Gauhati High Court
Kanakeswar Narzary vs Deputy Commissioner And Ors. on 5 March, 2003
Equivalent citations: (2003)2GLR243
Author: I.A. Ansari
Bench: I.A. Ansari
ORDER I.A. Ansari, J.
1. This misc case has arisen out of Election Petition No. 4/1999, which has been instituted by the present petitioner, namely, Sri Kanakeswar Narzary under Sections 80 and 80A of the Representation of the Peoples Act. 1951, challenging the election of the Respondent No. 9, Shri Sansuma Kungur Bwiswmuthiary, who got elected to the Lok Sabha in the last Parliamentary election held in 1999.
2. In a nutshell, let me narrate the material facts and various stages, which have led to the institution of the present Misc Case :-
(i) In the course of the trial of the aforesaid Election Petition No. 4/ 1999 before P. C. Phukan, J (since retired), the respondent No. 9, on receipt of the notice from the Court, entered appearance through his learned counsel and filed an application under Section 86 of the Representation of the People Act 1951 (hereinafter referred to as "the RP Act") and Order VII Rule 11 read with the provisions of Order VI Rule 16 of the Code of Civil Procedure praying for striking out the paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 to 35 of the Election Petition on the ground that the paragraph 36 of the Election Petition, which stands captioned as "Grounds" arising out of paragraphs 1 to 35, had not been verified in any manner, although the Election Petition contains a verification (at page 18 of the election petition) and an affidavit (at page 19 of the election petition). This application gave rise to Misc Case No. 9/2001 in Election Petition No. 4/1999. In the aforesaid miscellaneous application praying for striking out the paragraphs aforementioned, the respondent No. 9 has taken a stand in paragraph 5 of the application that since the "grounds" contained in paragraph 36 of the Election Petition have not been verified in any manner, those "grounds" cannot form the basis of any trial and, hence, these grounds cannot be taken into account for the purpose of adjudication of any issue in the Election Petition.
(ii) It appears from the records that Misc Case No. 9/2001 aforementioned was heard on different dates. It also appears from the records that in the course of the hearing of the aforesaid Misc Case, the Election Petitioner filed an application under Order VI Rule 17 of the Code of Civil Procedure read with Section 87 of the RP Act praying for amendment of his election petition. This Misc application gave rise to present Misc Case No. 24/2002. By his said amendment application, the Election petitioner prayed leave of the Court to amend the Election Petition by inserting the words "true to my knowledge" in paragraph No. 36 of the Election Petition, wherein the words "materially affect" occurs in between paragraphs 35 and 38 in the third line of the verification of the Election Petition at Page No. 18 and the said paragraph 36. In short, in the present Misc Case No. 24/2002, the Election Petitioner seeks to verify the words "materially affect" occurring under Ground No. 6 as "true to my knowledge". As against the said amendment application, the respondent No. 9, the returned candidate, has filed his objection.
(iii) It further appears from the records that the Court ordered for listing of the amendment application for consideration keeping the hearing of the striking out application in abeyance. Hence, on the retirement of P. C. Phukan, J, the amendment application has now been posted for hearing as per earlier order and the amendment application has been accordingly heard.
3. I have heard Mr. A. M. Mazumdar, learned senior counsel assisted by Mr. M. Sarania, on behalf of the election petitioner, and Mr. K. P. Pathak, learned senior counsel assisted by Mr. S. S. Dey, learned counsel appearing on behalf of the respondent No. 6. None has appeared on behalf of the remaining respondents.
4. According to Mr. Mazumdar, what is sought to be amended is only a defect in the verification and such a defect in verification is always a curable defect. In support of his contention, Mr. Mazumdar has relied on the Apex Court's decision reported in AIR 1999 SC 768 (H. D. Revanna v. G. Puttaswamy Gowda). Relying on paragraph 14 of the said decision, Mr. Mazumdar has argued that non-compliance of Section 83 of the RP Act may lead to dismissal of an election petition only if the matter falls within the ambit of Order 6 Rule 16 or Order 7 Rule 11 CPC and any other defect in verification of the election petition or the affidavit accompanying the election petition will be curable and not fatal to the election petition.
