Madhya Pradesh High Court
Kundan Malviya vs Smt. Kanchan Tanve on 14 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1 E.P. No.2/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 14th OF OCTOBER, 2024
ELECTION PETITION No.2 of 2024
KUNDAN MALVIYA
Versus
SMT. KANCHAN TANVE AND OTHERS
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Appearance:
Shri Manoj Sharma - Senior Advocate with Shri Quazi Fakhruddin -
Advocate for the petitioner.
Shri Sanjay K. Agrawal - Senior Advocate with Shri Mihir Agrawal -
Advocate for respondent No.1.
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"Reserved on : 03/10/2024"
"Pronounced on : 14th/10/2024"
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ORDER
This Election Petition has been filed under Sections 80, 100(1)(b)(d) and 123 of Representation of People Act.
2. The Petitioner has challenged the election of respondent no.1 for the post of M.L.A. from 177 Khandwa (SC) Constituency, Khandwa. The voting for the said post was held on 17-11-2023 and votes were counted on 3rd of December 2023 and the respondent no.1 was declared as elected. The respondent no.1 got 109067 votes, whereas the Election Petitioner got 71018 votes.
3. The present Election Petition has been filed mainly on the ground that the Caste Certificate relied upon by the respondent no.1 was not issued as per law, therefore, the returning officer should have rejected Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 2 E.P. No.2/2024 her nomination paper. Thus, it is the case of the Petitioner, that respondent no.1 by supplying incorrect information and filling up of nomination papers on the basis of document which has no legal sanctity had cheated the voters to caste votes in her favour. Such an act of the respondent No.1 has materially affected the election of the petitioner. Another ground raised by Election Petitioner is that the respondent no.1 had given false information with regard to her dependents.
4. Initially, the respondent no.1 was proceeded ex-parte. Issues were also framed. However, thereafter, the respondent no.1 filed an application for setting aside ex-parte proceedings and by order dated 2- 7-2024, the ex-parte proceedings were set aside subject to payment of cost of Rs.50,000/-. The cost was deposited by the respondent no.1. The respondent no.1 has not filed her written statement so far.
5. I.A. No. 14204 of 2024 has been filed by respondent no.1 for dismissal of Election Petition under Section 86(1) of Representation of People Act, 1951 on the ground that the copy of the notice which has been supplied to the respondent no.1 is not in accordance with provisions of Section 81(3) of Representation of People Act. It is submitted that although every page of notice bears the signature and verification, but it does not bear the attestation that it is a true copy. Furthermore, the verification is not in accordance with provisions of Order 6 of CPC, i.e., verification of pleadings. It is submitted that the Election Petitioner has not challenged that the respondent no.1 does not belong to SC category. His only contention is that the caste certificate which has been issued by the competent authority and which was filed along with the nomination paper was not in accordance with law. It is further submitted that digital caste certificate was not filed. The caste Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 3 E.P. No.2/2024 certificate should have been issued mentioning the name of her father, but the caste certificate relied upon by the Election Petitioner contains the name of her husband. It is also submitted that provisions of Order 7 Rule 11 CPC is also applicable to the Election Petitions. Since, it has not been disputed by the Election Petitioner that the respondent no.1 belongs to S.C. category, therefore, her election cannot be set aside. Thus, it is submitted that the Election Petition filed by the Election Petitioner does not disclose Triable Issues. The affidavit in support of allegations of corrupt practice is not in accordance with form 25 of Representation of People Act. It is further submitted that merely because in earlier election, the respondent no.1 had given an information of 2 children only, would not mean that false information with regard to number of children was given by the respondent no.1. To buttress his contentions, the Counsel for the respondent no.1 has relied upon Judgments passed by Supreme Court in the case of Azhar Hussain Vs. Rajiv Gandhi reported in 1986 Supp SC 315, V. Narayanaswamy Vs. C.P. Thirunavukkarasu, reported in (2000) 2 SCC 294, Ravinder Singh Vs. Janmeja Singh reported in (2000) 8 SCC 191, Harishanker Jain Vs. Sonia Gandhi reported in (2001) 8 SCC 233, L.R. Shivaramagowda Vs. T.M. Chandrashekar reported in (1999) 1 SCC 666, Sopan Sukhdev Sable Vs. Charity Commissioner reported in (2004) 3 SCC 137, and R.P. Moidutty Vs. P.T. Kunju Mohammad reported in (2000) 1 SCC 481.
