Krishnakumari.R v. Akshara Shyju and Vidya M

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944 CRP NO. 157 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OPELE 5/2021 OF PRINCIPAL MUNSIFF** **COURT, PALAKKAD** ## **REVISION PETITIONER:** KRISHNAKUMARI.R, AGED 45 YEARS W/O. SIVARAJAN, RESIDING AT ATTIPPE HOUSE, KALIPARA, KOTTEKKAD P.O, PALAKKAD DISTRICT, PIN 678 732. BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB ## **RESPONDENTS:** 1 AKSHARA SHYJU, AGED 30 YEARS W/O. SHYJU K.N, RESIDING AT KOSAKUZHY HOUSE, KOTTEKKAD P.O, PALAKKAD DISTRICT, PIN 678 732. 2 VIDYA M, W/O. MOHANAN, RESIDING AT KOTTAPALLAM HOUSE, KALIPARA, KOTTEKKAD P.O, PALAKKAD DISTRICT, PIN 678 732. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.P.No.157 of 2022 2** ## **VIJU ABRAHAM, J** ## **================** ## **C.R.P.No.157 of 2022** ## **=======================** Dated this the 26[th] day of May, 2022 ## **ORDER** The above revision petition is filed aggrieved by the order passed by the Munsiff (Principal), Palakkad in I.A No.463 of 2021 in O.P.(Election) No.5 of 2021. 2. The brief facts as averred in the revision petition are as follows: The revision petitioner is the 1[st] respondent in OP(Elec.) No.5 of 2021 on the filed of the Munsiff (Principal), Palakkad. The 1[st] respondent herein, who is the petitioner in the election petition has filed the petition to declare the election of the petitioner herein as void for the reason of improper rejection of a valid postal vote in her favour and declare her as the returned candidate. The election result of Ward No.1 of Marutharod Grama Panchayath was declared on 16.10.2020 and the petitioner herein was declared as the returned candidate. It is aggrieved by the said declaration of result that the O.P.(Elec.) No.5 of 2021 was filed on ## **C.R.P.No.157 of 2022 3** 15.2.2021. Since there was a delay in filing the same it was accompanied by a petition filed under Section 5 and 14 of the Limitation Act r/w S.151 of the Code of Civil Procedure numbered as I.A.No.463/2021 seeking to condone the delay in filing the election petition. The main reason stated in the said petition is that result of the election was declared on 16.10.2020, but on 5.1.2021 the petitioner therein came to know that she had contact with one Ambareesan, who was tested Covid-19 positive on 26.12.2020 and hence she was compelled to undergo to self quarantine for a period of 14 days at her house, i.e from 5.1.2021 to 19.1.2021. Since her physical presence was necessary for filing the petition she could not filed the same within 30 days from the date of result of the election as she was in a self quarantine. It was also further averred in the said petition that the petitioner had approached this Court on 16.1.2021 by filing W.P. (C).No.2775 of 2021 challenging a portion of the notification dated 4.12.2020 of the Kerala State Election Commission and further seeking a direction to recount the postal votes of Ward No.1 of Marutharod Grama Panchayath and that the ## **C.R.P.No.157 of 2022 4** said writ petition was dismissed by this Court on 3.2.2021 by granting liberty to approach the appropriate court by way of an election petition. An application for obtaining a certified copy of the judgment was made on 3.2.2021 itself and the same was obtained only on 12.2.2021 and that 13.2.2021 and 14.2.2021 were second Saturday and Sunday respectively and as the court was closed on those dates she could filed the election petition only on 15.2.2021. Therefore, it is the contention of the petitioner therein that there is no willful laches or delay on her part in filing the election petition within time. Alternatively, it was also contended by the petitioner therein that she is entitled to the benefit of extension of limitation due to the Covid pandemic situation granted as per order dated 23.3.2020 of the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No(s).3/2020. The petitioner herein, the 1[st] respondent in the election petition, entered appearance and filed a detailed counter statement mainly contended that the petition is not maintainable in law or on facts and that the original petition (election) being filed beyond 30 days from 16.12.2020 the same is not ## **C.R.P.No.157 of 2022 5** maintainable and is liable to be dismissed. Since the period of filing the election O.P is not one prescribed under the Limitation Act but under the statute itself, an application filed u/S.5 and 14 of the Limitation Act and Section 151 of Code of Civil Procedure is not maintainable. It is also averred that the contention of the petitioner that she had contact with one Ambareesan, who was tested Covid positive also cannot be believed and the contention that, she could not approached the court within time is also without any basis in as much as she has preferred a writ petition before this Court on 16.1.2021. It was also the contention in the counter statement that the claim of the petitioner that she is entitled to the benefit of delay extension as per the order of the Apex Court is incorrect and unsustainable. The 2[nd] respondent therein has also filed a detailed counter statement practically, adopting the same contention taken by the 1[st] respondent. 3. While considering the said I.A No.463 of 2021 filed seeking to condone the delay in filing the election petition, no evidence was adduced on the side of the petitioner. RW1 was examined and Ext.B1 to B3 were marked on the side of the ## **C.R.P.No.157 of 2022 6** respondents. 4. The trial court after considering the rival contention raised by both sides entered a finding that the provisions of Section 5 and 14 of the Limitation Act is not applicable to the election petition proceedings and in the light of the same, found that the application seeking to condone the delay in filing the election petition is liable to be dismissed. But the court considered the directions of the Apex Court on 23.3.2020 in Suo Motu writ petition (Civil) No(s) 3 of 2020 and M.A.No.665 of 2021 in SMW.(C) No.3 of 2020 in IN RE: Cognizance for extension of limitation and held that the petitioner is entitled to the benefit of the said orders and therefore, the election petition was taken to file. It is the said decision of the court below on 19.2.2022 in I.A.No.463 of 2021 in OP (Elec.) No.5 of 2021, which is assailed in this Civil Revision Petition. The main contention of the counsel for the petitioner is that after having found that an application u/S.5 of the Limitation Act to condone the delay is not applicable to an election petition, the court below had no other choice, but to dismiss the petition and that the court ## **C.R.P.No.157 of 2022 7** below went wrong in entertain the election petition despite dismissing the petition to condone the delay. It is the further case of the revision petitioner that the trial court has invented a case for the petitioner even contrary to her pleadings and the said stand of the trial court is contrary to the provisions of law and therefore liable to be interfered. It is also the contention of the revision petitioner that the pleadings in the election petitions are rigid in nature and once the petitioner pleaded that there is a delay in filing the election petition it was not open to the court below to entertain the petitioner and further that the order of the Supreme Court referred to in the impugned order will not apply to an election petition for the reason that even the special statute does not contain a provision to condone the delay. On the above said contention the revision petitioner sought to set aside the order dated 19.5.2022 in I.A.No.463/2021 in OP(Elec.) No.5/2021. 5. Section 89(1) of the Kerala Panchayat Raj Act 1994 dealing with presentation of election petition, reads as follows: ## **C.R.P.No.157 of 2022 8** _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._ So going by the mandate of Section 89(1) an election petition calling in question any election may be presented within 30 days from, but no earlier than the date on which the returned candidate was declared elected. It is an admitted fact that the election results were declared on 16.12.2020 and going by the provisions of Section 89 of the Panchayat Raj Act, an election petition ought to have been filed within 30 days, i.e on or before 15.1.2021. Admittedly, the election petition was filed only on 15.2.2021 and therefore, it is without any doubt that the election petition was presented beyond the periods stipulated in Section 89 of the Act. It is a case where the election petition was filed accompanied by a petition numbered as I.A.No.463 of 2021, an application filed under Section 5 and 14 of the Limitation Act r/w Section 151 of the Code of Civil Procedure seeking to condone the delay in filing the election petition. It is seen that the petitioner ## **C.R.P.No.157 of 2022 9** has given an explanation for the delay in approaching the court within a period stipulated in S.89 alternatively, she also contended that she is entitled to the benefit of the delay extension granted under the pandemic circumstances granted as per order dated 23.3.2020 of the Supreme Court in Suo Motu Writ Petition(Civil) No(s) 3 of 2020. The trial court after considering the mandate of S.89(1) of the Kerala Panchayat Raj Act and on the basis of the declaration of law by this Court in _**Anandavally v. Ajitha 2001 (3) KLT 758**_ entered a specific finding that an application for condonation of delay filed u/Ss. 5 and 14 of the Limitation Act is not maintainable, in fact accepting the contention of the revision petitioner that the provisions of S. 5 of the Limitation Act to condone the delay is not applicable to an election petition. This view is fortified by the judgment of the Apex Court relied on by the petitioner herein, in _**Suman Devi v. Manisha Devi and Others (2018 KHC 6616).