Kerala High Court
Anjali Nath vs C.B.Krishna Chandran on 14 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943
OP(C) NO. 837 OF 2021
AGAINST THE ORDER IN I.A.no.2/2021 in OP(Election) 2/2021
OF MUNSIFF COURT, SASTHAMCOTTA, KOLLAM
PETITIONER/1ST RESPONDENT:
ANJALI NATH, AGED 34 YEARS
W/O. BIJUKUMAR, KOIPURATHU HOUSE, KUNNIRADOM,
SOORANADU NORTH PANCHAYATH, KUNNATHOR TALUK,
KOLLAM-691 522.
BY ADVS.
C.RAJENDRAN
SRI.B.K.GOPALAKRISHNAN
RESPONDENTS/PETITIONER AND RESPONDENTS 2 TO 4:
1 C.B.KRISHNA CHANDRAN
AGED 34 YEARS
S/O. CHANDRASEKHARA PILLAI, ARUNODAYAM,
KUNNIRADOM, SOORANADU NORTH PANCHAYATH,
KUNNATHOOR TALUK, KOLLAM-691 522.
2 DEEPU RAJ,
AGED 28 YEARS
S/O. NADARAJAN, DIVYA VILASAM, SOORANADU NORTH
PANCHAYATH, KUNNATHOOR TALUK, KOLLAM-691 522.
3 REJI,AGED 34 YEARS
S/O. RAMAN, ELAYASSERIL THEKKATHIL, KUNNIRADOM,
SOORANADU NORTH PANCHAYATH, KUNNATHOOR TALUK,
KOLLAM-691 522.
4 RETURNING OFFICER,
SOORANAD NORTH PANCHAYATH, (ASST. REGISTRAR OF
CO-OPERATIVE SOCIETY, SASTHAMCOTTA).
BY ADVS.
T.C.SURESH MENON
B.DEEPAK
SR.GP K.DENNY DEVASSY
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2022, THE COURT ON 14.01.2022 DELIVERED THE
FOLLOWING:
O.P(C).No.837/2021 2
"C.R"
A. BADHARUDEEN, J.
================================
O.P(C).No.837 of 2021
================================
Dated this the 14th day of January, 2022
JUDGMENT
In this Original Petition filed under Article 227 of the
Constitution of India, Ext.P4 order dated 02.03.2021 in
I.A.No.2/2021 in O.P(Election) 2/2021 on the file of the Munsiff
Court, Sasthamcotta, is under challenge at the instance of the 1st
respondent in the above election petition.
2. Heard the learned counsel for the petitioner as well as
the contesting respondents.
3. Facts of the case:
O.P(Election) 2/2021 is an application filed under Sections
87 and 89 of the Kerala Panchayat Raj Act, 1994 by one
C.B.Krishna Chandran against respondents 1 to 4. The specific
assertion in the Election Petition is that 5 candidates voted for the
1st respondent cast double vote and therefore the election sought
to be set aside. During the pendency of the Election Petition, the
petitioner herein filed I.A.No.2/2021 contending that the Election
Petition is not maintainable. The reason for challenge, as could
be gathered from para.6 and 7 of the affidavit in support of this
petition, is as under:
"6. Section 87 to 92 of Chapter X of the Act deals with
presentation of election petition. Section 89 of the Act reads as follows:
89. Presentation of petitions:- (1) An election petition calling in
question any election may be presented on one or more of the grounds
specified in Section 102 and 103, to the appropriate Court as specified
in Section 88, by any candidate at such election or by any elector
within 30 days from, but not earlier than, the date on which the
returned candidate was declared elected. For clarity regarding the
word elector it is explained that elector means a person who was
entitled to vote at the election to which the election petition relates,
whether he has voted at such election or not. So, section 89 of the Act
is very clear regarding the presentation of election petition. The
election petition should be presented by a candidate or by an elector in
person. The requirement is that the election petitioner should take the
full responsibility for what is averred in the election petition.
7. This original election petition is not presented by the
election petitioner in person. It is presented by an Advocate.
Presentation of election petition by an Advocate is not sufficient and is
against the provisions of the Act. In this case the docket of the original
petition reveals the fact that the original petition was presented by the
Counsel. Only the initials and seal of the Counsel is seen in the Docket.
The name of the presenting party or his signature or initial is not seen
in the docket. There is specific provision in the Civil Rules of Practice
regarding Docketing. Rule 26 of CRP deals with docketing. Rule 26
reads as follows: 26. Docketing:- All proceedings and other
documents filed in Courts shall be docketed on the reverse of the final
page endorsing the name of the Court, the number and year of the
suit or other proceeding to which it relates, the name of the person
presenting the same and the date of presentation in Court. In
addition to the above particulars, in the case of a plaint,
memorandum of appeal or petition, an abbreviated cause title and
short description of its contents shall also be given in the document as
in form No.11. There is specific form for docketing. Here in this case
in the docket, the presenting person's name is specifically recorded as
Parippally R.Raveendran, Advocate and Notary, ENR No.427/81, Mob.
9447092690. Hence it is very clear that the present election petition is
not presented by C.B.Krishnachandran, the election petitioner but his
Counsel Parippally R.Raveendran."
4. The election petitioner filed objection to the petition
mainly contending that the election petition was filed by the
election petitioner himself and not by the Advocate. The specific
assertion in para.5 of the counter filed by the election petitioner is
as under:
"The election petition is filed by the election petitioner
himself and not by the Advocate."
