JAYASREE B. S. v. AJITHAKUMARI, RADHA DEVI, PRIYA (OP(C) No. 2405 of 2013 (O))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **MONDAY, THE 22ND DAY OF JULY 2013/31ST ASHADHA, 1935** ## **OP(C).No. 2405 of 2013 (O)** **-------------------------------------AGAINST THE ORDER IA. 1343/2013 IN OP(ELE) 2/2010 of MUNSIFF COURT,VARKALA ..........** **PETITIONER(S)/1ST RESPONDENT:** **----------------------------------------------------** **JAYASREE B. S., AGED 49 YEARS, D/O. BHASKARA PILLAI, RESIDING AT SREEVIHAR, VENKULAM EDAVA.P.O., TRIVANDRUM DISTRICT-695311.** **BY ADVS.SRI.M.RAJENDRAN NAIR SRI.ABRAHAM P.GEORGE SMT.M.SANTHY** ## **RESPONDENT(S)/PETITIONER AND RESPONDENTS 2 AND 3 IN IA:** **----------------------------------------------------------------------------------------------** **1. AJITHAKUMARI, AGED 35 YEARS D/O. SADASIVAN PILLAI, PALAVILAVEEDU, VENKULAM EDAVA, TRIVANDRIM DISTRICT-695311.** **2. RADHA DEVI, AGED 62 YEARS W/O. SREEDHARAN PILLAI, SARASWATHY SADANAM, VENKULAM EDAVA.P.O., TRIVANDRUM DISTRICT-695311.** **3. PRIYA, AGED 21 YEARS W/O. ANIL, PUTHENVILA, LEKSHMAVEEDU VENKULAM, EDAVA.P.O., TRIVANDRUM DISTRICT 695311.** **R1 BY ADV. SRI.R.ANILKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **OP(C).No. 2405 of 2013 (O)** **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **P1:- COPY OF PETITION IN OP (ELE). 2/2010.** **P2:- COPY OF IA 1413/13 DATED 2-7-13.** **P3 :- COPY OF THE OBJECTION DATED 3-7-13.** **P4:- COPY OF ORDER IA NO. 1343/13 DATED 4-7-13.** **RESPONDENT(S)' EXHIBITS ---------------------------------------** **NIL** **TRUE COPY** **P.S. TO JUDGE** **tss** # **P.N.RAVINDRAN, J. =============================** **O.P.(C)No. 2405 of 2013** **=============================== Dated this the 22[nd] day of July , 2013.** ## **JUDGMENT** The petitioner in this original petition is the first respondent in O.P. (Ele) No.2 of 2010 on the file of the Court of the Munsiff of Varkala. The first respondent is the petitioner and respondents 2 and 3 are the other respondents therein. Election to Ward No.7 of Edava Grama Panchayath was held on 23.10.2010. The petitioner and the respondents contested in the elections. Out of the 781 votes polled, 21 votes were found to be invalid. The petitioner secured 260 votes, the first respondent 259, the second respondent 203 and the third respondent 37 votes. After the results were declared, the first respondent filed O.P.(Ele)No.2 of 2010 for a declaration that the election of the petitioner herein from Ward No.7 of Edava Grama Panchayath is void and to declare her elected. She contended that the petitioner herein, who is the returned candidate, has received three void votes cast O.P(C)No.2405/2013 -:2:- by three voters whose names appear in the voters list in respect of Ward No.7 of Edava Grama Panchayath as also in other Municipalities/Grama Panchayaths. The details thereof are furnished in A and B schedule to O.P.(Ele)No.2 of 2010. 2. The trial of O.P.(Ele) commenced on 13.6.2013. On that day, seven witnesses including four officers and the three voters named in A Schedule to the election petition were examined. After the seven witnesses were examined, first respondent herein filed I.A.No.1343 of 2013 under section 151 of the Code of Civil Procedure for issuing summons to the three witnesses named in the witness list submitted along with the said application. The petitioner herein filed objections contending that the application is belated and on the terms of Order XVI Rule 1 of the Code of Civil procedure, the relief prayed for cannot be granted. The trial court allowed the said application by Ext.P4 order passed on 4.6.2013. Hence, this original petition. 3. I heard Sri.Abraham P.George, learned counsel appearing for the petitioner and Sri.R.Anil Kumar, learned counsel appearing for the first respondent. Though the other respondents O.P(C)No.2405/2013 -:3:- have been served, they have not entered appearance. Sri.Abraham P.George, learned counsel appearing for the petitioner, contended relying on Order XVI Rule 1 of the Code of Civil Procedure that as the instant application was not filed before the date fixed by the trial court for settlement of issues or within 15 days from the date on which issues were settled, the first respondent could not have sought the assistance of the court to bring the witnesses named in the list filed along with I.A.No.1343 of 2013 to give evidence on her behalf. The learned counsel placed reliance on the decision of the Apex Court in _**Lalitha J.Rai v. Aithappa Rai,**_ AIR 1995 SC 1984. Per contra, Sri.R.Anil Kumar, learned counsel appearing for the first respondent, contended that under Order XVI Rule 1-A of the Code of Civil Procedure it is open to the first respondent to bring the witnesses to give evidence in court without the assistance of the court and therefore, the mere failure to obtain summons through court for the attendance of the witnesses does not prevent the first respondent from examining the three witnesses cited in the list of witnesses filed along with I.A.No.1343 of 2013. O.P(C)No.2405/2013 -:4:- 4. I have considered the submissions made at the Bar by the learned counsel on either side. The Apex Court has in the very decision relied on by the learned counsel appearing for the first respondent, ( _**Lalitha J.Rai v. Aithappa Rai,**_ AIR 1995 SC 1984) held that the Legislature did not put a total prohibition on the party producing witnesses or the production of documents for proving their respective cases and that when they seek the assistance of court they are enjoined to state the reason as to whey they have not filed the application within the time prescribed under Order XVI Rule 1 of the Code of Civil Procedure and that on the terms of Rule 1-A if they fail to obtain the summons through court for attendance of witnesses, they are at liberty to have the witnesses brought without the assistance of the court. The same view was taken by the Apex Court in _**Mange Ram v. Brij Mohan,**_ AIR 1983 SC 925. In such circumstances as it is open to the first respondent to produce the witnesses, whom she proposes to examine, without the assistance of the court and the learned counsel appearing for the first respondent had, during the course of the arguments, submitted that the first O.P(C)No.2405/2013 -:5:- respondent/petitioner in the court below will produce the witnesses cited in the list of witnesses appended with I.A.No.1343 of 2013, I am of the opinion that no interference is called for with the impugned order. The original petition is accordingly disposed of, permitting the first respondent to have the three witnesses cited by her in the list of witnesses accompanying I.A.No.1343 of 2013 produced and examined as witnesses instead of being summoned and brought to court to be examined as witnesses. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------O.P.(C).No.2405 of 2013 ----------------------------** ## **JUDGMENT** **22[nd] July, 2013**