1. This petition necessitates resolution of certain apparent conflicts arising from amendments brought to the Code of Civil Procedure through CPC (Amendment) Act of 1999 and 2002.

2. In this Election Petition challenging the election of the 1st respondent to the Kerala Legislative Assembly from Nedumangad Constituency in the general elections pursuant to polling held on 10.5.2001, the petitioner and some official witnesses have been examined and the stage has been reached when evidence is to be collected from various witnesses with regard to double voting, alleged incompetence of some persons to be voters in view of minority and the like, denial of voting right based on alleged removal from the electoral roll after the last date for filing nominations etc.

3. The prayer in the present petition is that considering the fact that as many as 500 witnesses who are residents of Nedumangad have now to be examined from the above categories, the collection of evidence may be made in sittings of the judge of the High Court to be held at Thiruvananthapuram which will substantially reduce the expenses of the petitioner and also mitigate the inconvenience to all parties.

4. In view of the amendment to the Code of Civil Procedure as per the Amendment Act, 2002 enabling collection of evidence through Commission, the feasibility of that alternative in the place of sitting at Thiruvananthapuram was considered. Based on order dated 6.9.2002, Sri. Thottathil B.Radhakrishnan was heard as amicus curiae on the aspect, besides the parties themselves.

5. The learned counsel for the petitioner and the 1st respondent submitted that even assuming that evidence through Commission as contemplated in O. XVIII R 4 of the CPC is possible even in an election case, the nature of the present case and the nature of evidence to be collected are such that it is not a convenient or viable alternative and that the Court might itself examine the witnesses. Sri. Radhakrishnan submitted that a harmonious interpretation of the apparently conflicting provisions in Orders XVIII and XXVI of the CPC is possible and that there will be no illegality if the work of recording evidence is entrusted to a Commissioner of appropriate qualities. Even though an opportunity was allowed to the counsel for the Election Commission of India also, Sri. K. Radhakrishnan, who represented the Commission submitted that in view of the findings of the Apex Court that the Election Commission is an unnecessary party to an Election Petition, the Commission does not want to advance any arguments on the point.

6. The three questions to be considered before passing orders on this Petition are the following:

(1) Whether in view of the contents of O. XVIII R.5 (unamended) it is possible to follow the new procedure in O. XVIII R.4 of the CPC in the trial of a civil suit?

(2) Whether a Commission could be issued in the present case to examine the witnesses of the petitioner as sought for herein?

(3) Whether the court should hold a special sitting at Thiruvananthapuram as sought for in this petition and if so, the modalities to be adopted therefor?

7. Point No. 1:- O. XVIII R.4 of the CPC, as it stands introduced as per S.12(b) of the CPC (Amendment) Act, 2002 reads as follows:

"4. Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:

Provided that the Court may, while appointing a Commission under this sub-rule, con