Asha A. v. Manjusha Santosh and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 OP(C) NO. 2507 OF 2021 ``` ## **`IN IA 3/2021 IN OP(ELECTION) 3/2021 OF ADDITIONAL MUNSIFF’S COURT, KOLLAM`** ## **`PETITIONER/PETITIONER/1ST RESPONDENT:`** ``` ASHA.A., AGED 30 YEARS, W/O.SHIBU, MADHAVAM, URUMALOOR PADINJATTATHIL, KANNIMEL CHERRY, KAVANADU P.O., SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT-691 003. BY ADVS. K.SIJU S.ABHILASH ANJANA KANNATH T.S.SREEKUTTY ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3:`** ``` 1MANJUSHA SANTHOSH, AGED 40 YEARS W/O.SANTHOSH, SREESHYLAM, KANNIMEL CHERRY, KAVANADU P.O., SAKTHIKULANGARA VILLAGE, KOLLAM-691 003. 2LAKSHMI VENU, AGED 37 YEARS W/O.VENU, PLATHOTTIL VEEDU, KANNIMEL CHERRY, KAVANADU P.O., SAKTHIKULANGARA VILLAGE, KOLLAM-691 003. 3RAJANI SIVAKUMAR, AGED 40 YEARS, W/O.KANNIMEL CHERRY, VELOOR THEKKEKARA, KANNIMEL CHERRY, KAVANADU P.O., SAKTHIKULANGARA VILLAGE, KOLLAM-691 003. BY ADVS. M.MANU G.SANTHOSH KUMAR (P). VINEETH V. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P(c).No.2507 of 2021 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## O.P.(C) No.2507 of 2021 --------------------------------------------Dated this the 23[rd] day of March, 2022 ## **JUDGMENT** The petitioner is the returned candidate in the general election held on 08.12.2020 for the Kollam Municipal Corporation from the Alattukavu Division. The respondents are the other candidates contested in the election. The petitioner was elected by a margin of four votes. The election of the petitioner was challenged by respondent No.1 in O.P.(Election) No.3/2021 before the Additional Munsiff’s Court, Kollam. 2. The petitioner challenged the maintainability of the election petition on two grounds (1) the election petition has not been verified as provided in Section 167 (1)(c) of the Kerala Municipality Act, 1994 (hereinafter referred to as ‘the Act’) (2) the affidavit as mandated in the proviso to Section 167 (1)(c) has not been filed. 3. The Trial Court, after considering the rival ``` O.P(c).No.2507 of 2021 ``` ``` 3 ``` contentions, held that the election petition has been verified as required by the Statute and the affidavit filed as provided in Rule 62 of the Kerala Municipality (Conduct of Election) Rules, 1995, is a substantial compliance of the requirements of the Statute. 4. The Trial Court, therefore, dismissed the petition filed by the returned candidate as per order dated 27.10.2021. The said order is under challenge in this Original Petition. 5. Heard Sri.Siju Kamalasanan, the learned counsel appearing for the petitioner and Sri.M.Manu, the learned counsel appearing for respondent No.1. 6. The learned counsel for the petitioner contended that Section 167(1)(c) of the Act mandates that the election petition shall be signed and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) for verification of pleadings. It is further submitted that the election petitioner has failed to verify the schedule appended to the election petition, which is a mandatory requirement as provided in Section 167(2) of the Act. The learned counsel ``` O.P(c).No.2507 of 2021 ``` ``` 4 ``` for the petitioner submitted that non-compliance of this requirement is sufficient to dismiss the election petition as not maintainable. 7. Per contra, the learned counsel for respondent No.1 contended that respondent No.1/election petitioner has verified the election petition as provided in the Statute and the affidavit as required has been filed along with the Election Petition. The learned counsel further contended that an Election Petition is liable to be dismissed at the threshold only when it is found that the election petitioner did not comply with the provisions of Section 165, or Section 166 or Section 191 of the Act. 8. In the Election Petition, respondent No.1 has alleged corrupt practices against the returned candidate. It is alleged that the petitioner/returned candidate and his agent paid cash to many voters to exercise their franchise in his favour. It is further alleged that the returned candidate had offered employment to many unemployed persons in the constituency with the intention of influencing them and getting their votes cast in his favour. 