ORDER
1. The question that has been referred for consideration of this Bench is whether Civil Revision Petitions are maintainable against orders passed by the appellate Court in Election Petitions under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipalities Act, 1994. A learned Judge of this Court, in Saraswatl v. Kamala, 1997 (1) KLT 855 : (1997 AIHC 2307) has taken the view that a revision petition under Section 115 of the Code of Civil Procedure is maintainable from the decision of the District Court In an appeal filed under Section 113 of the Kerala Panchayat Raj Act against an order passed by the Munsiff s Court In an Election Petition.
2. C.R.P. Nos. 227/98, 619/98, 843/98, 1190/97, 1942/97 and 815/98 arise out of orders passed by the District Court in appeals from orders of the Munsiff's Court in Election Petition filed under the Kerala Municipalities Act, 1994. Petitioner in C.R.P. 1942/97 originally filed O.P. 6074/97 challenging the very same appellate order, but, apprehending that an original petition may not be maintainable, later, he filed the revision petition. C.R.P. Nos. 756/98. 1910/97, 2233/97, 1263/97, 1864/98 and 2243/98 are petitions filed challenging the orders passed by the District Court in appeals against orders passed by the Munsiff s Court in Election Petition filed under the Kerala Panchayat Raj Act, 1994. A learned single Judge, before whom C.R.P. Nos. 619/98, 227/98, 843/98, 756/98, 1910/97 and 2233/97 came up for hearing, referred the matter under a common order dated 14-7-1998 for consideration of the question of maintainability of the revision petition under Section 115 C.P.C. by a Larger Bench. Learned single Jydge doubted the correctness of the decision reported in 1977 (1) KLT 855 : (1997 AIHC 2307) supra and took the view that the decision requires reconsideration. In the reference order, the learned Judge has referred to another decision of this Court in Leela v. Pushpam, 1996 (2) KLT 350 : (1997 AIHC 799). The question which arose in that case was whether Civil Revision Petitions are maintainable against Interim orders passed in Election Petitions filed under Section 87 of the Kerala Panchayat Raj Act, 1994. The learned single Judge took the view that the Munsiff s Court, while deciding the case under Sections 87 and 88 of the Kerala Panchayat Raj Act is not acting as a civil Court and therefore no revision will lie under Section 115 of the Code of Civil Procedure from the interim orders passed in Election Petitions from which no appeal is provided under the Act. Reference was also made to several provisions of the Kerala Panchayat Raj Act, 1994 and Kerala Municipalities Act, 1994 and also the relevant constitutional provisions, in the reference order. It is under these circumstances, the question regarding maintainability of these revision petitions under Section 115 of the Code of Civil Procedure, challenging appellate orders in Election Petitions filed under the Kerala Panchayat Raj Act, 1994 and Kerala Munlcipalities'Act, 1994 came up for consideration before this Bench . Since the question referred is only a question of law, we are not referring to the factual details in any one of the cases.
3. Learned counsel appearing on behalf of the revision petitioners, except in C.R.P. 2243/98 contended that Civil Revision Petition is maintainable. Learned counsel for the petitioner in C.R.P. No. 2243/98 contended that the petitioner was compelled to file the revision petition only for the reason that the Original petition filed by him as O.P. No. 7077/97 was dismissed by a learned single Judge by judgment dated 9-10-1998 holding that the original petition is not maintainable. It was pursuant thereto, he filed the revision petition. Learned counsel submits that still the revision petitioner would like to contend that the remedy is not under Section 115 of the C.P.C., but an original petition under Arts. 226' and 227 of the Constitution. Learned counsel for the respondents in all other revision petitions, supported the above contention.
