Before upsetting an election, the Court ought to be satisfied beyond all doubt that the election is void

The law in EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”. 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 meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. 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 opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. 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 costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs. of Rs. 250/- to the petitioner in the lower Court.

Final Result : Allowed

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