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Judgment
K.K. Sasidharan, J.—This civil revision petition is directed against the order dated 23.11.2007 in I.A. No. 112 of 2007 in El.O.P. No. 10
of 2007, on the file of the learned Principal District Judge, Ramanathapuram.
The factual matrix necessary for the disposal of the above revision are as under:
(i) The revision petitioner was a candidate in the election held on 18.10.2006 for the post of President in the Allikulam Panchayat. In the said
election, the revision petitioner was declared as Elector. Subsequently, the first respondent filed El.O.P. No. 10 of 2007 before the learned
Principal District Judge as provided under Rule 122 of the Tamil Nadu Panchayats (Election) Rules, 1995. The election petition was taken on file
and notice was issued to the respondent and accordingly, the respondent entered appearance.
(ii) During the pendency of the election petition and immediately on appearance, the revision petitioner filed an application in I.A. No. 112 of 2007
to reject the original petition on the ground that the election petition was taken on file only after the statutory period of 45 days and as such, the
election petition was liable to be rejected.
(iii) In the application in I.A. No. 112 of 2007, it was the contention of the revision petitioner that as per Rule 123 of the Tamil Nadu Panchayats
(Election) Rules, 1995 (hereinafter referred to as ""the Election Rules""), an election petition shall be presented within 45 days from the date of
publication of the result of the election under the Act. However, the election petition filed by the first respondent on 29.11.2006 was returned and
the same was represented on the very same day. However, the petition was returned again on 01.02.2007 for compliance and, thereafter, it was
represented on 21.02.2007 and accordingly, it was taken on file. According to the revision petitioner, the election petition was numbered only after
45 days and as such, the same was clearly barred by limitation.
(iv) The application in I.A. No. 112 of 2007 was resisted by the first respondent by filing counter. In the counter, it was specifically pleaded that
the matter was returned for flimsy reasons and that the first respondent was not responsible for such a course adopted by the Election Tribunal.
Accordingly, the first respondent prayed for dismissal of the application to reject the election petition.
(v) The trial Court considered the issue as to whether the election petition was liable to be rejected on account of the delay in taking the same on
file and ultimately, was of the opinion that there was no delay at all, inasmuch as the election petition was submitted well within the time as provided
under Rule 123 of the Election Rules and accordingly, the application was dismissed.
(vi) The order dated 23.11.2007 in I.A. No. 112 of 2007 is the subject matter of the present revision.
I have heard Mr. S.M.S. Johny Basha, learned Counsel appearing for the revision petitioner. Even though notice was served on the respondents
and their names are printed in the cause-list, none appeared for the respondents.
The learned Counsel for the revision petitioner vehemently contended that the material date is the date of taking the election petition on file and
as per Rule 123, the election petition shall be presented within 45 days from the date of publication of the result and the word ""presentation"" had to
be considered to be a valid presentation, and in case the petition has not been presented within 45 days, the same is clearly barred by limitation.
The learned Counsel further contended that the factum of filing the election petition on 29.11.2006 was immaterial. The election petition was taken
on file on 01.02.2007 and in view of the same, it is beyond doubt that the petition was barred under Rule 123 of the Election Rules.
I have considered the submission of the learned Counsel and I have also gone through the materials available on record.
It is the admitted case of the parties that the election was held on 18.10.2006 and as per the time limit prescribed under Rule 123 of the Election
Rules, election petition challenging the election had to be presented on or before 01.12.2006. It is also an admitted fact that an election petition
was, in fact, filed by the first respondent on 29.11.2006 and the same was returned by the Election Tribunal for the purpose of rectifying certain
defects and the same was represented on the very same day. Subsequently, it was returned again on 01.02.2007 and the same was represented
after compliance and ultimately, it was taken on file on 21.02.2007.