4. O.P. No. 7077/97 was dismissed by a learned single Judge holding that the remedy is a revision petition and not original petition, after the common reference order was passed by another learned single Judge in C.R.P. 619/88 and connected cases. But, in the above judgment, no reference is seen made to 1997 (1) KLT 855 : (1997 AIHC 2307) supra or to the fact of a learned single Judge having referred the matter for consideration by a Larger Bench. All revision petitions, except those which were referred under the common order dated 14-7-1998 are referred to Larger Bench under separate orders, in view of the reference already made.
5. We will first refer to the provisions of the Constitution of India which are relevant for consideration of the question referred. Article 243-O provides for restriction of interference by Courts in electoral matters relating to Panchayats in the following manner :
'243-O :-- Bar to Interference by Courts in electoral matters :-- Notwithstanding anything in this Constitution, --
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-K. shall not be called in question in any Court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.'
Parallel provision in relation to election to the Corporations and Municipalities as contained in Article 243-ZG reads as follows :
'243-ZG. Bar to interference by Courts in electoral matters :-- Notwithstanding anything In this Constitution.--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-ZA shall not be called in question in any Court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.'
The above provisions are more or less similar to those contained in Article 239 in relation to election to the House of Parliament or to the House of Legislature of a State. Article 329 reads as follows :
'329. Bar to Interference by Courts in electoral matters :-- Notwithstanding anything in this Constitution,
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.'
6. A reading of Arts. 243-O and 243-ZG would show that the jurisdiction of Court is taken away in toto in relation to matters coming under Clause (a) of Articles 243-O and 243-ZG. Restriction Imposed by Clause (b) is only to the effect that election to the Panchayat can be called in question only before an authority and in such manner provided for by or under a law made by the Legislature of a State. We are unable to give an interpretation as sought to be given by learned counsel appearing on behalf of the respondents in these revision petitions, including learned counsel for the petitioner in C.R.P. No. 2243/ 98 that the provisions under Clause (b) of Article 243-O has to be understood as a total prohibition for any Civil Court to entertain an appeal from an order in election petition. The procedure and the authority to decide an election petition are to be provided by law made by the Legislature of the State. Similar is the scope of Clause (b) in Article 243-ZG. It may be open to the Legislature of the State to bring a law by which a Civil Court is not permitted to entertain an appeal from an order in an election petition at all. There is no contention raised in these cases that there is any such specific prohibition provided under the provisions of the Kerala Panchayat Raj Act, 1994 or the Kerala Municipalities Act, 1994. The contention raised is that the District Courts to which appeals are provided from the order passed by the Munsiffs Court u/S. 113 of the Kerala Panchayat Raj Act, 1994 and Section 189 of the Kerala Municipalities Act, 1994, are not Civil Courts and therefore orders passed by the District Court on an appeal under Sections 113 and 189 of the respective Acts are not revis-able under Section 115 of C.P.C. before the High Court. Therefore, we are of the view that the question whether the District Court, while functioning as an appellate authority under these enactments, are functioning as Civil Courts or not has to be examined in the light of the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipalities Act, 1994.
7. Dehors the provisions contained under these enactments', there is no constitutional prohibition for a Civil Court to entertain an appeal from an order in an election petition as contended by learned counsel appearing on behalf of the revision petitioner in C.R.P. 2243/98.
8. We will now refer to the relevant provisions under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipalities Act, 1994. Section 87 in Chapter X of the Kerala Panchayat Raj Act, 1994 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter X. Section 88 deals with the Court competent to try election petitions. It reads as follows :
'88. The Court competent to try election petitions ;-- (1) The Court having jurisdiction to try an election petition shall be,--
(a) in the case of a village panchayat, the Munsiffs Court having Jurisdiction over the place in which the headquarters of the panchayat is located; and
(b) in the case of a block panchayat or district panchayat the District Court having jurisdiction over the place in which the headquarters of the panchayat concerned is located.
(2) The Government shall, in consultation with the High Court, notify the appropriate Courts in the Gazette.'
