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Judgment
R.S. Narula, J.—At the commencement of evidence in this election petition, the contesting respondent roade this application yesterday praying (i) that the names of witnesses Nos. 78 to 80 be struck out and (ii) that the election-petitianer be ordered to examine himself first before his other evidence is recorded. Notice of the application was given to the election-petitioner for today. In the meantime an oral request was made by the Learned Counsel for the returned candidate to exclude the petitioner from the Court at the time of examination of Hoshiar Singh P.W. 8 (after the official and formal witnesses had been examined). The prayer excluding the petitioner from the Court room has been pressed only in the event of his neither choosing to examine himself first, nor being directed by the Court to be examined before recording the statements of his other witnesses. The description of witnesses Nos. 78 to 80 given in the list filed by the petitioner is in the following words:-
78.
Office Secretary, Pradesh Congress Committee (Ruling Haryana, Sector 9, Chandigarh, with account books relating to the period 1st February, 1971 to 11th March, 1971;
To prove election expenses incurred by respondeat No. 1;
79.
Office Secretary, District Congress Committee (Ruling), Karnal, with account book relating to the period 1st February, 1971 to 11th March 1971.
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80.
Office Secretary District Congress Committee, Jind, with account books relating to the period 1st February, 1971 to 11th March, 1971.
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The objection of the contesting respondent to the production of the above mentioned three witnesses is to the effect that there being no allegation of fact in the entire petition that either the Haryana Pradesh Congress Committee or the District Congress Committees incurrd any expenses nor any such corrupt practice having been alleged to have been committed by the contesting respondent, no evidence can be led in that behalf, and the production of accounts of the political parties, which are being summoned with an ulterior motive to fish out evidence and which are otherwise irrelevant, should not be permitted. In his written reply to the application, the petitioner has stated that though indeed there is no allegation in the petition that the Haryana Pradesh Congress Committee, or the District Congress Committees incurred any expense, the evidence in dispute is being produced to refute the earlier assertion of respondent No. 1 contained in his written statement to the effect that the meeting held on February 28, 1971, was arranged by the Pradesh Congress Committee, and to refute the assertion that the election offices were maintained by the District or the local Congress Committees.
In paragraph 6(d)(iv) of the election petition, it has been alleged that an expenditure of about Rs. 8,000 was incured or authorised by respondent No. 1 to be incured on the setting up or erection of rostrum and barricades and plying of vehicles (of which a list has been given in that sub-paragraph of the petition) in the course of organising a public meeting which was held at Kaithal on February 28, 1971, and which was addressed by the Prime Minister In reply to that allegation the returned candidate has stated inter alia in the corresponding paragraph of his written statement that though a public meeting was convened and held at Kaithal on February 28, 1971, which was addressed by the Prime Minister, yet it is incorrect that the respondent organised the said meeting of that the respondent incurred any expenditure or authorised the incurring of any expenditure for the setting up or erection of the rostrum and barricades or for plying the alleged vehicles. It is then stated by the respondent as follows:-
the arrangement for the meeting of the Hon''ble the Prime Minister was the concern of the Pradesh Congress Committee and the answering respondent had nothing to do therewith. The rostrum and the barricades were all set up by the Pradesh Congress Committee and not by the answering respondent.
Similarly in paragraph 6(d)(iii) of the petition an allegation has been made about nine election offices having been set up by the contesting respondent at various places in the districts of Karnal and Jind, in the setting up of which about Rs. 20,000/- are alleged to have been spent in the ordinary course, but no part of that expenditure has been shown in the return of election expenses filed by the respondent. The averment of the contesting respondent in reply to the abovementioned allegation is that though it is addmitted that election offices were set up, the same had not been set up at the cost or expense of the contesting respondent, but the offices had been set up by the Pradesh Congress Committee and other Congress Committees at several places for the purpose of contacting workers at a central place. In the same para graph (paragraph 6(d)(ii)) of the written statement, the contesting respondent has added that "it was as a matter of fact the work of the Pradesh Congress Committee, the District Congress Committee and the subordinate Congress Committees", and that it. was incorrect that any expense much less Rs. 20,000/- or in fact any amount had been spent by the answering respondent on those offices, and, therefore, the question of the respondent showing such expenditure in his return did not arise at all.
