Karnataka High Court
Abdul Hameed Khaja Sab Musharif vs The Chief Election Officer And Ors on 12 July, 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
E.P NO.200004 OF 2023
BETWEEN:
1. SRI. ABDUL HAMEEDKHAJA SAB MUSHARIF,
S/O. KHAJASAB,
AGED 58 YEARS,
R/AT. HAVALIGALLI,
VIJAYAPUR-586101.
...PETITIONER
(BY SRI R. KOTHWAL, ADVOCATE)
AND:
1. THE RETURNING OFFICER,
VIJAYAPURA LEGISLATIVE ASSEMBLY
CONSTITUENCY,
VIJAYAPUR-586101.
2. SRI. BASANAGOUDA R. PATIL(YATNAL)
S/O RAMANAGOUDA B. PATIL,
AGED 60 YEARS,
R/AT IN FRONT OF ING VYSYA BANK,
SRI SIDDESHWAR TEMPLE FRONT ROAD,
VIJAYAPUR-5862101.
3. SRI. BANDENAWAZ HUSENASAB MAHABHARI
S/O HUSENASAB MAHABHARI,
AGED 58 YEARS,
R/AT MAHABHARI BUILDING,
- 2-
R/AT WARD NO.27, DHARBARGALLI,
SRIKRISHNANAGAR,
VIJAYAPUR-586101.
4. SRI. KENGANAL MALLIKARJUN BHIMAPPA,
S/O BHIMAPPA (RENUKA),
AGED 52 YEARS,
R/AT HOUSE NO.18, VARUNANAGAR,
VAJRAHANUMA NAGAR,
VIJAYAPUR-586109.
5. HASEEMPEER I WALIKAR,
S/O IMAMASA WALIKAR,
AGED 60 YEARS,
R/AT HOUSE NO.323,
KANAKADASA BADAVANE,
VIJAYAPUR-586101.
6. SRI. MALLIKARJUN H.T.
S/O HIRAGAPPA
AGED 43 YEARS,
PLOT NO.7, SULEBHAVI BUILDING,
NEAR CENTRAL BUS STAND,
NAVABHAG,
VIJAYAPUR-586101.
7. SRI. RAKESH H. INGALAGI(HALAHALLI)
S/O HANAMANT
INGALAGI POST,
CHADACHAN TALUK,
VIJAYAPUR DISTRICT-586111.
8. SRI. SATISH ASHOK PATIL,
S/O ASHOK PATIL,
AGED 35 YEARS,
R/AT WARD NO.25,
MANAGOLI ROAD,
DARBARGALLI,
VIJAYAPUR-586101.
9. SRI. IRAPPA KUMBAR,
S/O BASAPPA KUMBAR,
AGED 54 YEARS,
R/AT J.M. ROAD,
- 3-
BHAGAYATHGALLI,
KUMBARGALLI,
VIJAYAPUR-586104.
10. SRI. KDECHUR KALLAPPA
REVANASIDDAPPA,
S/O REVANASIDDAPPA,
AGED 56 YEARS,
R/AT NEAR MADDINAKANI SIDE ROAD,
VIJAYAPUR-586101.
11. SRI. CHANDRAGIRI HONNAD,
S/O BHAGAVANAT,
AGED 34 YEARS,
R/AT WARD NO.21, B. BAGEWADI ROAD,
IBRAHIMPUR RAILWAY GATE,
VIJAYAPUR-586104.
12. SRI. MOTIRAM DHARMU CHAVAN,
S/O DHARMA SHAMU CHAVAN
AGED 35 YEARS,
R/AT SOMADEVARAHATTI, LT NO.1,
TRIKOTA TALUK,
VIJAYAPUR DISTRICT-586114.
13. SRI. MODINASAB BHANDAGISAB ANKALAGI,
S/O BANDAGISAB ANKALAGI,
AGED 36 YEARS,
R/AT HOUSE NO.29,
TIPPU SULTAN NAGAR,
VIJAYAPURA-586101.
