OMANA P A Vs. SUSSI KUNJACHAN

JUDGEMENT

(1.) The respondent in I. A. 1406 of 2001 in Election O.P. 5 of 2000 on the file of the i Principal Munsiff of Kochi is the revision petitioner. The revision petitioner and respondent were candidates who contested for the Panchayat election to Ward No. XII of Njarakkal Grama Panchayat held on 27.09.2000. The revision petitioner was the successful candidate. The respondent had filed the Original Petition for the relief that the election of the revision petitioner is void and also for a further relief that the respondent be declared as the duly elected candidate from that Ward. The revision petitioner alone is made respondent in the Original Petition, though two other candidates also contested the election. Originally the respondent filed a petition to implead those two persons as additional respondents. In view of the legal position that when a defeated candidate seeks a further relief of declaration that himself be declared as duly elected, all candidates who contested the election shall be made parties to the Original Petition, the respondent filed a petition to delete the prayer of that declaration. The revision petitioner contested the application and it was contended that the application to delete the second relief is misconceived and deletion of the prayer will amount to amendment of the Original Petition which is permissible to the limited extent of supplementing particulars. It is further contended that the election petitioner cannot by filing an application under S.151of the Code of Civil Procedure or S.94 of the Kerala Panchayat Raj Act narrow down or widen the scope of the Election Petition. It is also contended that the amendment to delete the prayer does not fall within the purview of S.94 of the Act. It is also contended that the amendment sought for in the form of deletion is a tricky way adopted by the election petitioner to escape from the consequence of rejection of the Election O.P. for non compliance of S.90(a) of the Act. It was contended that the non impleadment of the contesting candidates in the party array is an incurable defect which is fatal to the Election Petition. It would be unjust and prejudicial to the revision petitioner. It is also contended that the Election Petition is to be disposed of as it is and no kind of amendment or impleadment is permissible. A further contention was raised that the Election Petition is not in compliance with the provisions of S.91(1)(c) of the Act in relation to the filing of affidavit alleging corrupt practice and the same is liable to be rejected. Hence, the Original Petition itself is to be dismissed. The petition was allowed by the learned Munsiff overruling the objection raised by the revision petitioner. That order is under challenge in this Civil Revision Petition.

(2.) The learned counsel appearing for the revision petitioner has argued that the respondent has originally made an attempt to get the two other candidates who contested for election as additional respondents 2 and 3 in the Original Petition and that petition was dismissed after hearing the objection of the revision petitioner and thereafter, in order to get over the legal bar, the present petition is filed. It is argued that it is illegal and if the prayer made in the petition is allowed, that will virtually amount to allowing an application for amendment which cannot be permitted by the Court in view of the provisions of the Kerala Panchayat Raj Act. It is also contended that the provisions of the Kerala Panchayat Raj Act are to be strictly construed and hence the Original petition itself is to be dismissed.

(3.) The learned counsel appearing for the respondent has argued that the Court which is dealing with an Election Petition is having power to allow an amendment though the same may not fall within the purview of the Kerala Panchayat Raj Act. It is argued that by allowing the amendment, no prejudice will be caused to the revision petitioner. It is also contended that the revision petitioner has not challenged the maintainability of the Election Petition and hence the Court below had acted correctly in allowing the application.