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TMI Blog2013 (3) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... ited extent. 3. Another question that has arisen is that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory Form No. 25 prescribed by the Conduct of Election Rules, 1961, whether the election petition is liable to be summarily dismissed. In our opinion, as long as there is substantial compliance with the statutory form, there is no reason to summarily dismiss an election petition on this ground. However, an opportunity must be given to the election Petitioner to cure the defect. Further, merely because the affidavit may be defective, it cannot be said that the petition filed is not an election petition as understood by the Representation of the People Act, 1951. The facts: 4. The challenge in these appeals is to a judgment and order dated 24th February 2010 passed by a learned Single Judge of the High Court of Karnataka in Miscellaneous Civil No. 386/2010 and Miscellaneous Civil No. 1431/2010 in Election Petition No. 2/2009. The decision is reported as Prasanna Kumar v. G.M. Siddeshwar and Ors. 2010 (6) KarLJ 78. 5. In Miscellaneous Civil No. 386/2010 the Appellant (Siddeshwar) sought the dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94-A of the Conduct of Election Rules, 1961 prescribes Form No. 25 as the format affidavit. According to Siddeshwar, the affidavit filed by the election Petitioner (Prasanna Kumar) did not furnish the material particulars on the basis of which allegations of corrupt practice were made and also that it carried a defective verification and therefore it was not an affidavit that ought to be recognized as such. 8. On the issue of non-compliance with the format affidavit, the High Court was of the view that though there was no verbatim compliance, but the affidavit filed by Prasanna Kumar was in substantial compliance with the prescribed format. Consequently, this contention was rejected. The High Court subsequently dealt with the absence of material particulars in the affidavit along with the second application. 9. The High Court also considered the contention that the verification in the affidavit in Form No. 25 was defective but concluded that it was a curable defect and therefore, an opportunity should be given to Prasanna Kumar to cure the defect. It was held that if the defect is not cured the election petition is liable to be dismissed. 10. It was also contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arger Bench: 16. These matters were earlier heard by a Bench of two learned judges when it was contended by learned Counsel for Siddeshwar, relying upon P.A. Mohammed Riyas (decided by a Bench of two learned judges) that since Prasanna Kumar had not filed an 'additional' affidavit as required by Order VI Rule 15(4) of the Code of Civil Procedure in support of the election petition, the High Court ought to have dismissed it at the threshold. learned Counsel placed reliance on R.P. Moidutty v. P.T. Kunju Mohammad and Anr. (2000) 1 SCC 481 in support of his contention that an election petition could be dismissed at the threshold if it did not disclose a cause of action. 17. On the other hand, learned Counsel appearing for Prasanna Kumar relied upon a larger Bench decision in F.A. Sapa and Ors. v. Singora and Ors. (1991) 3 SCC 395 and contended that Mohammed Riyas was not in consonance with that decision. Reliance was also placed on G. Mallikarjunappa and Anr. v. Shamanur Shivashankarappa and Ors. (2001) 4 SCC 428 to contend that an election petition is not liable to be dismissed at the threshold under Section 86 of the Act for non-compliance with the provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 pleading shall also furnish an affidavit in support of his pleadings. 23. A plain reading of Rule 15 suggests that a verification of the plaint is necessary. In addition to the verification, the person verifying the plaint is also required to file an affidavit in support of the pleadings. Does this mean, as suggested by learned Counsel for Siddeshwar that Prasanna Kumar was obliged to file two affidavits-one in support of the allegations of corrupt practices and the other in support of the pleadings? 24. A reading of Section 83(1)(c) of the Act makes it clear that what is required of an election Petitioner is only that the verification should be carried out in the manner prescribed in the Code of Civil Procedure. That Order VI Rule 15 requires an affidavit also to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed. The affidavit, in this context, is a stand-alone document. 25. Mohammed Riyas dealt with the issue whether the election Petitioner is required to file t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Section 83(1)(c) of the above Act requires the election petition to be signed by the Petitioner and verified in the manner specified in Code of Civil Procedure for the verification of pleadings. Referring to Order 6 Rule 15 of the Code, Mr. Rao submitted that Sub-rule (4) requires that the person verifying the pleading shall also furnish an affidavit in support of his pleadings, which was a requirement independent of the requirement of a separate affidavit with respect to each corrupt practice alleged, as mandated by the proviso to Section 83(1)(c) of the above Act. 28. The conclusions of this Court are given in paragraphs 45 and 46 of the Report in the following words: 45. of course, it has been submitted and accepted that the defect was curable and such a proposition has been upheld in the various cases cited by Mr. Venugopal, beginning with the decision in Murarka Radhey Shyam Ram Kumar case (AIR 1964 SC 1545) and subsequently followed in F.A. Sapa case ((1991) 3 SCC 375), Sardar Harcharan Singh Brar case (2004) 11 SCC 196) and K.K. Ramachandran Master case (2010) 7 SCC 428), referred to hereinbefore. In this context, we are unable to accept Mr. Venugopal's su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. We are being asked to read a requirement that does not exist in Section 83(1)(c) of the Act. Recommendation of the Law Commission: 31. To get over the difficulty posed by the plain language of Section 83 of the Act, learned Counsel for Siddeshwar referred to the imperatives of an affidavit in support of statements of fact made in a plaint, which would hopefully give some sanctity to the averments made therein. Reliance was placed on judgments of this Court as well as on the 163rd Report of the Law Commission of India (LCI) on the Code of Civil Procedure (Amendment) Bill, 1997. 32. In this context, in Dhananjay Sharma v. State of Haryana (1995) 3 SCC 757 it was held: The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice.... The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned candidate. This procedure is not contrary to law and cannot be faulted. Such a composite affidavit would not only be in substantial compliance with the requirements of the Act but would actually be in full compliance thereof. The filing of two affidavits is not warranted by the Act nor is it necessary, especially when a composite affidavit can achieve the desired result. 35. The Court must make a fine balance between the purity of the election process and the avoidance of an election petition being a source of annoyance to the returned candidate and his constituents. In Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315 this Court observed (in the context of summary dismissal of an election petition): So long as the sword of Damocles of the election petition remains hanging an elected member of the legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Section 83 of the Act, only a verification and not an affidavit in support of the averments in an election petition is required, except when allegations of corrupt practices are made by the election Petitioner. Any amendment in the Code of Civil Procedure is of no consequence in this regard unless the meaning of 'verification' is amended to include an affidavit. Defective affidavit: 38. What exactly are the contents of an affidavit in Form No. 25 as prescribed by Rule 94-A of the Rules? The format reads as follows: Form 25 (see Rule 94A) AFFIDAVIT I, ..., the Petitioner in the accompanying election petition calling in question the election of Shri/Shrimati...(Respondent No. in the said petition) make solemn affirmation/oath and say- (a) that the statements made in paragraphs...of the accompanying election petition about the commission of the corrupt practice of*...and the particulars of such corrupt practice mentioned in paragraphs...of the same petition and in paragraphs...of the Schedule annexed thereto are true to my knowledge; (b) that the statements made in paragraphs...of the said petition about the commission of the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a perusal of the affidavit, undoubtedly there was substantial compliance with the prescribed format. It is correct that the verification was also defective, but the defect is curable and cannot be held fatal to the maintainability of the election petition. 41. Recently, in Ponnala Lakshmaiah v. Kommuri Pratap Reddy (2012) 7 SCC 788 the issue of a failure to file an affidavit in accordance with the prescribed format came up for consideration. This is what this Court had to say: The format of the affidavit is at any rate not a matter of substance. What is important and at the heart of the requirement is whether the election Petitioner has made averments which are testified by him on oath, no matter in a form other than the one that is stipulated in the Rules. The absence of an affidavit or an affidavit in a form other than the one stipulated by the Rules does not by itself cause any prejudice to the successful candidate so long as the deficiency is cured by the election Petitioner by filing a proper affidavit when directed to do so. We have no reason to take a different view. The contention urged by Siddeshwar is rejected. (ii) Summary dismissal under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the election petition are not complied with. 45. In Mallikarjunappa the issue was considered yet again and it was held: An election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 117 of the RP Act . The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. 46. More recently, the issue was again considered in Ponnala Lakshmaiah and relying upon Sardar Harcharan Singh Brar v. Sukh Darshan Singh (2004) 11 SCC 196 it was held: Even otherwise the question whether non-compliance with the proviso to Section 83(1) of the Act is fatal to the election petition is no longer res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 83(1) of the Act was not 'fatal' to the maintainability of an election petition and the defect could be remedied. It would follow that if an election petition did not comply with the proviso to Section 83(1) of the Act, it would still be called an election petition. 51. The broad principle laid down in Murarka was somewhat restricted by another Constitution Bench decision rendered in Ch. Subba Rao v. Member, Election Tribunal, Hyderabad (1964) 6 SCR 213. In that case, the Constitution Bench introduced two clear principles: firstly, that if there is a total and complete non compliance with the provisions of Section 81(3), the election petition might not be an election petition presented in accordance with the provisions of this part within Section 80 of the Act and secondly, that if there is a substantial compliance with the requirement of Section 81(3), the election petition cannot be dismissed by the Tribunal under Section 90(3). 52. In T.M. Jacob v. C. Poulose and Ors. (1999) 4 SCC 274 this Court reiterated the doctrine of substantial compliance as mentioned in Murarka Radhey Shyam Ram Kumar and Ch. Subba Rao and also introduced the doctrine of cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Representation of the People Act, 1951 as copy of Annexure 'A' to the petition was not given along with the petition for being served on the Respondents. 58. It was noted that the contents of the pamphlet, in translation, were incorporated in the election petition. It was also noted that the trial of an election petition has to follow, as far as may be, the provisions of the Code of Civil Procedure. Therefore, this Court approached the problem by looking at the Code of Civil Procedure to ascertain what would have been the case if what was under consideration was a suit and not the trial of an election petition. 59. It was held that where the averments are too compendious for being included in an election petition, they may be set out in the schedules or annexures to the election petition. In such an event, these schedules or annexures would be an integral part of the election petition and must, therefore, be served on the Respondents. This is quite distinct from documents which may be annexed to the election petition by way of evidence and so do not form an integral part of the averments of the election petition and may not, therefore, be served on the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of an election petition, the High Court should ensure compliance before the parties go to trial so that the returned candidate can meet the allegations and is not taken by surprise at the trial. 63. What is the consequence of not curing the defect? In Moidutty a defect in verification of the election petition was pointed out by raising a plea in that regard in the written statement. Notwithstanding this, the election Petitioner did not cure the defect. Under these circumstances it was held that until the defect in the verification was rectified the petition could not have been tried. Additionally, it was held that since there was a lack of material particulars regarding the allegations of corrupt practices, it was a case where the election petition ought to have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings. 64. This issue was again discussed in Umesh Challiyill v. K.P. Rajendran (2008) 11 SCC 740 and this Court suggested the following solution: However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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