ORDER
N.S. Veerabhadraiah, J.
1. This is a respondent's revision filed being aggrieved by the order passed on I.A. No. VI in E.E. Misc. No. 1 of 2000 on the file of the Civil Judge (Junior Division), Molakalmuru permitting to withdraw the election petition.
2. The brief facts are as follows.--The defeated candidate, namely, H. Maranna presented the election petition under Section 15 of the Karnataka Panchayat Raj Act, 1993 to declare the election of second respondent-G. Ramappa to the post of membership of Devarahalli Gram Panchayat from Devareddihalli Constituency is void and to declare him a duly elected candidate. Respondents 1, 2 and 4 before the Trial Court have filed objection statement contending that the petition is not maintainable as the election petition is not duly attested by the petitioner and also contended that the grounds urged in the election petition are not sustainable, While the proceedings were pending, the defeated candidate Maranna filed LA. No. VI under Order 23, Rule l(a) of the CPC praying permission to withdraw the election petition with liberty to file a fresh petition on the same cause of action.
3. Learned Civil Judge (Junior Division) allowed the petition by his order dated 23-3-2000 pertaining to the fresh petition. It is this order which is questioned by the returned candidate.
4. Sri B.M. Siddappa, Counsel for the petitioner contended that when an election petition is filed under Section 15 of the Karnataka Panchayat Raj Act, all the copies of the petitions have to be duly attested as provided under Section 15(3) of the Act. If not, the election petition is liable to be rejected. The respondent raised objection regarding non-compliance of Section 15(3) of the Act. It is, thereafter, the petitioner noticing the defect filed an application under Order 23, Rule l(a) of the CPC praying permission to withdraw the election petition. Secondly, contended that the provisions of Order 23, Rule 1 of the CPC cannot be invoked in election petition to permit the petitioner to withdraw the petition. Thereby, the order of the Trial Court is not sustainable.
5. The learned Counsel for the respondent justified the order by relying on a decision in the case of Mallikarjunagouda v. Principal Munsiff, Hubli and Ors., : ILR1995KAR2595 He further submitted that when there is no provision for withdrawal of the election petition, it is only Order 23, Rule 1 of the CPC which has to be applied for withdrawal of the petition with liberty to file fresh petition. Therefore, prayed to dismiss the revision.
6. In the light of the submissions made by both the Counsels, the point that arises for consideration is:
'Whether, Order 23, Rule 1 of the CPC can be invoked for withdrawal of the election petition?'
It is not in dispute that in the election held for Devareddihalli Gram Panchayat from Devarahalli, the election of the returned candidate. G. Ramappa came to be questioned by the defeated candidate namely, H. Maranna. When the election petition came to be filed, it appears that the petitioner did not attest the election petition as required under Section 15(3) of the Karnataka Panchayat Raj Act. Therefore, he filed an application under Order 23, Rule 1 of the CPC for withdrawal of election petition.
7. In the case of Mallikarjunagouda, supra, a memo was filed seeking withdrawal of the election petition on 22-1-1994 and orders are yet to be passed by the learned Munsiff In the meanwhile, respondent 3 filed an application under Order 1, Rule 10 of the CPC to transpose him as petitioner. It is in this context this Court, at paragraph 8, observed as follows:
'At the same time I must make the position in law clear. The basic difference between a suit and an election petition is noticed in Samar Singh v. Kedar Nath and Ors., : AIR1987SC1926 and it has been held that in the former the matter is confined to parties while the latter raises a dispute invoking the entire constituency. The provisions of the CPC will apply to trial of an election petition except to the extent its provisions may be found to be inconsistent with the provisions of the Act. Since no provision is made in the Act as to withdrawal of election petitions, Order 23, Rule 1 may be invoked. In such a circumstance the Trial Court can examine whether Order 23, Rule l(a) can be applied and permission granted to respondent 3 to transpose himself as petitioner. The Court may also examine the applicability of the principles underlying Order 1, Rule 8(4) before allowing withdrawal of the election petition considering the nature of election petition as affecting the entire Constituency. Subject to this observation this petition shall stand allowed and the order impugned herein shall stand quashed. Rule made absolute accordingly'.
In that case it is observed that in the former the matter is confined to parties while the latter raises a dispute invoking the entire constituency. It is in that context, remitted the matter to consider the provision of Order 23, Rule l(a) as well as the provision of Order 1, Rule 8(a) which has no bearing to the facts of this case.
8. Section 15 of the Karnataka Panchayat Raj Act reads as follows:
'Section 15. Election petition.--(1) No election to fill a seat or seats in a Gram Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in Sub-section (1) of Sections 19 and 20 to the Civil Judge (Junior Division) within whose territorial jurisdiction the Panchayat area concerned or the major portion of the Panchayat area concerned is situated by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs, within thirty days from, but not earlier than the date of declaration of the result of the election of the returned candidate at the election, and if the dates of declaration of the results of their election are different, the last of those dates.
(2) A petitioner shall join as respondents to his petition.--
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegation of any corrupt practice are made in the petition.
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition'.
On a reading of Section 15, it is clear that the copies of the election petition have to be duly attested under his signature to be a true copy of the petition.
9. Section 17 reads thus:
'Trial of election petition.--(1) The Civil Judge (Junior Division) shall dismiss an election petition which does not comply with the provisions of Section 15.
