Sham Lal Saraf vs Mohd.Shafi Qureshi & Another

(1) Two applications have been moved by the learned counsel for the respondent No. 1, one for summoning one Shri Ram Chand, who is alleged

to have been the S.H.O. at Awanripora in January 1967 and the other for recalling of respondent No. 2 who has already appeared as a witness in

this case Both these applications have been strongly op. posed by the learned counsel for the petitioner. The objections filed by the learned counsel

for the petitioner are also on the file.

(2) I have heard arguments, which were detailed, of the learned counsel for the parties.

(3) I think I should take up the two applications separately, although the learned counsel for the respondent No. 1 brings both these applications

under the same category which in my opinion is not correct. Let me first take the application for summoning of Shri Ram Chand, who was in

January Awanupore Police Station but is now said to S. H. O. Pulwama When the original list of witnesses was filed by the respondent No 1 on

2871967, at item No. 4 thereof the witness mentioned is 'Police Officer concerned, police station Awantipore with Roznamcha Jan/Feb 1967.'

The word 'Awantipore' has been substituted for the word 'Anantnag' which originally was typed in the list. The S.H.O. of this Thana Awantipore

Hakim Ghulam Rasool came with the relevant Raznamcha and was examined on 541668. After his examination the present application has been

moved. In the original list of witnesses no officer by name was mentioned by the respondent No. 1 From the list it would appear that the learned

counsel for the respondent No. 1 were only anxious for the production of the Roznamcha and they has not specified any officer by name whom

they wanted to examine as their witness. Therefore it would appear from an inspection of the list of witnesses submitted by the respondent No. 1's

learned counsel that Shri Ram Chahd now sought to be summoned as a witness, was not at all mentioned therein. Rule 15 of the Rules relating to

Election Petitions framed by this Court with the sanction of Governor and published in the extraordinary Gazette of 8th April 1967 reads as under :

(4) ""A party shall apply for the issue of summons for the witnesses sufficiently in time for the attendance of the witnesses after service. The party

may also produce witnesses without summons on the date of the hearing provided their names are mentioned in the list filed by them under Rule 14

above.

(5) The parties are required under Rule 14 to submit the list of witnesses within seven days of the settlement of issues. That being done, a party can

produce a witness without summons on the date of hearing but the condition necessary for examining such a witness is that his name must be

mentioned in the list filed by the patty under rule 14. This rule 15 therefore clearly does not authorise the Court to permit a party to produce, much

less request the court to summon a witness not mentioned in the original list submitted by the party. On facts the argument of the learned Counsel

for the respondent No. 1 has been that this Ramchand, Who is now sought to be summoned, was S.H.O. Awantipore on the relevant date i.e.

January/February 1967. He has been now transferred to Pulwama. It is admitted both in the application and in the statement of Hakim Ghulam

Rasul, S.H.O. Awantipore that this Ramchand was transferred from police station Awantipore to Pulwama in December 1967. Since December

1967 the S.H.O. was summoned for 22nd March 1968. On that date he sent a telegram and was resummoned for 451968 on which date he was

examined. From December 1967 no attempt was made by the respondent to move the Court, to summon Ramchand as his witness. Therefore to

say the least the respondent No. 1 has been negligent in moving this application for summoning of Ramchand witness. Therefore in my opinion I

have no power under the rules to summon this witness, who is new witness altogether nor is permission to allow this witness to be summoned

warranted on facts as indicated above.

(6) Mr. Tikkoo, the learned counsel for the respondent No. 1 has however argued that this rule 15 quoted above is ultra vires and the Court had

no power to frame such a rule. The code of Civil Procedure applies to this case. Under the Code of Civil Procedure Order 16 a party could at any

time request the Court to summon a witness, if the evidence of that witness is necessary for the just decision of the case. The court, according to

Mr. Tikkoo, was not empowered to curtail its power of summoning the witnesses, and as the provisions of the Code of Civil Procedure apply to

election petitions the power to summon a witness even though not included in the original list pf witnesses is inherent in the Court and it is obligatory

for the court to exercise this power in favour of the respondent No. 1 in this case. Mr. Tikkoo has argued that under section 102 of the

Constitution of Jammu and Kashmir the power to make rules by this Court is subject to the provisions of any law for the time being in force and

shall be the same as immediately before the commencement of this Constitution. Under section 67 of the J & K Constitution Act of 1996 rules

could be made which were consistent with other laws. Therefore this rule which is inconsistent with the provisions of the Code of Civil Procedure

should be struck down. The provisions of Order 16 rule 1A which has been introduced in the Code of Civil Procedure in the rest of India by the

Code of Civil Procedure Amendment Act of 1956 has no place in the Code of Civil Procedure of the State and the present rule 15 is based on the

language of that very rule. Therefore as that rule does not exist in our Code of Civil Procedure, no such restriction as is contained in rule 15 of the

Election Rules can be permitted to exist. I am nor impressed with this argument of the learned counsel for the respondent No. 1, Mr. Bhasin, the

learned counsel for the petitioner has argued that rule making power is one of the accepted principles of delegated legislation. He has referred me

to a treatise known as ""the Control of Delegated Legislation'' by D.J. He with wherein among the different forms of subordinate or delegated

legislation given on page 3 of the book is mentioned as Judicial. It reads as under :

(7) ""Similarly, the judicature has been entrusted with certain delegated legislative powers. Superior courts are empowered to make rules to regulate

their own procedure. This is judicial legislation and differs from what is known as the legislative action of the courts in making new law by means of

precedent.

(8) This analysis the learned author has based on Salmond's Jurisprudence Therefore the rule making power is inherent in the Court more so when

it is expressly given under section 102 of the Constitution of Jammu and Kashmir and it existed in the Court even u/s. 67 of the Constitution Act of

1966. All that is required is that it should be subject to the provisions of the Constitution and provisions of any law for the time being in force.

Under the letters Patent Article 26 it was ordained that the High Court consistently with the law for the time being in force make rules in respect of

matters specified in Section 67 of the Jammu & Kashmir Constitution Act, 1996.

(9) In Supreme Court authority reported as National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd 1953Vol IV SupremeCourts

Reports 1028. Their Lordships while referring to Section 108 of the Govt. of India Act, 1915 have laid down that :

(10) ""The section is an enabling enactment and confers power on the High Courts of making rules for the exercise of their jurisdiction by single

Judges or by division courts. The power conferred by the section is riot circumscribed in any manner whatever and the nature of the power is such

that it had to be conferred by the use of words of the widest amplitude......

(11) Further on their lordships have laid down that :

It is a well known rule of construction that when a power is conferred by a statute that power may be exercised from time to time when occasion

arises unless a contrary intention appears...

And their Lordships further repelled the contention that with the repeal of Section 108 of the Govt. of India Act, 1915 and of the enactment of its

provisions in section 223 of the Govt. of India Act of 1935 and later on in article 225 of the Constitution of India this rule making power had been

taken away from the High Courts.

(12) Under the Constitution as well as under the Representation of people Act, the High Court has with the previous sanction of the Governor

power to make rules in regard to Election Petitions. This power has not in any way been taken away from the High Court by any provisions of law

or of the constitution. Rather this power is maintained and retained with the High Court under section 102 of the Constitution of J & K. Section 87

of the Representation of people Act lays down that :

(13) ""Subject, to the provisions of this Act and of any rules made there under, 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.

(14) Which clearly means that the Code of Civil Procedure will only apply when there is no specific provision either in the Act or in the rules made

under the Act. Therefore the application of the exact term and sections of the Code of Civil Procedure is circumscribed by the provisions of this

act and rules made under the Act. The section further lays down that the election petition shall be tried as nearly as may be in accordance with the

procedure applicable under the Code of Civil Pr. which means that they have not to be tried strictly according to the provisions of Code of Civil

procedure but as nearly as may be in accordance with the procedure applicable to civil suits. Obviously therefore even under the term of Section

67 of the Jammu & Kashmir Constitution Act, 1996 or Section 102 of the constitution of Jammu & Kashmir, there is nothing illegal or ultra vires

about this rule 15 of the rules referred, to above.

(15) Apart from this argument there is a clear purpose behind this rule. Under subsection 7 of Section 86 of the Representation of People Act, it is

necessary to dispose of an election petition as expeditiously as possible and endeavour has to be made to conclude the trial within six months, from

the date on which the election petition is presented. That being a mandatory provision of the Act, the rules 14 and 15 referred to above mentioned

are in consonance with the spirit and language of subsection 7 of section 86 of the Representation of People Act. When an election petition is

presented by a petitioner and the respondent puts in his objections, the case of each other is fully known to the parties and after they know the

case of each other they are given the option of filing the list of witnesses within seven days. When the list is filed the parties can request the court to

get the witnesses summoned through court, or produce them selves. This is the rationale behind this rule and it is perfectly in consonance with the

language and spirit of the Act and therefore these rules are clearly intra vires of the powers of the High Court.

(16) The last argument of Mr. Tikkoo that as the provisions of order 16 Rule 1A Civil Pr. Code are not applicable to the State, therefore there is

no justification for rule 15 of the Election Rules, making the rule liable to be struck down, also has no force. When there is no limitation in the Code

of Civil Procedure nor is anything prohibiting enacting a rule like rule 15 the power to make such a rule is clearly there and can be and has been

properly exercised.

(17) On the basis of what has been stated above this application of the respondent No. 1 to summon Ramchand now, is rejected.

(18) About the other application relating to recalling of the respondent No. 2 at this stage, I can only make a passing reference to this application.

There is not enough material placed before me by the respondent No. 1 why that witness should be recalled. Mr. Bhasin, the learned counsel for

the petitioner, has put in a long list of objections to this application of the respondent No. 1 but I need not discuss the contentions of either the

respondent No. 1 or the objections put in by the petitioner at this stage. If the respondent No. 1 really feels that the recall of that witness is

necessary in the interests of justice, he can move the Court with better material which will permit the Court to exercise its discretion so far as the

power to recall a witness is concerned. I think I have the power and to that extent the Code of Civil Procedure would apply to the case. There is

nothing contrary in the Representation of People Act or in the rules made there under. I have already decided this point in another Election Petition

Kacho Mohd. Ali v. Koshok Bakula and held that I had the power to recall a witness in fact I recalled and reexamined the Returning Office in that

case who had already appeared as a witness. Therefore, I do not propose to pass any final order on this request of the respondent No. 1 at this

stage. He has only to examine himself as his own witness. Mr. Tikkoo wants time to produce the respondent No. 1. The respondent No. 1 will be

produced on the 25th of this month as no other date till then is available with the Court.

(19) Let the case come up on 25th of April, 1968.