Gujarat High Court
Prabhatsinh vs Shankarsinh on 11 August, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
Print
EA/8/2009 45/ 45 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
ELECTION
APPLICATION No. 8 of 2009
In
ELECTION
PETITION No. 2 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRABHATSINH
PRATAPSINH CHAUHAN
Versus
SHANKARSINH
LAXMANSINYH VAGHELA & OTHERS
=========================================================
Appearance :
MR
MS BHATT for Applicant.
MR SV RAJU, for Respondent : 1
MR
NIRAVR MISHRA for Respondent : 3
None for Respondent :
4
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 11/08/2010
ORAL
JUDGMENT
1. This is an application preferred under Order 7 Rule 11 of the Code of Civil Procedure and under Sections 83 and 100 of the Representation of the People Act, 1951 (hereinafter referred to as the Act ). The respondent No.1 herein [hereinafter referred to as the election petitioner has filed Election Petition No. 2 of 2009 on 22.6.2009, inter-alia, challenging the election of the 15th Lok Sabha for 18 Panchmahals parliamentary constituency. The election took place on 30.4.2009 and the counting of votes had taken place on 16.5.2009. At the conclusion of counting of votes, on 16.5.2009 for 18 Panchmahals parliamentary constituency, the present applicant was declared as elected candidate. The election petitioner has challenged the said election on three grounds, namely:
(i) there was improper acceptance of nomination of applicant No.2;
(ii) corrupt practice of appeal was made by the applicant on the ground of race, religion, caste and community, and,
(iii) corrupt practice of booth capturing and casting of bogus votes as if genuine vote was voted at various booths by agents of returned candidate with consent of the returned candidate.
1.1 The learned advocate submitted that the Act prescribes the entire procedure for filing of the petition and for presentation of the Election Petition. It is submitted that election petitioner has not followed the correct procedure envisaged as per Sections 83, 84, 86 and 123 of the Act. The learned advocate submitted that Section 83 of the Act provides for contents of the petition. It provides that election petitioner must supply true and correct copies of the petition, but the copy of the petition and the injunction application was supplied by election petitioner with a separate list. It is submitted that he has not been supplied with the true copy of the petition because the copy is not signed by the election petitioner and verification below the same is also not signed by respondent No.1. Even the affidavit is not signed by respondent No.1. Section 86 of the Act is with regard to trial of the Election Petition. It is stated sub-section (1) of section 86 provides that the High Court shall dismiss the Election Petition which does not comply with the provisions of Sections 81 and 82 or Section 117 of the Act. The learned advocate also placed reliance on Rule 94A of the Conduct of Election Rules, 1961 [hereinafter referred to as the Election Rules] and more particularly Form No.25 and submitted that affidavit is required to be filed as per Form No.25. However, the affidavit is not in accordance with the mandatory provisions of Rule 94A of the Election Rules and not in conformity with Form No.25. The affidavit is absolutely vague and incomplete. The learned advocate submitted that the applicant is entitled to receive the true copy of the petition which includes the affidavit sworn by the petitioner under Rule 94A of the Election Rules. A copy of the petition along with the verification and the affidavit produced before the Hon'ble Court do not bear the name and designation of the Notary and it also does not contain the endorsement made under the signature of the Notary which finds place in the original affidavit. The copies which are supplied to the applicant also do not bear the name of the Notary and on which date the affidavit was sworn. The copy of the affidavit which is served on the applicant does not contain the stamp endorsement by the Notary about the affirmation before him. Thus, it becomes clear that the applicant has not been served with the true copy of the petition. It is submitted that apart from Notary, stamp and signature, the petition as well as the verification of the affidavit is also not signed by the election petitioner himself. In view of the glaring lacuna in the petition itself, the petition is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure and Sections 83 and 86 of the Act. The learned advocate in the alternative submitted that as per Section 83(c), election petitioner should have signed and verified as per the provisions contained in the Code of Civil Procedure, 1908, [for short CPC], for the verification of the pleadings and if there is an allegation of the corrupt practice, then, the petition is required to be accompanied by the affidavit in the prescribed form in support of the allegation of such practice and the particulars thereof. The learned advocate has placed reliance on Order 6 Rule 15 of the Code of Civil Procedure and submitted that on bare perusal of the Order 6 Rule 15, it becomes clear that the person who is verifying the pleading is required to be signed by that person and he is also required to state the date on which and the place at which it was signed and he is further required to verify the pleadings and also furnish the affidavit in support of his pleadings. This procedure was not followed in the present case and therefore, the petition is liable to be dismissed. It is submitted that Paragraphs 2.1 and 2.4 are not verified and it means that there is no verification of the same. When the verification is not done properly as per the procedure prescribed under the law, then, the petition is liable to fail on that ground alone. It is submitted by the learned advocate that merely by stating in the verification that Para 1, 2 and 6 is true to the best of his knowledge that by itself is not sufficient in the Election Petition. It is incumbent upon the respondent to say as to from where he has got the knowledge with regard to the averments made in Paragraphs 1, 2 and 6. He has to disclose the source of information and absence thereof is a material defect in the verification itself which goes to the root of the petition and such type of material defect cannot be rectified subsequently even by the Hon'ble Court as per the provisions contained in the Act. It is incumbent upon the election petitioner to give concise statement of the material facts on which he places reliance and the statement of material facts must be stated in the verification paragraph. Similarly, election petitioner has done verification of Para 3.1 to 3.4 and Para 4 including Para 4.1 to 4.5 and Para 5 including Para 5.1 to 5.10 and election petitioner has said about these paragraphs that what is stated in the above paragraphs is true to the best of his information and belief. This information is source of information and the person from whom he got the information is required to be stated. It is submitted that election petitioner has pleaded in Para 3.1 to 3.5 that returned candidates' nomination was improperly accepted. It is nothing else but an after thought. All the documents which are produced before the Hon'ble Court were available on the date of filing of the nomination papers. The nomination papers were submitted to the Returning Officer and the Returning Officer, after verifying the nomination forms, electoral roll, affidavit and verification in support of the nomination form and after verification of the papers, has accepted the nomination form because the Returning Officer came to the conclusion that presentation of nomination form and requirement for valid nomination is complied with by the candidate. It is submitted that on the date of filing of the petition, election petitioner is coming out with a case that the nomination form of the candidate was improperly accepted. It is incumbent upon the election petitioner to say as to by which source prior to filing of the petition, he came to know about the so called improper acceptance of the nomination of the returned candidate. However, nothing is stated in the verification about the source of information and therefore, the petition deserves to be rejected in limine. Similarly, on perusal of the affidavit, nothing is stated by the election petitioner in Para A as to from where and from whom the knowledge is acquired by the respondent. Thus, considering the entire set of circumstances, the affidavit which is filed is vague and incorrect and not signed by the election petitioner as per the provisions of Code of Civil Procedure would be applicable as per Section 87 of the Act. It is submitted that on entire perusal of the petition, it does not contain the paragraph with regard to cause of action. The petition is silent with regard to cause of action and therefore, as per Order 7 Rule 11, the petition is liable to be rejected for non-disclosure of the cause of action. On perusal of Section 83(2) of the Act, any schedule or annexures which are placed along with the petition shall also be signed by election petitioner and verified in the same manner and the petition is required to be verified as per the provisions contained in Order 6 Rule 15 of the Code of Civil Procedure. As per Order 6 Rule 15 of the CPC, all annexures are required to be verified and the affidavit is also required to be filed in support of the annexures and accompanying documents. The election petitioner has placed before this Court 18 documents vide Page 1 to 18. All the documents are only verified but the affidavit in support thereof has not been filed and therefore, the documents and annexures cannot be looked into by the Court while deciding the Election Petition. Learned advocate has placed reliance on the provisions contained in Sections 81, 82, 83, 86 and 87 of the Act and various provisions of CPC as well as Rule 94A of the Election Rules in support of the submissions canvassed at the Bar. The learned advocate submitted that in view of the glaring lacuna in the petition and when the mandatory provisions are not complied with by the election petitioner, the petition does not call for any interference and it deserves to be rejected under the provisions of Order 7 Rule 11 of the CPC.
