Leela, M. vs K. Pushpam and Another

J.B. Koshy, J.—All these revision petitions are filed against interim orders passed in election Petitions filed u/s 87 of the Kerala Panchayat Raj Act, 1994. Short question to be considered in this order is whether a revision application will lie u/s 115 of the CPC against a non-appealable order passed by a Munsiff''s Court in an election petition filed u/s 87 of the Kerala Panchayat Raj Act.

It is contended that Section 115 of the CPC empowers that the High Court to call for the records of any case which has been decided by any court subordinate to such High Court. Since election petitions are decided by the Munsiff''s Court which is subordinate to the High Court the revision application u/s 115 CPC will lie as against an interim order against which no appeal is provided. True scope of Section 115 of the CPC is explained by Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, . It was held that the word ''case'' used in Section 115 will include not only suits but any proceeding in a Civil Court.

Chapter X of Section 87 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to ''the Act'') provides that ''No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. Section 88 deals with the court competent to deal with the election petition is as follows:

The court competent to try election petitions.-The court having jurisdiction to try an election petition shall be-

(a) in the case of a village panchayat, the Munsiff''s Court having jurisdiction over the place in which the headquarters of the Panchayat is located; and

(b) in the case of a Block Panchayat or District Panchayat the District Court having jurisdiction over the place in which the headquarters of the Panchayat concerned is located.

(c) The Government shall, in consultation with the High Court notify the appropriate courts in the Gazette.

It is contended that as per the provisions of Section 88 of the Act, an election petition has to be filed in the Munsiff''s Court having jurisdiction of the place in which the headquarters located. Section 91 of the Act shows the contents of petition which is similar to plaint and it shall signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908. Sections 93, 94, 100 and 101 of the Act etc. refers to ''Court''. Therefore, it is contended that it is a court giving under the subordinate to High Court and not a Tribunal.

Section 94(1) provides as follows:

Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) to the trial of suits.

Therefore, it was pointed out that the Code of Civil Procedure, 1908 (hereinafter referred to as Code of Civil Procedure) is applicable and Munsiff''s Court is a Court as contemplated in Section 115 of the CPC Section 113 of the Act provides that "Any person aggrieved by an order made by the court u/s 100 or Section 101 may prefer an appeal, on any question of law or fact, (a) before the District Court on the decision of the Munsiff''s Court. Therefore, only orders mentioned u/s 113 are appealable. Interim orders passed are not appealable. Therefore, since these are orders passed by the court subordinate to the High Court in which no appeal lies, revision petition can be filed u/s 115 of the Code of Civil Procedure.

This view is seriously opposed by the Respondents. It is contended that even though election petitions u/s 87 of the Act are filed in the Munsiff''s Court, it is only a Election Tribunal. Article 243(0) of the Constitution bar interference by courts in electoral matters in the panchayat. Article 243(0) is as follows:

243(O) Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243(K), shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

The State Legislature has passed the Act and nominated Munsiff''s Court as the authority where election petition should be filed. Therefore, while disposing of the election petition Munsiff''s Court is not functioning as a Court but only as an Election Tribunal or authority. It is contended that the orders passed in the interim applications before such authority cannot be questioned in revision u/s 115 Code of Civil Procedure. Even though the term ''Court'' mentioned various sections, it only refers to an Election Tribunal and it is not a court as contemplated u/s 115 of the Code of Civil Procedure.

Respondents relying on Section 94 of the Act argues that CPC as such is not applicable while disposing of a petition under the Act. Only the procedure applicable under the CPC to the ''trial of suits'' are made applicable u/s 94 that too "as nearly as may be". Therefore, CPC as such is not automatically applicable. It is only a direction that the Tribunal can adopt similar procedure as contained in the Code of Civil Procedure. It is submitted that the remedy of the Petitioners, if they are aggrieved by the interim orders in the election petition, is to approach before the High Court by filing a writ petition and to challenge the above order along with the final order. It was also pointed out that this Court has entertained many of such writ petitions e.g. Devaki v. Kaveri Amma 1996 (1) KLT 130 even though maintainability question was not decided in those cases.

