Ashkar Pa vs Basheer A E
2021 Latest Caselaw 19814 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
     THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                          OP(C) NO. 329 OF 2021
      (IN UN-NUMBERED O.P (ELECTION) NO.**   OF 2021 (FILING NO)
      ECF0300162/21   OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM)
PETITIONER/S:

           ASHKAR PA
           AGED 34 YEARS
           S/O. ABOOBACKER, 7/373, PANAYAPPILLI, PALLILAMKARA,
           KALAMASSERY, ERNAKULAM DISTRICT-683 503

           BY ADVS.
           K.M.FIROZ
           SMT.M.SHAJNA



RESPONDENT/S:

           BASHEER A E
           AGED 43, S/O. EBRAHIM A.A., AYYAMBRATH HOUSE, NORTH PIPE
           LINE ROAD, H.M.T COLONY POST, KALAMASSERY, ERNAKULAM
           DISTRICT-683 503

           BY ADVS.
           SRI.PHILIP T.VARGHESE
           SRI.THOMAS T.VARGHESE
           SMT.ACHU SUBHA ABRAHAM
           SMT.V.T.LITHA
           SMT.K.R.MONISHA
           SMT.SHRUTHI SARA JACOB




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 329 OF 2021
                                      2



                                JUDGMENT

Dated this the 23rd day of September, 2021

This original petition is filed aggrieved by the return of the plaint

presented by the petitioner before the Principal Munsiff's Court,

Ernakulam challenging the election of the respondent to Ward No.11

of the Kalamassery Municipality in the election to the Local Self

Government Institution conducted on 10.12.2021. The plaint is

returned as time barred, having been presented beyond the time

prescribed under Section 165 of the Kerala Municipality Act( 'the Act'

for short). As per Section 165 of the Act, " An election petition calling

in question any election has to presented within 30 days from, but not

earlier than, the date of election of the returned candidate." In the

instant case, the results were declared on 15.1.2021 and the plaint

was presented on 27.1.2021. Therefore, going by the mandate of

Section 165 of the Act, the plaint was presented beyond time.

2.Learned counsel for the petitioner points that in view of the

rampant spread of Covid Pandemic and the restricted functioning of

the Courts, the Honourable Supreme Court had, by order dated OP(C) NO. 329 OF 2021

23.3.2020 in suo motu W.P(C) No. 3 of 2020 ("In Re: cognizance for

Extension of Limitation"), extended the period of limitation prescribed

under the general law of limitation or under special laws (both central

and / or State). Thereafter, the limitation period extended from time

to time. Specific reference is made to the first order dated 23.3.2020,

the relevant portion of which reads as under :-

"This Court has taken Suo Motu cognizance of the situation

arising out of the challenge faced by the country on account of

Covid-19 Virus and resultant difficulties that may be faced by

litigants across the country in filing their petitions / applications/

suits/ appeals / all other proceedings within the period of

limitation prescribed under the general law of limitation or under

Special Laws ( both central and / or State).

To obviate such difficulties and to ensure that lawyers /

litigants do not have to come physically to file such proceedings

in respective Courts/ Tribunals across the country including this

Court, it is hereby ordered that a period of limitation in all such

proceedings, irrespective of the limitation prescribed under the

general law or Special Laws whether condonable or not shall

stand extended w.e.f 15th march 2020 till further order/s to be OP(C) NO. 329 OF 2021

passed by this Court in present proceedings.

We are exercising this power under Article 142 read with

Article 141 of the Constitution of India and declare that this

order is a binding order within the meaning of Articles 141 on

all Courts / Tribunals and authorities.

This order may be brought to the notice of all High Courts

for being communicated to all subordinate Courts/ Tribunals

within their respective jurisdiction."

3. Learned counsel referred to the subsequent orders by

which the Honourable Supreme Court had extended the period of

limitation. It is hence contended that the period stipulated under

Section 165 of the Act also stood extended and the learned Munsiff

committed an illegality in returning the plaint as time barred.

4. Learned counsel for the respondent contended that the

petitioner was fully aware of the period stipulated in Section 165

and therefore, irrespective of the orders in the Honourable

Supreme Court, he was bound to present the plaint within time. It

is further contended that absolutely no reason is stated for filing

the plaint beyond time and therefore the learned Munsiff has fully OP(C) NO. 329 OF 2021

justified in returning the plaint.

5. Heard the learned counsel on either side and having

perused the orders of the Honourable Supreme Court, I have no

doubt that the period prescribed as per Section 165 of the Act also

stood extended by the orders issued in exercise of the power under

Article 141 of the Constitution of India. As such, the plaint should

not have been returned on the premise that it was presented

beyond the time stipulated under Section 165.

In the result, the original petition is allowed. The Principal

Munsiff Court, Erankulam shall accept the original petition on its

file.

Sd/-

V.G ARUN JUDGE

SJ OP(C) NO. 329 OF 2021

APPENDIX OF OP(C) 329/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF UN-NUMBERED O.P. (ELECTION) PRESENTED ON 27.01.2021 BEFORE THE MUNSIFF'S COURT, ERNAKULAM HAVING FILING NO.

ECF0300162/21.

EXHIBIT P1 A TRUE COPY OF ENDORSEMENT DATED 27.01.2021 ON THE BACK SIDE OF UN-NUMBERED O.P. (ELECTION) MADE BY THE PRINICPAL MUNSIFF'S COURT, ERNAKULAM.

EXHIBIT P2 TRUE COPY OF ORDER DATED 23.03.2020 IN SUO MOTU WRIT PETITION (CIVIL) NO. 3 OF 2020 PASSED BY HON'BLE SUPREME COURT OF INDIA.

EXHIBIT P3 TRUE COPY OF ORDER DATED 17.12.2020 IN CIVIL APPEAL NO. 4085 0F 2002 PASSED BY HON'BLE SUPREME COURT OF INDIA.