B. Abdulla v. Jose and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **TUESDAY, THE 29TH DAY OF MAY 2012/8TH JYAISHTA 1934** ## **OP(C).No. 981 of 2012 (O)** **------------------------OP(ELE)NO.9/2010 of MUNSIFF'S COURT, HOSDURG ------------------------** **PETITIONER(S):** - **------------------------** **B.ABDULLA, S/O SULAIMAN, RESIDING AT KOTTODY, POST KOTTODY -671 532, KALLAR VILLAGE, HOSDRUG TALUK, KASARAGOD DISTRCIT** **BY ADVS.SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA SMT.S.SANTHY** ## **RESPONDENT(S):** - **-----------------------------** **1. JOSE, S/O OUSEPH,** - **RESIDING AT CHAAMPAKKARA HOUSE, KOTTODY, KALLAR VILLAGE, POST KOTTODY -671 532, HOSDRUG TALUK, KASARAGOD DISTRICT .** **2. T. DAMODHARAN,S/O LATE KUNHIRAMAN NAIR, RESIDING AT THOTTATHIL HOUSE, PERADUKKAM,KOTTODY, POST KOTTODY- 671532, KALLAR VILLAGE, HOSDRUG TALUK, KASARAGOD DISTRICT .** ## **3. K. KUNHIKRISHNAN,** - **S/O KRISHNAN NAIR.B, RESIDING AT MANIKALLU, RAJAPURAM POST -671 532, KALLAR VILLAGE, HOSDRUG TALUK, KASARAGOD DISTRICT.** ## **BY ADV. SRI.JOSE J.MATHAIKAL** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP(C)NO.981/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT. P1 TRUE COPY OF THE ELECTION PETITION, VIZ ORIGINAL PETITION (ELECTION) NO. 9/2010 DATED 25/11/2010 ON THE FILE OF THE MUNSIFF'S COURT, HOSDRUG. EXT. P2 TRUE COPY OF THE RECRIMINATION/ STATEMENT DATED 7-2-2011 IN ORIGINAL PETITION (ELECTION) NO. 9/2010 DATED 25.11.2010 ON THE FILE OF THE MUNSIFF'S COURT, HOSDRUG EXT. P3 TRUE COPY OF THE I.A. NO 175/2012 IN ORGINAL PETITION (ELECTION) NO. 9/2010 ON THE FILE OF THE MUNSIFF'S COURT, HOSDRUG DATED 21-1-2012 EXT. P3(A) TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF EXT P3. EXT. P4 TRUE COPY OF THE COUNTER STATEMENT DATED 8-2-2012 FILED BY THE PETITONER IN I.A. NO 175/2012 IN ORIGINAL PETITION (ELECTION) NO. 9/2010 ON THE FILE OF THE MUNSIFF'S COURT, HOSDRUG. EXT. P5 TRUE COPY OF THE ORDER DATED 15-2-2012 ORIGINAL PETITION (ELECTION) NO. 9/2010 ON THE FILE OF THE MUNSIFF'S COURT, HOSDRUG** ## **RESPONDENTS' EXHIBITS : NIL** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** **“C.R.”** ## **V.CHITAMBARESH, J. ----------------------------** ## **O.P (C) No.981 of 2012 -----------------------------Dated this the 29[th] day of May, 2012.** ## **J U D G M E N T** The following questions arise for consideration in this original petition filed under Article 227 of the Constitution of India: i) Can an election petition be amended wherein the election has been called in question on the ground of ' _double voting_ ' and not on the ground of ' _corrupt practice_ ' ? ii) Is an amendment of the election petition permissible after the date fixed for the respondents to appear when the trial is deemed to have commenced in law ? iii) Whether ' _material facts_ ' or ' _particulars'_ could be introduced by such amendment after the time limit prescribed to question the election and is not the plea then barred by limitation ? O.P.(C) No.981 of 2012 2 Divergent answers come from Mr.D.Krishna Prasad, Advocate on behalf of the petitioner and Mr.Jose J Matheikel, Advocate on behalf of the first respondent for these questions. 2. The petitioner is the returned candidate from Ward No.XIII of Kallar Grama Panchayat whose election has been called in question by the first respondent. The first respondent lost the election by a margin of two votes and has filed the election petition under Section 87 of the Kerala Panchayat Raj Act, 1994. The first respondent averred in the election petition that 7 votes cast in favour of the petitioner are liable to be eschewed on account of double voting. The names of the seven voters who allegedly indulged in double voting have been well furnished in the election petition. Reliance is placed on Section 76(3) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act') which is extracted hereunder:- 76. Right to vote: (1) .......... (2) .............. (3) No person shall vote at a general election in more than one constituency of the same level, and if a person O.P.(C) No.981 of 2012 3 votes in more than one such constituency, his votes in all such constituencies shall be void. ## Reliance is also placed on Section 102(1)(d)(iv) of the Act which is extracted hereunder: 102. Grounds for declaring election to be void: (1) Subject to the provisions of sub-section (2), if the court is of opinion - (a) ................ (b) .................. (c) .................. (ca) .................. (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) ................. (ii) ................. (iii) ................. (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, the court shall declare that the election of the returned candidate to be void. The election petition seeks to declare that the election of the petitioner is void and that the first respondent is the duly elected candidate from the ward in question. O.P.(C) No.981 of 2012 4 3. The election petition was filed on 25.11.2010 within the permissible period of 30 days from 27.10.2010 the date on which the petitioner was declared elected. The petitioner filed a statement of recrimination on 7.2.2011 as provided under Section 99 of the Act challenging the rival claim of the first respondent. The first respondent thereafter filed an application on 21.1.2012 seeking to amend the election petition. The purpose of the amendment was to incorporate the name of one more voter in the election petition who had allegedly indulged in double voting. The first respondent called in aid Section 94 of the Act to sustain the plea for amendment of the election petition. The petitioner filed an objection to the application for amendment contending inter alia that it is impermissible under the Act. The petitioner contended that an amendment of an election petition could be resorted to only when the election is challenged on corrupt practice. Heavy reliance was placed on Section 93(4) of the Act which specifically allows particulars of corrupt practice to be amended. The court below has allowed O.P.(C) No.981 of 2012 5 the application for amendment which is impugned by the petitioner in this original petition. 4. The petitioner strongly contends that the only enabling provision for amendment of the election petition is Section 93(4) of the Act. He asserted that the same deals with corrupt practice only and that Section 120 of the Act which enumerates corrupt practice does not take in double voting. The petitioner relied on the following decisions to highlight that an election contest is purely a statutory proceeding: i) **Kaveri Amma v. Devaki** (1996 (2) KLT 189) ii) **Anandavalli v. Ajitha** (2001 (3) KLT 758) ## iii) **Omana v. Sussi Kunjachan** (2003 (1) KLT 525) The contention of the petitioner in short is that the court possess no common law power as in an action at law or a suit in equity to enable amendment of an election petition. 5. The first respondent points out that the provisions of the Code of Civil Procedure, 1908 can be called in aid and relies on Section 94 of the Act which is as follows:- O.P.(C) No.981 of 2012 6 94. Procedure before court (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) to the trial of suits: Provided that the court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petitioner or that the party tendering such witness or witnesses is doing so in frivolous ground or with a view to delay the proceedings. The first respondent also relies on the decision in **K.Muraleedharan v. V.V.Raghavan** (1999 (2) KLT 377) wherein amendment of an election petition was held permissible. The petitioner alertly points out that the said decision dealt with an election petition on the ground of corrupt practice only. 6. A distinction between 'material facts' and 'particulars' has to be borne in mind while considering an application for amendment of the election petition. 'Material O.P.(C) No.981 of 2012 7 facts' are primary or basic facts which must be pleaded in support of the case set up to prove cause of action. 'Particulars' on the other hand are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full or more clear. A reference in this connection to the following decisions are apposite. i) **Virender Nath Gautam v. Satpal Singh and others** (2007 (3) SCC 617) ii) **Ram Sukh v. Dinesh Aggarwal** [2009) 10 SCC 541] The 'material fact' that there has been a double voting in violation of Section 76(3) exposing the election to a challenge under Section 102(1)(d)(iv) of the Act is already pleaded. Only the 'particular' that one more voter has indulged in double voting is sought to be incorporated by way of amendment. The same only amplifies the material fact and does not introduce an altogether different cause of action. O.P.(C) No.981 of 2012 8 ## 7. **Bhim Sen v. Gopali and others** (Vol. XXII ELR 288) is a case where election petition was filed alleging that void votes were received by the returning officer. The number of the void votes so counted was sought to be altered by way of an amendment to the election petition. _Mr.Justice Gajendragadkar_ speaking for the Bench held that the amendment must be treated merely as one for clarification of pleadings. It was further held therein that the jurisdiction of an election court to amend the pleading is as extensive as that of a civil court. _Virender Nath Gautam's_ case referred to supra also dealt with a challenge to an election on the ground of improper reception of void votes and also double voting. It was held therein that the election petition can be permitted to be amended or amplified to set forth the full particulars. 8. Section 94 of the Act is _in pari materia_ with Section 87 of the Representation of the People Act, 1950 which enables the Code of Civil Procedure to be called in aid. The Supreme O.P.(C) No.981 of 2012 9 Court in _Ram Sukh'_ s case cited supra after referring to the statutory provisions observed as follows:- Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code applied to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order VII Rule 11 of the Code. (emphasis supplied) It is preposterous to contend that the power to amend can be exercised only when the election is sought to be called in question on the ground of corrupt practice. The power to amend can be exercised in all election petitions provided the same relates to particulars and not material facts. 9. The petitioner further contended that the trial of the election petition should be deemed to have commenced on the date fixed for appearance in court. My attention was drawn to Explanation to Section 93(3) of the Act to buttress this contention. The petitioner argued that the trial has thus O.P.(C) No.981 of 2012 10 commenced in terms of the Act even though no witnesses have been examined on either sides. Therefore an application for amendment cannot at any rate be allowed as per the proviso to Order VI Rule 17 of the Code of Civil Procedure. I should bear in mind that this statutory provision is not an absolute embargo to allow amendment of pleadings at all times. The first respondent has pleaded in the application for amendment about the omission to furnish the name of one more voter. The averments point out that there was omission notwithstanding the exercise of due diligence earlier. The amendment of the election petition to furnish the name of one more voter who had indulged in double voting is in tune with the Code of Civil Procedure as well. 10. The petitioner lastly contends that an election could be called in question only within a period of 30 days from the date of declaration of result. Reliance is placed on Section 89 of the Act which prescribes a time limit to question the election under Sections 102 and 103 of the Act. The petitioner draws my attention to the fact that the application for O.P.(C) No.981 of 2012 11 amendment was filed well beyond the period of 30 days. True it is that the application for amendment was filed almost 15 months after the declaration of the result. But the amendment proposed is not in relation to a 'material fact' pleaded on which the cause of action is founded. The election petition continues to be under Section 76(3) read with Section 102(1)(d)(iv) of the Act on the ground of double voting. The ground on which the election is sought to be declared as void continues to be the same and is not altered by way of amendment. The amendment does not give rise to a new cause of action which is sought to be introduced after the period of limitation. There is no question of any vested right being taken away by the proposed amendment as is urged by the petitioner. I am fortified in this view by the judgment in **Raj Narain v. Indira Nehru Gandhi** [(1972) 3 SCC 580] which still holds the field. The order allowing amendment of the plaint to include the name of one more voter who had allegedly indulged in double voting is legal and valid. O.P.(C) No.981 of 2012 12 # There is no error of jurisdiction in the order impugned. The original petition fails and is dismissed. No costs. **V.CHITAMBARESH Judge.** nj.