Krishnakumari Rajasekharan v. Santhi K.S. @ Santhi Muraleedharan

OP(C) NO. 1034 OF 2022 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 OP(C) NO. 1034 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OPELE 1/2021 OF MUNSIFF COURT,** **CHANGANACHERRY** ## **PETITIONER/S:** KRISHNAKUMARI RAJASEKHARAN AGED 63 YEARS W/O C. RAJASEKHARAN, RENJINI HOUSE, PERUNNA PO., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. , PIN - 686101 BY ADVS. K.I.MAYANKUTTY MATHER T.K.SREEKALA VINEETH KOMALACHANDRAN S.PARVATHI KALLIYANI KRISHNA B. UTHARA ASOKAN ## **RESPONDENT/S:** SANTHI K.S. @ SANTHI MURALEEDHARAN W/O. MURALEEDHARAN C.R., SANTHI BHAVAN, PERUNNA P.O. CHANGANACHERRY TALUK, KOTTAYAM , PIN - 686101 BY ADV Dinesh Mathew J Murikan THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1034 OF 2022 2 ## **JUDGMENT** Aggrieved by Ext.P5 order passed by the Court of the Munsiff, Changanassery in I.A.No.4/2021 in Election OP No.1/2021, the 1[st] respondent before the court below has filed the original petition. The respondent is the petitioner in the election petition. 2. The facts leading to Ext.P5 order, in a narrow compass, are: the 1[st] respondent has filed the above original petition, to set aside the election of the petitioner as a Councilor to the Municipal Council, Changanacherry, alleging corrupt practice. The petitioner is a returned candidate from Ward No.20 of the said Municipality. She was duly declared elected on 16.12.2020. The petitioner has filed a detailed objection to the election petition denying the allegations averred in the election petition. The petitioner also filed I.A.No.4/2021, raising a preliminary objection as to the maintainability of the original petition. It is, inter-alia, OP(C) NO. 1034 OF 2022 3 contended that the document - schedule annexed to the schedule petition have not been verified, the pleading with respect to double voting is presented in the petition as a corrupt practice and no affidavit in support of the allegation is filed, a supporting affidavit as required under the Code of Civil Procedure is not attached. The application was opposed by the respondent through Ext.P4 written objection. The court below, by the impugned Ext.P5 order, rejected Ext.P3 application, on the finding that the objections raised in Ext.P3 application are matters of evidence. Ext.P3 is ex-facie illegal and unsustainable in law. Hence, the original petition. 3. Heard; Sri.Ashokan V.V., the learned Senior Counsel appearing for the petitioner and Sri.Dinesh Mathew J. Murikken, the learned counsel appearing for the respondent. 4. Sri.Ashokan V.V. argued that Ext.P5 order is OP(C) NO. 1034 OF 2022 4 erroneous and palpably wrong, as it is passed in violation of the law laid down by the Honourable Supreme Court in **Roja R.K. vs. U.S.Rayudu and another** [2016 (14) SCC 275] on the point. When the petitioner had raised specific contentions with regard to the maintainability of the original petition, the court below was obliged to consider the same and give reasons for rejecting the same. Instead, the court below has in a very casual and slipshod manner has held that the objections are matters of evidence. Therefore, the impugned order is liable to be set aside. 5. Sri.Dinesh Mathew J. Muricken supported the impugned order by submitting that verification of the pleadings does not go to the root of the matter as held by the Honourable Supreme Court in **H.D.Revanna vs. G.Puttaswamy Gowda and others** [(1999) 2 SCC 217]. He contended that the reasons given by the court below are justifiable and may not be interfered by this Court OP(C) NO. 1034 OF 2022 5 under Article 227 of the Constitution of India. 6. The point is whether there is any illegality in Ext.P5 order. 7. The respondent has challenged the election of the petitioner on the ground of corrupt practice. The petitioner has resisted the election petition by filing Ext.P2 written objection. She has also filed Ext.P3 application questioning the maintainability of the election petition on the following grounds: - (i) the document-schedule (list annexed) of the Election OP was not signed and verified by the election petitioner as required under S.167(2) of the Kerala Municipalities Act (in the same manner as the Election OP); - (ii) the pleading of the election petitioner with respect to double-voting itself is presented in the petition as a corrupt practice and no affidavit in support of the said allegation, as requred under Proviso to Clause (c) of Section 167 (1), is presented; - (iii) supporting affidavit as required under the CPC is not filed by the election petitioner in support of her pleadings (and the affidavit filed by the petitioner is OP(C) NO. 1034 OF 2022 6 not in 'support of her pleadings') - (iv) sufficient particulars to show double-voting is not pleaded and - (v) the election petition was not accompanied by the copies thereof as attested by the petitioner under her own signature to be a true copy of the petition, as required under section 165(2), as is evident from the copy furnished to the petitioner (and produced before the trial court). ## 8. The court below after considering Ext.P3 application and Ext.P4 written objection has, by the impugned Ext.P5 order, held as follows: 9. On considering the rival contention of the parties, I find that this is a matter to be adjudicated after taking evidence. Hence, I find that, the allegations in the petition can be considered at the time of trial in the election petition. 9. A reading of the above extracted conclusion of the court below shows that the court below has not adverted to any of the points raised in Ext.P3 application. Whether the lack of verification of pleadings, the non-annexing of the affidavit, the lack of pleadings with respect to double OP(C) NO. 1034 OF 2022 7 voting etc., are matters that a Court is bound to answer before commencement of trial was laid down by the Honourable Supreme Court in **Roja R.K.** (supra). 10. In the case at hand, the court below has apparently not considered any of the objections on its merits, but has casually held that they are matters of evidence, which is untenable and wrong. Therefore, I am of the definite view that Ext.P5 order warrants to be interfered with by this Court in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India. In the result, the original petition is allowed as follows: - (i) Ext.P5 order is set aside. - (ii) The court below is directed to reconsider Ext.P3 application, after adverting to Ext.P4 written objection filed by the respondent, and decide the OP(C) NO. 1034 OF 2022 8 application in accordance with law, after affording both sides an opportunity to be heard and the law laid down by the Honourable Supreme Court on the point. - (iii) As the election petition is of the year 2021, the court below shall make every endeavour to dispose of Ext.P3 application, as expeditiously as possible, at any rate on or before 23.12.2022. Sd/- ## **C.S.DIAS, JUDGE** rkc/01.11.22 OP(C) NO. 1034 OF 2022 9 ## **APPENDIX OF OP(C) 1034/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ELECTION PETITION FILED BY THE RESPONDENT UNDER SECTION 163,176,178(1) (D) (III) OF KERALA MUNICIPALITY ACT, 1994 DATED 14.1.2021 Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN ELECTION O.P. NO. 1/2021 DATED 9.4.2021 Exhibit P3 TRUE COPY OF THE PETITION I.A 4/2021 FILED BY THE PETITIONER DATED 12.8.2021 Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO I A 4/2021 FILED BY THE PETITIONER DATED 23.11.2021 Exhibit P5 TRUE COPY OF THE ORDER PASSED BY THE COURT BELOW IN I.A. NO. 4/2021 DATED 15.01.2022 RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE AFFIDAVIT FILED ALONGWITH THE ELECTION O.P.NO.1/2021 BY THE PETITIONER HEREIN /RESPONDENT IN THE O.P.(C) DATED 14.01.2021