IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 OP(C).No. 4180 of 2011(O) ----------------------------------- OPEL.23/2010 of M.C.,PARAPPANANGADI .............................................. PETITIONER(S): ----------------------- AMBIKA, W/O. N.S. SATHEENDRAN NAIR, AGED 41 YEARS, ROYAL QUARTERS, CHUDALAPPARA, PUTHUPARAMBU.P.O, VALAKULAM AMSOM DESOM, THIRURANGADI TALUK. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): ------------------------- 1. SHYLA, W/O. ABDUL AZIZ, PERINGADAKKATTU ULLISSERY HOUSE, EDARIKODE.P.O, THENNALA VILLAGE, MALAPPURAM - 676501. 2. ROSY JOHN, W/O. JOHN, SANTHI NILAYAM, POTTIPARA, EDARIKODE.P.O, CLARI AMSOM DESOM, MALAPPURAM - 676501. 3. SOBANA.T.P, W/O. MUKUNDAN, KOOMULLIN CHALIL HOUSE, EDARIKODE.P.O, CLARI AMSOM DESOM, MALAPPURAM - 676501. R1 BY ADV. SRI.JAMSHEED HAFIZ THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS OP(C).No. 4180 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS :- EXHIBIT-P1- COPY OF THE ELECTION PETITION IN O.P (ELECTION) 23/2010 ` BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXHIBIT-P2- COPY OF THE COUNTER STATEMENT FILED BY THE IST RESPONDENT BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXHIBIT-P3- COPY OF THE PETITION FILED IN I.A 2591/2011 IN O.P (ELECTION) 23/2010 BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXHIBIT-P4- COPY OF THE PETITION FILED IN I.A 2590/2011 IN O.P (ELECTION) 23/2010 BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXHIBIT-P5- COPY OF THE OBJECTION FILED BY THE IST RESPONDENT IN I.A 2591/2011 IN O.P (ELECTION) 23/2010 BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXHIBIT-P6- COPY OF THE OBJECTION FILED BY THE IST RESPONDENT IN I.A 2590/2011 IN O.P (ELECTION) 23/2010 BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXHIBIT-P7- COPY OF THE ORDER DATED 14/12/201 IN IA 2591/2011 IN O.P (ELECTION) 23/2010 BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXHIBIT-P8- COPY OF THE ORDER DATED 14/12/2011 IN I.A 2590/2011 IN O.P (ELECTION) 23/2010 BEFORE THE MUNSIFF COURT, PARAPPANANGADI. RESPONDENTS' EXHIBITS :- NIL /TRUE COPY/ P.A. TO JUDGE DCS THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4180 of 2011 ==================================== Dated this the 22nd day of December, 2011 J U D G M E N T Petitioner challenged election of first respondent, returned candidate from Ward No.VII of Edarikodu Grama Panchayat in the court of learned Munsiff, Parappanangadi. It is the case of petitioner that she requested for re-inspection or recounting immediately after counting of votes was over since first respondent was declared elected by a margin of two (2) votes but that request was rejected by the Returning Officer. Returning Officer when examined as P.W.4 denied that there was any application in writing given to him for such re-inspection or recounting of votes (as the case may be). At that stage petitioner filed Exts.P3 and P4, applications to call for the application (allegedly) filed by the chief election agent of petitioner to the Returning Officer for recounting and (said to be) in the custody of District Election Officer, Malappuram and also to further examine (obviously to recall) P.W.4, the Retuning Officer. Those applications were dismissed as per Exts.P7 and P8, orders which are under challenge in this Original Petition. 2. It is contended by the learned counsel that even the O.P(C) No.4180 of 2011 -: 2 :- first respondent in her counter did not dispute that there was a request for recounting made by the chief election agent of petitioner and according to her, recounting was done. It is pointed out by learned counsel that in the absence of a written application the Returning Officer would not have undertaken recounting of votes though when examined as P.W.4, Returning Officer denied that any such application was given to him. 3. Learned counsel for first respondent contended that P.W.4 in unambiguous terms stated on oath that no such application was given to him and no purpose will be served by issuing summons as prayed for. It is also contended that prayer is vague in that details of the application (allegedly) preferred by petitioner are not given. 4. I am not inclined to think that merely because of P.W.4 on oath stated that there was no such application petitioner should not attempt at getting the application she claims to have preferred summoned and if there is any such application, it being proved in evidence. Evidence given by P.W.4 at this stage cannot be the final say in the matter. I am inclined to give petitioner opportunity to adduce further evidence. If the District Election Officer is in custody of any such application O.P(C) No.4180 of 2011 -: 3 :- preferred by the chief election agent of petitioner, there is no reason why that cannot be summoned. 5. So far as the vagueness pleaded by the first respondent is concerned the available details are that application preferred by the chief election agent of petitioner as regards recounting of votes in the election held from Ward No.VII of Edarikodu Grama Panchayat. With that much information I am inclined to think that the District Election Officer will be able to ascertain whether there is any such application preferred by the chief election agent of petitioner. Having regard to the circumstances I am inclined to allow the applications. Original Petition is allowed. Exhibits P7 and P8, orders are set aside. Exhibits P3 and P4, applications are allowed. Learned Munsiff is directed to issue summons to the District Election Officer to cause production of the document referred to in Ext.P3, application and if any such document is produced before the learned Munsiff pursuant to the summons issued, learned Munsiff shall recall P.W.4 for further examination. THOMAS P. JOSEPH, JUDGE. vsv