ORDER
K. Padmanabhan Nair, J.
1. The respondent in I.A. 1406 of 2001 in Election O.P. 5 of 2000 on the file of the 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 Section 151 of the Code of Civil Procedure or Section 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 Section 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 Section 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 Section 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 theobjection 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 tp 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 fail 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.
4. The facts in this case are not disputed. The revision petitioner and respondent were candidates who contested for election to Ward No. XII of the Njarakkal Grama Panchayat on 27.09.2000. There were two other candidates also. The revision petitioner was declared elected by a margin of two votes. The respondent filed an Original Petition for the following reliefs;-
"(i) To declare that the election of the Respondent from Ward XII of the Njarakkal Grama Panchayat in the polling held on 27.09.2000 and the result announced thereafter are illegal, improper, invalid and void and has to be set aside; and (ii) to declare that the Petitioner is the duly elected candidate from Ward XII in the election having received majority of the votes". In view of the second relief sought for in the Original Petition, the respondent is bound to implead all the candidates who contested the election as provided under Section 90(a) of the Kerala Panchayat Raj Act. As already stated, only the returned candidate was arrayed in the case as the respondent.
5. The learned counsel appearing for the revision petitioner has vehemently argued that the Election Petition is liable to be dismissed at the threshold and the law does not permit the petitioner in the election petition either by amending or by abandoning any relief or adding parties so as to get over that difficulty. It is argued that the provisions contained in Sections 87 to 119 which deals with disputes regarding election have to be very strictly construed.
6. Section 89 of the Panchayat Raj Act deals with the presentation of the petition. Section 90 deals with parties to the election petition. Section 91 deals with the contents of the petition and Section 92 deals with the relief that can be granted. In view of the provisions contained in Section 92, a petitioner in an Election Petition can claim a further relief of declaration that he himself or any other candidate has been duly elected and if such a relief is sought for, the petitioner is bound to implead all the candidates who contested the election. Section 93 of the Act enjoins that the Court shall dismiss an Election Petition which does not comply with the provisions of Section 90. Section 92 of the Act reads as follows:-
“92. Relief that may be claimed by the petitioner.- A petitioner may, in addition to claiming a declaration that the election of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected”.
Section 90 of the Act reads as follows:-
“Parties to the petition.- A petitioner shall join as respondents to his petition,-
(a) where the petitioner, in addition to claiming a declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition”.
Section 93(1) of the Act reads as follows:-
“93. Trial of election petitions.- (1) The Court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 115”.
So, going by the provisions contained in Sections 90, 92 and 93 of the Act, the election petition presented by the respondent as such is liable to be dismissed.
7. The next question to be considered is whether the respondent can be allowed to escape from the mandatory provisions contained in Section 93(1) of the Act by deleting the second prayer in the Original Petition. The learned counsel appearing for the revision petitioner has argued that the relief of getting the election set aside is not a common law or civil law right, but merely a creature of Statute which is to be strictly construed. The learned counsel relied on a number of decisions of the Supreme Court as well as other High Courts to argue that if the election petitioner in addition to seeking setting aside of the election of the returned candidate seeks a further order of declaration that himself or other candidates has been duly elected all contested candidates shall be made parties to the Election Petition and if there is failure to implead all such candidates, the election petitioner shall not be allowed to get over that infirmity by taking recourse under Order1 Rule 10, Order VI Rule 17 or Order XXIII Rule 1 of the Code of Civil Procedure.
8. The learned counsel appearing for the respondent has argued that none of the principles relied on by the revision petitioner is applicable to the facts of this case. It is argued that question of maintainability of an election petition is different aspect and whether a petition of this nature can be allowed or not is an entirely different one. It is argued that in this case even though a detailed objection has been filed to the main petition, the revision petitioner has not raised a contention that the election petition is bad for non-impleadment of the other candidates and hence the election petition is defective under Section 89 and the same is to be rejected under Section 90(a) of the Panchayat Raj Act. It is also contended that the revision petitioner has not filed any petition within fourteen days from the date of commencement of the trial expressing his intention regarding recrimination, So, no prejudice will be caused to the revision petitioner by allowing the present petition. It is argued that the petition filed is not one under Order I Rule 10, Order VI Rule 17 or Order XXIII Rule 1 of the Code of Civil Procedure nor it will come within Section 108 of the Panchayat Raj Act. So, it is argued, there is no legal impediment in allowing the application and the trial Court has not committed any illegality or exceeded the exercise of jurisdiction vested in it.