6. Per contra, the application is vehemently opposed by Counsel for Election Petitioner. It is submitted that every page of notice bears the signature of the Election Petitioner with verification, therefore, merely because the words "Attestation" and "true copy" were not mentioned, Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 4 E.P. No.2/2024 the same would not invite dismissal of petition. The verification of pleadings is in consonance with provisions of Order 6 Rule 15 of CPC. It is submitted that affidavit filed along with Election Petition fulfills all mandatory requirement, and even if this Court comes to a conclusion that the affidavit is not in accordance with law, then an opportunity be given to rectify the same. The Election Petition fully discloses the Triable Issues. It is submitted that if the Election Petition is not in accordance with Section 81 of Representation of People Act, only then, it can be dismissed under Section 86 of Representation of People Act. At the stage of Order 7 Rule 11 CPC, only the plaint averments are to be seen. To buttress his contentions, the Counsel for the Election Petitioner has relied upon the judgments passed by the Supreme Court in the cases of Subbarao Vs. Election Tribunal reported in AIR 1964 SC 1027, Anup Singh Vs. Abdul Ghani reported in AIR 1965 SC 815, Satya Narain Vs. Dhuja Ram reported in (1974) 4 SCC 237, Manohar Joshi Vs. Nitin Bhaurao Patil reported in (1996) 1 SCC 169, Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar reported in (2005) 2 SCC 188, M. Siddeshwar Vs. Prasanna Kumar reported in (2013) 4 SCC 776 and Neena Vikram Verma Vs. Balmukund Singh Gautam reported in (2013) 5 SCC 673.
7. Considered the submissions made by Counsel for Parties.
8. So far as the attestation as true copy is concerned, it is true that the Election Petitioner has not used the words "attestation" and "true copy", but every page of the Election Petition bears the signature of the Election Petitioner with verification. The verification done by Election Petitioner on every page reads as under :
Verification of Annexure I, Kundan Malviya, S/o Late Shobharam Malviya, Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 5 E.P. No.2/2024 Election Petitioner, do hereby verify that it is true to my personal knowledge that the contents of this documents are the same as contained in the original and nothing stated therein is false and nothing has been suppressed. Jabalpur Petitioner
9. Now the only question for consideration is that whether the signature of Election Petitioner on every page amounts to substantial compliance or not, and whether the Election Petition can be dismissed on the ground that the words "attestation" and "true copy" are not mentioned?
10. The Supreme Court in the case of Subbarao (Supra) has held as under :
24. The other type of defect which was claimed to constitute non-compliance with Section 81(3) was that the words "true copy" with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed. The order of the Returning Officer rejecting the nomination paper of the petitioner was filed with the original petition as an annexure to it, and certified copies were annexed to the copies of the petition.
But this certified copy did notcontain an endorsement stating that it was a "true copy" with the signature of the petitioner.
25. The High Court had held that so far as the defect in not reproducing the signature in the petition was concerned, it was cured by the fact that every page of the copy of the petition was attested to be a true copy and therefore it would not matter if the last page did not contain the signature. As regards the second, the High Court held that the failure to include the paragraph in the verification was only a clerical defect which had crept in through oversight as regards the other that it was no defect at all. This decision was upheld by this Court holding that the word "copy" in Section 81(3) meant a Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 6 E.P. No.2/2024 copy which was substantially so and which did not contain any material or substantial variation. By "copy" in Section 81(3) was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same at the original. Applying this test, this Court came to the conclusion that there was no failure to comply with the last part of Section 81(3), with the result that Section 90(3) of the Act was not attracted.
