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Thursday, March 17, 2016

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 the High Court dated 25.8.2014.= The RETURNED CANDIDATE never disputed the statement (of the ELECTION PETITIONER) by filing a Rejoinder to the above- mentioned stand taken in the ELECTION PETITIONER’s reply dated 11.7.2014 in the OR VII R 11 petition. The RETURNED CANDIDATE admits that at least by 18.6.2014 - the date on which he received summons, a copy of the election petition along with Annexures including the affidavit at page nos.394-395 of the election petition was available on record. But his case NOW is that such an affidavit was not filed along with the election petition within the period of limitation, but must have been inserted in the election petition sometime in the interregnum period between 22.1.2014 (the date on which the period of limitation for filing the election petition expired) and 18.6.2014.= the objection of the RETURNED CANDIDATE in OR VII R 11 petition was only that the “affidavit sworn and filed along with the petition by the petitioner is not in conformity with Form 25 of the Conduct 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.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.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 petition) took a stand by way of abundant caution that if the court comes to a conclusion that his affidavit is found to be defective for any reason, he is willing to file further affidavit to cure the defect. Unfortunately, the High Court took a shortcut without examining the question whether the affidavit at page nos.394-395 satisfies the requirement of Form 25 and (without recording a definite finding in that regard) simply recorded a conclusion that the defect is curable and the same can be cured by filing an affidavit in the Form 25”. The dispute on hand is regarding the existence of a fact which was never in issue in OR VII R 11 petition. The RETURNED CANDIDATE cannot shift his case from stage to stage. He cannot now be permitted to raise such a question of fact in the absence of an appropriate pleading and contend that the ELECTION PETITIONER is precluded from arguing that he had filed a 2nd affidavit along with the election petition by pressing into service a rule of estoppel.; the Civil Appeal arising out of SLP (Civil) No.15361 of 2015, the same is required to be allowed in view of the findings recorded by the High Court in I.A. No.11665 of 2015 which has become final by virtue of dismissal of Civil Appeal arising out of SLP (Civil) No.31051 of 2015. The same is accordingly allowed.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No.2697 OF 2016
                (Arising out of SLP (Civil) No.33933 of 2014)

Ajay Arjun Singh                             …     Appellant
            Versus
Sharadendu Tiwari & Others              …    Respondents
                                    WITH
                        CIVIL APPEAL No.2699  OF 2016
                (Arising out of SLP (Civil) No.11096 of 2015)

                        CIVIL APPEAL No.2700 OF 2016
                (Arising out of SLP (Civil) No.15361 of 2015)

                        CIVIL APPEAL No.2701 OF 2016
                (Arising out of SLP (Civil) No.31051 of 2015)


                               J U D G M E N T


Chelameswar, J.

1.    Leave granted.
2.    General elections to the legislative assembly of Madhya  Pradesh  took
place  in  the  year  2013.   On  8.12.2013,  one  Shri  Ajay  Arjun   Singh
(hereinafter referred to as the RETURNED CANDIDATE) was declared elected  as
a member of legislative assembly from 76 Churhat  Assembly  Constituency  in
the said election.   On 20th January, 2014, challenging the  declaration  of
said Ajay Arjun Singh, one of the contesting  candidates  Sharadendu  Tiwari
(hereinafter referred to as ‘the ELECTION  PETITIONER’)  filed  an  Election
Petition No.1 of 2014 before the High Court of Madhya Pradesh.

3.    The election of the RETURNED CANDIDATE was challenged on  the  grounds
that  the  RETURNED  CANDIDATE  is  guilty  of  commission  of  two  corrupt
practices falling under sub-sections (1) and  (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[1]  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.

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 the High  Court  dated  25.8.2014.  Aggrieved  by  the
dismissal of  OR  VII  R  11  petition,  the  RETURNED  CANDIDATE  filed  an
application for review (I.A. No.13575/2015 – hereinafter referred to as  the
“Review Petition”), which was also dismissed by the High Court by  an  order
dated 18.3.2015.

6.     Therefore,  the  RETURNED  CANDIDATE  filed  SLPs  No.33933/2014  and
11096/2015 aggrieved by orders dated 25.8.2014 and 18.3.2015 respectively.

7.    Aggrieved by certain findings recorded by the High Court (the  details
of which will be considered later) in  the  order  dated  18.3.2015  in  the
Review Petition, the ELECTION PETITIONER preferred SLP No.15361/2015.

8.    To adjudicate the correctness  of  the  various  impugned  orders,  an
examination of the issues which fell  for  the  consideration  of  the  High
Court is required to be identified.

9.    The prayer in  the  OR  VII  R  11  petition  filed  by  the  RETURNED
CANDIDATE is as follows:
“It is, therefore, prayed that the present election petition be dismissed.”

