C.P. John vs Babu M. Palissery & Ors

The brief facts which are required to be stated are that the Appellant was a candidate of the Communist Marxist Party (hereinafter called “CMP”), which was a constituent of United Democratic Front (hereinafter called “UDF”). The Second Respondent was also a candidate in the said election along with Respondent Nos.3 to 5. The First Respondent secured 58,244 votes whereas the Appellant secured 57,763 votes. The Second Respondent, who was an independent candidate, secured 860 votes. According to the Appellant, the Second Respondent whose name is identical to that of the Appellant was maliciously set up by the First Respondent to contest the election and in that process indulged in various corrupt practices, namely, inducing the Second Respondent by offering bribe, issued a pamphlet which was marked as Annexure IV in the High Court in the name of the Second Respondent deceptively which attracted Section 123(1)(A) and (4) of the Act and consequently his election was liable to be set aside. One other allegation of the Appellant raised in the Election Petition was that the First Respondent was convicted in two criminal cases, namely, Sessions Case No.4 of 1975 (Crime No.136/1974 of Pattambi Police Station) for offences under Sections 143, 148, 323, 324 and 302 read with 149, IPC for murdering one Syed Ali, an S.F.I. activist and that the First Respondent was the second accused in Crime No.463/1994 of Kunnamkulam Police Station where again he was convicted by the Judicial First Class Magistrate, Kunnamkulam in CC No.167/1995 along with other accused and was sentenced to undergo two years rigorous imprisonment apart from a fine of Rs.2000/- for the offences under Sections 143, 147, 148, 151, 332, 353 and 427 and 149, IPC and Section 3(2)(r) of the Prevention of Destruction to Public Properties Act. It is the contention of the Appellant in the Election Petition that the First Respondent concealed the above convictions in his nomination which was a deliberate suppression and in violation of Section 33A(1) of the Act. It is based on the above three substantive grounds, the Appellant challenged the successful election of the First Respondent in Election Petition No.1 of 2011.

As far as the allegations against the First Respondent were concerned, the allegation relating to the issue of bribery falling under Section 123(1)(A) was levelled in paragraphs 4, 5, 6 and 9 of the Election Petition. The allegation relating to the issuance of pamphlets attracting Section 123(4) of the Act was made in paragraphs 11, 12, 13, 14 and 15 of the Election Petition. The allegation relating to the criminal conviction and its suppression was raised in paragraph 7 of the Election Petition.

The various above allegations were refuted on behalf of the First Respondent in the written statement filed as against the Election Petition. The First Respondent filed I.A.No.3 of 2011 contending that the Election Petition was liable to be rejected on the ground that it was not filed in accordance with Section 83 as well as Section 86 of the Act. The contentions raised in the I.A. were to the effect that as regards the issue of bribery, though the same was referred to in paragraphs 4, 5, 6 and 9 of the Election Petition, in the affidavit, which was mandatory as per the proviso to Section 83(1) of the Act, the Appellant failed to support the said allegations with exception to what was stated in paragraph 9 of the Election Petition. It was contended in the I.A. that while the allegations relating to the offer of bribe to the Second Respondent by way of a gift of Rs.50,000 and a promise to pay Rs.1,00,000/- after the elections were raised in paragraphs 4, 5, 6 and 9, the affidavit did not support the allegations in paragraphs 4, 5 and 6 of the Election Petition and the affidavit only mentioned paragraph 9. It was, therefore, contended that it was not in compliance with the proviso to Section 83(1) and consequently, the Election petition was liable to be rejected on the ground of want of cause of action.

The High Court having examined the rival contentions of the parties, reached a conclusion that in support of the Election Petition, the averments contained in paragraphs 4, 5 and 6 of Election Petition were not specifically affirmed and that the affidavit only referred to paragraph 9 of the Election Petition. The High Court further held that since the averments contained in paragraph 9 of the Election Petition only referred to personal information of the Appellant, which lacked in very many material particulars, there was total lack of pleadings as required under Section 83 of the Act and consequently, the said allegation did not give scope for any cause of action to support the Election Petition.

Based on the above findings, the High Court held that the I.A. filed by the First Respondent deserved to be allowed and, consequently, for want of cause of action the Election Petition itself was dismissed.

(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.

(d) and (e) of the Election Petition, there were left no material facts giving any cause of action for the Election Petition subsist. It was, therefore, prayed that the Election Petition should be dismissed at the threshold.

Having regard to our above discussions and findings there is no merit in these appeals and the same are dismissed. No costs.

September 11, 2014.