Gopalakrishnan Nair and Others vs The Munsiff and Others

T.L. Viswanatha Iyer, J.—Petitioner was elected to the Kumaranalloor Panchayat from Ward No.1 at the election held on January 23, 1988. The second respondent, who was also a candidate, filed petition u/s 22 of the Kerala Panchayats Act, 32 of 1960 before the Munsiff, Ettumanoor to declare the petitioner''s election as invalid and void, and for other reliefs. The petition stood posted to various dates, after the petitioner entered appearance, and filed his objections. On September 29, 1988, the Munsiff directed the second respondent to take steps for service of copy of the election petition on the President of the Panchayat, and for publication, as required by Rule 10 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 The steps were directed to be taken within three days, and the case was posted to October 6, 1988. The second respondent paid the necessary batta on October 1, 1988 for service of copy of the petition on the President of the Panchayat, and produced copies of the petition and the list of allegations and corrupt practices for purposes of publication, on October 3, 1988. 2nd October was a holiday, being Sunday. It is stated that on October, 6, 1988, when the case was called, Sri, Sasikumar, advocate, represented these facts before the Munsiff on behalf of the second respondent''s counsel Sri. C. L. Joseph. But his representation was not considered as he did not have vakalath to represent the election petitioner. Sri. C.L. Joseph could not himself appear on that day on account of some personal inconvenience. The election petition was thereupon dismissed for default.

Within a few days, i.e., on October 10, 1988 the second respondent filed an application Ext. P2 to restore the petition to file. The petition was supported by an affidavit Ext. P3 of his counsel Sri. C L. Joseph deposing to the facts mentioned above. The petitioner objected, inter alia with the contention that the Munsiff had no jurisdiction to restore an election petition dismissed for default. The objections were not accepted, and the Munsiff restored the election petition to file by the order Ext. P5. This order is challenged by the petitioner

Petitioner''s contention is that the Munsiff has no jurisdiction to restore to file an election petition, filed u/s 22 of the Act which has been dismissed for default.

Sub-section 2 of section 22 of the Act enables a person, qualified to vote at the election, to file a petition to determine the validity of the election on one or other of the grounds specified in sub-section 1. Sub-section 5 directs that subject to the provisions of the Act, and the Rules, the enquiry on such a petition shall be held by the Munsiff in accordance with the procedure applicable under the CPC 1908 (CPC for short), when trying a suit. The Rules mentioned are those contained in the Kerala Panchayats (Decision of Election Disputes,) Rules, 1963, hereinafter referred to as the Rules Rule 11 provides that, subject to the provisions of the Act and of any Rules, every election petition shall be tried by the Munsiff as nearly as may be in accordance with the procedure Applicable under the CPC to the trial of suits. Petitioner''s contention is that rule 11 requires only that the trial shall be, as nearly as may be, in accordance with the procedure for the trial of suits under the CPC, and that, in the absence of any express provision authorising restoration of a petition dismissed for default, it cannot be restored to file.

It is true that there is no specific provision in the Act or in the Rules for restoration of a petition dismissed for default At the same time, there is also no specific provision enabling the Munsiff to dismiss a petition for default. If the petitioner''s contention be correct, it must logically follow that the Munsiff has also no jurisdiction to dismiss an election petition for default. (See Kalyani Amma Bhargavi Amma v. Quseph Varkey, AIR 1987 Ker 287 (FB)). In other words, the dismissal of the election petition for default on October 6, 1988, was itself without jurisdiction. It was therefore, pointed out to counsel for the petitioner that if I were to accept his contention, I will also have to accept the position that the dismissal for default was void, and that, all that the Munisiff did by the impugned order was to remedy the injustice, caused by that void order.

Counsel nevertheless argued that the Munisiff had no power of restoration, that the only provisions of the CPC attracted were those relating to trial of suits, and therefore, the provisions of Order IX CPC could be invoked by the petitioner as the dismissal was at the pre-trial stage.