5. The paragraph 14 of the decision in H. D. Revanna (supra) is quoted below :
"14. The argument is no doubt attractive. But, the relevant provisions in the Act are very specific. Section 86 provides for dismissal of election petition 86 provides for dismissal of election petition in limine for non-compliance of Sections 81, 82 and 117. Section 81 relates to presentation of election petition. It is not the case of the appellant before us that the requirement of Section 81 were not complied with though in the High Court a contention was urged that a true copy of the election petition was not served on the appellant and thus the provisions of Section 81 were not complied. Sections 82 and 117 are not relevant in this case. Significantly Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Section 86. This court has laid down that non-compliance of Section 83 may lead to dismissal of the petition only if the matter falls within the scope of Order 6, Rule 16 or Order 7 Rule 11 CPC defect in verification of the election petition or the affidavit accompanying election petition has been held to be curable and not fatal." (emphasis is added)
6. While elaborating the aforesaid argument, Mr. Mazumdar, has drawn my attention to the provisions of Section 83 of the RP Act and Order 6 Rules 16 and Order 7 Rule 17 of the CPC. For the sake of brevity, Section 83 is quoted herein below :
Section 83 contents of petition -"1. An Election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies :
(6) shall set forth full particulars of any corrupt practice that the petitioner allied including as full statement as possible of the names of the parties alleged to have committed such corrupt practice and date and place of the commission of its such practice ; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :
Provided that where the petitioner 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."
7. In support of his above contention, Mr. Mazumdar has also relied on paragraphs 21 & 28 of the judgment reported in (1991) 3 SCC page 375 (F. Sapa and Ors. v. Signova and Ors.) The said two paragraphs are quoted hereinbelow :
"21. It must at the outset be realised that Section 86(1) which lays down that the High Court's shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 does not in terms refer to Section 83. It would, therefore, seem that the Legislature did not view the non-compliance of the requirement of Section 83 with the same gravity as in the case of Section 81, 82 or 117. But it was said that a petition which does not strictly comply with the requirements of Section 83 cannot be said to be an election petition within the contemplation of Section 81 and hence Section 86(1) was clearly attracted. In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore one of the defects pointed out was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal and other sources, the petitioner did not in so many words state that the advice and information received was believed by him to be true. The Election Tribunal held that this defect was a matter which came within 83(1)(c) and the defect could be cured in accordance with the principles of the Code. This Court upheld this view in the following words : (SCR P. 583).
"It seems clear to us that reading the relevant sections in part IV of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Clause (c) of Sub-section (1) of Section 83 is fatal to the maintainability of the petition."
"It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since Section 83 is not one of the three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless, it is shown to be an integral part of the petition under Section 81."
"28. From the text of the relevant provisions of the RP Act, Rule 94A and Form 25 as well as Order 6 Rule 15 and Order 129 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured, (ii) It is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true, (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed Form 25 can be cured unless affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under Section 81(3) as indicated earlier. Similarly, the Court would have to decide in each individual case whether the schedule or Annexure referred to in Section 83(2) constitutes an integral part of the election petition or not ; different considerations will follow in the case of the former as compared to those in the case of the latter." (emphasis is supplied)
8. The third case, in support of his argument, as cited by Mr. Mazumdar, is reported in (2001) 1 SCC 481 (RP Moidutty v. P. T. Kunju Md. and Anr.), Mr. Mazumdar has relied on paragraphs 33 & 35 of this judgment, which are quoted hereinbelow :
"33. The affidavit filed by the petitioner in support of the election petition as required by Rule 94A also does not satisfy the requirement of the proviso to Sub-section (1) of Section 83 of the Act and Form 25 appended to the Rules. The several averments relating to commission of corrupt practice by the first respondent as contained in paras 4 to 12 and 16 of the petition have been verified as true to the best of "my knowledge and information"... both, without specifying which of the allegations were true to the personal knowledge of the petitioner and which of the allegations were basis on the information of the petitioner believed by him to be true. Neither, the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to such facts as were not in his own knowledge."
35. All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by the Supreme Court in F. A. Sapa v. Singopra the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (see Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and A. S. Subharai v. M. Muthiah). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless, the defect in verification was rectified, the petition could not have been tried. For want of affidavit in the required form and also for lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. In fact, the present one is fit case where the petition should have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings." (Emphasis is supplied)
9. Mr. Mazumdar seeks to derive strength for his above submissions from the law laid down in Dr. Vijay Laxmi Sadho v. Jadadish, reported in (2001) 2 SCC 247. By this judgment, the Apex Court has agreed with its earlier decision in F. A. Sapa (Supra) regarding curability of a defective verification.
10. It is pointed out by Mr. Mazumdar that pleadings in an election petition or for that matter, pleadings in a plaint or written statement has to be read as a whole. Since in paragraph 36 of the election petition, the election petitioner has made an averment to the effect that the result of the election in so far as it concerned the returned candidate has been materially affected due to illegal acceptance of nomination of Respondent No. 7, such a sentence has to be construed as a part of the election petition and hence, the said statement contained in paragraph 36 should be allowed to be verified treating the non-verification of the same as a curable defect.
