Kerala High Court
Valappil Rajan vs Madicherry Gangadharan on 29 November, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
MONDAY, THE 15TH DAY OF OCTOBER 2012/23RD ASWINA 1934
OP(C).No. 2709 of 2012 (O)
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IA.NO.714/2011 IN OP(ELE) 126/2010 of PRRINCIPAL MUNSIFF-1,
KOZHIKODE
PETITIONER(S):
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VALAPPIL RAJAN, AGED 51 YEARS
S/O BALAN, VALAPPIL HOUSE,
P.O, MORIKKARA, KAKKODI, KOZHIKODE 673611
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S):
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1. MADICHERRY GANGADHARAN
S/O ACHUTHAN NAIR, "RESMI", MAKKADA AMSOM
DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT 673614
2. MELEKOYOLI SATHEESH,
S/O RAGHAVAN, MELEKOYOLI, MAKKADA AMSOM DESOM
KOZHIKODE TALUK, KOZHIKODE DISTRICT 673614
R1 BY ADV. SRI.R.SUDHISH
R1 BY ADV. SMT.M.MANJU
R1 BY ADV. SRI.K.R.RANJITH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
15-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C).No. 2709 of 2012 (O)
APPENDIX
PETITIONER(S) EXHIBITS
EXT. P1 TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT
AS OP (ELECTION) NO 126/2010 ON THE FILE OF MUNSIFF
COURT I (P) KOZHIKODE DATED 29-11-2010
EXT. P2 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN
O.P (ELECTION) NO 126/2010 ON THE FILE OF MUNSIFF COURT
I (P) KOZHIKODE DATED 31-01-2011
EXT. P3 A COPY OF THE I.A NO 714/2011 IN O.P (ELECTION) NO
126/2010 ON THE FILE OF MUNSIFF COURT I (P) KOZHIKODE
DATED 19-02-2011
EXT. P4 TRUE COPY OF THE COUNTER FILED BY TE PETITIONER TO
EXHIBIT P3 DATED 19-03-2011
EXT. P5 TRUE COPY OF THE ORDER DATED 13-07-2012 IN I.A 714/2011
IN OP (ELECTION) NO 126/2010 ON THE FILE OF MUNSIFF I (P)
KOZHIKODE
RESPONDENTS' EXHIBITS NIL
//TRUE COPY//
P.A. TO JUDGE.
dlk
"C.R"
V.CHITAMBARESH,J.
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O.P.(C) No.2709 of 2012
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Dated this the 15th day of October, 2012
J U D G M E N T
Can summons be issued to a person cited as a witness in an election petition in multiple addresses simultaneously? Such a procedure is attempted to be resorted to in a bid to establish 'double voting' in the election petition.
2. The election of the returned candidate is called in question under Section 102(1)(d)(iii) of the Kerala Panchayath Raj Act, 1994 ('the Act' for short). The defeated candidate pleads in the election petition that there has been an improper reception of void votes tilting the result of the election. The defeated candidate asserts that sixteen voters have cast double votes and that their votes are liable to be eschewed. Reliance is placed on Section 76 (3) of the Act to contend that no person shall vote at an election in more than one constituency of the same level. The defeated candidate points out that the sixteen voters have two residential addresses and spread over two constituencies. The sixteen voters have been cited as witnesses O.P.(C) No.2709 of 2012 2 in the election petition and summons sought to be served in their two addresses simultaneously. The court below has by the order impugned allowed the application put in by the defeated candidate in this regard which is challenged by the returned candidate.
3. I heard Mr.P.V Kunhikrishnan, Advocate on behalf of the returned candidate and Mr.R.Sudhish, Advocate on behalf of the defeated candidate in this original petition.
4. It is true that an election petition shall be tried by the court as nearly, as may be, in accordance with the Code of Civil Procedure, 1908 (the CPC for short) as per Section 94 of the Act. But neither Order 16 of the CPC nor Rule 69 of the Civil Rules of Practice ,1971(Kerala) permit issue of summons in multiple addresses simultaneously. The witnesses are summoned to court to prove that they have voted in more than one constituency in order to establish the ground of double voting. It is possible that a voter may have a residential address in the constituency where he works and another in the constituency where his ancestral home is situated. The fact that summons were served in two addresses cannot lead to the conclusion that the witnesses have cast double votes in two constituencies. Steps can be taken to O.P.(C) No.2709 of 2012 3 serve summons in the other known address of the witness only if it is not served in the address furnished. The practice of issuing summons to the witnesses in multiple addresses simultaneously is a procedure unknown to law . The process of court cannot be misused by any of the parties to create evidence and the factum of double voting has to be proved by independent evidence only.
5. The impugned order is set aside and I.A No.714/2011 in O.P (Election) No.126/2010 on the file of the Court of the Principal Munsiff-I of Kozhikode is dismissed. The defeated candidate is permitted to take summons to the sixteen voters cited as witnesses in one separate address only initially. Only if those witnesses cannot be served in such address can summons be taken in their other known address .
The Original Petition (Civil) is allowed. No costs.
V.CHITAMBARESH.
JUDGE smm O.P.(C) No.2709 of 2012 4 O.P.(C) No.2709 of 2012 5