Bushra Sulekha v. Mubarak Hassan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 CRP.No. 938 of 2007() --------------------ELEAPPEAL.6/2007 of DISTRICT COURT,TRIVANDRUM OPELE.18/2005 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... REVN. PETITIONER: RESPONDENT/PETITIONER ---------------------------------------------------- BUSHRA SULEKHA, D/O.SULEKHA BEEVI, WARD NO.9, HOUSE NO.190(S/552), THADARIKATHU VEEDU, PANAVOOR VILLAGE, PANAVOOR P.O., NEDUMANGAD, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT: APPELLANT/DEFENDANT --------------------------------------------- MUBARAK HASSAN, D/O.ABDUL RASHEED, WARD NO.8, HOUSE NO.244, ROADARIKATHU VEEDU, PANAVOOR VILLAGE, PANAVOOR P.O., NEDUMANGAD, TRIVANDRUM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2670/2007 IN CRP NO.938/2007 9.6.2008 Dismissed Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.Sasidharan Nambiar,J. ======================= C.R.P No.938 of 2007 ======================= Dated this the 9th day of June, 2008 **==> picture [86 x 15] intentionally omitted <==** Respondent was the elected representative in Ward No.8 of Panavoor Grama Panchayath. Petitioner was one of the candidates who secured the second highest vote in the election. She filed O.P. (Election) 18/2005 before Additional Munsiff Court, Nedumangad challenging the election and to get herself declared as the returned candidate. As per order dated 20.3.2007, election of the respondent was set aside and petitioner was duly elected. Respondent challenged the order before District Court, Thiruvananthapuram in Election Appeal No.6/2007. Learned District Judge under order dated 23.7.2007 allowed the appeal and set aside the order of the Munsiff and remanded the election petition for fresh disposal. The reason for interfering with the order of the Munsiff was that learned Munsiff did not consider the later decision CRP No.938/2007 2 of the Apex Court in **O.Bharathan v. K.Sudhakaran (AIR 1996 SC 1140)** and relied on the earlier decision in **Neelalohithadasan Nadar v. George Mascrene (1994 (1) KLT 887)** and decided the dispute regarding the double voting based on comparison of signature by the court without the aid of the expert. Learned District Judge directed the Munsiff to dispose the election petition afresh after obtaining report of an expert on the identification of the signatures. That order is challenged in this petition filed under section 115 of Code of Civil Procedure. 2. Learned counsel appearing for petitioner and respondent were heard. 3. Learned Munsiff on the evidence of Pws.6 to 21 and comparing the signature seen in the counterfoils found that there was double voting which vitiated the election due to double voting. Learned Munsiff compared the signatures, relying on the decision in Neelalohithadasan Nadar's case (supra). Learned District Judge found that subsequent to the said decision Apex Court in Bharathan's case (supra) held that it is not safe CRP No.938/2007 3 to rely on the comparison of the signature by the court without the aid of an expert. It was also found that the later decision of the Apex Court in Bharathan's case (supra) was not considered by the learned Munsiff. Following the decision in Bharathan's case, the order was set aside and the case was remanded. Learned counsel appearing for petitioner pointed out that the decision in Neelalohithadasan Nadar's case was by a Bench of three Judges while the decision in Bharathan's case by a Bench of two Judges and the decision in Neelalohithadasan Nadar's case was not considered by the later decision at all. It is therefore argued that the decision in Neelalohithadasan Nadar's case is binding on the courts and learned District Judge was not justified in reversing the order of the trial court based on the later decision. 4. Learned counsel appearing for respondent argued that the point considered in Bharathan's case are squarely applicable to the facts of the case and learned Munsiff solely relied on comparison of the signatures in respect of all the CRP No.938/2007 4 disputed votes except one and in view of the decision in Bharathan's case (supra) interference was called for and the order of learned District Judge cannot be interfered. 5. In Neelalothithadasan Nadar's case Apex Court was considering the validity of election on the ground of double voting. In that case High Court had recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation and found that signatures and thumb impression not tallying at all. It was argued before the Apex Court that the High Court should not have acted as the expert and should not have based its decision on its comparison of signature. Apex Court considering the contention held:- “We, however, are of the view that when larger public interest is served by expeditious disposal of an Election Petition, then the course adopted by the High Court, as suggested CRP No.938/2007 5 |from<br>the|aforesaid| |---|---| |-extraction,|is<br>in| |conformity<br>therewith.|| |Although courts should be|| |slow in resorting to this|| |method, we do not find it|| |faulted, more so|when the| |Courts resort to|exercise| |of such power is|approved| |in two other cases of this|| |Court in State (Delhi|| |Administration)|v. Pali| |Ram (1979(1) SCR|931) and| |Murari Lal v.|State of| |Madhya Pradesh|(1980(2)| |SCR 249).<br> As a|sequator| |the finding recorded by|| |the High Court|on Issue| |No.1<br>is|perfectly| |sound.”(underline|| |supplied).|| Though Bharathan's case was decided later the decision of the Full Bench in Neelalohithadasan CRP No.938/2007 6 Nadar's case was not considered by the later Division Bench. Later Division Bench in paragraph 18 of the decision held that on the peculiar facts of that case learned Judge of the High Court erred in taking upon himself the task of comparing the disputed signatures on the counterfoils without the aid of an expert or evidence of persons conversant with the disputed signatures and therefore the approach made by the learned Judge is not in conformity with the spirit of Section 73 of Evidence Act. Relying on the earlier decision in State v. Pali Ram (AIR 1979 SC 14) it was held that the necessity for adhering to the sound advise and guidance is all the more necessary in a case where hundreds of signatures are disputed and there are striking dissimilarities noticed by the court at the time of trial of the Election Petition. It was therefore held:- “The learned counsel appearing for the first respondent was not able to convince us that the learned Judge was right in CRP No.938/2007 7 comparing the signatures himself at any rate in the peculiar facts and circumstances of the case and rendering the findings against the appellant herein. As we are satisfied on the peculiar facts of this case also that the learned Judge was not right in deciding hundreds of the disputed signatures by comparing the counterfoils by himself to declare the votes as void, we need not go into other arguments advanced before us.” 6. As pointed out by the learned counsel appearing for petitioner, the double voting alleged in this case is only 19 and the trial court upheld only 13. Therefore comparison of signatures is not hundreds of signatures as was CRP No.938/2007 8 the case in Bharathan's case. Morever, when Apex Court in Neelalohitha Nadar's case held that when larger public interest is served by expeditious disposal of an Election Petition and comparison of the signature by the court was approved by the Apex Court in State **(Delhi Administration) v. Pali Ram (1979 (1) SCR 931) and Murari Lal v. State of Madhya Pradesh (1980(2) SCR 249),** learned District Judge was not justified in interfering with the decision of the trial court and remanding the petition with a direction to get the disputed counterfoils compared by an expert solely relying on the later decision of the court is not sustainable. Hence the order passed by the learned District Judge is set aside. Civil Revision Petition is allowed. Election Appeal No.6/2007 is remanded to District Court, Thiruvananthapuram for fresh disposal in accordance with law. It is for the learned District Judge to decide whether the finding of the trial court including the comparison of signatures is correct and whether there was double voting as found by the trial court. The CRP No.938/2007 9 District Judge to dispose the appeal as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this order. M.Sasidharan Nambiar Judge tpl/- M.SASIDHARAN NAMBIAR, J. --------------------CRL.R.P.NO. /08 --------------------ORDER MARCH,2008