Sulochanan V.S. v. Rahul Raj R. and Beena R.C.

OP(C) NO. 295 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 OP(C) NO. 295 OF 2023** **AGAINST THE ORDER/JUDGMENT IN OP(ELE) 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. RAVI KRISHNAN K.VINAYA ## **RESPONDENT/S:** 1 RAHUL RAJ. R,AGED 27 YEARS,AGED 27 YEARS, S/O.SINDHU, PUTHUVAL PUTHN VEEDU AMBALATHARA, POONTHURA P.O. THIRUVANANTHAPURAM -695 026 2 BEENA .R.C, AGED 44 YEARS ,W/O.RAJEEV.R T.C.7561,RAJEEVAM,ATTUKKAL.MANAKKAD P.O. THIRUVANANTHAPURAM -695 026 BY ADVS. P.Anoop(mulavana) P K.RAJESH KANNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 295 OF 2023 2 ## **JUDGMENT** The original petition is filed challenging Ext.P7 order passed in RP No.16/2023 in IA No.11/2022 in OP(Election) No.1/2021 ( in short, 'election petition), by the Court of the Principal Munsiff, Thiruvananthapuram. The petitioner is the respondent and the 1[st] respondent is the petitioner in the election petition. The 2[nd] respondent is the person who was impleaded as the additional 2[nd] respondent in the election petition. 2. The concise case of the petitioner in the original petition leading to Ext.P7 order is: - (i) The petitioner is the returned candidate from Ambalathara, Ward No.67 of Thiruvananthapuram Corporation in the election held on 08.12.2020. - (ii) The 1[st] respondent has filed OP(Election) No.1/2021 before the court below, to set aside OP(C) NO. 295 OF 2023 3 the election of the petitioner. The petitioner has resisted the election petition through Ext.P2 written statement. - (iii) While the election petition was proceeding, the 2[nd] respondent filed IA No.11/2021 (Ext.P3) to get herself impleaded in the election petition. Curiously, when Ext.P3 application was taken up for consideration, the 2[nd] respondent filed another application as IA No.12/2023 (Ext.P4), to correct the impleading petition. - (iv) By Ext.P5 order, the court below allowed Ext.P3 application. - (v) Aggrieved by Ext.P5 order, the petitioner filed RP No.16/2023 (Ext.P6) to review Ext.P5 order. - (vi) The court below, by the impugned Ext.P7 order, dismissed Ext.P6 application. Ext.P7 order is palpably wrong and unsustainable in law. Hence, OP(C) NO. 295 OF 2023 4 ## the original petition. 3. The 2[nd] respondent has filed a counter affidavit denying the allegations in the original petition. It is, inter-alia, contended that Ext.P3 application was filed on 15.12.2022. Ext.R2(a) daily status clearly reveals that the application was posted for the objection of the petitioner to 17.12.2022 and adjourned from time to time; but the petitioner did not file his objection to Ext.P3 application. Thus, the assertions in the application stood uncontroverted. Accordingly, the court below, by Ext.P5 order, allowed Ext.P3 application. As there is no error apparent on the face of Ext.P5 order, the court below was justified in dismissing Ext.P6 review petition by Ext.P7 order. Hence, the original petition may be dismissed. 4. Heard; Sri.Ravi Krishnan, the learned Counsel appearing for the petitioner, Sri.P.A.Anoop, the learned Counsel appearing for the 1[st] respondent and Sri.K. OP(C) NO. 295 OF 2023 **==> picture [7 x 9] intentionally omitted <==** Rajesh Kannan, the learned Counsel appearing for the 2[nd] respondent. 5. The point is, is there any error in Ext.P7 order. 6. The election petition has been filed by the 1[st] respondent – a voter of Ambalathara, Ward No.67 of Thiruvananthapuram Corporation – to declare the election of the petitioner as void for allegedly violating the provisions of the Kerala Municipalities Act, 1994 (in short, 'Act'). 7. The attention of this Court is drawn to an earlier round of litigation, at the instance of the 1[st] respondent, before this Court in OP(C) No.1242/2022. From the judgment, it can be gathered that the 1[st] respondent had an application in the election petition to amend the pleadings, for incorporating a relief that the candidate who secured the 2[nd] position in the election in question, may be declared duly elected, in case the election of the petitioner is declared void in the election petition. The 6 OP(C) NO. 295 OF 2023 court below granted leave to amend the election petition, which was challenged before this Court. This Court by judgment dated 09.12.2012, after adverting to Section 168 of the Kerala Municipalities Act and considering the fact that the 1[st] respondent was only a voter in the concerned Ward, held that the 1[st] respondent cannot aspire for a relief to declare the 2[nd] respondent as the returned candidate, in the eventuality of the election of the petitioner being declared as void. Consequently, this Court set aside the order granting leave to amend the election petition and directed the court below to dispose of the election petition as expeditiously as possible. 8. It is after the dismissal of the above original petition, the 2[nd] respondent filed Ext.P3 application, to get impleaded as an additional respondent in the election petition. 