Section 93(5) of the Act provides that "Every election petition shall be tried as expeditiously as possible and shall be disposed of within six months from the date on which the election petition is presented to the Court for trial." Therefore, it is contended that the elaborate procedure under the CPC are not applicable. In any event, revision petition u/s 115 CPC is not applicable, as Munsiff''s Court hearing the election petition is only acting as an Election Tribunal.

This Court in the decision reported in Bhanumathi v. Eappen 1966 KLT 393 held that a Munsiff before whom an election petition is filed under Sections 22 and 24 of the Kerala Panchayat Act, 1960 has to act judicially in the sense that he has to function in all respects as a court, but that does not mean that he functions as "a court subordinate to this Court" so as to enable this Court to exercise jurisdiction u/s 115 of the Code of Civil Procedure. It is argued by the Petitioner that the above decision was rendered because of Rule 4 of the Kerala Panchayat (Decision of Election Disputes) Rules, 1963 wherein it is stated that Munsiff exercising jurisdiction under Sections 22 and 24 of the Act shall be deemed to exercise such jurisdiction as a ''persona designata'' and not in his capacity as Munsiff of the Court over which he presides. Such a provision like Rule 4 is absent in the Kerala Panchayat Raj Act, 1994 or Rules made thereunder. Therefore, it is contended that Munsiff exercising jurisdiction under Sections 87 and 88 of the Act is not a persona designata but is a Court subordinate to the High Court. If non-appealable orders are passed it is revisable u/s 115 of the Code of Civil Procedure. According to the Respondents, apart from Rule 4 making a Munsiff persona non grata, this Court gave several other reasons also to find that Section 115 CPC is not applicable against an order passed by the Munsiff in an election petition. For example the following passage in the judgment was emphasized.

Now the question is as to whether the contention of the learned Counsel for the Petitioner that this revision petition u/s 115 Code of Civil Procedure, as against the order passed by the Munsiff functioning under the provisions of the Act, is maintainable, is to be accepted or not. In my opinion, it is not possible to accept the contention of the learned Counsel, that the correctness or otherwise of the order under attack, can be considered by this Court exercising jurisdiction u/s 115 of the Code. It will be seen that Section 22(6) of the Act clearly states that the exercise of jurisdiction by the Munsiff is subject to the provisions of the Act and the Rules.

Here also Section 94 of the Act says the procedure before the court is "subject to the provision of the Act or any rules made thereunder." Therefore, exercise of jurisdiction is subject to Act and rules and it is not acting as a Civil Court as such.

Learned Counsel for the Petitioner also relied on the decision of the Supreme Court reported in Gopalan v. Aboobacker 1995 (2) K.L.J. 136 wherein it was held that the Limitation Act applies to appeals filed under the Kerala Buildings (Lease and Rent Control) Act. The District Judge functioning as an Appellate Authority is not a ''persona designata'' and even if concerned District Judge retires or gets transfer, otherwise ceases to hold the office of the District Judge, his successor in office can pick up the thread of the proceedings from the stage where it was left by his predecessor and can function as an Appellate Authority u/s 18. Therefore obvious that while adjudicating upon the dispute between the landlord and tenant and while deciding the question whether the Rent Control Court''s order is justified or not such Appellate Authorities would be functioning as courts. The above decision was followed in Abdul Rehiman v. Hameed Hassan Peruvad and Ors. 1995 (2) K.L.J. 435. In Gopalan''s case, 1995 (2) K.L.J. 136 referred to earlier, it was held by the Supreme Court that application u/s 29(2) of the Limitation Act applies to all courts where judicial functions are carried out and it need not necessarily be constituted under the CPC or a Civil Court. It was held that provisions of Sections 4 to 24 of the Limitation Act are applicable to the Appellate Court constituted under the Kerala Buildings (Lease and Rent Control) Act on a finding that the Appellate Authority constituted by Section 18 of the Rent Control Act was not a ''persona designata''. But for maintaining an application u/s 115 CPC the court must be constituted under the CPC or it must be a Civil Court. Merely because a court or tribunal is constituted under a special enactment, Section 115 CPC is not applicable unless provisions of the CPC are made applicable to that Court. u/s 94 of the Panchayat Raj Act, CPC is not made applicable as such. It only provides that the election petition shall be tried by the Court as nearly as may be in accordance with the procedure as applicable under the Code of Civil Procedure. The provisions of the CPC for other matters are not attracted.

