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Konath Mohammed Master Vs. Munsiff, Tirur and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKerala High Court
Decided On
Case NumberW.A. No. 168 of 1981
Judge
Reported inAIR1981Ker220
ActsKerala Panchayats (Decision of Election Disputes) Rules, 1963 - Rules 5(5), 24(2) and 24(4); Code of Civil Procedure (CPC) , 1908 - Order 41, ;Rule 23
AppellantKonath Mohammed Master
RespondentMunsiff, Tirur and ors.
Appellant Advocate P.K. Shamsuddin and; A.A. Abdul Hassan, Advs.
Respondent Advocate G.P. Sibi Mathew and; M.C. Mathew, Advs.
DispositionAppeal allowed
Cases ReferredMallappa Basappa v. Basavaraj Ayyappa
Excerpt:
- - that the withdrawal or abandonment of a part of the claim advanced in the election petition is also governed by the rules applicable to withdrawal and abandonment of the election petition as a whole is by now well settled by the decision of the supreme court above mentioned......rule 24 of the rules deals with withdrawal and abatement of election petitions. under sub-rule (1) an election petition can be withdrawn only by leave of the munsiff granted on an application made in that behalf. sub-rule (2) requires that notice of an application for leave to withdraw an election petition shall be given to all other parties thereto and that it shall also be published in the office of the munsiff and the panchayat office concerned. where there are more petitioners than one such an application for withdrawal can be filed only with the consent of all the petitioners. sub-rule (3) provides so. sub-rule (4) directs the munsiff to refuse leave, if in his opinion such application has been induced by any bargain or consideration which ought not be allowed. if the.....
Judgment:

George Vadakkel, J.

1. At the Panchayat election held on 18-9-1979 the petitioner-appellant was returned as a member of the Athavanadu Panchayat. The 2nd respondent who also contested the election questioned the validity of the appellant's election, before the 1st respondent, the Munsiff, Tirur, by filing Election Petition No. 2 of 1979. Therein the 2nd respondent raised allegations of corrupt and illegal practices. However, the election petition was not accompanied by a list signed and verified (in the manner provided for) setting forth the full particulars of corrupt and illegal practices alleged in the petition as required by Rule 5 (5) of the Kerala Pancha-yats (Decision of Election Disputes) Rules, 1963 (hereinafter, the Rules). The petitioner-appellant, therefore relying on Rule 5 (8) of the Rules, contended that the election petition is to be dismissed in limine on the ground of non-compliance of Rule 5 (5) of the Rules. The second respondent thereupon on 29-11-1979 filed an application, I. A. 2017 of 1979, seeking permission to produce a list of corrupt practices and to make appropriate amendments in the election petition. The 1st respondent-Munsiff on 11-12-1979 dismissed that application on the ground that there was no provision of law enabling him to receive such a list subsequent to the filing of the election petition. Thereafter by order dated 7-4-1980 the1st respondent-Munsiff ordered recount of the votes. The returned candidate, the appellant herein then filed O. P. 1658 of 1980 in this Court. This Court directed the Munsiff to frame a specific issue as regards the maintainability of the petition on account of non-compliance of Rule 5 (5) of the Rules and to decide that issue preliminarily. Pursuant to this direction the Munsiff raised issue number 4 which is as follows:--

'4. Whether the petition is maintainable for not complying the provisions contained in Rule 5 (5) of the Kerala Panchayats (Decision of Election Dispute) Rules, 1963.'

2. When the 1st respondent-Munsiff took up the case for hearing on the preliminary issue, the 2nd respondent's counsel appears to have submitted that the grounds of corrupt practices alleged in the Election Petition are not pressed that no evidence is being let in to substantiate the same and no arguments are being advanced on that score. The learned Munsiff therefore as per the impugned order, Ext. P1 order of 18-8-1980, ruled :

'But as far as this petition is concerned, when the allegation of corrupt practices taken as ground to set aside the election remains as not pressed, we have only to consider the other grounds taken to set aside the election and to see whether the petitioner has complied with the mandatory provisions with regard to that matters taken as a ground to set aside the election. That the petitioner had complied with. Hence I find that the petition is maintainable. Point answered accordingly.'

3. The argument on behalf of the 2nd respondent who is the election-petitioner Is that by not pressing the allegations regarding the commission of corrupt practices, the election-petitioner has withdrawn those allegations and the claim to set aside the election on those grounds thereby making the petition one not hit by Sub-rules (5) and (8) of Rule 24. The following points arise for determination:--

(i) Does, 'not pressing' the said allegations and grounds amount to withdrawal of the claim (to set aside the election) founded on those allegations and grounds; (ii) Can the election petitioner withdraw the election petition or part thereof and if he can, how and in what manner: and (iii) has the election-petitioner withdrawn his claim to set aside the election on the ground of commission of corrupt practices by the returned candidate.

4. As a result of 'not pressing' certain allegations and grounds raised in a pleading, a litigant submits that the issues arising therefrom may be decided againsl him and in favour of his opponent; and those issues are decided accordingly. It is virtually a decision by consent, in that the party asserting or disputing, concedes that his assertion or dispute, as the case may be, merits no consideration as he cannot substantiate the same. The allegations are, however, there, and they are decided. Therefore, what has been said of consent decisions, namely -- '.....the truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end' (Lord Horschell in In re South American and Mexican Company, Ex parte Bank of England (1895-1 Ch 37)), can, with much more force, be said of a decision that the allegations in the pleading have not been substantiated because they are not 'pressed' by the maker of those allegations. It cannot be said that the allegations which have been found and held to be not established, are withdrawn in such circumstances.

5. Rule 24 of the Rules deals with withdrawal and abatement of election petitions. Under Sub-rule (1) an election petition can be withdrawn only by leave of the Munsiff granted on an application made in that behalf. Sub-rule (2) requires that notice of an application for leave to withdraw an election petition shall be given to all other parties thereto and that it shall also be published in the office of the Munsiff and the Panchayat office concerned. Where there are more petitioners than one such an application for withdrawal can be filed only with the consent of all the petitioners. Sub-rule (3) provides so. Sub-rule (4) directs the Munsiff to refuse leave, if in his opinion such application has been induced by any bargain or consideration which ought not be allowed. If the petition is allowed and leave is granted, notice of withdrawal has to be published in the office of the Munsiff and the Panchayat Office concerned -- Sub-rule 5(b). Within 14 days of such publication a person who might himself have filed the petition may apply to be substituted as petitioner in place of the withdrawing petitioner and on depositing Rs. 50 as security for the costs of the petition, he shall be entitled to be substituted and to continue the proceedings upon such terms as the Munsiff maythink fit. The same is the case when an election petition abates which would happen only by the death of the sole petitioner or of the sole survivor of several petitioners -- Sub-rules (7), (8) and (9). What is to be done if the sole respondent in the election petition dies before the conclusion of the trial or before the conclusion of the trial he notifies his intention not to oppose the petition or any of the respondents dies or so notifies before the conclusion of the trial and there is no other respondent who is opposing the petition is provided for in Sub-rule (10), The Munsiff has to notify the same by publication in his office, in the office of the election authority and in the Panchayat office and thereupon any person who might have been a petitioner may get himself substituted and continue the proceedings upon such terms as the Munsiff may think fit.

6. The provisions discussed above go to show that (to borrow the language employed by one of us in Election Petition No. 9 of 1980 decided under the Representation of the People Act) 'the questions relating to purity of election and due and undue return of a candidate are matters in which the electorate as a whole is interested'. This view is supported by the decision of the Supreme Court in Mallappa Basappa v. Basavaraj Ayyappa (AIR 1958 SC 698 (703-704)) wherein that Court discussing the corresponding provisions in the Representation of the People Act said as follows:--

'The above provisions go to show that an election petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a petitioner is entitled to be substituted, on the fulfilment of the requisite conditions and upon such terms as the Tribunal may think fit, in place of the party withdrawing and even the death of the sole petitioner or of the survivor of several petitioners does not put an end to the proceedings, but they can be continued by any person who might himself have been a petitioner. Even if the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and therein no other respondent who is opposing the petition, a similar situation arises and the opposition to the petition can be continued by any person who might havebeen a petitioner, of course, on the fulfilment of the conditions prescribed in Section 116, These provisions therefore show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner.'

7. So far as the case on hand is concerned admittedly no application for Leave to withdraw the election petition or any part thereof as required under Rule 24 (2) has been filed. Nor has the learned Munsiff noticed Rule 24 (4) or decided that leave is to be granted or not. That the withdrawal or abandonment of a part of the claim advanced in the election petition is also governed by the Rules applicable to withdrawal and abandonment of the election petition as a whole is by now well settled by the decision of the Supreme Court above mentioned. That Court said (at p. 704) :--

'If the withdrawal of a petition cannot be permitted and any person who might have been a petitioner is entitled to continue the proceedings, on a parity of reasoning, the withdrawal of a part of the claim also could not be permitted without allowing another person who might have been a petitioner an opportunity of proceeding with that part of the claim by substituting himself in place and stead of the petitioner who withdraws or abandons the same. If the constituency as a whole is interested in the petition presented before the Election Tribunal no such withdrawal or abandonment of a part of the claim could ever be permitted without giving an opportunity to any person who might have been a petitioner to continue the proceedings and pursue the petition to its logical conclusion.'

8. In the light of the above discussion it has to be held that the petitioner has not withdrawn the allegations of corrupt practices and his claim to set aside the election on that score. We hold so.

9. This Court by its decision in O. P. 1958 of 1980 directed the learned Munsiff to decide the issue No. 4 preliminarily. His decision in Ext. P1 on that issue is based on his findings on issue relating to the commission of corrupt practices by the returned candidate, namely, those allegations are not established as they have not been pressed. In other words,he has not decided issue No. 4 preliminarily. Therefore, Ext. P1 order is liable to be set aside and we do so.

10. In the result, we allow this appeal and direct the 1st respondent-Munsiff to decide issue No. 4 as directed in O. P. 1658 of 1980 and in the light of what is stated herein, but without any order as to costs in this appeal and the original petition.


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