The law in England is that even ‘if the petitioner claims the seat or office, but the respondent does not oppose the petition, the petition ought to proceed to trial as the rights of the constituency or electoral area are concerned’.

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : M.B. Vishwanath, J )

GULABI POOJARTHI — Appellant

Vs.

SHOBHA — Respondent

C.R.P. No. 857 of 1995

Decided on : 17-07-1995

Karnataka Panchayat Raj Act, 1993 – Section 15, Section 20

Cases Referred

H.V. Venkatesh Vs. Election Officer 2835, (1994) ILR (Kar) 2835 : (1994) 4 KarLJ 680

ORDER

Vishwanath, J

1. Heard both Counsel. It has been laid down by this Court in H.V. Venkatesh Vs. Election Officer 2835, that the decision of the Munsiff in an Election Petition is revisable by this Court u/s 115 CP.C.

2. In this Revision Petition the petitioner in the lower Court has challenged the order passed by the learned Munsiff, Belthangady on 4.1.1995 in Mis.No. 4/1994 filed under Sections 15 and 20 of the Karnataka Panchayat Raj Act, 1993, setting aside the election of the Revision petitioner and declaring the respondent as duly elected.

3. It is clear from the material on record that the Revision petitioner had not filed objections to the Election Petition. The learned Munsiff proceeded to decide the Election Petition on merits even when the Revision petitioner had not filed objections and contested the matter, though represented by a Counsel.

4. ‘Before upsetting an election, the Court ought to be satisfied beyond all doubt that the election is void’. The law in England is that even ‘if the petitioner claims the seat or office, but the respondent does not oppose the petition, the petition ought to proceed to trial as the rights of the constituency or electoral area are concerned’.

5. It is argued by the learned Counsel for the respondent that the impugned order is an order on merits and cannot be set aside. I find it difficult to accept this argument, bearing in mind that the Revision petitioner had not even filed objections. Though the learned Munsiff has purported to pass an order on merits, it does not cease to be an exparte order.

6. I am of the opinion that this is a fit case in which opportunity should be granted to the Revision petitioner to file objections and contest the matter. Accordingly, the impugned order is set aside and the matter is remanded to the learned Munsiff with a direction to give sufficient opportunity to the Revision petitioner to file objections and contest the Election Petition.

7. Revision Petition is accordingly allowed, the impugned order is set aside and the matter is remanded. The Revision petitioner shall pay costs of Rs. 250/- to the petitioner in the lower Court.

Final Result : Allowed

(1995) ILR(Karnataka) 2961 : (1995) 3 KantLJ 514