Disposed

Shabu Gopalan @ Shabu v. Shaji Salim @ Shaji

Kerala HC23 Feb 2024OP(C)/405/2024

Case brief

AI extract

What is this about?

Election petition recrimination challenge. High Court set aside a Munsiff's dismissal of two interlocutory applications that rejected the petitioner's Section 175 recrimination petition solely for lacking an affidavit; the allegations concerned double voting under Section 178, not defined corrupt practices under Section 144. Maintainability objections were left to the trial court to decide within

What the court decided

AI extract

Shabu Gopalan @ Shabu Vs Shaji Salim @ Shaji — Election Law | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

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FRIDAY, THE 23^RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945

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OP(C) NO. 404 OF 2024

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AGAINST THE ORDER/JUDGMENT OPELE 2/2021 OF MUNSIFF COURT, PERUMBAVOOR

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PETITIONER/PETITIONER/2ND RESPONDENT IN O.P.(ELECTION)NO.2/2021:

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SHABU GOPALAN @ SHABU AGED 58 YEARS S/O.GOPALAN, VALIYAPURAKKAL HOUSE, KADUVAL KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542 BY ADVS. D.G.VIPIN B.REGHU KUMAR (R-3301) DANIEL A.J. MANISHA V.V ANNA ROSE NAMBADAN

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RESPONDENTS/RESPONDENT/PETITIONER AND RESPONDENTS 1,3, AND 4 IN

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O.P.(ELECTION) 2/2021:

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1 SHAJI SALIM @ SHAJI S/O.P.M.SALIM, PALATHINKAL HOUSE, KADUVAL KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542 2 ABHILASH S/O.SULAIMAN, CHALIL HOUSE, KADUVAL KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542

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3 ADV.SAJEEV.P.MENON @ SAJEEV S/O.N.PARAMESWARA MENON, UTHRATTATHI, RAYONPURAM.P.O., PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542

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4 GREENISH KUMAR.P.S. /O.SHIVAN, PERUMKULAM, KANJIRAKKAD KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542

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BY ADVS. SHIBU JOSEPH Dinesh Mathew J Murikan K.A.ABHILASH(K/123/2008) VINOD S. PILLAI(K/631/2012) MOHAMMED THAYIB N.M.(K/1451/2019)

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O.P.(C).Nos. 404 & 405 of 2024

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..2..

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NAYANA VARGHESE(K/283/2021) RIA VARGHESE(K/1367/2023) AHAMMAD SACHIN K.(K/001814/2019) JERRY PETER(K/3088/2023)

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OTHER PRESENT:

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SRI.Shibu Joseph for R1 SRI.DINESH MATHEW MURICKEN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, ALONG WITH OP(C).405/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).Nos. 404 & 405 of 2024

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..3..

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 23^RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 OP(C) NO. 405 OF 2024

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AGAINST OPELE 2/2021 OF MUNSIFF COURT, PERUMBAVOOR PETITIONER/2ND RESPONDENT IN O.P.ELECTION:

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O.P.ELECTION:

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1 SHAJI SALIM @ SHAJI S/O.P.M.SALIM, PALATHINKAL HOUSE, KADUVAL KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542

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2 ABHILASH S/O.SULAIMAN, CHALIL HOUSE, KADUVAL KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542

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3 ADV.SAJEEV.P.MENON @ SAJEEV S/O.N.PARAMESWARA MENON, UTHRATTATHI, RAYONPURAM.P.O., PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683543

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4 GREENISH KUMAR.P.S.

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O.P.(C).Nos. 404 & 405 of 2024

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..4..

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S/O.SHIVAN, PERUMKULAM, KANJIRAKKAD KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR.P.O., ERNAKULAM DISTRICT,, PIN - 683542 BY ADVS. Dinesh Mathew J Murikan K.A.ABHILASH(K/123/2008) VINOD S. PILLAI(K/631/2012) MOHAMMED THAYIB N.M.(K/1451/2019) NAYANA VARGHESE(K/283/2021) RIA VARGHESE(K/1367/2023) AHAMMAD SACHIN K.(K/001814/2019) JERRY PETER(K/3088/2023)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, ALONG WITH OP(C).404/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).Nos. 404 & 405 of 2024

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..5..

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COMMON JUDGMENT

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Dated this the 23^rd day of February, 2024

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Petitioner herein is the 2^nd respondent in O.P. (Election)No.2/2021 pending before the Munsiff Court, Perumbavoor. Petitioner is aggrieved by Ext.P7 order, which dismisse d three interlocutory applications, I.A.Nos. 18, 19 and 20 of 2023 by virtue of the impugned common order. Aggrieved by the dismissal of I.A.Nos. 18 and 19 of 2023 by virtue of impugned common order, the common petitioner has preferred two original petitions O.P(C)Nos.404 & 405 of 2024. The contentions

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urged are common and hence these Original Petitions are considered together.

