Shyni Santosh KizhakkeKara v. Cyriac George @ Benni Kachiramattom and Joseph Zakharias @ Ousephy and Purushothaman Namboothiri K.S and Sunil (Addl.R4 Impleaded)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939 ## OP(C).No. 2501 of 2017 OP 2/2015 of MUNSIFF COURT, PALA ## PETITIONER SHYNI SANTHOSH KIZHAKKEKARA, AGED 36 YEARS, W/O. SANTHOSH RAMAPURAM BAZAR P.O, PIN - 686 576, KOTTAYAM DISTRICT. BY ADV.SRI.GEORGEKUTTY MATHEW ## RESPONDENT(S): 1. CYRIAC GEORGE @ BENNI KACHIRAMATTOM, AGED 45 YEARS, S/O. GEORGE, KACHIRAMATTOM HOUSE, VELLILAPPILLY, RAMAPURAM BAZAR P.O, PIN - 686 576, KOTTAYAM DISTRICT. 2. JOSEPH ZAKHARIAS @ OUSEPHY, AGED 67 YEARS, S/O. ZACHARIAS, MUNDACKAL THEKKANTTU HOUSE, MARANGADU, RAMAPURAM BAZAR P.O, PIN - 686 576, KOTTAYAM DISTRICT. 3. PURUSHOTHAMAN NAMBOOTHIRI K.S, AGED 63 YEARS, S/O. SREDHARAN NAMBOOTHIRI, KURUVANANICKAL ILLAM, EZHACHERY P.O, PIN - 686 651. ## ADDL.R4 IMPLEADED: SUNIL, AGED 35 YEARS, S/O KESAVAN, KIZHAKKARA HOUSE, RAMAPURAM BAZAR P.O., PIN 686 576, KOTTAYAM DISTRICT (IMPLEADED AS PER ORDER DT.3.1.2018 IN I.A.No.1795/2017) R1 BY ADV. SRI.ROY CHACKO R1 BY ADV. SRI.K.C.VINCENT THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2017,THE COURT ON 03-01-2018 DELIVERED THE FOLLOWING: OP(C).No. 2501 of 2017 (O) ## APPENDIX ## **PETITIONER'S EXHIBITS:** EXHIBIT P1 TRUE COPY OF THE ELECTION OP No. 2/15 DATED 4.12.15 IN THE FILE OF MUNSIFF'S COURT PALA. EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 3/2/16 FILED BY THE PETITIONER IN ELECTION OP No.2/15 IN THE FILE OF MUNSIFF'S COURT PALA. EXHIBIT P3 TRUE COPY OF ORDER DATED 6.7.17 PASSED BY THE MUNSIFF'S COURT, PALA IN ELECTION OP No.2/15. TRUE COPY P.S. TO JUDGE dsn ## **ANIL K. NARENDRAN, J** **----------------------------------------O.P.(C)No.2501 of 2017 -----------------------------------------** Dated this the 3[rd] day of January, 2018 ## **JUDGMENT** This Original Petition filed under Article 227 of the Constitution of India arises out of Ext.P3 order dated 6.7.2017 of the Munsiff's Court, Pala in Election O.P.No.2 of 2015. The said election petition is one filed by the first respondent herein under Section 87, read with Sections 88 and 89 of the Kerala Panchayat Raj Act, 1994 (for brevity, 'the Act') to declare the election of the petitioner herein from Ward No.VII of Ramapuram Grama Panchayat as void and to declare that the first respondent herein has been duly elected from that Ward. In that election petition the question of maintainability has been raised as a preliminary issue. After considering the rival contentions, the court below vide Ext.P3 order dated 6.7.2017 held that the election petition is maintainable and both sides were directed to take pre-trial steps, if any, within two weeks from the date of order. Challenging the said order, the petitioner herein is before this Court in this Original Petition. 2. On 16.8.2017, when this Original Petition came up for O.P.(C)No.2501/2017 -2- admission, this Court admitted the matter on file and issued notice to the respondents by speed post. This Court has also granted an interim order of stay of all further proceedings in Election O.P.No.2 of 2015 on the file of the Munsiff's Court, Pala for a period of one month. The said interim order was extended from time to time. During the pendency of this Original Petition, the petitioner filed I.A.No.1795 of 2017 seeking an order to implead the fourth respondent in Election O.P.No.2 of 2015, who was omitted to be impleaded as a party to this Original Petition. On 13.10.2017, this Court issued urgent notice by special messenger to the additional fourth respondent sought to be impleaded returnable by 17.10.2017. Service of notice is complete on the additional fourth respondent. 3. Heard the learned counsel for the petitioner and also the learned counsel for the first respondent. 4. The petitioners and the respondents were candidates in the election conducted on 5.11.2015 in Ward No.VII of Ramapuram Grama Panchayat. The result of the election was declared on 7.11.2015 by the Returning Officer in Form No.25, O.P.(C)No.2501/2017 -3- whereby the petitioner secured 482 votes and the first respondent secured 482 votes. Respondents 2 to 4, the other candidates secured 153, 5 and 342 votes respectively. Accordingly, the petitioner was declared as duly elected from Ward No.VII in Ramapuram Grama Panchayat. 5. After the election, the first respondent filed Election O.P.No.2 of 2015 before the court below contending that the result of the election has been materially affected due to reception of void votes as well as improper rejection and refusal of valid votes. Further, the result of the election has been materially affected on account of non-compliance of the provisions under the Kerala Panchayat Raj Act and the Rules made thereunder. In Ward No.VII there were two polling stations, namely, G.V. School West and East. After the polling, the officers in those polling stations prepared accounts of votes polled in Form No.24A. As per Form No.24A, the total number of votes cast in G.V. School West is 752 and that in G.V. School East is 704. On 7.11.2015, when the voting machine in Polling Station No.1 was opened for counting, the number of votes recorded in O.P.