14. SRI. RAJU YALLAPPA PAWAR,
S/O YALAPPA DASAPPA PAWAR,
AGED 37 YEARS,
R/AT WADDARGALLI,
BEHIND ANAND HOSPITAL,
INDI ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
- 4-
(BY SRI RAJKUMAR KORWAR, HCGP FOR R1;
SRI. D.P. AMBEKAR, ADV. FOR R1;
SRI. VENKATESH P. DALWAI, ADV. FOR R2;
R3, R10, R14-SERVED, BUT UNREPRESENTED
SERVICE OF NOTICE TO R4 TO R6, R8, R9,
R11 TO R13 IS HELD SUFFICIENT V/O
DATED: 05.04.2024;
NOTICE TO R7 IS DISPENSED WITH
V/O DATED 24.06.2024
THIS APPLICATION - I.A.3/2024 IS FILED UNDER
SECTION 86(1) OF THE REPRESENTATION OF THE PEOPLE ACT,
1951 PRAYING TO DISMISS THE INSTANT ELECTION PETITION
FOR NON-COMPLIANCE OF SECTION 81(3) OF THE
REPRESENTATION OF THE PEOPLE ACT, 1951 IN THE INTEREST
OF JUSTICE.
THIS APPLICATION HAVING BEEN HEARD AND RESERVED
ON 02.07.2024 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
In this election petition, petitioner seeks to set-aside the election of respondent No.2 to the Karnataka Legislative Assembly from Bijapur City-30 Assembly Constituency and to declare that the petitioner is duly elected to fill the seat of the Karnataka Legislative Assembly from Bijapur City - 30 Assembly Constituency.
- 5-
2. Respondent No.2 has filed an application- I.A.No.3/2024 under Section 86 (1) of the Representation of People Act, 1951 ('the Act' for short) to summarily dismiss the election petition for non-compliance of Section 81 (3) of the Act. I.A.No.5/2024 is filed by the petitioner seeking four weeks time to cure / amend / rectify the defects in the present election petition.
3. Heard Sri R. Kothwal, learned counsel for the petitioner, Sri Rajkumar Korwar, learned HCGP for respondent No.1 and Sri Venkatesh Dalawai, learned counsel for respondent No.2.
4. According to learned counsel appearing for respondent No.2, Section 81 of the Act stipulates that every copy of the election petition shall be attested by the petitioner under his own signature as a "true copy of the petition" and the copy of the petition served upon respondent No.2 has not been attested by the petitioner as contemplated under Section 81 of the Act and the petition is liable to be dismissed for non-compliance of Section 81 (3) of the Act. Learned counsel submits that on
- 6- comparison of the signature endorsed in the election petition, memo furnished to the Court and the election petition memo served on respondent No.2, there is variance in the signature and would clearly indicate that it is not the signature of the petitioner and the petitioner would be put to strict proof of the same.
5. Further, along with the election petition, the affidavit in Form No.25 as served on respondent No.2 does not mention any corrections in paragraph No.C or filling up of any blanks. Further, it is stated that the office objection raised by the registry was to fill in the blanks in paragraph No.C in the affidavit in Form No.25. Learned counsel submits that the defective blank affidavit was part of the record, which was replaced by the petitioner without permission of the Court by swearing antedated affidavit. The false affidavit is filed by the petitioner, which amounts to making a false statement on record that the petitioner had sworn on 23.06.2023, however, this affidavit never existed till 14.08.2023. The petitioner has taken nine months to take the corrective measure and in
- 7- spite of the Registry having made the petitioner aware of the mandatory defects, the petitioner has failed to correct and proceeded with the matter as if all compliances were made.
