KHADEEJA Vs. SIDDIQUE

JUDGEMENT

(1.) The question that arises for consideration in this case is as to whether the State Election Commission while dealing with a petition under S.4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as 'the Act') has got the power to restore the petition which is dismissed for default.

(2.) The first respondent in O. P. 48/97 which is a petition filed under S.4 of the Act before the State Election Commission is the petitioner. She is a member of Karulai Grama Panchayat, the second respondent herein. The first respondent herein, who is another member of the second respondent panchayat, has filed the said petition before the State Election Commission seeking for disqualifying the petitioner herein from the membership of the second respondent Panchayat for the reason of defection. The election petition is dated 18.9.1997. The petitioner herein filed written statement on 23.1.1998. The State Election Commission examined witnesses on the side of the first respondent and the case was posted for evidence of the petitioner. On 2.1.1999 ie., the date of posting of the petition for evidence, the petitioner herein raised a preliminary objection regarding the maintainability of the election petition. The Election Commission decided to enquire into the issue of maintainability and the case was posted to 6.1.1999. On that day, neither the first respondent nor his counsel appeared before the Commission. The election petition was accordingly dismissed for default. The first respondent coming to know of the said dismissal filed a petition supported by an affidavit of the counsel on 3.2.1999 praying to restore the election petition to be heard and decided on merits. The said petition was posted for hearing on 16.2.1999. The petitioner herein then filed a very detailed objection to the said restoration application on 24.2.1999. The Election Commission allowed the restoration application. The petitioner challenges the said decision in this proceedings.

(3.) Learned counsel appearing for the petitioner submitted that the State Election Commission, while considering application under S.4 of the Act, has no power to restore an application which is dismissed for default. He submitted that the powers of the State Election Commission are specified in S.5 of the Act which do not include the power to restore an application which is dismissed for default. He also submitted that it is only the procedure as applicable while trying a suit under the Code of Civil Procedure, 1908 that is made applicable and not the entire provisions of the CPC. Learned counsel appearing for the first respondent, on the other hand, submitted that the State Election Commission while dealing with an application under S.4 of the Act has no power to dismiss the same for default. He took me to the provisions of S.4 of the Act in support of the above. He then submitted that in the absence of any specific provision for dismissal of an application for default, when the State Election Commission had exercised such a power, in order to correct the mistake committed by the Commission and in the interest of justice, necessarily it has to be held that the Election Commission has got the power to restore the application which is dismissed for default. Learned counsel appearing for the State Election Commission also submitted that though there is no specific provision to dismiss an application for default and / or to restore an application which is dismissed for default, such a power exists in all judicial tribunals to meet the ends of justice. The counsel also submitted that the provisions of S.5 of the Act itself contemplates the application of the provisions of the Code of Civil Procedure in regard to restoration of applications dismissed for default.