Section 113 deals with appeals. It reads as follows :
'113. Appeals :-- (1) Any person aggrieved by an order made by the Court under Section 100 or Section 101, may prefer an appeal, on any question of law or of fact,--
(a) before the District Court on the decision of the Munsiffs Court; and
(b) before the High Court on the decision of the District Court;
(c) the Government shall, in consultation with the High Court, notify the appropriate Courts in the Gazette.
(2) Every appeal under this section shall be preferred within a period of thirty days from the date of the order of the Court under Section 100 or Section 101 :
Provided that the appellate Court may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.
9. Sections 94 and 114 provide that subject to the provisions of the Act and the Rufes made thereunder, every election petition shall be tried by the Court and appeal may be disposed of by the District Court or the High Court in accordance with the procedure laid down in the Code of Civil Procedure. Section 114 further provides that decision of the Court in appeal shall be final.
10. As far as Kerala Municipalities Act, 1994 is concerned, Section 163 in Chapter X provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter X. Section 164 mandates that the Munsiffs Court having Jurisdiction over the place in which the office of the Municipality is located shall have jurisdiction to try an election petition. Section 189 provides for appeals. It reads as follows :
'189. Appeals :-- (1) Any person aggrieved by an order made by the Court under Section 176 or Section 177 may prefer an appeal to the District Court on any question whether of law or of fact.
(2) Every appeal under this section shall be preferred within a period of thirty days from the date of the order of the Court under Section 176 or Section 177 :
Provided that the District Court may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.'
11. Sections 170 and 190 contain provisions regarding the procedure to be followed by the Munsiffs Court and the District Court respectively. It is stated that subject to the provisions of this Act and or any Rules made thereunder, every election petition shall be tried by the Court and appeal may be disposed of by the District Court in accordance with the procedure laid down in the Code of Civil Procedure. Section 190 further provides that the decision of the District Court in appeal shall be final.
12. Now, we will consider the contentions raised by the revision petitioners except the revision petitioner in C.R.P. 2243/98. According to the revision petitioners, the provision in Section 114 of the Kerala Panchayat Raj Act and Section 190 of the Kerala Municipalities Act that the decision of the District Court in appeal shall be final, cannot stand in the way of maintaining a revision before the High Court under Section 115 of the C.P.C. They contend that the District Court while hearing the appeal, is functioning as a Civil Court and not as a persona designata and therefore its judgments are subject to revision by this Court. Reference was made to Ss. 22 and 24 of the Kerala Panchayat Act, 1960 and Rule 4 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 issued under the above Act. Section 22 provided that an application challenging the validity of election can be filed before the Munsiff. Section 22(6) states that the term 'Munsiff for the purpose of Ss. 22 and 24 shall mean Munsiff havingjurisdiction over the area in the Panchayat and in the case of a Panchayat area comprised within the jurisdiction of more than one Munsiff, such Munsiff as may be authorised by the District Judge having jurisdiction over the area. Section 24(1)(d) states that in the event of a dispute arising as to the validity of the election of the President or Vice-President, the dispute shall, in the prescribed manner, be referred to the Munsiff for decision and such decision shall be final. Rule 4 provided that a Munsiff exercisingjurisdiction under Ss, 22 and 24 of the Act and the Rules, shall be deemed to exercise such jurisdiction as persona designata and not in his capacity as a Munsiff of the Court over which he presides. it is pointed cut by learned counsel for the revision petitioners that a similar provision is significantly absent both in the Kerala Panchayat Raj Act as well as Kerala Municipalities Act, 1994.
13. The District Court is a Civil Court subordinate to the High Court and therefore a revision under Section 115 of the C.P.C. will be maintainable from the order in appeal before the District Court, since there is no specific provision in the above mentioned two enactments barring the remedy of revision, Is the contention of the petitioners. Reliance was placed by the learned counsel for the revision petitioners and the respondents on a number of decisions of this Court as well as the Supreme Court.