26. This Court besides left open the question as to whether any part of Section 81(3) was directory or whether any portion of it was mandatory. In the present case also, we do not propose to deal with the larger question as to whether Section 81(3) or any portion of it is merely directory. In view of the decision of this Court it would be clear that if there is a substantial compliance with the requirement of Section 81(3), the election petition cannot be dismissed by the Tribunal under Section 90(3). The question then is whether on the facts above-stated, there is or is not a sufficient and substantial compliance with Section 81(3). We have already pointed out that the appellant has complied with the following requirements:
"(1) The petition has been accompanied by the requisite number of copies.
(2) The copies that accompanied the petition were true copies.
(3) Each of those copies bore the signatures of the petitioner."
27. If the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document. Now in regard to this the learned Judges of the High Court themselves observed after referring to the terms of Section 81(3):
"No doubt, what is necessary is a substantial compliance with the requirement of attestation. For instance, if it is proved that the election petitioner has signed animo attestendi, and omitted the words „true copy‟ by mistake or inadvertently, there is a substantial requirement of the compliance of Section 81(3). The same may be said if the relative positions of the words „true copy‟ and of the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 7 E.P. No.2/2024 signature one below the other are not correct."
They however held that as there was no evidence of the signature having been appended animo attestendi, there was non-compliance with Section 81(3). The learned Solicitor-General while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that the signature at the end of the copy was meant only as a copy of that in the original petition and could not satisfy the requirement as to attestation of the copy. He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy, even if the words "true copy" were omitted to be put down. In that case, he said, one signature could be treated as representing the copy of the signature on the original and the other might be taken to have been made animo attestendi. We do not however consider that there is really need for so much refinement when one has to look at whether there is a substantial compliance with the requirement of this provision. If the signatures now found on the copies were intended to authenticate the document to which it is appended viz. the copy, it would only mean that the copy did not reproduce the signature in the original. There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with Section 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court in Murarka case is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances, we consider that there has been substantial compliance with the requirement of Section 81(3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal of the petition.
11. The Supreme Court in the case of Ram Prasad Sarma v. Mani Kumar Subba, reported in (2003) 1 SCC 289 has held as under:
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 8 E.P. No.2/202411. On the question of substantial compliance, the Constitution Bench in T.M. Jacob case has further observed as follows: (SCC p. 290, paras 35-36) "35. The object of serving a „true copy‟ of an election petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.
36. The expression „copy‟ in Section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of Section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation."
(emphasis supplied)
12. In the case of Anil R. Deshmukh v. Onkar N. Wagh a Bench of three Judges considered the question. The fact situation in that case as enumerated in para 3 of the judgment is as under: (SCC p. 207) "3. When the copies of the petition, documents and the affidavit were served on the respondents, the copy of the affidavit did not bear the endorsement of attestation found on the original or the seal or stamp of the attesting officer. The appellant signed below the rubber stamp endorsement „attested as true copy‟. But for the absence of the notarial endorsement, it was a true copy of the original as it was a xerox copy. The first respondent and the tenth respondent raised objections that the election petition should be dismissed in limine as the provisions of Section 83(1) of the Act were not complied with."
(emphasis supplied) The Court in para 17 of the judgment dealt with the matter in reference to the decision in Dr Shipra case and held as Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 9 E.P. No.2/2024 under: (SCC p. 212) "In the light of the rulings of the Constitution Bench referred to earlier, we have our own reservations on the correctness of the view expressed in Dr Shipra case but it is unnecessary in the present case to dwell on the same. ... We have already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case, the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance with the provisions of Section 81(3) read with Section 83(1)(c) of the Act...."