Merely because the word "Court" is mentioned in various provisions of the Act, Election Tribunal will not become a court as contemplated under the Code of Civil Procedure. In Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, while dealing with the questions of the applicability of Article 137 and Sections 4 and 5 of the Limitation Act to applicants u/s 33C(2) of the Industrial Disputes Act Supreme Court held that notwithstanding the name ''Labour Court'' and its function it is not a ''Court'' for the purpose of Limitation Act. The Supreme Court further observed as follows:

In our view Article 137 only contemplates application to courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other applications mentioned in the various Articles are applications filed in a court. Further Section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is ''when the court is closed''. Again u/s 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the application. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to courts and that the Labour Court is not a court within the Indian Limitation Act, 1963.

In Birla Cement Works Vs. G.M., Western Railways, and another, the Supreme Court was considering a claim filed before the Railway Claims Tribunal u/s 16 of the Indian Railways Act and held that the Claims Tribunal is not a Civil Court. The Supreme Court held as follows:

Section 17(1)(c) of the Limitation Act, 1963 would apply only to a suit instituted or an application made in that behalf in the civil suit. The Tribunal is the creature of the statute. Therefore, it is not a Civil court nor the Limitation Act has application, even though it may be held that the Petitioner discovered the mistake committed in paying ''over charges'' and the limitation is not saved by operation of Section 17(1)(c) of the Limitation Act.

The Apex Court affirmed its earlier view in Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., . In Gopalan''s case 1995 (2) K.L.J. 136 these decisions were referred to and correctness of these decisions were not questioned even though on the facts of the case they were distinguished.

Rule 4 of the Kerala Panchayat (Decision of Election Disputes) Rules, 1963 earlier provided that Munsiff to function as ''persona designata'' while hearing election petition. That provision is absent in the new rules. u/s 88 of the Act, Government shall in consultation with the High Court notify the appropriate courts in the Gazette. Authority for hearing election petition is constituted as per the mandate of Article 243(O) of the Constitution of India which also bars the jurisdiction of the Court. Therefore, even in the absence of Rule 4 and even if the Munsiff hearing the election petition under the provisions of the Panchayat Raj Act is not a ''persona designata'', while dealing with an election petition under the Act, Munsiff''s Court is not acting as a Civil Court constituted under the CPC and Section 115 CPC is not applicable. In Major S.S. Khanna Vs. Brig. F.J. Dillon, even though it was held that the word ''case'' mentioned in Section 115 of the CPC need not be a suit, it was clarified that it should be a proceeding in a Civil Court to attract the jurisdiction of Section 115 of the Code of Civil Procedure.

It was argued by the Petitioners that the ratio of the decision of the Supreme Court in Shyam Sunder Agarwal and Co. Vs. Union of India, is clearly applicable in the instant case. In that case, Apex Court was considering a revision application filed u/s 115 CPC from the decision of the District Court under the Arbitration Act. As per that Act such decisions are final. It was held by the Supreme Court that revision application can filed u/s 115 Code of CPC before the High Court against the appellate order passed u/s 39 of the Arbitration Act is maintainable, even though no second appeal is maintainable. Section 39(2) of the Arbitration Act states as follows:

No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall effect or take away any right to appeal to the Supreme Court.