9. The petitioner challenged the maintainability of ``` O.P(c).No.2507 of 2021 ``` ``` 5 ``` the Election Petition on the ground that precise facts as to the corrupt practices were not averred in the Election Petition. It is also contended that the Election Petition lacks the statutory requirements regarding verification and filing of the affidavit. 10. The questions that fall for consideration are :- (a) whether respondent No.1 verified the Election Petition as provided in Section 167 (1)(c) of the Act (b) whether filing of an affidavit as provided in Order VI Rule 15(4) of the CPC is mandatory to maintain the Election Petition. 11. Section 167 of the Act refers to the contents of an Election petition. Section 167 reads thus:- “ **167. Contents of petition.-** (1) An election petition,- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice that the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the verification of pleadings: Provided that were the petitioner alleges any corrupt practice, the petition shall also be ``` O.P(c).No.2507 of 2021 ``` ``` 6 ``` accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.” 12. As per Section 167(1)(c), an Election Petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of the pleadings. The Proviso to Section 167(1)requires that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and particulars thereof. Section 167(2) of the Act mandates that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 13. Ext.P1 is the copy of the Election Petition. The list of documents produced along with the Election Petition is narrated below the reliefs claimed by the petitioner. The Election Petitioner verified at the bottom of the Election Petition after the list of documents as required in the manner laid down in the CPC for verification of pleadings. 14. The learned counsel for the petitioner ``` O.P(c).No.2507 of 2021 ``` ``` 7 ``` contended that respondent No.1 ought to have verified in the manner laid down in the CPC after the relief portion in the Election Petition as well as below the space where the list of documents is narrated. 15. In the case on hand, merely because, in the Election Petition respondent No.1 has chosen to mention the list of documents as a schedule of documents, it cannot be treated as a schedule as provided in Section 167(2) of the Act. In the Election Petition, in fact, there is no schedule or annexure as contemplated in Section 167(2) of the Act. The list of documents also forms part of the Election Petition. The necessary conclusion is that respondent No.1 has signed and verified the Election Petition as provided in the Statute. This view is fortified by the decision of this Court in **M.T.Lissy vs. K.K.Surendran and others [W.P. (C)No.952/2008]** . 16. The next question to be considered is whether respondent No.1 was required to file an affidavit as provided in Order VI Rule 15(4) of CPC. The proviso to Section 167(1) states that where any corrupt practice is alleged in an Election Petition the same shall also be ``` O.P(c).No.2507 of 2021 ``` ``` 8 ``` accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. 17. In the case on hand, respondent No.1 has submitted an affidavit as provided in Rule 62 of the Kerala Municipality (Conduct of Election) Rules, 1995. Referring to Section 167(1)(c) of the Act, the learned counsel for the petitioner contended that an affidavit as provided in Order VI Rule 15(4) was also to be filed. 