IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 RP.No. 1238 of 2008() --------------------- AGAINST THE ORDER IN CRP.17/2008 Dated 29/10/2008 .................... REVIEW PETITIONER(S)/THIRD PARTY: ---------------------- K.D.BAHULEYAN, S/O.DEVAN, KOTTAMMAL HOUSE, HOUSE NO.2/315,P.O.VELLARKAD, (VIA) ERUMAPETTY, KADANGOD PANCHAYATH, TRISSUR DISTRICT,PIN-60584. BY ADV. SRI.K.V.SOHAN RESPONDENT(S): REVISION PETITIONER AND RESPONDENT ------------------------------------------------- 1. AYSHA ABOOBACKER, W/O. ABOOBACKER, PADINJATTUMURI, KADANGODE TALUK, THALAPPILLY TALUK THRISSUR DISTRICT. 2. RAMLA SULAIMAN, W/O.SULAIMAN, KALLUNGAL HOUSE,PADINJATTUMURY, KADANGODE VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. ADV. SRI.SANTHEEP ANKARATH FOR R1 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P.No.1238 of 2008 & I.A.No.2498 of 2008 in C.R.P.No.17 of 2008 -------------------------------------- Dated this the 18th day of November, 2008. ORDER Points raised for decision in these petitions are whether a non-party to the revision arising from an election petition could seek review of the order dismissing the revision as withdrawn, get himself substituted in the proceeding in the place of the revision petitioner and continue the revision petition. 2. Heard counsel for petitioner and the first respondent. 3. Short facts necessary for consideration of the points raised are:- Second respondent was elected from Ward No.II of Kadangode Grama Panchayat, in Thrissur District in the election held in the year 2005. She defeated the first respondent by a margin of two votes. First respondent challenged the election in the Munsiff's Court, Wadakkancherry in Election O.P.No.21 of 2005. Learned Munsiff after trial found that seven voters who had exercised their franchise in favour of the second respondent had voted in two Constituencies, four other voters some of whom had exercised franchise in favour of the second respondent were minors during the relevant time, those votes are invalid and thus, the election of the second respondent is vitiated. The election of the second respondent was set aside and the first respondent was declared elected. Second respondent carried the matter in appeal before the RP No.1238/2008 2 District Court, Thrissur in A.S.No.312 of 2007. Order of the learned Munsiff was confirmed in appeal. Feeling aggrieved, second respondent filed C.R.P.No.17 of 2008 in this Court. While the Civil Revision Petition was pending, second respondent filed I.A.No.2435 of 2008 seeking permission to withdraw the Civil Revision Petition. Second respondent appeared in this Court in person and pressed the application. That application was allowed as per order dated 29.10.2008 and consequently the Civil Revision Petition was dismissed as withdrawn on the same day. On 3.11.2008, a stranger to the proceeding filed I.A.No.2498 of 2008 to substitute himself as revision petitioner in the place of the second respondent under Section 109(3)(c) of the Kerala Panchayat Raj Act (for short, 'the Act'). On 5.11.2008, he filed R.P.No.1238 of 2008 for review of the order dated 29.10.2008. In the petitions it is stated that the second respondent was a candidate of the political party represented by the petitioner at the election, petitioner has a direct interest in the matter and that this Court granted permission to the second respondent to withdraw the revision petition without complying with the provisions of Sections 108 and 109 of the Act. Petitions are opposed by the first respondent. According to the first respondent, petitioner is not a party to the proceedings which culminated in the revision petition and hence cannot seek review. It is also contended that Sections 108 and 109 of the Act have no application to appeals and revisions. RP No.1238/2008 3 4. It is contended by the learned counsel for petitioner that in the matter of appeal from the verdict of learned Munsiff in the Election Petition, provisions of Section 114 of the Act would apply and hence the provisions of Order 23 of the Code of Civil Procedure (for short, 'the Code') can apply but the said provision of the Code is not applicable to a revision filed under Section 115 of the Code. According to the learned counsel, procedure provided under Sections 108 and 109 of the Act should govern withdrawal of the revision petition since there are numerous persons interested in the subject matter. Counsel for first respondent contended that provisions referred to by the learned counsel for petitioner have no application on the facts of this case and that at any rate, it was open to this Court to grant permission to the second respondent to withdraw the revision petition invoking Section 151 of the Code. 5. Question arises whether the second respondent could have been granted permission to withdraw the revision under Order 23 of the Code. According to the learned counsel for petitioner, the provisions of the Code can be applied to an appeal from the order of the learned Munsiff in the election petition by virtue of Section 114 of the Act, but not to a revision. It is true that Section 114 of the Act only deals with the procedure in appeal and enables the appellate court to dispose of the appeal in accordance with the procedure laid down in the Code for the hearing of appeals. A Division Bench of this Court held in Sushama v. Mercy Antony (1999 (3) KLT 818) that a revision is maintainable under Section 115 of the Code against the judgment of the District RP No.1238/2008 4 Court disposing of the appeal arising from the order of the Munsiff on the election petition. A right of appeal to the District Court from the order of the Munsiff is created under Section 113 of the Act and not by any of the provisions of the Code. Therefore, it was necessary to prescribe that the provisions of the Code for hearing the appeals would apply to such an appeal. Section 114 of the Act was therefore enacted in the Act. A revision from the judgment of the District Court is preferred by virtue of Section 115 of the Code as the High Court is authorized to call for the record of any case which has been decided by any court subordinate to the High Court and in which no appeal lies thereto, and not by virtue of any of the provisions of the Act. In the matter of a revision from the judgment of the District Court, the High Court is exercising its supervisory jurisdiction under the Code. The Code becomes applicable to such a revision. Hence it is not necessary to state specifically in the Act, as in the case of an appeal that in the matter of hearing of the revision, the procedure laid down in the Code would apply. The contention that the provisions of Order 23 of the Code does not apply to a revision cannot therefore be accepted. 