(C)No.2501/2017 -4- favour of the second respondent herein was shown as 60. However, when entry was made in Form No.25 it was shown as 66, which was made to cover up shortage on account of the wrong entry of 66 votes in Form No.24A. When the voting machine in Polling Station No.2 was opened for counting, the total number of votes recorded was only 703. However, the entry in Form No.24A was 704. One voter by name Rajendran (Sl.No.87, Part-2 in Ward VII G.V. School constituency and Sl.No.229, Part-1 in Ward No.XII Kondadu constituency) casted vote in both the constituencies. Hence, the election of the returned candidate has to be declared void under clause (d) of sub-section (1) of Section 102 of the Act. Further, out of the total 11 postal votes counted, 3 ballots were defective as Form No.18 cover containing ballot papers were not accompanied with declaration in Form No.16 signed by the respective voters. As such, there is violation of clause (c) of sub-rule (1) of Rule 50 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995. Those three votes were casted in favour of the returned candidate. Improper acceptance of those invalid votes has O.P.(C)No.2501/2017 -5- materially affected the result of the election. Hence, in Election O.P.No.2 of 2015, the first respondent sought for a declaration that he has been duly elected from Ward No.VII of Ramapuram Grama Panchayat and that, the election conducted in that Ward is void due to faulty voting machine and as such, recounting of votes is necessary. 6. The petitioner, who is the returned candidate, has filed objection to Election O.P.No.2 of 2015 contending that the election petition is not maintainable, as the first respondent has approached the court on the basis of certain fabricated documents. It was also contended that the election petition is not properly attested. According to the petitioner, as per Form No.24A, the total number of votes polled in the first Polling Station is 752. In the second booth, the total number of votes polled is only 703. Though 704 voters appeared for voting, one voter who casted his vote in the Block Panchayat and the District Panchayat did not vote in the Grama Panchayat. Hence the difference occurred in Form No.24A. When the voting machine in first Polling Station was opened for counting, it showed 66 votes O.P.(C)No.2501/2017 -6- in favour of the second respondent herein, as shown in Form No.24A and Form No.25. Further, Form No.24A produced before the court is not an authenticated one. It is a fabricated document, which contains no signature of the Presiding Officer. It contains no seal of the Presiding Officer. Though the name of one Rajendran is included in the voters list of Booth No.2 in Ward VII G.V. School constituency as well as in Ward No.XII Kondadu constituency, he did not cast vote in Booth No.2. The petitioner has also contended that the entire postal votes were in proper form and as such, there was no violation of clause (c) of sub-rule (1) of Rule 50 of the Kerala Panchayat Raj (Conduct of Election) Rules. Hence, the petitioner contended that the election petition is liable to be dismissed without entering into the merits of the case. 7. Since the maintainability of Election O.P.No.2 of 2015 itself was challenged by the petitioner, the court below framed the following preliminary points; - “(i) Whether verification in the election petition is proper? - (ii) Can the respondent (petitioner herein) challenge the O.P.(C)No.2501/2017 -7- maintainability of the election petition itself on the basis of the entries in the document produced?” 8. Chapter X of the Act deals with disputes regarding election. Section 87 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter X. As per clause (a) sub-section (1) of Section 88 of the Act, in the case of a Village Panchayat, the Munsiff's Court having jurisdiction over the place in which the headquarters of the Panchayat is located, shall have jurisdiction to try an election petition. Section 89 of the Act deals with presentation of petitions. Sub-section (1) of Section 89 provides that, an election petition calling in question any election may be presented on one or more of the grounds specified in Section 102 and Section 103, to the appropriate court as specified in Section 88, by any candidate at such election or by any elector within 30 days from, but not later than, the date on which the returned candidate was declared elected. As per subsection (2) of Section 89, every election petition shall be accompanied by as many copies thereof, as there are respondents mentioned in the petition and every such copy shall O.P.(C)No.2501/2017 -8- be attested by the petitioner under his own signature to be a true copy of the petition. 9. Section 90 of the Act deals with parties to the petition and Section 91 deals with contents of the petition. As per subsection (1) of Section 91, an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Going by the proviso to sub-section (1) of Section 91, 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. As per sub-section (2) of Section 91, any schedule or annexure to the petition shall also be signed by the petitioner and verified in O.P.(C)No.2501/2017 -9- the same manner as the petition. 10. Section 93 of the Act deals with trial of election petitions. Sub-section (1) of Section 93 provides that the court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 115. As per the Explanation to sub-section (1) of Section 93, an order of the court dismissing an election petition under sub-section (1) shall be deemed to be an order made under clause (a) of Section 100 of the Act, i.e., an order of the court dismissing the election petition. As per sub-section (1) of Section 94 of the Act, subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. 11. Order VI of the Code of Civil Procedure, 1908 deals with pleadings generally. Order VI Rule 15 deals with verification of pleadings. As per sub-rule (1) of Rule 15, save as otherwise provided in any law for the time being in force, every pleadings shall be verified at the foot by the party or by one of the parties O.P.(C)No.2501/2017 -10- pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. Going by sub-rule (2) of Rule 15, the person verifying the pleading shall specify, by reference to the numbered paragraph of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. As per sub-rule (3) of Rule 15, the verification shall be signed by the person making it and shall state the date on which and the place at which it was signed and as per sub-rule (4), the person verifying the pleading shall also furnish an affidavit in support of the pleadings. 12. A copy of Election O.P.No.2 of 2015, which is placed on record as Ext.P1, would show that it contains 13 paragraphs other than the relief portion. The verification of pleadings in Ext.P1 election petition reads thus; “I Cyriac George @ Benny Kachiramattam, aged 45 years, S/o George, Kachiramattom House in Vellilappally Village, Ramapuram Bazar P.O., Kottayam District, do solemnly declare that all facts what is stated in paragraph 1 to 13 are true to the best of my knowledge which I believe to be true.” The schedule to Ext.P1 election petition is also verified in the O.P.(C)No.2501/2017 -11- ## same manner, which reads thus; “I Cyriac George aged 45 years, S/o George, Kachiramattom House, Vellilappally Village, Ramapuram Bazar P.O., Kottayam District, do solemnly declare that all the documents produced herewith are item 1 to 2 are original, 3 is an attested copy and 4 and 5 are the photocopies of the originals and are true to the best of my knowledge which I believe to be true.” 13. In **Omanakutty Amma M. v. K.P. Mathew (2007** **(1) KLT 356)** this Court held that, under sub-section (1) of Section 93 of the Act the court is competent to dismiss an election petition if the election petition does not comply with the provisions of either Section 89 or Section 90 or Section 115. The provisions to be complied under Section 89 are the provisions at the time of presentation of the election petition as to how and when an election petition is to be presented and what shall accompany an election petition. The dismissal for non-compliance under Section 90 could only be for the failure to make the parties who shall be joined in the petition as provided under Section 90. Section 115 deals with security for costs to be deposited in court at the time of presentation of the petition in court. Under sub- O.P.(C)No.2501/2017 -12- section (1) at the time of presenting an election petition, the petitioner has to deposit the amount provided therein. The dismissal of the election petition contemplated under sub-section (1) of Section 93 is for non-compliance of the deposit under Section 115. By enacting Explanation to sub-section (1) of Section 93, an order of the court dismissing the election petition under sub-section (1) shall be deemed to be an order made under clause (a) of Section 100. Therefore, even though an order under sub-section (1) of Section 93 is passed at the threshold on the ground of non-compliance of Section 89 or Section 90 or Section 115, before conclusion of the trial following the procedure for trial as provided under Section 94, by the said deeming provision, such an order is to be treated as an order dismissing the election petition at the conclusion of trial as provided under clause (a) of Section 100 of the Act. If an election petition is not dismissed under sub-section (1) of Section 93, the court shall try the petition following the procedure provided under Section 94. 14. In **Lissy M.P. v. K.K. Surenderan and others (2008 (4) KLT 354)** this Court this Court was dealing with a O.P.(C)No.2501/2017 -13- case in which a preliminary objection was raised before the court below as to the maintainability of the election petition on the ground of non-compliance of clause (c) of sub-section (1) of Section 91 of the Act. The verification occurring in that election petition after the schedule of documents and after the signatures of the election petitioner and his counsel was as follows; "I. K. K. Surendran, aged 43, S/o.Kumaran, Kunnel House, 110 Puthuval, Thengakkal P.O., Elappara Village do hereby solemnly affirm and verify that what is stated above in paragraphs 1 to 15 and the grounds 1 to 6 are true and correct to the best of my knowledge information and belief." It was contended before this Court that the election petition was also to be signed and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. There was no such verification in the election petition as enjoined by clause (c) of sub-section (1) of Section 91 of the Act and there was only a verification after the schedule of documents. The argument was that while there is compliance of sub-section (2) of Section 91 of the Act there is non-compliance of clause (c) of sub-section (1) of Section 91 of the Act and this according to the O.P.