6. It is further stated that allegation of corrupt practice must be made in Form No.25 of the Act, which is mandatory as per Section 83 of the Act and the paragraph alleging corrupt practice in the writ petition has not been included in Form No.25 of the affidavit and the election petition is defective for non-compliance of Section 83 and also Rule 94 (a) of the Conduct of Elections Rules, 1961. Respondent No.2 vehemently urges the dismissal of the election petition for non-compliance of Sections 81 (3) and 83 of the Act. Learned counsel placed reliance on the following decisions:
i. Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar1 (Anil Vasudev) ii. G.V. Sreerama Reddy and another Vs. Returning Officer and others2 (G.V. Sreerama Reddy) 1 (2009) 9 SCC 310
- 8-
iii. C.P. John Vs. Babu M. Palissery and others3 (C.P. John)
7. Per contra, learned counsel appearing for the petitioner, in support of his objections and application filed seeking for extension of time to rectify the office objection, contends that the petitioner has furnished the requisite number of copies of the election petition and each page of the petition is signed by the petitioner himself and the Registry has verified each and every copy of the petition a number of times, and there is no non- compliance of the mandatory provisions of the Act. It is stated that if in any page, the signature of the petitioner is missing, it is a curable defect and as such, the petitioner should be granted sufficient opportunity to cure the defects. Further, it is stated that the non-compliance with the provisions of Section 83 is also a curable defect and shall be cured during the later stages of the proceedings. It is further stated that the technical defects pointed out by the respondents clearly come under the purview of 2 (2009) 8 SCC 736 3 (2014) 10 SCC 547
- 9- Section 83 of the Act and the said defects under Section 83 are clearly curable. In support of his contention, the learned counsel places reliance on the following decisions:
i. T.M. Jacob Vs. C. Poulose4 (T.M. Jacob) ii. Muraka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Others5 (Muraka Radhey Shyam) iii. G. Mallikarjunappa Vs. Shamnoor Shivashankarappa6 (Mallikarjunappa) iv. Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Others7 (Ponnala Lakshmaiah) v. Sardar Harcharan Singh Brar Vs. Sukh Darshan8 (Sardar Harcharan) vi. G.M. Siddeshwar Vs. Prasanna Kumar9 (G.M. Siddeshwar) vii. A. Manju Vs. Prajwal Revanna @ Prajwal .R and others10 (A. Manju) 4 (1999) 4 SCC 274 5 1963 SCC Online SC 129 6 (2001) 4 SCC 428 7 (2012) 7 SCC 788 8 (2004) 11 SCC 196 9 (2013) 4 SCC 776 10 Civil Appeal No.1774/2020
- 10-
viii. Saritha S. Nair Vs. Hibi Eden11 (Saritha S. Nair)
8. Placing reliance on the judgment cited above, it is submitted that the provisions of the Act, specifically Sections 81, 83 and 86 (1), which distinguish between curable and non-curable defects in election petition, make it clear that non-compliance with Section 81(3) warrants potential dismissal under Section 86(1), however, defects falling under Section 83, such as those related to the non- furnishing of an affidavit or defective affidavit, are generally considered curable and do not merit dismissal under Section 86 (1) alone and therefore, seeks to dismiss the application filed by respondent No.2.
9. Before adverting to the averments made by the learned counsel for the parties, it is appropriate to refer the relevant provisions of the Act applicable for consideration of I.A.No.3/2024.
11
(2021) 14 SCC 148
- 11-
10. Section 81 of the Act reads as under:
"81. Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
Explanation.--In this sub-section, "elector"
means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
11. Section 81 (3) of the Act prescribes that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner
- 12- under his own signature to be a true copy of the petition, thereby, making a statutory mandate that every copy as there are respondents shall be attested by the petitioner under his own signature to be the true copy of the petition.
12. Section 86 of the 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 80A.
(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
- 13- 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 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
- 14- 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.
13. Section 86 of the Act mandates for dismissal of an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. Section 83(1) reads as under:
"83. Contents of petition.--(1) An election petition--
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be
- 15- accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof."
14. Section 83 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies, further shall set forth full particulars of any corrupt practice that 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 the place of commission of each such practice and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings. Proviso to Section 83 provides that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars.
15. In the instant case, the Registry of this Court raised around 38 office objections, the relevant objections which are the mandatory procedure contemplated under
- 16- Section 81(3) and Section 83 was raised at Sl. Nos.8-A, 9- A, and 10, which read as under:
"8-A) PLACE AND DATE OF CORRUPTION PRACTICE TO BE MENTIONED IN PETITION 9-A) COPY OF ANNEXURE-N TO BE FILED
10) THE COPIES OF THE ELECTION PETITION TO BE ATTESTED AS TRUE COPY BY THE PETITIONER WITH HIS OWN SIGNATURE."
16. This Court granted time to rectify the office objections on 28.07.2023. Again on 14.08.2023, under the further objection, the registry notified office objection at Sl. No.9-B that "all annexures to be verified by the petitioner and advocate for the petitioner" and under further, office objection at Sl. No.1 notified that "blanks to be filled in paragraph C in affidavit in Form No.25" and at Sl. No.7 notified that "verifying affidavits and affidavit in Form No.25 to be duly sworned in all the respondent copies." The mandatory provisions as enumerated under Sections 81 (3) and 83 was to be given after the same copies were corrected and furnished to the Court.
17. This Court, on 01.03.2024 issued summons to the respondents, upon receipt of the copy of the election
- 17- petition, respondent No.2 filed a memo for returning the election petition served on respondent No.2 stating that the copy served on respondent No.2 is a defective and not in compliance with Section 81(3) of the Act, as the petition is not attested and verified by the petitioner to be the true copy. Accordingly, this Court allowed the memo and copy of the election petition received by respondent No.2 is to be placed in the safe Custody before the Registrar (Judicial), High Court of Karnataka, Bengaluru.
18. This Court, on 24.06.2024 while hearing the petition, called for the copy of the election petition kept with the Registrar (Judicial) and perused the petition papers served on respondent No.2. On perusal, it indicates that there is scribbling found in annexures attested to the election petition on the copy served on respondent No.2. Learned counsel for the petitioner states that the petitioner appeared in person and has rectified the office objection by signing the annexures and attesting the same as "true copy". On careful perusal of the annexures annexed to the election petition served on respondent
- 18- No.2 placed before this Court, on comparison with the signature found on the election petition memorandum and the memo dated 21.06.2023 filed before this Court prima facie does not appear to be one and the same. The signature found in the Court copy and the election petition served on respondent No.2 is totally different and the copy signed apparently is not under the petitioner's own signature. The petitioner has neither given any explanation regarding the variance of his signature found in the election petition, memo dated 21.06.2023 filed before this Court and the copy of the election petition served on respondent No.2. The variance of signature is a serious aspect and the Court cannot just overlook since it deals with the rights and responsibilities of the parties.
19. Section 73 of the Indian Evidence Act, 1872 reads as under:
"73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court
- 19- to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. comparison of the words or figures so written with any words or figures alleged to have been written by such person.
[This section applies also, with any necessary modifications, to finger impressions.]"
20. The first part of the section permits the Court to compare a 'purported' signature, writing, or seal with one which is admitted or proved to the satisfaction of the Court to be a genuine one. The second paragraph enables the Court to direct any person present in Court, to write any words or figures for the purpose of comparing the disputed one. The third paragraph of the section says that the section applies also to 'fingerprint impressions'.
21. While there is no doubt that Court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression,
- 20- such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky, however, when it is said that there is no bar to a Court to compare the disputed signature with the admitted signature, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted signature and after verifying whether the same characteristics are found in the disputed signature. The comparison of the two signatures cannot be casual or by a mere glance. Where the Court finds that the disputed signature and admitted signature are clear and where the Court is in a position to identify the characteristics of signature, the Court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed signature is smudgy, vague, very light or creating any sought of doubt as to its genuineness, the Court should not hazard a guess by a casual perusal.
22. Exercising the power under Section 73 of the Indian Evidence Act, disputed signature and admitted
- 21- signature are clear which can be compared, the signature found on the copy served on respondent No.2 and the Court papers, on verifying and examining the admitted and the disputed signatures, there is no doubt in the mind of the Court that there is variance in the signatures found in the copy served on respondent No.2 and the Court copy. The Court is in a position to identify the characteristics of the signature found on admitted and disputed signature, making it very clear that on comparison, it is found that there is variance in the signatures found on the copy served on respondent No.2 and the Court copy.
23. It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilizing the institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, he cannot claim unlimited right upon Court time and public money to
- 22- achieve his ends. The variance of the signatures is serious issue, no explanation is provided for the discrepancies or any steps taken to rectify the situation.
24. The fundamental and elementary rule of construction is that the words and phrases used by the legislature shall be given their ordinary meaning and shall be constructed according to the rules of grammar. The intention of the legislature must be protected and legislative intent must be primarily ascertained from the language used in the statute. Here in this case, Section 81(3) has its own object and intent, hence, the very object and intent of the provision cannot be diluted or ignored under the guise of curable defects.
25. The Apex Court, in the case of Nazir Ahmad vs. King Emperor12, has held that it is settled principle of law that if a statute requires, a thing to be done, it should be done in that manner or not at all.
26. There is non-compliance with the mandatory provisions of Section 81(3) of the Act. The attestation, 12 AIR 1936 PC 253
- 23- which is mandatory under the own signature of the petitioner, is not complied with, and this is not a curable defect as stated by the petitioner, as the authenticity of the signature of the petitioner itself is doubted.