Section 258 of the Tamil Nadu Panchayats Act, 1994 (hereinafter referred to as ""the Panchayat Act"") mandates that no election of a President
or a Chairman or a Member shall be called in question except by an election petition presented to the District Judge of the district in which the
Panchayat is situated, within forty five days from the date of the publication of the result of the election under the Act. Part-11 of the Election Rules
prescribes the manner of presentation as well as the adjudication of the election petition. A plain reading of Section 258 as well as Rule 123 makes
the position clear that what is contemplated is only due presentation within 45 days from the date of publication of the result of the election. The
presentation is an act to be performed by the election petitioner and numbering of the election petition and taking cognizance of such election
petition is a matter to be performed by the District Judge constituted as the Authority to decide the election dispute. The time limit for presenting
the election petition undoubtedly expires only on 01.12.2006. However, the petition has been presented before the Court as early as on
29.11.2006. The return of the election petition for compliance was an act on the part of the Court and the same was only a procedural
requirement. The crucial date for the purpose of filing an election petition is the date of presentation and the date on which the Court takes
cognizance of the matter is immaterial. The procedural defects and irregularities cannot be taken as a ground to defeat the substantive right. When
it was not the case of the revision petitioner that the election petition was not presented within 45 days, it cannot be contended that the date on
which the matter was taken on file by the District Court being beyond the period of 45 days, the same has to be rejected as barred by limitation.
The learned Counsel for the petitioner, by placing reliance on the decision of the Apex Court in Michael B. Fernandes Vs. C.K. Jaffer Sharief
and Others, , contended that the provisions of the CPC is not applicable to a proceeding under the Tamil Nadu Panchayats Act, inasmuch as
Section 130 of the Election Rules provides the application of the CPC only for an enquiry of the election petition and not for other purposes and as
such, the trial Court committed a serious mistake in returning the election petition to comply with the defects as pointed out in the election petition.
In Michael B. Fernandes''s case cited supra, the Apex Court observed that the provisions of the CPC applies to election disputes only as far as
may be and subject to the provisions of the Act and any rules made thereunder and the provisions of the Code cannot be invoked to permit which
is not permissible under the Act. In fact, the said Judgment is clearly against the contention of the revision petitioner, inasmuch as the very
application filed by him in I.A. No. 112 of 2007 was under the provisions of Order 7 Rule 11 of C.P.C. Admittedly, there is no provision in the
Tamil Nadu Panchayats Act as well as in the Rules made thereunder to file an application to reject an election petition. However, the present
application in I.A. No. 112 of 2007 has been preferred only under Order 7 Rule 11 of C.P.C. Therefore, the said decision cannot be relied on by
the revision petitioner for his contention that there was no provision for return of the election petition for the purpose of compliance.
In Mannan Lal Vs. Chhotaka Bibi, (Dead) by Lrs. B. Sharda Shankar and Others, , the Apex Court considered the issue pertaining to filing of
an appeal without payment of proper Court fee and on a consideration of the decided cases on the point, it was held that filing of a memorandum
of appeal brings an appeal into existence and if the memorandum is deficient in Court fee, it may be rejected and if rejected, the appeal comes to
an end. On the other hand, if it is not rejected and time is given to the appellant to make up the deficiency and the appellant has availed the said
opportunity and the appeal is represented after compliance, the appeal is to have validity with retrospective effect, as if the deficiency had been
made good in the first instance.
In Mannan Lal''s case cited supra, the Supreme Court followed the Full Bench Judgment of this Court in Gavaranga Sahu v. Botokrishna Patro
reported in ILR 1909 Mad 305. In the said case, the issue before the Full Bench of this Court was in respect of validity of a plaint presented on a
paper insufficiently stamped and which was cured later, on return by the Registry. The thirst of the argument before the Full Bench was that the
plaint, which was not sufficiently stamped within the period of limitation, was not a valid plaint at all. Upon consideration of the matter, the Full
Bench opined that an insufficiently stamped plaint did not become a new plaint when the deficiency was supplied.
In R.N. Jadi and Brothers and Others Vs. Subhashchandra, , the Apex Court considered the procedural law viz-a-viz substantive law and
observed as under:
All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent,
but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily
be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute,
the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet
extraordinary situations in the ends of justice.
The mortality of justice at the hands of law troubles a judge''s conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure
should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae
where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil
Kumar Sen Vs. State of Bihar, ).
No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or
for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed
according to the altered mode. (See Blyth v. Blyth.) A procedural law should not ordinarily be construed as mandatory, the procedural law is
always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See
Shreenath and Another Vs. Rajesh and Others, ]
Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not
the mistress, a lubricant, not a resistant in the administration of justice.
Having considered the relevant aspects as well as the reasoning given by the learned trial Judge, and especially on account of the language used
in Section 258 of the Panchayats Act and Rule 123 of the Election Rules, I am of the view that there is no error or infirmity in the order of the
learned trial Judge calling for interference in a proceeding under Article 227 of the Constitution of India.
The Civil Revision Petition is an exercise in futility and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed.
However, in the facts and circumstances of the case, there shall be no order as to costs.