OP(C) No. 261 of 2022

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, ``` ``` 1943 ``` ## **`OP(C) NO. 261 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT IN OPELE 1/2021 OF MUNSIFF ``` ## **`COURT, ADIMALI`** ## **`PETITIONER/1ST RESPONDENTS:`** ``` REKHA RADHAKRISHNAN AGED 47 YEARS W/O. RADHAKRISHNAN, MANGALATHU PUTHENVEEDU, DEVIYAR COLONY, VALARA P.O., ADIMALI, IDUKKI DISTRICT-685561. BY ADVS. LIJI.J.VADAKEDOM JOICE GEORGE TOM E. JACOB ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENTS 2 TO 5`** ``` 1USHA RAMAKRISHNAN AGED 48 YEARS W/O. RAMAKRISHNA PILLAI, RESIDING AT KOUSTHUBAM HOUSE, DEVIYAR COLONY, VALARA P.O., ADIMALI, IDUKKI DISTRICT, PIN-685561. 2VIJI RADHAKRISHNAN, AGED 42 YEARS W/O. RADHAKRISHNAN, PALLANADU DEVIYAR COLONY, VALARA P.O., ADIMALI, IDUKKI DISTRICT, PIN- 685561. 3ANU RATHEESH KUMAR, AGED 32 YEARS W/O. RATHEESH, DEVI VILASAM, DEVIYAR COLONY, VALARA P.O., ADIMALI, IDUKKI DISTRICT, PIN- 685561. 4SABEENA ABDUL KHADER, AGED 33 YEARS W/O. ABDUL KHADER, KOCHUKUDIYIL, DEVIYAR ``` O.P.(C )No261 of 2022 **==> picture [20 x 9] intentionally omitted <==** , ``` COLONY, VALARA P.O., ADIMALI, IDUKKI DISTRICT, PIN-685561. ``` ``` 5ANEES SHANTI, AGED 52 YEARS W/O. SHANTI, CHELAPPURAM, DEVIYAR COLONY, VALARA P.O., ADIMALI, IDUKKI DISTRICT, PIN- 685561. BY ADVS. K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI S.M.PRASANTH G.RENJITH R.S.ASWINI SANKAR T.H.ARAVIND ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C )No261 of 2022 , **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** The petitioner, who is respondent No.1 in O.P. (Election) No.1/2021 on the file of the Munsiff’s Court, Adimaly, is the returned candidate of Ward No.19 of Adimaly Grama Panchayat. Respondent No.1 is the candidate who secured the next largest number of votes in the election. Respondent No.1 filed the above captioned election petition alleging that some of the electors voted in favour of the returned candidate more than once in violation of sub-sections (3) and (4) of Section 76 of the Kerala Panchayat Raj Act,1994 (for short ‘the Act‘). It is alleged that if those electors had not voted in violation of the said provisions, the petitioner/respondent No.1 would not have been defeated. 2. Respondent No.1 filed the election petition before the Munsiff’s Court on 13.01.2021. The petitioner, on getting notice in the election petition, entered appearance and contended that the petition was O.P.(C )No261 of 2022 **==> picture [20 x 9] intentionally omitted <==** **==> picture [4 x 3] intentionally omitted <==** not filed in compliance with Section 89 of the Act. According to the petitioner, the copies of the election petition served on her by respondent No.1 were not attested by her under her own signature. In support of the contention, the petitioner presented Ext.B1, a copy of the election petition, stated to have been served on her. 3. The Trial Court framed a preliminary issue as to whether there was non-compliance of sub-sections (1) and (2) of Section 89 of the Act. While answering the issue, the Trial Court held thus- “Here in this case, on going through Ext.B1, it is seen that, the docket contains seal of the court as on date of filing and none of the other pages are signed by the petitioner or verified by her nor does those pages contains the seal of the court. However, the original petition, duplicate and computer copy available before court contains seal of court in all pages, and is signed by petitioner in all pages and is verified by her. According to petitioner, she had signed not only the original and duplicate but also the copies for the respondents before the Junior Superintendent of the court and the seal of court is missing in all pages of the Ext.B1 except the docket. According to her evidence is to be adduced before deciding O.P.(C )No261 of 2022 **==> picture [20 x 9] intentionally omitted <==** **==> picture [4 x 3] intentionally omitted <==** this issue. During arguments, the counsel for petitioner also raised a contention that an unsigned copy was given to earlier counsel who held vakalath for the respondent on his request and that he suspects manipulation also. Hence strict evidence is required as otherwise it will lead to miscarriage of justice. This court is in consent with the argument of respondent that the signature in the copy is mandatory and the court has to act within the mandates of the Kerala Panchayath Raj Act. But to decide the question, evidence is required as question of fact is also involved. Hence this court cannot discuss the petition now considering the special facts and arguments in the case and the question is to be decided on evidence. Thus Issue No.2 is left open for decision upon evidence. Both parties are directed to co-operate with court for evidence at the earliest and case shall be listed for evidence. Ordered accordingly.” 3. The above order is under challenge in this Original Petition filed under Article 227 of the Constitution of India. 