Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2250-2251 OF 2013
Arising out of SLP(C) Nos. 14172-14173 OF 2010
G.M. Siddeshwar ... Appellant
Versus
Prasanna Kumar ... Respondent
WITH
CIVIL APPEAL NOS. 2252-2255 OF 2013
Arising out of SLP (C) Nos. 24886-24889 OF 2010
J U D G M E N T
Madan B. Lokur, J.
1. Leave granted.
2. 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 VI
Rule 15(4) of the Code of Civil Procedure, 1908 in support of
the averments made in the election petition in addition to an
affidavit (in a case where resort to corrupt practices have
been alleged against the returned candidate) as required by
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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 & Ors.,
(2012) 5 SCC 511 which suggests to the contrary, does not
lay down correct law to this limited 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.
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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 & Ors, 2010 (6) KarLJ 78.
5. In Miscellaneous Civil No. 386/2010 the appellant
(Siddeshwar) sought the dismissal/rejection of the election
petition challenging his election to the 15th Lok Sabha from
13, Davangere Lok Sabha Constituency in the election held
on 13th April 2009. It was submitted in the application that
the provisions of Section 81(3) and Section 83 of the
Representation of the People Act, 1951 (hereinafter referred
to as the Act) had not been complied with and therefore, in
view of Section 86 of the Act read with Order VII Rule 11(a)
of the Code of Civil Procedure (hereinafter referred to as the
CPC), the election petition ought to be rejected/dismissed at
the threshold.
6. For the present purposes, we are concerned with Section 83
and Section 86 of the Act and to the extent they are
relevant, they read as follows:
“83. Contents of petition.—(1) An election petition—
(a)shall contain a concise statement of the material
facts on which the petitioner relies;
(b)shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a
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statement as possible of the names of the parties
alleged to have committed such corrupt practice and
the date and place of the commission of each such
practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure,
1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt
practice, the petition shall also be 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.”
“86. Trial of election petitions.—(1) The High Court
shall dismiss an election petition which does not comply
with the provisions of Section 81 or Section 82 or Section
117.
Explanation.—An order of the High Court dismissing an
election petition under this sub-section shall be deemed to
be an order made under clause (a) of Section 98.
(2) to (7) xxx xxx xxx [presently not relevant]”
7. Among the grounds urged in the High Court and reiterated
before us were that the proviso to Section 83(1) of the Act
requires an affidavit to be filed in the prescribed form in
support of the allegations of corrupt practice and the
particulars thereof. Rule 94-A of the Conduct of Election
Rules, 1961 prescribes Form No. 25 as the format affidavit.
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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 that in view of Section 83(1)(c)
of the Act, an election petition is required to be verified in
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the manner laid down in the CPC for the verification of
pleadings. Order VI Rule 15(4) of the CPC requires that the
person verifying the pleadings shall also furnish an affidavit
in support of the pleadings. In the election petition, such an
affidavit was not filed despite the affidavit being an integral
part of the election petition. For this reason also, the election
petition ought to be dismissed at the threshold.
11. In this regard, the High Court was of the view that
there was no necessity of the election petitioner filing any
other affidavit in support of the election petition and that the
affidavit filed by Prasanna Kumar in Form No.25 substantially
complied with the requirements of Rule 94-A of the Rules.
12. It was finally contended that Prasanna Kumar had
leveled allegations of corrupt practices against Siddeshwar
without any material particulars. As such, the election
petition did not disclose a complete cause of action and was
liable to be rejected under Order VII Rule 11(a) of the CPC.
This contention was considered with the second application.
13. In Miscellaneous Civil No. 1431/2010 Siddeshwar
invoked the provisions of Order VI Rule 16 of the CPC for
striking out some paragraphs of the election petition on the
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ground that allegations of corrupt practice were scandalous
and vexatious. It was contended that on a deletion of the
offending paragraphs, the election petition would not
survive.