Another challenge in the election petition is, no grounds
contemplated under Section 103 of the Kerala Panchayat Raj Act
has been raised in this petition and in view of the matter also, the
election petition is not maintainable. The learned Munsiff
appraised the contentions and negatived the same as per Ext.P4
order dated 02.03.2021.
5. The learned counsel for the petitioner urged that going
by the docket of the election petition (a copy of the same is
produced before this Court), it could be gathered that Advocate
Parippally R. Raveendran filed election petition and there is no
whisper in the docket stating that the election petition was one
filed by the election petitioner. In the counter filed by the
election petitioner, as I have already extracted, it has been
specifically averred that the election petition was one filed by the
petitioner himself and not by the counsel. In this scenario, the
crucial question is whether the non mentioning of presentation of
the petition by the petitioner himself in the docket sheet alone can
be the base for finding that the election petition was not one filed
by the petitioner. The learned counsel for the petitioner herein
placed decisions reported in [1969 KHC 417], Sheodan Singh v.
Mohan Lal Gautam to contend that election petition shall be
filed by the petitioner himself and petition presented to Registry
by the Advocate's Clerk in the immediate presence of the
petitioner is also substantial compliance. In fact, the ratio has no
relevance in this particular case which was rendered by
interpreting the relevant provisions of the Representation of the
Peoples Act, 1951. That apart, here, in the counter filed by the
election petitioner specific assertion is made to the effect that he
himself had presented the application. Another decision placed
by the learned counsel for the petitioner is one reported in 1997
KHC 159 : 1997 (1) KLT 855 : ILR 1997 (2) Ker. 848],
Saraswati v. Kamala. In the said decision, while holding that a
revision from dismissal of an appeal under Section 113 of the
Kerala Panchayat Raj Act would lie before this Court, it has been
held that election petition should be presented by the candidate
and presentation of the same by the counsel is insufficient.
Sections 87 to 92 of Chapter X of Kerala Panchayat Raj Act deals
with presentation of Election Petitions. Section 89(1) provides
that an election petition calling in question any election may be
presented on one or more of the grounds specified in Section 102
and Section 103, to the appropriate Court as specified in Section
88, by any candidate at such election or by any elector within
thirty days from, but not earlier than, the date on which the
returned candidate was declared elected.
Explanation:-- In this sub-section, "elector" means a
person who was entitled to vote at the election to which the
election petition relates, whether he has voted at such election or
not.
6. So the legal position is not in dispute that an election
petition shall be filed by the election petitioner himself. It is true
that Rule 26 of the Civil Rules of Practice dealing with docket or
proceedings in civil matters provides that all proceedings and
other documents filed in Court shall be docketed on the reverse
of the final page endorsing the name of the Court, the number
and year of the suit or other proceeding to which it relates. It is
further provided that it shall contain the name of the person
presenting the same and the date of presentation in Court.
According to the petitioner, "the name of the person presenting
the same is mandatory as per Rule 26". As per the copy of the
docket made available before this Court, in fact, nothing stated as
to who presented the same in specific terms. In the docket the
name of the petitioner is shown and name of the petitioner's
counsel is also shown. In a docket, where the name of the
petitioner and the name of the counsel is shown, there is no
reason to doubt at the very inception that the petition was not
filed by the petitioner. In this case, when the election petitioner
raised a contention before the trial court that he himself presented
the election petition, whether the petitioner himself had
presented the election petition or the same was presented by his
counsel or by both, are matters of evidence and therefore, the
contention raised by the petitioner on this counter cannot be
found in favour of the petitioner at this stage. Therefore, I
confirm the finding of the trial court and this issue left open to be
decided during trial based evidence.
7. The second challenge raised and argued before this
Court is that in the election petition no specific grounds stated
regarding the maintainability of the election petition. However,
in the impugned order the learned Munsiff referred Section
102(1)(d) and clause (i) to (iv) thereunder to hold that sufficient
pleadings are there in the election petition. In this connection, I
am inclined to refer Section 102 of the Kerala Panchayat Raj Act,
1994. Section 102(b) provides that any corrupt practice has been
committed by a returned candidate or his election agent or by any
other person with the consent of a returned candidate or his
election agent, shall be a ground for declaring election to be void.
Here casting of double vote by 5 candidates is the main ground
alleged to unsustain the verdict, when the opponent declared
elected by a margin of 3 votes. The same would come under the
purview of corrupt practice and therefore it cannot be said that
the election petition lacks necessary pleadings as regards to
grounds enumerated under Section 102 of the Panchayat Raj Act.
Overall evaluation of the evidence, I have no hesitation to hold
that the order impugned is perfectly in order and the same in no
way either perverse or arbitrary. Therefore, I am inclined to
confirm the order.
8. In the result, this O.P(C) fails and is dismissed
accordingly.
It is specifically made clear that the petitioner can agitate
non compliance of mandate under Section 89 during final hearing
of the election petition on the basis of evidence.
Sd/-(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(C) 837/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 A TRUE PHOTOCOPY OF THE OP(ELECTION)
DATED 08.01.2021.
EXHIBIT P2 A TRUE COPY OF THE PETITION FILED BY
THE PETITIONER BEFORE THE MUNSIFF
COURT, SASTHAMCOTTA, KOLLAM DATED
09.02.2021.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE OBJECTION IN IA
NO. 2/2021 FILED BY 1ST RESPONDENT.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE ORDER IN IA NO.
2/2021 IN OP (ELECTION) 2/2021 OF THE
MUNSIFF COURT, SASTHAMCOTTA, DATED
2/03/2021.
