IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 RFA.No. 137 of 2008() ------------------------------ OP (UNNUMBERED INDIGENT )2007 of SUB COURT, TIRUR .................... APPELLANT / PLAINTIFF ------------------------------------- K.SADANANDAN, AGED 56 YEARS, S/O.KOCHUKUNJAN, MARASSRYTHARA, SIVASADANAM, KANJIRAMUKKU P.O., PONNANI TALUK, MALAPPURAM DIST, KERALA. BY ADVS. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): ------------------------ 1. THE CHIEF ELECTION COMMISSIONER ELECTION COMMISSIONER OF INDIA, NEW DELHI. 2. THE ASSISTANT RETURNING OFFICER PONNAI CONSTITUENCY, MALAPPURAM. 3. THE DISTRICT COLLECTOR MALAPPURAM. R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN. FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ RFA No.137 of 2008-B ------------------------------------------------------------------------ Dated 18th October 2010 Judgment Thottathil.B.Radhakrishnan, J. The plaintiff is the appellant. The court below rejected the plaint on the ground that the suit is barred by S.170 of the Representation of the People Act, 1951 (hereinafter referred to as the RP Act). 2. We have examined the plaint. The plaintiff contested the election to the Assembly in 2001. Later, when he submitted his nominations for the election to the Parliament in 2004, his nomination was rejected on the ground that he had not submitted his statement of accounts of expenditure in connection with the Assembly Election 2001. The rejection of the nomination for election to the Parliament, was challenged by the plaintiff before this court. He, however, says that since time had run out, that matter was not proceeded with. Thereafter, he filed RFA 137/08 2 the suit against three defendants namely, the Chief Election Commissioner, the Assistant Returning Officer, Ponnani constituency and the District Collector, Malappuram. 3. A reading of the plaint will show that the fundamental plea raised is an accusation that the action of the Returning Officer in rejecting the nomination for the Parliament election was not in accordance with law, but a malicious one, having regard to the fact that the plaintiff had submitted his statement of accounts in relation to the expenditure for the earlier election to the Assembly, however, that the Returning Officer failed to take note of it. It is pleaded that the plaintiff had, even thereafter, submitted the proforma of the accounts statement and had also placed further materials in support of his statement of accounts of expenditure as regards the Assembly Election of 2001. The plaint, as a whole, stands to accuse the officers in connection with matters relating to the electoral process. A reading of the allegations clearly shows that RFA 137/08 3 many of them tantamount to questioning the legality of action or decision taken by the Returning Officer. The trial court cannot, therefore, be criticised of acting illegally in taking the view that the suit might be barred by reason of S.170 of the RP Act which provides that no civil court shall have jurisdiction to question the illegality of any action taken or of any decision of the Returning Officer or by any other person appointed under the RP Act in connection with an election. 4. However, the learned counsel for the appealing plaintiff made a very earnest effort to salvage the plaint from being rejected. For this, he pointed out that the plaint contains a further averment that the third defendant – the District Collector had abused and insulted the plaintiff and told him that he would not allow the plaintiff to contest the election and the third defendant had demanded the plaintiff to leave the room. The learned counsel for the plaintiff, therefore, says that on the basis of those pleadings, it could also have been a suit for defamation. RFA 137/08 4 5. We agree with the learned counsel for the appellant that if the plaintiff's case could stand as one for defamation, the bar to jurisdiction in terms of S.170 of the RP Act may be relevant only at trial and the plaint ought not to have been rejected. But the fact remains that the scant pleading in the plaint as noticed by us in relation to the commission of a tort is wholly insufficient to sustain the plaint as one making out a cause of action even as regards that. In terms of Order VII Rule 11(a) of CPC, we are clear in our mind that the plaint in hand does not disclose any cause of action as to defamation or otherwise. Under such circumstances, even if we were to vacate the finding of the court below that the suit is barred by S.170 of the RP Act and therefore, the plaint is not liable to be rejected in terms of Order VII Rule 11(d), we will have necessarily to sustain the rejection of plaint having regard to Order VII Rule 11(a). 6. For the aforesaid reasons, this appeal fails and the same is accordingly dismissed subject to the RFA 137/08 5 above observation regarding applicability of S.170 of the RP Act. There will be no order as to costs. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta RFA 137/08 6