(C)No.2501/2017 -14- learned counsel is fatal. After referring to the provisions under sub-section (2) of Section 91 of the Act this Court held that the further verification insisted by that sub-section is only in cases where the petition contains a schedule or annexure. Merely because the election petitioner has chosen to call the list of documents as schedule of documents, it cannot be treated as a schedule as contemplated by sub-section (2) of Section 91 of the Act. Hence it cannot be said that there is non-compliance of subsection (2) of Section 91 of the Act. After referring to sub-section (1) of Section 93 of the Act, this Court noticed that the noncompliance alleged is not that of Section 89 or Section 90 or Section 115 of the Act, but Section 91 of the Act. When the statute has not contemplated the consequence of dismissal of the election petition for non-compliance of Section 91 of the Act, the petitioner cannot request the court to include that also as a ground for dismissal of the petition. 15. Therefore, the dismissal of an election petition under sub-section (1) of Section 93 of the Act at the threshold, before conclusion of the trial following the procedure as provided under O.P.(C)No.2501/2017 -15- Section 94 of the Act, can be made only on the ground of noncompliance of Section 89 or Section 90 or Section 115 of the Act and not for non-compliance of Section 91 of the Act. When subsection (1) of Section 93 of the Act does not contemplate the consequence of dismissal of an election petition at the threshold for non-compliance of Section 91 of the Act, the court below cannot be found fault with for repelling the preliminary objection raised by the petitioner as to the maintainability of Ext.P1 election petition for the alleged non-compliance of sub-section (1) of Section 93 of the Act. 16. The learned counsel for the petitioner placed reliance on the decision of the Apex Court in **C.P. John v. Babu M. Palissery [(2010) 14 SCC 547]** . In the said decision, the Apex Court was dealing with a case in which an application was filed for rejecting the election petition filed under the provisions of the Representation of the People Act, 1951 (for brevity 'the RP Act') for want of particulars of the alleged corrupt practice and consequent lack of cause of action for maintaining the election petition. After referring to the provisions under Section 83 of the O.P.(C)No.2501/2017 -16- RP Act, which deals with contents of petition, the Apex Court held that, the substantive part of sub-section (1) of Section 83 consists of three important elements, namely, that an election petition should contain a concise statement of material facts which an election petitioner relies upon. The emphasis is on the material facts which should be stated in a concise form. Under clause (b) of sub-section (1) of Section 83 it is stipulated that the election petition should set forth full particulars of any corrupt practice which is alleged by the petitioner. A reading of the clause (b) of sub-section (1) of Section 83 is to the effect that such particulars should be complete in every respect and when it relates to an allegation of corrupt practice it should specifically state the names of the parties who alleged to have committed such corrupt practice and also the date and place where such corrupt practice was committed. In other words, the particulars relating to corrupt practice should not be lacking in any respect. One who reads the averments relating to corrupt practice should be in a position to gather every minute detail about the alleged corrupt practice such as the names of the persons, the nature of O.P.(C)No.2501/2017 -17- the alleged corrupt practice indulged in by such person or persons, the place, the date, the time and every other detail relating to the alleged corrupt practice. To put it differently, when the election petition is taken up for consideration, the court which deals with such an election petition, should be in a position to know in exactitude as to what is the corrupt practice alleged as against the parties without giving any room for doubt as to the nature of such allegation, the parties involved, the date, time and the place, etc., so that the party against whom such allegation is made is in a position to explain or defend any such allegation without giving scope for any speculation. In that context, both clauses (a) and (b) of sub-section (1) of Section 83 and the proviso play a very key role since the election petitioner cannot simply raise an allegation of corrupt practice and get away with it, inasmuch as the affidavit to be filed in respect of corrupt practice should specifically support the facts pleaded, as well as, the material particulars furnished. Rule 94A of the Conduct of Election Rules in turn stipulates that the affidavit should be in the prescribed Form No.25 and should be sworn before the O.P.