Case Note & Summary
This judgment arises from an election petition (Election Petition No. 1 of 2009) filed by Indur Kartar Chhugani against Ms. Priya Sunil Dutt in the Bombay High Court. The petitioner sought permission to examine two witnesses: Mr. Mahendra Warbhuvan (witness No. 3) and Mrs. Rekha I. Chhugani (witness No. 6, the petitioner's wife). The respondent objected on the ground that both witnesses were present in court when the petitioner's own evidence was recorded on 20th April 2010. The respondent argued that this presence should disqualify them from being examined, relying on a decision of the Allahabad High Court in Lalmani v. Bejai Ram Chaudhari (AIR 1938 Allahabad 840). The petitioner appeared in person, while the respondent was represented by counsel. The court considered the submissions and noted that the respondent's counsel later conceded that the Allahabad decision was no longer good law in view of a Division Bench ruling in Subh Karan Singh v. Kedar Nath Tewari (AIR 1941 Allahabad 314). The court also referred to a decision of the Bombay High Court in Lloyd Sequeira Vaz v. Inacio Albano Lourenco (Writ Petition No. 48 of 2007, decided on 23rd February 2007). The court observed that there is no specific provision under the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 that prohibits a witness from being examined merely because they were present during the recording of another witness's deposition. While courts have the inherent power under Section 151 CPC to regulate proceedings and can direct witnesses to leave the courtroom, this power must be exercised judiciously. The court held that the mere presence of a witness does not automatically disqualify them; the objecting party must demonstrate prejudice. In this case, the respondent failed to show any prejudice. Accordingly, the court allowed the petitioner's prayer to examine both witnesses, subject to the condition that the petitioner ensures that no other witnesses remain present during the examination of each witness. The court also directed that the examination of these witnesses be completed expeditiously.
Headnote
A) Civil Procedure - Examination of Witnesses - Presence During Deposition - No statutory provision under the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 prohibits a witness from being examined solely because they were present in court when another witness's deposition was recorded. The court has inherent power under Section 151 CPC to regulate proceedings, but such power must be exercised judiciously and not to deny a party the right to examine witnesses without sufficient cause. (Paras 4-5) B) Election Law - Evidence - Witnesses - The court declined to apply the rule from Lalmani v. Bejai Ram Chaudhari (AIR 1938 Allahabad 840) as it was overruled by a Division Bench in Subh Karan Singh v. Kedar Nath Tewari (AIR 1941 Allahabad 314). The court held that the mere presence of a witness during earlier testimony does not automatically disqualify them; the objecting party must show prejudice. (Paras 3-5) C) Civil Procedure - Inherent Powers - Section 151 CPC - The court's inherent power to prevent abuse of process or secure the ends of justice cannot be used to create a new rule of disqualification not found in the statute. The court must balance the right to present evidence against the need for a fair trial. (Para 5)
Issue of Consideration
Whether witnesses who were present in court when the petitioner's evidence was recorded can be disallowed from being examined as witnesses in an election petition.
Final Decision
The court allowed the petitioner's prayer to examine witness No. 3 (Mr. Mahendra Warbhuvan) and witness No. 6 (Mrs. Rekha I. Chhugani), subject to the condition that the petitioner ensures that no other witnesses remain present during the examination of each witness. The court directed that the examination of these witnesses be completed expeditiously.
Law Points
- Section 135 of Indian Evidence Act
- 1872
- Section 151 of Code of Civil Procedure
- 1908
- Power of court to regulate examination of witnesses
- No automatic disqualification for witnesses present during earlier deposition
