MOHAMMAD 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 24.9.1995. 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 O.P.(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, I.A. 1090 of 2006 on 4.3.2006 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 A.S. (Election) 94 of 2007. Learned District Judge on re -appreciation 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 (1) KLT 466 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 Section 115 of the Code of Civil Procedure.

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

(3.) POINTING out that in that case findings of the High Court on the identity of signatures arrived at after comparing the signatures on the question of double voting and impersonation were confirmed by the Apex Court, it was argued that learned District Judge was not justified in reversing the order of the learned Munsiff and remanding the election petition. It was argued that on the evidence it was established that there were 9 void votes which are to be excluded and when those votes are excluded, first respondent secured 6 votes less than the votes secured by the petitioner and in such circumstances the order of remand is not sustainable. The learned Counsel argued that when evidence of the disputed voters themselves about the identity of the signatures in the counterfoil receipts are sufficient to prove double voting, there were no necessity for the assistance of an expert and on the evidence on record, learned District Judge should have found there were more void votes, than the majority secured by first respondent and in such circumstances the order of remand was not warranted. Learned Counsel also argued that PW5 Zakir Hussain admitted that he had voted in Booth No. 2 and as per his version he did not cast his vote in Booth No. 3 but at the time of cross -examination, he admitted Ext.X28 counterfoil relating to Booth No. 2 and Ext.X38 counterfoil in respect of Booth No. 3 and when PW5 himself admitted his signatures in respect of both the booths, no further evidence is necessary to prove that fact much less opinion of an expert. It was also pointed out that PW8 Sajeera admitted that she voted in Ward No. 19 but when Ext.X26 counterfoil receipt in respect of Ward No. 19 was confronted, she denied her signature therein. At the same time, though PW8 denied the case that she had cast her vote in Ward No. 4, when Ext.X41 the counterfoil in respect of the said Booth was confronted, she admitted her signature. It was argued that in the light of evidence in Ext.X26 is false and though she denied voting in Ward No. 4, admission of her signature in Ext.X41 counterfoil establish that she had voted in Ward No. 4 and therefore no further evidence is necessary to prove that double voting. Similarly it was argued that PW12 Salim admitted that he voted in Ward No. 19, but when Ext.X25 counterfoil relating to the said booth was confronted, he denied the signature and when Ext.X40 was confronted he admitted his signature therein, though he denied the case that he cast his vote in Ward No. 20. It is therefore argued that no evidence of an expert is necessary to hold that PW12 voted in Ward No. 20 in view of his admission of identity of the signature in Ext.X40 and PW 12 admitted that he had cast his vote in Ward No. 19 also. It was also argued that similarly PW 13 Sajeena and PW 10 Sainudeen admitted that they voted in Wart No. 19, but when Ext.X29 and X22 counterfoil receipts in respect of Ward No. 19 were confronted, they denied their signatures and when Ext.X39 and ExtX34 counterfoil receipts in respect of Ward No. 3 were confronted, they admitted their signatures and though PW 13 and PW10 denied the case that they casted votes in Wart No. 3, Exts.X39 and X34 establish that they casted their votes both in Ward No. 3 also and therefore evidence of PWs 5, 8, 10, 12 and 13 establish at least 5 double voting which are to be excluded as void votes. Learned Counsel argued that even if the evidence with regard to other double voting is not acceptable because of the denial of the signature in the counterfoil receipts and failure to get the reports of an expert, as evidence of PWs 5, 8, 12, 13 and 10 establish double voting and therefore learned District Judge should not have remanded that case to the trial Court. It was argued that when the majority is only 3 and evidence prove that 5 votes secured by first respondent are void votes and when they are to be excluded, there is no necessity to interfere with the order declaring that petitioner is the elected candidate.