(C)No.2501/2017 -18- Magistrate of First Class or a Notary or the Commissioner of Oaths and makes it mandatory for the election petitioner to comply with the said requirement statutorily. Therefore, a conspectus reading of clause (a) of sub-section (1) of Section 83 read along with its proviso of the Act, as well as Rule 94A and Form No.25 of the Conduct of Election Rules make the legal position clear that in the filing of an election petition challenging the successful election of a candidate, the election petitioner should take extra care and leave no room for doubt while making any allegation of corrupt practice indulged in by the successful candidate and that he cannot be later on heard to state that the allegations were generally spoken to or as discussed sporadically and on that basis the petition came to be filed. In other words, unless and until the election petitioner comes forward with a definite plea of his case that the allegation of corrupt practice is supported by legally acceptable material evidence without an iota of doubt as to such allegation, the election petition cannot be entertained and will have to be rejected at the threshold. 17. In **C.P. John's case (supra)** the allegation of O.P.(C)No.2501/2017 -19- corruption practice raised in the election petition was two fold falling under clause (A) of sub-section (1) of Section 123 and sub-section (4) of Section 123 of the RP Act. The allegation of bribery is made in paragraphs 4, 5, 6 and 9 of the election petition. The sum and substance of the stand of the first respondent in the written statement as regards the allegation of bribery was that in paragraph 4 there was no specific pleading as to who paid the bribe, the date, time and place at which the alleged bribe was paid as mandated under clause (b) of subsection (1) of Section 83 of the Act and that the said pleading of corrupt practice was not supported by the affidavit and, therefore, the entire pleadings in paragraph 4 has to be eschewed from consideration. As far as the averments contained in paragraph 9 were concerned, it was contended that, the entire averments in paragraph 9 will not satisfy the statutory requirement of clause (b) of sub-section (1) of Section 83 of the Act and further the said averments relating to corrupt practice were based on information and not based on personal knowledge. Further, the allegation of bribery having been pleaded in O.P.(C)No.2501/2017 -20- paragraphs 4, 6, 9 and 10 of the election petition, those averments contained in paragraphs 4, 6 and 10 of the election petition were not supported by the affidavit as required under the proviso to sub-section (1) of section 83 of the Act. 18. In the affidavit filed in support of I.A.No.3 of 2011, the first respondent while reiterating the above contentions, stated that after striking off and eschewing paragraphs 4, 7, 9 to 15 and grounds (a), (c), (d) and (e) of the election petition, there were left no material facts giving any cause of action for the election petition to subsist. It was, therefore, prayed that the election petition should be dismissed at the threshold. In the counter affidavit filed to I.A.No.3 of 2011, the appellant did not state anything as regards the filing of proper affidavit relating to paragraphs 4, 6 and 10 which related to corrupt practice. On the other hand, it was contended that the election petition contained full material facts and particulars of corrupt practice including the date, place and name of the parties. Till the impugned judgment came to be passed by the High Court, there was no prayer made either in writing or orally for permitting the appellant to file O.P.(C)No.2501/2017 -21- necessary amendment to the election petition or to file any additional affidavit curing the defects relating to failure to support the averments contained in paragraphs 4, 6 and 10 of the election petition by way of fresh affidavit or for supplementing the averments already made with additional particulars or details relating to the allegation of corrupt practices. 19. Before the Apex Court, the learned counsel for the appellant contended that, even if there was some omission on the part of the appellant in filing the necessary affidavit, with particular reference to the allegations in paragraphs 4, 6 and 10 of the election petition, the High Court ought to have given an opportunity to cure the said defects which were purely cosmetic. It was also contended that the averments, contained in paragraph 9 which were duly supported by the affidavit were sufficient to prove the allegation of bribery alleged against the first respondent, which the appellant would have been able to sufficiently demonstrate and establish at the time of hearing of the election petition. 20. After considering the rival contentions, the Apex Court O.P.