**_ 6. The only grievance raised in this revision petition is to the effect that as a petition to condone the delay is not maintainable in an election petition, the court went wrong in ## **C.R.P.No.157 of 2022 10** further proceeding to accept the election petition to file on finding that the petitioner therein is entitled to the benefit of the orders of the Hon'ble Supreme Court dated 23.03.2020 in Suo Motu Writ Petition (Civil) No(s).3/2020 and M.A.No.665 of 2021 in S.M.W(C) No.3 of 2020 in IN RE:Cognizance for extension of Limitation. To the said portion of the order contained in the impugned order it is the contention of the revision petitioner that the order of the Hon'ble Supreme Court referred to in the impugned order will not apply to the election petition for the reason that even the said statute does not contained a provision to condone the delay. Therefore, the only issued to be resolved in this revision petition is as to whether the order of the Supreme Court referred to above could have any application to the election petition, which is prescribed by the said statute and which does not contain the provision to condone the delay. 7. In this context, it is profitable to refer to the order passed by the Apex Court in Suo Motu writ petition (Civil) No.3 of 2022 in the matter of extension of limitation. In the said order it is specifically stated as follows: ## **C.R.P.No.157 of 2022 11** _i) In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.3.2020 till 14.3.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.3.2020, if any, shall become available with effect from 15.3.2021._ _ii) In cases where the limitation would have expired during the period between 15.3.2020 till 14.3.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.3.2021. In the event of the actual balance period of limitation remaining, with effect from 15.3.2021, is greater than 90 days, that longer period shall apply._ _iii) The period from 15.3.2020 till 14.3.2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos(b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within the court or tribunal can condone delay) and termination of_ ## **C.R.P.No.157 of 2022 12** _proceedings._ From the reading of the above said directions issued by the Apex Court the period from 15.3.2020 till 14.3.2021 could be excluded in computing the period of limitation for any suit, appeal or proceedings. Admittedly, in the present case, the result of the election was declared on 16.12.2020 and the period of limitation for filing the suit expired on 15.1.2021 and that the election petition was filed on 15.2.2021. Therefore, it could be seen that the period of limitation started and the actual filing of the election petition was carried out during the period from 15.3.2020 and 14.3.2021. The said period was excluded by the Apex Court in computing the period of limitation for any suit, appeal or proceedings. Further it is specifically directed that the said period from 15.3.2020, and 14.3.2021 shall stand excluded in computing the period prescribed under the Arbitration and Conciliation Act, 1996, Commercial Courts Act and Negotiable Instruments Act and any other laws which prescribes a period of limitation for instituting proceedings. It can be seen that Section 89 of the Kerala Panchayat Raj Act that the ## **C.R.P.No.157 of 2022 13** said statute itself prescribed a limitation for entertaining an election petition. Therefore, it is without any shadow of doubt that the Apex Court has clearly held that the period from 15.3.2020 till 14.3.2021 shall stand excluded in computing the period prescribed in any other laws, which prescribes period of limitation for instituting proceedings. Therefore, I am of the firm view that the directions issued by the Apex Court in Suo Motu (Civil) No(s) 3 of 2022 is applicable even in a case of an election petition filed as per then provisions of S.89 of the Kerala Panchayat Raj Act. Therefore, the contention of the petitioner that the order of the Hon'ble Apex Court referred to in the impugned order will not apply to an election petition for the reason that the said special statute, i.e Kerala Panchayat Raj Act does not contain the provision to condone the delay is without any basis. It is to be noted that what has been ordered by the Apex Court is excluding the period from 15.3.2020 till 14.3.2021 in computing the period stipulated in any law which prescribes a period of limitation or instituting proceedings and not only for the purpose of condoning of ## **C.R.P.No.157 of 2022 14** delay. In view of the same, the contention of the revision petition that the decision of the Apex Court have no application in as much as the special statute does not a provision to condone the delay is not sustainable and is only to be rejected. 8. The court below has rightly held that Sections 5 and 14 of the Limitation Act is not applicable to the election petition proceedings and in consequently dismissing the petition to condone the delay. But the court below was right in extending the benefit of the orders of the Apex Court and taking the election petition to file, since the election petition was instituted within the period specifically excluded by the Apex Court in the decision referred to above. In view of the above, I find no reason to entertain the above Civil Revision Petition and the same is accordingly, dismissed. sd/- ## **VIJU ABRAHAM, JUDGE** pm