11. It is also pointed out by Mr. Mazumdar that the sentence sought to be verified by way of amendment is itself a statement of material fact and by the present application, such a statement of material fact is, now, sought to be verified correctly.
12. It is last submitted by Mr. Mazumdar that by the present amendment application, neither a new statement of fact is sought to be included in the pleadings nor is any material fact sought to be amended. Hence, the prayer for amendment of the verification is, submits Mr. Mazumdar, allowable as per the law laid down by the Apex Court.
13. Objecting to the amendments, as sought for by the election petitioner, Mr. Pathak has submitted that as per the mandate of the provisions of Section 81 of the RP Act, an election petition has to be filed within 45 days from the date of election and there is no provision for condonation of delay in filing an election petition. As per Section 83 of the RP Act, such election petition, filed before the expiry of the limitation period, must contain only statement of material facts on which the election petitioner seeks to rely, provided, however, that when in an election petition, the election petitioner prays for setting aside the election of returned candidate on the ground of his corrupt practice as enumerated under Section 123 of the RP Act, the election petitioner, in addition to the statement of material facts, must also set forth full particulars of any such corrupt practice as alleged. Mr. Pathak points out that as per the mandate of Section 86(5) of the RP Act, after the filing of the election petition, only the amendment/amplification of particulars of a corrupt practice already alleged in the election petition is permissible and not the amendment of the statement of material facts. However, a statement of material fact, Mr. Pathak submits, may be also allowed by resorting to the provisions of the CPC provided that such amendment is done with the permission of the Court before the expiry of the statutory period of limitation, i.e., 45 days as envisaged under Section 81 of the RP Act.
14. Pointing out to the contents of the present election petition, Mr. Pathak submits that in the election petition, the election petitioner has set out facts from paragraphs 1 to 35 and the very language of the paragraph 36 shows that on the basis of the facts-stated in paragraphs 1 to 35, the grounds have been enumerated in paragraph 36. Therefore, the election petitioner, contends Mr. Pathak, never meant these "grounds" to be the statement of facts, while filing the election petition, and for this reason only, the election petitioner did not verify these grounds in the verification of the election petition. Since, according to Mr. Pathak, there is no mention, not even a whisper, about the election result being materially affected due to improper receipt of nomination paper in paragraphs 1 to 35, it is evident that if the ground as stated in paragraph 36 is, now, allowed to be verified, as sought for, the same would result in giving rise to a new statement of fact or alternatively, it would amount to addition of a new statement of fact after paragraph 35 and that too after the expiry of the said period of limitation. Such addition, Mr. Pathak further submits, would definitely give rise to a new cause of action, which, otherwise, would not have arisen from the pleadings made from paragraphs 1 to 35.
15. Relying on the same decision as cited by Mr. Mazumdar, i.e., F. A. Sapa (supra). Mr. Pathak points out from the paragraph 19, of the decision that the Apex Court has even laid down that the amendment of the statement of material fact, whether it be in respect of corrupt practice or otherwise, is not permissible under the law and, thus, the Court, according to Mr. Pathak, should be liberal in respect of only such amendments, which fall within the purview of Section 86(5) of the RP Act. Mr. Pathak reiterates that the effect of allowing the amendments of verification on the pretext of treating, the same as a "mere defect" in the instant case would amount to introduction of a new statement of material facts.
16. Mr. Pathak distinguishes the facts of the case of F. A. Sapa (supra) from the facts of the present case by pointing out that paragraphs 3,16, 17, 25, 31 and 39, which were sought to be verified through amendments in the in F. A. Sapa (supra), related to material particulars and the hence, it was allowed by the Apex Court, but in the instant case, it is a "ground", which is sought to be verified and through such amendment, the election petitioner seeks to introduce a statement of material fact.
17. Mr. Pathak also distinguishes the case of H. D. Revanna (supra) from the facts of the present case by pointing out to the paragraph 23 of this decision, wherein the Apex Court reiterated its earlier position by stating that a statement of material fact cannot be allowed to be amended after the expiry of the period of limitation prescribed for an election petition, Mr. Pathak further points out referring to paragraph 5 of the decision in H. D. Revanna (supra) that in the case of H. D. Revanna (supra), the election petitioner had, at least, clearly mentioned which of the matters were true to the knowledge and information of the election petitioner without mentioning, however, the exact numbers of the paragraphs, but it is not the same situation in the instant case. Likewise, the case of RP Moidutty (supra) is, according to Mr. Pathak, distinguishable from the facts of the present case inasmuch as in RP Moidutty (supra) statements of facts were, at least, verified even though wrongly, but in the present case, paragraph 36 was not verified as a statement of fact.