(C)No.2501/2017 -22- noticed that, the situation relating to want of particulars and the failure to support the allegations made in the election petition by necessary affidavit as required to be filed under the proviso to sub-section (1) of Section 83 of the Act was brought to the notice of the appellant at the instance of the first respondent in his written statement filed on 24.9.2011. The first respondent filed I.A.No.3 of 2011 on the same date, to which the appellant filed counter affidavit on 6.10.2011. In the said counter the appellant did not seek for any prayer to amend or add any plea to the election petition or the affidavit filed in support of the election petition. On the other hand, the appellant continued to maintain his stand that whatever particulars required, have been sufficiently set out in the petition and affidavit and it was not lacking in any statutory requirement. Thus, he allowed the High Court to examine the contention raised at the preliminary stage as to the maintainability of the election petition for want of compliance of statutory requirement as prescribed under subsection (1) of Section 83 of the Act read along with Rule 94A of the Conduct of Election Rules and as prescribed in Form No.25 of O.P.(C)No.2501/2017 -23- the said Rules. Therefore, the Apex Court held that, when the appellant was not inclined to seek for any amendment to the election petition or to the affidavit filed in support of the election petition, he cannot subsequently raise any grievance to the effect that the High Court ought to have granted him an opportunity to amend the pleadings. Since the allegation of bribery falling under clause (A) of sub-section (1) of Section 123 of the Act was a serious allegation, if according to the appellant, for levelling the said allegation there were no details furnished as to on which date and by whom the bribe amount was promised to be paid to the second respondent, when such averments were not duly supported in the affidavit and when such serious defects were pointed out in the written statement as well as in the affidavit filed in support of I.A.No.3 of 2011, the appellant having taken a rigid stand that he wanted to go by whatever averments contained in the election petition and affidavit filed in support of the election petition, he cannot subsequently turn around and state that inspite of such a categoric stand taken by him, the High Court should have gone out of the way and called upon him O.P.(C)No.2501/2017 -24- to rectify the defects, which were very serious defects concerning material particulars relating to corrupt practice, for which there was no necessity for the High Court to show any such extraordinary indulgence to the appellant. 21. Before the Apex Court, the learned counsel for the appellant placed reliance on the decision in **G. Mallikarjunappa v. Shamanur Shivashankarappa [(2001) 4 SCC 428]** wherein it was held that, an election petition is not liable to be dismissed in limine under Section 86 of the RP Act, for alleged non-compliance with provisions of sub-section (1) or sub-section (2) of Section 83 of the Act or of its proviso. After referring to the aforesaid contention of the learned counsel for the appellant, the Apex Court held in categorical terms that, consequences envisaged by sub-section (1) of Section 86 of the Act will have no application to the non-compliance of sub-section (1) or subsection (2) of Section 83 of the Act or its proviso. Turning to the case on hand, the Apex Court found that, when the mandatory requirement of the pleadings as stipulated under sub-section (1) of Section 83 of the Act and its proviso was brought to the notice O.P.(C)No.2501/2017 -25- of the appellant, as well as, to the Court, and when a specific application was filed for rejecting the election petition for want of particulars and consequent lack of cause of action for maintaining the election petition and the election petitioner, namely, the appellant chose not to cure the defects but insisted that his election petition can be proceeded with keeping the material defects on record, he cannot later on be heard to state that at any later point of time he must be given an opportunity to set right the defects. Paragraphs 37 and 38 of the said decision read thus; “37. Reliance was placed upon the decision in G. Mallikarjunappa (supra), paragraph 7, which reads as under: "7. An election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of "Section 81 or Section 82 or Section 117 of the RP Act". The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences O.P.(C)No.2501/2017 -26- envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly "defective" affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case." 39. There can be no two opinions that consequences envisaged by Section 86(1) of the Act will have no application to the non-compliance of Section 83(1) or (2) or its proviso. But the question before us is when the mandatory requirement of the pleadings as stipulated under Section 83(1) and its proviso was brought to the notice of the Appellant, as well as, to the Court, and when a specific application was filed for rejecting the Election Petition for want of particulars and consequent lack of cause of action for maintaining the Election Petition and the election petitioner, namely, the Appellant herein chose not to cure the defects but insisted that his Election Petition can be proceeded with keeping the material defects on record, he cannot later on be heard to state that at any later point of time he must be given an opportunity to set right the defects. We are unable to O.P.