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TMI Blog2016 (3) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) of Section 123 of the Representation of the People Act, 1951 (hereinafter referred to as 'the RP Act'), i.e. (1) making appeal to the voters in the name of religion and bribery; and (2) incurring expenditure in contravention of Section 77 of the RP Act respectively. 4. Notice to the respondents in the Election Petition was ordered on 10th February, 2014. The RETURNED CANDIDATE was served with the said notice on 18.6.2014. Admittedly, the election petition and all the annexures thereto were served on the RETURNED CANDIDATE on his appearance in the Court on 18.6.2014. Admittedly the RETURNED CANDIDATE could not be served with the summons in the normal course by the High Court. He appeared in the High Court (admittedly) pursuant to the substituted service (paper publication). The RETURNED CANDIDATE has an explanation for the same. The truth of the explanation is not in issue. 5. On 1st July, 2014, the RETURNED CANDIDATE filed I.A. No.43 of 2014 invoking Order VII Rule 11 of CPC (hereinafter referred to as "OR VII R 11 petition") praying that the Election Petition be dismissed on the ground that it does not disclose a cause of action. The said petition was dismissed by order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird objection which respondent no.1/returned candidate has raised with respect to the non filing of the affidavit inconformity of the Form 25 of the Conduct of Election Rules, 1961. The petitioner has filed the said affidavit along with the election petition which is attached at page no.394 and 395 of the election petition and also found mention at serial no.57-A in the index filed along with the election petition. Since the petitioner has also filed affidavit in support of the election petition and has also filed the affidavit in prescribed format, therefore, there is no defect in this regard. Though, the petitioner respectfully submits that the petition and the affidavit is in proper order but if in the opinion of the court if there is any defect, the election petitioner is willing to cure the same." 11. It can be seen from the above that the ELECTION PETITIONER clearly mentioned about the filing of an affidavit in form 25 which is to be found at page nos.394 and 395 of the election petition and also mentioned at serial no.57-A in the index to the election petition. Though not very elegantly pleaded, the ELECTION PETITIONER did assert the fact that he had filed two affidavits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings; Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Order VI Rule 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. (4) The person verifying the plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept Mr Venugopal's submission that even in a case where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions." 18. Subsequently, the same question again fell for consideration before a larger bench of this Court in G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776. The court disapproved the view taken in Mohammed Riyas case and held: "1. ... The principal question of law raised for our consideration is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order 6 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) of the Representation of the People Act, 1951. In our opinion, there is no such mandate in the Representation of the People Act, 1951 and a reading of P.A. Mohammed Riyas v. M.K. Raghavan which suggests to the contrary, does not lay down correct law to this limited extent. 30. In any event, as in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the G.M. Siddeshwar case (supra) and ultimately records a conclusion without any discussion of the pleadings or evidence that the ELECTION PETITIONER has not filed an affidavit in Form-25. It was however ordered at para 6 of the order dated 25.08.2014: "I do not find any ground for rejection of the petition in limine under Order 7 Rule 11 of the CPC. Accordingly, I.A. No.43/2014, filed by the respondent No.1 is hereby dismissed. The petitioner is directed to file affidavit in Form 25 of the Conduct of Election Rules, 1961 within 15 days from the date of receipt of certified copy of the order. Respondent No.1 is also directed to file written statement within two weeks from the date of receipt of certified copy of this order." It is a wholly unsatisfactory way of dealing with any issue in a judicial proceeding and more so with election petitions. Election petitions deal with the basic rights of the citizenry of this country. Election is a "politically sacred" event and an election dispute is too serious a matter to be dealt with casually. Therefore, the Parliament thought it fit to entrust the adjudication of election disputes to the High Courts. It is unfortunate that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Section 83(1)(c) but not the affidavit in Form 25 and records a conclusion at para 6 as follows: "6. A bare reading of earlier affidavit filed by the petitioner makes it clear that the petitioner had covered all the pleadings in his affidavit and no pleading was left which was not mentioned in the affidavit but what was lacking was that the earlier affidavit was not in the prescribed Form No.25 of the Rule 94-A of the Rules of 1961. Certainly, there was a non-compliance of proviso to Section 83(1) of the Act of 1951 but Section 83(1) of the Act of 1951 is not covered under Section 86 of the Act of 1951." Interestingly, at para 9, once again the High Court recorded a conclusion: "9. As mentioned hereinabove, in the instant case substantial compliance of Section 81(3) of the Act of 1951 has already been done by the petitioner by filing first affidavit along with the petition but only defect was that the affidavit was not in prescribed format, therefore, at the most it was a non-compliance of Section 83(1) of the Act of 1951 and same is curable. ..." The cryptic conclusions recorded in the order dated 18.03.2015 only add to the existing confusion. 24. However, aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove. Unfortunately, the orders of the High Court are cryptic and the findings recorded by the High Court (extracted earlier in this order) are not clear with regard to the above mentioned questions." 27. Pursuant to the said order, the ELECTION PETITIONER filed I.A. No.11665/2015 seeking clarifications from the Madhya Pradesh High Court. The said I.A. was disposed of by an order dated 29.9.2015. Challenging the correctness of the said order, SLP 31051/2015 is filed by the RETURNED CANDIDATE. The High Court, recorded; "37. On the basis of aforesaid discussion, the questions posed by the Supreme Court in order dated 20-08-2015, are answered in the following manner: Question No. 1: Whether there was one affidavit or two affidavits filed along with the election petition? Answer: Two affidavits were filed along with election petition. Question No. 2: The actual date when those affidavits were filed? Answer: Both affidavits were filed on 20-01-2014, the date on which the election petition was filed. Question No. 3: Whether either of the two affidavits is filed in compliance with the requirement of section 83(1)(c) of the Representation of the People Act, 1951? Answer: Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision bench." and Justice Solanki who passed the order in the OR VII R 11 petition retired subsequently. 30. In response, it is submitted on behalf of the ELECTION PETITIONER that: i) such an objection was never raised by the RETURNED CANDIDATE before the High Court when I.A. No.11665 of 2015 was being heard and therefore now cannot be permitted to raise the same; ii) that, the adjudication of an election petition is governed by Section 81A read with Section 86 of the Representation of the Peoples Act, 1951. Non-compliance, if any, with the Rules of the High Court framed under Article 225 does not render the order one without jurisdiction; iii) that, I.A. No.11665 of 2015 is "more about clarification of record, not clarification of order in strict sense". In other words, the clarification sought is not regarding either the interpretation of the earlier orders or the legal implications of the earlier orders but an enquiry into certain facts and the record of the High Court pertaining to the election petition. Therefore, Rule 13 would have no application. (iv) That the requirement of a matter being heard by a Division Bench under Rule 13(1)(b) is limited only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h jurisdiction. The exercise of such power is subject to the provisions of the Constitution and the "provisions of any law of the appropriate legislature". Rule 13 mandates the listing of certain matters (nature of which is described therein) before a Division Bench. Such stipulation is contrary to the stipulation of Section 80A(2) that election petitions are to be tried by a single judge of the High Court leaving a discretion in the Chief Justice to decide whether in a given case, an election petition shall be heard by more than one Judge. Such a statutory discretion vested in the Chief Justice of the High Court cannot be curtailed by a rule made as the High Court in view of the clear declaration by the Constitution (in the opening clause of Article 225) that "any rule shall be subject to the law made by the appropriate legislature". We are, therefore, of the opinion that the objection raised by the RETURNED CANDIDATE is not tenable. In view of the above conclusion, we do not wish to examine the other defences of the ELECTION PETITIONER in this regard. 32. We now proceed to examine the appeals on their merits. The fate of these appeals would eventually depend upon the answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction of filing afresh affidavit. Therefore, the ELECTION PETITIONER is precluded from contending at a later stage that the finding recorded by the High Court in its order dated 25.08.2014 is incorrect. III. Rule 6(4) of the Rules relating to election petitions in the Madhya Pradesh High Court requires: "the Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it." and the affidavit at page nos.394 and 395 of the election petition does not contain the seal and signature of the Registrar of the High Court. Whereas all the other pages of the election petition contain the seal and signature of the Registrar. The absence of the seal and the signature of the Registrar only on the affidavit at page nos.394-395 must necessarily lead to an inference that such an affidavit must have been inserted in the election petition sometime subsequent to the date of the presentation of the election petition. Such an inference would be further strengthened by the fact that in the index of the election petition, reference to the affidavit at page nos.394-395 is made at Entry No.57-A in the index. The said entry is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh it is the duty of the Registrar of the High Court to sign on each page of the election petition and the affidavit filed alongwith the election petition, if the Registrar failed in his duty the ELECTION PETITIONER cannot be penalized by drawing an inference that the affidavit was not presented along with the election petition. In this regard, the ELECTION PETITIONER relied upon the well-settled principle of law that the act (which includes an omission) of the court shall not prejudice the rights of any party. 37. We reject submissions of the RETURNED CANDIDATE for the following reasons: (i) The 1st submission of the RETURNED CANDIDATE that the subsequent and conflicting finding is not legally tenable, if at all is based on any legal principle, it is based either on the doctrine of res judicata or some principle analogous to it based on public policy that there must be finality to the judicial orders. Even if the principle of res judicata is invoked, (we only presume without examining the applicability of the same), what is barred under Section 11 of CPC is the adjudication of an issue which was directly and substantially in issue in a former suit between the same parties and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against him either while answeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules have been complied with. (4) The Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it. (5) The Additional Registrar or Deputy Registrar, after examining the petition, shall record his opinion on the opening order-sheet in the following:- "Presented on ........ by ....... Properly drawn up, apparently within time and properly stamped." It can be seen from sub-rule (4) that the concerned Registrar "shall affix his full signature to every page of the petition and the affidavit accompanying it". c) The failure of the Registrar to comply with the requirement of sub-rule (4) is sought to be explained by the High Court by saying that such a lapse occurred probably because nobody pointed out to the Registrar regarding the existence of affidavit at page nos.394-395. We are of the opinion that such a conclusion is not tenable. Rule 6(4) casts a mandatory duty on the Registrar to sign on each page of the election petition and also the affidavit filed along with the election petition. Such a mandatory duty must be performed irrespective of the fact whether somebody points out to the Registrar or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct Rules, 1961." From the language of OR VII R 11 petition, it is clear that the RETURNED CANDIDATE's objection is only regarding the format and content of the affidavit but not regarding the date of the filing of the affidavit, on the other hand, the employment of the expression "along with" clearly indicates that the RETURNED CANDIDATE also at that point of time accepted that the affidavit at page nos.394-395 was presented on the same date i.e. 20.1.2014. Therefore, the question of proof of the fact which was never in issue does not arise much less the question of burden of proof. 40. The fact that the ELECTION PETITIONER chose to file yet another affidavit pursuant to the order dated 25.8.2014 is another circumstance sought to be relied upon by the RETURNED CANDIDATE in support of his submission that there was no second affidavit filed along with the election petition. 41. We are of the opinion that in the circumstances of the case, the inference such as the one suggested by the RETURNED CANDIDATE cannot be drawn because the ELECTION PETITIONER in his reply to the OR VII R 11 petition (specifically stating that he had filed an affidavit in Form 25 along with the election p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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