2. Learned advocate has cited the following judgments in support of the submissions canvassed at the bar. They are as under :-
1. RAM SUKH VS. DINESH AGGARWAL - 2009-JT-12-352
2. HARMOHINDER SINGH PRADHAN VS. RANJEET SINGH TALWANDI - 2005-AIR(SC)-0-2379
3. VIRENDRA KUMAR SAKLECHA VS. JAGJIWAN - 1974-AIR (SC)-0-1957
4. R.P. MOIDUTTY VS. P.T. KUNJU MOHAMMAD - 2000-AIR (SC)-0-388
5. MANI RAM VS. SURINDER KUMAR - 1993-AIR (P & H)-0-152
6. SHANT KUMAR JAISWAL VS. NAND KUMAR PATEL - 2006-AIR (CHHAT)-0-18
7. IQBAL SINGH VS. AVTAR SINGH - 1993-AIR (P & H)-0-314
8. REGU MAHESH @ REGU MAHESWAR RAO VS. RAJENDRA PRATAP BHANJ DEV - 2004-AIR (SC)-0-38
9. SUDARSHA AVASTHI VS. SHIV PAL SINGH - 2008-TLPRE-0-973
10. T.M. JACOB VS. C. POULOSE - 1999-AIR (SC)-0-1359
11. SHANTARAM SITARAM CHAVAN VS. KHAN MOHAMMED ARAF NASEEM - 2001-BCR-2-557
12. ANIL R. DESHMUKH VS. ONKAR N. WAGH - 1999-AIR (SC)-0-732
13. SHIPRA VS. SHANTI LAL KHOIWAL - 1996-AIR (SC)-0-1691
14. BORGARAM DEURI VS. PREMODHAR BORA - 2004-CALLT (SC)-2-32
15. V. NARAYANASWAMY VS. THIRUNAVUKKARASU - 2000-AIR (SC)-0-694
16. ANIL VASUDEV SALGAONKAR VS. NARESH KUSHALI SHIGAONKAR - 2009-JT-10-684
17. AZAMBHAI FAKHIRBHAI PANSARE VS. GAJANAN DHARAMSHI BABAR - 2000-BCR-3-778
18. K. KAMARAJA NADAR VS. KUNJU THEIVAR - 1958-AIR (SC)-0-687
19. K. KAMREJNADAR KUNJ - AIR 1958 SC 687
3. Learned advocate has placed reliance on the judgment rendered in the case of Ram Sukh Vs. Dinesh Aggarwal, reported in 2009-JT-12-352. The appeal before the Apex Court preferred under Section 116(a) of the Act has been directed against the judgment and order dated 15.1.2008 rendered by the High Court of Uttaranchal at Nainital in Writ Petition No. 3 of 2007. By the impugned order, the High Court upheld the preliminary objection raised by the first respondent and dismissed the election petition mainly on the ground that it did not comply with the mandatory requirement of furnishing the material facts so as to disclose the cause of action and was not supported by the affidavit in the prescribed form. The Apex Court after considering the provisions of Sections 117, 86, 83, 80, 100(1)(b), 100(1)(d) and 116(a) as well as the provisions of Order 6 Rule 16, Order 6 Rule 17 as well as Order 7 Rule 11 of the CPC held that from the perusal of the pleadings, it is vague and it does not spell out as to how the election results were materially affected. These facts fall short of being material facts as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in absence of his election agent, there was some malpractice at the polling stations during the polling. It needs little reiteration that for the purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due to some omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition. Therefore, the Apex Court held that the Election Tribunal / High Court was justified in coming to the conclusion that the statement of material facts in the election petition was completely lacking and the petition was liable to be rejected at the threshold on that ground and thus, the view expressed by the High Court was upheld and the appeal was dismissed. The High Court took the said view because there was no averment in the election petition. In the case on hand, such is not the situation, and hence this decision is of no avail to the petitioner.
4. Learned advocate has placed reliance on the judgment rendered in the case of Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi, reported in 2005-AIR(SC)-0-2379. In the said case, the Apex Court in an appeal under Section 116(a) of the Act considered the provisions of Section 123 of the Act as well as Section 83(1) of the Act. The Apex Court held that in the case before it, the election petition nowhere mentions the religion of election petitioner and there is no averment made in the election petition that the said appeal was made in the name of the religion of respondent no.1. The Apex Court further held that all that the election petition alleges is that certain religious leaders, held in reverence by the voters, issued an appeal to vote in favour of respondent no.1. Therefore the Apex Court held that as the material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under order VI Rule 16 of the Code of Civil Procedure, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not disclosing a cause of action under Clause (a) of Rule 11 of Order VII of the Code. The Apex Court ultimately found no fault with the view taken by the designated Election Judge of the High Court and dismissed the appeal with costs. However, in the present case sufficient 'material facts' are given and therefore this judgment is not applicable in the instant case.
5. Learned advocate has placed reliance on the judgment rendered in the case of Virendra Kumar Saklecha Vs. Jagjiwan, reported in 1974-AIR (SC)-0-1957 in support of the submission that if there is non-compliance with the provisions of Section 83, 86 as well as Rule 94A of the Conduct of Election Rules, 1961, then, in such case, the petition deserves to be dismissed at the threshold. However, in that case, the Apex Court was considering an appeal arising out of dismissal of the election petition after full trial, and not at the preliminary stage. The said judgment, therefore, is not applicable in the present case. Needless to say that considerations at the trial and at the preliminary stage are altogether different.