(C)No.2501/2017 -27- appreciate such an extreme stand made on behalf of the Appellant. Therefore, even while applying the above proposition of law stated by this Court in paragraph 7, we do not find any scope to interfere with the order impugned in these appeals.” 22. In the instant case, Ext.P1 election petition is not on the ground of any 'corrupt practice' as specified in Section 120 of the Kerala Panchayat Raj Act. Therefore, the provisions under clause (b) of sub-section (1) of Section 91 of the Act (which is pari materia with clause (b) of sub-section (1) of Section 83 of the RP Act) which mandates that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, is not attracted in the case of Ext.P1 election petition. On the other hand, the only requirement under clause (a) of sub-section (1) of Section 91 of the Act is that, such petition shall contain a concise statement of the material facts on which the election petitioner relies. Further, such petition shall be signed by the election petitioner and verified in the manner laid down in the Code of O.P.(C)No.2501/2017 -28- Civil Procedure for the verification of pleadings, as mandated by clause (c) of sub-section (1) of Section 91 of the Act. A reading of Ext.P2 written statement filed by the petitioner herein would show that the contention raised as to the maintainability of Ext.P1 election petition is on the ground that the election petition is not properly attested and that, the election petition has been filed on the basis of certain fabricated documents. In Ext.P2 written statement the petitioner has no case that Ext.P1 election petition lacks concise statement of the material facts on which the election petitioner relies and consequently lacks cause of action for maintaining the election petition. 23. In **K.K. Ramachandran Master v. M.V. Sreyamkumar [(2010) 7 SCC 428]** , in the context of the provisions under the RP Act the Apex Court has drawn a distinction between material facts and particulars in an election petition. The Apex Court held that material facts are primary and basic facts which must be pleaded by the plaintiff, while particulars are details in support of such material facts. The particulars ensure conduct of a fair trial so that opposite party is O.P.(C)No.2501/2017 -29- not taken by surprise. In the said decision, the Apex Court held further that, defective verification of affidavit is curable and the petition cannot be dismissed for any such defect. What consequences, if any, such defects entail would be judged at the trial. 24. As already held, the dismissal of an election petition under sub-section (1) of Section 93 of the Act at the threshold, before conclusion of the trial following the procedure as provided under Section 94 of the Act, can be made only on the ground of non-compliance of Section 89 or Section 90 or Section 115 of the Act and not for non-compliance of Section 91 of the Act. When sub-section (1) of Section 93 of the Act does not contemplate the consequence of dismissal of an election petition at the threshold for the non-compliance of Section 91 of the Act, the court below rightly repelled the preliminary objection raised by the petitioner as to the maintainability of Ext.P1 election petition vide Ext.P3 order for the alleged non-compliance of sub-section (1) of Section 93 of the Act. 25. The other objection raised as to the maintainability of O.P.(C)No.2501/2017 -30- Ext.P1 election petition is that, it has been filed on the basis of certain fabricated documents. A finding as to whether any document relied on by the election petitioner is a fabricated one or not, could be made only at the stage of trial. Therefore, on the mere allegation that certain documents produced in support of the election petition are fabricated, Ext.P1 election petition cannot be dismissed at the threshold. 26. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. O.P.(C)No.2501/2017 -31- 27. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It O.P.(C)No.2501/2017 -32- cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 28. In **Sobhana Nair K.N. v. Shaji S. G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that, in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 29. Viewed in the light of the law laid down in the O.P.(C)No.2501/2017 -33- decisions referred to above, the reasoning of the court below in Ext.P3 order is neither perverse nor patently illegal, warranting an interference in this Original Petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. It cannot also be said that, while issuing the impugned order the court below committed any manifest error or the reasoning in the said order is palpably perverse or patently unreasonable. In the result, this Original Petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. To Judge