IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 WA.No. 1839 of 2011 --------------------------- AGAINST THE ORDER IN IA.16821/2011 IN WPC.21390/2011 .................... APPELLANT/PETITIONER: ------------------------------------- MONCY THEUMPUNKAL,AGED 44 YEARS, S/O.T F CHACKO, MEMBER WARD NO.5, CHANGANASSERY MUNICIPALITY, KOTTAYAM DISTRICT. BY SR.ADV. SRI.K.RAMAKUMAR SMT.SMITHA GEORGE RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM 695 001. 2. SRI.SANTHOSH ANTONY, MEMBER WARD NO.31, CHANGANASSERY MUNICIPALITY, KOTTAYAM DISTRICT 686 101. R1 BY ADV. SRI.MURALI PURUSHOTHAMAN R2 BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 1839 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of December, 2011 JUDGMENT Manjula Chellur, Ag. C.J. Heard the learned Senior counsel, Sri.K.Ramakumar, arguing for the appellant herein. 2. The appellant herein was elected as a member of Changanassery Municipality from Ward No.5 in the elections held in the year 2010. It is also not in dispute that he was elected as a member of Kerala Congress(M), which in turn is part of political front called United Democratic Front. 3. The 2nd respondent filed O.P. No.69 of 2010 before the Kerala State Election Commission on the ground that during the elections held to the post of Chairperson and other Standing Committee members, the appellant voted violating the whip issued by the 2nd respondent. Apparently, the appellant appeared and defended himself before the State Election Commission. The 1st respondent Election Commission after hearing both the sides disposed of the Original Petition allowing the Original petition on W.A. No. 1839 of 2011 -:2:- merits. Aggrieved by the same, the writ petition came to be filed before the learned Single Judge. 4. It is not in dispute that on 05.08.2011 an ex parte interim order came to be granted in favour of the appellant herein and continued for some time. However, from the records we note that the learned Judge stayed the operation of Ext.P3 for a period of two months. The matter subsequent to 05.08.2011 came up on several dates between 20.08.2011 and 11.10.2011. However, the matter was not taken up. Meanwhile, I.A. No. 13677 of 2011 to vacate stay came to be filed. The I.A. was taken up for consideration on 11.10.2011. When the matter came up for consideration of this I.A., a detailed order came to be passed and the learned Judge after referring to several judgments with regard to Article 226(3) of the Constitution of India, ultimately made the following observations: “I, accordingly, hold that the ex parte interim order dated 05.08.2011 granted in favour of the respondent in the I.A stands automatically vacated as specified under Article 226(3) of the Constitution of India. It is mad clear that nothing hall prevent this Court to grant interim order afresh, after hearing the W.A. No. 1839 of 2011 -:3:- parties, if the court finds sufficient grounds to make such order, if a fresh application is submitted for the said purpose.” 5. Thereafter the present I.A., i.e. I.A. No.16821 of 2011 came to be filed seeking consideration of the interim prayer sought by the appellant herein in the writ petition which reads as under: “For the reasons stated in the accompanying affidavit, it is most humbly prayed that this Hon'ble Court may be pleased to stay the operation and implementation of Exhibit.P3 order pending final disposal of the above Wit Petition (Civil).” 6. While considering the present I.A., the learned Judge had referred to order on I.A. No.13677 of 2011 and taking into consideration the facts and circumstances, especially the interim relief sought in the main writ petition, rejected the relief sought by the appellant in the I.A. Aggrieved by the same, the present appeal is filed. 7. The main ground of attack against impugned order is non-consideration of principles of law evolved by the Apex Court in the reported case in Balchandra L.Jarkiholi & others v. B.S. Yeddyurappa & others [(2011) 7 SCC 1], with regard W.A. No. 1839 of 2011 -:4:- to the 'vice of defection'. The learned Senior counsel Mr.Ramakumar contended that the learned Judge was required only to consider whether the operation and implementation of Ext.P3 could be stayed or not, whereas he has touched upon the merits of the writ petition, therefore, interference is warranted. 8. On perusal of the main prayer and the interim relief sought by the appellant, we note, the interim relief sought is nothing but the main relief sought in the writ petition. However, having regard to the earlier application, where ex parte stay granted was sought to be vacated and also the main interim relief sought by the appellant herein, we find that the appellant could have sought for review of the order, if there was any error apparent on the face of the record or if the view taken by the learned Single Judge was in violation of the settled law in (2011) 7 SCC 1(supra). 9. The very relief sought in the application requires reference to the merits of the case, therefore, we are of the opinion, the learned Judge was justified in referring to the merits of the case. If ultimately the opinion of the learned Judge is in W.A. No. 1839 of 2011 -:5:- violation of the principles evolved in the above decision of the Apex Court, the best course is to bring to the notice of the learned Single Judge either seeking review of the order or requesting the learned Judge to dispose of the writ petition itself. In that view of the matter, we are of the opinion that nothing survives warranting our consideration and we only direct the appellant to request the learned Single Judge to dispose of the writ petition at an early date or he can also seek for review of the order, if he desires so. Manjula Chellur, Ag. Chief Justice. P.R.Ramachandra Menon, Judge. ttb