(i)   Para 8 of the OR VII R 11 petition reads as follows:
“That, besides the above, affidavit sworn and filed along with the  petition
by the petitioner is not in conformity  with  Form  25  of  the  Conduct  of
Election Rules, 1961.  The  name  of  the  corrupt  practice  has  not  been
specified which is required to  be  specifically  stated  in  the  affidavit
prescribed under Form No.25.  The affidavit which the petitioner  has  filed
is thus defective and, therefore, the petition deserves to be dismissed.”

(ii)  Para 13 of the said petition states:
“That, for the aforesaid reasons, the present election  petition  is  liable
to be dismissed as the as do not disclose any cause of cause of action.”

Giving some allowance to the clerical errors, we presume that  the  RETURNED
CANDIDATE prayed that the Election Petition be dismissed on the ground  that
it does not disclose any cause of action.

In other words, the RETURNED CANDIDATE prayed that the Election petition  be
dismissed for two reasons:
that the affidavit  filed  along  with  the  Election  petition  is  not  in
conformity with Form 25 of the Conduct of Election Rules, 1961; and
that the Election petition does not disclose any cause of action.
They are two distinct grounds.

10.   In response to the said  application  (OR  VII  R  11  petition),  the
ELECTION PETITIONER filed a reply dated 11.07.2014.  It is stated in para  6
therein as follows:
“6.   That, the third 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 along with the election petition[2].

12.   It can be seen from the above that the ELECTION  PETITIONER  has  also
made a submission that “if in the opinion of  the  Court  if  there  is  any
defect, the ELECTION PETITIONER is  willing  to  cure  the  same”.   Such  a
statement appears to have been made by way of abundant caution in a  bid  to
save the election petition from  being  dismissed  on  the  ground  of  non-
compliance with the proviso to Section 83 (1)  in  the  event  of  the  High
Court reaching the conclusion that  the  affidavit  filed  by  the  ELECTION
PETITIONER along with the election petition is not in  fact  compliant  with
the requirement of law.

13.   The High Court, by its order dated 25.8.2014 while dismissing  OR  VII
R 11 petition recorded:
“In the instant case, the petitioner has not  filed  the  affidavit  in  the
prescribed Form 25 in accordance with Rule 94-A of the Conduct  of  Election
Rules, 1961.  Since aforesaid defect  is  curable,  same  can  be  cured  by
filing affidavit in the prescribed Form 25.”

The High Court further directed:
“the petitioner is directed to file an affidavit in Form 25 within  15  days
from the date of receipt of certified copy of the order.”

Pursuant to this order, admittedly an affidavit was filed  by  the  ELECTION
PETITIONER on 31.08.2014.

14.   To understand the controversy in these appeals,  an  analysis  of  the
provisions of the  RP  Act  is  required.   Section  83[3]  of  the  RP  Act
stipulates what is  required  to  be  contained  in  an  election  petition.
Section 83(1)(c)  requires every election petition to  be  verified  in  the
manner laid down in the Code of Civil Procedure, 1908.  Order VI Rule 15  of
the Code deals with the verification of  the  pleadings[4].   Sub-rule  4[5]
stipulates that the person verifying the pleadings  shall  also  furnish  an
affidavit in support of such pleadings.

15.   An election petition challenging the validity of an  election  can  be
filed on any one of the various grounds specified under Section 100  of  the
RP Act.  The commission of  a  corrupt  practice  either  by  the  “returned
candidate or his election agent or by any other person with the  consent  of
either the returned candidate or his agent” is one of  the  several  grounds
on which the High Court can declare the result of a  returned  candidate  to
be void.  The election of a returned candidate can also be set aside on  the
ground of the commission  of  corrupt  practice  “in  the  interest  of  the
returned candidate by an agent other than his election agent” and by  virtue
of such corrupt  practice  “the  result  of  the  election,  insofar  as  it
concerns a returned candidate, has been  materially  affected”.   In  either
case, in view of the stipulation contained in proviso to  Section  83(1)  RP
Act, the election petition is required to be accompanied by an affidavit  in
the prescribed form.

16.   In exercise of the  power  under  Section  169  of  the  RP  Act,  the
Representation of the People (Conduct of Elections and  Election  Petitions)
Rules, 1956  have  been  framed  by  the  Government  of  India.   Rule  94A
prescribes as follows:
“Rule 94A.  Form of affidavit  to  be  filed  with  election  petition.— The
affidavit referred to in the proviso to sub-section (1) of section 83  shall
be sworn  before  a  magistrate  of  the  first  class  or  a  notary  or  a
commissioner of oaths and shall be in Form 25.”