14. Section 115 of the Code of Civil Procedure provides that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears to have exercised jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity and the High Court may make such order in the case as it thinks fit. in Majsr S. S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497, Supreme Court had occasion to consider the scope of the expression 'case' used in the abovementioned section. it was observed that the expression 'case' is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court it includes a proceeding in a Civil Court in which the jurisdiction of the Civil Court is invoked for the determination of some claim or right legally enforceable in Chhagan Lal v. Municipal Corporation, Indore, AIR 1977 SC 1555, the question that came up for consideration was whether the decision of the District Court under Section 149 of the M.P. Municipal Corporation Act, 1956, when a dispute arose as to the liability of any land or building to assessment, can be challenged in a revision under Section 115 of C.P.C. before the High Court in view of Sub-section (1) of Section 149 which provides that the decisions of the District Court shall be final. The original order was that of the Commissioner. Supreme Court took the view that under Section 115 of C.P.C.. High Court has got a power to revise the order passed by Courts subordinate to it. Since it cannot be disputed that District Court is a subordinate Court, its order is subject to revisional jurisdiction of the High Court.
15. in Shyam Sunder Agarwal & Co. v. Union of India, AIR 1996 SC 1321, Supreme Court had occasion to consider the question regarding revisional jurisdiction of the High Court, vis-a-vis the provisions of the Arbitration Act (10 of 1940). it was held that the revisional jurisdiction of the High Court under the Code or under any other statute shall not stand superseded under the Arbitration Act if the Act does not contain any express bar against exercise of revisional power by the High Court provided exercise of such revisional power does not mitigate against giving effect to the provisions of the Arbitration Act. Even if a special statute expressly attaches finality to an appellate order passed under this statute, it was held by the Supreme Court that such provision of finality will not take away revisional powers of the High Court under Section 115 of the C.P.C. Reference was made in this decision to AIR 1977 SC 1555 (supra).
16. in Surendranathan Nair v. Senior Divisional Personnel Officer, 1987 (2) KLT 476, a learned single-Judge of this Court considered the question whether a decision of an appellate authority under Section 17 of the Payment of Wages Act, 1939 is revisable u/ Section 115 of C.P.C. by this Court. Section 17 provided for an appeal from the order passed by the payment of wages authority under Section 15 of the Payment of Wages Act. Appellate authority is the Court of Small Causes in a Presidency town and the District Court in Other areas. Section 17(2) states that subject to appeal under Section 17(1), the decision of payment of wages authority under Section 15 shall be final. The question that arose for consideration was whether, in spite of the finality provided under Section 17(2), a revision will lie under Section 115 of the C.P.C. before the High Court from an order passed by the appellate authority under Section 17(l).LearnedJudge,followingaBench decision of the Madhya Pradesh High Court in Hindustan Journals v. Govindan, 1962 (2) LLJ 242 : (AIR 1963 MP 25) and an earlier decision of this Court in Varghese v. Carrnal Coir Works, 1964 KLT 616 took the view that the District Court is not functioning as a persona designata under Section 17(1) and therefore revision would lie under Section 115 of the Code from its order in the appeal.
17. in Varkey Abraham v. District Judge, 1994 (1) KLT 580 : (AIR 1994 Ker 304) this Court considered the nature of the jurisdiction exercised by the District Judge under Section 61- D of the Kerala Forest Act, 1961, it was held that the District Judge functions as a Civil Court while considering an appeal under Section 61-D and therefore the judgment rendered in the appeal by the District Court cannot be challenged under Art.226 of the Constitution. There is an elaborate consideration of the effect of provision giving finality of the order of the District Court on maintainability of a revision petition before this Court under Section 115 of C.P.C. in K.S.E.B. v. Cheriyan Varghese, 1989 (1) KLT 451 : (AIR 1989 Ker 198). The question arose under the Indian Telegraph Act, 1885. Orders were passed by the District Court under Section 16(3) of the above Act, determining compensation payable to the claimants on applications made by them under Section 16(3) of the above Act read with Section 51 of the Electricity Act, 1910. The applications were allowed. Aggrieved by the above, Kerala State Electricity Board filed revision petitions before this Court. A preliminary objection was raised as to the maintainability of the revision petition. After considering elaborately the case law on the revisional power of the High Court under Section 115 of C.P.C. from orders passed by District Court pursuant to provisions contained under the special statutes, the Division Bench took the view that revision under Section 115 is maintainable against the decision of the District Judge under Sub-sections (3) or (4) of Section 16 of the Telegraph Act. There is a useful discussion on the two decisions of the Supreme Court arising from the Kerala Buildings (Lease and Rent Control) Act and the third one from the Karnataka , Rent Control Act, 1961. We are in full agreement with the view taken by the learned Judges in their separate judgments on the scope of the above three decisions.
