IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No.1170 of 2009 (L) -------------------------------- EOP.2/2005 of MUNSIFF COURT, CHITTUR .................... PETITIONER: --------------- SINDHU,W/O.FRANCIS THANKARAJ AGED 31 YEARS,PALANIYAR PALAYAM P.O.KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENTS: ------------------ 1. SMT.LILLY SAHAYA MERY, W/O.SANTHAKUMAR, AGED 43 YEARS, PALANIYAR PALAYAM P.O. KOZHINJAMPARA, CHITTUR TALIK, PALAKKAD DISTRICT. 2. RENUKA SELVAN, W/O.SELVARAJ,AGED 37 YEARS, KOZHINJAMPARA GRAMA PANCHAYAT, CHITTUR TALUK, PALAKKAD DISTRICT. 3. THE TAHSILDAR CHITTUR, THE RETURNING OFFICER OF G-58,KOZHINJAMPARA GRAMA PANCHAYAT. SRI.V.CHITAMBARESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1170 of 2009 ------------------------------------------------ Dated this the 12th day of January, 2009 JUDGMENT This writ petition is filed by Sindhu, S/o Francis Thankaraj, who is the returned candidate from Ward No.(III of Kozhinjampara Grama Panchayat. The first respondent, who was one of the defeated candidates, filed E.O.P.No.2/05 on the file of the Munsiff's Court, Chittur. It is submitted that the petitioner as also the first respondent adduced all the evidence that they wanted to adduce in the court below. The ballot papers were produced before the court and are in safe custody. The court below, vide Exhibit P1 order, directed to examine the ballot papers in open court in the presence of both parties and their counsel after the evidence in the case was closed to pick out the two ballot papers used by Albert Selvaraj and Sowrimuthu W. P. C. No.1170 of 2009 -2- corresponding to Counter Foil Nos.230 and 240 for the purpose of eliminating them from consideration, as double voting by Albert Selvaraj and Sowrimuthu stood established. The direction to open the ballot box and eliminate the two votes was earlier assailed before this Court by the petitioner. However, while that writ petition was being argued, counsel for the petitioner sought leave to withdraw the writ petition with leave to file a petition in the court below to have the finger prints on the counter foils of ballot papers issued to Albert Selvaraj and Sowrimuthu also being examined in comparison with the admitted finger prints of Albert Selvaraj and Sowrimuthu taken from court as also their finger prints on the counter foils of ballot papers issued to them in Ward No.II which was already examined by the expert. W. P. C. No.1170 of 2009 -3- Leave to move such a petition was granted directing the petitioner to file the said petition positively on 3.1.2009 and directing opening of the ballot papers directed to be had on 5.1.2009 being adjourned till the disposal of the petition to be filed on 3.1.2009. Accordingly, petitioner filed Exhibit P3 petition, to which the first respondent filed Exhibit P4 counter and the court below after hearing both sides passed Exhibit P5 order, rejecting her request, which is now assailed by the petitioner in this writ petition. 2. It is vehemently argued before me by the learned counsel for the petitioner that in an election petition when casting of double votes is alleged so as to invalidate votes cast by Albert Selvaraj and Sowrimuthu who are examined respectively as PWs.9 and 10, it is W. P. C. No.1170 of 2009 -4- the duty of the court to see that they have cast votes both in Ward No.II as well as in Ward No.III and that the expert opinion obtained at present comparing the finger prints of those witnesses in the counterfoil of ballot papers issued to them in Ward No.II at best will show only that they have cast votes in Ward No.II; that it is not enough that two persons having similar names are located from the voters lists in two different wards and win them over for the purpose of making them swear before court that they have cast votes in both the wards so as to assail the result of an election and that the court below should have therefore, allowed the application to have the finger prints on counterfoils of ballot papers allegedly used by them to cast votes in Ward No.III being examined by a finger print expert in W. P. C. No.1170 of 2009 -5- comparison with their admitted finger prints taken in open court as also the finger prints appearing on the counterfoils of ballot papers used by them to cast votes in Ward No.II and that the dismissal of Ext.P3 petition vide Ext.P5 order cannot be justified going by the principles in election law. 3. The first respondent who assails the election filing Election Petition No.2/05 in the court below has examined PWs.9 and 10 who have allegedly cast votes both in Ward No.II and Ward No.III. It is submitted that they are father and son. However, from the addresses of both PWs.9 and 10 shown in the voters list both in Ward No.II and Ward No.III their identity as PWs.9 and 10 was not assailed when they tendered evidence. So their identity as persons having their names included in Ward No.II and Ward No.III is not a matter of W. P. C. No.1170 of 2009 -6- dispute now. When examined before court both of them admitted that they have cast votes in Ward No.III. That statement was not challenged by either side. The question then remained for consideration was as to whether they had cast votes in Ward No.II. They denied of having exercised their votes in Ward No.II. Consequently, that was the vital issue for consideration as matters then stood. It was therefore, that the first respondent filed application to have the admitted finger prints of both PW9/Albert Selvaraj and PW10/ Sowrimuthu being taken in open court and being compared by an expert with the finger prints on the counterfoils of ballot papers issued to the concerned voters in Ward No.II. It is not in dispute that the finger print expert has opined that the admitted signatures of PW9 Albert Selvaraj tallied with the finger print W. P. C. No.1170 of 2009 -7- found on the counterfoil of ballot paper issued to the Said Selvaraj in Ward No.II and similarly the finger print on the counter foil of ballot papers issued to PW10/Sowrimuthu tallied with the specimen finger print taken in open court from him. The correctness or otherwise of the opinions so rendered by the experts is however, not in issue. What the petitioner who is the first respondent in the election petition and who was the returned candidate wants is to have the finger prints appearing on the counter foils of ballot papers issued to PW9 and PW10 in Ward No.III also being examined in comparison with their finger prints taken in open court which was already compared with their finger prints on the counter foil of ballot papers issued to them in Ward No.II. W. P. C. No.1170 of 2009 -8- 4. It is worthy to note that such a prayer had not been advanced when the first respondent moved for expert opinion being obtained on the admitted finger prints of those witnesses in comparison with the finger prints on the counterfoils of ballot papers issued to them in Ward No.II. Had such a request being advanced at that time probably the court below would have allowed that and there would have been justification also so as not to be observed as a move from the side of the petitioner to protract the proceedings. However, that having not been done the court below cannot be faulted in observing that the attempt of the petitioner is to protract the result of the election petition being delivered apprehending an adverse decision against her. It has to be remembered that admitted facts need not be proved in any W. P. C. No.1170 of 2009 -9- proceeding of a civil nature before a court of law. PWs.9 and 10 have admitted that they have exercised their right of franchise in Ward No.III and it has come out that the ballot papers issued to them are bearing Nos.230 and 240 respectively. It is to locate those ballot papers on which PWs.9 and 10 have cast their votes that the box containing ballot papers of Ward No.III which is kept in safe custody in the court below was ordered to be opened in the presence of counsel on both sides so that those votes which are invalid by reason of vice of double voting can be excluded from consideration. It is not known whether those votes will be in favour of the petitioner in the election petition or the first respondent therein who is the returned candidate. The contentions of the petitioner who assails Ext.P5 order of the court below does not W. P. C. No.1170 of 2009 -10- appeal to my judicial mind as one which deserves to be interfered with in the circumstances of this case discussed above. Hence, confirming Ext.P5 order impugned in this Writ Petition, I dismiss this Writ Petition. 5. Issue copy of this judgment to counsel on both sides urgently. K.P.BALACHANDRAN, JUDGE kns/-