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Radhakrishna Pillai Vs. Sasidharan Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. No. 4282 of 1980-A
Judge
Reported inAIR1983Ker236
ActsKerala Panchayats Act, 1960 - Sections 22; Kerala Panchayats (Decision of Election Disputes) Rules, 1963 - Rules 5, 11 and 13; Code of Civil Procedure (CPC) , 1908 - Sections 149
AppellantRadhakrishna Pillai
RespondentSasidharan Nair and ors.
Advocates: V.N. Achutha Kurup, Adv.
DispositionPetition allowed
Excerpt:
- - if they bad not been rejected the petitioner would have won, for the difference between himself and the 1st respondent was only one vote......rule 13 is by way of illustration and not as a limitation of the wide powers recognised under rule 11. rule 11 says that subject to the act and the rules and as nearly as may be the munsiff shall try the petition in accordance with the procedure laid down by the civil p. c. that means that in the absence of any inconsistent provision of the act or the rules and to the extent that it is compatible with the nature of an election trial, the procedure laid down by the civil p. c. has to be followed. in doing so certain matters are specifically, held out under rule 13 as illustrative of the powers of the election court. rule 13 says :713. powers of munsiff.-- (i) the munsiff shall have the powers which are vested in a court under the civil p. c, 1908 (central act 5 of 1908) when trying a.....
Judgment:
ORDER

T. Kochu Thommen, J.

1. The petitioner's election petition was dismissed by the learned Munsiff who is the competent authority under Section 22 of the Kerala Panchayats Act, 1960 (the 'Act'). The petition was dismissed on a preliminary point. The Munsiff held that sufficient court-fee had not been paid at the time of presenting the petition. The balance court-fee was paid only subsequent to the date of presentation of the petition. This involved an amendment of the petition which the Act and the Rules did not permit. Accordingly by Ext. P1 order the Munsiff held that the petition was not maintainable.

2. The contention of the petitioner in the election petition is that of the 1,4 voles declared invalid 4 votes were valid arid ought not to have been rejected. Those 4 votes were cast in favour of the petitioner. If they bad not been rejected the petitioner would have won, for the difference between himself and the 1st respondent was only one vote. This is a matter which of course depends upon evidence and the final result of the trial. But the petitioner is aggrieved by the fact that his petition has been dismissed on a purely technical point. It is contended on behalf of the petitioner by his counsel. Sri Achutha Kurup that an election petition is liable to be dismissed for want of proper presentation only for the reasons mentioned under Rule 5 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 (the 'Rules') and for no other reason. Want of payment of requisite court-fee is not one of the reasons mentioned under Rule 5. The only defect in the election petition was non-payment of the requisite court-fee. This was paid before the petition was numbered. Such payment did not involve any amendment of the petition. Even if an amendment was involved in such payments the Munsiff had sufficient power to allow an amendment of the petition for the purpose of accepting the balance court-fee. Rule 11 specifically provides that the Munsiff has the duty to try an election petition subject to the provisions of the Act and the Rules in accordance with the procedure followed by a Civil Court. Section 149 of the Code of Civil Procedure gives sufficient power to a Civil Court to allow a litigant to pay the whole or part of the court-fee at any stage of the proceeding before it and treat the petition as if the court-fee payable upon it had been paid at the lime of the original presentation. I fully agree.

3. The respondents' counsel points out that the learned Munsiff was not acting as a Court when he passed the order. He was only a persona designata and his powers are limited to those mentioned under Rule 13. That rule is limited to what is specifically stated thereunder. He, therefore, submits that power to allow amendment of an election petition is not a power which is vested in the Munsiff acting as persona designata.

4. In the present case the deficiency in the fee was discovered and made up before the petition was numbered. I doubt if the payment of the deficient court-fee was by means of an amendment. Assuming that an amendment was involved in the process, I am of the view that power of the Civil Court under Section 149 of the Civil P. C. is available to the election Court functioning under the Kerala Panchayats Act and the Rules made thereunder. Rule 11 reads :

'11. Application of provisions of Civil P. C. and the Evidence Act.-- (1) Subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the Munsiff, as nearly as may be in accordance with the procedure applicable under the Civil P. C, 1908 (Central Act 5 of 1908) to the trial of suits :

Provided that the Munsiff shall have the discretion to refuse for reasons to be recorded in writing to examine any witness or witnesses if he is of the opinion that their evidence is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Evidence Act, 1872 (Central Act 1 of 1872) shall, subject to the provisions of the Act and these Rules, be deemed to apply in all respects to the trial of an election petition.' What is provided under Rule 13 is by way of illustration and not as a limitation of the wide powers recognised under Rule 11. Rule 11 says that subject to the Act and the Rules and as nearly as may be the Munsiff shall try the petition in accordance with the procedure laid down by the Civil P. C. That means that in the absence of any inconsistent provision of the Act or the Rules and to the extent that it is compatible with the nature of an election trial, the procedure laid down by the Civil P. C. has to be followed. In doing so certain matters are specifically, held out under Rule 13 as illustrative of the powers of the election Court. Rule 13 says :

713. Powers of Munsiff.-- (I) The Munsiff shall have the powers which are vested in a Court under the Civil P. C, 1908 (Central Act 5 of 1908) When trying a suit in respect of the following matters, namely:--

(a) discovery and_ inspection;

(b) enforcing attendance of witnesses and requiring the deposit of their expenses;

(c) compelling the production of documents;

(d) examining witnesses on oath;

(e) granting adjournments;

(f) reception of evidence taken on affidavit; and

(g) issuing commissions for the examination of witnesses.

(2) The Munsiff may suo motu summon and examine any person whose evidence appears to him to be material.

(3) The Munsiff, trying an election petition, under these rules, shall be deemed to bea Civil Court within the meaning of Sections 480and 482 of the Criminal P. C., 1499 (CentralAct 5 of 1898).'

'The matters specified under Rule 13, therefore do not derogate from the generality of the power or the obligation of the election Court within the ambit of Rule 11.

5. The rule-making authority has specifically stated the circumstances in which an election petition shall be dismissed on the ground that it was not properly presented. Payment of cost in terms of Rule 25 (1) which is specifically referred to under Rule 5 is one of those reasons. But Rule 5 significantly has not referred, to payment of court-fee. That is a matter which is governed by the Court-fees Act and subject to the power of the Civil Court under Section 149 of the Civil P. C.

6. Section 149 of the Civil P. C. reads:

'149. Power to make up deficiency of court-fees where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.'

It is that power which is available to the learned Munsiff trying an election petition in considering whether the petitioner should be allowed to make up the deficiency of the court-fees. That is a matter of discretion --a discretion which the Court can exercise at any stage of the proceeding. In the present case that discretion was not exercised. Nor was the question as to the exercise of discretion considered, for the Court came to the conclusion that it had no power at all to allow a person to make up the deficiency of the court-fee payable.

7. In the circumstances, I am of the view that the impugned order is vitiated by the fact that the Munsiff did not apply his mind to the question as to whether or not he should exercise his discretion in the matter of the petitioner's request to treat his petition as a properly presented document. Ext. P1 is accordingly quashed and the 7th respondent -- the learned Munsiff. Punalur is directed to reconsider the question as to whether or not the petition upon which full court-fee had been paid in two stages was in the circumstances of the case a properly presented document. If the answer of the learned Munsiff were to be in the affirmative, he shall forthwith proceed with the trial of the election petition. In view of the fact that three years have now gone by since the election. I have no doubt that immediate attention will be paid by the learned Munsiff to the matter in question. The Original Petition is allowed in the above terms. No costs. Send back the records immediately.


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