Pathumma Ummar, Aged 40 vs Shiny Jolly, Aged 38, W/O.Jolly on 14 July, 2011

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 305 of 2011()

1. PATHUMMA UMMAR, AGED 40,

... Petitioner

1. SHINY JOLLY, AGED 38, W/O.JOLLY,

... Respondent

For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)

For Respondent :SRI.P.FAZIL

The Hon'ble MR. Justice THOMAS P.JOSEPH

Dated :14/07/2011

O R D E R

THOMAS P. JOSEPH, J.

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C.R.P. No.305 of 2011

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Dated this the 14th day of July, 2011.

ORDER

Respondent in Election (O.P.) No.13 of 2010 of the court of learned Munsiff, Muvattupuzha is the petitioner before me challenging the preliminary finding entered by the learned Munsiff (Election Tribunal) that the Election (O.P.) (for short, "the petition") is maintainable.

2. Petitioner who is the elected candidate challenged maintainability of the petition filed by the respondent, defeated candidate mainly on two grounds, that there is no proper verification of the petition as required under Section 91 of the Kerala Panchayat Raj Act (for short, "the Act") and Order 6 Rule 15 of the Code of Civil Procedure (for short, "the Code") and secondly, that the petition does not disclose any cause of action. There was also an objection that the petition was not presented by the respondent in person to the learned Munsiff which ofcourse learned Munsiff after referring to the records found is not correct in that petition was presented to the learned Munsiff in person by the respondent. On the other two grounds referred above, learned Munsiff found against petitioner and held that the petition is maintainable. Learned counsel for petitioner contends that findings on the above two preliminary objections are not correct. Learned counsel pointed out that it is from the impugned order that petitioner learnt that in the verification portion of the petition the place of CRP No.305/2011

verification is added but, a copy of the petition given to the petitioner does not mention the place of verification. Learned counsel has invited my attention to Annexure-I, copy of petition served on petitioner. It is also submitted by learned counsel that if at all the place of verification is written in the petition that can only be an interpolation after the petition was filed which cannot be taken into account. As regards alleged absence of cause of action in the petition is concerned, it is contended that in the absence of specific mention regarding cause of action the petition is not maintainable. Reliance is placed on the decision in Laxmi Kant Bajpai v. Haji Yaqoob and others ((2010) 4 SCC 81).

3. In response, learned counsel for respondent contended that there was no case for petitioner at any point of time the matter was argued before learned Munsiff that there was any such interpolation in the verification portion of the petition and hence the belated argument cannot be sustained. It is also contended by learned counsel that even if it is assumed that copy of petition given to the petitioner did not contain place of verification, it is not fatal in view of Section 89(2) of the Act and reliance is placed on the decision in T.Phungzathang v. Hangkhanlian and others ((2001) 8 SCC 358). So far as absence of specific averment regarding cause of action is concerned, learned counsel has stated that question whether respondent has a CRP No.305/2011

cause of action has to be discerned from a whole reading of the petition and not by truncating it and looking into whether any particular paragraph is incorporated in the petition referring to the cause of action.

4. Section 91(1)(c) of the Act states

" the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the verification of pleadings".

Reference has to be made to the provisions of Order 6 Rule 15 of the Code. Rule 15(3) of the said Order states

"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".

5. Now the contention is that the petition did not, in its verification portion mention the place at which respondent had signed the petition. Learned Munsiff has observed from the records that verification in the petition read as follows:

"I, ....................... above named petitioner do CRP No.305/2011

hereby declare at Moovattupuzha on 24.11.2010 that statements made in paragraphs 1 to 6 and 18 to 20 are true to the best of my knowledge and averment in paragraphs 7 to 17 are true to the best of my

knowledge and upon information received and believed to be true".

No doubt, going by the petition presented before the learned Munsiff there is proper verification complying with Section 91(1)(c) of the Act and Order 6 Rule 15 of the Code. I have been taken through Annexure-I, copy of the petition served on petitioner where, the place and date of signing the statement is not mentioned . According to the learned counsel, two things emerge from the same - either the place of verification found in the petition is a result of interpolation after the petition was filed before learned Munsiff or, there is no supply of a true copy of the petition to the petitioner as required under Section 89 (2) of the Act.

6. The said provision says that "every election petition shall be accompanied by as many copies thereof as there 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". In T.Phungzathang v. Hangkhanlian and others (supra) referring to Section 83(1) of the Representation of the People Act and Rule 94A of the Conduct of Elections Rules it is held that if the affidavit is in the prescribed form, mistake in CRP No.305/2011

verification portion thereof cannot be a ground for summary dismissal of the election petition. The import of the issue "true copy" was discussed and explained.

7. The question whether as learned counsel for petitioner now urges there was any interpolation in the verification portion of the petition after it was presented before the learned Munsiff is not a matter which can be decided at this stage. It requires evidence. That could be done only at the trial stage of the proceeding. Therefore, question whether petition as presented before learned Munsiff contained the place of verification or, it was subsequently inserted or, that as the learned counsel for respondent contended the mistake in not mentioning place of verification was noted even before petition was presented before the learned Munsiff and accordingly the original was corrected are matters which learned Munsiff has to decide in the course of trial. Therefore, the question of maintainability raised on the ground of lack of proper verification has to await ultimate decision of the learned Munsiff.

8. So far as second contention based on the lack of cause of action in the petition is concerned, learned counsel has placed reliance on the decision in Laxmi Kant Bajpai v. Haji Yaqoob and others (supra). There it was held that petition must disclose all relevant facts and circumstances relied upon by the petitioner (the person challenging the election) and definite cause of action in the absence of which petition is liable to be dismissed.

CRP No.305/2011

9. True, in Annexure-I, petition no separate paragraph precisely stating about the cause of action is not provided. But, I must understand what is meant by "cause of action". It means the bundle of facts which give a right of action. It is not the requirement of law that there must be a specific paragraph referring to the cause of action in a concise form. The question whether there is a cause of action must be discerned by a reading of the petition as a whole and not by truncating it. Here, respondent has stated the material facts on which she has based her petition and has sought reliefs based on that. Those are the material facts which respondent relies and regarding which she has also sworn an affidavit. Therefore, the contention that petition lacks cause of action and hence it is liable to be rejected at the threshold, I am afraid, cannot be accepted. Nor does that argument get the support from the decision learned counsel has referred. With all respect to the decision I may say that the point discussed there is not the one that learned counsel for petitioner has argued. The decision only said that the person challenging the election must disclose in the petition all relevant facts relied upon by him.

10. In the view of what I have stated, finding of learned Munsiff regarding sufficiency of verification and maintainability of petition on that ground has to go and that question has to be relegated to the stage of enquiry for appropriate decision. However contention raised by learned counsel for petitioner that Election (O.P.) has to fail due to lack of cause of action cannot be accepted and there is no reason to interfere with that part of the finding of CRP No.305/2011

learned Munsiff.

Resultantly this civil revision is disposed of in the following lines: i. So far as the contention regarding lack of proper verification of Election (O.P.) No. 13 of 2010 is concerned, the finding of learned Munsiff is set aside and that question is relegated to the stage of enquiry for appropriate decision.

ii. The finding of learned Munsiff that the petition discloses a cause of action and hence maintainability of Election (O.P.)No.13 of 2010 cannot be challenged on that ground, is confirmed. I.A.No.1466 of 2011 will stand dismissed.

THOMAS P.JOSEPH,

Judge.

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