Rekha Radhakrishnan vs Usha Ramakrishnan and Others (OP(C) No. 1069 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **OP(C) NO. 1069 OF 2022** **AGAINST THE ORDER DATED 28.05.2022 IN I.A.NO.2/2022 IN O.P(ELECTION) NO.1/2021 BY THE MUNSIFF COURT, ADIMALY** ## **PETITIONER/1ST RESPONDENT:** **REKHA RADHAKRISHNAN, AGED ABOUT 47 YEARS, W/O.RADHAKRISHNAN, MANGALATHU PUTHENVEEDU, DEVIYAR COLONY, VALARA.P.O., ADIMALY, IDUKKI DISTRICT - 685 561** **BY ADV SUMAN CHAKRAVARTHY** ## **RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 5:** **1 USHA RAMAKRISHNAN, AGED 48 YEARS, W/O.RAMAKRISHNA PILLAI, RESIDING AT KOUSTHABAM HOUSE, DEVIYAR COLONY, VALARA.P.O., ADIMALY, IDUKKI DISTRICT - 685 561** **2 VIJI RADHAKRISHNAN, AGED ABOUT 42 YEARS, W/O.RADHAKRISHNAN, PALLANADU, DEVIYAR COLONY, VALARA.P.O., ADIMALY, IDUKKI DISTRICT - 685 561** **3 ANU RATHEESH KUMAR, AGED ABOUT 32 YEARS, W/O.RATHEESH, DEVI VILASAM, DEVIYAR COLONY, VALARA.P.O., ADIMALY, IDUKKI DISTRICT - 685 561** **4 SABEENA ABDUL KHADER, AGED ABOUT 33 YEARS, W/O.ABDUL KHADER, KOCHUKUDIYIL, DEVIYAR COLONY, VALARA.P.O., ADIMALY, IDUKKI DISTRICT - 685 561** ## **O.P.(C)No.1069 of 2022** **2** **5 ANEES SHANTI, AGED ABOUT 52 YEARS, W/O.SHANTI, CHELAPPURAM, DEVIYAR COLONY, VALARA.P.O., ADIMALY, IDUKKI DISTRICT - 685 561** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)No.1069 of 2022** **3** ## **JUDGMENT** ## **Dated this the 22[nd] day of June, 2022** The petitioner assails the order in I.A.No.2/2022 in O.P (Election) No.1/2021 (Ext.P8) passed by the Court of the Munsiff, Adimaly. 2. The petitioner's case, in brief, in the memorandum of original petition is that, she is the first respondent in O.P (Election) No.1/2021 which is filed by the first respondent in this original petition, who had secured the next highest number of votes in the election to ward No.19 of Adimaly Grama Panchayat. The 1st respondent has alleged in Ext.P1 amended plaint that there was double voting by six voters. But, no document has been produced to substantiate the allegation. The petitioner has denied the allegations in the original plaint by filing Ext.P2 written objection. She has also filed Ext.P3 additional written statement **O.P.(C)No.1069 of 2022** **4** to the amended Ext.P1 plaint. The 1st respondent was examined as PW1. After her cross-examination, she has filed Ext.P6 application, to summon witness No.7 - the Panchayat Secretary of Adimaly Grama Panchayat, to produce the marked voters list and signed registered voters of the election to ward Nos.19 and 21 of the Panchayat. The petitioner has opposed the application by filing Ext.P7 objection. However, the court below, without considering Ext.P7 objection, has allowed Ext.P6 by the impugned Ext.P8 order. Ext.P8 is erroneous and unsustainable in law. Hence, the original petition. 3. Heard Sri.Suman Chakravarthy, the learned counsel appearing for the petitioner, on admission. 4. Sri.Suman Chakravarthy has strenuously argued that Ext.P8 order is untenable because the court below has not adverted to Ext.P7 objection and has in a cursory manner allowed Ext.P6 application, against the well established principles of law laid down **O.P.(C)No.1069 of 2022** **5** by the Honourable Supreme Court in **Fulena Singh v. Vijay Kumar Sinha and Others (2009) 5 SCC 290, Markio Tado v. Takam Sorang and Others (2012) 3 SCC 236 and Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and Another (2014) 5 SCC** **312** in election matters. He argued that the Honourable Supreme Court has categorically held that the inspection of election papers shall not be done as a matter of course and cannot be used for conducting a roving enquiry, that too to fish out materials to derive support of one's case. Likewise, the court should be satisfied that a prima facie case is established and there should be material facts pleaded regarding the irregularities in counting of votes, and further the secrecy of the ballot should be guarded. Thus, he contended that Ext.P8 order passed by the court below will arm the 1[st] respondent to have a roving enquiry and improve her case on the basis of the material **O.P.(C)No.1069 of 2022** **6** sought to be summoned and brought on record. Hence, Ext.P8 order is to be interfered with. 5. The point that arises for consideration in this original petition is whether there is any illegality or irregularity in Ext.P8 order. 