MATHEW Vs. KURUVILLA

JUDGEMENT

(1.) THIS is a petition under S. 115 of the Code of Civil procedure, 1908, and Art. 227 of the Constitution praying for the reversal of an order of the Election Commissioner, Vaikom, in Panchayat Election Petition no. 5 of 1953. The order impugned is the order of 17. 3. 1954 by which he refused to consider the petitioner's application for relief under O. IX R. 13 of the code of Civil Procedure, 1908, on the ground that the provisions of that rule are unavailable to the trial of Election Petitions under the Travancore Cochin panchayat Rules, 1951.

(2.) THE petitioner is the returned candidate and the 1st respondent, the successful petitioner in Election Petition No. 5 of 1953, who has been able to secure a declaration to the effect that the Election of the returned candidate was void and that he himself has been duly elected. THE order in favour of the 1st respondent was passed ex-parte on 15. 2. 1954 and the petitioner by his petition dated 9. 3. 1954 invoked, as stated above, the provisions of O. IX R. 13 of the Code of Civil Procedure, 1908.

(3.) THE only further question that remains to be considered is whether the provisions of O. IX R. 13 are available to the petitioner as contended by him, S. 141 of the Code of Civil Procedure, 1908 provides: "the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction". It is, however, unnecessary to consider the scope and ambit of this section in view of R. 75 (2) of the Travancore Cochin Panchayat rules, 1951, the relevant portion of which reads as follows: "subject to the provisions of the Act and of any rule made thereunder, every election petition shall be tried by the Election commissioner, as nearly as may be, in accordance with the procedure applicable under the Code of Criminal Procedure, 1908 (Act V of 1908) to the trial of suits".