27. Now coming to the contents of the petition, as enumerated under Section 83, wherein, the election petition has to contain a concise statement of the material facts and full particulars of any corrupt practice that the petitioner alleges and the petitioner shall file an affidavit in Form No.25.
28. Form No.25 prescribes that an affidavit has to be filed by the petitioner and the statements made in paragraphs of the election petition about the commission of corrupt practices have to be mentioned in the affidavit. The Registry of this Court notified the defective blank affidavit from 23.06.2023 till 14.08.2023, the defective blank affidavit was replaced. The corrections have been carried out in the affidavit without the permission of the Court. As on the date when the office objection was notified regarding the defective blank affidavit, the
- 24- petitioner, without seeking permission had filled out the paragraphs in the affidavit.
29. Section 83 (1) (c) mandates that an election petition shall be signed by the petitioner and verified in the manner laid down in CPC for verification of the pleadings. Signing a petition and verifying the petition are two different aspects. Order VI Rule 14 deals with the signing of the petition, while Order VI Rule 15 deals with the verification of pleading. Rule 14 of Order VI mandates that every pleading shall be signed by the parties as well as the pleader, if any. But, the proviso carves out an exception by stating that where a party is unable to sign the pleading, by reason of absence, or for other good cause, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
30. Sub-Clause (2) of Rule 15 of Order VI states that a person, who verifies a pleading needs to 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.
- 25-
31. Section 86 (1) empowers the High Court to dismiss the election petition which does not comply with the provisions of Section 81, Section 82 or Section 117. Section 86(1) does not include Section 83 within its ambit. The preliminary objection to the maintainability of the election petition raised on the ground that the verification was defective though is a curable defect and repeatedly, the Apex Court has held in several decisions that the defect under Section 83(1) (c) is a curable defect, the Apex Court in the case of Muraka Radhey Shyam has held at paragraph No.8 as under:
"8. We now go to the second point. But before we do so, it may perhaps be stated that certain defects in the verification of Election Petition No.269 of 1962 have been brought to our notice, as they were brought to the notice of the Election Tribunal. One of these defects 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 the basis of advice and information received by the petitioner from legal and other sources, the petitioner did not state in so many
- 26- words that the advice and information received was believed by him to be true. The Election Tribunal took the view that this defect in verification was a matter which came within clause (c) of sub-section (1) of Section 83 and the defect could be removed in accordance with the principles of the Code of Civil Procedure, 1908. The Election Tribunal further held that such a defect did not attract sub-section (3) of Section 90 inasmuch as that sub-section does not refer to non-compliance with the provisions of Section 83 as a ground for dismissing an election petition. We agree with the view expressed by the Election Tribunal. We have pointed out that sub-section (4) of Section 90 originally referred to three sections, namely, Sections 81, 83 and 117. It said that notwithstanding anything contained in Section 85 the Tribunal might dismiss an election petition which did not comply with the provisions of Section 81, Section 83 or Section 117. Section 90 was amended by Act 27 of 1956. Sub-section (3) then said that the Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117 notwithstanding that it has not been dismissed by the Election Commission under Section 85. There was a further amendment by Act 40 of 1961 and sub-section (3) of Section 90 as it now stands has already been quoted by us in an earlier part of this judgment. It seems clear to us that reading the
- 27-
relevant sections in Part VI 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."
32. The Apex Court, in the recent judgment in the case of Saritha S. Nair, has held at paragraph Nos.33, 36, 37, 41, 42, 43 and 44 as under:
"33. Order VI, Rule 15 which speaks about verification of pleadings reads as follows:-
"15. Verification of pleadings.--(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
- 28- (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings."
x x x
36. In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, a preliminary objection to the maintainability of the election petition was raised on the ground that the verification was defective. The verification stated that the averments made in some 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. There was no statement that the advice and information received by the election petitioner were believed by him to be true. Since this case arose before the amendment of the Act under Act 47 of 1966, the election petition was dealt with by the Tribunal. The Tribunal held the defect in the verification to be a curable defect. The view of the Tribunal was upheld by this Court in Murarka Radhey Shyam Ram Kumar (supra). This Court held that "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 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."