13. It is thus clear that the correctness of the broad proposition as laid in the case of Dr Shipra was doubted in the case of T.M. Jacob as well as Anil R. Deshmukh case. The Constitution Bench in T.M. Jacob case has indicated the correct position. Any defect, of whatever nature, in the true copy supplied to the respondent would not render the petition liable to be dismissed under Section 86 of the Act. Such defects in supply of true copies are not always incurable. The main consideration which would weigh is that the returned candidate must get a correct idea of the allegations of corrupt practices so that it may be possible to understand and meet the charges levelled against him. The true copy supplied should also reflect that the part of the petition containing the allegations of corrupt practices has been verified and sworn by the petitioner on oath. The fact that the name, stamp, seal and signature of the Notary are not indicated or missing in the true copy is not material nor the absence of stamp of attestation by the Notary. We will deal with the facts of this case in that regard a little later.
14. We may now consider the Constitution Bench decision in the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore referred to in the case of T.M. Jacob. The two objections mainly raised by the returned candidate were that there was non-compliance with Section 81(3) of the Act since copy of the election petition served on the respondent was not true copy of the original filed before the Election Tribunal nor was it properly attested to be a true copy under the signature of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 10 E.P. No.2/2024 the petitioner. The other ground was that there was non- compliance with Section 83 of the Act since the affidavit in respect of corrupt practices was neither properly made nor was it in the prescribed form. The Court held as under: (AIR p. 1551, para 11) "Having regard to the provisions of Part VI of the Act, we are of the view that the word „copy‟ does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of sub-section (3) of Section 81." In respect of the other objection it was found that the Election Tribunal has rightly pointed out that due to the inexperience of the Oath Commissioner mistake had occurred in the verification part of the affidavit and he had endorsed "verified by me" instead of "verified before me". The signature of the deponent had also been obtained at a wrong place. The verification was also not apparently in the prescribed form. It is observed (at AIR p. 1551, para 13) that "the mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioner‟s petition summarily". It was further pointed out that the defect can be remedied in accordance with the principles of the Code of Civil Procedure relating to verification of pleadings, accordingly even a correct affidavit could be filed later to rectify the defect.
15. In yet another decision reported in T. Phungzathang v. Hangkhanlian it has been held that the case of Harcharan Singh Josh does not lay the correct law. It has also been observed that an election petition accompanied by an affidavit has two parts out of which the verification part by the Oath Commissioner is not an integral part of the petition and the affidavit. If the copy furnished to the returned candidate does not contain the words as the true copy so far as the attestation part by the Oath Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 11 E.P. No.2/2024 Commissioner is concerned, it would not violate the requirement of furnishing of true copy of the election petition and the affidavit thereof. This is also a decision by a three-Judge Bench rendered on considering the decisions in the cases of Dr Shipra, Murarka Radhey Shyam and T.M. Jacob. It was held that in view of the two Constitution Bench decisions the case of Harcharan Singh Josh cannot be held as laying down the correct law. The Court followed the decision in the cases of T.M. Jacob and Anil R. Deshmukh. The fact situation of the case was also quite akin to the case in hand. The allegations of corrupt practices were made. The original petition contains the affidavit with all necessary endorsement and attestation by the Oath Commissioner. But the copy supplied did not contain any such verification or affirmation. While ascribing additional reasons in support of the decision, one of us (R.C. Lahoti, J.), who was a Member of the Bench observed that endorsement made by the officer administering oath to the deponent is not an integral part of the affidavit. Preparing, signing and swearing of an affidavit are acts of the deponent; administering oath and making an endorsement in proof thereof on the affidavit are acts of the officer administering the oath. The former relates to form of an affidavit while the latter is mode and manner of swearing in an affidavit. The latter part of the provision prescribes the person recognized by the Act or the Rules as competent to administer the oath to the deponent and his endorsement is not an integral part of the affidavit.
