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Karnataka High Court · body

2009 DIGILAW 989 (KAR)

Vijaya v. Mahammad Begam

2009-12-10

SUBHASH B.ADI

body2009
Judgment :- (This Miscellaneous First Appeal is filed under Section 27 of the Karnataka Municipalities Act against the order dated: 9.4.2009 passed in Electron Mis.No.12/2008 on the file of the Civil Judge (Sr.Dn) and Prl. JMFC. K.G.F. allowing the petition filed under section 21 and 23 (a) (c) (d) (i) (ii) (iii) (iv) of Karnataka Municipality Act to declare that election of respondent No.1 held on 28.9.2007 in Ward No.34 of City Municipality Council KGF and the result dated: 30.9.2007 as null and void.) This appeal is against the order, in an Election Misc. No.12/2008 dated 9.4.2009 on the file of the Civil Judge (Sr.Dn.) K.G.F. Appellant was the Respondent No.1, respondent No.1 was a petitioner and respondents No.2 to 7 were the respondents before the learned Civil Judge. 2. This case arises under a peculiar circumstances, Respondent No. 1 was an unsuccessful candidate in an election held for Ward No.34. City Municipal Council, K.G.F. He filed a election petition under Sections 21 and 23 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as the ‘Act). Before the Civil Judge (Jr.Dn.). K.G.F. Section 21 of the Act requires that the petition to be filed within 15 days from the date of declaration of results of the election. The results of the election were declared on 30.9.2007, since the election petition was filed with 16 days delay. 1st respondent had filed an application for condonation of delay before the Civil Judge (Jr.Dn.). When the 1st respondent noticed that the election petition is not maintainable before the Civil Judge (Jr.Dn.). he filed an application under Order 7 Rules 10 and 10A of CPC. The learned Civil Judge (Jr.Dn.). by his order dated 5.7.2008 ordered for returned of the petition copy and the document thereon to the 1st respondent to present the same before the proper Court on 10.7.2008,. To this effect, the plaint was returned on 5.7.2008 with specific endorsements as regard to the return and also as regard to filing of the same before the Principle Civil Judge (Sr.Dn.). In consistence with the said order, the plaint returned was presented before the learned Civil Judge (Sr.Dn) within the stipulated time. Same was numbered as Election Misc.12/2008. 3. Successful candidate, the appellant herein filed his objections to the main election petition. In consistence with the said order, the plaint returned was presented before the learned Civil Judge (Sr.Dn) within the stipulated time. Same was numbered as Election Misc.12/2008. 3. Successful candidate, the appellant herein filed his objections to the main election petition. Parties also led the evidence and the learned Civil Judge (Sr.Dn.) by considering the evidence on record, by the judgment impugned in this appeal set aside the election of the petitioner on the ground that the petitioner does not come under the reserve category (Christianity Religion). As against the said order this appeal ha been filed. 4. Heard the learned Sri A.S.Mahesha for the appellant and Sri S.V.Prakash for contesting respondent No.1 and Smt. Revathy Adinath Narde, learned High Court Government Pleader for respondent No.6. 5. Learned counsel Sri A.S.Mahesha submitted that, the order of the learned Civil Judge is one without jurisdiction, as admittedly respondent No.1 had filed an election petition beyond the limitation prescribed under Section 21 of the Limitation Act before the Civil Judge (Jr.Dn.) and he had filed an application for return of the plaint and the documents. After return of the plaint and documents, respondent No.1 though presented the election petition before the proper Court, had not filed an application for condonation of delay in filing the election petition and as such there was no petition in law which could have been entertained by the learned Civil Judge (Sr.Dn.). The learned Civil Judge (Sr.Dn.) without verifying as to whether the petition is in time, has proceeded to decide the petition has been filed in time and it is the duty of the Court to verify the limitation. However, the Civil Judge (Sr.Dn.) without noticing as regard to the limitation, only because the plaint is returned from another Court to be presented before the said Court, he entertained the petition and has passed the impugned order. If the election petition is filed beyond the limitation, unless the delay is condoned, it does not partake the character of a regular petition. A petition can be heard on merit only if it is filed in time. When the petition itself is beyond limitation, hearing of the petition on which was one without jurisdiction. Even though the petitioner has not specifically raised objection, but if the question of jurisdiction and illegality of the order arises, such a contention could be taken even at the appellant stage. 6. When the petition itself is beyond limitation, hearing of the petition on which was one without jurisdiction. Even though the petitioner has not specifically raised objection, but if the question of jurisdiction and illegality of the order arises, such a contention could be taken even at the appellant stage. 