Section 41 of the Arbitration Act provides as follows:

(a) the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court, and to all appeals, under this Act, and

(b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court.

In R. McDill and Company Pvt. Ltd. Vs. Gouri Shankar Sarda and Others, Supreme Court held that Section 41 of the Arbitration Act provides that the provisions of CPC shall apply to all proceedings before the court and to all appeals, under this Act. In view of the above provisions there is no bar of jurisdiction of the High Court u/s 115 of the Code of Civil Procedure. All provisions of the Code of CPC are made expressly applicable to the appeals, under the Arbitration Act and in the absence of any specific bar, Section 115 of the CPC is also applicable. The Supreme Court in Shyam Sunder Agarwal and Co. Vs. Union of India, held only that even though no second appeal is provided u/s 39, there is no bar for exercising revisional powers of the High Court and the High Court can hear revision application u/s 115 of the Code of Civil Procedure. In the Kerala Panchayat Raj Act there is no provision like Section 41 of the Arbitration Act. All provisions of the CPC are not made applicable to the proceedings under the Kerala Panchayat Raj Act. Only the procedure regarding the ''trial'' as provided in CPC was made applicable that too ''as nearly as possible''. Therefore, I am of the view that the Munsiff''s Court while deciding a case under Sections 87 and 88 of the Kerala Panchayat Raj Act is not acting as a Civil Court constituted under the Code of Civil Procedure. All proceedings in the CPC are not applicable. It cannot be a court as contemplated u/s 115 of the CPC and therefore revision application is not applicable.

A Division Bench of this Court in Beeran v. Rajappan 1980 KLT 210 considered whether a non-appealable order of the Claims Tribunal under the Motor Vehicles Act can be revised u/s 115 of the Code of Civil Procedure. This Court held that the Claims Tribunal has judicial power of the State to decide the disputes between the citizens and citizens and the disputes between citizens and State which are to be left to the adjudication of the hierarchy of the courts established under the Constitution. The Civil Court and Tribunal, both are vested with the judicial powers of the State. But that does not mean both are same. In one sense, all courts are tribunals. But all tribunals, will not be ''Courts'', Courts in the strict sense. A Civil Court has judicial power of the State to try of all suits of civil nature excepting suits for which there is statutory bar. But judicial power is statutorily conferred on a tribunal to deal with special matters only. The Division Bench of this Court noted that only certain provisions of the CPC are made applicable under the Motor Vehicles Act and held that Claims Tribunal is not a Court and its non-appealable orders are not revisable u/s 115 of the Code of Civil Procedure.

In the Panchayat Raj Act only procedure regarding the trial of the suit is made applicable that too as ''nearly'' as possible. It has to function subject to the other provisions of the Act and Rules made thereunder. Therefore Rules can be framed to regulate the procedure in an election petition. By hearing the election petition Munsiff''s Court act only as an election tribunal and not as a civil court. Applying the ratio of the Bench Decisions of this Court in Beeran v. Rajappan 1980 KLT 210. I can safely hold that the orders of the Munsiff''s Court while hearing election petition under the Act are not revisable u/s 115 of the CPC in the absence of a provision like Section 41 of the Arbitration Act. Article 243(O)(b) of the Constitution of India provides for Constitution of the Authority to hear the election petitions and such Authority is constituted under the Panchayat Raj Act and therefore in view of the provision of Article 243(O) also the Munsiff''s Court hearing election matters is not acting as a court within the ambit of Section 115 Code of Civil Procedure. In view of the above, I am of the view that this Civil Revision Petitions filed u/s 115 CPC against non-appealable orders passed under the Kerala Panchayat Raj Act are not maintainable. Hence I hold that all these petitions are not maintainable and hence are dismissed without prejudice to the right of the Petitioners in pursuing other remedies.