- 29-
37. The ratio laid down in Murarka was reiterated by a three member Bench of this Court in F.A. Sapa v. Singora holding that "the 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". It was also held in F.A. Sapa that "since Section 83 is not one of 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."
x x x
41. In K.K. Ramachandran Master v.
M.V.Sreyamakumar, this Court followed F.A. Sapa (supra) and Sardar Harcharan Singh Brar (supra) to hold that defective verification is curable. The Court again reiterated that the consequences that may flow from a defective affidavit is required to be judged at the trial of an election petition and that such election petition cannot be dismissed under Section 86(1).
42. Though all the aforesaid decisions were taken note by a two member Bench in P.A.Mohammed Riyas v. M.K.Raghavan, the Court held in that case that the absence of proper verification may lead to the conclusion that the provisions of Section 81 had not been fulfilled and that the cause of action for the election petition would remain incomplete. Such a view does not
- 30- appear to be in conformity with the series of decisions referred to in the previous paragraphs and hence P.A. Mohammed Riyas cannot be taken to lay down the law correctly. It appears from the penultimate paragraph of the decision in P.A. Mohammed Riyas (supra) that the Court was pushed to take such an extreme view in that case on account of the fact that the petitioner therein had an opportunity to cure the defect, but he failed to do so. Therefore, P.A. Mohammed Riyas (supra) appears to have turned on its peculiar facts. In any case P.A. Mohammed Riyas was overruled in G.M. Siddeshwar v. Prasanna Kumar on the question whether it is imperative for an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1). As a matter of fact, even the filing of a defective affidavit, which is not in Form 25 as prescribed by the Rules, was held in G.M. Siddeshwar to be a curable defect and the petitioner was held entitled to an opportunity to cure the defect.
43. The upshot of the above discussion is that a defective verification is a curable defect. An
- 31- election petition cannot be thrown out in limine, on the ground that the verification is defective.
44. Therefore, the High Court committed a grave error in holding the 3 defects mentioned in paragraph 18 hereinabove as incurable. The defects are curable and as rightly contended by the learned counsel for the petitioner, an opportunity to cure the defects ought to have been given. Instead, the election petition was posted before Court without numbering, in view of the defects noticed. The Court directed the petition to be numbered subject to arguments on the curability of defects. Thereafter notices were issued to the respondents in the election petition and finally the order impugned herein was passed after hearing both sides. The High Court did not even rely upon any rule framed by the High Court to follow the said procedure."
33. From the decisions referred to above, the conclusion that can be arrived is that a defective verification affidavit is a curable defect and an election petition cannot be thrown in limine on the ground that the verification is defective, however, the present fact is distinguishable since the conduct of the petitioner needs to be looked into and the manner in which the election
- 32- petition is filed. It is also true that, as envisaged under Section 86(1) of the Act, non-compliance with Sections 83(1) or (2) or its proviso does not enable the Court to dismiss the election petition. However, when the mandatory requirement of the pleadings as stipulated under Section 83(1) and its proviso is brought to the notice of the Court and the petitioner chooses not to cure the defects, he is called upon to rectify the defects, which are serious defects concerning the compliance of the statutory requirement under Section 83(1) of the Act read along with Rule 94(a) and as prescribed in Form No.25 of the relevant Election Rules. Form No.25-affidavit is to be filed in a prescribed form, which is enumerated here below:
"FORM 25 (See rule 94A) AFFIDAVIT I, ........................, the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati ........................ (respondent No........................ in the said petition) make solemn affirmation/oath and say-
- 33-
(a) that the statements made in paragraphs ............... of the accompanying election petition about the commission of the corrupt practice of*............... and the particulars of such corrupt practice mentioned in paragraphs .................. of the same petition and in paragraphs ........................ of the Schedule annexed thereto are true to my knowledge;
(b) that the statements made in paragraphs ............... of the said petition about the commission of the corrupt practice of*............... and the particulars of such corrupt practice given in paragraphs ............... of the said petition and in paragraphs ............... of the Schedule annexed thereto are true to my information;
(c)
(d) etc. Signature of deponent Solemnly affirmed/sworn by Shri/Shrimati ................... at ............... this ............... day of...................... 20 ................
Before me, Magistrate of the first class/ Notary/Commissioner of Oaths.
*Here specify the name of the corrupt practice."