6. Learned advocate has placed reliance on the judgment rendered in the case of R.P. Moidutty Vs. P.T. Kunju Mohammad, reported in 2000-AIR (SC)-0-388. In the said case also, the Apex Court was considering an appeal arising out of dismissal of the election petition after full trial, and not at the preliminary stage. Hence this judgment is also of no help to the applicant in the present application.
7. Learned advocate has placed reliance on the judgment rendered in the case of Mani Ram Vs. Surinder Kumar, reported in 1993-AIR (P & H)-0-152. In the facts of the said case, the Punjab & Haryana High Court held that a plain reading of the petition would reveal that the essential material and particulars are conspicuous by their absence. In the case on hand, this decision would not be of any assistance to the petitioner because the election petition does adequately disclose material facts. Moreover, the judgment of Punjab & Haryana High Court will have no binding effect on this Court, and has only a persuasive value. Hence this judgment is of no help to the applicant in the present case.
8. Learned advocate has placed reliance on the judgment rendered in the case of Shant Kumar Jaiswal Vs. Nand Kumar Patel, reported in 2006-AIR (Chhat)-0-18. In the said case, the High Court found that in the affidavit filed by the petitioner in support of the election petition alleging corrupt practice, certain things were missing and therefore dismissed the election petition at the threshold. The said judgment again is of another High Court, i.e., High Court of Chhattisgarh. In view of a catena of decisions of the Apex Court which I will refer to subsequently, this judgment would not be binding on this Court, and therefore, is of no assistance to the applicant.
9. Learned advocate has placed reliance on the judgment rendered in the case of Iqbal Singh Vs. Avtar Singh, reported in 1993-AIR (P & H)-0-314. The said judgment again is of another High Court, i.e., High Court of Punjab & Haryana. In view of a catena of decisions of the Apex Court which I will refer to subsequently, this judgment would not be binding on this Court, and therefore, is of no assistance to the applicant. That apart, in that matter, learned counsel for the election petitioner made a statement that he did not want to lead any evidence on the preliminary issues. Thus, it can be said that he has waived his right to cure the defect. Such being not the case in the instant matter, this decision also is of no help to the present applicant.
10. Learned advocate has placed reliance on the judgment rendered in the case of Regu Mahesh @ Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev, reported in 2004-AIR (SC)-0-38, wherein the Apex Court considered the provisions of Sections 81, 83, 86 and 123(3) of the Act. The said case is altogether different. After observing in paragraph 12 that it is a settled position in law that defect in verification or an affidavit is curable, the Court further observed that there is a gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect. In paragraph 15, the Apex Court further held that not only defects in the verification / affidavit were pointed out, but they were pressed into service seeking dismissal of the election petition, and, although the appellant stated in his reply that he was filing separate petition with permission for leave of the High Court for amending the verification, that was also not done. The judgment in the case of Regu Mahesh @ Regu Maheswar Rao is, therefore, in the peculiar facts and circumstances of that case, and is not applicable in the present case.
11. Learned advocate has placed reliance on the judgment rendered in the case of Sudarsha Avasthi Vs. Shiv Pal Singh, reported in 2008-TLPRE-0-973, wherein the Apex Court after considering the Sections 82, 83 and 123 of the Act as well as Order 6 Rule 16, Order 7 Rule 11, observed in paragraph 7 of the judgment that in the peculiar facts of the case that the allegations made in the petition as disclosed in the election petition appear to be totally a cock and bull story and further observed in paragraph 9 that the material particulars disclosed in the case are not sufficient to be gone into for trial. The present case, however, cannot be equated with the facts of the case of Sudarsha Avasthi [supra]. Hence this judgment is also of no avail to the applicant.
12. Learned advocate has placed reliance on the judgment rendered in the case of T.M. Jacob Vs. C. Poulose, reported in 1999-AIR (SC)-0-1359. The said case, in my considered view, does not at all support the applicant because the Apex Court, stated that applying the test as laid down in Murarka Radhey Shyam Ram Kumar's case (supra), to the fact situation of that case, the defects complained of in that case were not such as could have misled the appellant at all and the defect, if at all could be construed as a defect of any vital nature attracting consequences of Section 86(1) of the Act. Ultimately, the Apex Court held that the learned Single Judge of the High Court was justified in rejecting the preliminary objection in holding that the election petition did not suffer from any defect which could attract the provisions of Section 86(1) of the Act. The said judgment, therefore, is of no help to the applicant.
13. Learned advocate has placed reliance on the judgment rendered in the case of Shantaram Sitaram Chavan Vs. Khan Mohammed Araf Naseem, reported in 2001-BCR-2-557. In the facts and circumstances of the case, the High Court held that except for a bald statement, there is no material to indicate the ingredients pointed out by the Supreme Court has been pleaded in the petition. However, in the instant case before this Court, the petition does disclose sufficient material. The said judgment, even otherwise, is of High Court of Bombay and in view of various decision of the Apex Court , this judgment also is of no help to the applicant.
14. Learned advocate has placed reliance on the judgment rendered in the case of Anil R. Deshmukh Vs. Onkar N. Wagh, reported in 1999-AIR (SC)-0-732. The said judgment does not at all support the petitioner but on the contrary goes against the petitioner. In this case, the Supreme Court held that as true copy was supplied before argument, there is sufficient compliance and order of the High Court dismissing the election in limine is unsustainable. Hence this judgment is of no help to the applicant.
15. Learned advocate has placed reliance on the judgment rendered in the case of Shipra Vs. Shanti Lal Khoiwal, reported in 1996-AIR (SC)-0-1691. However, in view of the subsequent decision of the Constitution Bench in the case of TM JACOB v. C. POULOSE reported in (1999) 4 SCC 274, this judgment is of no help to the present applicant.
16. Learned advocate has placed reliance on the judgment rendered in the case of Borgaram Deuri Vs. Premodhar Bora, reported in 2004-CALLT (SC)-2-32. In that case, the Apex Court was considering the judgment of the High Court after full trial of the election petition and not an order passed at the stage of preliminary objections. Hence this decision is of no avail to the applicant.
