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High Court of Judicature at Madras
V. DHANAPALAN
A. Lazar & Another
Versus
M.K. Azhagiri & Others
Application Nos.188,2502,2639 & 3019 of 2011 in E.P.No.2 of 2009
Decided on : 29-09-2011
ELECTION PETITION - AMENDMENT OF CAUSE TITLE - MIS-DESCRIPTION OF NAMES OF RESPONDENTS - WHETHER AMENDMENT PERMISSIBLE - REPRESENTATION OF THE PEOPLE ACT, 1951, SECTIONS 82, 86(1), 87, 112(3).
Fact of the Case:
The election petitioner filed an election petition challenging the election of the returned candidate. In the election petition, the names of the 11th and 7th respondents were wrongly mentioned as "S. Veerapandi" instead of "S. Veeradurai" and "K. Thangapandian" instead of "K. Thangapandi" respectively. The election petitioner filed applications seeking to amend the cause title of the election petition to correct the names of the 11th and 7th respondents. The returned candidate filed counter-applications seeking to dismiss the applications filed by the election petitioner.
Finding of the Court:
The Court held that the mis-description in the names of the 11th and 7th respondents was a curable defect and it was cosmetic in nature. The Court further held that the amendment sought by the election petitioner did not amount to impleading or bringing any new parties and that the identity of the 11th and 7th respondents was not disputed. The Court also held that the amendment was necessary to avoid technical objections and to ensure a fair trial of the election petition.
Issues: Whether the mis-description in the names of the 11th and 7th respondents was a curable defect.
Ratio Decidendi: The Court held that the mis-description in the names of the 11th and 7th respondents was a curable defect and it was cosmetic in nature. The Court further held that the amendment sought by the election petitioner did not amount to impleading or bringing any new parties and that the identity of the 11th and 7th respondents was not disputed. The Court also held that the amendment was necessary to avoid technical objections and to ensure a fair trial of the election petition.
Final Decision: The Court allowed the applications filed by the election petitioner and dismissed the counter-applications filed by the returned candidate.
1. While Application Nos.188 of 2011 and 2639 of 2011 have been filed by the election petitioner, praying to permit him to correct the description of the names of the 11th respondent as Veeradurai instead of Veerapandi and of the 7th respondent as Thangapandi instead of Thangapandian respectively in short and long cause title of the Election Petition and the pending applications, the Application Nos.2502 of 2011 and 3019 of 2011 have been filed by the returned candidate, praying to dismiss the Application Nos.188 of 2011 and 2639 of 2011 respectively.
2. Facts in Application No.188 of 2011 :
Applicant/election petitioner is substituted in the place of deceased petitioner in the election petition P.Mohan, by an order of this Court dated 06.09.2010 passed in O.A.No.1358 of 2009. The amendment has been carried out. He has also taken steps to serve the amended copy of the petition to the respondents. As far as the name of the 11th respondent in the election petition is concerned, it is mentioned as "S.Veerapandi" instead of "S.Veeradurai". Notice in the main Election Petition No.2 of 2009 has been served on the 11th respondent at the address at No.J-11-1, Tamil Nadu Housing Board Colony, 1st Cross Street, K.K.Nagar, Madurai. The 11th respondent has not entered appearance in O.A.No.1358 of 2009 and also he has not raised any plea. However, some of the respondents have raised a plea that the name of the 11th respondent has been wrongly described. Pursuant to the ordering of O.A.No.1358 of 2009, applicant has come on record as the person substituted in the place of deceased election petitioner. Hence, he is taking steps to correct the name of Veerapandi as Veeradurai, by filing Application No.188 of 2011.
3. First respondent/returned candidate has filed a counter, stating as follows :
3.1. The application to amend the Election Petition is devoid of merit and liable to be dismissed in limine, as the same is neither sustainable in law nor on merits. The petition for amendment of the Election Petition is not permissible and is therefore not maintainable. The defect in the Election Petition as filed by the original petitioner cannot be rectified by the applicant herein. The applicant is nonchalant in his approach in correcting the error made in the Election Petition and is indeed oblivious of the flippant allegations levelled against the first respondent.
3.2. Having got substituted in the case six months ago after the demise of Mr.Mohan and knowing full well of the details of the mistake apparent on the fact of the record, taking steps at a snail's pace only questions and doubts his sincerity in pursuing with the allegations levelled against the first respondent by the deceased contestant. The petition ought to have been framed impeccably by collecting exact details at the inception itself. The names compared are entirely two different names and had nothing to do with the name of the 11th respondent. Comparison of the names of different respondents will in no way justify the ignorance of the petitioner. It is obligatory on the part of the petitioner to know the names of the persons who had contested in the Parliament election when such allegation is made against a law abiding citizen like the first respondent.
3.3. Neither the petitioner nor the original petitioner can plead ignorance of the name of the 11th respondent as the same is widely published before the election and was part of the declaration by the Election Officer. Further, the correct name and exact address of the 11th respondent was conspicuously displayed in over 1200 polling stations, which would not have escaped the attention of everyone.
3.4. The petition is indistinct and incoherent and lacks integrity and affidavit filed along with the petition is illogical and in all likelihood is false and frivolous and is irrefutably without any basis. Therefore, the substituted petitioner, who seeks amendment at this belated stage to correct the description of the name of
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