K. Sunil v. Jithesh Muthukad and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933** ## **OP(C).No. 3344 of 2011(O)** **-----------------------------------** **EOP.11/2010 of MUNSIFF COURT, PERAMBARA** **....................** ## **PETITIONER/IST RESPONDENT** **---------------------------------------------** **K.SUNIL, S/O.KRISHNAN, AGED 38 YEARS, KALLUNGAL HOUSE, PERUVANNAKUZHI P.O., PIN-673528, CHAKKITTAPPARA AMSOM, PILLAPERUVANNA DESOM.** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENT(S): PETITIONER/RESPONDENTS** **--------------------------------------------------------------------** ## **1. JITHESH MUTHUKAD,** **S/O.SIVAN, AGED 30 YEARS, PADINJAREMANNU, KUNNEL HOUSE, P.O.MUTHUKAD, PERUVANNAMUZHI-673528, CHAKKITTAPPARA AMSOM, PILLAPERUVANNA DESOM.** **2. SUNIL M.K., S/O.SANKARAN, AGED 30 YEARS, MAKKUNNUMMAL HOUSE, P.O.MUTHUKAD, PIN-673 528, CHAKKITTAPPARA AMSOM, PILLAPERUVANNA DESOM.** **3. RETURNING OFFICER G-34, CHAKKITTAPPARA GRAMA PANCHAYATH, SALES TAX OFFICER, COMMERCIAL TAX OFFICE, KOYILANDY P.O., PIN-673305, KOYILANDY AMSOM DESOM.** **4. SECRETARY, CHAKKTTAPPARA GRAMA PANCHAYATH, P.O.CHAKKITTAPPARA, CHAKKITTAPPARA AMSOM DESOM, PIN-673526.** **tss** ## **OPC. NO.3344/2011** **5. KERALA STATE ELECTION COMMISSION, ELECTION COMMISSION OFFICE, THIRUVANANTHAPURAM P.O., PIN-695001.** **R1 BY ADV. SRI.BABU CHERUKARA R3 R5 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R4 BY ADV.SRI.K.B.ARUNKUMAR** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **O.P.(C) NO.3344/2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1:- COPY OF THE ORDER IN IA.484/11 IN EOP.11/2010 BEFORE THE COURT OF MUNSIFF, PERAMBRA.** **EXT.P2:-COPY OF EOP.11/2010.** **EXT.P3:-COPY OF THE COUNTER FILED IN THE EOP.11/2010.** **EXT.P4:-COPY OF THE AMENDMENT APPLICATION.** **EXT.P5:-COPY OF THE COUNTER TO THE AMENDMENT APPLICATION.** **RESPONDENT'S EXHIBITS** **R1(a):- COPY OF THE REPLY DTD. 8.11.2010 BY THE VILLAGE OFFICER, CHAKKITTAPPARA.** **R1(b):- COPY OF THE LETTER DT.D 2-9-2011 BY THE VILLAGE OFFICER, CHAKKITTAPPARA.** ## **RESPONDENTS' EXHIBITS** **NIL:-** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.3344 of 2011 ==================================== Dated this the 14[th] day of November, 2011** ## **J U D G M E N T** Petitioner and the first respondent contested election from Ward No.V of Chakkittapara Grama Panchayat. Petitioner won the election. First respondent challenged the election before the learned Munsiff, Perambra. First respondent contended that petitioner was disqualified to be elected as he had defaulted payment of Rs.1,000/- due from him as surety to the accused as per order in M.C. No.23 of 2006 of the court of learned Judicial First Class Magistrate, Koyilandy, defaulted payment of Rs.5,000/- as surety of the accused as per order in M.C. No.67 of 2006 of the court of learned Judicial First Class Magistrate. Perambra and defaulted payment of Rs.4,201/- due to the BSNL Ltd, and further that he is a proclaimed offender in L.P. No.39 of 2007 and 42 of 2007 of the court of learned Judicial First Class Magistrate, Perambra. Petitioner filed counter to the election petition resisting the said averments. It would appear that recording of evidence in the case started. At that stage first respondent came with Ext.P4, application for amendment of the ## **O.P(C) No.3344 of 2011** ## -: 2 :- election petition. The request was to correct the words “Judicial First Class Magistrate, Koyilandy” as “Judicial First Class Magistrate, Perambra” with respect to the amount allegedly payable by petitioner in M.C. No.23 of 2006. Petitioner resisted that application on the ground that learned Munsiff has no power except in accordance with Section 93(4) of the Kerala Panchayath Raj Act (for short, “the Act”) to allow amendment. That objection did not prevail with the learned Munsiff who passed Ext.P1, order allowing the application which is under challenge in this proceeding. 2. Learned counsel for petitioner contended that whatever be the reason which required the first respondent to seek amendment of the election petition, if learned Munsiff has no power to allow amendment of the nature sought in Ext.P3, application, learned Munsiff was not justified in passing Ext.P1, order. According to the learned counsel, under Sec.93(4) of the Act power is given to the learned Munsiff to amend only with respect to the particulars of corrupt practice alleged in the petition and not in respect of any other matter pleaded in the petition. Reliance is placed on the decision in **Azeez v. Krishnan** (1996 [2] KLT 540). It is also contended by learned ## **O.P(C) No.3344 of 2011** ## -: 3 :- counsel that Sec.90 of the Act deals with parties who are to join in an election petition and, going by Sec.93(1) of the Act the court is bound to dismiss an election petition which does not comply with the provisions of Sec.90 of the Act. If a party, who otherwise ought to be joined in a suit is not joined, it may be that the civil court has power under Order I Rule 10(2) of the Code of Civil Procedure (for short, “the Code') to allow impleadment of necessary/proper party. But that power cannot be imported to an Election Tribunal since if parties referred to in Sec.90 of the Act are not joined, the election petition is liable to be dismissed and the Election Tribunal cannot invoke power under Order I Rule 10 (2) of the Code. Viewed in that line the power of the Election Tribunal for amendment is confined to what is permitted under Sec.93(4) of the Act which pertains to particulars of corrupt practice. In the present case no question of corrupt practice is involved and what is alleged is disqualification of petitioner to contest the election for reasons stated in election petition. Hence it is contended that Ext.P1, order cannot be sustained and is liable to be set aside. 