17. Learned advocate has placed reliance on the judgment rendered in the case of V. Narayanaswamy Vs. Thirunavukkarasu, reported in 2000-AIR (SC)-0-694, wherein the Apex Court considered the provisions of Sections 81, 83, 86, 123(1)(B) and 123(2) of the Act as well as Order 6 Rule 16 and Order 7 Rule 11 of the CPC in an appeal which was directed against the judgment of the High Court allowing the Misc. Civil Application filed by the respondent under Order 6 Rule 16 and Order 7 Rule 11 of the CPC and held that the election petition filed by the appellant under Section 100(1)(B) & (D) of the Act as well as Section 83(1) of the Act stand dismissed. It is held that the election of the respondent was vitiated due to corrupt practice within the meaning of Section 123(1)(B)(B) and Section 100(1)(D) of the Act. The petition was not disclosing the cause of action and therefore, under Order 7 Rule 11 of the CPC as well as under Order 6 Rule 16, the same was rejected. However, in paragraph 24, the Apex Court held that the defect of the type provided in section 83 of the Act on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure . Moreover, in the present case, by filing purshis dated 22.01.2010, the election petitioner has clearly stated that he does not press the contentions raised in paragraphs 3 and 5 para 5 being allegations of corrupt practice. In this background, all observations made by the Apex Court in the case of V. Narayanaswamy [supra] has no relevance in the present case. Hence this judgment is also of no help to the applicant.
18. Learned advocate has placed reliance on the judgment rendered in the case of Azambhai Fakhirbhai Pansare Vs. Gajanan Dharamshi Babar, reported in 2000-BCR-3-778. In the said case also, the High Court of Bombay passed the judgment and dismissed the election petition after full trial, and not at the preliminary objection stage. Hence this judgment is also of no help to the applicant in the present application. The High Court in paragraph 12 observed as under:
On that day it was ordered that issues Nos. 1 to 5 will be treated as preliminary issues. Even then no application for amendment has been made. Thereafter the arguments on preliminary issues commenced on 16.3.2000. Even at that stage no application for amendment was moved.
I fail to see what other opportunity the Court is required to give .
It, therefore, implies that at preliminary objection stage, amendments could have been made. Therefore, this decision is of no help to the applicant.
19. Learned advocate has placed reliance on the judgment rendered in the case of K. Kamaraja Nadar Vs. Kunju Theivar, reported in 1958-AIR (SC)-0-687. The said judgment is dated 22nd April 1958. Much waters have flown thereafter. Therefore, this Court do not deal with the judgment in detail.
20. Mr SV Raju, learned Senior Advocate for election petitioner, respondent No.1 herein, has filed the affidavit controverting the averments made in the application preferred under Order 7 Rule 11 of the Code of Civil Procedure and submitted that even the application preferred under Order 7 Rule 11 of the CPC is not in accordance with the Gujarat High Court Rules and therefore, the applicant (original respondent No.1) sought time to file appropriate application in accordance with the rules which was granted by the High Court on 23.9.2009. The applicant thereafter preferred fresh application under Order 7 Rule 11 on 25.9.2009 which is also defective and not in conformity with the Gujarat High Court Rules. Thus, the defective applications are being continuously preferred by the applicant with the sole intend to delay the proceedings of the Election Petition. The application as preferred by original respondent No.1 is misconceived and far from truth and it has been filed with a view to delay the proceedings. The notice was issued by the High Court on 24.7.2009 which was served on the applicant by Direct Service on 29.7.2009. On the returnable date, on 11.9.2009, the applicant (original respondent No.1) sought time to file written statement/affidavit in reply to the presentation which was granted by the Hon'ble Court till 23.9.2009. The applicant instead of filing his written statement or reply to the Election Petition, preferred the application under Order 7 Rule 11 of the CPC on flimsy ground to delay the entire proceedings. It is submitted that the application is bereft of any grounds under which the petition of the petitioner is liable to be rejected under Order 7 Rule 11. The case of the applicant do not fall in any of the categories mentioned in Rule 11 of Order 7 and as no case is made out by the applicant for rejection of the petition, the application deserves to be dismissed. It is submitted that the procedure as laid down under Sections 83, 84, 86 and 123 of the Act was scrupulously followed. As provided under Section 83 of the Act, the petitioner is required to supply true and correct copies of the petition to the respondent. In fact sub-section (3) of Section 81 states that every Election Petition shall be accompanied by as many copies thereof as per the 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. Therefore, the provision to supply true and correct copy is not under Section 83, but under Section 81(3) of the Act. It is alleged that verification and the affidavit supplied to the applicant do not bare the signature of the petitioner. Learned advocate submitted that the copy supplied to the applicant is not true and correct copy of the petition. Learned advocate submitted that the object of serving true copy of an Election Petition and the affidavit filed in support of allegation 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 prepared as defence. It is submitted that the petitioner has sufficiently complied with the provisions of Sections 81(3) and 83 of the Act and therefore, the contention raised in the application with regard to violation of the provisions of Section 81(3) and 83 of the Act has no substance and it deserves to be rejected. It is also submitted that the affidavit is not in accordance with the mandatory Rule 94A of the Conduct of Election Rules, 1961 but here also there is no substance in the submissions canvassed by the learned advocate for the applicant. Learned advocate further submitted that non-mention of the name of the Notary or the absence of stamp or seal of the Notary in the otherwise true copy supplied to the respondent could not be construed as omission or variation of vital nature and the defect in the petition. Therefore, the provisions of Section 81(3) has been sufficiently complied with and therefore, the consequence as mentioned in Section 86(1) of the Act cannot be attracted in the facts and circumstances of the present case.
21. Mr. Raju, learned senior advocate further submitted that it is strenuously contended by the learned advocate for the present applicant that paragraphs 2.1 and 2.4 are not verified by the petitioner. He submitted that paragraph 2.1 and 2.4 are sub-paragraphs of original paragraph No.2 which has already been verified and it is stated that he is verifying para 2 as true to the best of his knowledge. Therefore, no separate verification is required for the sub-paragraphs 2.1 to 2.4 as contended by the learned advocate for the applicant. It is also contended that the petitioner has not disclosed the source of information or knowledge in the verification for paragraphs 1 to 6. It is submitted that as per the provisions contained in section 83(1)(c), an election petition is required to be signed by the petitioner and verification in the manner laid down in the Civil Procedure Code 1908. On perusal of Order 6 Rule 15, it provides for verification of pleadings which is quoted by the applicant herein in his application. Sub-rule 2 of Order 6 Rule 15 requires that the person verifying shall specify by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. It nowhere mentions that the person verifying has to disclose his source of information for verifying the pleadings. Learned advocate, therefore, submitted that verification made by the petitioner, verifying each and every paragraph mentioning all the paragraphs as per his information and all the paragraphs to his knowledge separately and the same is sufficient compliance with Order 6 Rule 15 CPC. He, therefore, submitted that the contention of the learned advocate for the applicant deserves to be rejected at the threshold. He submitted that instead of raising preliminary objections, the learned advocate has dealt with the merits of the Election Petition in the application made under Order 7 Rule 11 CPC. He submitted that a bare perusal of Section 83 of the Act, it only requires that election petition shall contain concise contents of the material fact on which the petitioner relies and the narration of full particulars of corrupt practices and the same is to be verified in the manner provided under CPC. The question of cause of action does not arise with respect to the election petition preferred under the Representation of Peoples Act, 1951. He submitted that even on a bare perusal of the petition, cause of action has been elaborately disclosed. Thus the learned advocate submitted that the contentions raised by the learned advocate for the applicant with regard to non-compliance of the provisions of section 83, 84, 86 and 123 of the Act is without any merit and the application deserves to be rejected at the threshold.