Form 25 also indicates the layout of  the  affidavit.   The  requirement  of
giving such affidavit where there are allegations of commission  of  corrupt
practice in an election petition came to be inserted in the  Act  by  virtue
of an amendment in the year 1962.

17.   The question whether an election petition challenging the election  of
a returned candidate on the ground of corrupt practice  is  required  to  be
accompanied either by one  affidavit  or  two  affidavits  in  view  of  the
insertion of clause (4) of Rule 15 of Order VI, fell  for  consideration  of
this Court in P.A. Mohammed Riyas v. M.K. Raghavan & Others,  (2012)  5  SCC
511 and this Court held thus:
“45. … We are also unable to accept 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  present  case,  the  same  result  has  been
achieved by the election petitioner by filing a  composite  affidavit,  both
in support of the averments made in the election petition  and  with  regard
to the allegations of corrupt practices  by  the  returned  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.”


19.   The issue before this Court in this batch of appeals  is  whether  the
election petition was accompanied by an affidavit which  is  compliant  with
the requirement of statute under  the  proviso  to  Section  83(1)(c).   For
answering the issue, it is incidentally necessary to determine  whether  the
ELECTION PETITIONER filed two affidavits along with  the  election  petition
to satisfy the requirement of the law.

20.   Unfortunately, the High Court did not  examine,  when  it  passed  the
orders dated 25.08.2014 or 18.03.2015, the question whether there  were  two
affidavits  filed  by  the  ELECTION  PETITIONER  along  with  the  election
petition and whether  the  affidavit  said  to  have  been  annexed  to  the
election petition at page nos.394-395 is compliant with the  requirement  of
stipulations under proviso to Section 83(1).   At para 5 of the order  dated
25.08.2014, the High Court recorded as follows:
“5.   So far as the contention with respect to verification or affidavit  is
concerned, it has been laid down  by  the  Apex  Court  G.M.  Siddeshwar  v.
Prasanna Kumar,  AIR  2013  SC  1549  that  absolute  compliance  of  format
affidavit is not necessary.  Substantial compliance with  format  prescribed
is sufficient.  In  case  there  is  any  defect  in  affidavit  or  in  its
verification, the same is curable  and  the  same  cannot  be  a  sufficient
ground to  dismiss  the  petition  in  limine.  In  the  instant  case,  the
petitioner has not  filed  the  affidavit  in  the  prescribed  Form  25  in
accordance with Rule 94-A of the Conduct of  Election  Rules,  1961.   Since
the aforesaid defect is curable, same can be cured by  filing  affidavit  in
the prescribed Form 25.”

We are sorry to note that the para commences with  a  clumsy  statement  “so
far as  the contention with respect to verification or affidavit” and  makes
an irrelevant reference 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 the  learned  Judge  chose  to  deal  with  the  matter  so
casually. The result is that a finding that there was no  affidavit  in  the
Form No.25 came to be recorded without recording any finding  regarding  the
existence or otherwise of the affidavit which is said to have  been  annexed
in the election petition at page nos.394 and 395 nor its content. Since  the
Interlocutory  Application  was  dismissed,  the  ELECTION  PETITIONER   had
neither a reason nor the necessity  to  challenge  the  correctness  of  the
findings recorded in the order as the decision is in his favour.

21.   Aggrieved by the said order, the RETURNED CANDIDATE filed  the  Review
Petition seeking review of the said order.  The application  hinged  on  the
finding recorded in the order dated 25.08.2014 that “the petitioner has  not
filed the affidavit in  the  prescribed  Form  No.25”.   It  is,  therefore,
pleaded in the  Review  Petition  that  the  direction  of  the  High  Court
permitting the ELECTION PETITIONER to  cure  the  defect  in  the  affidavit
filed along with the election petition is unsustainable and hence the  order
dated 25.08.2014 is to be reviewed.  Interestingly, in the  rejoinder  dated
24.12.2014 filed by the RETURNED CANDIDATE to  the  reply  of  the  ELECTION
PETITIONER dated  8.11.2014  in  the  said  Review  Petition,  the  RETURNED
CANDIDATE stated as follows:
“Para 4.  That, the averments made in the  petition  were  verified  by  the
petitioner as per verification clause; submitted an affidavit in support  of
the petition and filed another affidavit under Form-25 at pages 394 and  395
of the Election Petition and the third affidavit  dated  31.8.2014  pursuant
to order of the Hon’ble Court dated 25.8.2014.”

22.    It  is  clear  from  the  abovementioned  pleading  of  the  RETURNED
CANDIDATE that he  is  clearly  aware  of  the  fact  that  there  were  two
affidavits filed  along  with  the  election  petition  as  averred  by  the
ELECTION PETITIONER in  his  petition.   The  said  review  application  was
dismissed by order dated 18.03.2015.  Aggrieved by the  same,  the  RETURNED
CANDIDATE filed SLP No.11096 of 2015.

