IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 OP(C).No. 3171 of 2011(O) ------------------------- EP.3/2010 of MUNSIFF COURT, VAIKOM .................... PETITIONER : - ----------------------- SULOCHANA PRABHAKARAN, AGED 42 YEARS, W/O.PRABHAKARAN, VILAYANGATTIL HOUSE, PADINJAREKKARA P.O., VAIKOM VILLAGE. BY ADVS. SRI.A.K.HARIDAS SRI.P.RAJEEV RESPONDENT : - --------------- SASIKALA JIJIMON, W/O.JIJIMON, MOOTHAKONIL HOUSE, PADINJAREKKARA P.O., NADUVILE VILLAGE, PIN-686 671. ADV. SMT.A.SREEKALA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3171 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS :- EXHIBIT P1: TRUE COPY OF THE EP NO.3/10 OF THE MUNSIFFS COURT VAIKOM. EXHIBIT P2: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 20/9/2011 OF THE MUNSIFFS COURT, VAIKOM IN ELECTION PETITION NO.3/2010. RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.A TO JUDGE amk. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3171 of 2011 --------------------------------------- Dated this 11th day of October, 2011 JUDGMENT Respondent in O.P(Ele).No.3 of 2010 of the court of learned Munsiff, Vaikom is the petitioner before me, aggrieved by Ext.P3, order which according to her is an order for recounting without pleading or prayer in the election petition. 2. Petitioner is the elected candidate at the hustings. She was declared elected against her nearest rival, the respondent by a margin of 5 votes, petitioner getting 388 votes, respondent getting 383 votes and 23 votes being declared by the Returning Officer as invalid. In paragraph 3 of the election petition, respondent alleged that there is irregularity in counting of votes, there was wrong decision on the validity or otherwise of several ballot papers and hence respondent requested for a recounting in writing which was rejected by the Returning Officer. In paragraph 5 of the election petition respondent alleged that several invalid votes were treated as valid in favour of petitioner and some votes cast in favour of the respondent were rejected without valid reason (details are given in the election petition). In paragraph 8 there is an allegation of O.P(C).No.3171 of 2011 -: 2 :- shortage of one ballot paper. Petitioner resisted the election petition on various grounds. Respondent gave evidence as PW1 and testified to her case. Petitioner did not adduce any evidence. Learned Munsiff passed Ext.P3, order which is under challenge. 3. Learned counsel for petitioner contends that a recounting as ordered in Ext.P3 is passed without pleadings or prayer. It is also contended by learned counsel that the Election Tribunal cannot be converted into a counting station to have a fresh counting of the votes as and when the defeated candidate wished. Reliance is placed on the decision in Ram Rati Vs. Saroj Devi and Ors. ((1997)6 SCC 66). I have heard learned counsel for respondent also who support Ext.P3, order. What I can understand from Ext.P3, order is not a direction for recounting of the entire votes as apprehended by petitioner. In paragraph 4 of Ext.P3, order it is stated that “therefore it shall be ordered to consider the invalid vote in open court on 26.09.2011 at 11 a.m. in presence of both candidates, their counsel and Returning Officer to make its more transparent.” The operative portion of Ext.P3, order states that (paragraph 5) it is ordered to scrutiny the invalid votes and recounting of the votes in the election held on 25.10.2010 at ward No.8 of Udayanapuram O.P(C).No.3171 of 2011 -: 3 :- Grama Panchayat at 11a.m on 26.09.2011 at open Court in presence of all and summons shall be issued to Returning Officer to present before the court on 26.09.2011. Thus, it is revealed from Ext.P3 that what is ordered is not a recounting as such, but an inspection of the votes to find whether the case and evidence of respondent as to irregular acceptance of the votes in favour of petitioner or irregular rejection of the voes cast in favour of respondent is correct or not. Without such inspection the controversy cannot be resolved. Learned Munsiff shall conduct that exercise and decide whether the allegations in the election petition as to the irregularity of the rejection of votes cast in favour of respondent or irregularity of acceptance of votes cast in favour of petitioner are correct or not. Necessarily, if the learned Munsiff finds that there is any irregular acceptance/rejection of votes those votes will have to be taken into account to decide whether the result of the election as declared by the Returning Officer is affected materially. With the above observation this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-