RADHAKRISHNA PILLAI Vs. SASIDHARAN NAIR

JUDGEMENT

(1.) The petitioner's election petition was dismissed by the learned Munsiff who is the competent authority under S.22 of the Kerala Panchayats Act, 1960 (the ''Act"). The petition was dismissed on a preliminary point. The Munsiff held that sufficient court fee had not been paid at the time of presenting the petition. The balance court fee was paid only subsequent to the date of presentation of the petition. This involved an amendment of the petition which the Act and the Rules, did not permit. Accordingly by Ext. P1 order the Munsiff held that the petition was not maintainable.

(2.) The contention of the petitioner in the election petition is that of the 14 votes declared invalid 4 votes were valid and ought not to have been rejected. Those 4 votes were cast in favour of the petitioner. If they had not been rejected the petitioner would have won, for the difference between himself and the 1st respondent was only one vote. This is a matter which of course depends upon evidence and the final result of the trial. But the petitioner is aggrieved by the fact that his petition has been dismissed on a purely technical point. It is contended on behalf of the petitioner by his counsel, Sri. Achutha Kurup that an election petition is liable to be dismissed for want of proper presentation only for the reasons mentioned under R.5 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 (the "Rules") and for no other reason. Want of payment of requisite court fee is not one of the reasons mentioned under R.5. The only defect in the election petition was non payment of the requisite court fee. This was paid before the petition was numbered. Such payment did not involve any amendment of the petition. Even if an amendment was involved in such payments the Munsiff had sufficient power to allow an amendment of the petition for the purpose of accepting the balance court fee. R.11 specifically provides that the Munsiff has the duty to try an election petition subject to the provisions of the Act and the Rules in accordance with the procedure followed by a Civil Court. S.149 of the Code of Civil Procedure gives sufficient power to a civil court to allow a litigant to pay the whole or part of the court fee at any stage of the proceeding before it and treat the petition as if the court fee payable upon it had been paid at the time of the original presentation. I fully agree.

(3.) The respondents' counsel points out that the learned Munsiff was not acting as a court when he passed the order. He was only a persona designata and his powers are limited to those mentioned under R.13. That rule is limited to what is specifically stated thereunder. He, therefore, submits that power to allow amendment of an election petition is not a power which is vested in the Munsiff acting as persona designata.