16. From the various decisions noted above, it clearly emerges out that the correctness of the decision in Dr Shipra case was doubted and it has been held by the Constitution Bench in T.M. Jacob case that it was confined to the facts of that case. Therefore it cannot be said that Dr Shipra case lays down any proposition of law of a binding nature. The two decisions of the Constitution Benches, namely, Radhey Shyam Murarka and T.M. Jacob hold the field as well as the decision in the case of T. Phungzathang. The law as laid down in the abovenoted decisions would be the guiding precedents in deciding a question relating to a true copy of an affidavit.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 12 E.P. No.2/202417. The purpose of the provision to furnish a true copy of the petition is not to frustrate the cause of the petitioner approaching the Court by adhering strictly to technicalities of little consequence. On the other hand the anxiety is that the respondent must have a correct idea of the allegations of corrupt practices made against him with some responsibility and that he may not be misled in any material respect by furnishing of a copy of the affidavit which may not be a correct copy having vital variation from the original. It is true that in the matters relating to elections and election petitions, strict compliance with the legal provisions is necessary and full care is to be taken to see that rights of an elected representative are not lightly disturbed and rightly so. But an election petition is not to be thrown at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is substance not form which would matter. If it is permitted otherwise, the returned candidate would only be on the lookout microscopically for any kind of technical lacuna or defect to abort the endeavour of the petitioner to bring to trial the issues relating to corrupt practices in the elections. The purpose of the law on the point cannot be to allow the returned candidate to avoid the trial of the issues of corrupt practices raised against him on the basis of any little defect which may not result in any vital variation between the original and the true copy so as to have the effect of misleading the returned candidate. As it is, the prevailing situation of elections and practices often said to be adopted now and then and here and there does not always give a very happy picture. Free, fair and fearless elections is an ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities.
12. Since, every page of the Election Petition served on the respondent no.1 contains the signature of the Election Petitioner, therefore, it is held that the same is a substantial compliance and Election Petition cannot be dismissed only on the ground that the words "attestation" or "True Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 13 E.P. No.2/2024 Copy" are not mentioned.
13. The next contention of Counsel for respondent no.1 is that verification is not in accordance with provisions of Order 6 Rule 15 C.P.C., therefore, the Election Petition should be dismissed on account of non-compliance of provisions of Section 83 of Representation of People Act.
14. Section 86 of Representation of People Act reads as under:
86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of Section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.--For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 14 E.P. No.2/2024 amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
15. From plain reading of Section 86(1) of Representation of People Act, it is clear that an Election Petition can be dismissed on the ground of non-compliance of Section 81, 82 and 117. Therefore, even if there is non-compliance of Section 83(1)(c), still such defect is curable and cannot be dismissed under Section 86 of Representation of People Act. Accordingly, two weeks time is granted to the Petitioner to rectify the default.
16. It is next contended by Counsel for respondent no.1 that an affidavit in support of allegations of Corrupt Practice is not in accordance with law. By referring to Affidavits filed along with the Election Petition, it is submitted that the Election Petitioner has not disclosed the source of information. It is further submitted that the affidavit filed by Election Petitioner in support of corrupt practice is not in accordance with form 25 of Representation of People Act.
17. The affidavit as required as per Form 25 of Representation of People Act reads as under :
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 15 E.P. No.2/2024That the statements made in paragraph 12 of the accompanying election petition about the commission of the corrupt practice as defined in Section 123 (1) (A)(a),(3), (3A) and (4) of the Representation of People Act,1951 and the particulars of such corrupt practice given in paragraph 12 of the said petition and annexures P/6 to P/9 thereto are true to my information.
18. Whereas the Election Petitioner has given the following affidavit in support of Election Petition :
1. That, I‟m the election petitioner and am fully conversant with the facts of the case. The accompanying petition has been drafted at my instructions, the contents whereof have been read over and explained to me and I have understood the same:
2. That, the statements of fact contents of paras 1, to 11 are true to my knowledge and that the contents of paras 12 to 19 are based on information received by me and believed to be true.
