ABDURAZAK VELLIATH Vs. C K M MOIDEENKUTTY

JUDGEMENT

(1.) The second respondent in Election (O.P.)No. 46 of 2005 on the file of the Munsiff Court, Tirur is the petitioner in this Writ Petition. Petitioner is the returned candidate from Ward No. 15 of Tanalur Grama Panchayath in the election held on 26-09-2005. Respondents were the other candidates who contested in the above election. The first respondent filed Election (O.P.) No. 46 of 2005 before the Munsiff Court, Tirur challenging the said election. Petitioner along with respondents 2 and 3 were named as the respondents in the Election O.P. The first date of hearing of the election petition was 8-12-2005. Petitioner entered appearance on that day. On 22-12-2005, the petitioner filed I.A.No.l of 2006 and gave notice as contemplated under Section 99 of the Kerala Panchayath Raj Act (P.R.Act for short) to the court of his intention to give evidence to prove that the election of the first respondent would have been void if he had been a returned candidate. The application was dismissed on the ground that it was filed beyond the period of 14 days prescribed under Section 99 of the P.R.Act. Challenging that order, this Writ Petition is filed.

(2.) The learned Counsel appearing for the petitioner has argued that the view taken by the court below that the trial of the election petition shall be deemed to commence on the date fixed for the appearance of the respondents to appear before the court is not correct. It is argued that the 14 days stated in the first proviso to Section 99 of the P.R.Act shall be reckoned from the date on which the case is actually posted for taking evidence. It is argued that even accepting the contention that the trial of the petition shall be deemed to have commenced from the date fixed for the first appearance of the parties, i.e. on 8-12-2005, the notice given was within time. It is argued that date on which the case was posted for his appearance is to be excluded in view of the provisions contained in Section 9 of the Interpretation and General Clauses Act, 1125 and if that day is excluded, the notice given was within the time limit.

(3.) Learned counsel appearing for the contesting respondent has argued that in Damodaran v. Munsiff, Taliparamba 1998 (2) KLT 392 This court relying on the decision of the Supreme Court in Union of India v. Madan Lal Yadav has held that the trial of the petition shall be deemed to have commenced on the date fixed for the respondents to appear before the court. It is also argued that the petitioner is not entitled to exclude the day on which he was directed to appear before the Election Tribunal. I do not think it is necessary to consider the correctness or otherwise of the decision rendered in Damodaran's case (supra) in this proceedings. If the petitioner is entitled to get exclusion of 8-12-1995, the recrimination filed on 22-12-2005 is within the time. Section 99 of the P.R Act is the relevant section. Section 99 of the P.R. Act reads as follows: