Biju Kuriyakoose S/o KuriaKose v. Kunjappan Painkily S/o Painkily; John Paily S/o Paily; Anitha Baby Member, Thirumarady Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935** **OP(C).No. 3931 of 2013 (O) ---------------------------** ## **PETITIONER(S)/PETITIONER:** **-------------------------** **BIJU KURIAKOSE S/O KURIAKOSE, THARAMADATHIL, THIRUMARADI P.O. ERNAKULAM DISTRICT, PIN:686 662.** **BY ADVS.SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. KUNJAPPAN PAINKILY S/O PAINKILY, MULAMATTAKOTTIL, THIRUMARADI P.O. ERNAKULAM DISTRICT, PIN:686 662.** **2. JOHN PAILY S/O PAILY, KIZHAKKUMCHERIL, MANNATHUR P.O. ERNAKULAM DISTRICT, PIN:686 667.** **3. ANITHA BABY MEMBER, THIRUMARADY GRAMA PANCHAYAT, THIRUMARADY P.O. PIN:686 662.** **R1 BY ADV. SRI.K.RAMAKUMAR (SR.) R1 BY ADV. SRI.S.M.PRASANTH R1 BY ADV. SRI.K.T.SIDHIQ R1 BY ADV. SRI.M.MANOJKUMAR (CHELAKKADAN) R1 BY ADV. SMT.ASHA BABU R1 BY ADV. SMT.AMMU CHARLES** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RKC** **OP(C).No. 3931 of 2013 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1: COPY OF THE PETITION O.P.53/2013 ON THE FILE OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** **EXHIBIT P2: COPY OF THE PETITION O.P.51/2013 ON THE FILE OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** **EXHIBIT P3: COPY OF THE PETITION O.P.52/2013 ON THE FILE OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** **EXHIBIT P4: COPY OF THE OBJECTION FILED IN OP 53/2013 OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** **EXHIBIT P5: COPY OF THE PETITION I.A.128/2013 OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** **EXHIBNIT P6: COPY OF ORDER IN I.A.128/2013 IN O.P.51 TO 53/2013 OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXHIBIT R1(a): TRUE COPY OF THE JUDGMENT DATED 7.11.2013 IN WP(C) 27286/2013** ## **RKC** ## **TRUE COPY** **PA TO JUDGE** ## **P.N.RAVINDRAN, J.** ## **------------------------------O.P.(C).No.3931 of 2013 --------------------------------Dated this the 20[th] day of November, 2013** ## **JUDGMENT** The petitioner herein is the respondent in O.P.No.53 of 2013, a petition filed by the first respondent herein before the State Election Commission under section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 praying for an order declaring the petitioner to be disqualified to continue as a member of Thirumaradi Grama Panchayat. The said petition is rested on the allegation that the petitioner herein voted against the President of the Grama Panchayat, a candidate sponsored by the United Democratic Front and thereby disobeyed the instructions of the political party of which he is a member. The first respondent herein had filed two other petitions containing similar averments against respondents 2 and 3 herein, as O.P.Nos.51 and 52 of 2013 respectively. When the petitions stood posted before the Kerala State Election Commission on 30.10.2013, the first respondent herein filed I.A.No.128 of 2013 joining the respondents in the three petitions as parties wherein he prayed for joint trial of O.P.Nos. 51, 52 and 53 of 2013, taking O.P.No.52 of 2013 as the leading case. Though the petitioner herein and respondents 2 and 3 prayed for time to file objections that request was rejected and the application O.P.(C).No.3931 of 2013 ..2.. for joint trial was allowed by Ext.P6 order passed on 18.10.2013. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India. 2. The principal contention raised in the instant original petition is that the State Election Commission ought to have granted the petitioner an opportunity to file objections to Ext.P5 application and the Commission should not have ordered joint trial without affording him an opportunity to file objections. It is also contended that the State Election Commission lost sight of the significant fact that the respondents in the different petitions are the sole respondents therein and that the Commission has not applied the principles governing joint trial of cases when it passed the impugned order. The first respondent has entered appearance through counsel and filed I.A.No.15365 of 2013 praying that the interim order of stay passed in the instant original petition may be vacated. He has in the affidavit filed in support of the application averred that this Honourable Court has by Ext.R(1) a judgment delivered on 7.11.2013 in W.P.(C) No.27286 of 2013 directed the State Election Commission to try and dispose of O.P.Nos.51, 52 and 53 of 2013 expeditiously and that the instant original petition has been filed suppressing the said fact. It is contended that every ## O.P.