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HALLEMABI V/S K.M. NAGARATHNA & OTHERS, decided on Tuesday, May 30, 2017.
[ In the High Court of Karnataka, Writ Petition No. 2185 of 2017 (LB-ELE). ] 30/05/2017
Judge(s) : RAGHVENDRA S. CHAUHAN
Advocate(s) : P.M. Siddamallappa. A.K. Vasanth, Additional Government .
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  "2017 (5) KantLJ 77"  ==   ""  







    Raghvendra S. Chauhan J.1. The petitioner Smt. Hallemabi has challenged the legality of the order dated 7-1-2017 passed by the Senior Civil Judge and Judicial Magistrate First Class at Kunigal whereby the learned Civil Judge has rejected the application filed by the petitioner under Order 7 Rule 11 (e) and (f) of Civil Procedure Code 1908 and has permitted the respondent 1 and respondent 2 to file the verifying affidavit before the Court.2. Briefly the facts of the case are that respondents 1 and 2 had filed an election petition namely E.P. No. 5/16 before the learned Civil Judge and had challenged the election of the petitioner as member of Bhaktharahalli Grama Panchayat Kunigal Taluk Tumkur District. During the pendency of the said election petition the petitioner had appeared before the learned Court. Subsequently the petitioner filed an application under Order 7 Rule 11 (e) and (f) read with Section 151 of CPC on the ground that since there is non-compliance of the statutory provision of Section 19 of the Karnataka Gram Swaraj and Panchayat Raj Act 1993 ('the Act' for short) the election petition should be rejected by the learned Court. Meanwhile the respondents 1 and 2 had also filed an application under Section 151 of CPC seeking the leave of the learned Court to submit the verifying affidavit in support of the main petition. After hearing both the parties by order dated 7-1-2017 while the learned Civil Judge has rejected the application filed by the petitioner the learned Civil Judge has allowed the application filed by the respondents 1 and 2. Hence the present petition before this Court.3. Mr. B.M. Siddamallappa the learned Counsel for the petitioner has vehemently contended that since the provisions of Sections 15 and 16 of the Act are mandatory in nature since Section 16 of the Act clearly stipulates that an election petition has to be verified in the manner laid down in CPC and since the verification was not a proper one the election petition deserves to be rejected by the learned Civil Judge. However notwithstanding the mandatory nature of the provisions the learned Civil Judge has erroneously rejected the application filed by the petitioner. Moreover the learned Civil Judge has committed an illegality by permitting the respondents 1 and 2 to file the verifying affidavit after the election petition had been filed. Therefore the impugned order deserves to be interfered with by this Court.4. Heard the learned Counsel for the petitioner and perused the impugned order.5. Sections 15 and 16 of the Act as under :15. Election petition. -(1) No election to fill a seat or seats in a Grama Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub-section (1) of Section 19 and Section 20 to the Civil Judge (Junior Division) within whose territorial jurisdiction the Panchayat area concerned or the major portion of the Panchayat area concerned is situated by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs within thirty days from but not earlier than the date of declaration of the result of the election of the returned candidate or if there are more than one returned candidate at the election and if the dates of declaration of the results of their election are different the last of those dates.(2) A petitioner shall join as respondents to his petition.-(a) where the petitioner in addition to claiming a declaration that the election of all or any of the returned candidates 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 all the returned candidates; and(b) any other candidate against whom allegation of any corrupt practice are made in the petition.(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.Explanation.-The expression returned candidate means a candidate who has been declared as duly elected.16. Contents of the petition and relief that may be claimed. -(1) An election petition. -(a) shall contain a concise statement of the material facts on which the petitioner relies;(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 (Central Act 5 of 1908) for the verification of pleadings :Provided that where the petition alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.(3) A petitioner may in addition to claiming a declaration that the election of all or any of the returned candidate is void claim a further declaration that he himself or any other candidate has been duly elected.6. A bare perusal of these provisions clearly reveal according to Section 15(3) of the Act every copy has to be attested by the petitioner as true copy. Moreover Section 16 of the Act does require that the petition be signed and verified in the manner laid down in CPC for verification of pleadings. However in a series of judgments pronounced by the Hon'ble Supreme Court and by this Court it has been clearly held that Section 16 deals with procedural aspect. Therefore non-compliance of Section 16 of the Act cannot come in the way of seeking substantial justice. Even if verification is not a proper one in compliance with the provisions of CPC even then a chance has to be given to the party to rectify the mistake (refer to Salem Advocate Bar Association Tamil Nadu v. Union of India AIR 2003 SC 189 and Rajesh v. State of Karnataka by its Deputy Commissioner and Others ILR 2005 Kar. 4257). Therefore the learned Counsel for the petitioner is not justified in claiming that provision of Section 16 of the Act is mandatory in nature and that no opportunity should have been given to respondents 1 and 2 to rectify the same.7. The learned Civil Judge has clearly noticed the fact that each page of the election petition was indeed signed by the petitioner and election petition does contain the signature of the petitioner therein after the prayer column. Even if the said verification cannot be said to be in terms of the requirement of CPC even then the learned Civil Judge was legally bound to give an opportunity to the respondents 1 and 2 to rectify the mistake. It is only after noticing the relevant case law that the learned Civil Judge has granted an opportunity to respondents 1 and 2 to rectify the mistake and has rejected the application filed by the petitioner. Since the learned Civil Judge has given cogent and convincing reasons that too based on relevant case-law the impugned order cannot be faulted by this Court.For the reasons stated above this Court does not find any merit in the present writ petition; it is hereby dismissed.