18. It is also submitted by Mr. Pathak that no amendment should be allowed to bring in a new cause of action and that the sentence appearing in paragraph 36 of the election petition being, admittedly, a "ground", the statement, contained in para 36, cannot be converted into a statement of fact in the garb of amendment of the verification, for, any such amendment would, if introduced, give rise to a new cause of action hitherto unknown, in support of this submissions, Mr. Pathak relies on (1984) 3 SCC P. 352 (para 16).
19. It is further submitted by Mr. Pathak that election petitioner is debarred from amending the plaint, which would amount to introduction of a new fact after the period of limitation prescribed. In support of his contention he relies on (1996) 1 SCC P. 90 para 5 at Page No. 93.
20. Mr. Pathak contends that this Court has to see and consider the effect of amendment of the plaint, as sought for, with reference to the contents of the election petition as a whole. If the amendment, as sought for, is allowed, it would amount to a change in the nature of the suit itself inasmuch as the sentence sought to be included in the verification finds place only in the "ground" portion of the petition and has no correlation with the facts stated in paragraph 1 to 35 of the election petition. Such an amendment, according to Mr. Pathak, is not permissible under the law. In support of this contention. Mr. Pathak relies on AIR 2001 SC P. 2607 = (2001) 6 SCC P 163).
21. Mr. Pathak further relies on the decision cited in (2001) 8 SCC P. 223 (P. 238) to show that whatsoever is stated as ground in paragraph 36 arising out of paragraphs 1 to 35 cannot be treated as statement of material fact inasmuch as to be a statement of material fact a statement must be a positive averment of positive fact or of a negative fact. Since paragraph 36, as it stands now, is, according to Mr. Pathak, not such a positive averment and being admittedly only a ground, it cannot be converted into a statement of fact by allowing the amendment of the verification.
22. Lastly, Mr. Pathak submits that the present amendment application has been filed by the Election petitioner as an after thought to improve his case and that too, after the filing of the striking out application. Had the striking out application, i.e. Misc Case No. 9/2001 been heard, submits Mr. Pathak, prior to the hearing of the amendment application, the whole of the election petition was likely to be dismissed in limine in view of the law laid down by the Apex Court in (2001) 8 SCC P 233 and (2000) 2 SCC P. 294, for, after striking out of paragraphs 1 to 35 under the provisions of the CPC nothing would have been left as triable issue in the present election petition.
23. Lending support to the submissions made by Mr. K. P. Pathak, Mr. S. S. Dey, learned counsel, has submitted that Section 100 of the RP Act lays down the grounds on which an election can be declared as void. In the case at hand, points out Mr. Dey, the ground, which is sought to be made a part of the main election petition, with the help of the amendment of the verification, shows that according to the election petitioner, improper acceptance of nomination of respondent No. 7 has materially affected the result of the election. Section 100 of the R P Act, submits Mr. Dey, clearly lays down under Clause (d) that one of the grounds for setting aside the election is that improper acceptance of nomination of a candidate has the grounds for setting aside the election is that improper acceptance of nomination of a candidate has materially affected the result. It is, thus, clear, contends Mr. Dey, that if the amendment, as sought for, is allowed, the petitioner will be able to introduce a material fact into his pleading, whereas without such a pleading, the election petition is not maintainable at all inasmuch as the entire election petition barring what has been sought to be amended does not disclose any cause of action
24. Upon hearing the learned counsel for the parties and upon perusal of the materials on record, I am of the view that this Court has to, first, decide whether the amendment of a verification is a curable defect and, if so, whether every defect in a verification can be cured or there is a limit to which amendment of a verification is permissible under the law.
25. The issue as to whether a defect in the verification of an election petition is curable or not was dealt with and decided by the Apex Court in F. A. Sapa (supra). The decision rendered in this case has been followed by a three-Judge Bench of the Apex Court in Dr. Bijoy Laxmi Sadho v. Jagadish, (2001) 2 SCC 247. Taking note of the law laid down in F. A. Sapa (supra), the Apex Court has dealt with the subject of defects in the verification in the following words :
"10. In F. A. Sapa v. Singora a three Judge Bench of this Court specifically dealt with an issue concerning defects in the verification of an election petition as well as of defects in the affidavit accompanying an election petition wherein allegations of corrupt practice are made. After considering the provisions of Sections 83 and 86 of the Act, as also the requirements of Form 25 prescribed by Rule 94A of the Rules and relevant provisions of the Code of Civil Procedure, it was held : (SCC pp. 403-04, para 28)"
28. From the text of the relevant provisions of the RP Act. Rule 94A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the (i) a defect in the verification, If any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true, (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed Form 25 can be cured...."