6. Ext.P6 application was filed by the 1[st] respondent to issue summons to witness No.7 in the witness list, namely the Panchayat Secretary of Adimaly Grama Panchayat to produce the marked voters list and signed register of the voters of the election to Ward Nos.19 and 21 of Adimaly Grama Council in Idukki District held on Panchayat 08.12.2020. The application was resisted by the petitioner, who had filed Ext.P7 objection, contending that the 1[st] respondent has not made out a prima facie case for production of the electoral role in voters register. Markedly, the petitioner has admitted in the last sentence of the objection that: “And if at all this Hon'ble Court is inclined to call for those documents, it **O.P.(C)No.1069 of 2022** **7** has to be kept in safe custody and not be allowed to be opened without the orders of this Hon'ble Court, in the appropriate stage, if felt necessary”. 7. After adverting to Exts.P6 and P7, the court below passed the impugned Ext.P8 order holding that the dismissal of Ext.P6 would amount to shutting out the first respondent's evidence, which may be required for the determination of the case. Accordingly, the court below issued summons to witness No.7 and has in unequivocal terms directed the witness to produce the documents in a sealed cover, which will only be opened on further orders to be passed by the court. 8. Undisputedly, the petitioner has herself averred in Ext.P7 that the document can be summoned but may not permitted to be opened without the orders of the court below. The court below has passed the impugned order precisely in terms with Ext.P7, and directed the document to be kept in safe custody and would later decide whether the document needs to be **O.P.(C)No.1069 of 2022** **8** looked into, if there is a necessity for the same. In the above background, I am of the definite view that, the apprehension of the petitioner that a roving enquiry is attempted to be made by the 1[st] respondent is totally misplaced and premature. The learned Munsiff has only issued summons to witness No.7 to produce the document and the same to be kept in a sealed cover. I find the course to be justifiable because, otherwise, an objection can be raised that the records are sought to be summoned belatedly and there is a chance of the records being destroyed. No prejudice is caused to the petitioner by the summoning and preservation of the documents in the safe custody of the court. It is only at the next stage, if the court wants to examine the documents, that the ratio decidendi laid down by the Honourable Supreme Court in the afore cited decisions is to followed i.e., the court below should be convinced that the petitioner has made out a prima facie case and is not attempting to ## **O.P.(C)No.1069 of 2022** **9** make a roving enquiry. If the court below is satisfied that the ingredients to examine the summoned document is made out, then the court below, for the proper determination of the case, is at liberty to examine the documents and decide the suit. I do not find any error in Ext.P8 order, warranting the invocation of the supervisory powers of this Court under Article 227 of the Constitution of India. With the above observations, the original petition is dismissed. **Sd/C.S.DIAS Judge** NR/22/06/2022 ## **O.P.(C)No.1069 of 2022** ## **10** ## **APPENDIX** **PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE AMENDED ORIGINAL PETITION IN O.P (ELECTION) NO.1/2021 ON THE FILES OF MUNSIFF COURT, ADIMALY Exhibit-P2 TRUE COPY OF THE OBJECTION DATED 30.11.2021 FILED BY THE PETITIONER BEFORE MUNSIFF COURT, ADIMALY Exhibit-P3 TRUE COPY OF THE ADDITIONAL OBJECTION TO THE AMENDED ORIGINAL PETITION FILED BY THE ELECTION PETITIONER BEFORE THE MUNSIFF COURT, ADIMALY Exhibit-P4 TRUE COPY OF THE PROOF AFFIDAVIT BY THE ELECTION PETITIONER DATED 17.03.2022 BEFORE THE MUNSIFF COURT, ADIMALY Exhibit-P5 TRUE COPY OF THE DEPOSITION OF THE 1ST RESPONDENT ELECTION PETITIONER Exhibit-P6 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A NO.2/2022 IN O.P (ELECTION) NO.1/2021 DATED 20.05.2022 Exhibit-P7 TRUE COPY OF THE OBJECTION TO I.A NO.2/2022 DATED 21.05.2022 Exhibit-P8 TRUE COPY OF THE ORDER DATED 28.05.2022 IN I.A NO.2/2022 IN O.P (ELECTION) NO.1/2021 BY THE MUNSIFF COURT, ADIMALY Exhibit-P9 TRUE COPY OF THE PROCEEDINGS DATED 10.06.2022 IN I.A NO.2/2022 IN O.P (ELECTION) NO.1/2021 BY THE MUNSIFF COURT, ADIMALY AS AVAILABLE IN THE E-COURTS SITE Exhibit-P10 A TRUE COPY OF THE PROCEEDINGS DATED 18.06.2022 IN O.P (ELECTION) NO.1/2021 OF THE MUNSIFF COURT, ADIMALY AS AVAILABLE IN THE E-COURTS SITE** **//TRUE COPY// PA TO JUDGE**