Marykutty George v. Sebastian George, Seena Babu, and Sreeja Saju

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 19TH DAY OF JANUARY 2018 / 29TH POUSHA, 1939** **(AGAINST ORDER IN IA NO.845/2016 IN ELECTION OP NO.1/2015 ON THE FILE OF MUNSIFF'S COURT, ERATTUPETTA)** ## **PETITIONER(S)/1ST RESPONDENT** **MARYKUTTY GEORGE AGED 62 YEARS, W/O. GEORGE, PEMBILAKUNNEL HOUSE, KALATHOOKADAVU P.O., MOONILAVU KARA & VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686 579.** **BY ADV.SRI.V.SETHUNATH** ## **RESPONDENT(S)/PETITIONER & RESPONDENTS NO. 2 & 3:** ## **1. SEBASTIAN GEORGE** **AGED 70 YEARS, S/O. LATE GEORGE, PARACKAL HOUSE, KALATHOOKADAVU P.O., MOONILAVU KARA & VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686 579.** ## **2. SEENA BABU** **W/O. BABU, KURUPPANCHERIL HOUSE, KALATHOOKADAVU P.O., MOONILAVU KARA & VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686 579.** ## **3. SREEJA SAJU,** **W/O. MANI, VADAKKEDATHU HOUSE, KALATHOOKADAVU P.O., MOONILAVU KARA & VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686 579.** **R1 BY ADV. SRI.ABRAHAM GEORGE JACOB R1 BY ADV. SRI.JIBU P THOMAS** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2018, THE COURT ON 19-01-2018 DELIVERED THE FOLLOWING:** ## **OP(C).No. 2058 of 2017 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 COPY OF THE ORDER IN CRL.M.P.NO. 264/2013 ON THE FILE OF THE VIGILANCE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM. EXHIBIT P2 COPY OF THE ORDER OF THIS COURT IN CRL. REV. PET.NO. 1234/2013. EXHIBIT P3 COPY OF THE ELECTION PETITION NO. 1/2015 ON THE FILE OF MUNSIFF'S COURT, ERATTUPPETTA. EXHIBIT P4 COPY OF THE DOCUMENT NO.1 PRODUCED BY THE 1ST RESPONDENT. EXHIBIT P5 COPY OF THE ORDER OF THE MUNSIFF'S COURT, ERATTUPPETTA IN I.A.NO. 845/2016 IN ELECTION O.P.NO. 1 OF 2015. //TRUE COPY// PS TO JUDGE.** jg-22/1 ## ASHOK MENON, J. -----------------------------------OP(C) No.2058 of 2017 ------------------------------------Dated this the 19[th] day of January, 2018 ## J U D G M E N T The petitioner assails the dismissal of IA No.845/2016 in Election OP No.1/2015 on the file of Munsiff’s Court, Erattupetta. The petitioner is the first respondent in the aforesaid Election OP and had challenged the maintainability of the Election OP in the interlocutory application, and insisted on dismissal of the same at the threshold. 2. The said Election OP was filed by one Sebastian challenging the petitioner’s election to Moonnilavu Grama Panchayat, Ward No.12. The petitioner states that the Election OP is not maintainable because the documents required to be produced along with the Election OP are not produced. Documents produced are not properly verified or attested. The voters list produced along with the Election OP also has not been attested. The document obtained under the Right to Information Act also has not been attested properly and the seal of the Public Information Officer is OP(C) 2058/17 -2- also not in place. That apart, it is also submitted that the cause of action has not been mentioned in the Election OP. 3. The learned Munsiff, after considering the application in detail, found that the Election OP need not be dismissed at the threshold, and that the objection raised by the petitioner in the application can be considered at the time of the final disposal of the Election OP. The application was thus dismissed. 4. The petitioner herein is aggrieved by the impugned order of the learned Munsiff. It is urged that the Election OP has been filed by the first respondent herein to wreak vengeance. He had earlier filed a frivolous complaint against the sons of the petitioner before the Vigilance Enquiry Commission and Special Judge, Kottayam. The same was dismissed with exemplary costs as evidenced by Ext.P1. The revision petition filed before this Court too met the same fate, as per Ext.P2. It is stated that the first respondent had suppressed the fact regarding Exts.P1 and P2 in the Election OP. The main contention in the Election OP, which is produced as Ext.P3, is that the petitioner herein had suppressed the OP(C) 2058/17 -3- fact regarding her conviction in ST No.1151/2014 before the Judicial First Class Magistrate's Court, Erattupetta, where she was sentenced to pay a fine of Rs.10/- and thus, it is pointed out, that the petitioner had filed a false affidavit in support of her nomination paper. Ext.P4 is the copy of the representation filed by the petitioner in the Election OP, before the Returning Officer. The petitioner herein states that there was no need to disclose the conviction in ST No.1151/2014 in the nomination paper, since the conviction in the particular case is not an appealable one, under Section 376 of the Code of Criminal Procedure. Hence, it is submitted that Ext.P5 order of the learned Munsiff in IA No.845/2016 in Election OP No.1/2015 is not sustainable and needs to be set aside and it may be declared that Ext.P3 Election Petition on the file of Munsiff’s Court, Erattupetta is not maintainable. 5. First respondent appears through counsel. An interim order was passed by this Court granting stay of further proceedings in the Election OP. Both sides were heard. Records perused. OP(C) 2058/17 -4- 6. Learned counsel for the petitioner relies on the decision in Goreti Xess v. Jyothi Xaxa and another [AIR 2016 Orissa 169] in support of his argument that non-mentioning of the pendency of a criminal case against a candidate in the affidavit attached to nomination paper is not a corrupt practice and that this question can be determined as a preliminary issue in an election petition for declaring the election void for furnishing false affidavit, as it is a pure question of law and it touches the jurisdiction of the Court. 7. Learned counsel for the first respondent would argue that defective verification or affidavit in an election petition is curable and submits that while material facts and basic facts must be pleaded by the plaintiff, it is not necessary to state the whole details extensively. All that is mandatory in an election petition is to give a concise statement of the material facts. He relies on the decision of the Supreme Court in KK Ramachandran Master v. M.V.Sreyamskumar & Others [2010 KHC 4421 (SC)]. In Kuldeep Singh Pathania v. Bikram Singh Jaryal [(2018) 5 SCC 345], it is held that the pleadings has to be read as a whole for determining the OP(C) 2058/17 -5- issues. In the decision in Ashraf Kokkur v. K.V.Abdul Khader Etc. [2014 KHC 4538] also it was held by the Supreme Court that in an election petition only a concise statement of material facts need be mentioned and that the pleading has to be read as a whole to make out the cause of action. In Baby Augustian v. Alex Kozhikkottu [2016(5) KHC 610], it is held by this Court that any defect in verification of pleadings is not a material defect warranting rejection of the election petition at the threshold. Such defect is a curable defect. 8. In the decision in AIR 2016 Orissa 169(supra), the only challenge in the election petition was on the ground of suppression of fact regarding conviction in a criminal case. That is not the fact in this case. The petition produced at Ext.P3 would sufficiently indicate the reasons on the basis of which the election is challenged. It may be a concise statement. The other precedents referred to above, would indicate that it would be sufficient. I do not find any reason to upset the findings of the learned Munsiff in Ext.P5 order. The other matters are to be determined in the Election OP, which shall OP(C) 2058/17 -6- be tried expeditiously and disposed of on merits, in accordance with law. With these observations, this Petition will stand dismissed. No order as to costs. ASHOK MENON JUDGE jg