3. That the documents annexed with the petition are true copies of the original.
4, That, I have not suppressed any material fact and that no statement is false to my knowledge. So help me God.
19. Now the only question is that whether the Election Petition can be dismissed on that ground or not?
20. The Supreme Court in the case of G. Mallikarjunappa v. Shamanur Shivashankarappa, reported in (2001) 4 SCC 428 has held as under:
7. An election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of "Section 81 or Section 82 or Section 117 of the RP 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. Non-compliance with the provisions of Section 83 of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 16 E.P. No.2/2024 the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly "defective" affidavit, is required 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.
8. In F.A. Sapa case 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 94-A of the Rules and relevant provisions of the Code of Civil Procedure, the Court opined: (SCC pp. 403-04, para 28) "28. From the text of the relevant provisions of the RP Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the résumé 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...."
9. Again in Vijay Laxmi Sadho (Dr) v. Jagdish this Court opined: (SCC p. 251, para 12) "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 Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 17 E.P. No.2/2024 an election petition in limine under Section 86(1) of the Act."
Thus, we have no hesitation in holding that the view of the learned Single Judge to the contrary is unsustainable.
21. Therefore, any defect in affidavit is curable, therefore, 2 weeks time is granted to the Election Petitioner, that if so advised, he may rectify the defects.
22. The next contention is that whether Election Petition discloses Triable issues.
23. The Election Petition has been filed alleging corrupt practice on two counts :
a. Caste certificate relied upon by the respondent no.1 is not a valid document;
b. The respondent no.1 has disclosed False information as regards dependents.
24. It is submitted by Counsel for respondent no.1 that in the entire Election Petition, the Petitioner has not alleged that the respondent no.1 does not belong to S.C. If there is any dispute with regard to the Caste of the respondent no.1, then the authority to decide the same lies with High Power Caste Scrutiny Committee. It is further submitted that if the respondent no.1, in her nomination paper filed for election for the post of Member Janpad Panchayat, had declared the details of 2 children only, then such declaration cannot be made a basis for holding that the information given by respondent no.1 with regard to her children in the present election was false.
25. It is submitted by Counsel for Election Petitioner that since, the Election Petitioner has claimed that the Caste Certificate relied upon by the respondent no.1 was not issued in accordance with law, therefore, Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 18 E.P. No.2/2024 She could not have contested the election from the reserved seat and further She has given false information regarding her dependents, therefore, it is clear that Triable issues have been pointed out by the Election Petitioner.
26. Before considering the above mentioned submissions, this Court would like to consider as to whether Election Petition can be dismissed under Order 7 Rule 11 CPC or not?
27. The Supreme Court in the case of Azhar Hussain (Supra) has held as under:
8. The argument is that inasmuch as Section 83(1) is not adverted to in Section 86 in the context of the provisions, non-compliance with which entails dismissal of the election petition, it follows that non-compliance with the requirements of Section 83(1), even though mandatory, do not have lethal consequence of dismissal. Now it is not disputed that the Code of Civil Procedure (CPC) applies to the trial of an election petition by virtue of Section 87 of the Act. Since CPC is applicable, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) which read thus:
"Order 6, Rule 16: Striking out pleadings.--The court may at any stage of the proceedings order to be struck out or amend any matter in any pleading--
(a) which may be unnecessary, scandalous, frivolous or vexatious; or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or
(c) which is otherwise an abuse of the process of the court.
Order 7, Rule 11: Rejection of plaint.--The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;...."
9. The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 19 E.P. No.2/2024 cannot be exercised.
10. There is thus no substance in this point which is already concluded against the appellant in Hardwari Lal v. Kanwal Singh wherein this Court has in terms negatived this very plea in the context of the situation that material facts and particulars relating to the corrupt practice alleged by the election petitioner were not incorporated in the election petition as will be evident from the following passage extracted from the judgment of A.N. Ray, J. who spoke for the three-judge Bench:
(SCC p. 221, paras 22 and 23) "The allegations in para 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.
Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasized that Section 83 did not find place in Section
86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits. A suit which does not furnish cause of action can be dismissed."
11. In view of this pronouncement there is no escape from Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 20 E.P. No.2/2024 the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant case has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.
28. The Supreme Court in the case of Udhav Singh v. Madhav Rao Scindia, reported in (1977) 1 SCC 511, has held as under:
40. Section 83 lays down:
"(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 Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 21 E.P. No.2/2024 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) * * *
41. Like the Code of Civil Procedure, this section also envisages a distinction between "material facts" and "material particulars". Clause (a) of sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule 16 of the Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.
42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice, "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 22 E.P. No.2/2024
43. "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). "Particulars" serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
44. The distinction between "material facts" and "material particulars" was pointed out by this Court in several cases, three of which have been cited at the Bar. It is not necessary to refer to all of them. It will be sufficient to close the discussion by extracting what A.N. Ray, J. (as he then was) said on this point in Hardwari Lal case:
[SCC p. 220, para 20] "It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by Counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words „any assistance‟ were full statement of material fact. The submission is fallacious for the simple reason that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the court have given a verdict in favour of the election petitioner. The answer is in the negative because the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 23 E.P. No.2/2024 allegations in the petition did not disclose any cause of action."
29. The Supreme Court in the case of Kimneo Haokip Hangshing Vs. Kenn Raikhan and others decided on 13-9-2024 in C.A. No. 10549 of 2024 has held as under:
5. The High Court vide the impugned order held that whether the appellant had any income or not and whether he had given a wrong declaration at the time of his nomination needs to be looked into in trial for which evidence has to be led by the parties and examined by the Court. The petition cannot be dismissed under Order VII Rule 11 application. Consequently, the application under Order VII Rule 11 filed by the appellant was dismissed. Aggrieved, the appellant is now before us.
6. Section 83 of the RPA is reproduced below:
"(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.
(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."
(Emphasis supplied) A perusal of the section shows that an Election Petition should, inter alia, contain a concise statement of material facts and particulars of any corrupt practices which is alleged against the returned candidate, etc. Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 24 E.P. No.2/2024 Further, the Proviso to Section 83(1) of the Act requires that the Election Petition shall also be accompanied by an affidavit in prescribed form to support the allegations of corrupt practices.
7. Over the years, Election Petitions have been filed invariably on the grounds which are similar to the ones raised before this Court.
The only question is whether the Court can dismiss such a petition at the very threshold on an application under Order VII Rule 11 CPC or that the petition needs a detailed consideration by the Court. The answer to this will depend upon what kind of statutory compliances have been made in the Election Petition.
The case of the present appellant before this Court is that if the provisions as referred above, wherein material details have to be given by the respondent and particularly the details of corrupt practices etc., has to be strictly construed and any deviation by the respondent on this requirement shall make the petition liable to be dismissed at the very threshold.
All the same, this is not what is the requirement of law. Rather the settled position of law here is that an Election Petition should not be rejected at the very threshold where there is a "substantial compliance" of the provisions.
30. It is also well established principle of law that for deciding an application under Order 7 Rule 11 CPC, the Court has to consider the plaint averments only and defence of the defendant cannot be taken note of.