(C).No.3931 of 2013 **==> picture [20 x 9] intentionally omitted <==** time when the petition was posted before State Election Commission, the petitioner was seeking time with a view to prolong the proceedings and to avoid disqualification. 3. I heard Sri.S.Vinod Bhat, learned counsel appearing for the petitioner and Sri.K.Ramkumar, learned Senior Advocate appearing for the first respondent. Sri.S.Vinod Bhat, learned counsel appearing for the petitioner contended relying on the decision of the Division Bench of this Court in **Navabharat Vignan Trust** v. **Gopakumar** [2013 (1) KLT 310] that a joint trial of suits can be ordered only if a common question of law or common question of fact arises in all the suits and in all the suits the right to relief must be in respect of or arising out of same act or transaction or same series of acts or transactions and all the parties in the suit which is sought to be transferred must be present in the suit with which joint trial is sought. The learned counsel contended that the respondents in the respective petitions may have different defences, that in all of the petitions which are pending before the Election Commission there is only one respondent, that all the respondents are not parties to all of the cases and therefore, the Election Commission erred in ordering a joint trial of the cases. The learned counsel contended that in any view of the matter the O.P.(C).No.3931 of 2013 ..4.. Election Commission ought to have afforded the petitioner an opportunity to file objections to I.A.No.128 of 2013 before proceeding to decide the application on the merits. 4. Per contra Sri.K.Ramkumar, learned Senior Advocate appearing for the first respondent contended that the common thread which runs through all the petitions seeking disqualification of the petitioner and respondents 2 and 3 is that they have violated the whip issued by the party, that the cause of action for the three petitions is the violation of the whip, that a common question of law arises in all the cases, that the right to relief sought is in respect of the same act namely the act of violation of the whip and therefore no exception can be taken to the impugned order. The learned Senior Advocate contended that in the light of the averments in the three petitions, no exception can be taken to the order passed by the State Election Commission. 5. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. A reading of O.P.Nos.51, 52 and 53 of 2013 discloses that they are identically worded and that the cause of action for the petitions arose on 29.7.2013 when the respondents in the respective petitions before the State Election O.P.(C).No.3931 of 2013 ..5.. Commission voted against the President of the Panchayat, contrary to the whip issued by the party. The relevant averments contained in paragraphs 5 to 11 of the respective petitions are identically worded. It is evident from a reading of the petitions that a common question of law or a common question of fact namely whether a whip was validly issued and the whip was violated, arises in all the three cases. From a reading of the petitions, it is also evident that the right to relief arises out of the same act or same transaction. In such circumstances, I am of the opinion that no exception can be taken to the impugned order. From a reading of the three petitions, it is also evident that the first respondent herein could have filed a single petition joining the different respondents in the three petitions as parties and sought their disqualification. 6. In such circumstances, the mere fact that three separate cases were filed and the respondent in the each of the cases are not parties to the other petitions is not a ground to interfere with the impugned order. The contention that since all the parties are not present in the petition with which joint trial is sought cannot therefore be a ground to reject the request for joint trial as the other conditions for a joint trial are satisfied. I therefore find no reason why merely for the reason that the petitioner was not O.P.(C).No.3931 of 2013 **==> picture [20 x 9] intentionally omitted <==** afforded an opportunity to file objections, the impugned order should be interfered with. I accordingly hold that there is no merit in the instant original petition. It fails and is dismissed. sd/- **P.N.RAVINDRAN, JUDGE.** rkc.