Jimmy Joseph v. Mary Dominic and K. I. Hashim

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 24390 of 2006(C) -------------------------AGAINST THE ORDER DATED 23/08/2005 IN IA.594/2006 IN OP(E).2/2005 of MUNSIFF COURT, PALA .................... PETITIONER: ------------ JIMMY JOSEPH, S/O.JOSEPH, THAZHATHEL HOUSE, PALA P.O., VELLAPPADU KARA, LALAM VILLAGE. BY ADV. SRI.P.C.HARIDAS RESPONDENTS: ------------- 1. MARY DOMINIC, W/O.DOMINIC, KANIYARASSERIL, ARUNAPURAM KARA, PULIYANNOOR VILLAGE. 2. K.I.HASHIM, FINANCE OFFICER, COLLECTORATE, COLLECTORATE P.O., KOTTAYAM. BY ADV. SRI.GEORGE MECHERIL FOR R1 SRI.RAJAN JOSEPH FOR R1 SRI.GEORGE MECHERIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2008, ALONG WITH CRP NO. 718 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **’ Petitioner s Exhibits** :- Exhibit-P1:True copy of the OP (Election)No.2 of 2005 dated 26.10.2005 Exhibit-P2:True copy of the objection to Ext.P1 - Exhibit-P3:True copy of the I.A.No.152 of 2006 dated 7.1.2006 along with the affidavit. Exhibit-P4:True copy of the objection to Ext.P3 Exhibit-P5:True copy of the I.A. No.594/06 Exhibit-P6:True copy of the counter affidavit to Ext.P5 Exhibit-P7:True copy of the order dated 23.8.2005 in IA 594 of 2006 in OP (Election) No.2 of 2005 of the Munsiff’s Court, Pala. ------------ // True copy// P.A. To Judge ## **M. SASIDHARAN NAMBIAR, J.** -----------------------------------------W.P(C).NO. 24390 OF 2006 & CRP. NO.718 OF 2006 ------------------------------------------ DATED THIS THE 2[ND ] DAY OF JUNE, 2008 ## **JUDGMENT** Petitioner is the elected candidate to Ward No.20 of Pala Muncipality. First respondent filed a petition to set aside the election. The grounds taken are double voting as well as corrupt practice. Apart from the petitioner, the successful candidate, first respondent impleaded the returning officer as second respondent, in the electtion petition. Petitioner appeared before the Munsiff and contended that the election petition is not maintainable. He raised a preliminary objection that the election petition is liable to be dismissed as provided under Section 169(1) of the Kerala Muncipalities Act. Petitioner filed IA 152 of 2006 for hearing the maintainability of the election petition. First respondent then filed IA 594 of 2006, an application to amend the election petition, under Order VI Rule 17 of the Code of Civil Procedure. Petition was opposed by the petitioner. Learned Munsiff, as per two 2 WPC 24390/06 & CRP 718/06 separate orders, allowed the application for amendment and for that reason dismissed IA 152 of 2006, holding that there is no noncompliance with the provisions of Section 165 of Kerala Muncipalities Act in view of the amended election petition. The order dismissing IA 152 of 2006 is challenged in CRP No.718 of 2006. Order allowing IA 594 of 2006 is challenged in writ petition 24390 of 2006 under Article 227 of Constitution of India. 2. The learned counsel appearing for the petitioner and the first respondent were heard. IA 594 of 2006 was filed for amendment of the election petition deleting paragraph 10 relating to the specific allegations of corrupt practice and also to delete an allegation in paragraph 16 to the effect that an affidavit as provided under sub-section 167(1)(c) of the Act was filed along with the election petition. The case of the petitioner is that when the very maintainability of the election petition was challenged on the ground of noncompliance with the provisions of Section 165 (2) of the Muncipalities Act, learned Munsiff should not have considered the amendment application deleting the allegation with regard to corrupt practice so as to allow the first respondent to get over the plea of noncompliance with the provisoins of Section 165(2) of the Act. The learned counsel WPC 24390/06 & CRP 718/06 3 appearing for the first respondent argued that petitioner did not specifically take out the ground of noncompliance of Section 165(2) of the Act in the objection and instead only contended that the election petition is bad for mis-joinder of parties as provided under Section 166 and for not filing an affidavit as provided under Section 167(1)(c). The argument of the learned counsel for respondent is that there was no case before the trial court that a copy of the affidavit filed by first respondent as provided under Section 167(1)(c) was not filed along with the election petition as provided under Section 165(2) and therefore the election petition is liable to be dismissed under Section 169 (1) of the Act. 3. The crucial question for consideration is whether an affidavit to be filed under Section 167(1)(c) along with the election petition forms part of the election petition as provided under Section 165 and if so, whether the non-filing of a