Page No.# 1/6 GAHC040008352024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : IA(C)/101/2026 Kompu Dolo Age: 63 Occupation : Address:Son of Late Tagung Rebe resident of Village Rebe PO and PS Chayang Tajo East Kameng District Arunachal Pradesh 790102 VERSUS Hayeng Mangfi Age: 0 Occupation : Address:Son of Late Tangu Mangfi resident of Nari Camp Village PO Sawa PS Chayang Tajo East Kameng District Arunachal Pradesh 790102 ------------ Advocate for : Takar Bagang Advocate for : Mudang Opo appearing for Hayeng Mangfi: Advocate appearing for respectively. Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG ORDER 29.05.2026 Heard Mr. S. Dutta, learned Senior counsel assisted by Mr. R. Shekhar, learned counsel for the applicant/Election petitioner. Also heard Mr. S. K. Deori, learned counsel for the respondent/returned candidate. 2. This interlocutory application under Order XVI Rule 1(3), Rules 6 and 7 read with Section 151 of the Code of Civil Procedure, 1908, has been preferred by the applicant/election petitioner seeking permission to examine one additional official witness along with production of certain original official records. 3. The applicant/election petitioner stated that, due to inadvertence, the name of the proposed additional official witness could not be included in the list of witnesses at the time of filing the list of witness. It is further contended that the said official witness, namely the Returning Officer/concerned Officer, is a material witness for proper adjudication of the controversy involved in the election petition, particularly regarding the alleged improper acceptance of the defective nomination paper and Form-26 affidavit submitted before the Returning Officer by Shri Hayeng Mangfi, respondent/Returned candidate at the time of scrutiny of the nomination papers for the 9th Chayang Tajo (ST) Assembly Constituency to the 11th Arunachal Pradesh Legislative Assembly. It is further stated that the said Returning Officer had furnished the applicant with a certified copy of the Form-26 affidavit of Shri Hayeng Mangfi/returned candidate, which has already been annexed to the election petition. As such, examination of the additional official witness/Returning Officer is necessary for Page No.# 3/6 determining the real question in controversy between the parties. 4. Mr. S. Dutta, learned Senior counsel for the applicant/election petitioner also prayed that the witness/Returning Officer be directed to produce the original records connected with the said nomination papers that is Form-26 affidavit of Shri Hayeng Mangfi/returned candidate. 5. In support of his submissions, that the witness proposed to be summoned is a necessary and that he can be called at the later stage even if his name was not included in the witness list, the learned Senior counsel relied upon the following decisions: i. Mange Ram vs. Brij Mohan & Ors., reported in (1983) 4 SCC 36 [paragraph Nos. 7, 8, 9, 10 & 11]; ii. Vidhyadhar vs. Manikrao & Anr., reported in (1999) 3 SCC 573 [paragraph Nos. 28, 31 & 32]; iii. Dinesh Singh Bhim Singh vs. Vinod Shobhraj Gajaria & Anr., passed in Writ Petition No. 11185 of 2022 decided on 25.01.2023 [paragraph Nos. 2, 3, 4, 11 & 12]; and iv. Ashok Sharma vs. Ram Adhar Sharma, reported in (2009) 11 SCC 47 [paragraph Nos. 12 to 15]. 6. The respondent/returned candidate opposed the prayer of the applicant by filing a written objection contending, inter alia, that sufficient opportunity had already been granted to the election petitioner to furnish the list of witnesses and adduce evidence. The petitioner having failed to availed the same now at this stage cannot be allowed. Page No.# 4/6 7. Mr. Deori, learned counsel for the respondent/returned candidate submits that the petitioner has already examined himself and another witness, and that two other official witnesses have also been cross-examined. It is contended that the present application has been filed only to fill up lacunae in the evidence already adduced. Hence, prays for rejectin of the prayer. 8. I have considered the submissions made by learned counsel for the applicant/election petitioner and have also perused the materials available on record. From the records, it appears that Order XVI Rule 1(1) CPC requires filing of the witness list within the prescribed time, whereas Rule 1(3) empowers the Court to permit examination of a witness not previously named. 9. The relevant provisions of Order XVI Rule 1(1), Rule 1(3) and Rule 1A of the Code of Civil Procedure, 1908 are reproduced below:— “Order XVI Rule 1(1), (2), (3), (4) and Rule 1A of the Code of Civil Procedure, 1908 “1. List of witnesses and summons to witnesses.— (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be Page No.# 5/6 appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1). 1A. Production of witnesses without summons.— Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.” 10. It is evident that although Order XVI Rule 1(1) of the Code of Civil Procedure, 1908 requires filing of the list of witnesses within the prescribed time, Rule 1(3) empowers the Court to permit examination of a witness whose name was not included earlier, provided sufficient cause for such omission is shown. At the same time, such power has to be exercised cautiously so that no prejudice is caused to the opposite party and also to ensure that no party is permitted to deliberately fill up lacunae left during the course of evidence. 11. In the present case, the witness proposed to be examined by the petitioner is an official witness, and being the Returning Officer, he is connected with the scrutiny of nomination papers for the 9th Chayang Tajo (ST) Assembly Constituency. Further, the records sought to be produced i.e., the nomination papers and Form-26 affidavit appear prima facie, relevant for proper adjudication of the issues involved in the present election petition. It is to be noted that the election dispute concerns the validity of acceptance of nomination papers and, therefore, the evidence of the concerned Returning Officer/official and the connected original records may have a bearing on the just decision of the present case. 12. The important aspect that has to be considered in the present case is whether sufficient cause has been shown by the petitioner to enable him to call a witness whose name did not figure in the list furnished earlier under Order Page No.# 6/6 XVI Rule 1(1) of CPC. In this regard, it is to be observed that merely because the petitioner and other witness has already been examined and cross- examined, the Court is not deprived of the power to garnt permission for examination of an additional witness, particularly when the witness sought to be summoned is an official witness and the evidence appears necessary for complete and effective adjudication of the controversy raised in the case. 13. The objection raised by the respondent/returned candidate regarding the alleged attempt to fill up lacunae can adequately be safeguarded by granting full opportunity to the respondent/returned candidate to cross-examine the witness proposed to be examined. Accordingly, this interlocutory application is hereby allowed. 14. In view of the above, let summons be issued to the proposed additional official witness/Returning Officer, 9th Chayang Tajo (ST) Assembly Constituency directing his appearance on the next date fixed along with the original records relating to scrutiny of the nomination papers and Form-26 affidavit submitted by the respondent/returned candidate. 15. It is made clear that the respondent/returned candidate shall have full liberty to cross-examine the said witness and rebut the evidence, if so advised. 16. With the above observations, this interlocutory application stands disposed of. JUDGE Comparing Assistant