Ramla v. Jaleelath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 29TH DAY OF JULY 2013/7TH SRAVANA, 1935** ## **OP(C).No. 2248 of 2013 (O)** ## **--------------------------OP(ELE)NO. 8/2010 OF MUNSIFF COURT, KAYAMKULAM** **------------------------------** ## **PETITIONER :** **--------------------------** **RAMLA, W/O.NAVAZ SHAH HUSSAIN, AREENATH HOUSE, MALAMEL BHAGAM, KAREELAKULANGARA P.O,KAYAMKULAM, ALAPPUZHA DISTRICT .** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** - **----------------------------** **1. JALEELATH, W/O.SAKKIR HUSSAIN, NAMBALASSERIL, ERUVA PADINJARE MURI, PATHIYOOR VILLAGE, KAYAMKULAM P.O., ALAPPUZHA DISTRICT- 690 502.** **2. BUSHRA, D/O.THAHA KOYA,** - **EDAYILE VEEDU, MALAMI BHAGOM MURI, KEERIKKADU VILLAGE, KAREELAKULANGARA P.O., KAYAMKULAM, ALAPPUZHA DIST. 690 572.** **3. NAFEESATH, W/O.ABDUL KHADER KUNJU, PULIMOOTTIL HOUSE, ERUVAPADINJARU MURI, KAYAMKULAM P.O., ALAPPUZHA DISTRICT -690 502** **4. RAHUMATH, W/O.THAJUDDIN, THARAMEL, ERUVA PADINJARU MURI, PATHIYOOR VILLAGE, KAYAMKULAM -690 502.** ## **R1 BY ADV. SRI.ESM.KABEER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP(C).No. 2248 of 2013 (O)** ## **----------------------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-------------------------------------**|| |**EXT.P1 -**|**TRUE COPY OF THE O.P(ELEC.)NO.8 OF 2010**| |**EXT.P2 -**|**TRUE COPY OF THE OBJECTION DATED 17-1-2011 FILED BY THE 1ST**| ||**COUNTER PETITIONER**| |**EXT.P3 -**|**TRUE COPY OF THE WRITTEN STATEMENT DATED 8-2-2011**| |**EXT.P4 -**|**TRUE COPY OF THE DRAFT OF THE AFFIDAVIT IN SUPPORT OF**| ||**I.A.NO.701/2013 IN O.P(ELE.)NO.8 OF 2010 TOGETHER WITH TYPED**| ||**COPY OF THE SAME.**| |**EXT.P5 -**|**TRUE COPY OF THE OBJECTION DATED 16-3-2013**| |**EXT.P6 -**|**TRUE COPY OF THE ORDER DATED 10-4-2013 IN I.A.NO.701/2013**| ## **RESPONDENT(S)' EXHIBITS: NIL** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------O.P.(C) No.2248 of 2013 -------------------------Dated this the 29[th] day of July, 2013** ## **J U D G M E N T** The petitioner and the respondents contested in the elections held on 25.10.2010 from Ward No.2 of Kayamkulam Municipality. Out of the 930 votes polled, the petitioner secured 397 votes, the first respondent secured 401 votes, the second respondent secured 92 votes, the third respondent secured 37 votes and the fourth respondent secured 3 votes. The result was declared on 27.10.2010 and the first respondent was declared elected by a margin of 4 votes. The petitioner thereupon filed O.P.(Election) No.8 of 2010 on the file of the Court of the Munsiff of Kayamkulam, seeking a declaration that the election of the first respondent herein as Councillor from Ward No.2 of Kayamkulam Municipality is null and void and to declare her duly elected. The main contention raised in the election petition was that the 11 void votes cast in favour of the first counter petitioner were counted as votes cast in her favour. Relying on section 75 of the Kerala Municipality Act, 1994 she contended that 11 persons named in paragraph No.9 of the election petition who are registered voters in the electoral roll of Ward No.2 of Kayamkulam Municipality and had voted in favour of the first respondent were registered as 2 O.P.(C) No.2248/2013 voters in other wards in Kayamkulam Municipality/other Grama Panchayats and therefore, the election of the first respondent is liable to be declared void on the ground that there was improper reception of void votes. 2. After the trial of the election petition was over and the election petition stood posted for hearing, the petitioner filed I.A.No.701 of 2013 in O.P.(Ele)No.8 of 2010 on 7.3.2013 for leave to amend the election petition by incorporating the following as Paragraph 10A in the election petition. _“The petitioner at the time of filing the original petition, has alleged 11 double voting 10 out of the 11 voters were found to be casted in two constituencies. But PWs 11 to 13 deposed before the Honourable Court that they have not voted in the election held to the Municipality or Panchayat on 25.10.2010. But it has come out in evidence that the votes refers in their respective constituencies belongs to them and their votes are casted and counted in the election. Hence voting polled by personation (sic., impersonation) are also void votes. Considering the purity of election those three votes are also declared void and excluded from counting. Their names and address is incorporated in the original petition as page No.4 onwards as Serial No.1, 2 and 5.”_ 3. The respondents opposed the application by filing written objections. The first respondent contended that the amendment sought introduces a new ground which did not find a place in the petition originally filed, that the application is filed beyond the period of limitation, that the case pleaded in the election petition is one of double voting, that by the proposed amendment the case put forward O.P.(C) No.2248/2013 3 is one of impersonation, that by the amendment the petitioner proposes to introduce a material fact which is not already pleaded and therefore, the application is liable to be rejected. The court below considered the rival contentions and dismissed I.A.No.701 of 2013 by Ext.P6 order dated 10.4.2013. The said order is under challenge in this original petition filed under 227 of the Constitution of India. 4. I heard Sri.Kaleeswaram Raj, learned counsel appearing for the petitioner and Sri.E.S.M.Kabeer, learned counsel appearing for the first respondent. The learned counsel appearing for the petitioner contended relying on the decision of a learned single judge of this Court in **Abdulla v. Jose** (2012 (3) KLT 22) that by the proposed amendment the petitioner does not seek to introduce a new ground to challenge the election of the first respondent, that the amendment does not give rise to a new cause of action after the period of limitation, that by the proposed amendment the petitioner only proposes to incorporate a material particular in the case already pleaded by her that the votes of 3 out of the 11 voters named in paragraph 9 of election petition as voters who had voted twice, were cast by impersonation and therefore, the court below erred in holding that by the proposed amendment a new case is sought to be introduced. The learned counsel appearing for the petitioner also O.P.