- 34-
34. The affidavit prescribed in Form No.25 needs to support the allegations of the election petition. Before mentioning the defects in the affidavit in Form No.25 of the Act, one relevant factor that needs to be considered by this Court is the filling up of the blank affidavit in Form No.25. The copy of the affidavit in Form No.25 was served upon respondent No.2, with corrections stating that the petitioner was solemnly sworn at Bangalore on 21.06.2023, whereas later the Registry raised objections regarding the filling up of blanks. The defective blank affidavit in Form No.25 was a part of the record, which was replaced by the petitioner after 14.08.2023, without permission of the Court by swearing an antedated affidavit on 23.06.2023. The perusal of the copy served on respondent No.2 indicates that the corrected affidavit was not furnished to respondent No.2. The corrected affidavit is sworn on 23.06.2023, when such an affidavit was not in existence, which is evident from the office objection raised by the registry after 23.06.2023.
- 35-
35. The Apex Court, in the case of C.P. John, has held at paragraph Nos.18, 19, 21, 23 and 31, which read as under:
"18. When we read Section 83, the substantive part of Section 83(1) consists of three important elements, namely, that an election petition should contain a concise statement of material facts which an election petitioner relies upon. The emphasis is on the material facts which should be stated in a concise form. Under Section 83(1)(b) it is stipulated that the election petition should set forth full particulars of any corrupt practice which is alleged by the petitioner. A reading of the said Section 83(1)(b) is to the effect that such particulars should be complete in every respect and when it relates to an allegation of corrupt practice it should specifically state the names of the parties who alleged to have committed such corrupt practice and also the date and place where such corrupt practice was committed. In other words, the particulars relating to corrupt practice should not be lacking in any respect. One who reads the averments relating to corrupt practice should be in a position to gather every minute detail about the alleged corrupt practice such as the names of the persons, the nature of the alleged corrupt practice indulged in by such person or persons, the place, the date, the
- 36- time and every other detail relating to the alleged corrupt practice.
19. To put it differently, when the election petition is taken up for consideration, the Court which deals with such an election petition, should be in a position to know in exactitude as to what is the corrupt practice alleged as against the parties without giving any room for doubt as to the nature of such allegation, the parties involved, the date, time and the place, etc. so that the party against whom such allegation is made is in a position to explain or defend any such allegation without giving scope for any speculation. In that context, both Sections 83(1)(a) and (1)(b) and the proviso play a very key role since the election petitioner cannot simply raise an allegation of corrupt practice and get away with it, inasmuch as the affidavit to be filed in respect of corrupt practice should specifically support the facts pleaded, as well as, the material particulars furnished. Rule 94-A of the Rules in turn stipulates that the affidavit should be in the prescribed Form 25 and should be sworn before the Magistrate of the First Class or a notary or the Commissioner of Oaths and makes it mandatory for the election petitioner to comply with the said requirement statutorily. The format of the affidavit as prescribed in Form 25 elaborates as to the requirement of specifically mentioning the paragraphs where the statement of facts are
- 37- contained and also the other paragraphs where material particulars relating to such corrupt practices are alleged. It also mentions as to which of those statements of facts and material particulars are based on the personal knowledge of the election petitioner and such of those statements and particulars that are made based on the information gained by the election petitioner.
x x x
21. Keeping the above statutory
prescription in mind, when we examine the case on hand, the allegation of corrupt practice raised by the appellant in the election petition was twofold falling under Sections 123(1)(A) and 123(4) of the Act. Section 123(1)(A) defines the act of bribery, namely, any gift, offer or promise by a candidate or his agent or any other person with the consent of the candidate or with the consent of his election agent of any gratification to any person whomsoever with the object directly or indirectly for inducing a person to stand or not to stand as a candidate or to withdraw or not to withdraw from being a candidate at an election. In the case on hand, the allegation of bribery is made in Paras 4, 5, 6 and 9 of the election petition. In Para 4, it is alleged that the first respondent went to the house of the second respondent whose father was an active member of CPI (M) and induced him by a gift of Rs.50,000 in cash and promised to give Rs.1,00,000 for developing his printing press, if he
- 38- agreed to file his nomination to contest from 062, Kunnamkulam Constituency and further promised to bear all the expenses for the election and by such inducement he was successful in making the second respondent submit his nomination in the said constituency styling himself as an independent candidate. It also contained the allegation that the persons who signed the nomination of the second respondent as proposers were workers/members of CPI (M). The handwritings found in Form 18 appointing the counting agents of Respondents 1 and 2 were of the same person. On the above broad averments, it was contended that the same would fall under Section 123(1)(A) of the Act. In Para 9, it was reiterated that the second respondent filed his nomination as an independent candidate at the instance of the first respondent by an offer of gratification for a gift of Rs.50,000 with a promise to pay Rs.1,00,000 after the elections and that the said inducement was made by the first respondent with the ulterior motive of creating a confusion among the voters and divide the votes, inasmuch as, the names of the appellant as well as that of the second respondent are identical.
