A. Vijayan Athisseri Veedu v. R. Abhilash Sreenikethan & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **OP(C).No.1440 OF 2017(O)** **ORDER DTD 21.03.2017 IN I.A.2664/2016 IN O.P(ELECTION).NO.7/2015** ## **PETITIONER/FIRST RESPONDENT:** **A. VIJAYAN ATHISSERI VEEDU, T.C 55/738(1)(NEW T.C 52/965) NEERAMANKIARA) KAIMANAM PO, THIRUVANANTHAPURAM.** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SMT.ALICE THOMAS SRI.P.K.MANOJKUMAR SMT.SMITHA S.PILLAI SMT.M.C.SINY** ## **RESPONDENTS/ORIGINAL PETITIONER & RESPONDENTS 2 AND 3:** **1 R. ABHILASH SREENIKETHAN, T.C. 53/2441, KOLIYAKKODE, INDUSTRIAL ESTATE PO,THIRUVANANTHAPURAM.19.** - **2 O. BEENA ARUVAKKODU, KARITHALAKKAL PUTHEN VEEDU, PAPPANAMCODE PO, THIRUVANANTHAPURAM.** - **3 B.VIJAYAN NAJAKI BHAVAN, T.C 56/579(2), KURAVANMOOLA, ANTHIVILAKKU, KARUMAM, THIRUVANANTHAPURAM.63.** **R1 BY ADV. SMT.J.HARIPRIYA R1 BY ADV. SRI.K.B.PRADEEP** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27-08-2019, THE COURT ON 23-10-2019 DELIVERED THE FOLLOWING:** O.P(C).1440/17 2 ## **JUDGMENT** First respondent in O.P(Election).No.7 of 2015 pending before the Munsiff Court, Thiruvananthapuram challenges the order in the above proceedings. 2. In an election to the local bodies held in the year 2015, both the original petitioner and the first respondent contested. Original petitioner was declared elected by one vote. The first respondent filed O.P(Election).No.7 of 2015 challenging the above election on various statutory grounds before the Munsiff Court, Thiruvananthapuram. Original petitioner appeared and contested the proceedings. It was inter alia contended that, in election petition the schedule was not incorporated , it was not properly verified as contemplated under the Kerala Municipalities Act and that the election petition was not in proper form. It was contended that, proper court fee was also not paid. I.A.No.501 of 2016 was filed by the original petitioner to bring to the notice of the Court that, election petition and the schedule were not verified by the first respondent. The first respondent filed I.A.No.2664 of 2016 for amendment of the election petition. A copy of it is produced as Ext.P2. It was contended that, objection raised that list of document was not verified and that the court fee paid was not proper was incorrect. It was contended that, filing of the schedule or the annexures were only O.P(C).1440/17 3 optional at the instance of the parties and parties are entitled to cure the defects, if any. He stated that, he was ready to cure the defects and for payment of deficit fees. It was further stated that he was entitled to give a verification under the list of documents and place of verification. 3. An objection was filed by the petitioner herein stating that the above application was not maintainable. It was asserted that, he had already raised an objection that the election petition was not legally sustainable due to the lack of compliance of requirement under section 167 of the Kerala Municipalities Act. Statutory valuation and verification cannot be introduced by amendment. It was contended that the scope of application of CPC to the election proceedings was limited and that was confined only to the trial before the election Tribunal. It was contended that, order VI Rule 17 CPC was not applicable to the present proceedings. It was also contended that, prayer sought in the interlocutory application was to incorporate the verification under Rule 6 Order 16 CPC in between schedule and signature of the petitioner. It was stated that the signature was to be put by the applicant after the verification and incorporation of a verification above the signature affixed on an application, by converting it into the verification was unknown to law and cannot be permitted by way of amendment. 4. Court below, by Ext.P4 order dismissed the application holding that prayer No.2 was not pressed by the party and decided the matter on O.P(C).1440/17 4 merits in relation to the first prayer in the application. It was held that the first prayer was not legally sustainable. The review petition was filed by the first respondent on premise that, in fact, at the time of hearing, counsel had submitted that, first prayer was not pressed and that the counsel did not submit that the second prayer was not pressed. It was contended that, by mistake, court below proceeded to consider prayer No. (1) which was in fact not pursued by the petitioner. Court below virtually allowed the review petition and by Ext.P7 order allowed I.A.No.2664 of 2016, which is under challenge in the present proceeding. 5. Heard the learned senior counsel for the original petitioner and the learned counsel for the respondent. The parties shall hereinafter be referred as the original petitioner and the respondents in accordance with the status in the present original petition. 6. In Ext.P3 interlocutory application, two prayers were made. First was to incorporate the verification. Second was to introduce the date and place of signature. It seems that, in the original order, the entire discussion revolved around the first prayer. The review petition was filed to clarify that, in fact, it was the first prayer that was not pursued and the petitioner was pursuing the second prayer. The court below accepted this and proceeded to consider whether the second prayer was liable to be allowed. To that extent, I find no illegality in the exercise of the powers of review exercised by the court below. 