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Judgename : M.SASIDHARAN NAMBIAR
S.Mohammed Rafi - Appellant
Versus
Fathahudeen - Respondents
Case No : C.R.P. No.1114 of 2007
Decided On : 07/24/2008
Election - Double Voting - Kerala Panchayat Raj Act, Section 99 - The court found that the election of the first respondent was set aside on the finding that there were 9 double votes. The learned District Judge found that the said finding was arrived at by the Munsiff based on comparison of the signatures of witnesses without the assistance of an expert. The order of the learned Munsiff was set aside and the election petition was remanded to Munsiff Court for fresh disposal after getting a report on the identity of the disputed signatures from an expert and entering a definite finding on the identity of the persons whose names appear in both the lists and voted. The order of remand is challenged in this revision petition filed under Section 115 of the Code of Civil Procedure. The revision petition is allowed and the order of the learned District Judge is set aside. A.S.(Election) 94 of 2007 is remanded to District Court, Kollam for fresh disposal in accordance with law.
Fact of the Case:
The first respondent was declared elected to Ward No.19 of Mayyanadu Grama Panchayath of Kollam District in the election held on 24-9-1995. The petitioner filed O.P. (Ele.) 2 of 2005 before Additional Munsiff, Kollam to set aside the election of the first respondent, challenging it only on the ground of double voting. The election petition was included in the special list, and the petitioner filed an application to amend the election petition incorporating the detail of one more double voting and to incorporate a relief of declaration that petitioner is the elected candidate. The amendment was allowed and evidence was recorded. The Munsiff found that there were 9 double votes and the majority being only three votes, the double votes had materially affected the result of the election. The election of the first respondent was set aside, and the petitioner was declared the returned candidate from Ward No.19 of Mayyanadu Grama Panchayath with a majority of 6 votes. The first respondent challenged that order before District Court, Kollam in A.S. (Election) 94 of 2007. The learned District Judge on re-appreciation of the evidence found that the election of the first respondent was set aside on the finding that there were 9 double votes and when the said void votes are excluded, the petitioner secured 6 votes more than what was secured by the first respondent. The learned District Judge, relying on the decision of the Apex Court in Bharathan v. Sudhakaran 1996 (1) K.L.T. 466, found that the learned Munsiff should not have rendered a finding solely based on the comparison of the signatures, without the aid of a report from an expert. Therefore, the order of the learned Munsiff was set aside, and the election petition was remanded to Munsiff Court for fresh disposal after getting a report on the identity of the disputed signatures from an expert and entering a definite finding on the identity of the persons whose names appear in both the lists and voted. The order of remand is challenged in this revision petition filed under Section 115 of the Code of Civil Procedure.
Finding of the Court:
The revision petition is allowed, and the order of the learned District Judge is set aside. A.S.(Election) 94 of 2007 is remanded to District Court, Kollam for fresh disposal in accordance with law.
Issues: The main issue was whether the election of the first respondent was set aside on the finding of 9 double votes, and whether the order of remand by the learned District Judge was justified.
Ratio Decidendi: The court found that the procedure adopted by the learned Munsiff cannot be challenged, and the power of the Court under Section 73 of the Evidence Act to compare the signatures, the disputed with the admitted, without the aid of an expert cannot be questioned. The court also found that the evidence of P.Ws. 5, 8, 10, 12 and 13 on the identity of signatures in the counterfoil receipts are to be considered. The court held that the order of remand by the learned District Judge was not justified, and the appeal was remanded for fresh disposal.
Final Decision: The revision petition is allowed, and the order of the learned District Judge is set aside. A.S.(Election) 94 of 2007 is remanded to District Court, Kollam for fresh disposal in accordance with law.
First respondent was declared elected to Ward No.19 of Mayyanadu Grama Panchayath of Kollam District in the election held on 24-9-1995. Petitioner and respondents 2 and 3 were the other candidates. First respondent secured 385 votes out of the total polled votes of 1029. Petitioner received 382 votes, second respondent 5 votes and third respondent 230 votes. 27 votes were declared invalid. Petitioner filed O.P. (Ele.) 2 of 2005 before Additional Munsiff, Kollam to set aside the election of the first respondent. The election was challenged only on the ground of double voting. It was contended in the election petition that there were 13 double votes. The details of the votes were specifically pleaded. First respondent resisted the election petition denying the case of double voting. After the election petition was included in the special list petitioner filed, I.A. 1090 of 2006 on 4-3-2006 to amend the election petition incorporating the detail of one more double voting and to incorporate a relief of declaration that petitioner is the elected candidate. It was allowed and evidence was recorded. On the side of the petitioner, 14 witnesses were examined and Ext. A-1 and A-2 and X-1 to X-42 were marked. On the side of first respondent no evidence was adduced. Learned Munsiff on evidence found that there were 9 double votes and the majority being only three votes the double votes had materially effected the result of the election. It was found that the said void votes are to be excluded. While so excluding, it was found that petitioner has secured 382 votes and first respondent only 376 votes. Consequently it was found that petitioner should have been declared as the elected candidate instead of the first respondent. Election of first respondent was set aside and petitioner was declared the returned candidate from Ward No.19 of Mayyanadu Grama Panchayath with a majority of 6 votes. First respondent challenged that order before District Court, Kollam in A.S. (Election) 94 of 2007. Learned District Judge on re-appreciation of the evidence found that election of the first respondent was set aside on finding that there were 9 double votes and when the said void votes are excluded petitioner secured 6 votes more than what was secured by first respondent. It was found that the finding on the 9 double votes was, based on comparison of the signatures, arrived at by the learned Munsiff without the assistance of an expert and based on the comparison of the signatures of the witnesses with the signatures seen in the counterfoil receipts. Learned District Judge, relying on the decision of the Apex Court in Bharathan v. Sudhakaran 1996
(1) K.L.T. 466found that learned Munsiff should not have rendered a finding solely based on the comparison of the signatures, without the aid of a report from an expert. Therefore the order of the learned Munsiff was set aside and election petition was remanded to Munsiff Court for fresh disposal after getting a report on the identity of the disputed signatures from an expert and entering a definite finding on the identity of the persons whose names appear in both the lists and voted. The order of remand is challenged in this revision petition filed under Section 115 of the Code of Civil Procedure.
2. Learned counsel appearing for petitioner and learned senior counsel appearing for first respondent were heard.
3. Learned counsel appearing for petitioner argued that learned District Judge was not justified in remanding the election petition based on the decision of the Apex Court in Bharathans case (supra). It was argued that in that case there were altogether more than 300 disputed votes and on the facts of that case it was found that the Court should not have taken the hazardous task of adjudication upon the genuineness and authenticity of the signatures without the assistance of a skilled and trained person. The learned counsel relied on the following observation of Their Lordships held in Bharathans c
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