JUDGMENT
P.R. Raman, J.
1. Petitioner herein is a returned candidate in a Panchayat Election. His election was challenged by one of the contesting candidate by filing O.P. (Election) No.169/2000 before the District Court, Trivandrum. Petitioner herein is the 4th respondent and the Returning Officer is the second respondent in the said Original Petition. She filed an application – I.A. 1836/2003 for summoning the third respondent after citing him as a witness in the witness list. The court below by Ext.P1 declined to summon the witness on the ground that the Returning Officer being one of the respondents in the election petition, petitioner is not entitled to cite another respondent/defendant as a witness. Reliance was also placed on the decision of this Court in Syed Mohammed v. Aziz (1990 (2) KLT 952). Challenging the above order, petitioner has come up with this writ petition. The Assistant Returning Officer is also made a party as the third respondent in the proceedings.
2. The learned counsel for the petitioner raised the following contentions:
(i) As per Section 90 of the Panchayat Raj Act, the Returning Officer or the Assistant Returning Officer is not a party required to be joined as respondent and hence the Assistant Returning Officer though impleaded as the third respondent in the election petition cannot be given the position as a defendant for the purpose of summoning him as a witness in the case.
(ii) As per the proviso to Section 94 of the Panchayat Raj Act, the court has the discretion to refuse for reasons to be recorded in writing to examine any witness only if it is of the opinion that evidence of such witness is not material for the decision of the petition or the party tendering such witness in doing so on frivolous grounds with a view to delay the proceedings. In other words, according to him, the court cannot refuse to examine the witness on any other ground other than (that are mentioned in Section 94 of the Act).
(iii) O.XXI, Rule 16 of the Code of Civil Procedure empowers the court to issue summons on any party.
3. As regards the first contention that the Returning Officer, or the Assistant Returning Officer as the case may be are not required to be parties as per Section 90 of the Act is concerned, it has to be observed that Section 90 does not by itself bar any person being shown as a defendant or a respondent in the election petition. Section 90 of the Kerala Panchayat Raj Act reads as follows :
A petitioner shall join as respondents to his petition:-
(a) Where the petitioner in addition to claiming a declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and whereno such further declaration is claimed, the returned candidates and;
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.”
4. Therefore, depending upon the prayers made in the election petition, if there is a further declaration sought for as contemplated under Section 90A, such person should also be joined as parties. It does not on the other hand say whether any other person should also be made a party in the factual situation. However, it is settled principle of law of pleading that whether a person impleaded as respondent is a necessary or proper party depends upon the averments made in the pleadings and any party who object to the inclusion of any other party as a defendant or respondent is entitled to raise the objection that he is not a necessary or a proper party to the proceedings and seek necessary relief in that behalf that the suit is bad for misjoinder. It is true that the Apex Court in B. Sundara Rami. Reddy v. Election Commission of India and Ors. (1991 Supp.(2) SCC 642) while considering the provisions contained in the Representation of People Act has held that the concept of “proper party” is and must remain alien to an election dispute under the Representation of the People Act, 1951 and that only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. Therefore, even assuming that the Returning Officer is riot to be arrayed as a respondent in the election petition, nothing prevents the petitioner herein from raising an objection that he cannot be arrayed as a party respondent in the election petition. So however, no such objection was seen raised in this case and that question is purely academic as far as the present petition is concerned since the Assistant Returning Officer is made a party as third respondent in the election petition and no objection is seen raised in including him as a party. Therefore, it cannot be said that he shall not be treated in the position as a defendant in the suit. Applying the principle laid down in the decision reported in Syed Mohammed v. Aziz (1990 (2) KLT 952) a defendant cannot compel another defendant to appear before the court as his witness. Though later, a Division Bench of this Court in Jortin Antony v. Section P.D. Marthanda Varma (2000(2) KLT 680) considered the scope and ambit of O.XVI Rule 14 and held that even a party to the suit does not have a right as such to summon the opposite party to give evidence and it is really left to the court, possibly after the evidence of all the witness made available is completed, to consider whether the examination of one of the parties who has not come before court, is necessary and in that context if found necessary, to compel that party to give evidence in exercise of its jurisdiction under Rule 14 of O.XVI of the Code. Reference was also made to the decision of this Court in Syed Mohammed v. Aziz (1990 (2) KLT 952) and various other decisions on the point. Referring, to Rule 21 it was held as follows:
“It can be seen that what Rule 21 as it was obtaining in Kerala provides for, is a contingency when a party to the suit is required by another party to the suit to give evidence. This according to counsel for the plaintiffs pre-supposes that a party to the suit has the right to call upon his opposite party to give evidence and the court has the power to comply the giving of evidence by the opposite party. As we have noticed neither Rule7 of O.XVI nor Rule 14 of O.XVI at the relevant time (before the 1976 amendment) gave power to the court to examine a party to the suit who was not present in Court. It is in the context of that power that Rule 21 as inserted in the year 1959 in Kerala has to be understood. Rule 21 only indicated that when a party to the suit is required by the otherparty to give evidence, the provisions as to witnesses shall apply so far as applicable. Since no substantive right as such is conferred on a party to call his opposite party to give evidence, Rule 21 cannot be construed as conferring such a power on a party to the suit”.
5. Therefore, based on the provisions of the Code of Civil Procedure under O.XVI Rule 21 or Rule 16, it cannot be contended that a party to the proceedings has got a right as such to compel the presence of another party to the suit for giving evidence. But at the same time, if the court ultimately finds based on the evidence that such examination is required for a proper adjudication, the provision empowers the court to do so.
6. The next contention to be considered is whether the court can refuse the examination of witnesses only under the proviso to Section 94 of the Panchayat Raj Act? In this connection, it has to be noticed that the proviso to Section 94 of the Panchayat Raj Act gives a discretion to the Court to refuse on reasons to be recorded in writing to examine any witness or witnesses, if it is of the opinion that the evidence of such witness or witnesses is not material for decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous ground or with a view to delay the proceedings. The object of the proviso is therefore, clear that even if the witness sought to be examined is not a respondent or a defendant, even in such cases, the court can refuse examination of such witnesses because a long list of witnesses presented before the court for examination with a view to delay the proceeding can be taken notice of by the court and refuse examination of witnesses and it is only enabling the court to exercise such discretion to refuse even the witnesses already cited in the schedule of list furnished by either parties that the proviso is inserted. That is in no way an answer to the question as to whether a defendant could be cited as a witness. The proviso is not for restricting the power of the court rather it empowers the court to refuse examination of the witness on the ground stated in the proviso. It can therefore be seen that the proviso confers a discretion. As a matter of fact, whether the defendant or opposite side could be summoned as a witness is not governed by any rule under the Code of Civil Procedure or any statutory rule but governed by principles settled by judicial pronouncements.
7. Before parting with the case, it has to be observed that the election petitioner, with a view to deny the contesting defendant from examining a material witness may choose that person also to be included as a defendant, thus virtually for close a defence being proved in evidence. In such circumstances, the remedy open to the party is to file an objection regarding the inclusion of such persons as a party on the ground that they are improperly included with a view to defeat the proper adjudication of the case by citing such person as a witness in which case the court is certainly bound to consider such plea and delete such persons from the party array after considering such objections at the initial stage itself. However in the present case, inclusion of the Assistant Returning Officer is not objected to by any party and as such whether he is a necessary party or not does not arise for consideration here and it is a matter to be considered in the facts and circumstances of each case as and when raised at the appropriate stage.
Accordingly, the Writ Petition fails and is dismissed.