Chaudhry Bakhtawar Singh, Learned Counsel for the contesting respondent referred to the recent judgment of the Supreme Court in Mohammed Mustafa v. Sri Abu Bakar (1971) 1 SCWR 91, wherein it was held that a finding reached by a Court without proper pleadings and necessary issues cannot bind any of the parties to the suit. The two issues which have been framed by me in connection with the allegations made in paragraphs 6(d)(ii) and 6(d)(iv) of the pleadings are issues Nos. (9)(ii) and (9)(vii). These read as below:-
(9) Whether respondent No. 1 committed the corrupt practice of incurring and authorising expenditure of more than Rs. 35,000/- on the election in question by:-
(i)............
(ii) spending Rs. 20,000/- or more on the setting up of nine election offices at Narwana, Kalayat, Kaithal, Rajaund, Pundri, Pehowa Shenada, Thanesar and Shahbad;
(iii) to (vi).........
(vii) spending Rs. 8,000/- on organising public meeting at Kaithal on February 28, 1971.
The holding of the public meeting at Kaithal on February 28, 1971, and the setting up of several election offices have been admitted by the respondent. Nor can it be questioned that expenses in connection with the holding of the meeting and the setting up of the offices must have been incurred by some one from somewhere. Whereas the allegation of the petitioner is that those expenses were incurred or authorised by the contesting respondent, it has not been stated in the petition as to who other than the respondent had incurred the alleged expenses on being authorised by the respondent. There are two rival versions in connection with the expenditure incurred on the holding of the public meeting and the setting up of the offices Whereas the petitioner''s case is that the respondent incurred those expenses, it is the case of the respondent that he did not do so and that the holding of the meeting in question and the setting up of the offices in dispute was the concern of the Pradesh Congress Committee, or the District Congress Committees. In my opinion, it cannot be disputed that there are two ways in which the petitioner can support his allegations, namely (i) by proving by direct evidence that the expenses in question were incurred by the respondent; and (ii) by excluding the possibility of the respondent''s version being correct by proving that neither the Pradesh Congress Committee, nor the District Congress Committees organised the meeting or set up the offices by showing that those Committees did not incur any expenditure in connection with the meeting or offices. By merely proving the negative the petitioner will certainly not succeed. He is, however, entitled to lead evidence on both aspects of the matter. I am, therefore, unable to shut out the evidence of witnesses Nos. 78 to 80. Witness No. 78 has in fact already been examined yesterday, and he has not given any useful information. Counsel for the petitioner stated that he would make an application for leave to summon the Accountant of the Haryana Pradesh Congress Committee. It is for the petitioner to take such steps in the matter as he may be advised. The petitioner does not intend to examine these witnesses to prove commission of any corrupt practice by the Pradesh Congress Committee or by any District Congress Committee. The only aim as disclosed in his reply to the application is to show that the respondent''s version about the meeting having been held and offices having been set up by the Congress Committees is not correct. The first prayer of the contesting respondent cannot, therefore, be allowed.
So far as the second prayer is concerned, there is no dispute that on account of the express provision contained in explanations 1 and 2 to rule 2 of Order 18 of the CPC added by this Court, the petitioner can be directed to produce his evidence in any particular order in which the Court deems fit and that in giving any such direction, the stage at which the petitioner himself should appear as a witness (if he chooses to appear as such at all) can also be determined by the Court, Rule 2 of Order 18 of the Code lays down that the party having the right to begin has first to state the case and produce his evidence in support of the issues which he is bound to prove, and the other party has then to state his case, and produce his evidence (if any) and then to address the Court generally on the whole case, whereafter the patty beginning may reply generally on the whole case. The two explanations added by the Punjab High Court are to the following effect:-
Explanation 1.-Nothing in this rule shall affect the jurisdiction of the Court of its own accord or on the application of any party for reasons to be recorded in writing, to direct any party to examine any witness at any stage.