23.   It is rather difficult  to  understand  the  order  dated  18.03.2015.
There was an unnecessary examination of various authorities of  the  Supreme
Court without first settling the basic facts  and  identifying  the  issues.
The High Court extracted the content of an affidavit which according to  the
ELECTION  PETITIONER  is  an  affidavit  filed  in   compliance   with   the
requirement 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 by the conclusion that the affidavit  was  “not  in
the prescribed Form-25”, the ELECTION PETITIONER preferred SLP  No.15361  of
2015 on the ground that  such  a  conclusion  came  to  be  recorded  on  an
erroneous identification of the affidavit.  Aggrieved by  the  dismissal  of
the Review Petition, the RETURNED CANDIDATE filed SLP No.11096 of 2015.

25.   When the appeals were argued before  this  Court  on  20.08.2015,  the
ELECTION PETITIONER made a submission  that  two  separate  affidavits  were
filed along with the election petition  and  the  High  Court’s  observation
(supra) are based on an erroneous  identification  of  the  affidavit.   The
RETURNED CANDIDATE took a stand that there was no 2nd affidavit  as  alleged
by the ELECTION PETITIONER in compliance with the proviso to  Section  83(1)
of the RP Act filed along with the election petition.

26.   In view of the abovementioned imprecise findings recorded by the  High
Court without any reference to the pleadings or evidence on record  and  the
contradictory stands taken before this Court  by  the  parties,  this  Court
thought it fit to adjourn the matter in order to enable the parties to  seek
a clarification regarding the true state of facts whether there was  one  or
two affidavits filed along with the election petition[6].

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[7].
      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:     The affidavit at page nos. 394 & 395 of  the  election  petition
is filed in compliance with the requirement of proviso appended  to  section
83(1)(c) of the Representation of People Act, 1951.

38.   I.A. No. 11665/2015 stands disposed of accordingly.”


28.   The said order is the subject matter of challenge in SLP  No.31051  of
2015 filed by the RETURNED CANDIDATE.  Apart from  the  various  grounds  on
which the correctness of  the  findings  recorded  by  the  High  Court  are
challenged, the RETURNED CANDIDATE took a  preliminary  objection  that  the
order dated 29.9.2015 suffers from lack of jurisdiction  and  therefore,  it
is required to be set aside on that ground alone[8].

29.   According to the RETURNED CANDIDATE, I.A. No.11665 of  2015  ought  to
have been heard by a Division Bench because of the stipulation contained  in
Rule 13(2) of the High Court of Madhya Pradesh Rules, 2008.  The  said  Rule
stipulates that any application seeking clarifications of an  earlier  order
of the Court passed by a learned Judge, who retired thereafter, ought to  be
heard by a Division Bench[9] 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 the cases  of  review,  clarification
or modification of only judgments, decrees and final orders but not  to  the
interlocutory orders such as the order of which “clarification” was sought.

31.   We reject the preliminary objection raised by the RETURNED CANDIDATE:
The Reason:
The adjudication of election petitions  including  the  examination  of  all
incidental questions in interlocutory proceedings arising during the  course
of the adjudication of the election petition is entrusted by Section 80A  of
the Representation of People Act,  1951  to  the  High  Court  within  whose
jurisdiction the election dispute arises.   Section 80A(2)  stipulates  that
the jurisdiction shall be exercised ordinarily by a Single Judge who  is  to
be designated by the Chief Justice[10].

(a)   Though the said  Section  indicates  that  the  Chief  Justice  has  a
discretion to entrust trial of an election petition to  a  Bench  consisting
of more than one judges, such a discretion is to be exercised by  the  Chief
Justice alone.

(b)   The Rules of the High Court are framed by the High Court  pursuant  to
the power vested in it under Article 225[11]. 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 to the questions:
Whether the ELECTION PETITIONER filed two affidavits on  20.01.2014  at  the
time of presenting the election petition, the  second  of  which  being  the
affidavit (at page nos.394-395) referred to at Serial No.57A  of  the  Index
appended to the election petition purportedly in  Form  25  to  satisfy  the
requirement of law flowing from the proviso to Section 83(1);  and  if  such
an affidavit was in fact filed on 20.01.2014 as contended  by  the  ELECTION
PETITIONER whether such an affidavit satisfies  the  prescription  contained
in Form 25.