x x x
23. It was further contended that the
allegation of bribery having been pleaded in Paras 4, 6, 9 and 10 of the election petition, those averments contained in Paras 4, 6 and 10 of the election petition were not supported by the affidavit
- 39- as required under the proviso to Section 83(1) of the Act. In the affidavit filed in support of IA No.3 of 2011, the first respondent while reiterating the above contentions, stated that after striking off and eschewing Paras 4, 7, 9 to 15 and Grounds (a), (c),
(d) and (e) of the election petition, there were left no material facts giving any cause of action for the election petition to subsist. It was, therefore, prayed that the election petition should be dismissed at the threshold.
x x x
31. In the case on hand, the said situation relating to want of particulars and the failure to support the allegations made in the election petition by necessary affidavit as required to be filed under the proviso to Section 83(1) was brought to the notice of the appellant at the instance of the first respondent in his written statement. The written statement was filed by the first respondent on 24-
9-2011. IA No.3 of 2011 was filed on the same date. The counter-affidavit to the said IA was filed by the appellant on 6-10-2011. The impugned order came to be passed on 2-12-2011. It is significant to note that in the counter-affidavit of the appellant to IA No.3 of 2011, the appellant did not seek for any prayer to amend or add any plea to the election petition or the affidavit filed in support of the election petition. On the other hand, in the counter-affidavit, the appellant continued to maintain his stand that whatever particulars
- 40- required, have been sufficiently set out in the petition and affidavit and it was not lacking in any statutory requirement. Thus, the appellant allowed the High Court to examine the contention raised at the preliminary stage as to the maintainability of the election petition for want of compliance with statutory requirement as prescribed under Section 83(1) of the Act read along with Rule 94-A of the Rules and as prescribed in Form 25 of the relevant Election Rules. Therefore, when the appellant was not inclined to seek for any amendment to the election petition or to the affidavit filed in support of the election petition, we fail to understand as to how the appellant can now raise any grievance to the effect that the High Court ought to have granted an opportunity to the appellant to amend the pleadings. In any event, the ratio of the decision set out in the Constitution Bench decision can have no application to the case on hand, as it materially differed in very many facts and the conduct of the party. We, therefore, do not find any scope to apply the decision in Balwan Singh to the case of the appellant."
36. Further, the affidavit in Form No.25 served upon respondent No.2 reflects that at paragraph No.C, paragraph No.14 of the said petition only reflects, however, paragraph Nos.10, 16, 17, which are allegations
- 41- of corrupt practice, are not included in Form No.25 of the affidavit. The election petition is defective for non- compliance of Section 81 (3) and Section 83 of the Act as well as Rule 94(a) of the Election Rules.
37. Petitioner must be responsible and abide by the procedure as contemplated under Section 83 (1) of the Act. When a provision is based on a specific object, it must be complied with and followed. In this case, the petitioner having concern over the society ought to filed the election petition as enumerated in the legislation, not only the way it is presentation but the Court also finds total variance in the signature of the petitioner as stated supra, such conduct of the petitioner is highly deprecated and should be dealt with, the petitioner being the responsible person of the society cannot file an election petition in such a causal manner as done in the instant case. The election petition is liable to be dismissed with costs at the threshold itself, petitioner cannot be permitted to abuse the process of law for his unlawful gains.
- 42-
38. For the foregoing reasons, I.A.No.3/2024 is allowed and I.A.No.5/2024 is dismissed. Accordingly, the election petition is dismissed with cost of Rs.1,00,000/- payable to Karnataka Legal Services Authority within four weeks from today.
Sd/-
JUDGE MBM