22. In support of his contentions, learned advocate Mr. Raju relied on the following judgments.
1. HARKIRAT SINGH VS. AMRINDER SINGH - (2005) 13 SCC 511
2. UMESH CHALLIYIL vs. KP RAJENDRAN (2008) 11 SCC 740
3. H.D. REVANNA vs. PUTTASSWAMY GOWDA (1999) 2 SCC 217
4. CHANDRAKANT UTTAM CHAODANKAR VS. DAYANAND RAYU MANDRAKAR - (2005) 2 SCC 188.
5. SARDAR HARCHARAN SINGH BRAR vs. SUKH DARSHAN SINGH & ORS - (2004) 11 SCC 196
6. G. MALLIKARJUNAPPA AND ANOTHER vs. SHAMANUR SHIVASHANKARAPPA AND OTHERS
- (2001)4 SCC 428
7. R. VIJAY LAXMI SADHO vs. JAGDISH - (2001) 2 SCC 247
8. KRISHAN CHANDER v/s. RAMLAL - (1973) 2 SCC 759
9. T. PHUNGZATHANG vs. HANGKHANLIAN AND OTHERS - (2001) 8 SCC 358
10. T.M. JACOB vs C. POULOSE AND OTHERS - (1999) 4 SCC 274
11. F.A. SAPA vs. SINGORA - (1991) 3 SCC 375
23. In HARKIRAT SINGH VS. AMRINDER SINGH reported in (2005) 13 SCC 511, the Honourable Supreme Court was dealing with an appeal directed against the judgment and order passed by the High Court of Punjab and Haryana in an Election Petition whereby the High Court dismissed the election petition filed by the appellant-petitioner upholding the preliminary objection raised by the respondent that the petitioner had failed to disclose material facts as to corrupt practice constituting the cause of action in the election petition. In paragraph 82 of the judgment, the Apex Court held as under:
82. As we have already observed earlier, in the present case, 'material facts' of corrupt practice said to have been adopted by the respondent had been set out in the petition with full particulars. It has been expressly stated as to how Mr. Chahal who was a Gazetted Officer of Class I in the Government of Punjab assisted the respondent by doing several acts, as to complaints made against him by authorities and taking of disciplinary action. It has also been stated as to how a Police Officer, Mr. Mehra, who was holding the post of Superintendent of Police helped the respondent by organizing a meeting and by distributing posters. It was also alleged that correct and proper accounts of election expenses have not been maintained by the respondent. Though at the time of hearing of the appeal, the allegation as to projecting himself as 'Maharaja of Patiala' by the respondent had not been pressed by the learned counsel for the appellant, full particulars had been set out in the election petition in respect of other allegations. The High Court, in our opinion, was wholly unjustified in entering into the correctness or otherwise of facts stated and allegations made in the election petition and in rejecting the petition holding that it did not state material facts and thus did not disclose a cause of action. The High Court, in our considered view, stepped into prohibited area of appreciating the evidence and by entering into merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable . [emphasis supplied by me]
24. In UMESH CHALLIYIL vs. KP RAJENDRAN (2008) 11 SCC 740 the Hon'ble Supreme Court was hearing an appeal against an order passed by the learned Single Judge of Kerala High Court whereby the learned Single Judge has rejected the election petition filed by the appellant on the preliminary objections raised by the respondent that affidavit in Form 25 was not affirmed and the affirmation was not duly certified as per law nor did it disclose its source of information. The learned Single Judge also observed that despite the fact that objection were taken and the defects could have been cured, no steps were taken to remove these defects. Learned Single Judge rejected the election petition on preliminary objections raised by the respondent. Dealing with the affidavit filed by the appellant and the format of the concluding portion of the affidavit, the Apex Court held that the substance and the essence has been conveyed in the affidavit. The Apex Court did not agree with the view taken by learned Single Judge that the verification is not in the form as required under Form No. 7 under Rule 82 of the Rules of the High Court of Kerala, 1971 and therefore, it is a major defect in the constitution of the election petition and therefore, it should be rejected under Section 86 of the Act of 1951. The Apex Court further held that what one is required to do is to make proper verification disclosing the contents of which paragraphs are within his personal knowledge, and the averments in which paragraphs are within his knowledge, information or the information derived from other source and he believes the same to be true. Therefore, both the phraseology convey the same meaning except that instead of using a particular set of words, it has been stated in another set of words. The Apex Court held that when the same sense is conveyed, it is not such a defect which could entail dismissal of the election petition.
24.1 In the said case, [UMESH CHALLIYIL], the Apex Court also dealt with another defect considered by the learned Single Judge to the effect that the appellant had not signed and affirmed in the manner inasmuch as there is no certification of the Notary that it was solemnly affirmed by the appellant before him. In that regard, the Apex Court held as under:
But in our view, this too is a defect of very minor nature. It may be a bona fide mistake on the part of the deponent as well as the Notary but basically it conveys the sense that the affidavit has been solemnly affirmed by Umesh Challiyil at Ernakulam. This affirmation also does not in any way go to the root of the matter so as to render the entire election petition not properly constituted entailing the dismissal of the same. Both the defects which have been pointed out by learned Single Judge were too innocuous to have resulted in dismissal of the election petition on the basis of the preliminary objection. The Courts have to view it whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart the election petition should not be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should contain material facts. Section 86 says that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section
117. But not of defect of the nature as pointed out by the respondent would entail dismissal of the election petition. These were the defects, even if the Court has construed them to be of serious nature, at least notice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset.
