IMPORTANT POINT
Election petition – Defects in an election petition that constitute non-compliance with Section 83 of Act of 1951 have been held to be curable defects.

JUDGMENT :

SANJAY KUMAR, J

1. The short question in this appeal is whether the election petition filed against the appellant by the first respondent herein was liable to be rejected at the threshold? The High Court of Kerala at Ernakulam answered this question in the negative, prompting the appellant to come before us.

2. Having heard the appeal in part on 18.01.2024, we stayed further proceedings in the election petition.

3. The appellant and the six respondents herein contested in the election to the 15th Kerala Legislative Assembly, held on 06.04.2021, from 081-Tripunithura Legislative Assembly Constituency. The appellant was declared elected on 02.05.2021, having polled 992 votes more than the next candidate, viz., the first respondent. Thereupon, Election Petition No. 8 of 2021 was filed by the first respondent before the High Court of Kerala at Ernakulam under Sections 80, 81, 83, 84, 100, 101 and 123 of the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’), seeking a declaration that the election of the appellant was void and, in consequence, to declare him duly elected.

4. The appellant filed preliminary objections in the election petition. Therein, he contended that the petition was liable to be dismissed under Section 86 of the Act of 1951 for non-compliance with Section 81 thereof. He claimed that a complete election petition, after the curing of defects, was placed before the Court beyond the period of limitation and, further, sufficient number of copies, as required under Rule 212 of the Rules of the High Court of Kerala, 1971 (for brevity, ‘the Rules of 1971’), were not filed. He also claimed that the copy of the election petition furnished to him was not a true copy of the petition filed.

5. The second ground urged by the appellant in his objections was in relation to Section 83 of the Act of 1951, which requires an election petition to contain a concise statement of material facts and full particulars of any corrupt practice, including the names of the parties alleged to have committed such corrupt practice along with the date and place of commission of each such practice. The appellant asserted that the pleadings in the election petition lacked material facts and particulars of the corrupt practices attributed to him and, therefore, the election petition did not disclose a cause of action. He prayed that the election petition be dismissed at the threshold under Order VII Rule 11 CPC.

6. By the impugned order dated 29.03.2023, a learned Judge of the High Court of Kerala at Ernakulam accepted the plea of the appellant to some extent but ultimately found that sufficient cause of action was made out for trial of the election petition to decide whether the election of the appellant on 06.04.2021 was null and void. The learned Judge accordingly held that the election petition would be proceeded with in respect of the identified issue alone and granted time to the respondents in the election petition to file their objections/further objections, if any.

7. Perusal of the impugned order reflects that the learned Judge was of the opinion that the defects pointed out by the appellant were not in relation to Section 81(3) of the Act of 1951 but pertained only to Rule 212 of the Rules of 1971. The learned Judge, therefore, held that the lapses in that regard did not amount to non-compliance with Section 81(3) of the Act of 1951 and the election petition was not liable to be rejected by invoking the provisions of Section 86(1) thereof.

8. Further, upon considering precedents on the issue, the learned Judge held that the statements allegedly made by the appellant and his election agents did not amount to a corrupt practice, as defined in Sections 123(2)(a)(ii) and 123(3) of the Act of 1951. However, apropos the allegation that the appellant had used a religious symbol to further his prospects in the election and thereby committed a corrupt practice within the sweep of Section 123(3) of the Act of 1951, the learn