(C) No.2248/2013 4 contended that the court below erred in holding that impersonation is not a ground to set aside the election and that improper reception of votes as a result of impersonation is also a ground on which the election of a returned candidate can be challenged. 5. Per contra, Sri.E.S.M.Kaber, learned counsel appearing for the first respondent contended that the only ground pleaded in the election petition was that the election of the first respondent is liable to be declared void on the ground of double voting by 11 persons named in paragraph 9 of the election petition and that the ground which is now sought to be introduced is voting by impersonation, a ground which was not even remotely pleaded in the election petition. The learned counsel appearing for the first respondent contended that by the proposed amendment the petitioner seeks to introduce a new ground to challenge the election of the returned candidate and that too long after the period of limitation prescribed for filing an election petition has expired. The learned counsel appearing for the first respondent also contended that by no stretch of imagination can it be said that the fact which is sought to be introduced in the election petition by paragraph 10A is in the nature of evidence which is not required to be pleaded in the election application. 6. I have considered the submissions made at the Bar by the O.P.(C) No.2248/2013 5 learned counsel on either side. I have also gone through the pleadings and the materials on record. The petitioner has in the election petition averred in categorical terms that contrary to and in gross violation of section 75 of the Kerala Municipality Act, 1994, 11 persons whose names appear in more than one electoral roll including the electoral roll of Ward No.2 of Kayamkulam Municipality voted in both the constituencies. She had also averred that the said 11 voters had cast their votes in favour of the first respondent. She contended that the said 11 votes cast in favour of the first respondent should be rejected as they were improperly received and that it has materially affected the result of the election. From a reading of the election petition, it is crystal clear that the petitioner challenges the election of the first respondent on the short ground that there was improper reception of 11 votes cast by 11 persons who had voted besides in Ward No.2 of Kayamkulam Municipality in other wards of Kayamkulam Municipality/other Grama Panchyats. The records disclose that the trial of the election petition commenced on 17.12.2011. After the evidence on the side of the petitioner was closed, the case stood posted for evidence on the side of the counter petitioners on 5.7.2012. Thereafter, the evidence on the side of the counter petitioners was closed and the election petition stood posted for hearing on 6 O.P.(C) No.2248/2013 30.10.2012. The hearing of the election petition was however being adjourned. The learned counsel appearing for the petitioner was heard on 7.1.2013. Thereafter the learned counsel appearing for the respondents were heard and the hearing of the respondents counsel was completed on 28.2.2013. The case thereafter stood posted to 5.3.2013 for hearing the petitioner's counsel in reply. On 7.3.2013, the petitioner filed I.A.No.701 of 2013 seeking an amendment of the election petition. The said petition was heard on 21.3.2013 and it was dismissed by order passed on 10.4.2013. The instant original petition was filed on 27.6.2013 challenging the order passed by the trial court dismissing the application for amendment. 7. From a reading of the amendment application it is evident that it is one filed relying on the testimony tendered by the witnesses examined as PWs 11 to 13. PWs 11 to 13 were examined on 9.3.2012 16.3.2012 and 31.3.2012 respectively. I.A.No.701 of 2013 was filed only on 7.3.2013, after the learned counsel on both sides were heard and the case stood posted to 5.3.2013 for hearing the learned counsel appearing for the petitioner in reply. From the facts stated above, it is crystal clear that the instant application for amendment which was dismissed by the impugned order is highly belated and was therefore liable to be rejected on that short ground. That apart, from a reading O.P.(C) No.2248/2013 7 of the application for amendment, it is evident that what is sought to be introduced by way of an amendment to the election petition is a new ground to challenge the election of the returned candidate namely impersonation and voting by someone other than PWs 11 to 13. Though the trial court erred in holding that impersonation is not a ground to set aside the election of a returned candidate, as the case now sought to be put forward by the proposed amendment is a totally new case namely, impersonation by three among the 11 persons named in paragraph 9 of the election petition, who were examined as PWs 11 to 13, I am of the opinion that the principles laid down by this Court in **Abdulla v. Jose** (Supra) can have no application. By no stretch of imagination can it be said that the fact which is now sought to be introduced is not a material fact but only a pleading to amplify, refine and embellish a material fact already pleaded in the election petition. If the proposed amendment is allowed, it will give rise to a new cause of action which is sought to be introduced after the period of limitation prescribed for filing the election petition has expired. The fact now sought to be introduced by way of amendment is a material fact which was not even remotely indicated or suggested in the election petition. A plea as regards impersonation is raised for the first time long after the trial was over and the election petition was O.P.(C) No.2248/2013 8 heard and it stood posted for hearing the learned counsel for the petitioner in reply. I am therefore of the considered opinion that the court below was perfectly right in dismissing the application for amendment. For the reasons stated above, I hold that there is no merit in the original petition. It fails and is accordingly dismissed. No costs. **P.N.RAVINDRAN, (JUDGE)** vps O.P.(C) No.2248/2013 9 O.P.(C) No.2248/2013 10