MEETHIAN Vs. POULOSE

JUDGEMENT

(1.) THIS Election Petition relating to the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam constituency was filed in this Court on 21. 6. 1996. The results of the election having been announced on 5. 8. 1996 it was within time. The Election Petition contained a prayer for 'setting aside the election by the respondent to the legislative Assembly of Kerala from 81 Kothamangalam Constituency'. The office noted certain defects in the Election Petition and returned the Election Petition for curing the defects the same day. The following defects were noted. 1. Description of Annexures is incomplete and wrong. 2 English translation of Annexures not filed. 3 Exhibits are not legible. 4 It may be clarified whether the relief sought is in accordance with the R. P. Act. 5 Chalan number may be shown correctly. Some of the defects were cured, the relief claimed was modified and the Election Petition was re-presented on 27. 6. 1996 with an assurance that English translation of Annexure I will be produced at the time of evidence. 27. 6. 1996 was obviously beyond the time fixed for the filing of an election Petition under S. 81 (1) of the Representation of the People Act. On 27. 6. 1996, the office again returned the Election Petition with the endorsement 'defects subsist. Returned'. The Election Petition was re-presented the same day with an endorsement 'defect cured and re-presented'. It is not possible to find out from the relevant endorsements what exactly were the defects that were cured while originally re-presenting the Election Petition and what were the defects that subsisted which were cured when the Election Petition was returned once again. Thereafter, the Election Petition was posted on 1. 7. 1996 before the judge assigned by the Chief Justice for exercise of jurisdiction under the Act. The learned judge ordered issue of summons to the respondent in terms of R. 210 of the Rules of the High Court of Kerala. The Election Petition was posted to 23. 7. 1996. On 23. 7. 1996 the respondent appeared through counsel and sought to raise a preliminary objection regarding the presentation of the petition and on the basis of the copies of the Election Petition served on the respondent. The election Petition was adjourned to 29. 7. 1996. On 29. 7. 1996, one of the copies of the Election Petition served on the respondent was produced before Court by counsel for the respondent who also submitted that he would be making a formal application for marking that copy in evidence. According to counsel for the respondent the copy served on him was not a true copy of the original and going by the prayer in the copy served on the respondent, it had to be taken that no proper Election Petition had been filed within the time prescribed by S. 81 of the Act. In the copy so served on the respondent and produced before me on 29. 7. 1996, the main prayer read as follows: "declare the election of the respondent to the legislative Assembly of Kerala from 81 Kothamangalam Constituency". He also adopted the stand that the Registry of High Court had no authority to return the Election Petition for curing the defects and that in any event in the present case the Election Petition was re-presented after the period fixed in S. 81 (1) of the Act and consequently the Election Petition must be held to be out of time. He also submitted that Annexure-III was not signed as true copy and in Annexure III-A there was no endorsement or certification that it was a true copy of the original. Since counsel for the Election Petitioner wanted time to consider the position emerging from the aspects pointed out by counsel for the respondent and since the senior counsel appearing for the respondent was slightly indisposed, the Election Petition was posted to 30. 7. 1996 for consideration of the preliminary objections. On 30. 7. 1996, in the light of the submissions, in discussion with counsel on either side six preliminary issues were framed and arguments were commenced on those issues.

(2.) AT this stage, it has become necessary to advert to one unfortunate incident that occurred during the arguments on 30. 7. 1996. Senior counsel for the petitioner wanted to have a look at one of the copies of the Election Petition served on the respondent which he had produced before the court on 29. 7. 1996. AT the time the copy was given to Senior counsel for the election Petitioner by the Court, the prayer in the copy read as follows: "declare the election of the respondent to the legislative Assembly of Kerala from 81 Kothamangalam Constituency". Learned counsel verified the omission which was in the prayer which was rather obvious in that there was no declaration sought of the election concerned 'to be void'. In the original, of course, the words 'to be void' had been written up. But the same had been not added to the copy. After scrutinizing the copy and addressing arguments by accepting the position that the copy contained only a prayer to the following effect: 'to declare the election of the respondent to the legislative Assembly of Kerala from 81 Kothamangalam Constituency'. the copy was returned at the close of the inconclusive arguments on the preliminary aspects. But while returning the copy it was brought to the notice of the court that the words 'to be void' had been unauthorisedly added to the prayer in the copy. When this was pointed out to the Senior Counsel appearing for the petitioner and he was informed that this amounted to tampering with the records in the Court, Senior Counsel explained with an apology that the said words had been added by his junior under the bonafide impression that the copy he was correcting was the office copy kept in the file and without realising that he was supplying the words in the copy served on the respondent, produced by counsel for the respondent before Court and given by Court to Senior Counsel for the Election Petitioner to verify the prayer that existed in the copy served on the respondent. To put the records straight regarding this aspect, this Court contemporaneously passed an order clarifying that the prayer in the copy of the Election Petition served on the respondent and subsequently tampered with by counsel for the Election Petitioner was only to the following effect: "to declare the election of the respondent to the legislative Assembly of Kerala from 81 Kothamangalam Constituency". During the course of the argument counsel for the election Petitioner had also called upon counsel for the respondent to produce the second copy of the Election Petition served on the respondent so as to enable the court to understand whether the omission of the words 'to be void' was only in one of the copies or in both the copies. The matter was adjourned to 31. 7. 1996 for further arguments. On 31. 7. 1996, counsel for the respondent produced the second copy of the Election Petition served on the respondent in terms of R. 210 of the Rules of the High Court of Kerala along with a memo with a request that the copies served on the respondent may be marked formally in the proceedings so as to enable the Court to appreciate fully the preliminary arguments sought to be raised. Arguments were continued. The envelope in which the 2nd copy was sent to the respondent was also produced. For the purpose of convenience I have marked the copy that was produced before the Court by counsel for the respondent on 29. 7. 1996 as Ext. X1, the copy served on the respondent through post and produced on his behalf on 31. 7. 1996 as Ext. X2 and the envelope in which that copy was sent to the respondent as Ext. X2 (a ). On completion of arguments on 31. 7. 1996, the Election Petition was posted to 12. 8. 1996 for finding on the preliminary issues.