9. The court below, without any application of OP(C) NO. 295 OF 2023 7 mind, by Ext.P5 order, has permitted the impleadment of the 2[nd] respondent. ## 10. Section 166 of the Kerala Municipalities Act, reads as follows: 166. Parties to the petition.— A petitioner shall join as respondent to his petition,- (a) where the petitioner, in addition to claiming a declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, the returned candidate; and - (b) any other candidate against whom allegations of any corrupt practice are made in the petition. 11. A reading of the above provision undoubtedly establishes that, when a prayer for declaration that the election of the returned candidate is void, only the returned candidate is a necessary party. 12. In the case on hand, indisputably, the 1[st] OP(C) NO. 295 OF 2023 8 respondent is only a voter of the locality and was not a contesting candidate. Thus, the 1[st] respondent can only seek for a declaration that the election of the petitioner is void. Then, only the petitioner and the 1[st] respondent are necessary parties. 13. Although, the 1[st] respondent made an attempt to amend the election petition, to incorporate a prayer that, in the eventuality of the petitioner's election being declared as void, the 2[nd] respondent be declared as the returned candidate, this Court rejected the application for amendment. Thus, as matters stand now, the election petition is only to declare the election of the petitioner as void. 14. It is well settled in a string of precedents that, as the challenge to an election proceeding is only a statutory right, and the election petition is to be strictly within the four corners of the statute and nothing more. 15. In addition to specific provision under the Act, OP(C) NO. 295 OF 2023 9 Order 1 Rule 10 (2) of the Code of Civil Procedure, (in short, 'Code') deals with striking and adding of parties in a suit. 16. Interpreting Order 1 Rule 10 (2) of the Code the Honourable Supreme Court in **Sudhamayee Pattnaik and others vs. Bibhu Prasad Sahoo and others** [2022 SCC online SC 1234] has held that a person can be impleaded as a respondent in a proceeding either suo-motu by the Court or at the instance of the petitioner, who is the dominus litis. 17. In the present case, it is neither the Court nor the petitioner who has sought to get the 2[nd] respondent impleaded. Instead, the 2[nd] respondent now desires to get impleaded in the election petition, after not having chosen to challenge the election independently. Having failed to exercise her statutory right, as provided under the Act, the 2[nd] respondent cannot aspire to indirectly challenge the election, which is against the scheme of OP(C) NO. 295 OF 2023 10 the Act. 18. It is trite, election disputes are neither fundamental rights nor common law rights but only a statutory right conferred by the provisions of the concerned enactments and the rules framed thereunder. (Read: **Jyoti Basu vs. Debi Ghosal** [(1982) 1 SCC 691]). 19. In the above conspectus, I am of the firm view that the court below has exceeded its authority by permitting the impleadment of the 2[nd] respondent as an additional respondent in the election petition by Ext.P5 order, and then dismissing Ext.P6 application by the impugned Ext.P7 order. Exts.P5 and P7 orders warrant interference by this Court under Article 227 of the Constitution of India. Resultantly, I am inclined to allow the original petition as follows: OP(C) NO. 295 OF 2023 11 - (i) Exts.P5 and P7 orders are set aside. - (ii) Ext.P4 application is dismissed. - (iii) The Court of the Principal Munsiff, Thiruvananthapuram is directed to consider and dispose of OP(Election) No.1/2021 in accordance with law and as expeditiously as possible. **Sd/-** **C.S.DIAS JUDGE** rkc/16.03.23 OP(C) NO. 295 OF 2023 12 ## **APPENDIX OF OP(C) 295/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE O.P(ELECTION ) NO. 1/2021 FILED BY THE RESPONDENT ON THE FILES OF MUNSIFF COURT THIRUVANANTHAPURAM ExhibitP2 TRUE COPY OF THE WRITTEN STATESMAN FILED BY THE PETITIONER IN O.P.(ELECTION) 1/2021 ON THE FILES OF MUNSIFF COURT THIRUVANANTHAPURAM ExhibitP3 A TRUE COPY OF THE IA NO. 11/2022 IN O.P.(ELECTION) 1/2021 ON THE FILES OF MUNSIFF COURT THIRUVANANTHAPURAM FILED BY THE 2ND RESPONDENT ExhibitP4 TRUE COPY OF THE IA NO.12/ 2023 IN O.P. (ELECTION) 1/2021 ON THE FILES OF MUNSIFF COURT THIRUVANANTHAPURAM FILED BY THE 2ND RESPONDENT ExhibitP5 THE TRUE COPY OF THE DAILY STATUS DOWNLOADED FROM THE ECOURT SHOWING THE PROCEEDINGS OF THE MUNSIFF COURT THIRUVANANTHAPURAM IN OP(ELECT) NO. 1/2021 ExhibitP6 TRUE COPY OF THE MEMORANDUM OF REVIEW PETITION. REVIEW PETITION NO. 16/2023 IN OP (ELECT) 1/2021 ON THE FILES OF MUNSIFF COURT THIRUVANANTHAPURAM FILED BY THE PETITIONER ExhibitP7 TRUE COPY OF THE ORDER DATED 23.1.2023 IN REVIEW PETITION NO 16/2023 IN IA NO. 11/ 2022 IN OP (ELECT) 1/2021 ON THE FILES OF MUNSIFF COURT THIRUVANANTHAPURAM FILED BY THE PETITIONER