Explanation 2.-The expression witness in explanation 1 shall include any party as his own witness.
The order in which a party may produce his witnesses has normally to be left to the discretion of the party concerned. It is only in exceptional cases that the Court may control that discretion. In such cases, the order of the Court must be supported by reasons Dua, J. has emphasised in Achyutana Pitchaiah Sarma Vs. Gorantla Chinna Veerayya and Others, , that though the parties are entitled to select their own witnesses and the order in which they are to be examined, the spirit of Order 18 Rules 1 and 2 definitely suggests that normally speaking the plaintiff must first come in the witness-box to depose to his case to be followed by corroborative evidence; a practice to the contrary has somehow developed and is in vogue in the State of Punjab according to which a party puts himself in the witness-box last of all. Even after the salutary principle of a party appearing as his witness before examining his other witnesses bad been settled in Smt. Gurdial Kaur''s case (supra), this Court has not so far framed any rule of the following type which has been added as sub-rule (4) to rule 2 of Order 18 of the CPC by the Rajasthan High Court:-
Where a party himself wishes to appear as a witness he shall so appear before any other witness on his behalf has been examined; provided that the Court may on an application made it this behalf and for reasons to be recorded, permit him to appear as his own witness at a later stage.
The spirit behind the Rajasthan amendment is not in consonance with the spirit behind the first explanation added by the Punjab High Court. Whereas the rule in the Rajasthan Court is for the party being examined first and any diversion from that rule is made an exception, the position under the rule as amended by the Punjab is that normally the party examining his evidence is left to his own choice, but in an exceptional case the Court may, for reasons to be recorded, direct to the contrary. A learned Single Judge of the Andhra Pradesh High Court went into this matter at great length and held in ultimate analysis that the Court has inherent power to regulate its business in the way it thinks best or to make any order that may be necessary for the ends of justice. Alter laying down that basic principle the learned Judge held in Achyutana Pitchaiah Sarma v. Gorantla Chinna Veerayya AIR 1962 P&H. 180 that the Court has the power to prescribe the order in which the witnesses are to be examined and where a party is also a witness, the Court can require him to give evidence before the examines his other witnesses, and If he is not willing to do so, the Court can order him out of the Court room when his other witnesses are giving evidence. The powers of the Court in regard to both these matters have not been doubted or disputed by Mr. Goyal. He has stated in reply to the respondent''s application that the petitioner has no personal knowledge of any of the matters in issue and there is, therefore, no question of his evidence being corroborated by other witnesses. He has also stated that even in the verification of the election petition, it has not been stated that any of the allegations of corrupt practice made therein are true or correct according to the personal knowledge of the petitioner himself. In this situation the petition has to succeed or fail on the basis of the evidence of other witnesses produced by the petitioner and not on 1 is own testimony which can at best be of a somewhat formal nature. No useful purpose would, therefore, be served in directing the petitioner to put himself in the witness-box before examining his other evidence in this case. Once it is held that though he is going to appear as a formal witness, and is for all practical purposes not a witness to any of the allegations of corrupt practice made in the case no useful purpose would be served by ordering him out of the Court room during the examination of his other witnesses. This is so, for the additional reason that the entire evidence of the petitioner is not being examined on one day and his remaining in the Court room at the time of the examination of his other witnesses would not in any way affect the ends of Justice. Parties to litigation have in the absence of exceptional circumstances a right to be present in Court during the trial of their case. I am unable to find any exceptional circumstances warranting the adopting of a diffenrent procedure in the trial of this petition. in these circumstances, I have not been able to persuade myself to accede to even the second request of the contesting respondent made in this application.
This application, therefore, fails and is dismissed with costs. Counsel''s fee Rs. 150/-.