Mahammad Patel S/O Kashim Patel vs Irappa @ Iranna Siddappa And Anr
2021 Latest Caselaw 3513 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF OCTOBER 2021

                       PRESENT

         THE HON'BLE MR.JUSTICE R. DEVDAS
                         AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

         WRIT APPEAL No.200299/2017 (LB-ELE)


BETWEEN:

Mahammad Patel S/o Kashim Patel
Biradar, Age: 44 years
Occ: Agriculture & Gram Panchayat
Member Mukihal Gram Panchayat
R/o Mukihal, Tq.Muddebihal
Dist.Vijayapura
                                           ...Appellant

(By Sri. S.S.Halalli, Advocate
& Sri. Mahadev Patil, Advocate)

AND:

1.     Irappa @ Iranna S/o Siddappa
       Hokrani, Age: 42 years
       Occ: Agriculture & Gram Panchayat
       Member, Mukihal Gram Panchayat
       R/o Kalladevanahalli
       Tq.Muddebihal, Dist. Vijayapur
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2.    S.B.Chalawadi, Election Officer
      11-Mukihal Gram Panchayat
      And Physical Education Officer
      B.O.Office, Muddebihal
      Tq.Muddebihal
      Dist. Vijayapura
                                           ... Respondents

(By Sri. Shrinivas B. Patil, Advocate for R1;
R2 notice d/w v/o dtd 24.01.2018)

      This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside an order
dated 04.09.2017 in W.P.No.201181/2016 (LB-ELE)
passed by the learned Single Judge and allow the writ
petition.

      This appeal coming on for final hearing, this day,
R.Devdas J., delivered the following:

                       JUDGMENT

R. DEVDAS J., (ORAL):

This appeal arising out of an election petition filed

before the wrong forum and thereafter the said Court

permitting the petitioner to file an election petition

before the competent court, beyond the prescribed

period, was called in question by the appellant herein

before the learned Single Judge in

W.P.No.201181/2016. The learned Single Judge, while

following a decision of a learned Single Judge in the

case of Smt. S.Lalitha vs. Returning Officer

(W.P.No.53087/2016 and connected matters, DD

26.10.2016) directed that the election petition shall be

considered on merits only if the petitioner before the

competent court succeeds in the application filed under

Section 14 of the Limitation Act, 1963. The designated

Court was required to consider the matter on merits of

the case if the delay is condoned, after due satisfaction

of the sufficient cause shown by respondent No.1.

2. By affix of time, the prayer made in the

election petition itself has become infructuous. The term

of the elected body has come to an end after the

duration of 5 years having been completed.

Nevertheless, learned counsel for the appellant draws

the attention of this Court to a decision of the Hon'ble

Apex Court in the case of Suman Devi vs. Manisha

Devi and Others [(2018) 9 SCC 808] and submits that

the Hon'ble Apex Court has clearly held that the

provision of Section 14 of the Limitation Act, 1963,

would clearly stand excluded from the consideration of

an election petition. It was also brought to the notice of

this Court that earlier a learned Single Judge of this

Court, in the case of Mallikarjunagouda vs. Principal

Munsiff [ILR 1995 KAR 2595] had expressed similar

opinion.

3. It is seen from the said two decisions cited

by the learned counsel for the appellant that this Court

and the Hon'ble Apex Court have clearly held that there

is basic difference between a suit and an election

petition, inasmuch as in a suit the lis is between the

parties, while in an election petition the lis would

pertain to the entire constituency. The provisions of

CPC will apply to trial of an election petition except to

the extent of its provisions are found to be inconsistent

with the provisions of the Act.

4. In the case of Suman Devi (supra) it is

clearly held that the statute mandates that an election

petition must be filed within a period of 30 days of the

date of declaration of the result. This period cannot be

extended. The provisions of Section 14 of the Limitation

Act, 1963, would clearly stand excluded. The legislature

having made a specific provision, any election petition

which fails to comply with the statute is liable to be

dismissed.

5. Even in that case when an interlocutory

application was filed by the respondent under Order 7

Rule 11 of CPC, the petitioner who had filed the election

petition sought leave of the Court to withdraw the

election petition and file the same before the competent

court. The Court permitted the petitioner to file the

election petition before the competent Court along with

an application under Section 14 of the Limitation Act,

1963. The Hon'ble Apex Court while noticing these

aspects, held that -

"The grant of liberty to file a fresh election petition cannot obviate the bar of limitation. The fresh election petition filed by the first respondent was beyond the statutory period of 30 days and was hence liable to be rejected."

6. Now that the Hon'ble Apex Court has

clarified the position, the issue brought before this

Court is answered accordingly.

7. For the reasons stated above, the writ appeal

stands disposed of.

Sd/-

JUDGE

Sd/-

JUDGE sdu