Salim Pathuvana v. Alikunju M. and T.K. Kutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934** **CRP.No. 347 of 2012 ()** **---------------------IN A.S(ELE.)82/2012 of I ADDL.DISTRICT COURT, ERNAKULAM IN OPELE.7/2010 of PRL.M.C.,ERNAKULAM** **REVISION PETITIONER(S)/APPELLANT /FIRST RESPONDENT: --------------------------------------------------** **SALIM PATHUVANA, AGED 44 YEARS S/O. HAMEED, PATHUVANA HOUSE SOUTH KALAMASSERY-682033.** **BY ADVS.SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR** ## **RESPONDENT(S)/RESPONDENTS/PETITIONER /2ND RESPONDENT:** **-----------------------------------------------------** **1. ALIKUNJU M., AGED 46 YEARS S/O.LATE M.S.MOHAMMED, KARAVELIL HOUSE INDUSTRIAL ESTATE, K.D.PLOT,P.O.KALAMASSERY 683109.** **2. T.K. KUTTY, S/O.KOCHI AHAMMED, THADATHIL HOUSE KALAMASSERY- 683104.** **BY ADV. SRI.K.RAMAKUMAR (SR.) BY ADV. SRI.S.M.PRASANTH FOR R1 BY ADV. SMT.SMITHA GEORGE FOR R1** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ds** ## **V. CHITAMBARESH, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P No. 347 OF 2012** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 19[th] day of September, 2012** ## **J U D G M E N T** The election of the petitioner from Ward No. 41 of Kalamassery Municipality was called in question by the first respondent on the ground of double voting and impersonation. The first respondent in the election petition filed under the provisions of the Kerala Panchayath Raj Act contended that there was double voting by 15 voters and impersonation by 2 voters. The petitioner had secured 439 votes and the first respondent had secured 433 votes as per the declaration of results in the election. 2. The first respondent filed a recrimination petition contending that six voters had indulged in double voting. The election court compared the signatures found in the following documents for the purpose of determination of the dispute: C.R.P. No. 347/2012 -2- i) Admitted signature of the voters in the vote register of Ward No.41. ii) Disputed signature found in the vote register/counter foil of the ballot papers. iii) Signature of the witnesses found in the summons. iv) Signature of the witnesses in the deposition before court. 3. The election court after comparing the signatures in the documents aforesaid held that the following voters had voted twice in the same constituency. 1. Sindu Shibu (PW5) 2. Rasiya Abdul Khader (PW6) 3. Basheer Kunjumohammed (PW7) 4. Ranjith (PW8) 5. Naseer Khader (PW10) 6. Fousiya Naseer (PW11) 7. Bismitha Abdul Khader (PW13) 8. Noorjahan (PW14) 9. Amina Abdul Rahman (PW15) 10. Shibu Kumaran (PW16) The election court also found that Hamsa Ibrahimkutty (PW12) voted in the same constituency twice and that his C.R.P. No. 347/2012 -3- vote is invalid. 4. The election court also found that the following six voters had double voted as alleged in the recrimination petition. 1. Sareena Ahamed (RW4) 2. Sabeena Aliyar (RW5) 3. Geetha Rajan (RW6) 4. Ajmal Muhammedkunju (RW14) 5. Asinil K.A. (RW1) 6. Sudheer Muneer (RW10) The Election court after completing the exercise as above found that the petitioner had secured 426 votes and that the first respondent had secured 430 votes. The election of the petitioner was set as aside and the first respondent declared as the elected candidate from ward No.41. The lower appellate court has confirmed the verdict of the Election court which is impugned by the petitioner in this Civil Revision Petition. 5. There was a divergence of judicial opinion as to whether the election court could itself take upon the task of C.R.P. No. 347/2012 -4- comparing the signatures with naked eye. Section 73 of the Indian Evidence Act, 1872, no doubt, empowers the court to compare the disputed signature or writing with the admitted or proved signature or writing. Divergent views were so expressed in **Neelalohithadasan Nadar v. George Mascrene [1994 (1) KLT 887]** and **O. Bharathan v. K. Sudhakaran and another [1996 (2) SCC 704]** . But this Court in **Mohammed Rafi, S. v. Fathahudeen and Others [ILR 2008 (3) KER 641]** and **Indulekha v. Preetha Kumari and Others [2010 (2) KHC 113]** chose to follow **Neelalohithadasan Nadar v. George Mascrene [1994 (1) KLT 887]** . This is because the said decision was rendered by a larger bench than the one rendered in **O. Bharathan v. K. Sudhakaran and another** . I also find that the dictum laid down in **Neelalohithadasan Nadar v. George Mascrene** has been followed in **Kuldip Nayar v. Union of India [2006(7) SCC (1)]** to hold that the purity of election is the utmost than secrecy. C.R.P. No. 347/2012 -5- 6. But there is a serious flaw in the judgment of the lower appellate court in as much as the appellate court has not by itself compared the signatures. The appellate court being the final court of facts is duty bound to apply its mind independently after comparing the disputed signatures with the admitted signatures. There is no indication any where in the appellate judgment that the signatures found in the four sets of documents were compared by itself to concur with the finding of the election court. There is of course, a finding as regards Hamsa Ibrahim Kutty (PW12) to the effect that the admitted and disputed signatures tally. But there is no whisper with regard to the other voters made mention of earlier as regards the comparison of their signatures. It does not suffice if the appellate court merely says that the trial court compared the signatures and had come to a finding. 7. The Supreme Court in **I. Vikheshe Sema v. Hokishe Sema [1996 (4) SCC 53]** directed as follows: C.R.P. No. 347/2012 -6- “We depute the Registrar (Judicial) of this Court to make an inspection after notice to and in the presence of the parties and their counsels, of all the said ballot papers, identify the void votes which had been cast in respect of Polling Stations Nos. 5, 6, 21 and 28 and to exclude the said void votes and then count the number of votes received by each of the five candidates. The report should be submitted to this Court by the Deputy Registrar within eight weeks.” 8. I adopt the same course and direct the lower appellate court to compare the signatures of the voters referred to above in open court in the presence of the parties to the election petition and their counsel. The appellate court on the basis of the conclusion so arrived shall dispose of the appeal afresh within a period of one month from the date of receipt of a copy of this judgment. I set aside the judgment of the lower appellate court for this limited purpose and remand A.S. (Election) No.82/2012 to the Court of the District Judge of Ernakulam. The parties will appear before the appellate court on 03.10.2012 which shall C.R.P. No. 347/2012 -7- fix a date for comparison in open court as directed above. The status quo as on today shall continue till the disposal of the appeal by the lower appellate court. The Civil Revision Petition is allowed. The registry to send down the records forthwith. No costs. **Sd/V. CHITAMBARESH, JUDGE.** ds