"11. This judgment was followed by a Division Bench of this Court in H. D. Revanna v. G. Puttaswamy Gowda."
"12. We are in respectful agreement with the view expressed in F. A. Sapa case and in view of settled law the conclusion becomes irresistible that defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under Section 86(1) of the Act. The learned Single Judge of the High Court was, therefore, perfectly justified in dismissing IA No. 2806 of 1999."
26. In the face of the law as has been laid down in F. A. Sapa, reiterated in H. D. Revanna (supra) and adopted in Dr. Bijoy Laxmi Sadho (supra), there can be no escape from the conclusion that defect in verification is curable and amendment seeking to remove the defect in the verification cannot be declined and as long as the amendment sought for, does not lead to any new cause of action or to the introduction of a material fact beyond the specified period of 45 days the same cannot be disallowed.
27. It is also of immense importance to note that in Dr. Bijoy Laxmi Sadho (supra), while interpreting the scope of Sections 86(1), 81, 82 and 117 of the RP Act, the Apex Court has clearly laid down that the requirement of filing of affidavit along with an election petition in the prescribed form in support of allegations of corrupt practice is not such, which can make an election petition liable to dismissal in limine under the proviso to Section 83(1). It has further been laid down in this case by the Apex Court that consequences of a defective affidavit is a matter to be judged at the trial of election petition and not under Section 86(1) for the purpose of dismissing the election petition in limine.
28. I am guided to adopt the above views from the following observations of the Apex Court in Dr. Bijoy Laxmi Sadho :-
"9. An election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of "section 81 or Section 82 or Section 117 of the Act". The requirement of filing an affidavit along with an election petition in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Thus an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with the provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly "defective" affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case."
29. It is not in dispute before me that if an election petition is not challenged on the ground of corrupt practice, what an election petition needs to contain, under Section 83(1)(a), is a concise statement of material facts on which the petitioner relies. It is also not in dispute before me that under Section 83(1)(c), an election petition shall be signed by the petitioner and verified in the manner as laid down in the Code of Civil Procedure for verification of pleadings.
30. Before coming to the question as to whether the amendment of verification, as has been sought for should be allowed, it is pertinent to take note of the relevant provisions of Section 100 of the RP Act, which lays down that if the High Court is of opinion -
(a) ... ... ...
(b) ... ... ...
(c) ... ... ...
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate (by an agent other than his election agent), or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act of any rules or orders made under this Act, The High Court shall declare the election of the returned candidate to be void.
31. From a bare reading of Section 100(1)(d), it becomes abundantly clear that mere improper acceptance of nomination cannot be a ground for declaring the election, in question, as void ; what is additionally required to be proved to the satisfaction of the Court is that the result of the election, in so far as it concerns the returned candidate, has been materially affected by improper acceptance of any nomination.
32. In the light of the succinctly worded provisions of Section 100(1)(rf), when the present election petition is read, it becomes clear, and not disputed by the learned counsel for the parties appearing before me, that in the absence of ground No. 6, mentioned under paragraph No. 36, the entire election petition contains nothing to enable the Court to strike down the election, which is under challenge. The ground No. 6 reads as follows :
"6. For that the result of the election in so far as it concerned the returned candidate has materially been affected due to illegal acceptance of nomination of respondent No. 7 which was not signed and subscribed to before an authorised officer by the Election Commission of India."
33. By making this amendment application, the petitioner has contended that there was an inadvertent omission in mentioning in the verification clause that the contents of Para. 36 were "true to my knowledge" and that the words "materially been affected", which occur in ground No. 6 of para 36, should be allowed to be verified "as true to the petitioner's information derived from the records".
34. It is, no doubt, true that unless ground No. 6 falls within the expression "concise statement of facts" or what is commonly known as material facts, the election petition is devoid of any ground, which can make the Court interfere with the election. Viewed from, this angle, the present application cannot be allowed if this Court finds that it is correctly contended, on behalf of the contesting respondent, that with the help of amendment of verification, what the petitioner has sought to achieve is to make ground No. 6 a concise statement of fact and this amendment would amount to Introduction of a new cause of action.
35. While considering the above aspects of the matter, it is important to bear in mind that under Order 6, Rule 1 CPC, pleading means plaint or written statement. Thus, pleading will include the entire election petition and not merely the contents of paragraphs 1 to 35 of the election petition. In other words from a bare reading of the definition of pleading, it is clear that the election petition, as a whole, has to be treated as pleading, because the election petition stands on the same footing as does a plaint in a civil suit.
36. It is also well settled that pleading shall be read as a whole. A reference may be made, in this regard, to AIR 1976 SC 774.
