(Prayer: This W.P. is filed Under Article 227 of The Constitution of India Praying to set Aside the Impugned Order Dtd.23.8.2016 Passed by The Principal, Civil Judge and JMFC, Doddaballapura in Election Petition No.3/2015 vide Annex-F.)
1. This writ petition is filed by the defeated candidate challenging the election of the 1st respondent as councilor in City Municipal Council, Doddaballapur, under the provisions of the Karnataka Municipalities Act, 1964, aggrieved by the order Annexure-F dated 23.08.2016 passed by the Prl.Civil Judge and JMFC at Doddaballapur, dismissing the I.A. filed under Section 5 of the Limitation Act as well as I.A.filed u/O 6 Rule 17 of CPC filed in the Election Petition No.3/15 filed by the present petitioner.
2. The reasons assigned by the learned court below in the impugned order are quoted before for ready reference:-
"7. Admittedly, the petitioner filed this petition U/s. 21 of the Karnataka Municipalities Act to challenge the declaration of winning candidate i.e. the defendant no.1 and stating that Date of Order 19.10.2016 W.P.No.51766/2016 N. Kotresh Vs. R. Kemparaju and Ors. on the basis of the newspaper in 'Prajavani' dated 12-3-2015 published that there is a pending of criminal cases against the defendant no.1 hence, filed this petition for its disqualifying of the said defendant. As per the petition averments, the election dated 01-03-2013 and the results were declared on 11-03-2013. This petition filed challenging the said election after lapse of three years. These applications filed only after the respondent has taken the contentions with regarding the limitation and also rised objection about the petition is not maintainable as barred by law of limitation prescribed under Karnataka Municipalities Act. The petitioner has filed these applications to amendment of the petition by add the paragraphs that the petition is well within the limitation as prescribed under section 21 of the Act and filed separate application for condonation of delay if any in preparing this election petition and another one application for seeking the condonation of the delay in filing of the petition. The respective counsel has cited the Judgment of the Hon'ble Supreme court of India in the case of Gopal Sardar Vs. Karuna Sardar reported in LAWS (SC) - 2004-3-4, wherein it is held that;
"We conclude that S.5 of the Limitation Act cannot be pressed into service in aid of a belated application made under S.8 of the Act seeking condonation of delay. The right of the pre- emption conferred under S.8 is a statutory right besides being weak, it has to be exercised strictly in terms of the said section and consideration of equity has no place. On the facts found in these appeals, applications under S.8 were not made within four months from the date of transfer buy they were made four years and six years after the date of transfer respectively which were hopelessly barred by time. Benefit of S.5 of the Limitation Act not being available to the applications made under S.8,Section 3 of the Limitation Act essentially entails their dismissal."
Another one Judgment the Hon'ble Kerala High Court in the case of Abdul Naser A.M. Vs. Date of Order 19.10.2016 W.P.No.51766/2016 N. Kotresh Vs. R. Kemparaju and Ors. Kerala Election Commission, Thiruvananthapuram and others, reported in AIR 2016 KERALA 56 - wherein it is held that;
"The last contention urged on behalf of the petitioner is that the period of pendency of this petition has to be excluded for filing an Election Petition as per Section 14 of the Limitation Act, 1963. The right to challenge an election is a special right created by statute and the same has necessarily to conform to the statutory requirements prescribed therein. Section 165 of the Act prescribes a period of 30 days from the date of election of the returned candidate to present an Election Petition in order to call in question the election on any grounds available. The scheme of the Act and the nature of the remedy provided therein are such that the legislature intended it to be a complete code and the provisions of the Limitation Act are necessarily excluded. The benefits conferred under Section 14 of the Limitation Act, 1963 cannot be called in aid to supplement the provisions of the Act therefor.