6. He also submitted that, Order 7 Rule 10 of CPC contemplates return of the plaint and does not contemplate return of an application filed for condonation of delay. What is to be returned is stated in Order 7 Rule 10 of CPC and in this case respondent No.1 on his own had filed an application for return of plaint and in pursuance of which, the learned Civil Judge (Jr,Dn.) returned the plaint for presenting the same before the appropriate Court. Since the respondent No.1 had sought for fixing the date of hearing, the learned Civil Judge (Jr.Dn.) has fixed the date of appearance of the parties. However, there is no provision which either waives the limitation or return of plaint would amount to condoning of the delay, what could be returned is only the plaint and documents produced along with plaint and not the applications. In this regard he produced along with plaint and not the applications. In this regard he submitted that, even if I.A. is filed before the wrong Court, there is no requirement of return of I.A. 7. In this regard, he relied on a judgment of this Court reported in 2006 (3) KCCR page 1931 in the matter of B.N.Siddananjappa (Deceased) by L.Rs. and Others Vs. P. Srinivasan and submitted that, this Court considering the provisions of order 7 Rules 10 and 10(A) of CPC and observed at para 13 that, in case of return of plaint, office would return only the Court fee, plaint and the suit documents, even the Vakalath filed cannot be returned to the plaintiff. Relying on this judgment he submitted that, since there was no application for condonation of delay and the petition was belated, in the eye of law there was no petition before the learned Civil Judge (Sr.Dn.) calling for adjudication and as such, the order of the Civil Judge (Sr.Dn.) is one without jurisdiction. He further submitted that, the Civil Judge (Jr.Dn.) having lack of jurisdiction, even if he had passed any order. He further submitted that, the Civil Judge (Jr.Dn.) having lack of jurisdiction, even if he had passed any order. It is not sustainable and all proceedings in pursuance of such petition would be void and ab-initio. 8. Sri S.V.Prakash, the learned counsel for the respondent No.1 submitted that, the limitation is prescribed under the provisions of the Act and Act being special law, the applications of provisions of Sections 4 to 24 of the Limitation Act is not excluded. In view of Section 29 of the Limitation Act, limitation being prescribed under Section 21 of the Act. Section 5 of the Limitation Act is applicable. He submitted that election tribunal is constituted under the provisions of the Act and it functions under the special statute, and in view of Section 29 of the Act, the provisions of Sections 4 to 24 of the Limitation Act are applicable to the election petition filed under the provisions of the Act. He did not dispute that the election petition is filed beyond 15 days. However, submitted that, the election petition was accompanied by an application for condonation of delay and the said application was filed before the civil Judge (Jr.Dn). When plaint is returned by the Civil Judge (Jr.Dn.). it has to be returned along with all the document and the applications, as in case of petition beyond limitation, an application for condonation of delay is accompanied and as such, if there is an order of return of the plaint, it includes return of application filed for condonation of delay, however, not returning the copy of the application for condonation of delay is not due to the fault of the respondent No.1. but it is the technical defect and as such even if that application is not returned, the application is not returned, the respondent No.1 cannot be deprived of his right to prosecute his election petition which otherwise was filed in accordance with the provisions of Section 21 of the Act r/w Sections 5 and 29 of the Limitation Act. 9. He also vehemently contended that, both the parties had understood that, the petition is properly presented and led the evidence on merit, though, the petitioner herein filed statement of objection, had not raised any objection as to delay or maintainability of the petition. Further, the parties contested the matter only on merits. 9. He also vehemently contended that, both the parties had understood that, the petition is properly presented and led the evidence on merit, though, the petitioner herein filed statement of objection, had not raised any objection as to delay or maintainability of the petition. Further, the parties contested the matter only on merits. Accordingly the learned Civil Judge has decided the petition, and at this stage the appellant cannot be permitted to argue the maintainability. Since the appellant has not raised the objection before the learned Civil Judge, it is now not open to him to raise the same in this appeal. 10. In the alternative he submitted that, if the order is bad for want of an application to be filed by the respondent, the order can be set aside and matter could be remitted as the respondent No.1 had filed an application and it was not returned by the learned Civil Judge (Jr.Dn.). In this regard he also submitted that, in case if petition or an appeal is filed belatedly without application of condonation of delay, the Court would normally give an opportunity to the petitioner or appellant to cure the defects. Now filing of the application for condonation of delay may be irregularity but is not illegality, and as such the respondent No.1 should not be deprived of filing of an application. The non-filing of an application for condonation of delay before the Civil Judge (Sr.Dn) is neither deliberate nor intentional, but it is bonafide. 11. In support of his contention, learned counsel for respondent No.1 relied on a decision of this Court reported in ILR 1985 KAR 2374 and point out that, this Court in case of filing of an appeal without application for condonation of delay has held, it is not illegally, but it is irregular and is curable defect and opportunity is given. He further submitted that, this Court should not adopt technical approach and set aside the order without giving an opportunity to the respondent No.1. He also submitted that, the Apex Court in a decision reported in AIR 2004 SC 2926 held that, in case if the objections are not raised, it is the duty of the Court to see whether the suit is within the limitation or not. He also submitted that, the Apex Court in a decision reported in AIR 2004 SC 2926 held that, in case if the objections are not raised, it is the duty of the Court to see whether the suit is within the limitation or not. Suit filed beyond limitation is liable to be dismissed, even though limitation may not be set up as a defence, but in all fairness, it is always desirable that, the defendant raises such objections in a pleading, so that the other party may also note the basis and reason to which the suit is to be dismissed as barred by time and normally there would be a report by the office on the issue of limitation. However, it is not a case where the office has raised objection as regard to the limitation or the contesting respondent has filed objection statement or Court has raised objection and if such a objection is raised at the appellate stage, respondent No.1 should not be denied of his right to remedy the defect. 12. In the light of the contentions raised by the learned counsels, the points that arises for consideration are: (a) “Whether the order of the learned Civil Judge (Sr.Dn.) is bad, as the question of limitation has not been considered? (b) As to What order?” 13. Facts which are not in dispute between the parties are that, respondent No. 1 had filed a petition under Section 21 of the Act questioning the election of the petitioner herein. He had filed a petition after lapse of 16 days of the limitation provided under Section 21 of the Act. He had also filed an application for condonation of delay. However, the said petition was filed before the Civil Judge (Jr.Dn.) who had no jurisdiction to entertain the election petition. It is also not in dispute that, the respondent No. 1 himself filed an application for return of plaint. Further it is not in dispute that both respondent No.1 as well as the petitioner were aware of return of plaint and parties were directed to appear before the Civil Judge (Sr.Dn.) and accordingly the parties did appear before the Civil Judge (Sr.Dn.) on the dated fixed by the learned Civil Judge (Jr.Dn). Further it is not in dispute that both respondent No.1 as well as the petitioner were aware of return of plaint and parties were directed to appear before the Civil Judge (Sr.Dn.) and accordingly the parties did appear before the Civil Judge (Sr.Dn.) on the dated fixed by the learned Civil Judge (Jr.Dn). It is also not in dispute that the petitioner herein had filed his statement of objections, however, neither the office of the Court below nor the learned Civil Judge (Sr.Dn.) or the petitioner herein who ws contesting respondent, did raise any objection as regard to the maintainability of the petition or as regard to the jurisdiction to entertain the petition or as regard to non-filing of an application for condonation of delay, in turn, the parties led the evidence and allowed the Civil Judge (Sr.Dn.) to pass an order on merit and undisputedly, the question has been raised for the first time in this appeal. 