(2) Where more election petitions than one are presented to the Civil Judge (Junior Division) in respect of the same election, the Civil Judge (Junior Division) may try them separately or in one or more groups.
(3) Any candidate not already a respondent shall, upon application made by him to the Civil Judge (Junior Division) within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the Civil Judge (Junior Division), be entitled to be joined as a respondent.
(4) The Civil Judge (Junior Division), may upon such terms as to costs and otherwise as he may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in his opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition, which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(5) The trial of an election petition shall, so far as is practicable consistently with the interest of justice in respect of the trial, be continued from day-to-day until its conclusion unless the Civil Judge (Junior Division) finds the adjournment of trial beyond the following day to be necessary for reasons to be recorded.
(6) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from date on which the election petition is presented to the Civil Judge (Junior Division) for trial.
(7) Subject to the provisions of this Act every election petition shall be tried by the Civil Judge (Junior Division) as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908 (Central Act 5 of 1908), to the trial of suits:
Provided that the Civil Judge (Junior Division) shall have discretion to refuse for reasons to be recorded in writing, to examine any witness or witnesses if he is of the opinion that their evidence is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(8) The provisions of the Indian Evidence Act, 1872 shall subject to the provisions of this Act be deemed to apply in all respects to the trial of an election petition.
(9) Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of the election petition on the ground that it is not duly stamped or registered'.
Sub-section (7) of Section 17 of the Act enables the Court to follow the provisions of the Code of Civil Procedure in accordance with law insofar as it relates to trial of election petition. In other words, in the trial of election petition, to exercise powers as laid down under the Code of Civil Procedure for purpose of summoning the documents, examining the witnesses enforcing the attendance of such witnesses, require at the in- stance of the parties. But, Sub-section (7) of Section 17 do not make any provision for application of Order 23, Rule 1 of the CPC. Under the Panchayat Raj Act, an election petition has to be filed within the period of 30 days from the date of declaration of the returned candidate as per Section 15(1) of the Karnataka Panchayat Raj Act. In the present case, the petitioner has sought for withdrawal of the petition with liberty to file a fresh election petition on the same cause of action as also on the same grounds.
10. Reading of Section 15 together with Section 17 of the Act makes clear the procedure to be followed for filing the election petition as well as the procedure to be followed for the trial of election petition. It is further clear by reading Sub-section (7) of Section 17 insofar as it relates to trial of an election petition, the Court can exercise powers conferred under the Code of Civil Procedure for the purpose of summoning the documents, examine the witnesses, enforcing the attendance of such witnesses as the case may be. But, Sub-section (7) of Section 17 do not provide for application of the provisions of Order 23, Rule 1 of the CPC. Under the Panchayat Raj Act, an election petition has to be filed within a period of 30 days from the date of declaration of the returned candidate as per Section 15(1) of the Act. In the present case, petitioner has sought for withdrawal of the petition with liberty to file a fresh petition on the same or cause of action as also on the same grounds.
11. Order 23, Rule 1 of the Code of Civil Procedure reads thus:
'1. Withdrawal of suit or abandonment of part of claim.--(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied.--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff.--
(a) abandons any suit or part of claim under Sub-rule (1) or (b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs'.
12. That by reason of Sub-section (1) of Order 23, it is open for the petitioner to withdraw the suit or abandon the claim in respect of the relevant claim. Therefore, granting permission to withdraw the petition can be granted insofar as abandonment of the claim is concerned. Coming to the provisions of Sub-section (3) of Order 23, the Court has to apply its mind while granting liberty to file fresh petition on the same cause of action as the case may be. The present petition is arising out of the provisions under Section 15 of the Panchayat Raj Act challenging the election.
13. The Apex Court in the case of Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and Ors., : [1959]1SCR611 while considering the provisions of Sections 90, 97, 123, 140 and 141 and applicability of Order 23, Rule 1 to the election petition at paragraph 19 observed thus:
'19. On a due consideration of all these provisions we are of opinion that the provisions of Order 23, Rule 1 do not apply to the election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission more so when such a withdrawal or abandonment of a part of the claim would have the effect of depriving the returned candidate or any other party to the petition of the right of recrimination which had accrued to him under Section 97 of the Act'.
14. In the present case, a party cannot be permitted to file a fresh election petition on the same cause of action and on the same grounds. While exercising powers under Order 23, Rule 1 of the CPC, the Court should consider the applicability of the provisions read with the provisions of Karnataka Panchayat Raj Act. In the Panchayat Raj Act, no where it is provided for withdrawal of election petition and to file any fresh application on the same cause of action and on the same grounds In this view of the matter, though the petitioner is entitled to withdraw the petition under Order 23, Rule 1 of the CPC, liberty cannot be granted to withdraw the petition under Sub-section (3) of Order 23 to bring the election petition on the same cause of action. If at all, if there is any defect in the election petition, it can be cured by way of amend ment which is permissible. Therefore, the question of permitting the petitioner to withdraw the petition and file a fresh petition on the same cause of action is not sustainable.
15. For the forgoing reasons, the impugned order of the learned Civil Judge granting liberty to withdraw the election petition and to file a fresh petition is hereby set aside by allowing the revision. However, it is made clear that there is no bar for withdrawal of the petition as provided under Order 23, Rule 1 of the CPC.
16. Under the circumstances, the parties shall bear their own costs.