Madhya Pradesh High Court
Radhe Shyam Dhakad vs Jaivardhan Singh on 15 October, 2015
1 Election Petition No. 05/2014
HIGH COURT OF MADHAY PRADESH BENCH AT GWALIOR
SB: JUSTICE S.K. PALO
Election Petition No. 05/2014
Radhe Shyam Dhakad
Vs.
Jaivardhan Singh and others
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Shri Mahesh Goyal, Advocate for the petitioner.
Shri V.K. Bhardwaj Senior Advocate with Shri Anvesh Jain,
Advocate for the respondent No.1.
Shri V.S. Chaturvedi, Advocate for the respondent No. 3.
Shri Suresh Agrawal, Advocate for the respondent No. 4.
Shri M.K. Sihare, Advocate for the respondent No. 7.
Shri S.B. Mishra, Senior Advocate with Shri D.D. Sharma,
Advocate for respondent No. 8.
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ORDER
( /10/2015) Respondent No. 5 has filed I.A. No. 4398/2015, for rejecting the affidavit being contrary to Order 19 Rule 1 & 3 of CPC.
Respondent No. 5 has submitted that every deponent affidavit has to state the nature or source of his knowledge as required by Order 19 Rule 1 & 3 of CPC. He also relied on M/s Sukhwinder Pal Vs. State of Punjab reported in AIR 1982 SC 65, in which it is held that it was incumbent for the deponent to disclose the nature and source of the knowledge with sufficient particularity. The respondent No. 5 has also relied on V.K. Saklecha Vs. Jagjeewan reported in AIR 1974 SC 1957, in which it has been held that Section 83 of the Act requires an affidavit in the prescribed form in support of the allegations of corrupt practice. Form No. 25 requires the deponent to state which statements are true to knowledge 2 Election Petition No. 05/2014 and which statements are true to information. In the present case affidavit of the petitioner does not fulfill the mandatory requirement and needs to be rejected.
Respondent No. 5 further claimed that in the case of A.K.K. Nambiar Vs. Union of India reported in AIR 1970 SC 652, it is held that "in essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification affidavits cannot be admitted in evidence". The respondent No. 5 claimed that in the absence of specific verification, the affidavit has no value and has to be rejected.
The petitioner rebutted the submissions made by respondent No. 5 in his reply as document No. 3393/2015. While an objection with respect to maintainability of the petition was raised by the main contesting respondent citing several provisions of the Act named above, this Court after reasoned order holding that the application is not maintainable and no provision under the Act has remained un-complied.
It is contended that the design behind the present application is actually to cause delay in adjudication of the present application and in order to achieve this objective, the respondents No. 1 and 5 are hand in glove with each other. As regarding the affidavit relating to the election petition, provision under Section 83(1)(a) of the Representation of People Act, 1951 has been made but respondent No. 5 to has stretched its applicability to such an extend that the affidavits filed as evidence will be actually travesty of procedure. The affidavits filed by the petitioner are as per procedure and the provision cited in the application by the respondent No. 5 are in applicable.
3 Election Petition No. 05/2014 Even assuming, not admitting for the sake of arguments, that the affidavit and evidence is not fully within the four corners of procedure but the fact which is to be considered is whether the said deviation can lead to rejection of the affidavit in evidence. In this regard law laid down by Hon'ble Supreme Court which have been referred by this Court while deciding the maintainability of the petition at the instance of Respondent No. 1 held categorically that only in cases where non-compliance with procedure would entail rejection as per statute can merit consideration. However, in the instant application regarding affidavit of evidence there is no prescribed proforma in the statute and as such there is no deviation from the procedure prescribed by the statute. Therefore, the application filed by respondent No. 5 does not deserve to be allowed and the same may be dismissed with costs against respondent No. 5 for moving such vexatious and frivolous application.
During the arguments learned counsel for the petitioner placed reliance on L.R. Shivaramgowda Vs. T.M. Chandrashekar reported as (1999) 1 SCC 666, in which it is held that:-
"Election- Election petition- Affidavit- Conduct of Elections Rules, 1961- R. 94-A & Form 25- Affidavit accompanying the election petition alleging corrupt practice must disclose source of information and clearly state which allegations based on personal knowledge and which on information received - Otherwise affidavit cannot be held to be in conformity with Form 25 prescribed under Rule 94-A- Held, affidavit with the verification that contents "are true to the best of my knowledge and belief and information" was a defective affidavit
-Representation of the People Act, 1951, S. 83 - Conduct of Elections Rules, 1961, R. 94-A and Form 25 - Civil Procedure Code, 1908, Or. 19 R. 3 and Or. 6 R. 15 - Affidavit- Election petition."