24.2 In paragraph 20 of the Judgment in Umesh Challiyill [supra], the Apex Court held as under:
However, in fairness whenever such defects are pointed then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of the CPC but in the present case we regret to record that the defects which have been pointed out in this election petition was purely cosmetic and it does not go to the root of the matter and secondly even if the Court found them of serious nature then at least the court should have given an opportunity to the petitioner to rectify such defects. [emphasis supplied by me]
25. In H.D. REVANNA vs. PUTTASSWAMY GOWDA (1999) 2 SCC 188, the Apex Court dealt with judgment delivered by a learned Single Judge of the Karnataka High Court whereby the learned Single Judge dismissed the applications for summarily dismissing the election petition for non-compliance with certain statutory provisions which were mandatory such as the petition did not disclose a cause of action, there is no averment in the petition as to any defect or malpractice in the course of re-counting, the affidavit filed by the petitioner along with the election petition did not fulfil the requirement of law, and, the allegations of corrupt practices were vague and not supported by material facts or particulars. Dealing with the defect in the affidavit, the Apex Court held as under in paragraph 14:
14.
The argument is no doubt attractive. But, the relevant provisions in the Act are very specific. Section 86 provides for dismissal of election petition in limine for non-compliance of Sections 81, 82 and 117. Section 81 relates to presentation of election petition. It is not the case of the appellant before us that the requirements of Section 81 were not complied with though in the High Court a contention was urged that a true copy of the election petition was not served on the appellant and thus the provisions of Section 81 were not complied. Sections 82 and 117 are not relevant in this case. Significantly Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Section
86. This Court has laid down that non-compliance of Section 83 may lead to dismissal of the petition only if the matter falls within the scope of O. 6, R. 16 or O. 7, R. 11, CPC. Defect in verification of the election petition or the affidavit accompanying election petition has been held to be curable and not fatal. [emphasis supplied by me]
26. In CHANDRAKANT UTTAM CHAODANKAR VS. DAYANAND RAYU MANDRAKAR 2005 (2) SCC 188, the Apex Court considered two appeals against the dismissal of Election Petitions by the High Court of Bombay on preliminary issues without any trial. The election petitions were dismissed on grounds such as non compliance with sections 81(3), 83(1)(a), (c) and 83 (2) of the Act. the copies supplied were not true copies and verification of election petitions and documents were not proper. The Apex Court, speaking through SB SINHA, J. held that it is now well-settled that the statutory requirements of Sections 81 and 83 would be met if substantial compliance thereof is made. In the said decision the Apex Court in paragraph No.69, held as under:
69.The question came up for consideration again before a Constitution Bench in T.M. Jacob v. C. Poulose and others [(1999) 4 SCC 274], wherein relying on or on the basis of the doctrine of 'substantial compliance' vis-a-vis the doctrine of 'curability', it was held : scc P. 292, Para 40) "In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect....."
26.1 The Apex Court further held that Sub-section (3) of Section 81 or Section 83(1) of the Act although may or may not be mandatory but it is not in dispute that the defects pointed out therein, if any, would be curable, and only when despite opportunities granted such defects are not cured, the election petition could be dismissed.
26.2 In the said case of Chandrakant [supra[, Tarun Chattarjee, J, speaking for himself and Hegde, J, held that a bare perusal of the defects indicates that the defects cannot be said to be of vital nature.
27. In the case of SARDAR HARCHARAN SINGH BRAR vs. SUKH DARSHAN SINGH & ORS reported in (2004) 11 SCC 196, the Apex Court again dealt with a question whether the election petition could have been dismissed at the threshold without being tried and heard on merits. In that matter, the Punjab & Haryana High Court dismissed the election petition at the preliminary stage on the premise that the averments made in the election petition alleging commission of corrupt practice do not disclose material facts as required by section 83 of the Act and the election petition is also not supported by an affidavit as required by proviso to sub-section (1) of section 83 of the Act read with Rule 94-A of the Conduct of Election Rules and therefore the election petition does not disclose any cause of action and does not raise any triable issue. As regards non-disclosure of material facts, the Apex Court held as under:
13. Having gone through the contents of the election petition, we are satisfied that the High Court has not been right in directing the petition to be dismissed at the threshold by forming an opinion that the averments made in election petition were deficient in material facts.
It is not necessary to burden this judgment with reproduction of the several averments made in the election petition. The High Court has already done it. The test laid down in the several authorities referred to hereinabove and in particular in the case of Raj Narain is fully satisfied. The grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated. Even the particulars have been given. However, if the Court feels that the particulars as given in the petition are deficient in any manner the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non-supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice. We cannot countenance the view taken by the High Court.
27.1 As regards the defect in the affidavit, the Apex Court held in paragraph 14 of the judgment that the defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly "defective" affidavit, are 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. The Apex Court further held that if there was any defect in the affidavit, the election petitioner should have been allowed an opportunity of removing the defect by filing a proper affidavit. Else the effect of such failure should have been left to be determined and adjudicated upon at the trial.
28. In G. MALLIKARJUNAPPA AND ANOTHER vs. SHAMANUR SHIVASHANKARAPPA AND OTHERS reported in (2001) 4 SCC 428, the Apex Court again considered a case where the High Court of Karnataka dismissed an election petition at the threshold for non-compliance with Rule 94-A i.e. affidavit filed in support of the allegations of corrupt practices. The Apex Court again reiterated that non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. The Apex Court further held that 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.
29. In the case of DR. VIJAY LAXMI SADHO vs. JAGDISH reported in (2001) 2 SCC 247, the High Court dismissed an application for rejection of the election petition on the ground of defect in affidavit. The Apex Court again held that 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) of the Act or of its proviso. After referring to various judgments, the Apex Court held that defect in verification of an affidavit is curable and does not merit dismissal of an election petition n limine under Section 86 (1) of the Act. What other consequences, if any, may follow from an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act cannot be attracted to such a case.
30. In the case of KRISHAN CHANDER v/s. RAMLAL reported in (1973) 2 SCC 759, the Apex Court also considered about non-disclosure of source of information in the affidavit. In paragraph 6, the Apex Court held that the provision for setting out the sources of information where the allegations have been verified as having been made on information and knowledge of the petitioner is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961, which are applicable to the filing of an election petition. The Apex Court further held in paragraph 7 that election petition under s. 83 (1) (b) itself must contain all the particulars that are necessary and in the affidavit in support of that petition the petitioner is required to say which of the allegations made in various paragraphs of the petition are true to his knowledge and which of them are true to his information. The Apex Court further held that if the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of information have not been given, the allegations made in the petition have to be ignored.
