowledge. Considering the entire facts and circumstances discussed above and upon hearing the learned counsel for the petitioner as well as the respondent, since the tria l court itself has indicated to have found some mistakes in typing of the eviden ce on record, warranting re-examination of pw-4, to ascertain such discrepancies , the impugned order do not deserve interference. . However, keeping in view the apprehension expressed by the learned counsel for t he petitioner, I propose to dispose of this revision with the following observat ion as under:- (i) Learned trial court shall re-examine the witness in order to ascertain t he typing mistake found by him and in doing so, the learned court shall confine himself within the zone of mistakes in the evidence of the witness indicated by him and it will not allow the witness to count the ballot papers, by opening the ballot box.

(ii) After re-examination of the witness by the learned trial Court, both the parties shall be at liberty to re-cross-examine the witness, only on the new fa cts, if any, introduced by the witness. With these observations and directions, this revision petition stands disposed o f. Parties are directed to appear before the learned Trial Court on 20.04.2011.