33.   By order dated 29.09.2015 in IA  No.11665  of  2015,  the  High  Court
recorded a finding that the ELECTION PETITIONER filed two  affidavits  along
with the election petition on 20.01.2014 (the date  on  which  the  election
petition was presented to the High Court).  The High Court also  recorded  a
finding that the affidavit at page  nos.394-395  of  the  election  petition
which finds mention at Sr. No.57A in the index is “in  compliance  with  the
requirement of proviso appended to section 83(1)(c)  of  the  Representation
of People Act, 1951”.

34.   If the abovementioned two findings are legally tenable, three  appeals
(arising out of SLP Nos.33933 of 2014, 11096 of  2015  and  31051  of  2015)
filed by the RETURNED CANDIDATE are to be dismissed and the appeal  (arising
out of SLP No.15361 of 2015) filed by the ELECTION PETITIONER would have  to
be allowed.  Therefore,  we  proceed  to  examine  the  correctness  of  the
abovementioned findings recorded by the High Court.
35.   The correctness of the said findings  is  contested  by  the  RETURNED
CANDIDATE on the following grounds:
That at the earliest point of time,  the  High  Court  in  its  order  dated
25.08.2014 recorded a finding that the ELECTION PETITIONER did not file  the
affidavit in the prescribed Form 25.  Therefore, the finding to  the  contra
in the order of the High Court dated 29.09.2015 is unsustainable.

II.   In the order dated 25.08.2014, after  recording  a  finding  that  the
ELECTION PETITIONER did not file an affidavit in Form  25,  the  High  Court
recorded a further finding that such a defect  is  curable  and,  therefore,
directed the ELECTION PETITIONER to  cure  the  defect  by  filing  a  fresh
affidavit in Form 25.   The  ELECTION  PETITIONER  without  challenging  the
correctness of the finding that he failed to file an affidavit  in  Form  25
along with the election petition chose  to  comply  with  the  consequential
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.

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 an addition made in handwriting  in  an  otherwise  completely
typewritten index.

Hence there is non-compliance with the requirement of the mandate  contained
in proviso to  Section  83(1)  warranting  the  dismissal  of  the  election
petition in limine.

36.   The ELECTION PETITIONER’s response to the  above  submissions  of  the
RETURNED CANDIDATE is:
(i)   the High  Court  did  not  record  any  finding  in  its  order  dated
25.08.2014 regarding the existence or otherwise of  the  affidavit  at  page
nos.394-395 or the content of the said affidavit in spite  of  the  specific
plea of the ELECTION PETITIONER.  The  High  Court  only  recorded  a  vague
finding that the ELECTION PETITIONER “has not filed  the  affidavit  in  the
prescribed Form 25 in accordance with Rule 94A of the  Conduct  of  Election
Rules, 1961”.  It is not clear from the said order as to which  one  of  the
two affidavits was in the mind of the High Court when  it  recorded  such  a
conclusion.  The High Court should have  recorded  a  categoric  finding  in
that regard in view of the specific pleading in the reply  of  the  ELECTION
PETITIONER that the  ELECTION  PETITIONER  had  in  fact  filed  a  separate
affidavit to be found at page nos.394-395 to satisfy the requirement of  law
under the proviso  to  Section  83(1)[12].   In  the  absence  of  any  such
categoric finding it cannot be said that the findings recorded by  the  High
Court in its order  dated  29.09.2015  are  inconsistent  with  the  earlier
finding recorded in the order dated 25.08.2014.
(ii)  that there was no occasion for the ELECTION  PETITIONER  to  challenge
the said finding as the ultimate result of the order was in his favour.   It
is also submitted that though the ELECTION PETITIONER did not challenge  the
finding recorded by the High  Court  in  its  order  dated  25.08.2014,  the
ELECTION PETITIONER is entitled to dispute the correctness  of  the  finding
as and when such a finding is sought to  be  pressed  into  service  against
him.

(iii) Coming to the question of filing a fresh  affidavit  in  obedience  of
the consequential direction of  the  High  Court,  the  ELECTION  PETITIONER
submitted that such a course  of  action  was  pursued  by  him  by  way  of
abundant caution.

(iv)  It is submitted by the ELECTION PETITIONER with regard to the  absence
of the signature of the Registrar on the affidavit at page nos.394-395  that
though 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 has been heard and finally decided.
(ii)  The  question  whether  two  affidavits  were  filed  along  with  the
Election  petition  though  was  not  directly  in  issue  as  the  RETURNED
CANDIDATE never filed a rejoinder (to the reply of the  ELECTION  PETITIONER
wherein it was stated  that  he  had  filed  two  affidavits  alongwith  the
election petition).  In deciding the OR VII R 11  petition  the  High  Court
never examined the question (it is an issue of fact) whether there were  two
affidavits as pleaded by the ELECTION PETITIONER in his reply  to  the  said
petition.  We have already recorded that the order in OR VII R  11  petition
is too casual.  It does not take note  of  either  the  facts  in  issue  or
identify the point to be decided.  Any finding  of  fact  recorded  in  such
circumstances is required to  be  set  aside  if  appealed  against  by  the
aggrieved party if such an order is an appealable order.  Since the  learned
Judge dismissed the OR VII R 11 petition though the finding  is  adverse  to
the ELECTION PETITIONER, he need not have filed an appeal[13].
(iii)       Therefore, we do not see any legal principle  on  the  basis  of
which the RETURNED CANDIDATE can successfully contend that in  view  of  the
finding recorded in the order dated 25.08.2014  the  High  Court  could  not
have recorded a finding in IA No.11665 of  2015  that  two  affidavits  were
filed along with the Election petition.