14. Return of plaint is contemplated under Order 7 Rule 10 of CPC, wherein if the Court finds that the suit is filed before a wrong Court, it would pass an order, ordering return of the plaint to be presented before the proper Court by endorsing on the plaint the date of its presentation, the name of the party, presenting date and thereafter reason for return of it. Rule 10(A) of CPC confers power on the Court to fix the date of appearance in the Court where the plaint to be presented. It is also not in dispute that, the plaint is returned under Order 7 Rule 10A of CPC with a direction to the parties to appear before the Court before which the plaint was to be presented. The return of plaint is understood, as return of plaint and the documents accompanying the plaint. Civil Procedure Code provides for procedure for filing Original Suits, Limitation Act provides for various period of limitation. Insofar as the Original Suits are concerned, they have to be filed within the period of limitation. Section 29 of the Limitation Act is not applicable to the Original Suit that is filed under the common law. However, if a petition or application is filed under the special law or the local law. Insofar as the Original Suits are concerned, they have to be filed within the period of limitation. Section 29 of the Limitation Act is not applicable to the Original Suit that is filed under the common law. However, if a petition or application is filed under the special law or the local law. and the limitation is provided otherwise in the special law or local law, in view of the provisions of Section 29 of the Limitation Act, provisions of Sections 4 to 24 of the Limitation Act would get attracted, which also includes Section 5 of the Limitation Act and the power is confined on the Court dealing with such case has power to condone the delay. However, for Original Suit such provisions are not applicable and it is in this context, the return of plaint has to be understood. There cannot be anything like filing of suit with application of condonation of delay, as such Order 7 Rule 10 of CPC only provide for return of plaint and document and not any other documents. 15. Section 29 of the Limitation Act 967 provides that, “in case a special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.” 16. Undoubtedly the limitation is not prescribed under the provisions of Limitation Act but it is prescribed under a special law and there is no provision made under special law for exclusion of the application of the Limitation Act, thus, the provisions of Section 29 of the Act are applicable to the present case and in view of the same, even the respondent No.1 had also filed an application under Section 5 of the Limitation Act. 17. 17. Section 21 of the Act definitely prescribes that, the petition has to be filed within 15 days from the date of declaration of the results and if it is not filed within the limitation period, it cannot be termed as a petition filed under Section 21 of the Act, but if filed along with an application for condonation of delay under Sections 5 and 29 of the Limitation Act and the delay could be condoned or extended in view of the said provisions, till such condonation or extension of the limitation, the petitioner cannot be .termed as properly presented petition, it does no amount to filing of a petition. If the petition is in order. Court can decide the same on its merit. Undoubtedly this case/petition is beyond the period of limitation. Thus, whether it was presented before the Civil Judge (Jr.Dn.), it was not a petition in the eye of law, till the delay is condoned, nor a could be termed as a petition properly filed before the Civil Judge (Sr.Dn). The Civil Judge (Sr.Dn.) gets the jurisdiction to adjudicate the matter on merit only if it is presented in accordance with the requirement under Section 21 of the Act. In view of the fact that, the petition presented before the Civil Judge (Sr.Dn) was beyond the period of limitation, the order passed by him on the merit without considering the delay is not sustainable. 18. In this case, respondent No.1 had earlier filed the Election Petition before the Civil Judge (Jr.Dn.). and had also filed an application for condonation of delay, however, when the petition was returned to be presented before the Civil Judge (Sr.Dn.). the application for condonation of delay having not been transferred to the transferee court and without the consideration of question of limitation, the election petition has been disposed of by the learned Civil Judge (Sr.Dn.). Hence, I find that, the matter could be remitted to the Civil Judge (Sr.Dn.). K.G.F. with a direction to re-consider the matter from the stage of receiving the petition from the transferor court. No doubt, there is a procedural error, as the procedure does not provide for transfer of application. However, it is open to the learned Civil Judge (Sr.Dn.). to consider the matter in accordance with law. Procedure is in the aid of justice and ends of justice. No doubt, there is a procedural error, as the procedure does not provide for transfer of application. However, it is open to the learned Civil Judge (Sr.Dn.). to consider the matter in accordance with law. Procedure is in the aid of justice and ends of justice. In the circumstances, when the appellant had also not filed any objection as regard to the limitation and the parties had not even contemplated the issue of limitation, it is proper for the Civil Judge Sr.Dn.). to re-consider the entire matter in accordance with law. In the circumstances, the appeal is allowed. The order of the learned Civil Judge (Sr.Dn.). K.G.F. is set aside. The matter is remitted in the learned Civil Judge (Sr.Dn.). K.G.F. to reconsider the matter from the stage of receiving the petition from the transferor court. All the contentions on merit are kept open.