37. As to what shall be the contents of plaint can be found laid down in Order 6, Rule 1, and it is Section 83 of the RP Act, which lays down what shall be the contents of an election petition.
38. A close reading of Order 6, Rule 1 vis-a-vis Section 83 clearly, indicates that Section 83 is much more liberal than Order 6, Rule 1, for, Order 6, Rule 1 not only states as to what shall be mentioned in the pleading, but it also mentions as to what shall not be stated in the pleading; whereas in contrast, Section 83 merely states as to what shall be the contents of the election petition and it does not give any indication that there is any bar in including any other materials, which the election petitioner deems necessary.
39. Unlike Order 6, Rule 3, which prescribe the form for plaint, the RP Act does not prescribe the form for election petition.
40. Now, the question is as to whether grounds can be treated as a statement of material facts. Assuming that in a plaint, the plaintiff states that the following are the grounds for eviction of the tenant, such a pleading cannot be said to be incorrect or not maintainable nor can it be said that since the plaintiff has used the word "ground", the plaint is devoid of material facts. If the grounds give material facts, then, the grounds contained in the plaint have to be treated as a part of the plaint containing material facts. Similarly, in an election petition, if the election petitioner uses the word "ground" for seeking to get the election of the returned candidates set aside, the grounds, so furnished, are to be road as part of the plaint or pleading.
41. Even if in a given case, the defendant in a written statement merely states that following are the grounds on which the plaint is not maintainable, such a written statement cannot be said to be not maintainable and the grounds, so given in the written statement, are to be read as part of the pleading of the defendant.
42. In the case of Sumant N. Balakrishna and Anr. v. George Fernandez and Ors. 1969 (3) SCC 238 the Apex Court has laid down that material fact will mean a positive assertion of a positive fact or of a negative fact.
43. A dose reading of sub-para 6 of para 36 in the election petition shows that the petitioner has asserted therein a positive fact, namely, that illegal acceptance of nomination of respondent No. 7 has materially affected the result. This assertion is, undoubtedly, a positive assertion of a positive fact, which may or may not be true.
44. It is worth noticing that Section 83 says what is required to be stated as contents of an election petition. Hence, if a material fact is stated in the grounds, it is to be treated as a part of the pleading of the concise statement of material facts.
45. In fact, it is not disputed before me that sub-para 6 of para 36 of the present election petition contains material facts. It has been pointed out by Mr. Pathak that a close reading of Para 36 will show that according to the election petitioner, for what he has submitted in paras 1 to 35, the election, in question, is bad on the grounds stated in para 36. There is, according to Mr. Pathak, no assertion of any material fact in the grounds mentioned under para 36. I find difficult to concede to this submission of Mr. Pathak inasmuch as sub-para 6, if read closely, clearly indicates a positive assertion of a positive fact by the election petitioner.
46. It is settled law that if a material fact is not verified, it can be cured by allowing the person concerned to verify the material fact. It is also settled position of law that if verification is defective, it can be allowed to be cured.
47. Though it has been submitted, on behalf of the contesting respondents, that allowing the amendment application will, in turn, allow the petitioner to introduce a new cause of action, it is important to bear in mind that since sub-para 6 already contains material facts, allowing this sub-para to be properly verified cannot be said to be tantamount to allowing the petitioner to introduce a new cause of action.
48. What is proposed to be done by way of amendment is really to cure the defects of the verification. What effect such curing will, ultimately, have on the election petition is a matter, which wilt be looked into, and determined, in the trial court If a material fact was sought to be amended beyond the period of limitation, this Court could not have permitted the amendment; but is it the case ? In view of the fact that sub-para 6 of para 36, according to what I have held, already contains material facts, the amendment of the verification, as sought for, cannot be described as the amendment of material facts. On this ground also, therefore, the objection raised by the contesting respondent is not sustainable.
49. It may be noted that it is Order 6, Rule 15 CPC, which deals with verification of pleadings. According to Order 6, Rule 15, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some person proved to the satisfaction of the court to be acquainted with the facts of the case and that the person verifying shall specify by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
50. From a careful reading of Order 6, Rule 15, it clearly transpires that verification shall be of pleadings and not merely of material facts. In other words, material facts may form part of the pleadings, but the material fact may not necessarily in themselves be complete pleading. Viewed from this angle, when amendment of verification of the pleadings is possible, it logically follows that amendment of Verification of the entire election petition is possible. It cannot, therefore, be said that amendment of verification with regard to the pleadings contained in the grounds of an election petition cannot be allowed. In other words when amendment of verification of any part or portion of the pleadings is permissible, the amendment of verification relating to pleadings in the grounds is equally possible.