We now deal with the submission of  the  RETURNED  CANDIDATE  regarding  the
absence of the seal and signature of the Registrar of the High Court on  the
affidavit at page nos.394-395.

a)    The High Court in its order dated 29.9.2015 in I.A. No.11665  of  2015
recorded a finding:
“24.  … However, the Registrar, in compliance with sub-rule (4) of  rule  8,
has affixed his seal and signatures at every page of the  election  petition
and the affidavit at page no.70 and 71.  However, no such seal or  signature
of the Registrar is to be found upon the affidavit at page  nos.394  &  395.
…”

Further, at para 25 of the order, it is recorded:
“25.  In this regard, it has to be kept in mind that all official  acts  are
presumed to be properly done.  It is true that affidavit at page  nos.394  &
395 does not bear the seal or  signatures  of  the  Registrar;  however,  it
appears that it was not sealed and signed by the Registrar  because  it  was
annexed almost at the end of the petition.  Since, as per  rules,  documents
annexed to an election petition are not required to be signed and sealed  by
the Registrar, none of the documents filed  along  with  the  petition  from
serial No.72 to Serial No.393 bears  his  seal  and  signatures.   Probably,
nobody pointed out to the Registrar that there is another affidavit at  page
no.394; therefore, it was not sealed and signed like other documents.”


b)    At the outset, it may be  mentioned  that  there  is  a  typographical
error in the abovementioned order.  The relevant  rule  of  the  High  Court
dealing with the matter is  Rule  6(4)  but  not  8(4).   Rule  6  reads  as
follows:
                                “Chapter VII
                    Rules Relating to Election Petitions
Rule 6 (1) Every Election  Petition  complete  in  all  respects,  shall  be
presented during the Court hours  to  the  Additional  Registrar  or  Deputy
Registrar Judicial, at Jabalpur.

(2)   The name of  the  person  presenting  an  Election  petition,  with  a
description of the capacity in which he is presenting it, the date and  hour
of presentation and any other  particulars  considered  necessary  shall  be
endorsed in the margin of first page  of  the  petition  by  the  Additional
Registrar or Deputy Registrar under his own signature.

(3)   The Additional Registrar or Deputy Registrar shall have  the  petition
examined  in  order  to  find  out  that  all  the   requirements   of   the
Representation of the People Act, 1951, and these 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  not  regarding  the  existence  of  the
affidavit.

d)    If the existence of the 2nd  affidavit  at  page  nos.394-395  of  the
ELECTION PETITIONER is not in dispute but the question is whether  the  non-
compliance of the rule by the Registrar is fatal to the  election  petition,
perhaps the answer would be that “it is not”.  Because  it  is  the  settled
proposition of law that the act or omission of the Court shall not harm  any
party.

e)    But when the question is whether such an  affidavit  was  filed  along
with the election petition on 20.01.2014,  different  considerations  arise.
The question whether the ELECTION PETITIONER filed the 2nd  affidavit  is  a
pure question of fact.  The burden of proving such a fact in law is  on  the
ELECTION PETITIONER if such a question is really in issue.   Because  if  he
failed, the allegations of  the  commission  of  corrupt  practices  by  the
RETURNED CANDIDATE cannot be adjudicated in the absence of an  affidavit  in
Form 25.  However, such a question was  never  in  issue  in  OR  VII  R  11
petition.

38.   As already noticed at para 10 (supra) at  the  earliest  point  during
the course of the proceedings of the election  petition  when  the  question
arose whether an affidavit in  Form  25  was  filed  or  not,  the  ELECTION
PETITIONER clearly took a stand that there was an affidavit at page  nos.394
and 395.  According to him, the said affidavit is in  Form  25  contemplated
in proviso to Section 83(1).  The  RETURNED  CANDIDATE  never  disputed  the
statement (of the ELECTION PETITIONER) by filing a Rejoinder to  the  above-
mentioned stand taken in the ELECTION PETITIONER’s reply dated 11.7.2014  in
the OR VII R 11 petition. The RETURNED CANDIDATE admits  that  at  least  by
18.6.2014 - the date on which he received summons, a copy  of  the  election
petition along with Annexures including the affidavit  at  page  nos.394-395
of the election petition was available on record.  But his case NOW is  that
such an affidavit was not filed along with the election petition within  the
period of limitation, but must have been inserted in the  election  petition
sometime in the interregnum period between 22.1.2014 (the date on which  the
period  of  limitation  for  filing  the  election  petition  expired)   and
18.6.2014.

