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P. Chandra Sekar v/s The Madurai Velliambalam Thirupparankundram Odukkam vagaiyara Charities, rep by its Managing Trustee V. Jayakumar & Others

    C.R.P.NPD.(MD).No.763 of 2006
    Decided On, 14 March 2007
    At, Before the Madurai Bench of Madras High Court
    For the Petitioner : R.S. Ramanathan, Advocate. For the Respondents: R1, R3, R5 & R6, Balasubramanhia Iyer, Advocate.

Judgment Text
(Prayer: Petition filed under Article 227 of the Constitution of India to set aside the orders passed by the Principal Sub Judge, Madurai dated 10.08.2006 in I.A.of 671 of 2002 in O.S.No.59 of 1917.)

The petitioner in I.A.No.671 of 2002 in O.S.No.59 of 1917 on the file of the Principal Sub Judge, Madurai is the Revision Petitioner before this Court.

2. I.A.No.671 of 2002 was filed by the Revision Petitioner as per clause 34 of the Scheme Decree dated 30.11.1917 made in O.S.No.59 of 1917 praying to declare that the election of the 5th respondent herein as a Trustee of the first respondent trust is illegal, for a permanent injunction restrain the 5th respondent from functioning as a Trustee of the Trust, to further declare that the Revision Petitioner is a duly elected Trustee of the Trust and to recount the votes either directly by the Court or by appointing a Commissioner. The case of the Revision Petitioner before the Principal Sub Court, Madurai is that for the proper management of the Trust, a Scheme Decree was passed on 30.11.1917 in O.S.No.59 of 1917 and the Trust is being governed and administered as per the Scheme framed in O.S.No.59 of 1917.

3. In March 2002, to fill-up the two vacancies of Trustees, elections were held on 17.03.2002. Nine persons submitted their nominations, who are the Revision petitioner and the respondents 5 to 12 herein. Out of nine candidates, the two who secured the highest votes should be elected and declared as the Trustees. The 4th respondent herein was appointed as the election Officer.

4. After counting the votes on 17.03.02, it was found that the 6th respondent secured the highest votes i.e. 305 votes and he was declared as elected. The Revision Petitioner and the 5th respondent secured 251 votes each. A recounting was done by the fourth respondent and there after it was announced that the petitioner has got 250 votes and 5th respondent secured 251 votes and 5th respondent was declared as elected. Specific allegations were levelled by the petitioner against the 4th and 5th respondents by contending that 4th respondent in collusion with 5th respondent committed all kinds of omissions and commissions to see that 5th respondent was declared as elected by hook or crook. Therefore the revision petitioner filed O.S.No.314 of 2002 on the file of the First Additional District Munsif, Madurai for declaration that the election of the 5th respondent is null and void and for mandatory injunction to recount the votes. Along with the suit I.A.No.323 of 2002 was filed for appointment of an advocate commissioner to recount the votes. The commissioner who recounted the votes submitted a report according to which both the revision petitioner and the 5th respondent secured 251 votes and 9 votes polled in favour of the petitioner were rejected by 4th respondent as invalid votes.

5. 5th respondent herein filed C.R.P.No.932 of 2002 challenging the appointment of commissioner itself by raising a plea that as per clause 34 of the Scheme Decree, the Sub Court alone has got jurisdiction and the District Munsif Court lacked to the jurisdiction to entertain the suit itself. C.R.P.932 of 2002 was allowed by the High Court on 17.07.2002 and the matter was remanded to the District Munsif Court to decide the issue of jurisdiction.

6. To avoid technicalities, the Revision petitioner withdrew O.S.No.314 of 2002 and filed I.A.No.671 of 2002 before the Sub Court for the aforesaid reliefs. I.A.No.671 of 2002 was dismissed by the Principal Sub Court, Madurai on 06.04.2004 and aggrieved by the same, the Revision petitioner herein filed C.R.P.36 of 2005 and by an order dated 15.11.2005, the C.R.P. was allowed and the following order was passed by this Court.