18. The Election Petition is not a plaint as provided in the CPC. Section 167 of the Act, does not require an affidavit in support of the pleadings in an Election Petition. While construing Section 83 of the Representation of the People Act, 1951, a provision pari materia with Section 167 of the Act, the Apex Court in **G.M. Siddeshwar v. Prasannakumar [2013 KHC 4178]** held that the plain language of Section 83(1)(c) of the Representation of the People Act, 1951, does not require an affidavit in support of the pleadings in an Election Petition. This Court had an opportunity to consider a similar fact situation in **Geetha Shetty v. Premalatha [2006 (2) KLT 141]** wherein it was ``` O.P(c).No.2507 of 2021 ``` ``` 9 ``` held that as the Election Petition is not a plaint, the Election Petitioner has no obligation to file any such affidavit as stipulated in Order VI Rule 15(4) of the CPC. 19. The learned counsel for the petitioner further relying on **C.P. John v. Babu M. Palissery [(2014) 10 SCC 547],** contended that where petitioner in an Election Petition alleges any corrupt practice, the petition shall contain full material facts and particulars of corrupt practice including the date, place and names of the parties. 20. This Court is of the view that these are questions to be considered during the trial and cannot be taken as a ground to dismiss an Election Petition at the threshold. 21. Apart from that, the Statute does not contemplate the consequence of dismissal of the Election Petition for the non-compliance of the provisions other than Sections 165, 166 and 191. This is evident from Section 169 (1) of the Act which reads thus:- “ **169. Trial of election petitions.-** (1) The Court shall dismiss an election petition which does not comply with the provisions of section 165 or section 166 or section 191. xxx” xxx xxx ``` O.P(c).No.2507 of 2021 ``` ``` 10 ``` 22. The Apex Court in **G.Mallikarjunappa and Another v. Shamanur Shivashankarappa and Others [(2001) 4 SCC 428],** had an occasion to consider a similar question while dealing with Section 86 of the Representation of the People Act, 1951, a provision pari materia with Section 169 of the Municipality Act, 1994. 23. Section 86(1) of the Representation of the People Act, 1951, reads thus: — **“86. Trial of election petitions.** (1)The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. xxx xxx xxx” 24. The Apex Court in **G.Mallikarjunappa and Another v. Shamanur Shivashankarappa and Others** **(supra)** held that the Election Petition is not liable to be dismissed at the threshold under Section 86 of the Act for the alleged non-compliance with the provisions other than Sections 81, 82 or 117 of the Act. It was further held that the defect in the verification and the affidavit is a curable defect. The Apex Court further held that the consequences, that may follow from an allegedly defective affidavit, are required to be judged at the trial of an Election Petition and ``` O.P(c).No.2507 of 2021 ``` ``` 11 ``` not under Section 86 (1) of the Act. In **Umesh Challiyil v. K.P.Rajendran [2008(2) KHC 4]** , the Apex Court held that an Election Petition should not be summarily dismissed on small breaches of procedure. 25. The resultant conclusion is that the petitioner failed to establish any ground that warrants interference in the impugned order by this Court under Article 227 of the Constitution of India. The Original Petition therefore, lacks merit and is dismissed. ``` Sd/- ``` ``` K.BABU JUDGE ``` VPK ``` O.P(c).No.2507 of 2021 ``` ``` 12 ``` ## **`APPENDIX OF OP(C) 2507/2021`** ## `PETITIONER EXHIBITS` ``` Exhibit P1A PHOTOCOPY OF THE PETITION IN OP(ELECTION) NO.3/20212 RECEIVED AS CERTIFIED COPY FROM THE ADDL.MUNSIFF COURT, KOLLAM DATED 15.01.2021. ``` - `Exhibit P2 A TRUE COPY OF THE MAINTAINABILITY PETITION FILED BY THE PETITIONER AS IA NO.3/2021 IN OP(ELECTION) NO.3/2021 DATED 08.02.2021.` - `Exhibit P3 A TRUE COPY OF THE ORDER IN IA NO.3/2021 IN OP(ELECTION) NO.3/2021 DATED 27.10.2021.` - `Exhibit P4 THE COPY OF OBJECTION FILED BY THE PETITIONER/1ST RESPONDENT IN OP(ELECTION) NO.3/2021 DATED 19.11.2021.` - `Exhibit P5 A TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT/PETITIONER DATED 15.01.2021 PRODUCED ALONG WITH OP(ELECTION) NO.3/2021.` ## `RESPONDENTS’ EXHIBITS` ``` Exhibit R1(A)A TRUE COPY OF ONE OF THE SCHEDULE PRODUCED ALONG WITH THE ELECTION PETITION ```