The procedure for the trial of election petitions is as nearly as may be that provided under the CPC for the trial of suits. I do not agree that the provisions of the CPC are attracted only for the stage of actual examination of the witnesses and delivery of judgment, confining the word ''trial'' to that part of the proceedings, leaving the prior stages of the proceedings without any rules to govern them. Such an interpretation is not warranted by rule 11. Rule 11 attracts the provisions of the CPC generally to the entire proceedings, right from the institution to its close, except where there are specific provisions made in the Act or in the Rules themselves for the purpose, or when any particular provision cannot be applied in the peculiar circumstances of an election petition. The provisions in Order IX of the Code are" therefore, attracted to the trial of election petitions. If the petition could be dismissed for default, equally it can also be restored on sufficient cause being shown.

Rule 11 is pari materia with section 87 of the Representation of the People Act, 1951. The Supreme Court had occasion to deal with this latter provision in their decision in Dr. P. Nalla Thampi Thera v. Shankar AIR 1984 S.C 135, where one of the questions raised was whether an election petition could be dismissed for default. The interesting contention raised by the petitioner was that when once an election petition is filed, it concerns the entire constituency. The purity of the electoral process is of paramount importance, and therefore, an election petition could not be permitted to be dismissed for default as that would lead to situations brought about by manipulation, undue influence, fraud or winning over of the election petitioner. The Supreme Court did not agree. It was held that an election petition was liable to be dismissed for default in situations covered by Order IX or Order XVII of the CPC, and an application under Order IX rule 9 will be maintainable for its restoration Inter alia, the Supreme Court took note of the observations of Hidayatullah, C. J., in Sunderlal Mannalal Vs. Nandramdas Dwarkadas and Others, , where the learned Chief Justice observed that no court or Tribunal was supposed to continue a proceeding before it when the party who was moved it had not appeared or cared to remain present. The dismissal for default was in exercise of an inherent power which every Tribunal possessed.

As pointed out earlier, if the extreme contention of the petitioner is to be accepted, the logical consequence will be that even a dismissal for default is illegal. The Supreme Court has taken the view that it is within the inherent power of the Election Tribunal to dismiss a petition for default. It must then follow that such a petition could also be restored on sufficient cause being shown. Various situations could be visualised where a party or counsel is prevented from appearing at the hearing; for reasons beyond their control. In Jaipur Mineral Development Syndicate, Jaipur Vs. The Commissioner of Income Tax, New Delhi, , the Supreme Court was dealing with a case where the High Court of Allahabad declined to answer a reference u/s 66(1) of the Income Tax Act, 1922, on account of default of appearance of the applicant - assessee, and subsequently refused the assessee''s prayer for rehearing on the ground that it had become functus officio. The court observed:-

The Courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal, of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance on the date of hearing.

It is thus evident that courts possess the power to recall orders passed by them in the interests of justice or to prevent abuse of process of the court, in the absence of any express or implied prohibition. If the Munsiff could dismiss for default, equally the power to undo the injustice on sufficient cause being shown should also be found to exist. This is part of the inherent powers of the Munsiff. Therefore, and even assuming that Order IX of the CPC was not liable to be invoked, the Munsiff possessed the inherent power to set aside the dismissal for default. The negation of such power will lead to Injustice in given cases.

This view of mine finds support in toe decisions (amongst others) in Cheru Ouseph v. Kunjipathumma, 1981 KLT 495, where this court affirmed the power of the Rent Control Court to restore an application dismissed for default, Duryodhan v. Sitaram AIR 1970 All I (FR) (Cases under the Representation of the People Act, 1951), R.K.V. Motors and Timbers (P) Ltd. and Others Vs. Regional Transport Officer and Another, and Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, (relating to the setting aside of an exparte award under the Industrial Disputes Act). I am therefore of the opinion that the Munsiff had the power to entertain an application under Order IX rule 9 to restore the election petition dismissed for default. Ext. P2 petition was therefore maintainable. It was supported by the affidavit of the counsel for the second respondent. The second respondent had complied with the directions issued by the court on September 29, 1988 by taking all the necessary steps on or before October 3, 1988, 2nd October being a holiday. In fact the Tribunal has himself found that his order has been complied with. The election petition was therefore rightly restored to file by the Munsiff. Ext. P5 is beyond Challenge. I dismiss the original petition in limine.