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2. Learned counsel would submit that, I.A.Nos.18

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and 19 of 2023, were dismissed by the learned Munsiff, holding that the recrimination petition preferred by the petitioner as per Section 175 of

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O.P.(C).Nos. 404 & 405 of 2024

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..6..

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the Kerala Muncipality Act, 1994 (herein after referred to as 'the Act') is not accompanied by a mandatory affidavit, since the recrimination petition alleges corrupt practices. The affidavit is mandated by Section 167 of the Act. The specific contention of the learned counsel for the petitioner is that the allegations made by the petitioner does not amount to a corrupt practice, as defined in Section 144 of the Act. Instead, it is urged as a ground for declaring the election to be void, as per Section 178(1)(d)(iii), which

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deals with improper reception, refusal or rejection of any vote, or the reception of any vote which is void. Thus, according to the learned counsel, an affidavit to be accompanied in an election petition, or for that matter a recrimination petition, when corrupt practices are alleged, is not expected to accompany a petition preferred under Section 178 of the Act. On that short ground, the impugned common order is liable to be set aside, is the submission made.

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O.P.(C).Nos. 404 & 405 of 2024

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..7..

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3. Per contra, learned counsel for the 1^st respondent would submit that, the recrimination petition is not liable to be allowed, since the Proviso to Section 175 of the Act has not been

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complied. The Proviso speaks of filing a recrimination petition within 14 days from the date of commencement of trial. In other words, the party who intends to prefer a recrimination petition should give notice to the Court of his

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intention to do so, along with the security required. The learned counsel invited the attention of this Court to Section 169 of the Act, which deals with trial of election petitions. The

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second explanation to that Section would indicate that, the trial shall be deemed to commence on the date fixed for appearance of the respondents

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before the Court and answer the claims. In the instant case, the defendants, including present petitioner/defendant no.2, were recorded as served, as early as on 27.02.2021. Inasmuch as,

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O.P.(C).Nos. 404 & 405 of 2024

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..8..

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the present recrimination petition under Section

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175 of the Act is not preferred within 14 days therefrom, the same is bad, is the submission made. Learned counsel would also canvass that the recrimination petition under Section 175 is bad for non compliance of Section 167(1)(c) of the Act, as well. It was finally submitted by the learned counsel for the 1^st respondent that, the petitioner had stated in paragraph nos.5 and 6 of Ext.P3 recrimination petition that the allegations amount to corrupt practice.

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4. Learned counsel for the 2^nd respondent would support the petitioner and his contentions.

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5. Having heard the learned counsel appearing for

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the respective parties, this Court notice that the dismissal of interlocutory applications, I.A. Nos.18 & 19 of 2023, finding that the recrimination petitioner under Section 175 of the

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Act is not accompanied by the affidavit to be

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O.P.(C).Nos. 404 & 405 of 2024

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..9..

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filed when corrupt practices are alleged, cannot be sustained. This Court notice that, the very specific ground alleged by the petitioner under Section 175 of the Act, is with respect to double voting, covered by Section 178 of the Act. Merely by using a term 'corrupt practice', in paragraph no.5 and 6 of Ext.P3 recrimination petition, the petitioner cannot be treated as one alleging corrupt practice. The Court is bound to look into the substance of the allegation made. Corrupt practice has been specifically defined in Section 144 of the Act. When the petitioner maintains a stand that he has not alleged any of the corrupt practices as envisaged in Section 144 of the Act, Ext.P3 recrimination petition cannot be dismissed on the technical ground that an affidavit which is liable to accompany an election petition under Section 167 of the Act, is not accompanying. In the circumstances, Ext.P7 order in both these Original Petitions cannot be sustained and the same are hereby set aside.

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O.P.(C).Nos. 404 & 405 of 2024

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..10..

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6. As regards the rest of the contentions raised by the learned counsel for the 1^st respondent, regarding maintainability of the recrimination petition under Section 175 of the Act, for non compliance of the Proviso, as also, with respect to any other ground under which the 1^st respondent contend that the petition is not maintainable, this Court would relegate the parties to agitate the same before the learned Munsiff, inasmuch as, these contentions are not seen addressed in the impugned Ext.P7 common order. At the risk of repetition, this Court may state that Ext.P7 order has been passed only taking stock of the requirement of an affidavit to accompany the recrimination petition and nothing else. Leaving open the rights of the parties to agitate their respective contentions, before the trial court in respect of the objections to the recrimination petition, this Original Petition is disposed of, setting aside Ext.P7 common order. The learned

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O.P.(C).Nos. 404 & 405 of 2024

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Munsiff will decide on the validity and the maintainability of the recrimination petition preferred by the petition under Section 175 of the Act, before further proceeding with the trial, expeditiously at any rate, within a period of one month from the date receipt of a copy of this judgment.