51. It is, no doubt, true that in para 36 of the election petition, as pointed out by Mr. Pathak, it is stated by the election petitioner that the election of the returned candidate, namely, respondent No. 9 is liable to be declared void and set aside on the following grounds and it is under ground No. (6) that the petitioner has alleged to the effect that the result of the election, in so far as it concerns the returned candidate, was materially affected due to illegal acceptance of nomination of respondent No. 7. Since I have already held that the grounds contained in the election petition also form a part of the pleadings of the election petitioner, it logically follows that the statement made in ground No. 6 is a statement of material fact and it cannot, therefore, be said that by allowing amendment of the verification, a material feet is sought to be introduced, for the first time, in the election petition.
52. From the law laid down in Dr. Bijoy Laxmi Sadho (supra), it is clear that while considering the question of amendment of the defect, which has crept in a verification, the court shall not restrain itself from allowing the amendment on consideration of what bearing such an amendment will have on the case of the election petitioner. Not a single authority could be cited on behalf of the contesting respondent to show that while considering the question of amendment of verification, the Court is also required to consider as to what consequences such amendment will have on the entire pleadings of the party concerned.
53. As a principle of law, it cannot be disputed that amendment does not relate back to the date of filing of the suit and cannot cure the defect of limitation. Where the amendment changes the basis of the suit itself, the suit would be taken to have been filed on the date of amendment for the purpose of limitation. This is the position of law which has been laid down in Vishwambhar v. Laxmi Narayan (2001) 6 SCC 163.
54. It is true that amendment cannot be allowed for the purpose of filling up the gap in the election petition. Reliance in support of this contention placed by Mr. Pathak on Bashir Musa Patel v. Satyawan Ganpat Jowkar, (1997) 1 SCC 751, is correct, but in the case at hand, the petitioner has sought for amendment of the verification and the defects in verification being curable, it cannot be disallowed on the ground that it will allow the election petitioner to fill up the gap, which would gravely prejudice the respondent at the trial, more so, when the election petition, as a whole, in the opinion of this Court, is pleading, and hence, the ground in an election petition has to be read as a part of the pleading.
55. Even in the case of R.P. Moidutty v. P.T. Kunju Mohammad, (2000) 1 SCC 481, the Apex Court has held that the defect in a verification is not fatal to an election petition and it can be cured. Dealing with the scope of amendment of verification, the Apex Court observed as follows :
"35. All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by the Supreme Court in F. A. Sapa v. Singora the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (see Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and A. S. Suhharai v. M. Muthiah,). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless, the defect in verification was rectified, the petition could not have been tried. For want of affidavit in the required form and also for lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. In feet, the present one is fit case where the petition should have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings." (emphasis is supplied)
56. What is material fact and what is cause of action has been dealt with and defined in Harishanker Jain v. Sonia Gandhi (2001) 8 SCC 233, thus : Section 83(1)(a) of RP Act, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez, Jitendra Bahadur Singh v. Krishna Behari), Merely quoting the words of the section like chanting of a mantra does not amount of stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P. J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such materials facts after the time-limit prescribed for filing the election petition."
57. That the amendment of pleadings cannot be permitted after the relief sought for becomes time-barred during the pendency of the proceeding is also clear from the decision rendered in Muni Lal v. Oriental Fire & General Insurance Co. Pvt. Ltd., (AIR 1996 SC 642).
58. The difference between material fact and material particulars has been noticed and laid down by the Apex Court in V. Narayana Swamy v. C. P. Thirunavukkarasu, (2000) 2 SCC 294. In this case, in para 23, while dealing with the difference between the material facts and material particulars, the Apex Court (aid down as follows :
"There is difference between 'material facts', and 'material particulars'. While the failure to plead material facts is fatal to the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. 'Material facts' mean the entire bundle of facts, which would constitute a complete cause of action." (emphasis is added)
59. What is sought to be amended is only the "verification" clause of the plaint. There is a distinct difference between the terms "verification" in a plaint and "affidavit" in a plaint. If one reads these two terms appearing in Section 80 of the RP Act in conjunction with the provisions of Order 6, Rule 15, it becomes abundantly clear that by the word "verification" in a plaint, what is meant is that the person verifying the pleadings indicates, by reference to the numbered paragraphs of the pleadings, as to which of the numbered paragraphs of the pleading are true to his own knowledge and which are true to his information, which he believes to be true. On the other hand, an affidavit is, a solemn declaration and affirmation, on oath, before a competent Officer of the Court declaring which of the facts are true the knowledge of the person swearing the affidavit and which of the facts are true to his information. The sole purpose of such an affidavit is to give sanctity to the statement of facts pleaded in a plaint or written statement. Under the RP Act, since allegation of corrupt practices as enumerated under Section 123, are serious and grave in nature. Section 83 of the RP Act mandatorily provides for an affidavit along with an Election Petition with the sole purpose of fastening election petitioner with the personal responsibility for making allegations of corrupt practice on the part of the returned candidate.