31. In the case of T. PHUNGZATHANG vs. HANGKHANLIAN AND OTHERS reported in (2001) 8 SCC 358, the Apex Court again dealt with a case where copy supplied to the respondent did not contain the verification or affirmation made by the Oath Commissioner or the prescribed authority as required in Form 25 and Rule 94A of the Conduct of Election Rules, 1961. In paragraph 17 the Apex Court held as under:
17. In the above-declared legal position, if we examine the case in hand, we notice that the only lacuna pointed out by the contesting respondent in his application in Civil Miscellaneous Election Case No. 3 of 2000 is that the copy supplied to him did not contain the verification or affirmation made by the Oath Commissioner or the prescribed authority as required in Form 25 and Rule 94A of the Conduct of Election Rules, 1961. It is not the case of respondent No. 1 that the original affidavit filed along with the election petition in Form 25 did not contain such verification or affirmation. On the contrary, it is, an admitted fact that such affirmation or verification was made in the original affidavit filed before the High Court. Therefore, the question arising in this appeal is: would this omission as pointed out by the respondent in his petition, ipso facto entail dismissal of the election petition under Section 86(1) of the Act? In view of the law laid down in Jacob's case (supra), the answer then should be 'no' because by such omission the copy supplied will not cease to be a "true copy" and there is no possibility of any prudent person being in any manner misled in defending himself or being prejudiced in the defence of his case. Further, such omissions are only curable irregularities.
32. In the judgment of the Apex Court in T.M. JACOB vs C. POULOSE AND OTHERS reported in (1999) 4 SCC 274, the Apex Court considered various issues. On the question whether election petition in the present case was liable to be rejected in limine for non-compliance with section 81(3) read with section 86(1) of the Act on account of the defect in the true copy supplied to the respondent. The Apex Court, referred to a catena of decisions and held that the test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. The Apex Court ultimately held in paragraph 38 that defects in the supply of true copy under section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of section 81(3) read with section 86(1) of the Act. Same consequence would not follow from non-compliance with Section 83 of the Act. The Apex Court held that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86 (1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying true copy of the affidavit to the appellant by the respondent.
33. In the full bench decision of the Apex Court in the case of F.A. SAPA vs. SINGORA reported in (1991) 3 SCC 375, wherein before the Gauhati High Court two preliminary objections were raised, one of which that is relevant for the present petition is that the petitions were not in conformity with sections 81 and 83 of the Act and the rules framed by the High Court such as copies served were not attested to be true copies; election petitions were not signed and verified in the manner laid down by the CPC inasmuch as the source of information had not been disclosed in the verification or the affidavit, schedule of material particulars of corrupt practice had not been annexed to the affidavit, etc. In paragraph 21, the Apex Court held as under:-
It must at the outset be realised that section 86(1) which lays down that the High court `shall' dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 does not in terms refer to section 83. It would, therefore, seem that the legislature did not view the non-compliance of the requirement of section 83 with the same gravity as in the case of sections 81, 82 or 117. But it was said that a petition which does not strictly comply with the requirements of section 83 cannot be said to be an election petition within the contemplation of section 81 and hence section 86(1) was clearly attracted.
33.1 After referring to the case of Murrka Redhey Shyam v. Roop Singh Rathore, [1964] 3 SCR 573, the Apex Court held as under:
It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since section 83 is not one of three provisions mentioned in section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to an integral part of the petition under section 81.
33.2 In paragraph 28, after considering the text of the relevant provisions of the R.P. Act, Rule 94A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law the Apex Court held that:
(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 desire better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same; and,
(iv) the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral art of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under section 81(3) as indicated earlier.
33.3 Dealing with the objection raised by the appellants that the copy of the petition served on each one of them is not attested to be a true copy of the original petition as required by section 81(3) of the R.P. Act and Rule 1 of the Rules, the Apex Court held that mere signature without the words like true copy, sufficient attestation under section 81(3) of the R.P. Act.
34. In the judgment of the Apex Court in RAM PRASAD SARMA vs. MANI KUMAR SUBBA reported in (2003) 1 SCC 289, the Apex Court held that 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 and such defects in supply of true copies is curable. In paragraph 17 of the said judgment, the Apex Court held as under:
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 in the look out 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.
34.1 The Apex Court ultimately held in paragraph 24 that the substance of the matter must govern, because hyper technicality when the public policy of the Statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat the vital judicial process, namely, investigation into the merits of the case.
35. I have carefully gone through the memo of application. The submissions made on behalf of the present applicant and the averments in the memo of application can be summarized as under:
1. The election petitioner has not followed the correct procedure envisaged as per sections 83, 84, 86 and 123 etc. of the Representation of People Act, 1951.
2. The election petitioner has not supplied true copy of the petition because the copy is not signed by the election petitioner and verification is also not signed by respondent No.1.
3. Affidavit is also not signed by the respondent No.1.
4. Affidavit is not in accordance with the mandatory provisions of rule 94-A of the Conduct of Election Rules, 1961 and Form No.25.
5. Copy served on the present applicant does not bear who is the Notary and on which date the affidavit is sworn and it also does not contain the endorsement by the Notary about the affirmation before him, and therefore, it is not a true copy.
6. The petition and the verification and the affidavit is not signed by the petitioner himself.
7. The verification is totally vague. As per section 83-C the election petitioner should sign and verify as per the provision of CPC for the verification of the pleadings and if the election petitioner alleged corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation. These requirements are not complied with.
8. Paragraphs 2.1 to 2.4 are not verified properly because the election petitioner has to say from where the election petitioner has got the knowledge, i.e. source of information. This material defect in petition goes to the root of the petition and such type of material defect cannot be tolerated and the petition is liable to be rejected at the threshold.
9. The election petitioner has not given a concise statement of material facts on which he relies and the concise statement of material facts has also not been stated in the verification paragraph.
10. Though paragraphs 3, 3.1 to 3.4, 4, 4.1 to 4.5, 5, 5.1 to 5.5 are verified, source of information is not given.
11. The election petitioner has not stated from which source he came to know about the improper acceptance of the nomination of the returned candidate.
12. Since source of knowledge of paragraphs 3.1 to 3.5 is not stated in the verification, the verification is not properly done, and therefore, it is required to be rejected.
13. In affidavit part B, the election petitioner has stated such correct practice and therefore, the present applicant is not required to be tried so far as the allegations contained in paragraphs 4.1 to 4.5.
14. The affidavit is vague and incorrect and not signed by the election petitioner and therefore the petition is liable to be rejected at the threshold.
15. Election petition is a 'suit' and cause of action is required to be stated.
Since the petitioner is silent with regard to cause of action, the petition is liable to be rejected under Order 7 Rule 11.
16. As per Order 6 Rule 15 of CPC, all annexures and accompanying documents are not only required to be verified but affidavit is also required to be filed in support of the annexures. The same having not been done, the petition must fail.
17. With regard to the allegations of corrupt practice, material particulars are not supplied, not pleaded and not mentioned in the election petition and therefore also the petition requires to be rejected.