9. As I have already stated, the second relief in the petition is for a declaration that the respondent is the duly elected candidate from Ward No. XII of Njarakkal Grama Panchayat, In the election petition the respondent has arrayed the revision petitioner alone as the sole respondent. But, in paragraph 1 of the petition itself it is specifically admitted that apart from the revision petitioner and respondent, there were two other candidates who contested from Ward No. XII. But, they were not made parties alleging that their presence was quite insignificant and, therefore, they were not impleaded as parties to the proceedings. The revision petitioner was fully aware of the fact that apart from the revision petitioner and respondent there were two other candidates contested for the election and though the respondent sought a relief of declaration that she be declared as the successful candidate, she had not made the other two candidates as respondents to the Election Petition. There is absolutely no averment to the effect that the pleadings are defective and there is non-compliance of the provisions of Sections 89, 90 and 115 of the Act. No request was made by the revision petitioner to consider the maintainability of the Election O.P. as a preliminary point.
10. The records show that the respondent herein filed I.A. 1314 of 2001 for impleading the other two persons who contested the election as respondents in the Election O.P. For the first time the revision petitioner has raised a contention that the petition is not maintainable as having been filed out of time. It is contended that there is statutory bar for claiming such a relief.
11. Thereafter the present petition was filed by the petitioner. The prayer in the petition is to allow the petitioner to restrict her prayer to relief No. 1 and to delete relief No. 2. In the affidavit also what is stated is that the respondent is filing an application for deleting relief No. 2 and restricting to relief No. 1
12. The real question arising for consideration in this proceedings is what exactly is the nature of the petition filed in this case-. The consistent view taken by the Supreme Court as well as this Court is that election disputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a (is at common law nor an action in equity. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency (AIR 1932 SC 64) it was held as follows:-
“The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it”.
A Constitution Bench of the Supreme Court again considered the matter in Jagan Nath v. Jaswant Singh (AIR 1954 SC 210) and held that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. In Charan Lal Sahu v. Nandkishore Bhatt (AIR 1973 SC 2464) the Apex Court again held that the right conferred being a statutory right, the terms of that statute had to be strictly complied with. In Jyoti Basu v. Debt Ghosal (AIR 1982 SC 983) the Apex Court held that in a trial of election disputes, Court is put in a straight-jacket. It is further held that it is a special jurisdiction and has always to be exercised in accordance with the provisions of the statute. This view has been endorsed in Arun Kumar Bose v. Mohd. Furkan Ansari (AIR 1983 SC 1311). So, the legal position is that an election disputes are strictly statutory provisions. In Mallappa Basappa v. Basavaraj v. Ayyappa (AIR 1958 SC 698) a Bench consisting of three Judges had considered the nature and scope of an election petition. It was held as follows:-
“An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power”.
The Court has further considered the applicability of Order XXIII Rule 1 of the Code of Civil Procedure to election petitions and found that since the Representation of People Act is a self contained code governing the trial of election petitions, provisions of Order XXIII Rule 1 do not apply to the election petition. In Mallappa Basappa’s case (supra), the Apex Court has also considered the purpose of filing an recrimination petition and held that the provisions of Order XXIII Rule 1 cannot be allowed to defeat a petition filed for recrimination.
13. The learned counsel appearing for the respondent relying on Mallappa Basappa’s case (supra) has argued that the question of non-maintainability of such a petition will arise only if a person to whom a right of recrimination accrued had chosen to exercise that option. It is argued that the revision petitioner had not filed a petition for recrimination and therefore the revision petitioner cannot be allowed to contend that by allowing the prayer a statutory right accrued to her will be taken away. It is argued that in this case there is no question of filing a petition under Section 99 claiming recrimination and that stage is already over long back. So, no question of any prejudice being caused to the revision petitioner arises on that ground. It is also argued that maintainability of the Election Petition need not be considered in this proceedings.