18. InAundalAmmalv. Sadasivan Pillai, 1987 (1) KLT 53 : (AIR 1987 SC 203), the question that came up for consideration was whether a second revision before this Court is maintainable in view of the provisions contained under Section 18(5) of the Act. it was provided under Section 18(5) that the decision of the appellate authority and subject to such decision, order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law, except as provided in Section 20. Under Section 20, revisional authority is the District Court where the appellate authority is a Subordinate Judge and the High Court in all other cases. Supreme Court held that from an order passed by the District Court as a revisional authority, no further revision would lie to the High Court under Section 115 of the C.P.C. In Shyamaraju Hegde v. Venkatesha Bhat, 1987 (2) KLT 977 : (AIR 1987 SC 2323), Supreme Court had to consider the question whether a revision application is maintainable under Section 115 of C.P.C. read with Section 50(1) of the Karnataka Rent Control Act, 1961, when a District Judge has made an order in his revisional jurisdiction under Section 50(2) of the Act. The relevant provisions of Karnataka Rent Control Act, 1961 are as follows :
'Section 48(6). An order of the Court of the Controller shall, subject to the decision of the District Judge or the High Court under Section 50 or of the relevant appellate authority under this Act, be final and shall not be liable to be called in question in any Court of law whether in a suit or other proceeding or by way of appeal or revision.
Section 50(2). The District Judge may, at any time, call for and examine any order passed or proceeding taken by the Court of Munsiff referred to in Sub-clause (iii) of Clause (d) of Section 3 for the purpose of satisfying himself as to the legality or correctness of such order in reference thereto as he thinks fit. The order of the District Judge shall be final.'
A Full Bench of the Karnataka High Court. in Krishnaji Venkatesh Shirodkar v. Gurupad Shivram Kavalekar, ILR (1978) 2 Kant 1585 had taken the view that a revision under Section 115 of C.P.C. would lie to the High Court. Later, another Full Bench of the same High Court took a contra view in M. M. Yaragattl v. Vasant, AIR 1987 Kant 186. According to the later Full Bench, after Supreme Court rendered Visesh Kumar's case (Visesh Kumar v. Shanti Prasad), AIR 1980 SC 892 and Aundal Animal's case, 1987 (1) KLT 53 : (AIR 1987 SC 203) the earlier Full Bench cannot be taken as good law. in Shyamaraju Hegde's case, 1987 (2) KLT 977 Supreme Court had to consider appeal from the judgment of a learned single Judge of Karnataka High Court dismissing a revision petition as not maintainable following AIR 1987 Kant 186 (supra). After referring to its own decision in Krishnadas Bhatlja v. A. S. Venkatachaia Shetty (dead) by LRs. (Special Leave Petn. No.913of 1978dated 13th February, 1978), which was relied on by the earlier Full Bench in Krishnaji's case, ILR (1978) 2 Kant 1585, Supreme Court held that the Full Bench decision in Krishnaji's case cannot be taken as overruled by the Supreme Court in Krishnaji's case, a three Bench decision of the Supreme Court in Chhagan Lal v. Municipal Corporation, Indore, AIR 1977 SC 1555 had been relied on it was observed that in Aundal Animal's case, if Supreme Court really intended to nullify the effect of the Full Bench decision in Krishnaji's case, one would have expected reference to AIR 1977 SC 1555 as also Krishnaji's case it was noted that Venkataramiah, J., as he then was, was party to the Full Bench decision in Krishnaji's case and he was also one of the members of the two-Judges Benqh which rendered the judgment in Aundal Ammal's case. The effect of the judgment in Shyamaraju Hegde's case is that Aundal Ammal's case had to be understood in the light of the provisions contained in the Kerala Buildings (Lease and Rent Control) Act. So also, Visesh Kumar's case has to be understood in the facts of that case.
