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2009 Supreme(Kar) 894
High Court of Karnataka
THE HONOURABLE MR. JUSTICE Subhash B.ADI
Smt. Vijaya
Versus
Smt. Mahammad Begam & Others
Miscellaneous First Appeal No.3256 of 2009
Decided on : 10-12-2009
For the Petitioners:A.S. Mahesha, Advocate. For the Respondent:
S.V. Prakash, Advocate, Revathy Adinath Narde, HCGP.
Headnote:KARNATAKA MUNICIPALITIES ACT, 1964 - Section 21: [Subhash B. Adi, J] Election petition - Limitation as to - Delay of 15 days in filing petition - Application for condonation of delay filed - However petition returned by Court under Order 7, Rule 10 on ground of jurisdiction - Matter decided by transferor Court on merit without considering question of limitation - Held, Section 21 of the Act definitely prescribes that, petition has to be filed within 15 days from date of declaration of results and if it is not filed within limitation period, it cannot be termed as a petition filed under Section 21 of Act. But, if filed along with an applications 5 and 20 of the Limitation Act and delay could be condoned or extended in view of said provisions, till such condonation of extension of limitation, petition cannot be termed as properly presented petition, it does no amount to filing of a petition. If petition is in order, Court can decide same on its merit. Undoubtedly where petition is beyond the period of limitation, whether it was presented before Civil Judge (Jr.Dn.) or on return presented before Civil Judge (Sr.Dn.) it was not a petition in eye of law, till delay is condoned, nor it could be termed as a petition filed before proper Court. Civil Judge (Sr.Dn.) gets jurisdiction to adjudicate matter on merit only if it is resented in accordance with the requirement under Section 21 of the Act. As in instant case petition presented before Civil Judge (Sr.Dn.) was beyond period of limitation, order passed by him on merit without considering delay is not sustainable.
(This Miscellaneous First Appeal is filed under Section 27 of the Karnataka Municipalities Act against the order dated: 9.4.2009 passed in Electron Mis.No.12/2008 on the file of the Civil Judge (Sr.Dn) and Prl. JMFC. K.G.F. allowing the petition filed under section 21 and 23 (a) (c) (d) (i) (ii) (iii) (iv) of Karnataka Municipality Act to declare that election of respondent No.1 held on 28.9.2007 in Ward No.34 of City Municipality Council KGF and the result dated: 30.9.2007 as null and void.)
This appeal is against the order, in an Election Misc. No.12/2008 dated 9.4.2009 on the file of the Civil Judge (Sr.Dn.) K.G.F. Appellant was the Respondent No.1, respondent No.1 was a petitioner and respondents No.2 to 7 were the respondents before the learned Civil Judge.
2. This case arises under a peculiar circumstances, Respondent No. 1 was an unsuccessful candidate in an election held for Ward No.34. City Municipal Council, K.G.F. He filed a election petition under Sections 21 and 23 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as the ‘Act). Before the Civil Judge (Jr.Dn.). K.G.F. Section 21 of the Act requires that the petition to be filed within 15 days from the date of declaration of results of the election. The results of the election were declared on 30.9.2007, since the election petition was filed with 16 days delay. 1st respondent had filed an application for condonation of delay before the Civil Judge (Jr.Dn.). When the 1st respondent noticed that the election petition is not maintainable before the Civil Judge (Jr.Dn.). he filed an application under Order 7 Rules 10 and 10A of CPC. The learned Civil Judge (Jr.Dn.). by his order dated 5.7.2008 ordered for returned of the petition copy and the document thereon to the 1st respondent to present the same before the proper Court on 10.7.2008,. To this effect, the plaint was returned on 5.7.2008 with specific endorsements as regard to the return and also as regard to filing of the same before the Principle Civil Judge (Sr.Dn.). In consistence with the said order, the plaint returned was presented before the learned Civil Judge (Sr.Dn) within the stipulated time. Same was numbered as Election Misc.12/2008.
3. Successful candidate, the appellant herein filed his objections to the main election petition. Parties also led the evidence and the learned Civil Judge (Sr.Dn.) by considering the evidence on record, by the judgment impugned in this appeal set aside the election of the petitioner on the ground that the petitioner does not come under the reserve category (Christianity Religion). As against the said order this appeal ha been filed.
4. Heard the learned Sri A.S.Mahesha for the appellant and Sri S.V.Prakash for contesting respondent No.1 and Smt. Revathy Adinath Narde, learned High Court Government Pleader for respondent No.6.
5. Learned counsel Sri A.S.Mahesha submitted that, the order of the learned Civil Judge is one without jurisdiction, as admittedly respondent No.1 had filed an election petition beyond the limitation prescribed under Section 21 of the Limitation Act before the Civil Judge (Jr.Dn.) and he had filed an application for return of the plaint and the documents. After return of the plaint and documents, respondent No.1 though presented the election petition before the proper Court, had not filed an application for condonation of delay in filing the election petition and as such there was no petition in law which could have been entertained by the learned Civil Judge (Sr.Dn.). The learned Civil Judge (Sr.Dn.) without verifying as to whether the petition is in time, has proceeded to decide the petition has been filed in time and it is the duty of the Court to verify the limitation. However, the Civil Judge (Sr.Dn.) without noticing as regard to the limitation, only because the plaint is returned from another Court to be presented before the said Court, he entertained the petition and has passed the impugned order. If the election pet