14. The principle laid down in Mallappa Basappa’s case (supra) was followed in K. Kamaraja Nadar v. Kunju Thevar (AIR 1958 SC 687), in which it was held as follows:-
“An election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in Sections 100(1) and 101 to the Election Commission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. Where the petitioner claims such further declaration, he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition”.
It was further held that Section 82 of the Representation of People Act enjoins that when such a relief is asked for, all the candidates who contested for election should be made parties and if they are not joined as respondents to the petition, the Court has no option but to dismiss the election petition. It was also held as follows:-
“The defect of non-joinder of necessary parties to the election petition cannot be cured by amendment inasmuch as the Election Tribunal has no power to grant such an amendment be it by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commission claiming such further declaration”.
This decision was also rendered by a Bench consisting of three Judges. In Krishan Chander v. Ram Lal (AIR 1973 SC 2513) it was held that the issue whether necessary parties are not impleaded is to be tried as a preliminary issue. In S.M. Banerji v. Sri Krishna (AIR 1960 SC 368), a Constitution Bench of the Apex Court considered the scope of filing a petition for amendment of the Election Petition. It was held that since the amendment sought for would be foreign to the scope of the enquiry under Section 100(1)(d)(i) of the Representation of People Act, the same should not have been allowed. In Mohan Raj v. Surendra Kumar (AIR 1969 SC 677), a Bench consisting of two Judges considered the scope of amendment in a case in which corrupt practice was alleged. It was held that Section 82(b) of the Representation of People Act makes it incumbent that any candidate against whom a charge of corrupt practice is made must be joined as party. But, it was further held as follows:-
“No doubt the power of amendment is preserved to the Court and Order 1, Rule 10 enables the Court to strike out parties but the Court cannot use Order 6, Rule 17 or Order 1, Rule 10 to avoid the consequences of non-joinder. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see Section 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of party the provisions of the Civil Procedure Code cannot be used as curative means to save the election petition”.
In Kallappa Laxman Malabade v. Prakash Kallappa Awade (AIR 1966 Bombay 5), a learned Single Judge of Bombay High Court has taken the view that non-joinder of parties in an election is fatal to the petition and the defect cannot be cured by resorting to the provisions either under Order I Rule 10 or Order VI Rule 17 of the Code of Civil Procedure.
15. The learned counsel appearing for the respondent has argued that in S.M. Banerji’s case (supra) a Constitution Bench of five Judges has considered the jurisdiction of the Election Tribunals to amend pleadings and held as follows:-
“Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish their effectiveness and defeat the very purpose for which they are constituted. It must be made clear that within the limits prescribed by the decisions of the Supreme Court the discretionary jurisdiction of the Tribunals to amend the pleadings is as extensive as that of a civil court. The same well settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by aTribunal”.
It is argued that in P. Nalla Thampy v. R.L. Shanker (AIR 1984 S.C. 135) a Bench of the, Apex Court consisting of three Judges has elaborately considered the scope of withdrawal of one relief. It was argued that in P. Nalla Thampy’s case (supra) the Supreme Court had considered the power of the Court to delete one prayer. It is argued that the position in P. Nalla Thampy’ a case is exactly similar to the facts of the present case and in which the Apex Court had held that by allowing a party to delete one relief will not amount to a petition under Order XXIII Rule 1 or a petition under Section 109 of the Act for withdrawing the petition, In P. Nalla Thampy’s case (supra) the Apex Court held as folldws:-
“In view of the contention of the appellant, it is necessary to decide whether omission of prayer(c) comes within the ambit of Section 109 of the Act. Sub-section (1) of Section 109 provides that an election petition can be withdrawn only by leave of the High Court. Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition. There would be several instances where notwithstanding the deletion of one relief, the election petition as such would continue to be alive. In the cases which were cited before us referring to the applicability of Order XXIII Rule 1 of the Code, this aspect was examined with reference to withdrawal of the election petition. We do not think that if one of the reliefs claimed in the election petition is asked to be omitted, it would come within the provisions of Sub-section (1) of Section 109 of the Act. There is no reason why, if even after omission of a particular relief the election petition survives and is available to be tried in accordance with law, that omission or deletion should be treated as withdrawal of the election petition. There may be cases where while asking for one definite relief as the main one in a lis several other reliefs are prayed for and after the pleadings are closed instances are not rare when untenable and unnecessary reliefs-are asked to be omitted. Amendment to omit such a relief does not amount to a prayer for withdrawal of the lis itself.
