Anjali Nath v. C.B. Krishna Chandran and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 14[TH] 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 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.837 of 2021_ ================================ _Dated this the 14[th] day of January, 2022_ ## _**J U D G M E N T**_ 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. **==> picture [36 x 56] intentionally omitted <==** 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 O.P(C).No.837/2021 3 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_ O.P(C).No.837/2021 4 _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: O.P(C).No.837/2021 5 _“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 O.P(C).No.837/2021 6 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 O.P(C).No.837/2021 7 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 O.P(C).No.837/2021 8 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 O.P(C).No.837/2021 9 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 O.P(C).No.837/2021 10 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. S _d_ /- _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.837/2021 11 ## **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.