Sulochanan V.S. v. Rahul Raj. R

1 OP(C) No.1242 of 2022 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 OP(C) NO. 1242 OF 2022 AGAINST THE ORDER/JUDGMENT IN OPELC 1/2021 OF PRINCIPAL MUNSIFF COURT ,TRIVANDRUM ``` ## **`PETITIONER/S:`** ``` SULOCHANAN V.S. AGED 55 YEARS S/O. VELAYUDHAN DEVI NANDANAM,T.C.2565, AMBALATHARA, POONTHURA P.O. THIRUVANANTHAPURAM, PIN - 695026 BY ADVS. K.VINAYA RAVI KRISHNAN ``` ## **`RESPONDENT/S:`** ``` RAHUL RAJ. R, AGED 27 YEARS S/O.SINDHU, PUTHUVAL PUTHN VEEDU AMBALATHARA, POONTHURA P.O. THIRUVANANTHAPURAM , PIN - 695026 BY ADVS. J.R.PREM NAVAZ J.R SUMEEN S.(K/000187/2012) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1242 of 2022 ## **C.S DIAS, J.** **--------------------------OP(C) No.1242 of 2022** **----------------------------Dated this the 9[th] day of December, 2022.** ## **JUDGMENT** Aggrieved by Ext P5 order passed in IA No.2/2022 in OP (Election) No.1/2021 (Ext P1) by the Court of the Principal Munsiff, Thiruvananthapuram, the respondent before the court below has filed the original petition. The petitioner before the court below is the respondent. 2. The concise case of the petitioner, leading to Ext P5 order, is that, the respondent has filed the above original petition to declare the election of the petitioner as void for violation and non-compliance of the provisions of the Kerala Municipalities Act, 1994 (in short, ‘Act’). The respondent has alleged in the election petition that the petitioner furnished false statements in his nomination paper and therefore, his election is liable to be declared void. Ext P1 petition is resisted by the petitioner through Ext P2 written statement. The case was listed for trial. 3 OP(C) No.1242 of 2022 Towards the fag end of the proceeding, the respondent filed IA No.2/2022 (Ext P3), seeking leave to amend the original petition, inter alia, to incorporate a relief that candidate who secured the second position in the election may be duly declared as elected, in case the election of the petitioner is declared void. Although the petitioner resisted Ext P3 application through Ext P4 objection, the court below, by the impugned Ext P5 order has allowed Ext P3 application. Ext P5 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.Ravi Krishnan, the learned counsel appearing for the petitioner and Sri.J.R Prem Navaz, the learned counsel appearing for the respondent. 4. The question is whether there is any illegality in Ext P5 order. 5. Ext P1 original petition is filed under Sec.164 of the Kerala Municipality Act, 1994, to declare the election of the petitioner as null and void. 4 OP(C) No.1242 of 2022 6. After the parties went to trial, the respondent filed Ext P3 application seeking leave to amend Ext P1 petition for incorporating an additional relief that in case the election of the petitioner is declared void, the candidate who secured second position may be declared as duly elected to the Amabalathara Ward No.67 of Thiruvananthapuram Corporation in the election held on 8.12.2020. 7. Sec.168 of the Kerala Municipality Act, 1994, reads as follows: **168. Relief that may be claimed by the petitioner.—** A petitioner may, in addition to claiming a declaration that the election of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. 8. A reading of Sec.168 makes it abundantly evident that a petitioner in an election petition can seek for declaring him or any other candidate also duly elected. 9. In the case on hand, undisputedly, the petitioner is only a voter of the said locality. The defeated 5 OP(C) No.1242 of 2022 candidate/second placed candidate is not a party in the original petition. 10. Although it is well settled that an application for amendment has to be liberally considered, the parameters have been succinctly explained recently by the Hon’ble Supreme Court in **Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another** [2022 SCC Online SC 1128]. It is categorically held that an amendment shall not be permitted if it introduces a new case which is foreign to the case at hand, it should not be allowed. 11. In the instant case, the respondent cannot aspire or seek for a relief that has not been claimed by the defeated candidate, that too without the said candidate on the party array. The respondent seek a declaratory relief on behalf of another person without the concerned person on the party array. Moreover, the said relief now sought to be introduced is time barred under the provisions of the Act. In other words, the second position candidate 6 OP(C) No.1242 of 2022 cannot at this point of time seek for the said relief as he has not challenged the election. Thus, I also hold that the relief sought for to be introduced is a time barred cause of action. 12. In addition to the above finding, undisputedly, the parties had gone to trial. It is after the commencement of trial that the above application was filed seeking leave to amend the pleadings. The relief sought to be incorporated is something that was well within the knowledge of the respondent. It was up to him, at the appropriate stage, to have sought for the amendment , if at all it is sustainable, that too with the proper party on the array. Having not done all of the above, I hold that the amendment sought to be introduced is unsustainable in law and is hit by the proviso to Rule 17 of Order 6 of the Code of Civil Procedure. Consequently, this Court holds that Ext P5 order passed by the court below is beyond its authority 7 OP(C) No.1242 of 2022 which warrants to be interfered by this Court under Article 227 of the Constitution of India. In the result, I allow the original petition as follows: (i)Ext P5 order is set aside - (ii) Ext P3 application is dismissed (iii)The court below is directed to consider and dispose of OP (Ele)No.1/2021, in accordance with law, as expeditiously as possible. SD/- Sks/9.12.2022 **C.S.DIAS, JUDGE** 8 OP(C) No.1242 of 2022 ## **`APPENDIX OF OP(C) 1242/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE O.P(ELECTION ) NO. 1/2021 FILED BY THE RESPONDENT ON THE FILES OF PRINCIPAL MUNSIFF COURT THIRUVANANTHAPURAM Exhibit P2TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P.(ELECTION ) 1/2021 ON THE FILES OF PRINCIPAL MUNSIFF COURT THIRUVANANTHAPURAM Exhibit P3TRUE COPY OF THE I.A NO. 2/2022 IN O.P. (ELECTION) NO.1/2021 FILED BY THE RESPONDENT Exhibit P4TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER Exhibit P5TRUE CARBON COPY OF ORDER DATED 8.7.2022 IN IA NO 2/2022 IN OP (ELECTION)NO. 1/2021 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM ```