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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S.DIAS, J.
Basil George, S/o. George – Appellant
Versus
Shaji Salim @ Shaji S/o.P.M.Salim – Respondent
OP(C) No. 1311 of 2022
Decided on : 11-08-2022
Code of Civil Procedure, 1908 - Order I Rule 10 (2) - Kerala Municipality Act, 1994 - Section 175, 165, 163, 165, 166, 168, 169, 175 and 188 - Election petitions - Presentation of petitions - Parties to petition - Relief that may be claimed by petitioner - Trial of election petitions - Recrimination when seat claimed - Abatement or substitution on death of respondent - No one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86 (4) of Act. (Para 13).
Findings of the Court: When in an election petition in addition to declaration that election of returned candidate is void a further declaration is sought that any candidate other than returned candidate has been duly elected, Sec. 97 enables returned candidate or any other party to 'recriminate' i.e. to give evidence to prove that election of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election - If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined as a party to petition then, by virtue of his position as a party, he would also be entitled to 'recriminate' under Sec. 97 - Surely such a construction of statute would throw doors of an election petition wide open and convert petition into a 'free for all' fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving goal contemplated by Sec. 86 (6) of Act that trial of election petition should be concluded in six months. It is just as well to remember that 'corrupt practice' as at present defined by Sec. 123 of Act is not confined to giving of a bribe but extends to taking of a bribe too and, therefore, number of persons who may be alleged to be guilty of a corrupt practice may indeed by very large, with consequence that all of them may possibly be joined as respondents.
Result: Petition dismissed.
JUDGMENT :
Can an elector seek impleadment in an election petition is the question that arises for consideration?
2. The petitioner had exercised his franchise in the election in Ward No.23 of the Perumbavoor Municipality. The 1st respondent, a contesting candidate, has filed O.P. (Election) No.2 of 2021 before the Court of the Munsiff, Perumbavoor, to set aside the election of the returned candidate and to declare him as the returned candidate. The petitioner has learnt through his friend that the 1st respondent has also indulged in corrupt practices, by including voters list who are not permanent residents of the ward and double voting; therefore, he is not entitled to be declared the returned candidate. Hence, the petitioner filed I.A.No.8 of 2021 to get himself impleaded as the additional 5th respondent in the election petition, as provided under Section 175 of the Kerala Municipality Act, 1994 (for brevity referred to as ‘Act’). The 1st respondent has objected to the above application. The court below has, by the impugned Ext.P3 order, dismissed Ext.P2 application, holding that Section 165 of the Act permits only contesting candidates to be made parties in an election petition. As the petitioner is not a contesting candidate, Order I Rule 10 (2) of the Code of Civil Procedure, 1908, has no application. A co-joint reading of Sections 165 and 175 of the Act enables a third party to be impleaded, when any candidate other than the returned candidate seeks to get declared elected. The impugned Ext.P3 order is passed without a proper understanding of the provisions of the Act. Hence the original petition.
3. Heard; Sri.Karol Mathews Sebastian, the learned counsel appearing for the petitioner.
4. The 1st respondent has filed O.P (Election) 2 of 2021 to set aside the election of the returned candidate and declare him as the returned candidate.
5. Chapter X of the Kerala Municipality Act, 1994, deals with disputes regarding elections. The relevant provisions in Chapter X of the Act for deciding the case at hand are Sections 163, 165, 166, 168, 169, 175 and 188, which are extracted below for convenience.
165. Presentation of petitions.- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in section 178 and section 179, to the Munsiff’s Court by any candidate at such election or any elector within thirty days from, but not earlier than, the date of election of the returned candidate.
Explanation.- In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition”.
165. Presentation of petitions.- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in section 178 and section 179, to the Munsiff's Court by any candidate at such election or any elector within thirty days from, but not earlier than, the date of election of the returned candidate.
Explanation.- In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
166. Parties to the petition.- A petitioner shall join as respondents to his petition,-
(a) where the petitioner, in addition to claiming a declaration that the elect
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