19. The question whether a second revision is maintainable under Section 115 of C.P.C. against an order in revision passed under Section 20 by the District Court, came up again for consideration in M/s. Jetha Bai & Sons v. Sunderdas Rathenai. 1988 (1) KLT 386 : (AIR 1988 SC 812). While affirming the decision in Aundal Ammal's case, Supreme Court observed that there was no conflict between the decisions in Aundal Ammal's case arid Shyamaraju Hegde's case. Under the provisions of the Kerala Buildings (Lease and Rent Control) Act as then available, order of the Rent Control Court could have been taken in appeal before a Subordinate Judge it was then provided that the decision of the appellate authority and subject to such decision, an order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law except as provided in Section 20. Under Section 20, a revision can be filed before the District Court, if the appellate order is that of the Subordinate Judge and in other cases, the High Court. Therefore, when an order passed by the District Judge in revision under Section 20 is sought to be again challenged under Section 115 of C.P.C. before this Court, it was a second revision after the appellate order. But, as far as Karnataka Act Is concerned, after the amendment in the year 1975, the provision for appeal before the District Judge from the order passed by the Rent Control Court, was omitted. The power of revision given under Section 115 to the High Court was limited only to those cases decided by the city Civil Judges. But, a revisional power was conferred on the District Judge in respect of cases decided by the Munsiff s exercising jurisdiction in areas outside the city of Bangalore. Thus, the revisional power given to the District Court was in lieu of the appellate power it had before the amendment and it was provided that the order of the District Judge shall be final. The proceedings were limited to a two-tier system, namely, the Rent Control Court and the revisional Court whereas, under the Kerala Act. there was three-tier system, namely, Rent Control Court, appellate Court and revisional Court it is under these circumstances, it was found in Shyamaraju Hedge's case that the relevant provisions of Karnataka Act warranted the application of the ratio in AIR 1977 SC 1555 (supra) and Krishnadas Bhatija's case rather than the ratio in Visesh Kumar's case and Aundal Animal's case.
20. We find merit in the contention raised on behalf of the revision petitioners that in the nature of the provisions contained under the Kerala Panchayat Raj Act and Kerala Municipalities Act, 1994, the dictum laid down in Aundal Annual's case or Visesh Kumar's case cannot be applied. On the other hand, the principle evolved in AIR 1977 SC 1555 and Krishnadas Bhatija's case (Special Leave Petition No. 913/78) by the Supreme Court is to be applied here. in Ram Chandra Aggarwal v. State of Uttar Pradesh, AIR 1966 SC 1888 : (1966 Cri LJ 1514), it was held by the Supreme Court that the provisions of C.P.C. would apply generally to a proceeding before a Civil Court arising out of a reference to it by a Magistrate under Section 146(1) of the Criminal P.C. A proceeding before a Civil Court arising out of such reference can be transferred by the District Court under Section 24 of C.P.C.
21. in the Kerala State Electricity Board. Trivandrum v. T.P. Kunhaliumma. AIR 1977 SC 282, Supreme Court considered the nature of jurisdiction exercised by District Judge under Section 16(3) of the Telegraph Act. it was held that the provisions in the Telegraph Act which contemplated determination by the District Judge on payment of compensation payable under Section 10 of the Act, indicate that the District Judge acts judicially as a Court and that the District Judge under the Telegraph Act acts as a Civil Court in dealing with applications under Section 16 of the Telegraph Act. Where, by statutes, matters are referred for determination by a Court of Record with no further provision the necessary implication Is that the Court will determine the matters as a Court.
