The Kerala High Court on May 29, 2012 in B. Abdulla Vs. Jose held that “the power to amend can be exercised in all election petitions provided the same relates to particulars and not material facts”.
Justice V. Chitambaresh ruled that “the order allowing amendment of the plaint to include the name of one more voter who had allegedly indulged in double voting is legal and valid”.
# Election Petition
While dismissing the original petition filed against amendment of the election petition the High Court held that a distinction between ‘material facts’ and ‘particulars’ has to be borne in mind while considering an application for amendment of the election petition.
‘Material facts’ are primary or basic facts which must be pleaded in support of the case set up to prove cause of action. ‘Particulars’ on the other hand are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full or more clear.
The ‘material fact’ that there has been a double voting in violation of Section 76(3) exposing the election to a challenge under Section 102(1)(d)(iv) of the Act is already pleaded. Only the ‘particular’ that one more voter has indulged in double voting is sought to be incorporated by way of amendment. The same only amplifies the material fact and does not introduce an altogether different cause of action.
# The following questions arise for consideration in this original petition filed under Article 227 of the Constitution of India:
i) Can an election petition be amended wherein the election has been called in question on the ground of ‘double voting’ and not on the ground of ‘corrupt practice’ ?
ii) Is an amendment of the election petition permissible after the date fixed for the respondents to appear when the trial is deemed to have commenced in law ?
iii) Whether ‘material facts’ or ‘particulars’ could be introduced by such amendment after the time limit prescribed to question the election and is not the plea then barred by limitation ?
Divergent answers come from Mr.D.Krishna Prasad, Advocate on behalf of the petitioner and Mr.Jose J Matheikel, Advocate on behalf of the first respondent for these questions.