39.   But the objection of the RETURNED CANDIDATE in OR VII  R  11  petition
was only that the “affidavit sworn and filed along with the petition by  the
petitioner is not in conformity with Form 25 of the  Conduct  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 petition) took a stand by way  of  abundant  caution
that if the court comes to a conclusion that his affidavit is  found  to  be
defective for any reason, he is willing to file further  affidavit  to  cure
the  defect.    Unfortunately,  the  High  Court  took  a  shortcut  without
examining the question whether the affidavit at page  nos.394-395  satisfies
the requirement of Form 25 and (without  recording  a  definite  finding  in
that regard) simply recorded a conclusion that the  defect  is  curable  and
the same can be cured by filing an affidavit in the Form 25”.
42.   Mr. P.P. Rao, learned  senior  counsel  submitted  that  the  ELECTION
PETITIONER having availed the benefit of the order in OR VII R  11  petition
by filing another affidavit cannot  now  question  the  correctness  of  the
finding that he did not file an affidavit which is compliance  with  proviso
to Section 83(1).  In support of the said submission, Mr.  P.P.  Rao  relied
on two judgments i.e. State of Punjab & Others v. Krishan  Niwas,  (1997)  9
SCC 31 and Banku Chandra Bose & Another v.  Marium  Begum  &  Another,   AIR
1917 Cal. 546.
43.   In our opinion, the principle laid down in the said  judgments  is  of
no relevance to the controversy on hand.  The dispute on hand  is  regarding
the existence of a fact which was never in issue in OR VII  R  11  petition.
The RETURNED CANDIDATE cannot shift  his  case  from  stage  to  stage.   He
cannot now be permitted to raise such a question of fact in the  absence  of
an  appropriate  pleading  and  contend  that  the  ELECTION  PETITIONER  is
precluded from arguing that he had filed a  2nd  affidavit  along  with  the
election petition by pressing into service a rule of estoppel.

44.   In view of the foregoing discussion, Civil Appeal arising out  of  SLP
(Civil) No.31051 of 2015 being  without  any  merits  is  dismissed.   As  a
consequence, Civil Appeals arising out of SLP (Civil) Nos.33933 of 2014  and
11096 of 2015 are also required to be dismissed  and  they  are  accordingly
dismissed.

45.   Coming to the Civil Appeal arising out  of  SLP  (Civil)  No.15361  of
2015, the same is required to be allowed in view of  the  findings  recorded
by the High Court in I.A. No.11665 of 2015 which has become final by  virtue
of dismissal of Civil Appeal arising out of SLP (Civil)  No.31051  of  2015.
The same is accordingly allowed.

46.   In the facts and circumstances of the case, there will be no order  as
to costs.
                                                             ….………………………….J.
                                                     (J. Chelameswar)


                                                             …….……………………….J.
                                        (Abhay Manohar Sapre)
New Delhi;
March 15, 2016.

-----------------------
[1]    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.
[2]    Para 6 of reply to the IA No.43 of 2014
      “… Since the petitioner has also filed affidavit  in  support  of  the
election petition and has also filed an affidavit in the prescribed  format,
therefore, there is no defect in this regard….”
[3]     “Section 83. Contents of petition.—(1)  An election petition—

      Shall contain a concise statement of the material facts on  which  the
petitioner relies;

      Shall set forth full particulars of  any  corrupt  practice  that  the
petitioner alleges, including as full a statement as possible of  the  names
of the parties alleged to have committed such corrupt practice and the  date
and place of the commission of each such practice; and

      Shall be signed by the petitioner and  verified  in  the  manner  laid
down in the Code of Civil Procedure, 1908 (5 of 1908) for  the  verification
of pleadings;

      Provided that where the petitioner alleges any corrupt  practice,  the
petition shall also be 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.

[4]    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  pleading  shall  also  furnish  an
affidavit in support of his pleadings.

[5]     Sub-rule (4) came to be inserted to the Code by Act 46 of 1999
[6]    “The matters were argued at some length before  us.  Learned  counsel
appearing for the RETURNED CANDIDATE has proceeded on the basis  that  there
is no affidavit at all  as  required  under  Section  83(1)(c)  of  the  Act
whereas it  is  pointed  out  by  learned  counsel  on  behalf  of  ELECTION
PETITIONER that as a matter of  fact  two  separate  affidavits  were  filed
along  with  the  election  petition.  The  first  being  an  affidavit   in
compliance of requirement of the provisions under Order  VI  Rule  15(4)  of
Civil Procedure  Code  and  the  second  an  affidavit  in  compliance  with
requirement of Section 83(1)(c)  of  the  Act.  Xerox  copies  of  both  the
affidavits are available on record here.

      The question whether there was one affidavit or two  affidavits  filed
along with the election petition as mentioned above, the  actual  date  when
those affidavits were filed, whether either of the two affidavits  is  filed
in compliance with the requirement of Section 83(1)(c) of  the  Act  or  not
are matters for examination of the High Court. The High  Court  is  required
to record definite findings in the event there is any dispute  with  respect
to the questions mentioned above. 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.”

[7]   Challenging the correctness of the said order, SLP 31051/2015 is
filed by the RETURNED CANDIDATE.
[8]    See Ground No.8 of SLP (C) No.31051 of 2015

      “Whether the impugned order  has  been  passed  in  violation  of  the
provisions of Chapter IV Rule 13 of the Madhya  Pradesh  High  Court  Rules,
2008?   If yes, whether the impugned order is liable to be set aside on  the
ground alone?”
[9]   The relevant portion of Rule 13 reads as follows:-
      “13. (1)(a)  Save as provided in  sub-rule  (2),  an  application  for
review, clarification or modification of a judgment, decree or final  order,
passed by a Judge or Judges shall be heard by the same Judge or Judges:

      Provided that such application filed in respect  of  an  interlocutory
order in a pending case shall be posted before the regular bench.

      (b) An application for review,  clarification  or  modification  of  a
judgment, decree or final order, passed by a Judge or Judges who or  one  or
more of whom is or are –
      (i)    temporarily  unavailable  and  in  the  opinion  of  the  Chief
Justice, the application, looking to the urgency of the matter, cannot  wait
for such Judge or Judges to resume work or,
      (ii)  permanently unavailable,
      shall be heard
      (1)   if the decree or order, review of  which  is  applied  for,  was
passed by a Judge sitting alone, by the regular division bench.”

[10]   Sec. 80A(2) – Such jurisdiction shall be exercised  ordinarily  by  a
single Judge of the High Court and the Chief Justice, shall,  from  time  to
time, assign one or more Judges for that purpose.
           Provided that where the High Court consists only  of  one  Judge,
he shall try all election petitions presented to that Court.
[11]  Article 225.  Jurisdiction of existing  High  Courts.—Subject  to  the
provisions of this Constitution and to the provisions  of  any  law  of  the
appropriate  Legislature  made  by  virtue  of  powers  conferred  on   that
Legislature  by  this  Constitution,  the  jurisdiction  of,  and  the   law
administered in, any existing High Court, and the respective powers  of  the
Judges thereof in relation to the administration of justice  in  the  Court,
including any power to make rules of Court and to regulate the  sittings  of
the Court and of members thereof sitting alone or in Division Courts,  shall
be the same as immediately before the commencement of this Constitution:

      Provided that any  restriction  to  which  the  exercise  of  original
jurisdiction  by  any  of  the  High  Courts  with  respect  to  any  matter
concerning the revenue  or  concerning  any  act  ordered  or  done  in  the
collection thereof was subject immediately before the commencement  of  this
Constitution shall no longer apply to the exercise of such jurisdiction.


[12]    Exact content of reply of the ELECTION PETITIONER in this regard is
also extracted at para 10 supra.
[13]     Hardevinder Singh v. Paramjit Singh, (2013) 9 SCC 261, para 21 at
page 268:
      21. After the 1976 Amendment of Order 41 Rule 22, the  insertion  made
in sub-rule (1) makes it permissible to file  a  cross-objection  against  a
finding. The difference is basically that a respondent  may  defend  himself
without taking recourse to file a cross-objection to the extent  the  decree
stands in his favour, but if he intends to assail any part  of  the  decree,
it is obligatory on his part to file the cross-objection. In Banarsi v.  Ram
Phal, (2003) 9 SCC 606, it has been observed that the amendment inserted  in
1976 is clarificatory and three situations have been  adverted  to  therein.
Category 1 deals with the impugned decree which is partly in favour  of  the
appellant and partly 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 answering an  issue
or while dealing with an issue. It is apt to note that after  the  amendment
in the Code, if the appeal stands withdrawn or dismissed  for  default,  the
cross-objection taken  to  a  finding  by  the  respondent  would  still  be
adjudicated upon on merits which remedy was not available to the  respondent
under the unamended Code.



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