(3.) THE Kerala High Court Act 1958 was enacted to make provision regulating the business and exercise of powers of the High Court. Rules of the High Court of Kerala are framed by virtue of the powers conferred on the High Court by Art. 225 of the Constitution of India, S. 122 of the Code of civil Procedure and all other powers enabling the High Court in that behalf. Rules of the High Court lays down the procedure to be folio wed by the High court in the matter of institution of any proceeding in the High Court and the matters connected therewith. In that process, certain powers and duties have been conferred on the Registrar of the High Court by Rr. 15 and 16. Under sub-r. 2 of R. 15 there is a power to return for curing the defects, any petition, the presentation of which is detective by reason of failure to comply with the prescribed procedure. This is obviously the general power. THE procedure relating to Election Petitions are dealt with in Chapter XVI of the high Court Rules. R. 208 directs that every Election Petition shall be registered as 'election Petition' and sivena separate number. R. 209 insists that every Election Petition shall contain information as to the date of election of the returned candidate. THEn comes R. 210, which provides that immediately after registering, the petition is to be placed before the judge for such orders as may be required to be passed under S. 86 of the Act. S. 86 (2) of the Act also provides that the election Petition presented to the High Court shall be referred to the assigned judge, as soon as may be, after it is presented. THE Judge is then entitled to exercise his powers under S. 86 (1) of the Act. R. 210 therefore, provides mat if the petition is not dismissed under S. 86 (1) of the Act a summons on the direction of the judge shall be issued to the respondents to appear before the high Court on a fixed date and answer the claim made in the petition. This clearly shows that under the scheme of the Rules, the judge could dismiss the election Petition even before ordering service of summons to the respondents, this is obvious from the scheme of S. 86 of the Act as well. THEre is therefore some merit in the contention of counsel for the respondent that in view of r. 210 of the Rules of the High Court of Kerala, even in the first instance the registry is bound to place the Election petition as filed before the judge for appropriate orders. Under S. 86 (1) the judge is given the power to dismiss an election Petition which does not comply with the provisions of S. 81 or S. 82 or s. 117 of the Act. Clearly therefore, scrutiny contemplated by R. 210 of the rules of the High Court of Kerala consistent with. 86 (1) 'the Act is by the judge assigned and could not undertaken by the Registry. But it is so clear from R. 210 that the petition is to be placed before the judge immediately after registering the petition. THE registering of the petition can be undertaken by the Registry only on it being satisfied that the Election Petition conforms to the form prescribed by ; Act and the relevant Rules in that behalf. Whereas counsel for the petitioner contends it until the Election Petition is registered, there is nothing in the Rules relating to Election Petitions which makes an inroad into the power available to the Registry under 15 of the High court Rules, counsel for the respondent contends that even the registering of the petition in terms of R. 208 of the High Court Rules could be made by the registry only after placing the Election Petition as filed, before the judge concerned. Learned counsel for the respondent also points out that when an Election petition is filed On the last day it may contain fatal defects which may or may not have been noticed by THE Registry and on the return of the Election petition for the curing of some minor defect, petitioner may discover the fatal defect and cure the same and re-present the petition after the period prescribed in S. 81 (1) of the Act and there will be no means of knowing whether any such thing has been done, if the power is given to the Registry to return the Election Petition by itself, for curing of defects by the petitioner.