Vamadevan K. v. Sathyan, S/o Damodaran; J. Asok Kumar; Jithendran Ravendran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929** ## **CRP.No. 440 of 2007()** **----------------------------** **OP(EP).24/2005 of MUNSIFF COURT,ATTINGAL** **....................** ## **REVN. PETITIONER:** **-----------------------------** **VAMADEVAN K., PEDIKULAM VILAYIL VEEDU, PLAVODE WARD, PULIMATH PANCHAYATH.** **BY ADV. SRI.K.JAYAKUMAR SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.B.KRISHNAN** **RESPONDENTS:** **-----------------------** **1. SATHYAN, S/O.DAMODARAN, AGED 44, KARIKUZHY VEEDU, PADIKULAM, PLAVODE WARD PULIMATH PANCHAYATH.** **2. J.ASOK KUMAR, JANARDHANA BHAVAN, PEDIKULAM, PULIMATH PANCHAYATH.** **3. JITHENDRAN RAVEENDRAN, VEENUS COTTAGE, PULIMATH VILLAGE, PULIMATH PANCHAYATH.** ## **BY ADV. SRI.M.R.RAJESH - R1 SMT.A.K.PREETHA** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **M.N. KRISHNAN, J.** **==> picture [330 x 59] intentionally omitted <==** ## **O R D E R** This revision petition is preferred against the order of the Munsiff, Attingal whereby the learned Munsiff has held that the election petition cannot be thrown out as not maintainable due to certain defects pointed out by the respondents. The brief facts necessary for the disposal of the revision are as follows. 2. The defeated candidate is the petitioner who has requested the Court to interfere with the election. It is contended that election petition is liable to be dismissed at the threshold on the following grounds namely, (1) No proper affidavit is filed along with the election petition. (2) Corrections are made in the election petition without proper authentication and (3) There is no proper verification of the election petition. **CRP NO. 440 of 2007** -:2:- 3. As per Section 91(1)(c) of the Kerala Panchayath Raj Act an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings. There is also a proviso attached to it when there is plea of corrupt practice. 4. The first objection raised is that as per the amened CPC Order 6 Rule 15(4), the person verifying the pleadings shall also furnish an affidavit in support of his pleadings. It is submitted that no such affidavit has been filed accompanying the election petition and as it is a mandate under Order 6 Rule 15(4), the petition is liable to be rejected. 5. On the other hand the learned counsel for the respondents would contend that an affidavit has been filed along with the application and a better affidavit has been subsequently filed and therefore there is specific compliance under Order 6 Rule 15(4). He would also contend that in the light of the decision reported in _**Geetha Shetty v. Premalatha & others (2006 (2) KLT 141)**_ wherein a **CRP NO. 440 of 2007** ## -:3:- learned judge of this Court held that, “The fact that an affidavit as contemplated under Order 6 Rule 15(4) did not accompany the election petition is not a ground to reject the election petition at the threshold.” The learned Judge further held that , “Filing of an affidavit is not part of verification of pleadings. It is only an additional responsibility on the person verifying a plaint pleadings. Inasmuch as the election petition is not a plaint pleadings and need only be verified in the manner in which a plaint pleadings is verified, the election petitioner has no obligation to file any such affidavit as stipulated in Rule 15(4). The fact that an affidavit is contemplated under Order 6 Rule 15(4) did not accompany the election petition is not a ground to reject the election petition at the threshold.” 6. The learned counsel for the revision petitioner has cited a decision of the Apex Court reported in _**Baldev Singh**_ **CRP NO. 440 of 2007** -:4:- _**v. Shinder Pal Singh (2007 (1) SCC 341)**_ and in paragraph 23 of the said decision a two member Bench of the Apex Court held as follows. “The verification of an election petition, it was trite, must be done strictly in terms of Order 6 Rule 15 of the Code of Civil Procedure. It was, thus incumbent on the part of the respondent herein to specifically state as to which statements made in the election petition were true to his knowledge and which were true to his belief. “ 7. At the out set I may like to point out that the Apex Court in that decision was not considering about the maintainability of an election petition on account of the improper verification of the pleadings. But was considering a special leave petition wherein Order 6 Rule 15 (1) and (2) were extracted for the purpose of discussion regarding pleadings. As held by this Court in the decision referred to by me earlier I also strongly feel that the affidavit contemplated under Order 6 Rule 15(4) is not a part of the pleadings and therefore one cannot hold that verification of the pleadings is **CRP NO. 440 of 2007** -:5:- defective just because an affidavit is not filed along with the petition. As far as this case is concerned we find that an affidavit is filed most probably which is lacking in some particulars and which has been supplemented by an additional affidavit. Therefore I hold that the contention that the petition has to be thrown out as there is non-compliance of Order 6 Rule 15(4) cannot be accepted. 