4 Election Petition No. 05/2014 Counsel for the respondent No. 5 also placed reliance on Baldev Singh Vs. Shinder Pal Singh and another reported in (2007) 1 SCC 341, in which Hon'ble the Apex Court held that:-
"Election - Election petition- Verification - Must be strictly in terms of Order 6 Rule 15 CPC
- Verification "of his own knowledge" and "upon information received and believed to be true"
should be separately specified - A factual statement made in the petition cannot be both true to the knowledge and belief of the deponent - Civil Procedure Code, 1908, Order 6 Rule 15 - Panchayats and Zila Parishads - Punjab State Election Commission Act, 1994 (19 of 1994), Section 78."
The matter at the indulge stage respondent No. 1 raised objection, as regarding the affidavit in which it was contended that the petition is not supported by affidavit mentioned part allegations of corrupt practices as required under Section 83(1) of the RP Act. This question was decided by this Court in the order dated 04.07.2014. The observation in G.M. Siddeshwar Vs. Prasanna Kumar reported in (2013) 4 SCC 776, the Apex Court overruled the judgment of P.A Mohammed Riyas Vs. M.K. Raghavan, reported in (2012) 5 SCC 511, whereby the Court opined that two affidavits are required to be filed, one under Order 6 Rule 15(4) CPC and another in Form 25. The Court observed that:-
"Order 6 Rule 15 CPC no doubt requires that a verification of the plaint is necessary and in addition to the verification, the person verifying the plaint is "also" required to file an affidavit in support of the pleadings. However, Section 83(1)(c) of the R.P. Act merely requires an election petitioner to sign and verify the contents of the election petition in the manner prescribed by CPC. There is no requirement of the election petitioner "also" filling an affidavit in support of the averments made in the election petition except when allegations of corrupt practices have been made. That Order
5 Election Petition No. 05/2014 6 Rule 15 of CPC requires an affidavit "also" to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed. The affidavit, in this context, is a stand- alone document. A plain and simple reading of Section 83(1)(c) of the RP Act clearly indicates that the requirement of an additional affidavit is not to be found therein. While the requirement of "also " filling an affidavit in support of the pleadings filed under CPC may be mandatory in terms of Order 6 Rule 15(4) CPC, the affidavit is not a part of the verification of the pleadings - both are quite different. While the RP Act does require a verification of the pleadings, the plain language of Section 83(1)(c) of the R.P. Act does not require an affidavit in support of the pleadings in an election petition. The Court is being asked to read in a requirement that does not exist in Section 82(1)(c) of the RP Act."
On perusal of the affidavit dated 20.01.2014 sworn before the Notary and filed by the petitioner in support of the election petition, it shows that the petitioner has declared on oath that:-
"(a) That the statement made in paragraphs No. 1 to 6,8,10,14 to 23 of the accompanying election petition about the commission of the corrupt practice of Appeal by Religion of Returned Candidate & Use of Religious Symbol and the particulars of such corrupt practice mentioned in paragraphs No. 1 to 6, 8, 10, 14 to 23 of the same petition and in the paragraphs/ Contents and Photographs of the schedule annexed thereto are true to my knowledge."
Similarly the petitioner has declared that:-
"(b) That the statement made in paragraphs 7,9,11 to 13 of the said petition about the commission of the corrupt practice of Appeal by Religion of Returned Candidate & Use of Religious Symbol and the particulars of such corrupt practice given in paragraphs 7, 9, 11 to 13 of the said petition and in 6 Election Petition No. 05/2014 paragraphs / Contents and Photographs of the schedule annexed thereto are true to my information;"
On perusal of of the affidavit's paragraphs (a) and (b) filed by the petitioner in support of the election petition, it disclosed that the petitioner has personal knowledge about certain para of the petition and some part came to be known by him on information.
Therefore, I am unable to agree with the contention that the affidavit is not in conformity of form 25 prescribed Rule 94-A of Election Rule 1961. Of course the affidavit dated 20.01.2014 does not disclose source of information but this effect in verification of the election petition or fact accompanying the election petition is curable and not fatal this view is fortified by the decision rendered H.D. Revanna Vs. G. Puttaswamy Gowda and others reported in (1999) 2 SCC
217. On the basis of the above discussion, I.A. No. 4398/2015 is disposed of with the direction to the petitioner that petitioner should file an additional affidavit within three weeks stating the source of information as it has not been mentioned at para (b) of the affidavit of the petitioner dated 20.01.2014.
(S.K. Palo) Judge LJ*