DANAM Vs. PURUSHOTHAMAN NAIR

JUDGEMENT

(1.) Petitioner is the successful candidate to Chandramangalam Ward (No. 6) of Kattakada Grama Panchayath. Respondent, one of the unsuccessful candidates filed Election O. P. 7/05 to set aside the election of petitioner and to declare himself as the elected candidate. Notice was sent to petitioner from Court for appearance on 26-11-2005. When the case was taken up, on that day it was found that notice was not returned. The case was posted for appearance to 9-12-2005. Under R.99 of Kerala Panchayat Raj Act (hereinafter referred to as the 'Act') a recrimination petition is to be filed by the respondent within fourteen days from the date of commencement of the trial. As provided under explanation to S.93 (3) the trial of an election petition shall be deemed to commence on the date fixed for the appearance of respondent before the Court. But petitioner filed recrimination petition along with an application to condone the delay of 9 days on 2-1-2006. It was contended that though recrimination petition should have been filed on 23-12-2005, as his wife was seriously ill and was admitted at Medical College Hospital and subsequently died on 25-12-2005, he could not file the recrimination petition in time and it could be filed only on the reopening day after Christmas vacation and therefore the delay of 9 days may be condoned and recrimination petition may be received. Respondent opposed the application.

(2.) As per Ext. P5 order, Court below dismissed the application holding that under S.99 of the Act recrimination petition should be filed within 14 days from the date of commencement of the trial and the trial commenced on 26-11-2005, the date, on which petitioner was directed to appear as per the notice and the delay cannot be condoned. This order is challenged in this petition filed under Art.227 of Constitution of India.

(3.) The argument of learned Counsel appearing for petitioner is that even though petitioner was directed to appear on 26-11-2005, the Court adjourned the, date for appearance to 9-12-2005 and therefore the date of commencement of the, trial could only be 9-12-2005 and if so, the period provided under S.99, expired only on 23-12-2005 and as the wife of petitioner was laid up and subsequently died from the hospital on 25-12-2005, and the Court closed for Christmas vacation from 24-12-2005 till 31-12-2005, recrimination petition was filed on reopening day and the delay is to be condoned.