B.ABDULLA v. JOSE

O.P.(C) No.981 of 2012 2Divergent answers come from Mr.D.Krishna Prasad, Advocate onbehalf of the petitioner and Mr.Jose J Matheikel, Advocate onbehalf of the first respondent for these questions. 2. The petitioner is the returned candidate from WardNo.XIII of Kallar Grama Panchayat whose election has beencalled in question by the first respondent. The first respondentlost the election by a margin of two votes and has filed theelection petition under Section 87 of the Kerala Panchayat RajAct, 1994. The first respondent averred in the election petitionthat 7 votes cast in favour of the petitioner are liable to beeschewed on account of double voting. The names of the sevenvoters who allegedly indulged in double voting have been wellfurnished in the election petition. Reliance is placed on Section76(3) of the Kerala Panchayat Raj Act, 1994 (hereinafterreferred to as 'the Act') which is extracted hereunder:-76. Right to vote: (1) ..........(2)..............(3)No person shall vote at a general election in morethan one constituency of the same level, and if a person O.P.(C) No.981 of 2012 3votes in more than one such constituency, his votes in allsuch constituencies shall be void. Reliance is also placed on Section 102(1)(d)(iv) of the Act whichis extracted hereunder:102.Grounds for declaring election to be void: (1)Subject to the provisions of sub-section (2), if the court isof opinion - (a) ................(b)..................(c)..................(ca)..................(d)that the result of the election, in so far as itconcerns a returned candidate, has been materiallyaffected - (i).................(ii).................(iii).................(iv)by any non-compliance with the provisions of thisAct or of any rules or orders made thereunder, the courtshall declare that the election of the returned candidate tobe void.The election petition seeks to declare that the election of thepetitioner is void and that the first respondent is the duly electedcandidate from the ward in question. O.P.(C) No.981 of 2012 43. The election petition was filed on 25.11.2010within the permissible period of 30 days from 27.10.2010 thedate on which the petitioner was declared elected. The petitionerfiled a statement of recrimination on 7.2.2011 as provided underSection 99 of the Act challenging the rival claim of the firstrespondent. The first respondent thereafter filed an applicationon 21.1.2012 seeking to amend the election petition. Thepurpose of the amendment was to incorporate the name of onemore voter in the election petition who had allegedly indulged indouble voting. The first respondent called in aid Section 94 ofthe Act to sustain the plea for amendment of the electionpetition. The petitioner filed an objection to the application foramendment contending inter alia that it is impermissible underthe Act. The petitioner contended that an amendment of anelection petition could be resorted to only when the election ischallenged on corrupt practice. Heavy reliance was placed onSection 93(4) of the Act which specifically allows particulars ofcorrupt practice to be amended. The court below has allowed O.P.(C) No.981 of 2012 5the application for amendment which is impugned by thepetitioner in this original petition. 4. The petitioner strongly contends that the onlyenabling provision for amendment of the election petition isSection 93(4) of the Act. He asserted that the same deals withcorrupt practice only and that Section 120 of the Act whichenumerates corrupt practice does not take in double voting. Thepetitioner relied on the following decisions to highlight that anelection contest is purely a statutory proceeding:i)Kaveri Amma v. Devaki (1996 (2) KLT 189)ii)Anandavalli v. Ajitha (2001 (3) KLT 758)iii)Omana v. Sussi Kunjachan (2003 (1) KLT 525)The contention of the petitioner in short is that the court possessno common law power as in an action at law or a suit in equity toenable amendment of an election petition. 5. The first respondent points out that the provisionsof the Code of Civil Procedure, 1908 can be called in aid andrelies on Section 94 of the Act which is as follows:- O.P.(C) No.981 of 2012 694. Procedure before court (1) Subject to the provisionsof this Act and of any rules made thereunder, everyelection petition shall be tried by the court, as nearly asmay be, in accordance with the procedure applicableunder the Code of Civil Procedure, 1908 (Central Act 5 of1908) to the trial of suits: Provided that the court shall have the discretion torefuse, for reasons to be recorded in writing, to examineany witness or witnesses if it is of the opinion that theevidence of such witness or witnesses is not material forthe decision of the petitioner or that the party tenderingsuch witness or witnesses is doing so in frivolous groundor with a view to delay the proceedings. The first respondent also relies on the decision inK.Muraleedharan v. V.V.Raghavan (1999 (2) KLT 377)wherein amendment of an election petition was held permissible.The petitioner alertly points out that the said decision dealt withan election petition on the ground of corrupt practice only. 6. A distinction between 'material facts' and'particulars' has to be borne in mind while considering anapplication for amendment of the election petition. 'Material O.P.(C) No.981 of 2012 7facts' are primary or basic facts which must be pleaded insupport of the case set up to prove cause of action. 'Particulars'on the other hand are details in support of material facts pleadedby the party. They amplify, refine and embellish material factsby giving distinctive touch to the basic contours of a picturealready drawn so as to make it full or more clear. A referencein this connection to the following decisions are apposite. i)Virender Nath Gautam v. Satpal Singh and others (2007 (3) SCC 617)ii)Ram Sukh v. Dinesh Aggarwal [2009) 10 SCC 541]The 'material fact' that there has been a double voting inviolation of Section 76(3) exposing the election to a challengeunder Section 102(1)(d)(iv) of the Act is already pleaded. Onlythe 'particular' that one more voter has indulged in double votingis sought to be incorporated by way of amendment. The sameonly amplifies the material fact and does not introduce analtogether different cause of action. O.P.(C) No.981 of 2012 87. Bhim Sen v. Gopali and others (Vol. XXII ELR288) is a case where election petition was filed alleging that voidvotes were received by the returning officer. The number of thevoid votes so counted was sought to be altered by way of anamendment to the election petition. Mr.Justice Gajendragadkarspeaking for the Bench held that the amendment must betreated merely as one for clarification of pleadings. It wasfurther held therein that the jurisdiction of an election court toamend the pleading is as extensive as that of a civil court.Virender Nath Gautam's case referred to supra also dealt with achallenge to an election on the ground of improper reception ofvoid votes and also double voting. It was held therein that theelection petition can be permitted to be amended or amplified toset forth the full particulars. 8. Section 94 of the Act is in pari materia with Section87 of the Representation of the People Act, 1950 which enablesthe Code of Civil Procedure to be called in aid. The Supreme O.P.(C) No.981 of 2012 9Court in Ram Sukh's case cited supra after referring to thestatutory provisions observed as follows:-Undoubtedly, by virtue of Section 87 of the Act, theprovisions of the Code applied to the trial of an electionpetition and, therefore, in the absence of anything to thecontrary in the Act, the court trying an election petitioncan act in exercise of its power under the Code, includingOrder VI Rule 16 and Order VII Rule 11 of the Code.(emphasis supplied) It is preposterous to contend that the power to amend can beexercised only when the election is sought to be called inquestion on the ground of corrupt practice. The power to amendcan be exercised in all election petitions provided the samerelates to particulars and not material facts. 9. The petitioner further contended that the trial ofthe election petition should be deemed to have commenced onthe date fixed for appearance in court. My attention was drawnto Explanation to Section 93(3) of the Act to buttress thiscontention. The petitioner argued that the trial has thus O.P.(C) No.981 of 2012 10commenced in terms of the Act even though no witnesses havebeen examined on either sides. Therefore an application foramendment cannot at any rate be allowed as per the proviso toOrder VI Rule 17 of the Code of Civil Procedure. I should bear inmind that this statutory provision is not an absolute embargo toallow amendment of pleadings at all times. The first respondenthas pleaded in the application for amendment about theomission to furnish the name of one more voter. The avermentspoint out that there was omission notwithstanding the exerciseof due diligence earlier. The amendment of the election petitionto furnish the name of one more voter who had indulged indouble voting is in tune with the Code of Civil Procedure as well.10. The petitioner lastly contends that an electioncould be called in question only within a period of 30 days fromthe date of declaration of result. Reliance is placed on Section89 of the Act which prescribes a time limit to question theelection under Sections 102 and 103 of the Act. The petitionerdraws my attention to the fact that the application for O.P.(C) No.981 of 2012 11amendment was filed well beyond the period of 30 days. True itis that the application for amendment was filed almost 15months after the declaration of the result. But the amendmentproposed is not in relation to a 'material fact' pleaded on whichthe cause of action is founded. The election petition continues tobe under Section 76(3) read with Section 102(1)(d)(iv) of theAct on the ground of double voting. The ground on which theelection is sought to be declared as void continues to be thesame and is not altered by way of amendment. The amendmentdoes not give rise to a new cause of action which is sought to beintroduced after the period of limitation. There is no question ofany vested right being taken away by the proposed amendmentas is urged by the petitioner. I am fortified in this view by thejudgment in Raj Narain v. Indira Nehru Gandhi [(1972) 3SCC 580] which still holds the field. The order allowingamendment of the plaint to include the name of one more voterwho had allegedly indulged in double voting is legal and valid. O.P.(C) No.981 of 2012 12There is no error of jurisdiction in the orderimpugned. The original petition fails and is dismissed. No costs. V.CHITAMBARESH Judge.nj.