The withdrawal or abandonment of a part of the claim in an election petition cannot be permitted without giving an opportunity to any person who might have been a petitioner to continue the proceedings.

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 R.5(5) of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 (hereinafter, the Rules). The petitioner-appellant, therefore, relying on R.5(8) of the Rules, contended that the election petition is to be dismissed in limine on the ground of non-compliance of R.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 the 1st res¬pondent-Munsiff ordered recount of the votes. The returned candidate, the appellant herein then filed O. P. 1658 of 1980 in this Court. The Court directed the Munsiff to frame a specific issue as regards the maintainability of the petition on account of non-compliance of R.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 R.5(5) of the Kerala Panchayats (Decision of Election Disputse) 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 allegations 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 has 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 R.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 against him and in favour of his opponent; and those issues are. decided accordingly It is virtually a decision by consent,