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1996 Supreme(Ker) 284
Judges : P.K.BALASUBRAMANYAN
Meethian - Appellant
Versus
Poulose - Respondent
Case No : Election Petition No. 18 of 1996
Decided On : 08/12/1996
Advocates Appeared :
G. Janardhana Kurup, John K. George & N. Ramdas For Petitioner K. Ramakumar & Ramprasad Unni T. For Respondent
Headnote:
Election Petition - Legislative Assembly of Kerala - S.81(1) of the Representation of the People Act - Summary of Acts and Sections: The court discussed the authority of the Registry to return an Election Petition for curing defects, the fatal nature of defects arising from non-compliance with Ss.81, 82, or 117 of the Act, and the requirement for a proper prayer in the Election Petition. The court held that defects not fatal to the Election Petition could be cured, but defects arising from non-compliance with specific sections of the Act would render the Election Petition fatal. The court also emphasized the importance of true copies of the original petition and the necessity for a proper prayer in the Election Petition.
Fact of the Case:
The Election Petition was filed relating to the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency. The Election Petition contained certain defects, and the Registry returned it for curing the defects. The respondent raised preliminary objections regarding the presentation of the petition and the prayer in the copy served on the respondent. The court framed preliminary issues and proceeded to answer them one by one.
Finding of the Court:
The court found that the Election Petition did not contain a proper prayer for declaring the election of the respondent void, and the defects in the prayer were deemed fatal to the maintainability of the Election Petition. As a result, the Election Petition was dismissed at the preliminary stage.
Issues: The court addressed several issues, including the authority of the Registry to return an Election Petition for curing defects, the fatal nature of defects arising from non-compliance with specific sections of the Act, the requirement for a proper prayer in the Election Petition, and the true copies of the original petition.
Ratio Decidendi: The court held that defects not fatal to the Election Petition could be cured, but defects arising from non-compliance with specific sections of the Act would render the Election Petition fatal. The court also emphasized the importance of true copies of the original petition and the necessity for a proper prayer in the Election Petition.
Final Decision: The Election Petition was dismissed at the preliminary stage, and the parties were ordered to suffer their respective costs. The Registrar was directed to intimate the substance of the decision to the Election Commission and the Speaker of the Kerala Legislature and to send an authenticated copy of the decision to the Election Commission as required by S.103 of the Act.
Balasubramanyan, J.
This Election Petition relating to the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency was filed in this Court on 21.6.1996. The results of the election having been announced on 5.8.1996 it was within time. The Election Petition contained a prayer for 'setting aside the election by the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency' . The office noted certain defects in the Election Petition and returned the Election Petition for curing the defects the same day. The following defects were noted.
1. Description of Annexures is incomplete and wrong.
2. English translation of Annexures not filed.
3. Exhibits are not legible.
4. It may be clarified whether the relief sought is in accordance with the R.P. Act.
5. Chalan number may be shown correctly.
Some of the defects were cured, the relief claimed was modified and the Election Petition was re-presented on 27. 6.1996 with an assurance that English translation of Annexure I will be produced at the time of evidence. 27.6.1996 was obviously beyond the time fixed for the filing of an Election Petition under S.81(1) of the Representation of the People Act. On 27.6.1996, the office again returned the Election Petition with the endorsement 'defects subsist. Returned'. The Election Petition was re-presented the same day with an endorsement 'defect cured and re-presented'. It is not possible to find out from the relevant endorsements what exactly were the defects that were cured while originally re-presenting the Election Petition and what were the defects that subsisted which were cured when the Election Petition was returned once again. Thereafter, the Election Petition was posted on 1.7.1996 before the judge assigned by the Chief Justice for exercise of jurisdiction under the Act. The learned judge ordered issue of summons to the respondent in terms of R.210 of the Rules of the High Court of Kerala. The Election Petition was posted to 23.7.1996. On 23.7.1996 the respondent appeared through counsel and sought to raise a preliminary objection regarding the presentation of the petition and on the basis of the copies of the Election Petition served on the respondent. The Election Petition was adjourned to 29.7.1996. On 29.7.1996, one of the copies of the Election Petition served on the respondent was produced before Court by counsel for the respondent who also submitted that he would be making a formal application for marking that copy in evidence. According to counsel for the respondent the copy served on him was not a true copy of the original and going by the prayer in the copy served on the respondent, it had to be taken that no proper Election Petition had been filed within the time prescribed by S.81 of the Act. In the copy so served on the respondent and produced before me on 29.7.1996, the main prayer read as follows:
"Declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency". He also adopted the stand that the Registry of High Court had no authority to return the Election Petition for curing the defects and that in any event in the present case the Election Petition was re-presented after the period fixed in S.81(1) of the Act and consequently the Election Petition must be held to be out of time. He also submitted that Annexure-III was not signed as true copy and in Annexure III-A there was no endorsement or certification that it was a true copy of the original. Since counsel for the Election Petitioner wanted time to consider the position emerging from the aspects pointed out by counsel for the respondent and since the senior counsel appearing for the respondent was slightly indisposed, the Election Petition was posted to 30.7.1996 for consideration of the preliminary objections. On 30.7.1996, in the light of the submissions, in discussion with counsel on either side six preliminary issues were framed and arguments