"Para 22. In these circumstances, C.R.P. is disposed of as follows:

"There shall be a recounting of the votes polled by the petitioner and the fifth respondent. The Court below has to appoint an Advocate Commissioner other than the Advocate Commissioner who has already counted the ballots in the suit that was filed. The counting shall be done in the presence of the petitioner, the firth respondent and their counsel and on receipt of the report filed by the Advocate Commissioner so appointed, the Principal Subordinate Judge, Madurai shall pass suitable orders."

Thereafter, another advocate commissioner was appointed by the Sub Court, who recounted the votes and submitted a report dated 13.12.2005. As per the report dated 13.12.2005, both the revision petitioner and the 5th respondent secured 251 votes and 26 votes were considered as invalid votes. The advocate commissioner has dealt with each of these 26 votes by describing it vividly and left it to the decision of the Sub Court for taking a decision on these 26 votes.

7. The Principal Sub Court, Madurai by order dated 10.08.2006 dismissed the I.A.No.671 of 2002 and aggrieved by the same, the above Civil Revision Petition has been filed under Article 227 of the Constitution of India.

8. Heard the learned Counsel for the petitioner and the learned counsel for the 5th respondent. I have also gone through the documents filed in support of their submissions.

9. After going through the order of the Court below, I have no hesitation to hold that the order is vitiated and unsustainable. The relevant portion of the order is extracted below:

From the above, it is very clear that the learned Sub Judge has not applied his mind at all to the issue before him.

10. In the commissioner's report dated 13.12.2005, it was clearly stated that out of 831 votes, both the Revision petitioner and the 5th respondent secured 251 votes and 26 votes were considered as invalid votes. Among the invalid votes, six were accepted by all the parties as invalid votes and 20 were disputed as valid votes and both the parties are claiming or deriving same support from these votes in their favour and hence they were considered as objectionable votes by the commissioner. Each of these 20 votes were described in detail by the commissioner and he left it to the decision of the Court for considering the same in favour of the parties. In such circumstances, instead of taking a decision on the basis of the Commissioner's report dated 13.12.2005, the Court below decided the matter on irrelevant consideration and that too, on the basis of the counting done by the 4th respondent herein, which is clearly illegal and the same needs interference by this Court.

11. It was admitted by both the parties that the period of Trusteeship itself is coming to an end on 17.03.2007 and in such circumstances considering the fact that any order that may be passed by this Court will be in force for only a few days, I pass the following order in the interest of justice.

1. The order dated 10.08.2006 made in I.A.No.671 of 2002 is hereby set aside.

2. The Revision Petitioner himself as PW1 in I.A.No.671 of 2002 admitted that if two candidates have obtained equal votes, the successful candidate will be chosen by casting of lots.

3. The report of the commissioner dated 13.12.2005makes it very clear that both the parties got equal votes.

4. The objectionable 20 votes and its description by the commissioner in his report has not been useful to decide the matter and infact it is to be considered that they are all invalid votes only.

5. Therefore, the successful candidate is to be chosen by casting of lots only.

6. Considering the fact that only a few days are left for the period of Trusteeship,to come to an end, the Registrar (Judicial), Madurai Bench of this Court is directed to decide the successful candidate between the Revision Petitioner and the 5th respondent in the presence of their respective counsel today at 2.30 p.m.

7. The decision of the Registrar is final

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in this regard and the Registrar (Judicial} is directed to submit the report to this Court tomorrow, in this regard. 12. With the above direction, the Civil Revision Petition is allowed. No Costs. CRP.PD (MD) No.763 of 2006 As directed by this Court on 14.03.2007, casting of lot was drawn by the Registrar (Judicial) in the presence of the petitioner and his counsel and first and sixth respondent and their counsel and counsel for the respondents 1,3,5 and 6 at 2.30 p.m. at the chamber of the Registrar (Judicial). The petitioner Thiru. P. Chandrasekar was chosen in the lot and Thiru. P. Chandrasekar was declared elected. To this effect a report has been submitted by the Registrar (Judicial). 2. The report signed by the Registrar (Judicial ) on 14.03.2007 shall form part of the main order passed by this Court on 14.03.2007.