3. Learned counsel for the first respondent contended that in Ext.P2, election petition it is stated that petitioner is in ## **O.P(C) No.3344 of 2011** ## -: 4 :- arrears as per the order in M.C. No.23 of 2006 of the court of learned Judicial First Class Magistrate, Koyilandy pursuant to a certificate which the Village Officer of the local Village had issued (Ext.R1(a) where it is stated that petitioner has defaulted payment of amount as per the order in M.C. No.23 of 2006 of the court of learned Judicial First Class Magistrate, Koyilandy. But later the same Officer who issued Ext.R1(a), certificate in an answer to a query under the Right to Information Act has clarified that M.C. No.23 of 2006 is not of the court of learned Judicial First Class Magistrate, Koyilandy but is of the court of learned Judicial First Class Magistrate Perambra. It is contended by learned counsel that first respondent happened to mention in the election petition that M.C. No.23 of 2006 is of the court of learned Judicial First Class Magistrate, Koyilandy on the strength of Ext.R1(a) certificate and later, on realizing the mistake as per Ext.R1(b), certificate issued by the very same Officer, has preferred Ext.P3, application for amendment. It is contended that power to amend is not beyond the power of the Election Tribunal. Reliance is placed on Sec.94 of the Act which states that subject to the provisions of the Act and the Rules made thereunder an election petition shall be tried by the court as nearly as may be ## **O.P(C) No.3344 of 2011** ## -: 5 :- in accordance with the procedure applicable under the Code. Learned counsel has placed reliance on the Division Bench decision in **Adv. M.Philip Koshy v. Prof. Saji Chacko** (2010 [3] KLT 31) and of the Supreme Court in **S.M. Banerji** ## **v. Sri Krishna (AIR 1962 SC 368** – paragraph 12). 4. It is not in dispute that first respondent stated in Ext.P2, election petition that petitioner is a defaulter in so far as he has not paid the amount payable by him as per the order in M.C. No.23 of 2006 of the court of learned Judicial First Class Magistrate, Koyilandy. It is seen from Ext.P2, election petition that along with the same first respondent also produced Ext.R1(a), certificate issued by the Village Officer which stated that M.C. No.23 of 2006 is of the court of learned Judicial First Class Magistrate, Koyilandy. Exhibit P3, application for amendment was filed on 07.09.2011 based on Ext.R1(b). That certificate was issued by the very same Village Officer stating that M.C. No.23 of 2006 is of the court of learned Judicial First Class Magistrate, Perambra and not of the court of learned Judicial First Class Magistrate Koyilandy. Thus according to first respondent he made the averment in the election petition that M.C. No.23 of 2006 is of the court of learned Judicial First Class Magistrate, Koyilandy ## **O.P(C) No.3344 of 2011** ## -: 6 :- based on Ext.R1(a) which he wanted to correct as that of court of learned Judicial First Class Magistrate, Perambra based on Ext.R1 (b). There could be no doubt that the first respondent was misled in making the allegation in Ext.P2, election petition that M.C. No.23 of 2006 is of the court of learned Judicial First Class Magistrate, Koyilandy in view of Ext.R1(a). 5. Next question is whether the learned Munsiff has power to allow amendment of the election petition apart from Sec.93(4) of the Act. The said provision says that the court may upon such terms as to costs and otherwise as if it deem fit, allow particulars of any corrupt practice alleged in the election petition to be amended or amplified in such manner, as may in its opinion be necessary for ensuring a fair and effective trial of the petition but shall not allow any amendment which will have the effect of introducing particulars of corrupt practice not previously alleged in the election petition. Section 94 as aforesaid states that the Munsiff shall try the election petition as nearly as may be in accordance with the procedure applicable under the Code. 6. In **Azeez v. Krishnan** (1996 [2] KLT 540) the election petitioner averred that the returned candidate was in arrears to the KSFE Ltd., and later an application was made to **O.P(C) No.3344 of 2011** ## -: 7 :- amend the election petition to incorporate additional ground that the returned candidate was a defaulter to the KSEB as well. That was found to be not coming within the purview of Sec.93(4) of the Act and hence refusal of the Munsiff to disallow amendment (to incorporate additional ground) was upheld. Learned Judge observed in paragraph 2 that “from a reading of Sec.93(4) of the Act I am satisfied that as a condition precedent for amending an election petition, the person who approaches the election tribunal should allege the particulars of any corrupt practice so as to enable the Tribunal to allow the particulars of any corrupt practice so alleged in the petition to be amended or amplified”. 