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The Original Petition is disposed of, as above.

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Sd/- C. JAYACHANDRAN JUDGE

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O.P.(C).Nos. 404 & 405 of 2024

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..12..

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APPENDIX OF OP(C) 405/2024

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PETITIONER EXHI	BITS
Exhibit P1	TRUE COPY OF O.P.	(ELECTION) NO.2/2021
	DATED 15.01.2021 RESPONDENT HEREIN COURT, PERUMBAVOOR	FILED BY THE 1ST BEFORE THE MUNSIFF
Exhibit P2	TRUE COPY OF THE THE PETITIONER DAT THE MUNSIFF COURT,	OBJECTION IN FILED BY ED 11/02/2022 BEFORE PERUMBAVOOR
Exhibit P3	TRUE COPY OF T	HE RECRIMINATION IN
	ELECTION O.P.NO.2 PETITIONER BEFORE PERUMBAVOOR DATED	/2021 FILED BY THE THE MUNSIFF COURT 11.02.2022
Exhibit P4	TRUE COPY OF IA.N O.P.NO.2/2021 ON COURT, PERUMBAVOOR	O.19/2023 IN ELECTION THE FILE OF MUNSIFF DATED 13.10.2023
Exhibit P5	TRUE COPY OF TH ELECTION O.P.NO.2/	E I.A.NO.18/2023 IN 2021 ON THE FILE OF
	MUNSIFF COURT, 13.10.2023	PERUMBAVOOR DATED
Exhibit P6	TRUE COPY OF THE O PETITIONER IN I.A O.P.NO.2/2021 ON COURT, PERUMBAVOOR	BJECTION FILED BY THE 19/2023 IN ELECTION THE FILE OF MUNSIFF DATED 26.10.2023
Exhibit P7	TRUE COPY OF THE 01.01.2024 PASSED PERUMBAVOOR IN	COMMON ORDER DATED BY THE MUNSIFF COURT, I.A.NO.18/2023 AND
	I.A.NO.19/2023 IN	ELECTION O.P 2/2021

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O.P.(C).Nos. 404 & 405 of 2024

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..13..

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APPENDIX OF OP(C) 404/2024

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PETITIONER EXHI	BITS
Exhibit P1	TRUE COPY OF O.P.	(ELECTION) NO.2/2021
	DATED 15.01.2021 RESPONDENT HEREIN COURT, PERUMBAVOOR	FILED BY THE 1ST BEFORE THE MUNSIFF
Exhibit P2	TRUE COPY OF THE THE PETITIONER DAT THE MUNSIFF COURT,	OBJECTION IN FILED BY ED 11/02/2022 BEFORE PERUMBAVOOR
Exhibit P3	TRUE COPY OF T	HE RECRIMINATION IN
	ELECTION O.P.NO.2 PETITIONER BEFORE PERUMBAVOOR DATED	/2021 FILED BY THE THE MUNSIFF COURT 11.02.2022
Exhibit P4	TRUE COPY OF IA.N O.P.NO.2/2021 ON COURT, PERUMBAVOOR	O.19/2023 IN ELECTION THE FILE OF MUNSIFF DATED 13.10.2023
Exhibit P5	TRUE COPY OF TH ELECTION O.P.NO.2/	E I.A.NO.18/2023 IN 2021 ON THE FILE OF
	MUNSIFF COURT, 13.10.2023	PERUMBAVOOR DATED
Exhibit P6	TRUE COPY OF THE O PETITIONER IN I.A O.P.NO.2/2021 ON COURT, PERUMBAVOOR	BJECTION FILED BY THE 19/2023 IN ELECTION THE FILE OF MUNSIFF DATED 26.10.2023
Exhibit P7	TRUE COPY OF THE 01.01.2024 PASSED PERUMBAVOOR IN	COMMON ORDER DATED BY THE MUNSIFF COURT, I.A.NO.19/2023 AND
	I.A.NO.18/2023 IN	ELECTION O.P 2/2021

Shabu Gopalan @ Shabu v. Shaji Salim @ Shaji

Case brief

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Shabu Gopalan @ Shabu v. Shaji Salim @ Shaji

Case brief

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Shabu Gopalan @ Shabu Vs Shaji Salim @ Shaji