4. Heard Sri. Liji J. Vadakkedom, the learned counsel appearing for the petitioner and Sri. K. Ramakumar, the learned Senior Counsel appearing for respondent No.1. 5. The learned counsel for the petitioner O.P.(C )No261 of 2022 **==> picture [20 x 9] intentionally omitted <==** **==> picture [4 x 3] intentionally omitted <==** contended that the non-compliance of the mandate of Section 89(2) of the Act is to be decided as a preliminary issue and a decision on that issue shall not be adjourned to the stage of final trial and disposal of the election petition. The learned counsel relied on **Kaveri Amma v. Devaki** [1996 KHC 286] in support of his contentions. In **Kaveri Amma** (Supra), a Division Bench of this Court, while considering the mandate of Section 89(2) of the Act, held that the provision makes it obligatory on the part of the petitioner in every election petition to furnish as many copies thereof as there are respondents mentioned in the petition for service on them. Section 89(2) of the Act deals with the form of the petition, which is mandatory. The Division Bench further held that if the election petition filed before the Court is not in conformity with the form, the said election petition is only to be dismissed without going into the merits of the contentions raised therein. 6. The learned Senior Counsel submitted that in O.P.(C )No261 of 2022 **==> picture [20 x 9] intentionally omitted <==** **==> picture [4 x 3] intentionally omitted <==** view of the nature of allegations levelled, the issue regarding the non-compliance of Section 89(2) could be adjudicated only after taking evidence. The challenge of the petitioner in the Trial Court was that respondent No.1 had not signed or verified the copy of the petition provided to her in violation of Section 89(2) of the Act. Respondent No.1 filed a counter affidavit before this Court in which it is alleged that the petitioner had produced a false copy of the election petition prima facie altering some of the pages before the Court. On going through Ext.B1, the Trial Court noted that the docket contains the seal of the Court with the date of filing, and the other pages were not signed by the petitioner or verified by her nor did those pages contain the seal of the Court, whereas the original petition, duplicate and the computer copy available before the Court contain seal of the Court in all pages. Signature of the petitioner was there on all pages and was verified by her. O.P.(C )No261 of 2022 **==> picture [20 x 9] intentionally omitted <==** **==> picture [4 x 3] intentionally omitted <==** 7. In these circumstances, the Trial Court found that the question as to the non-compliance of Section 89(2) of the Act raised by the petitioner can be decided only after adducing evidence as a question of fact is involved. Therefore, the Trial Court left open that issue for decision upon evidence and directed the parties to co-operate with the Court for leading evidence at the earliest. 8. The learned Senior Counsel brought to the notice of this Court, Ext.R1(a), judgment dated 06.12.2021 in O.P.(C) No.2169/2021, by which this Court had directed the Trial Court to dispose of the Original Petition within a period of two months from the date of receipt of a copy of the judgment. In the present case, the Trial Court, in compliance with the mandate of Sections 89 and 93 of the Act and the law declared by the Division Bench in **Kaveri Amma** (Supra) proceeded to consider the non-compliance with Section 89(2). When the Trial Court found that a O.P.(C )No261 of 2022 **==> picture [20 x 9] intentionally omitted <==** , decision on that question was possible only after evidence it left open the question for decision upon evidence. This Court finds no illegality or irregularity in the course adopted by the Trial Court in passing the impugned order. 9. The learned counsel for the petitioner submitted that a direction may be given to the Court below to frame the question of the non-compliance of Section 89(2) of the Act as a separate issue. In the impugned order itself, the Trial Court has made it clear that the issue related to non-compliance is left open. The Trial Court will answer this issue. The parties are at liberty to raise all the contentions during the trial. It is made clear that this Court has observed nothing on the merits of the issues under consideration. The Original Petition is disposed of accordingly. **Sd/K. BABU, JUDGE** kkj ..10.. , ## O.P.(C )No261 of 2022 ## **`APPENDIX OF OP(C) 261/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` THE COPY OF THE ELECTION PETITION IN O.P.(ELECTION) NO.1/2021 DATED 13.1.2021 BEFORE THE MUNSIFF'S COURT, ADIMALY. ``` ``` Exhibit P2 ``` ``` Exhibit P2THE COPY OF THE OBJECTION DATED 30.11.2021 IN O.P.(ELECTION) NO.1/2021 BEFORE THE MUNSIFF'S COURT, ADIMALY. Exhibit P3THE COPY OF THE ORDER DATED 20.1.2022 IN O.P.(ELECTION) NO.1/2021 ON PRELIMINARY ISSUE, BEFORE THE MUNSIFF'S COURT, ADIMALY. ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1(a)TRUE COPY OF JUDGMENT DATED 06/12/2021 IN OPC.NO.2169/2021. ```