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MAJEED, S/O.LATE MOOSA versus NAJMUDHEEN, S/O.LATE MOOSAKUTTY

High Court of Kerala

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MAJEED, S/O.LATE MOOSA v. NAJMUDHEEN, S/O.LATE MOOSAKUTTY - WP(C) No. 30296 of 2006(F) [2007] RD-KL 478 (8 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 30296 of 2006(F)

1. MAJEED, S/O.LATE MOOSA,
... Petitioner

Vs

1. NAJMUDHEEN, S/O.LATE MOOSAKUTTY,
... Respondent

For Petitioner :SRI.BABU S. NAIR

For Respondent :SRI.T.KRISHNAN UNNI

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :08/01/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... W.P.(C)No.30296 OF 2006 ............................................

DATED THIS THE 8th DAY OF JANUARY, 2007



JUDGMENT

Petitioner is the successful candidate in the election conducted to Ward No.2 of Vettathoor Grama Panchayat in Malappuram District. Respondent filed O.P (election)8 of 2005 before Munsiff Court, Perinthalmanna to set aside the election of the petitioner. Election petition was filed on 24.10.2005. On 15.2.2006, respondent filed Ext.P2 application under Order VI Rule 17 to amend the election petition to incorporate an additional ground to set aside the election, on the ground that petitioner suppressed relevant facts in Form 2A filed along with nomination. Petitioner filed Ext.P3 objection contending that in view of Section 93(4) of the Panchayat Raj Act petitioner is not entitled to get the petition amended and this ground was available to the petitioner even at the time when the election petition was filed and he did not give sufficient reasons why it was not then pleaded and under Section 89 of Panchayat Raj Act election petition is to be filed within the prescribed WP(C)30296/2006 2 period and by invoking order VI Rule 17 respondent is not entitled to set up an additional ground after the expiry of that period. Under Ext.P4 order, learned Munsiff allowed the application and permitted respondent to amend the election petition. It is challenged in this petition filed under Article 227 of Constitution of India.

2. Learned counsel appearing for petitioner and the respondent were heard.

3. The argument of the learned counsel appearing for the petitioner was that under Sub section 4 of Section 93 of Panchayat Raj Act court is not competent to allow an amendment petition which will have the effect of introducing particulars of a ground to set aside election not previously alleged in the petition and therefore Ext.P2 application should not have been allowed. Learned counsel argued that even if Order VI Rule 17 of Code of Civil Procedure as such is applicable, under Section 89(1) of Kerala Panchayat Raj Act, an election petition is to be filed within 30 days from the date on which the returned candidate was elected and respondent is not entitled to introduce an WP(C)30296/2006 3 additional ground, after expiry of the said 30 days period and therefore Ext.P4 order is to be quashed. Reliance was placed on the decision of the Apex Court in K.D.Deshmukh V. Amritlal Jayaswal (1993 Supp(1) SCC 50) and a decision of the learned Single Judge of this court in Azeez V. Krishnan(1996(2) KLT 540).

4. Learned counsel appearing for respondent argued that Sub section 4 of Section 93 restricts the power of the court to allow an amendment of election petition only in respect of corrupt practice and the trial court is competent to allow the amendment as provided under Order VI Rule 17 of the Code in respect of all other grounds provided under the Act and therefore Ext.P4 order cannot be challenged on the ground of violation of provisions of subsection 4 of Section 93. It was also argued that under the amended Rule 17 of Order VI of the Code, trial court has wide discretion to allow an amendment for the purpose of determining the real dispute in controversy between the parties. It was also argued that it is for the court to exercise the discretion, if it is satisfied that in spite of due diligence petitioner could not have raised the matter WP(C)30296/2006 4 before the commencement of the trial, and the fact that petitioner did not specifically state that fact in the application for amendment is not a ground to interfere with Ext.P4 order. Learned counsel also argued that by Ext.P4 order, learned Munsiff has only allowed the application and the question whether that ground is available in view of the failure of petitioner to take up the ground within the period, is a matter to be decided by the court in the election petition and not at the time when amendment application was considered and ultimately if respondent was not allowed to amend the election petition and in appeal appellate court interferes with that order, a remand will be warranted and by Ext.P4 order that contingency was avoided and exercising the extra ordinary jurisdiction of this court under Article 227 of Constitution of India, Ext.P4 order may not be interfered with.

5. Sub section 4 of Section 93 of Kerala Panchayat Raj Act is applicable only in respect of an amendment sought for with regard to corrupt practice. On all other grounds, power under Order VI Rule 17 is available to the learned Munsiff. With regard to the WP(C)30296/2006 5 ground of corrupt practice, the power under Order VI Rule 17, is subject to the restriction imposed thereunder. Therefore if the amendment sought for is in respect of a ground not under corrupt practice, the application has to be decided as provided under Rule 17 of Order VI without the restriction imposed under sub- section 4 of Section 93. Therefore Ext.P4 order cannot be challenged on the basis that it violates the provisions of Section 93(4) of the Act.

6. Apex Court in Deshmukh's case(supra) was considering an additional ground sought to be introduced under Section 100(1)(d) of Representation of People Act. In that case election was originally challenged only under Section 100(1)(c) of the Act. On the facts of that case, it was held that it was wrong on the part of the High Court to allow the application for amendment relegating the question whether the claim is barred or not to be decided at the time of disposing the election petition. A learned Single Judge of this court in Azeez's case(supra) did not interfere with the order of the trial court disposing an application for amendment of the election petition introducing an WP(C)30296/2006 6 additional ground that the successful candidate had arrears due to KSEB, when that case was not originally pleaded.

7. The amendment sought for in Ext.P2 does not relate to the corrupt practice. Hence learned Munsiff has to decide the application, as provided under Rule 17 of Order VI, without the restriction imposed under Sub section 4 of Section 93. Rule 17 enables learned Munsiff to exercise wide discretion, to allow the amendment if it is necessary for a just decision of the case. Though it was argued by learned counsel appearing for petitioner that as an election petition is to be filed within 30 days from the date on which the returned candidate was declared elected as provided under Section 89, the ground to set aside an election in the election petition should have been raised within 30 days and therefore the amendment application cannot be allowed after expiry of the said period. That is a question which has to be decided by the court after evidence. As argued by learned counsel appearing for the respondent, if this court is to interfere with the discretion exercised by the learned Munsiff at this WP(C)30296/2006 7 stage and in the appeal appellate court interferes and finds that the amendment should have been allowed then it may warrant a remand of the election petition. Viewed from that angle, I do not find any reason to interfere with Ext.P4 order in exercise of the extra ordinary jurisdiction of this court under Article 227 of the Constitution of India. Petitioner is entitled to file an additional counter raising the defence including a plea of bar of limitation and learned Munsiff has to decide that question in the election petition. Petition is dismissed.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


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