60. In the instant case, what is sought to be amended is not an affidavit but only the verification clause of the election petition in order to enable the election petitioner to specify as to whether the facts stated in paragraph No. 36(6) of the petition are true to his knowledge and/or information.
61. The contention of the respondent/returned candidate to the effect that under the garb of the amendment, the election petitioner is seeking to introduce a new statement of material fact and thereby to change the basis of the petition is wholly untenable and unsustainable in law inasmuch as the facts stated in paragraph 36(6) is undoubtedly a "statement of material facts".
62. Coming to the instant amendment application, if we examine the said amendment application in conjunction with the election petition already filed, we will find that in paragraph 36(6), a positive assertion of a positive fact already exists inasmuch as the said paragraph 36(6) in no uncertain terms, states that the result of the election, insofar as it concerned the returned candidate, has materially been affected due to illegal acceptance of nomination of Respondent No. 7, which was not signed and subscribed to before an authorised officer specified by the Election Commissioner of India. The election petitioner, now, by the amendment application, only seeks to indicate as to whether the statement made in paragraph 36(6) of the election petition is true to his knowledge or information. Therefore, this should not be construed as introduction of a new statement of a material fact
63. Regarding the contentions of the respondent/returned candidate that the paragraph 36(6) appears under the heading "grounds" only and should not be construed as a part of the pleading of the election petitioner or, for that matter, should not be treated as statement of fact is wholly unsustainable inasmuch as Section 83 of the RP Act nowhere mentions that a statement of material fact cannot be pleaded under heading "ground". That apart, in a catena of cases, the Apex Court has laid down that pleading has to be read as a whole. Reference may be made to AIR 1976 SC 744.
64. Mr. Mazumdar, while agreeing with Mr. Pathak, appearing for the returned candidate, that though a statement of material fact can neither be introduced nor amended after the expiry of the period of limitation as contemplated under the RP Act, points out that this is not the situation in the instant case. In the instant case, as rightly contended by Mr. Mazumdar, a statement of material fact already exists under paragraph 36(6), though under the heading "ground".
65. I find that there is no dispute at the Bar regarding the curability of the verification clause of an election petition through an amendment application.
66. Mr. Mazumdar, dealing with the submission of Mr. Pathak that amendment of the instant nature, if allowed, would introduce a new cause of action, contends that the cause of action in a suit arises out of a material fact alleged and denied by the parties. In the instant case, the material fact of improper reception of nomination paper of the Respondent No. 7 is already pleaded in no uncertain terms. Therefore, verification of paragraph 36(6) by the election petitioner indicating as to whether the same are true to his knowledge or information cannot be said to lead, if allowed to be corrected, to the introduction of a new cause of action hitherto unknown in the election petition.
67. I am fortified in reaching the conclusion, which I have reached above from the decision in Sitaram Gupta v. Bijoyesh Mukherjee, reported in (1959) 53 CWN 175, wherein the Court was confronted with almost a situation similar to the one that exists in this case.
68. In Sitaram Gupta (supra), it was alleged that the election petition was prepared in haste and the allegations in paragraph 18 were, through inadvertence and oversight, verified as submissions, while they should have been verified as true to knowledge. The election petitioner, therefore, sought to amend the verification clause by substituting the words "True to my knowledge" instead of the words "my submissions", so far as paragraph 18 was concerned.
69. Upon considering the decisions of the Apex Court in Bhikaji Keshao Joshi and Anr. v. Brijlal Nandlal Biyani and Ors. (AIR 1955 SC 999) and Harish Chandra Bajpai v. Triloki Singh and Ors. (1957) SCA 616, the Court observed and held as follows :
"On the point of jurisdiction, the second point of Mr. Acharya is that by allowing an amendment of the verification, the nature of the petition has been totally altered, because a fact which is true to knowledge is not the same as a fact which is merely a submission. This is not a sound argument. A fact or an allegation cannot be altered by the verification. The verification merely shows how the petitioner is subjectively related to the fact or allegation which is verified. I fail to see how alteration in the verification, alters the nature of the allegation or the fact. In my view, the Tribunal has jurisdiction to allow an amendment of the verification of the petition." (emphasis is supplied)
70. Considering the matter, therefore, in its entirety, the prayer for amendment made by the election petitioner is allowed.
71. Let the election petition be amended accordingly and the amended application shall be filed by the election petitioner within a period of two weeks from today.