7. On the other hand the Division Bench in **Adv. M.Philip Koshy v. Prof. Saji Chacko** (2010 [3] KLT 31) dealt with the procedure which the court trying an election petition under the Act is to follow and stated in paragraph 12: “........The trial of an Election Petition, as nearly as may be, it is stated under S.94 of the Act, has to be conducted in accordance with the procedure applicable under the Code of Civil Procedure for the trial of suits **O.P(C) No.3344 of 2011** ## -: 8 :- subject to the Act and the Rules made thereunder. Authority of the court to refuse examination of any witness or witnesses where it has reason to decline such examination, recording the reasons in writing thereof, and also the applicability of the provisions of the Indian Evidence Act in recording the evidence subject to the provisions of the Act, as spelt out in S.94 of the Act does not in any way postulate that the trial of an Election Petition by an appropriate court is not a trial by a Civil Court following a different procedure otherwise than provided under the C.P.C.. On the contrary, subject to the provisions of the Act and Rules, the Election Petition has to be tried by the appropriate court, which is a Civil Court, as nearly as may be, following the procedure under the C.P.C. as applicable to the trial of suits. A Civil Court notified as an appropriate court trying an Election Petition in accordance with the C.P.C. is subject to all other incidents forming part of the trial under the Code except to the extent where there is a specific exclusion.........”. 8. Thus the view taken by the Division Bench in the aforesaid decision is that so far as the trial of the election petition is concerned there is nothing in the Act to say that it is not a trial ## **O.P(C) No.3344 of 2011** ## -: 9 :- by a Civil Court and follows a different procedure otherwise than provided under the Code. In other words the court referred to in the Act tries the election petition as a Civil Court following the procedure prescribed under the Code subject of course to the limitations prescribed in the Act and the Rules. 9. True, that Section 93(4)of the Act deals with the power of amendment so far as the allegation regarding corrupt practice is concerned and states that court has power to allow amendment of particulars of corrupt practice (as distinguished from material facts relating to corrupt practice). 10. The Supreme Court in **S.M. Banerji v. Sri Krishna Agarwal** (AIR 1960 SC 368 – paragraph 12) while dealing with a petition under the Representation of the People Act and the power of Election Tribunal to allow amendment of pleadings observed: “At this stage we must guard against one possible misapprehension Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations, and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish ## **O.P(C) No.3344 of 2011** ## -: 10 :- their effectiveness and defeat the very purpose for which they are constituted. We must make it clear that within the limits prescribed by the decisions of this Court the discretionary jurisdiction of the Tribunals to amend the pleadings is as extensive as that of a civil Court. The same well-settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by a Tribunal...”. 11. Thus going by the above decisions it is within the jurisdiction of the Tribunals to allow amendment of pleadings of course regulated by the provisions of the Act concerned. 12. Therefore it is not as if except under Sec.93(4) of the Act a court dealing with an election petition is denuded of the power to allow amendment of any nature. That power is implicit in Sec.94 of the Act so far as the said power is not restricted by the provisions of the Act and the Rules. But of course it is not as if with respect to an election petition it is within the power of the court to allow any sort of amendment. In the case on hand it is seen from Ext.R1(a) that it is based on that certificate issued by the Village Officer that in Ext.P2, election petition first respondent ## **O.P(C) No.3344 of 2011** ## -: 11 :- stated that M.C. No.23 of 2006 is of the of the court of learned Judicial First Class Magistrate, Koyilandy, It is also seen from Ext.R1(b) that it is based on the information the very same Village Officer gave that the said statement in Ext.R1(a) is not correct and M.C. No.23 of 2006 was of the court of learned Judicial First Class Magistrate, Perambra that the amendment was sought for. That in my view is only a correction of an inadvertent mistake which occurred in the election petition which itself was beyond the control of first respondent as he was guided or misguided by Ext.R1(a) in making the allegation in the election petition. I am not inclined to think that power to allow such corrections is beyond the power of the court dealing with the election petition. In that view of the matter I am not inclined to think that Ext.P1, order requires interference. Hence the Original Petition has to fail. ## Original Petition is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv