Whether an election petition filed to set aside the election under Section 102(1)(d)(i) of Kerala Panchayat Raj Act can be treated as an election petition to set aside the election under Section 102(1)(ca)? Whether without pleading as to how Form 2A furnished under Section 52(1A) of Kerala Panchayat Raj Act is fake, a petitioner is entitled to adduce evidence to prove that the details furnished are fake and even if such evidence is adduced, whether court can set aside the election based on that evidence without pleading?

2. First respondent filed an election petition before Munsiff Court, Hosdurg challenging the election of petitioner to Ward No.XIII of Ballal Gama Panchayat. Petitioner was declared the elected candidate, on the election conducted on 27.9.2005. First respondent was the only other candidate. Election petition was filed to set aside the election on the ground Section 102(1) (d) (i) and 102(1) (d) (iii). The learned Munsiff under Ext.P4 order, on the evidence of PWs 1 and 2, RW1 and Ext.A1 to A3 and Ext.X1 to X3(a) set aside the election under Section 102(1)(d)(i) holding that nomination of the petitioner was improperly accepted. First respondent was declared the duly elected candidate. Though petitioner challenged the order before District Court, Kasargod in C.M.A. 32 of 2006, learned District Judge on re-appreciation of evidence confirmed Ext.P4 order and dismissed the appeal under Ext.P6 order. It ischallenged in this petition filed under Article 227 of Constitution of India.

3. Learned senior counsel appearing for petitioner argued that there was no pleading that Form 2A furnished by the petitioner was fake. It was pointed out that the challenge against Form 2A submitted by the petitioner as per the pleadings in the election petition was that petitioner did not show properties allegedly owned by her in Ballal Panchayat area, Kozhikode and other districts and she has not filled up some other columns. There was no pleading that petitioner was having any cash or Bank deposit and they were not mentioned in Form 2A or was suppressed. It was argued that without pleading and evidence, trial court and the Appellate Court relying on the evidence of petitioner as RW1, found that she was having an account in a Service Co-operative Bank and a deposit of Rs.100/- and that fact was not disclosed in Form 2A and therefore Form 2A is not complete and as a result petitioner should have been disqualified. For that reason it was found that her nomination paper was improperly accepted and consequently set aside the election as provided under Section 102 (1)(d)(i) of the Act. As first respondent was the only other candidate she was declared as the elected candidate. The learned senior counsel argued that under Section 91(a) of the Act details of the material fact which is to be relied on to set aside the election must be pleaded concisely and if the election is to be set aside on the ground that Form 2A does not contain the details of Bank deposit it should have been specifically pleaded and in the absence of pleadings courts below were not justified in looking into the evidence of RW1 and that too in cross-examination when even the election petitioner when examined as PW1 had no such case to set aside the election on that ground. Reliance was placed on the decision of the Apex Court in T.H. Musthafa v. M.P. Varghese (1999 (8) SCC 692) and of this Court in P.C. George v. Returning Officer & Ors. (1987 (2) KLT 842) and Balan v. Manoharan Master (1988 (1) KLT 717). It was argued that petitioner was called upon to defend the election petition to set aside the election petition on the grounds of improper acceptance of nomination paper and not on the ground that details furnished in Form 2A was fake and Form 2A was not challenged on the ground that petitioner did not disclose any bank deposit and without necessary pleadings the election cannot be set aside on that ground. It was argued that if there is any omission in Form 2