6. The next question is whether compliance with Sections 108 and 109 of the Act was necessary before granting leave to the second respondent to withdraw the revision petition. Section 108 of the Act deals with the withdrawal of election petition and states as under:- RP No.1238/2008 5 “(1) An election petition may be withdrawn only by leave of the court, if an application for its withdrawal is made. (2) Where an application for withdrawal is made under sub-section (1), notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the office of the Panchayat concerned.” (underline supplied) Section 109 of the Act deals with procedure for withdrawal of election petition and states as under:- “(1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent in writing of all the petitioners. (2) No application for withdrawal shall be granted if, in the opinion of the court and if the court is satisfied that such application has been induced by any bargain or consideration which ought not to be allowed. (3) If the application is granted- RP No.1238/2008 6 (a) the petitioner shall be ordered to pay the costs of the respondents thereto for incurred or such portion thereof as the court may think fit; (b) the court shall direct that the notice of withdrawal shall be published in the office of the court and also in the office of the Panchayat concerned; (c) a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in the place of the party withdrawing, and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the court may deem fit.” (underline supplied) As rightly pointed out by the counsel for first respondent, provisions of Sections 108 and 109 of the Act have application only in the matter of withdrawal of election petition. Those provisions have nothing to do with an appeal arising from the order of the trial court on the election petition or a revision arising from the judgment of the District Court in appeal RP No.1238/2008 7 7. Sections 109 and 110 of the Representation of People Act, 1950 (43 of 1950) contain similar provisions as in Sections 108 and 109 of the Act. In Bijayananda Patnaik v. Satrughna Sabu and others (AIR 1963 SC 1566), the Hon'ble Supreme Court considered the application of Sections 109 and 110 of the Representation of People Act (43 of 1951) in the matter of withdrawal of an appeal arising from an order on the election petition. It was stated thus:- “.................The power of the High Court under S.116A(2) when hearing an appeal from an election petition is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express provision to the contrary in the matter of withdrawal of an appeal in the Act. Therefore when an appellant under S.116A makes an application for an unconditional withdrawal of the appeal, the power of the High Court consistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will not permit the appeal to be withdrawn. We are therefore of opinion that the High Court was in error in importing the principles of Ss.109 and 110 of the Act which deal only with the withdrawal of election petitions and not with the withdrawal of appeals. RP No.1238/2008 8 It has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain or consideration which ought not be allowed and this would interfere with purity of elections. As the statute stands it seems that the intention was that the provision about withdrawal and abatement would apply to a petition only when it is either before the commission or the tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections, If it was intended that Ss.109 and 110 should also apply to an appeal for which provision was made by S.116A, that intention has not been given effect to by proper language. In any case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see no reason to import the principles of Ss.109 and 110 into withdrawal of appeals on this ground. We are therefore of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sabu, the appellant before it. Further the High Court in this connection need RP No.1238/2008 9 not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant , if Strughna Sabu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court could not refuse such withdrawal.” It was held that the said provisions did not apply in the matter of withdrawal of the appeal and that the appellant has unconditional right to withdraw the appeal. That decision was followed in Kashinath Sajan Patil v. Dr.Deshmukh Hemant Bhaskar (AIR 1993 SC187) though, in relation to the question whether the principle relating to abatement of appeal would apply in the matter of appeal from election petition. It is therefore clear from the authoritative pronouncements of the Hon'ble Supreme Court also that Sections 108 and 109 of the Act have no application in the matter of withdrawal of an appeal from the election petition and if that be so, in the matter of revision arising from the appellate judgment also, the said provisions have no application. Contention of the learned counsel for petitioner that the order granting permission to the second respondent to withdraw the revision petition and the dismissal of revision petition as withdrawn violated the provisions of Sections 108 and 109 of the Act cannot therefore, be accepted. RP No.1238/2008 10 8. It is also apposite to look into Section 114 and Order 47 Rule 1 of the Code. Section 114 of the Code enables any person considering himself aggrieved by a decree or order from which an appeal is allowed by the Code, but from which no appeal has been preferred or by a decree or order from which no appeal is allowed by this Code or by a decision on a reference from a Court of Small Causes, to seek review of the judgment to the Court which passed the decree or made the order. The procedure for review is governed by Order 47 Rule 1 of the Code. That provision reads thus:- “(1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court exercising small cause jurisdiction and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, RP No.1238/2008 11 was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.” (underline supplied) RP No.1238/2008 12 Going by the said provision, review is “of the decree passed or order made against” the person seeking review. In Bhaskaran v. Dhanalakshmi Bank Ltd. (1996(1) KLT 463) a learned Single Judge of this Court held that the provisions in the Code dealing with the power for review is clear that it can be invoked only by a person considering himself aggrieved by a decree, judgment or order made against him. Same view was taken by the Karnataka High Court in C.P.Bharathi v. Anjanappa (AIR 2007 Kar. 31). Petitioner is not a party to the election petition, appeal or revision. Therefore, invoking the provisions of Order 47 of the Code, petitioner cannot seek review of the order dated 29.10.2008. 9. So far as the prayer for substitution is concerned, that request does not lie since Civil Revision Petition itself has been dismissed as withdrawn and it is found that the review petition has no legs to stand. Hence it is unnecessary to go into the allegations made by the petitioner regarding the circumstances under which the revision petition was withdrawn by the second respondent. These petitions fail and are accordingly dismissed. THOMAS P.JOSEPH, JUDGE. cks