31. The Supreme Court in the case of Ramesh B. Desai v. Bipin Vadilal Mehta, reported in (2006) 5 SCC 638 has held as under:
14. The plea raised by the contesting respondents is in fact a plea of demurrer. Demurrer is an act of objecting or taking exception or a protest. It is a pleading by a party to a legal action that assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain his claim or that there is some other defect on the face of the pleadings constituting a legal reason Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 25 E.P. No.2/2024 why the opposite party should not be allowed to proceed further. In O.N. Bhatnagar v. Rukibai Narsindas (SCC para 9) it was held that the appellant having raised a plea in the nature of demurrer, the question of jurisdiction had to be determined with advertence to the allegations contained in the statement of claim made by Respondent 1 under Section 91(1) of the Act and those allegations must be taken to be true. In Roop Lal Sathi v. Nachhattar Singh Gill (SCC para 24) it was observed that a preliminary objection that the election petition is not in conformity with Section 83(1)(a) of the Act i.e. it does not contain the concise statement of the material facts on which the petitioner relies, is but a plea in the nature of demurrer and in deciding the question the Court has to assume for this purpose that the averments contained in the election petition are true. Reiterating the same principle in Abdulla Bin Ali v. Galappa it was said that there is no denying the fact that the allegations made in the plaint decide the forum and the jurisdiction does not depend upon the defence taken by the defendants in the written statement.
In Exphar SA v. Eupharma Laboratories Ltd. (SCC para
9) it was ruled that where an objection to the jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In this case the decision of the High Court on the point of the jurisdiction was set aside as the High Court had examined the written statement filed by the respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of the Delhi High Court and also that Respondent 2 did not carry out business within the jurisdiction of the said High Court. Following the same principle in Indian Mineral & Chemicals Co. v. Deutsche Bank (SCC paras 10 and 11), it was observed that the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on the point of demurrer.
32. The Supreme Court in the case of Roop Lal Sathi Vs. Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 26 E.P. No.2/2024 Nachhattar Singh Gill reported in (1982) 3 SCC 487 has held as under:
24. We find it difficult to comprehend the reasoning adopted by the High Court that there was non-disclosure of material facts. True it is that it begins the judgment by observing that a question of this nature, as it must be so, has to be decided on a consideration of the averments in the election petition alone, and the allegations in the written statement cannot be taken into account. A preliminary objection that the election petition is not in conformity with Section 83(1)(a) of the Act i.e. it does not contain the concise statement of the material facts on which the petitioner relies, is but a plea in the nature of demurrer and in deciding the question the Court has to assume for this purpose that the averments contained in the election petition are true. Unfortunately, while deciding the preliminary issue the High Court has made certain observations which tend to show that the allegations in the written statement were very much present in its mind.
33. Thus, it is clear that for deciding the application filed under Order 7 Rule 11 CPC, the Court is only required to look into the averments made in the Election Petition and the same are to be considered as true and the defence of the returned candidate/respondent cannot be kept in mind.
34. If the facts of the present case are considered, then it is clear that there are specific allegations that the caste of a married woman would be determined on the basis of caste of her father and not husband and even the respondent no.1 had admitted before the Returning Officer, that She has relied upon an old caste certificate and some time was sought to obtain digital caste certificate. Further, according to the Election Petitioner, the Caste Certificate relied upon by the respondent no.1 bears the name of her husband whereas the status of the candidate is Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28 27 E.P. No.2/2024 determined by her birth and not by marriage. Therefore, it is held that the Election Petition contains Triable issue with regard to Caste Certificate relied upon by the respondent no.1.
35. So far as the false information regarding total number of dependents/children is concerned, the Election Petitioner has relied upon the information given by the respondent no.1 regarding her dependents in the nomination paper filed for election for the post of Member, Jila Panchayat as well as the present election. There is distinction between both the declarations. Whether the declaration regarding total number of dependents/children given by respondent no.1 in the present election is false or true cannot be decided by this Court at this stage. Further, the effect of such declaration on the election can also not be decided at this stage.
36. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that there is no substance in the application filed under Section 86 of Representation of People Act, therefore, I.A. No. 14204 of 2024 is hereby rejected.
37. A last opportunity of 2 weeks is granted to the respondent no.1 to file her written statement. It is made clear that no further opportunity to file written statement shall be granted.
38. List this case on 5-11-2024.
(G.S. AHLUWALIA) JUDGE Arun* Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-10-2024 16:42:28