22. Relying on .decisions of the Supreme Court in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., AIR 1952 SC 64, Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520 and Hari Vishnu Kamath v. Ahmad Isaque, AIR 1955 SC 233, it was contended by learned counsel for the respondents and also the petitioner in C.R.P. No. 2243/98 that the right to vote or to stand as a candidate for election is not a civil right, but creature of statute or special law and must be subject to the limitations imposed by it. Therefore, according to learned counsel, the remedy provided under Section 115 of C.P.C. is not applicable to such proceedings.
23. We do not find any merit in this contention in AIR 1952 SC 64, it was held by the Supreme Court that the word 'election' in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate, and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329(b).
24. in 1954 SC 520, the contention raised was that Supreme Court could not entertain an appeal against the decision of an Election Tribunal under Article 136 of the Constitution, as that would be a proceeding in which an election is called in question, and that it could be done only before a Tribunal as provided in Article 329(b). While overruling this contention. Mukherjea, J. observed (at page 522) :
'The 'non obstante' clause with which Article 329 of the Constitution begins and upon which the respondents-counsel lays so much stress, debars us, as it debars any other Court in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. it is the Election Tribunal alone that can decide such disputes and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute. But, once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised.'
25. in AIR 1955 SC 233, the question that came up for consideration was whether High Courts have jurisdiction under Article 226 of the Constitution to issue writs against decisions of Election Tribunals, Relying on the provisions contained in Article 329(b), it was contended that High Courts' jurisdiction under Article 226 is also limited. Rejecting the above contention, Supreme Court held as follows (at page 238) :
'Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of Article 329(b). On a plain reading of the article, what is prohibited therein is the 'Initiation' of proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision....... But, when once proceedings have been instituted in accordance with Article 329(b) by presentation of an election petition, the requirements of that article are fully satisfied. Thereafter, when the election petition is in due course heard by a Tribunal and decided, whether its decision is open to attack, and if so, where and to what extent, must be determined by the general law applicable to decisions of Tribunals.'
26. Reliance was also placed qn a later decision of the Supreme Court in the Election Commission of India v. Shivaji, AIR 1988 SC 61, it was a case where a challenge was made under Article 226 of the Constitution against the notification fixing the calendar of events for the purpose of holding elections to legislative council from certain local authorities constituency. Following its earlier decisions in AIR 1952 SC 64 (supra), Inderjit Barua v. Election Commission of India, AIR 1984 SC 1911 and Lakshmi Charon Sen v. A. K. M. Hassan Uzzaman, AIR 1985 SC 1233, it was held that in view of the provisions contained under Article 329 of the Constitution, the High Court has no power to entertain such a petition under Article 226 of the Constitution. This decision is also of no help to the respondents, since, the facts of the present cases are different.
27. Therefore, we find no merit in the contention that a revision under Section 115 of C.P.C. will be barred under Article 243(b) or Article 243-ZG of the Constitution. Once the District Court renders its judgment on the appeal, the aggrieved party can resort to the remedy under Section 115 of C.P.C., which is a remedy available under general law applicable to the decisions of a Court subordinate to High Court.
In the result, we hold that a civil revision petition under Section 115 of C.P.C. is maintainable before this Court against the order passed by the appellate authority, namely, the District Court on appeals filed under Section 113 of the Kerala Panchayat Raj Act, 1994 or under Section 189 of the Kerala Municipalities Act, 1994. Since the question referred for consideration of the Division Bench was only the maintainability of the revision petitions, the revision petitions and original petition are sent back to the appropriate Court for being considered on merits.
Order accordingly.