8. I have gone through the above cited judgments, in the judgments one thing is clear that thesection 5 of the Limitation Act cannot be pressed in the services aid of a belated application for seeking the condonation of delay in filing of the petition. Therefore, it is rightly argued by the respondent counsel that the applications are not maintainable at this stage, for seeking the relief of condonation of delay. It is pertinent to note that there is a specific statute for challenging the election or results of the Municipalities. If the proposed amendment is allowed then one thing is clear that the nature of the petition will be changed and same may cause prejudice to the defendants. Further as per the amended provision of Order 6 Rule 17 of C.P.C. no application for amendment shall be allowed, unless the court comes to conclusion that in spite of due diligence the plaintiff could not have raised the matter before the commencement of trial. That, it means in some of exceptional cases the Date of Order 19.10.2016 W.P.No.51766/2016 N. Kotresh Vs. R. Kemparaju and Ors. court may allow amendment of pleading even after commencement of trial. The petitioner herein has filed the above election petition challenging the result of the 1st respondent. The claim of the petitioner is that the election petition is in time for the reasons stated in the election petition. It is rightly argued by the respondent counsel that the rules and section enumerated under the Karnataka Municipal Act for conducting a elections being a complete code for itself. There is no scope for either to the party or to this Hon'ble court to draw power from any other enactment to dilute the sprite of the legislature. The Karnataka Municipalities Act does not emposer the party to file a petition after the period prescribed taking shelter either U/o VII Rule 17 to amendment of the petition or under the inherent power of this Hon'ble court, as an entire reading the sections of Karnataka Municipalities Act, do not even remotely suggest that such power to order for the amendment of the petition. In the instant case, I find, there is no any acceptable grounds for amendment of the petition at this stage. In case, the petitioner is permitted to amendment of the petition, it will be prejudice to the other side and also causes to the proceedings of the case. Therefore, the petitioner is not entitled to get the amendment of the petition by can donation (sic!) (condonation) of delay in filing of the petition. Hence, at this stage, on these observation I given answer point no.1 in the 'negative'.
9. POINT NO.2:- For the foregoing reasons, I proceed to pass the following.
ORDER I.A. under Order 6 Rule 17 of C.P.C. and I.A. under section 5 of Limitation Act are hereby dismissed.
No order as costs.
Prl. Civil Judge and JMFC, Doddaballapur ".
Date of Order 19.10.2016 W.P.No.51766/2016 N. Kotresh Vs. R. Kemparaju and Ors.
3. The learned counsel for the petitioner has urged before this Court that the court below has not dealt with certain citations produced before that court for perusal in support of the contentions raised that delay in filing the Election petition after about 3 years of the said election held in the month of March, 2013 and the results whereof were declared on 11.03.2013, deserves to be condoned under Section 5 of the Limitation Act, in view of Section 29(2) of the Limitation Act, 1963 r/w Article 58 in Part-III of the Schedule of the said Act, providing for limitation of 3 years to obtain any other declaration. He also submitted that the delay in the facts and circumstances of the case deserves to be condoned and Election petition deserves to be tried on merits.
4. On the other hand, learned counsel for the respondents has pointed out that the provisions of Section 29 of the Karnataka Municipalities Act, 1964, provides for the specific limitation of only 15 days for filing any such Election petition challenging the election of a candidate and therefore, the impugned order is Date of Order 19.10.2016 W.P.No.51766/2016 N. Kotresh Vs. R. Kemparaju and Ors. perfectly justified in law and the present writ petition deserves to be dismissed.
5. Having heard the learned counsels for the parties and upon perusal of the reasons assigned by the learned court below in the impugned order, this Court does not prima-facie, find that the aforesaid two contentions raised before this Court by the learned counsel for the petitioner have been dealt with or even touched by the learned court below. Neither any reference to the citations produced as relied upon by the petitioner nor arguments relating to Section 29(2) of the Limitation Act, 1963, appears to have been raised and dealt with by the learned court below in the impugned order.
6. In these circumstances, it is considered appropriate that the petitioner should first approach the learned court below itself by way of review petition and after establishing before it that these aspects were raised before the learned court below, namely, the effect of provisions of Section 29(2)of the Limitation Act and Date of Order 19.10.2016 W.P.No.51766/2016 N. Kotresh Vs. R. Kemparaju and Ors. certain citations were produced before the court below, the learned court below may be requested to decide the Review petition in accordance with law, without being influenced by any observation made by this Court herein.
7. Therefore, the present writ petition is not entertained on merits at this stage and is left free for the petitioner to avail suitable remedy. The writ petition is accordingly disposed of at this stage.