MOHAMMED RAFI S Vs. FATHAHUDEEN

JUDGEMENT

(1.) First respondent was declared elected to Ward No. 19 of Mayyanadu Grama Panchayath of Kollam District in the election held on 24/09/1995. Petitioner and respondents 2 and 3 were the other candidates. First respondent secured 385 votes out of the total polled votes of 1029. Petitioner received 382 votes, second respondent 5 votes and third respondent 230 votes. 27 votes were declared invalid. Petitioner filed OP (Ele) 2 of 2005 before Additional Munsiff, Kollam to set aside the election of the first respondent. The election was challenged only on the ground of double voting. It was contended in the election petition that there were 13 double votes. The details of the votes were specifically pleaded. First respondent resisted the election petition denying the case of double voting. After the election petition was included in the special list petitioner filed, IA 1090 of 2006 on 04/03/2006 to amend the election petition incorporating the detail of one more double voting and to incorporate a relief of declaration that petitioner is the elected candidate. It was allowed and evidence was recorded. On the side of the petitioner, 14 witnesses were examined and Ext. A1 and A2 and X1 to X42 were marked. On the side of first respondent no evidence was adduced. Learned Munsiff on evidence found that there were 9 double votes and the majority being only three votes the double votes had materially effected the result of the election. It was found that the said void votes are to be excluded. While so excluding, it was found that petitioner has secured 382 votes and first respondent only 376 votes. Consequently it was found that petitioner should have been declared as the elected candidate instead of the first respondent. Election of first respondent was set aside and petitioner was declared the returned candidate from ward No. 19 of Mayyanadu Grama Panchayath with a majority of 6 votes. First respondent challenged that order before District Court, Kollam in AS (Election) 94 of 2007. Learned District Judge on reappreciation of the evidence found that election of the first respondent was set aside on finding that there were 9 double votes and when the said void votes are excluded petitioner secured 6 votes more than what was secured by first respondent. It was found that the finding on the 9 double votes was, based on comparison of the signatures, arrived at by the learned Munsiff without the assistance of an expert and based on the comparison of the signatures of the witnesses with the signatures seen in the counterfoil receipts. Learned District Judge, relying on the decision of the Apex Court in Bharathan v. Sudhakaran, 1996 KHC 97 : 1996 (1) KLT 466 : 1996 (2) SCC 704 : AIR 1996 SC 1140 : JT 1996 (2) SC 384 : 1996 AIR SCW 685 found that learned Munsiff should not have rendered a finding solely based on the comparison of the signatures, without the aid of a report from an expert. Therefore the order of the learned Munsiff was set aside and election petition was remanded to Munsiff Court for fresh disposal after getting a report on the identity of the disputed signatures from an expert and entering a definite finding on the identity of the persons whose names appear in both the lists and voted. The order of remand is challenged in this revision petition filed under S.115 of the Code of Civil Procedure.

(2.) Learned counsel appearing for petitioner and learned senior counsel appearing for first respondent were heard.

(3.) Learned counsel appearing for petitioner argued that learned District Judge was not justified in remanding the election petition based on the decision of the Apex Court in Bharathan's case (supra). It was argued that in that case there were altogether more than 300 disputed votes and on the facts of that case it was found that the Court should not have taken the hazardous task of adjudication upon the genuineness and authenticity of the signatures without the assistance of a skilled and trained person. The learned counsel relied on the following observation of their Lordships held in Bharathan's case: