SEBHA SABUKUTTY PUTHUCHIRAYIL v. MARIYAMMA SABU

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 WP(C).No. 3713 of 2008(P) ------------------------CMA.24/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA OPELE.1/2005 of MUNSIFF COURT, RANNI (IA.1868/2006) .................... PETITIONER: ------------ SEBHA SABUKUTTY PUTHUCHIRAYIL HOUSE, MANDIRAM P.O. RANNI VILLAGE, PATHANAMTHITTA. BY ADV. SRI.V.BHASKARAN PILLAI SMT.S.LEELA SRI.B.VINOD SRI.K.RADHAKRISHNAN (P) RESPONDENT: ------------- MARIYAMMA SABU, KUNNIRICKAL HOUSE THOTTAMON MURI, RANNI VILLAGE, PATHANAMTHITTA. BY ADV. SRI.S.MUHAMMED HANEEFF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 3713/08 ## APPENDIX PETITIONER'S EXHIBITS: - EXT.P1. COPY OF THE ORDER DT. 6.5.06 IN IA 1869/06 OF THE MUNSIFF'S COURT, RANNI - EXT.P2. COPY OF THE JUDGMENT DT. 26.11.07 IN CMA 24/07 OF THE ADDITIONAL DISTRICT COURT, PATHANAMTHITTA - EXT.P3. COPY OF THE ELECTION PETITION 1/05 OF MUNSIFF'S COURT RANNI DT. 22.10.05 EXT.P4. COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 1869/06 DT. 15.12.06 EXT.P5. COPY OF THE JUDGMENT IN WPC NO 6182 DT. 4.4.06 /TRUE COPY/ PA TO JUDGE. ## **M.N.KRISHNAN, J.** ## **-------------------------W.P.(C). NO. 3713 OF 2008** **--------------------Dated this the 27[th ] day of March, 2008** ## **JUDGMENT** This writ petition is preferred against the order in CMA 24/07 of the Addl. District Judge, Pathanamthitta, whereby he has confirmed the order of the Munsiff, Ranny in IA 1869/06 in OP (Ele) 1/2005. Preliminary objections were raised regarding the maintainability of the election petition. It was contended that as there is statutory non-compliance under Sec. 89(2) of the Kerala Panchayat Raj Act (hereinafter referred to as “the Act”), the election petition is liable to be dismissed. 2. The defects pointed out are that (i) there has been no proper verification of the pleadings (ii) the copy served on the counter petition does not contain the copy of the affidavit, which is to be filed under Sec.91(1) of the proviso and also the annexure contemplated under Sec.91(2) of the Act. 3. So far the defect in verification is concerned, now it is settled position of law that it is only a curable defect and therefore sub sec. 1 of Sec.93 may not have strict application. The other WPC NO 3713/08 2 question is with regard to the non-compliance of the copy of affidavit and annexure along with the election petition. Sec. 89(2) reads that “every election petition shall be accompanied by as many copies thereof as they are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.” Under Sec. 91(1) proviso “where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.” Sec.91(2) reads that “any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.” 4. Admittedly, the copy of the affidavit alleging corrupt practice and the annexure to the petition has not been served on the petitioner as envisaged under Sec.89(2) of the Act. Learned counsel for the petitioner first contends before me that the affidavit to be filed and annexure to be attached does not form part of the election petition as such and therefore non-service of copies may not attract Sec.89(2). It is also contended that the mere non-supply of an affidavit or annexure comes only under Sec.90(1) of the Act and WPC NO 3713/08 3 therefore this will not attract dismissal of the petition under Sec.89 of the Act. In support of the contentions, learned counsel had relied upon the decision of the Apex court in **Rupadhar Pujari v. Gangadhar Bhatra** [2004 (7) SCC 654] and in **Oriental Insurance Co. v. Hansrajbhai** [2001 (2) K.L.J. (NOC) 46]. Learned counsel had referred to para 8 of the decision reported in **Rupadhar Pujari v. Gangadhar Bhatra** [2004 (7) SCC 654] and contends that the procedural laws must be liberally construed to really serve as handmaid of justice, make them workable and advance the ends of justice. So he would contend that even if there is such an omission, which shall not be a ground for dismissing the election petition. In the decision reported in **Oriental Insurance Co. v. Hansrajbhai [2001 (2) K.L.J. (NOC) 46** ] the Apex court held that defect in verification and affidavit is a curable defect. He relies on this decision for the purpose that even when the affidavit filed along with the election petition is found to be defective, it is only curable defect and therefore the non-service of a copy of the affidavit also is to be termed as a curable defect. 5. Now, let me consider these contentions in the light of the decisions referred to and the submission made by the learned WPC NO 3713/08 4 counsel. Sec.91 captions as contents of a petition and starts with what should contain in election notes. So what is there to be in an election petition is what is contemplated in Sec.91 of the Act. The said section meticulously prescribes that in cases where corrupt practice is alleged it is to be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Similarly it also mandates that annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. The affidavit to be filed is in form No.25 and it specifically deals with two situations where the statements made in the paragraphs are true to the knowledge of the person filing the petition and the other is that the matters which are annexed are true to the information. When verification is made or is filed, the party against whom the election petition is filed is entitled to know about the factual situation regarding the corrupt practice, which are in the personal knowledge of the election petitioner as well as through the knowledge he had gained through different sources about which verification is done, in the form of an affidavit. The form also has got sanctity for the reason that it has to be attested by a Magistrate or Notary or Commissioner of oaths. The court in various WPC NO 3713/08 5 decisions had held regarding the importance in the meticulousness in a case where there is allegations of corrupt practice. Therefore the contention that the affidavit to accompany the election petition regarding the corrupt practice will not form part of the election petition cannot be accepted for a moment. Similarly the annexures is the documents or the materials based on which the case is filed. It is also an important material to the other side to know how to defend the case. So it has to be held that by virtue of the proviso to Sec.91 (1) and Sec.91(2) it is imperative and it has to be stated that the affidavit accompanying the contents with respect to the corrupt practices and the reliance on annexures are important and forms part and parcel of the election petition. When an election petition is filed, leveling allegations of corrupt practices, a copy which is served on the other side shall contain the affidavit as well, as also the annexure so as to put that party in knowledge of the same. When it is not done, it is a substantial non-compliance of the mandate of Sec.89(2) of the Act. So the contention of the learned counsel for the writ petitioner that it is only an ingredient in Sec.91 which cannot be attached to Sec.89, cannot be accepted. Learned District Judge has considered other points as well. But this being the main point, I WPC NO 3713/08 6 hold that the election petition filed and copy served without the copy of the affidavit alleging corrupt practices and annexure comes within the parameters of non-compliance of Sec.89(2) of the Act which will attract Sec.93 of the Act, which permits the election court to dismiss the matter under those provisions. Therefore the order under challenge is confirmed. The writ petition lacks merit and it is accordingly dismissed. **M.N.KRISHNAN, JUDGE** vps WPC NO 3713/08 7 WPC NO 3713/08 8