Krishnakumari C.P. v. Radha Gokuldas and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 CRP.No. 480 of 2008() --------------------OP.69/2005 of PRL.MUNSIFF COURT, PALAKKAD .................... REVN. PETITIONER: PETITIONER IN C.R.P - RESPONDENT IN O.P --------------------------------------------------------- KRISHNAKUMARI C.P., W/O.P.G.DEVADAS, EZHUTHACHAN VEEDU, PUTHUR, PALAKKAD. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS IN C.R.P.:- PETITIONERS & RESPONDENTS 2 TO 4 IN O.P -------------------------------------------------------------------------------- 1. RADHA GOKULDAS, W/O.GOKULDAS, KUNDUKAD HOUSE, KOTTEKKAD P.O. PALAKKAD. 2. M.LAKSHMI, W/O.M.GURU, AVITTOM, RAMANATHAPURAM, PALAKKAD. 3. SUSEELA GOPINATHA MENON, W/O.GOPINATHA MENON, JAYA NIVAS, VELLOLI, PUTHUR, PALAKKAD. 4. RETURNING OFFICER (DISTRICT PLANNING OFFICER), PALAKKAD MUNICIPALITY, PALAKKAD. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- ORDER ON I.A.1380/2008 IN C.R.P.NO.480/2008 20.6.2008 Dismissed Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.Sasidharan Nambiar,J. ======================= C.R.P No.480 of 2008 ======================= Dated this the 20[th] day of June, 2008 **==> picture [86 x 15] intentionally omitted <==** As per order dated 12.6.2008 Munsiff, Palakkad rejected the objection raised by petitioner who is a successful candidate in the election to dimiss the election petition on preliminary grounds. Learned Munsiff as per separate order in I.A.1746/2008 allowed the application for amendment of the election petition whereunder election petition was amended curing the defect pointed out by the petitioner regarding verification. Learned senior counsel relying on the decision of High Court of Patna in **Jageshwar Rai v. State of Bihar &** **Ors (AIR 2007 Patna 132)** argued that as provided under sub section (4) of Section 169 court can allow amendment of the pleading only to the extent provided therein, as provisions of Order VI Rule 17 of Code of Civil Procedure as such was not made applicable to the trial of Municipalities Act CRP 480/2008 2 and therefore learned Munsiff should not have allowed respondent to amend the election petition and thereby avoid the order which should have been passed under section 169(1) of Kerala Municipalities Act. 2. Learned Munsiff relying on the decision of the Apex Court in **Umesh Challiyil v. Rajendran 2008** **(2)KLT 47** found that the defect in the verification pointed out by the petitioner as a ground to dismiss the election petition at the threshold should be permitted to be amended. Relying on the said decision and based on that the amendment so allowed it was found that election petition cannot be dismissed at the threshold. Learned senior counsel pointed out that verification of the election petition is not as provided under section 167(1)(c) of the Municipalities Act as verification of the petition does not show which all facts stated in the election petition are true to his knowledge and which all facts are true to CRP 480/2008 3 his belief. Learned Munsiff relied on the decision in Umesh Challiyil's case (supra) to hold that the defect does not go to the root of the dispute and the verification could be permitted to be corrected. Learned senior counsel argued that learned Munsiff has not correctly appreciated the decision in Umesh Challiyil's case and passing observation may not be taken as the ratio of the said decision. 3. On going through the decision of the Apex Court, I cannot agree with the submission of the learned counsel. Paragraph 14 of the decision reads:- “However, in fairness whenever such defects are pointed, then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court CRP 480/2008 4 |should not take such a| |---| |technical<br>attitude<br>and| |dismiss<br>the<br>election| |petition at the threshold.| |On the contrary after| |finding the defects, the| |Court should give proper| |opportunity to cure the| |defects and in case of| |failure to remove/cure the| |defects, it could result| |into dismissal on account| |of O.6 R.17 or O.7 R.11| |C.P.C. Though technically| |it cannot be dismissed| |under S.86 of the Act of| |1951, but it can be| |rejected when the election| |petition is not properly| |constituted as required| |under the provisions of the| CRP 480/2008 5 C.P.C but in the present case we regret to record that the defects which have been pointed out in this election petition was purely cosmetic and it does not go to the root of the matter and secondly, even if the Court found them of serious nature then at least the court should have given an opportunity to the petitioner to rectify such defects.” It cannot be termed as only an observation. It is definitely a guideline to be followed by the courts dealing with election petitions. The Apex Court held that in order to maintain the sanctity of the election, court shall not take technical attitude and dismiss the election petition at the threshold and instead should give proper CRP 480/2008 6 opportunity to cure the defect and only in case the defects are not cured shall proceed to dismiss the petition. That exactly is what was followed by the learned Munsiff under the impugned order. The verification in the election petition shows that he did not specify which all paragraphs are made to his personal knowledge and which paragraphs relate to his belief. That defect is sought to be corrected by the amendment sought for. 4. True, sub section 4 of Section 169 of the Municipalities Act provides amendment of the particulars of corrupt practice only. But under sub section 1 of Section 170, the election petition is to be tried as merely as may be in accordance with the procedure applicable under the Code of Civil Procedure. Hence the court is competent to allow the amendment if it is just and necessary in the interest of justice to settle the dispute involved and to preserve the sanctity of election. CRP 480/2008 7 In such circumstance, I do not find any illegality or irregularity warranting interference in exercise of the revisional powers of this court under section 115 of the Code of Civil Procedure. Civil Revision Petition is dismissed. M.Sasidharan Nambiar Judge tpl/- M.SASIDHARAN NAMBIAR, J. --------------------CRL.R.P.NO. /08 --------------------ORDER MARCH,2008