copy of the affidavit along with the election petition is a ground to dismiss the election petition as provided under Section 169(1) of the Act. The argument of the learned counsel appearing for the petitioner is that as held by the Apex Court in **M. Kamalam v. Dr.V.A. Syed Mohammed (AIR 1978 Supreme Court 840)** WPC 24390/06 & CRP 718/06 4 an affidavit to be filed under Section 167(c) forms an integral part of the election petition and if so, if a copy of that affidavit is not filed along with the election petition, it is a fatal defect warranting dismissal of the election petition under Section169(1) of the Act. The argument of the learned counsel appearing for the first respondent is that this aspect was not agitated before the trial court and was not considered by the learned Munsiff. The learned counsel appearing for petitioner relying on the decision of the Apex Court in **U.S. Sasidharan v. K. Karunakaran (AIR 1990 SC 924)** and **Harcharan Singh Josh v. Harikishan (AIR1996 SC 3350)** argued that a petitioner in an O.P.(Election) has to comply with the provisions of Section 165(2) as on the date of the election petition and by filing an application for amendment the defect cannot be cured and the learned Munsiff should not have permitted the amendment and therefore Ext.P7 order allowing the amendment is not legal. It was also argued that if the petition is liable to be dismissed on the ground of noncompliance of Section 165(2) of the Act, then that defect cannot be cured by allowing the application filed under Order VI Rule 17 of the Code of Civil Procedure. The learned counsel argued that IA 152 of 2006 was disposed and WPC 24390/06 & CRP 718/06 5 the election petition was found valid for the sole reason that by the order allowing the application for amendment, allegation on the corrupt practice was deleted and therefore an affidavit as provided under Section 167(1)(c) need not be filed and therefore there is no noncompliance with the provisions of Section 165. There is force in the submission of the learned counsel appearing for petitioner. 4. Section 163 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of chapter X. Section 165 provides for presentation of an election petition. Under subsection (1), an election petition calling in question an election may be presented on one or more of the grounds specified under Section 178 and 179 within 30 days and under sub-section (2) every election petition shall be accompanied by as many copies as thereof, as there are respondents mentioned in the election petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the election petition. Under sub-section (1) of Section 169, court shall dismiss an election petitoin which does not comply with the provisions of Section 165 or 166 or 191. Therefore, if an election WPC 24390/06 & CRP 718/06 6 petition was presented without complying with the provisions of Section 165 it is liable to be dismissed at the threshold under sub-section (1) of Section 169. Section 167 provides the contents of an election petition. Under clause (c) of sub-section (1) of Section 167 an election petition shall be signed by the petitioner and verified in the manner as provided under the Code of Civil Procedure for verification of the pleadings. The proviso mandates that when the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. True, noncompliance with the provisions of sub section (1)(c) of Section 167, is not a ground to dismiss an election petition under Section 169(1). Under Section 169(1) an election petition can be dismissed only for noncompliance of either Section 165 or 166 or 191. Therefore, if the noncompliance is only with regard to Section 167(1)(c), then the election petition cannot be dismissed as provided under Section 169(1). But, if an affidavit as provided under Section 167(1)(c) is filed and it forms part of an election petition, as provided under Section 165 a copy of that affidavit was not filed along with an election petition as contemplated WPC 24390/06 & CRP 718/06 7 under Section 165(2), then it is a ground for dismissal of the petition under Section 169(1) for its noncompliance. 5. The question whether an affidavit filed under Section 83(1) of Representation of People Act, which is identical to Section 167(1)(c) of the Kerala Muncipalities Act, forms part of election petition was considered by the Apex Court in Kamalam’s case (supra). Analysing the provisions of the Act, the Hon’ble Supreme Court held that : “ It would, therefore, be seen that if a schedule or annexure is an integral part of the election petition, it must be signed by the petitioner and verified, since it forms part of the election petition. The subject-matter of sub-section (2) is thus a schedule or annexure forming part of the election petition and hence it is placed in Section 83 which deals with contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83 sub-section (1) also forms part of the election petition. The election petition is in truth and reality one document, consisting of WPC 24390/06 & CRP 718/06 8 two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to Section 83, subsection (1). The copy of the election petition required to be filed under the first part of subsection (3) of Section 81, would, therefore, on a fair reading of that provision along with Section 83, include a copy of the affidavit. That is why the appellant attached a copy of the affidavit to the copy of the election petition proper and filed the two as one single document along with the election petition”. Therefore it cannot be disputed that an affidavit filed in compliance with Section 167(1)(c) of the Act does not form part of an election petition. If that be so, noncompliance of Section 165(2), by non filing of a copy of that affidavit, is in violation of the provisions under Section 165. If so, it is a ground for dismissal of a petition in limine as provided under Section 169 (1) of Kerala Muncipalities Act. Unfortunately, learned Munsiff did not consider this aspect. 6. True, petitioner in his objection to the election petition WPC 24390/06 & CRP 718/06 9 contended that an affidavit as provided under Section 167(1)(c) was not filed and a copy was not received by him. The learned Munsiff did not specifically find whether an affidavit as provided under Section 167(1)(c) was filed along with the election petition. The learned Munsiff accepted the case of first respondent that an affidavit was filed though it was not specifically considered whether it was in fact filed or not. In such circumstances it is necessary to decide, whether an affidavit as provided under Section 167(1)(c) was filed or not. Only if it was filed copy of that affidavit need be filed along with the election petition. Then only there could be a noncompliance with the provisions for its non production. That aspect cannot be decided by this court for the first time and that too in a petition filed under Article 227. It is for the Munsiff to decide whether there is noncompliance with the provisions of Section 165(2) and if so, whether election petition is liable to be dismissed under Section 169. 7. As rightly pointed out by the learned counsel appearing for the petitioner, learned Munsiff should not have decided the maintainability of the election petition after allowing the application for the amendment of the election petition. If only the election petition is maintainable, learned Munsiff need WPC 24390/06 & CRP 718/06 10 consider IA 594 of 2006, the application filed for amendment of the election petition. Therefore, order in IA 596 of 2006 is liable to be quashed. Learned Munsiff is to dispose that application only after disposing IA 152 of 2006. 8. As the learned Munsiff did not consider whether the first respondent/election petitioner had in fact filed an affidavit along with election petition, and if so whether the affidavit forms part of the election petition, and nonproduction of a copy of that affidavit is a noncompliance of the provisions for Section 165(2), the order dated 23.8.2006 in IA 152 of 2006 is also liable to be quashed. 9. The revision as well as the writ petition are allowed. Order passed by learned Munsiff, Pala in IA 152 of 2006 and IA 594 of 2006 are set aside. The learned Munsiff is directed to consider the maintainability of the election petition as provided under Section 169(1) of the Act. The learned Munsiff shall consider whether first respondent filed an affidavit as provided under Section 167(1)(c) along with the election petition. If it is filed, it is to be further decided whether it forms part of the election petition and whether nonproduction of a copy of the affidavit is a noncompliance with the provisions of Section 165(2). WPC 24390/06 & CRP 718/06 11 If it is found that an affidavit as provided under Section 167(1)(c) is not filed, then there is no noncompliance of the provision of Section 165(2) on that ground and in that event IA 152 of 2006 is liable to be dismissed. On the other hand, if it is to be found that an affidavit was filed and it forms part of the election petition and there was noncompliance of the provisions of sub-section (2) of Section 165, then election petition is liable to be dismissed as provided under Section 169(1). If the election petition is not dismissed under Section 169(1), learned Munsiff shall consider and pass appropriate order in IA 594 of 2006. Learned Munsiff has to pass order in the application within 30 days from the date of receipt of a copy of this judgment. ## **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-