7. On merits, the crucial question on which learned senior O.P(C).1440/17 5 counsel revolved his argument was whether, by way of amendment, the date and place of verification can be incorporated. Learned senior counsel, to buttress his arguments relied on the decision of this Court in **Mary Thomas v. Anil Akkara (M.L.A. Wadakkanchery) and Ors.** **(2017(2) KHC 518)** and contended that under the Representation of the People Act, the High Court shall dismiss the election petition which does not comply with the special provisions under the Municipalities Act. Pointing out that, it was in parimateria with the Kerala Municipalities Act, it was contended that, the substantial compliance of the statute was required and any application which was not in compliance with the Act has to be rejected. According to the learned senior counsel, court below ought to have rejected the application. It was also contended that, court below ignored the above legal proposition and allowed the application. It was submitted that, in **Mary Thomas'** s case, it was held that, when schedule-I which forms an integral part of election petition suffers from total lack of verification. It was a case of incurable defect and consequently, liable to be dismissed. Applying the above principle, it was contended that, court below should have dismissed the election petition, it was contended. 8. On the other hand, learned counsel for the first respondent relied on the decision of the Supreme Court in **F.A.Sapa and Ors. v. Singora and Ors. ((1991)2 SCC 375)** and few other decisions. In the above decision, Honourable Supreme Court had held that the verification O.P(C).1440/17 6 of a petition as contemplated under section 83(1)(c) of the Representation of the People Act should be in the manner laid down by order VI Rule 15 CPC. It was held that, the defect in verification can be of a formal nature and not very substantial. In some case, it may be one which substantially complies with the requirements, second one, which substantially complies with requirement and thirdly, belonging to the category, which are material but capable of being cured. It was held that, object of requiring verification of an election petition was clearly to fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time discouraging wild and irresponsible allegations unsupported by facts. In **Umesh Challiyil v. K.P.Rajendran** **(AIR 2008 SC 1577)** , Honourable Supreme Court held that, to invite a summary dismissal of a defective election petition, the defect should be those which goes into the root of the matter. The mere defect in complying with section 83 of the Act cannot visit with a dismissal of the application. In **M.Kamalam v. Dr.V.A.Syed Mohammed (AIR 1978 SC** **840)** Supreme Court had held that, in the case, wherein the signature was put by the petitioner at the end of the affidavit and not on the election petition, it cannot be a ground for the dismissal of the petition on that technical ground. In **Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. (AIR 1964 SC 1545)** , Supreme Court referring to section 83(1)(c) of the Representation of the People Act held that the defect in verification in the matter of election petition is a matter O.P(C).1440/17 7 which comes within the clause (c) of Sub section (1) of section 83. Defect can be removed clearly within the principles of Code of civil procedure. 9. The crux of all the above decisions is that, defects which are of formal nature and which do not go into the root of the case cannot be a ground for rejection of the election petition. It is also clear that, purpose of insisting for putting a signature on verification was only to ensure that the liability was fixed on the person who makes the statement. Applying the above principle, incorporating the place and date can only be considered as a formal defect since the verification coupled with the signature is already available on record. Absence of the date and place cannot be considered as a material defect, that goes to the root of the case. Applying the above principle, I find that, court below was perfectly justified in allowing the application. I find no reason to interfere in the impugned order which is liable to the sustained. Original petition fails and is dismissed. **Sd/-** **SUNIL THOMAS** Sbna **JUDGE** O.P(C).1440/17 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE PHOTOSTAT COPY OF THE OBJECTIONS FILED BY THE PETITIONER TO THE OP (ELECTION) NO.7 OF 2015 DATED JANUARY 2016 BEFORE THE HON'BLE MUNSIFF'S COURT, TVM.** **EXHIBIT P2** - **THE PHOTOSTAT COPY OF THE PETITION DATED 14.3.2016 SUBMITTED BY THE R.ABHILASH OP (ELECTION) NO. 7 OF 2015 BEFORE THE HON'BLE MUNSIFF'S COURT, TVM.** - **EXHIBIT P3 THE PHOTOSTAT COPY OF THE OBJECTIONS FILED BY THE PETITIONER DATED 2.4.2015 O.P (ELECTION) NO. 7 OF 2015 BEFORE THE HON'BLE MUNSIFF'S COURT-TVM.** - **EXHIBIT P4 THE PHOTOSTAT COPY OF THE ORDER DATED 13.2.2017 I.A NO.2664/2016 IN O.P. (ELECTION) NO. 7/2015 PASSED BY THE COURT OF THE ADDITIONAL MUNSIFF -III TVM.** - **EXHIBIT P5 THE PHOTOSTAT COPY OF THE PETITION DATED 15.3.2017 SUBMITTED BY THE R. ABHILASH, IN OP (ELECTION) NO. 7/2015 BEFORE THE COURT OF THE MUNSIFF'S COURT, TVM.** - **EXHIBIT P6 THE PHOTOSTAT COPY OF THE OBJECTIONS FILED BY THE PETITIONER DATED 21.3.2017 IN O.P. (ELECTION) NO.7/2015 BEFORE THE COURT OF THE MUNSIFF, TVM.** **EXHIBIT P7 THE PHOTOSTAT COPY OF THE ORDER DATED 21.3.2017 I.A 2664/2016 IN OP.(ELECTION) NO.7/2015 PASSED BY THE COURT OF THE ADDITIONAL MUNSIFF-III TVM.**