8. The next point to be considered is regarding proper authentication. The learned counsel for the revision petitioner has taken me through the pleadings wherein there are some corrections which has been initialed. It is submitted by the learned counsel that the initials are put by the lawyer and for which he relies upon the authentication of the affidavit but on the contra the petitioner would assert that the initials are done by him and therefore at this stage it cannot be held that there is improper authentication and so it is also a highly technical objection which cannot be entertained. **CRP NO. 440 of 2007** -:6:- 9. Lastly, the question relates to the verification of the election petition. As per the decision of the Supreme Court relied upon by the learned counsel it is held that there must be meticulous compliance of Order 6 Rule 15 for verification of pleadings. It was in a case where the Court was considering a special leave petition and Order 6 Rule 15 was extracted for an appreciation of the matter therein. 10. The learned counsel for the respondent had cited before me decisions of the Apex Court right from 1964. He had first referred to a five member Bench decision of the Supreme Court reported in _**Murarka Radhay Shyam v. Roop Singh (AIR 1964 SC 1545)**_ . He had drawn my attention to paragraph 8 as well as paragraph 14 of the said ruling. In the said ruling the Apex Court find out the difference regarding the non- compliance of certain provisions of the Representation of People Act, i.e., Sections 81, 83 and 117. Then in the last paragraph the Apex Court held that , “Turning now to election petition No.295 of 1962, the defect as to the time and place of verification is, as we have said earlier, not a **CRP NO. 440 of 2007** ## -:7:- fatal defect. It is a matter which comes within Clause (c) of sub-Section (1) of S.83 and the defect can be remedied in accordance with the principles of CPC relating to the verification of pleadings. “ 11. Then the learned counsel had invited my attention to the decision of the Apex Court reported in F.A. Sapa v. Singora (AIR 1991 SC 1557). It is also a decision rendered by a three member Bench of the Apex Court. In the said decision at paragraph 20 it is held that, “It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since S.83 is not one of three provisions mentioned in S.86(1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Section 81.” 12. Then the learned counsel had referred to the decision reported in _**H.D. Revanna v. G. Puttaswamy**_ **CRP NO. 440 of 2007** -:8:- _**Gowda (1999 (2) SCC 217)**_ where a two member Bench had considered the point and in paragraph 14 it is held that, “This Court has laid down that non compliance of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 or Order 7 Rule 11 CPC. Defect in verification of the election petition or the affidavit accompanying the election petition has been held to be curable and not fatal.” 13. Then the learned counsel had referred to the decision of the Apex Court reported in _**Vijay Laxmi Sadho v. Jagdish (AIR 2001 SC 600)**_ . There also the Court held that the defects in verification is something which is curable. Thereafter, the learned counsel referred to the decision of the Apex Court reported in _**Vidyawati Gupta v. Bhakti Hari Nayak (2006 SAR(Civil) 257**_ ). There the Court held that so far as the pleadings is concerned any omission in respect of a verification will not render the plaint invalid and it is a curable one. ## **CRP NO. 440 of 2007** -:9:- 14. So, from the authorities cited above which had directly dealt with the verification of the pleadings and some mistake committed therein it is seen that it is a curable defect and it cannot be a ground to throw out the election petition on the technical ground. So, the learned Munsiff had considered the question and held that it is a curable defect and is not fatal to the maintainability of the petition. So from these discussions I hold that the election petition is not to be thrown out at the threshold for strict non-compliance of Order 6 Rule 15(4) or for some curable defect in the election petition regarding verification. Therefore the order passed by the learned Munsiff does not suffer from any serious infirmity and therefore the C.R.P. is dismissed. ## **M.N. KRISHNAN, JUDGE.** ul/-