- (1.) THE petitioner in this elec tion petition has applied under Order XI Rule 1 and Order XI Rule 12 of the Civil Procedure Code for leave to deliver interrogatories in writing for the exami nation of respondent No. 1 and for a direction to respondent No. 1 to make discovery on oath of the documents which are or have been in her posses sion or power relating to the questions arising in the petition; but it is contend ed on behalf of the respondent that the provisions of Order XI Civil Proce dure Code cannot be applied to election petitions. The arguments advanced on both sides have ranged over a wide field of both English and Indian law, but I shall endeavour to deal with them as succinctly as possible.
(2.) THE first point on which stress has been laid by learned counsel for the contesting respondent is that discovery as envisaged by Order XI, Civil Pro cedure Code has never been permitted in the trial of election petitions in Eng land. After jurisdiction was conferred by the Parliamentary Elections Act, 1868, on the Court of Common pleas to try such petitions, the court continued to follow the principles, practice and rules on which committees of the House of Commons had previously acted in deal ing with election petitions; and as point ed out in Wells v. Wren, (1880) 5 CPD 546 "it is admitted that the exhibition of interrogatories to the sitting member by an election committee was a thing un heard of." When elections were introduc ed in India, however, there was a radi cal departure from this principle. Sec tion 5 of the Indian Elections Offences and Inquiries Act, 1920 provided that:- "5. Commissioners appointed to hold an inquiry shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following mat ters:- (a) discovery and inspection, (b) enforcing the attendance of wit nesses and requiring the deposit of their expenses, (c) compelling the production of documents, (d) examining witnesses on oath, (e) granting adjournments, (f) reception of evidence taken on affidavit and (g) issuing commissions for the examination of witnesses and may summon and examine suo motu any person whose evidence appears to them to be material; and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898." The procedure of discovery was thus specifically made applicable to the trial of election petitions in India. And when the Representation of the People Act, 1951 was passed (repealing the earlier Act of 1920) the provisions of Section 5 of the earlier Act were reproduced as Section 92, the only difference being that the powers enumerated therein were to be exercised by an election tribunal instead of by commissioners. The procedure of discovery thus remained specifically en forceable in election petitions in this country even after 1951.
(3.) APART from Section 92, the Representation of the People Act, 1951 contained another section dealing with procedural powers viz. Section 90 (2), which laid down that every election peti tion should be tried by the Tribunal "as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits," subject to the provisions of the Act and any rules made there under. The two Sections flow (2) and 92 continued side by side until 1966, when an amending Act (No. 47 of 1966) was passed, intro ducing a major change in procedure by entrusting the trial of election petitions to the High Court. As a result of this amending Act both Section 90 (2) and Section 92 disappeared and were replac ed by the present Section 87, the rele vant portion of which reads as follows:- "87 (1). Procedure before the High Court:- 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." ;