The provisions contained in Section 109 or Section 110, of the Representation of People Act are in pari-materia with the provisions contained in Sections 108 and 109 of the Kerala Panchayat Raj Act. Likewise, the provisions contained in Sections 89 and 92 are also identical to the similar provisions contained in Sections 82 and 84 of the Representation of People Act.
16. In P. Nalla Thampy ‘s case the Court was not called upon to consider whether the petitioner in an Election Petition can be allowed to delete one prayer to avoid the consequence of non-joinder. The dispute involved in that case was regarding the election to Chikmaglur Constituency. In all, 28 candidates had participated in the election. The second respondent was declared elected. One of the candidates filed an election petition impleading the returned candidate as also all other contesting candidates and three outsiders asking for setting aside the election of respondent No. 2 and for a further declaration that Sri. Virendra Patil, respondent No. 5 in the election petition, is the duly elected candidate from the constituency and for other reliefs. All the contesting candidates were impleaded as required under Section 82 of the Representation of People Act. Infact, three outsiders were also impleaded in the election petition. The election petitioner, who is the respondent No. 1 in the appeal, applied to the Court for deleting the prayer in regard to the declaration of Sri. Virendra Patil as the returned candidate. That prayer was not opposed. So, the trial Court allowed that prayer. After that order, a petition was filed to delete respondents 5 to 31 in the election petition. Respondent No. 2 filed a petition to delete his name. That was also allowed. Subsequently respondents 3 and 4 in the election petition were also deleted. In the meanwhile, the 29th respondent filed a petition for recrimination as against Sri. Virendra Patil, which was also subsequently withdrawn. The appellant before the Supreme Court objected to the withdrawal of the recrimination petition, which was withdrawn. Subsequently the appellant filed a petition for a declarati on that the order passed by the Election Tribunal deleting prayer (c) was a nullity and the Court below ought not have allowed that prayer and considered the petition for recrimination. The Supreme Court was considering the power of the High Court to allow a petition filed for deletion of one of the prayers in the election petition. It is very pertinent to note that that petition was not filed to get over the difficulty of non-joinder. All the candidates were on the party array. So, the principle laid down in P. Nalla Thampy’s case can have no application to the facts of this case. It is to be noted that in this case originally the petitioner filed I.A. 1314 of 2001 to implead the other two candidates stating that due to an omission, they were not made parties to the election petition and to avoid further dispute, those two persons are also to be impleaded. But,” subsequently when the election petitioner came to know that it cannot be possible for the trial Court to allow that impleading petition, the present petition is filed. The re-levant portion of the averment reads as follows:-
“Of late I have filed an application to implead them also but however it is felt that such an application will not be maintainable and accordingly I am not pressing the said application. In the said scenario, I am not entitled to have both the reliefs claimed in the petition. Therefore the relief in the original application has to be restricted to relief No. 1 and the relief No. 2 is to be deleted”.
So, the averment in the affidavit filed in support of the petition itself shows that the present petition to delete prayer No. (ii) was filed only to get over the difficulty of nonjoinder of the necessary parties. That is what is expressly prohibited in view of the principle laid down in K. Kamaraja Nadar’s case (supra). The Court below without considering these aspects allowed the application. That is illegal and liable to be set aside. So, the Civil Revision Petition is only to be allowed.
In the result, the Civil Revision Petition is allowed. The order passed by the Court below in I.A. 1406 of 2001 is hereby set aside and the I.A. isdismissed. The Court below is directed to dispose of the Election Petition in accordance with law. C.M.P. Nos. 3615 of 2001 and 7235 of 2001 shall stand dismissed.