36. On the above grounds, it is prayed that the election petition may be rejected as per the provisions of Order 7 Rule 11 of CPC.
37. In the above perspective, I have considered the judgments cited by both the sides, and at the cost of making this order on an interim application very lengthy, I have reproduced the relevant paragraphs above.
38. Before dealing with the submissions, it would be relevant to quote section 86 of the Act which is as under:
86. (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. 38.1 Section 81 of the Act deals with presentation of the petitions within forty five days from the date of election of the returned candidate, and for providing as many copies of the respondents as are mentioned in the petition, and that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 82 of the Act provides for joining of parties to the petition. Section 117 provides for security for costs. Before proceeding further, it would be relevant to note here that section 86 does not provide for dismissal of an election petition which does not comply with the provisions of section 83, which deals with the contents of the petition.
39. It would also be relevant to quote Order 7 Rule 11 which is as under:
11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a). Where it does not disclose a cause of action;
(b). where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c). where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d). where the suit appears from the statement in the plaint to be barred by any law;
[e]. where it is not filed in duplicate.
[f]. where the plaintiff fails to comply with the provisions of rule 9.
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff .
40. Now, taking up the last contention recorded above first, as regards stating material facts, as held by the Apex Court in the case of Harkirat Singh VS. Amrinder Singh (2005) 13 SCC 511, this Court at this stage of deciding preliminary objection cannot reject the petition holding that it did not state material facts and thus did not disclose a cause of action. That would be, as held by the Apex Court appreciating the evidence and by entering into merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable. Even otherwise, in the case of SARDAR HARCHARAN SINGH BRAR vs. SUKH DARSHAN SINGH & ORS reported in (2004) 11 SCC 196 the Apex Court held that if particulars as given in the petition are deficient in any manner, the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non-supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice.
41. As regards the defects in the affidavit, the defect is of very minor nature. It is not such a defect which could entail dismissal of the election petition. The Apex Court in UMESH CHALLIYIL vs. KP RAJENDRAN (2008) 11 SCC 740 has held that in order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC. Only when despite opportunities granted such defects are not cured, the election petition can be dismissed [Ram Prasad Sarma etc. v. Mani Kumar Subba.]. In the case of H.D. REVANNA vs. PUTTASSWAMY GOWDA (1999) 2 SCC 188, the Apex Court has held that Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Section 86. The Apex Court further held that non-compliance of Section 83 may lead to dismissal of the petition only if the matter falls within the scope of O. 6, R. 16 or O. 7, R. 11, CPC. Defect in verification of the election petition or the affidavit accompanying election petition has been held to be curable and not fatal. That apart, in CHANDRAKANT UTTAM CHAODANKAR VS. DAYANAND RAYU MANDRAKAR 2005 (2) SCC 188, SB SINHA, J the Apex Court held that it is now well settled that the statutory requirements of Sections 81 and 83 would be met if substantial compliance thereof is made. Having gone through the amended copy supplied by the learned advocate, this Court is of the view that substantial compliance of sections 81 and 83 is made. Even with regard to non-signing of copy of the election petition by the election petitioner under his own signature to be a true copy of the petition, the Apex Court has held that such defects cannot be said to be of vital nature. Further, the Constitution Bench in T.M. Jacob's case held (SCC p.292, para 40) has held that it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is now well settled law that defect in verification of affidavit is curable and does not merit dismissal of an election petition in limine under Section 86 (1) of the Act. As held by the Apex Court in the case of DR. VIJAY LAXMI SADHO vs. JAGDISH reported in (2001) 2 SCC 247, an election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 107 of the Act. For 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, 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) of the Act or of its proviso. What other consequences, if any, may follow from the an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Ac in terms cannot be attracted to such a case. The full bench decision of the Apex Court in the case of F.A. SAPA vs. SINGORA, which holds the field even today, has dealt with almost all the preliminary objections raised in the present application, and this Court has quoted the relevant portions thereof in paragraphs 33, 33.1, 33.2 and 33.3 hereinabove and do not reproduce the same for the sake of brevity.
As regards the contention that the copy supplied is not a true copy, in the case of T.M. JACOB vs C. POULOSE AND OTHERS reported in (1999) 4 SCC 274, the Apex Court held that the test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. The Apex Court ultimately held in paragraph 38 that defects in the supply of true copy under section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. Applying the said ratio to the facts of the present case, this Court is of the opinion that that the alleged defect in the true copy of the affidavit in the present case cannot attract the provisions of Section 86 (1) of the Act or Order VII Rule 14 because, as held by the Apex Court, there is substantial compliance with the requirements of Section 81(3) of the Act in supplying true copy of the affidavit to the present applicant by the election petitioner. As regards the contention that the copy served does not bear who is the Notary and on which date the affidavit is sworn etc. the Apex Court has held in the case of T. PHUNGZATHANG vs. HANGKHANLIAN AND OTHERS reported in (2001) 8 SCC 358 that the said omission would not entail dismissal of the election petition under Section 86(1) of the Act because such omissions are only curable irregularities.
As regards non stating of the source of information and knowledge, as held by the Apex Court in the case of KRISHAN CHANDER v/s. RAMLAL reported in (1973) 2 SCC 759, the provision for setting out the sources of information is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961, which are applicable to the filing of an election petition. In the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petition are true to his knowledge and which of them are true to his information. If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of information have not been given, the allegations made in the petition have to be ignored. Hence this Court is not inclined to hold that because the source of information is not stated, the election petition is liable to dismissed at the threshold.
As regards the cause of action, a bare perusal of the petition clearly shows that the cause of action has been clearly brought out in the petition, although a separate paragraph for the same may not have been dedicated in the election petition.
42. This Court, in view of a catena of judgments of the Apex Court, has to view whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart, the election petition should not be summarily dismissed on such small breaches of procedure. Having gone through the objections raised in the present application, and considering the various judgments cited by both the sides, this Court is of the view that the objections pointed out are only cosmetic in nature and does not go to the root of the matter. This Court is informed that the election petitioner has subsequently served a copy on the present applicant curing the defects pointed out in the application. Be that as it may, if there is any defect left out, the election petitioner, respondent No.1 herein, is granted time of two weeks from today to remove the defects pointed out by the present applicant and serve a complete and true copy thereof to the present applicant. If any such copy is served, the present applicant, original respondent No.1 is granted two weeks time thereafter to file written statement. Thereafter the Election Petition shall be listed for final hearing in the week commencing on 13th September 2010. However, if the above directions are complied with earlier than the aforesaid date, the parties may jointly file a note to take up the election petition even on an earlier date.
43. In the result, this application is dismissed. No order as to costs.
mathew [H.B.
ANTANI, J]
Top