IMPORTANT POINT
Concerned Judge can permit curing of defects but not the Registry.

JUDGMENT

SANJAY KISHAN KAUL, J.

The facts:

1. The democratic process of holding State elections was carried out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the appellant contested from the Koduvally Assembly Constituency as an independent candidate. The results were declared on 19.5.2016 and the appellant, having obtained the highest number of votes was declared as elected.

2. Respondent Nos.1 & 2 who were stated to be the voters from the same constituency filed election petitions on grounds of corrupt practices. The challenge to the election of the appellant was laid under Section 123(4) of the Representation of People Act, 1950 (hereinafter referred to as the ‘said Act’) alleging that the appellant made false allegations against respondent No.3, a candidate, knowing the same to be false. Section 123(4) of the said Act reads as under:

“123. Corrupt practices. – The following shall be deemed to be corrupt practices for the purposes of this Act:

xxxx xxxx xxxx xxxx xxxx

(4) The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.”

3. The election petition is stated to have been filed on 1.7.2016 in which certain defects are stated to have been pointed out. It is the case of the appellant that the petition was returned from the Registry and was re-presented only on 11.7.2016 by which time the prescribed period of limitation of 45 days to file such an election petition had expired on 3.7.2016 and, thus, the election petition was time barred. It is also the say of the appellant that the Registry had no power to return the election petition or permitting curing of any defects. Even on representation, the petition is stated to have been defective and was placed before the learned single Judge of the Kerala High Court, who by the order dated 18.7.2017 granted one week’s time to respondent Nos.1 & 2 to cure the defects. It is thereafter that notice was issued to all the respondents in the election petition including the appellant herein.

4. On account of the aforesaid two grounds and more the appellant moved an application for summary dismissal of the election petition under Section 86 of the said Act read with Section 151 and Order VI Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’). The relevant provision, being Section 86 (1) of the said Act, reads as under:

“86. Trial of election petitions. – (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.”

5. The objections filed by the appellant were, however, dismissed vide impugned judgment dated 16.6.2017, by the learned single Judge of the Kerala High Court against which the present Special Leave Petition has been filed.

Appellant’s contentions:

6. Mr. Rajeev Dhawan, learned Senior Advocate appearing for the appellant referred to the office notice sheets of the High Court to canvas his case of the petition being beyond time. He referred to the fact that while the election petition was stated to have been presented on 1.7.2016, it was also mentioned therein “E.P. filed: 11.07.16”. The date of issue of summons is 9.8.2016. He also referred to the noting where eight defects were enumerated and below that, there was an endorsement of the counsel appearing for the original petitioner to the effect that “defect cured” without any date and an endorsement of the Deputy Registrar dated 7.7.2016. The conclusion, he sought to derive from these endorsements was the presentation and re-presentation of the petition before the Registr