14. In regard to the objections raised, the High Court was
of the opinion that some of the allegations made against
Siddeshwar alleging corrupt practices did not contain
material particulars apart from being vague and deficient.
Consequently, a few paragraphs of the election petition were
struck off by the Court under Order VI Rule 16 of the CPC.
The remaining paragraphs were retained since the High
Court was of the view that they required trial and could not
be struck off at the initial stage. Consequently, the
objections regarding absence of material particulars and
absence of a cause of action were rejected.
15. Feeling aggrieved by the judgment and order passed
by the High Court, Siddeshwar has preferred these appeals.
Reference to a larger 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
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Kumar had not filed an ‘additional’ affidavit as required by
Order VI Rule 15(4) of the CPC 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 Another,
(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 & Ors. v. Singora & Ors., (1991) 3 SCC 395 and
contended that Mohammed Riyas was not in consonance
with that decision. Reliance was also placed on G.
Mallikarjunappa & Anr. v. Shamanur
Shivashankarappa & 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 Section 83 of the Act. It was contended
that any defect in non-compliance with the provisions of
Section 83 of the Act is a curable defect which can be
removed and judged at the trial of the election petition.
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18. After hearing learned counsel for the parties and
considering the view expressed in Mohammed Riyas which
apparently proceeded on the basis that in addition to an
affidavit in Form No.25, an election petitioner was also
required to furnish an ‘additional’ affidavit in support of the
election petition in terms of Order VI Rule 15(4) of the CPC, it
was felt that the issues raised ought be heard by a larger
Bench of at least three Judges.
19. It was also noted that in Mallikarjunappa, a Bench
of three judges of this Court held that an election petition
was not liable to be dismissed in limine under Section 86 of
the Act for non-compliance with the provisions of Section 83
thereof. It was observed that Mallikarjunappa had not
been referred to or considered in Mohammed Riyas.
20. Accordingly, by an order passed on 19th July 2012 the
issues raised were referred to a larger Bench of three judges.
It is under these circumstances that the Special Leave
Petitions were placed before us for consideration.
(i) Affidavit in terms of Order VI Rule 15(4) of the CPC:
21. The submission made by learned counsel is to the
effect that in addition to an affidavit required to be filed in
Form No.25 prescribed by Rule 94-A of the Rules in support
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of allegations made of corrupt practices by the returned
candidate, an election petitioner is also required to file an
affidavit in support of the election petition keeping in mind
the requirement of Order VI Rule 15(4) of the CPC.
22. Order VI Rule 15 of the CPC reads as follows:
“15. Verification of pleadings.— (1) Save as otherwise
provided by any law for the time being in force, every
pleading shall be verified at the foot by the party or by
one of the parties pleading or by some other person
proved to the satisfaction of the Court to be acquainted
with the facts of the case.
(2) The person verifying shall specify, by reference to
the numbered paragraphs of the pleading, what he
verifies of his own knowledge and what he verifies upon
information received and believed to be true.
(3) The verification shall be signed by the person
making it and shall state the date on which and the place
at which it was signed.
(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
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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 CPC. 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 two affidavits – one
affidavit in support of the allegations of corrupt practices and
the second affidavit in compliance with the requirements of
Order VI Rule 15(4) of the CPC. This is apparent from the
submissions advanced by learned counsel appearing in the
case.
26. It was contended by the election petitioner that two
affidavits would be necessary in an election petition only
where the election petitioner wanted the election of the
returned candidate to be set aside on the ground of
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commission of corrupt practices under Section 100(1)(b) of
the Act as well as on other grounds as set out in Section
100(1) of the Act. In other words, the argument was that two
affidavits were required to be filed by the election petitioner.
It is important to note that it was not argued (as in the
present case) that Order VI Rule 15(4) of the CPC does not
require the filing of an affidavit as a part of the requirement
of verifying the election petition. An alternative contention
was put forward that a single affidavit, satisfying the
requirement of the Act, could also be filed. The contention
put forward was as follows:
“The learned counsel submitted that two affidavits would
be necessary only where an election petitioner wanted the
election to be set aside both on grounds of commission of
one or more corrupt practices under Section 100(1)(b) of
the Act and other grounds as set out in Section 100(1). In
such a case, two affidavits could possibly be required, one
under Order 6 Rule 15(4) CPC and another in Form 25.
However, even in such a case, a single affidavit that satisfies the requirements of both the provisions could be filed.
In any event, when the election petition was based entirely on allegations of corrupt practices, filing of two affidavits over the selfsame matter would render one of them
otiose, which proposition was found acceptable by the Karnataka High Court in Prasanna Kumar v. G.M. Siddeshwar
[2010 (6) KarLJ 78].”
27. It was argued on behalf of the returned candidate that the
election petitioner is required to file an affidavit in support of
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the pleadings and another affidavit in support of the allegations
of corrupt practices by the returned candidate. In other words,
the election petitioner is required to file two affidavits. The contention urged was as follows:
“Mr Rao contended 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 CPC 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 submission that despite the fact that the proviso
to Section 83(1) of the 1951 Act provides that where corrupt practices are alleged, the election petition shall also
be accompanied by an affidavit in the prescribed form, it
could not have been the intention of the legislature that
two affidavits would be required, one under Order 6 Rule
15(4) CPC and the other in Form 25. 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
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affidavit would be sufficient to satisfy the requirements of
both the provisions.
46. Mr Venugopal’s submission that, in any event, since
the election petition was based entirely on allegations of
corrupt practices, filing of two affidavits in respect of the
selfsame matter, would render one of them redundant, is
also not acceptable. As far as the decision in F.A. Sapa
case is concerned, it has been clearly indicated that the
petition, which did not strictly comply with the requirements of Section 83 of the 1951 Act, could not be said to
be an election petition as contemplated in Section 81 and
would attract dismissal under Section 86(1) of the 1951
Act. On the other hand, the failure to comply with the proviso to Section 83(1) of the Act rendered the election petition ineffective, as was held in Hardwari Lal case [(1972) 1
SCC 214] and the various other cases cited by Mr P.P.
Rao.”
29. Unfortunately, the submissions made by the election petitioner were not discussed, but were simply rejected. No reasons have, unfortunately, been given by this Court for arriving
at the conclusions that it did and rejecting the contentions of
learned counsel for the election petitioner.
30. It seems to us that a plain and simple reading of Section
83(1)(c) of the Act clearly indicates that the requirement of an
‘additional’ affidavit is not to be found therein. While the
requirement of “also” filing an affidavit in support of pleadings
filed under the CPC may be mandatory in terms of Order VI
Rule 15(4) of the CPC, the affidavit is not a part of the
verification of the pleadings – both are quite different. While
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the Act does require a verification of the pleadings, the plain
language of Section 83(1)(c) of the Act does not require an
affidavit in support of the pleadings in an election petition. 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 due course of judicial
proceedings or the administration of justice.”
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A similar view was expressed in Mohan Singh v. Amar
Singh, (1998) 6 SCC 686. The LCI referred to both these
decisions and proposed the insertion of sub-section (2) in
Section 26 of the CPC making it obligatory upon a plaintiff to
file an affidavit in support of facts stated in the plaint. A similar
provision was proposed in Order VI of the CPC by inserting subRule (4) in Rule 15 thereof. In this context, the LCI had this to
say:
“2.6.1. The response of members of the Bench as well
as the Bar has been uniformly against the above
proposals. The general view expressed by them is that
such a provision would only add to the delays in
disposal of suits. It was submitted that there are
enough provisions in the existing law to deal with false
and malicious averments in the pleadings and that this
additional requirement would not make any difference.
…..
“2.6.2. The Law Commission is, however, of the opinion
that the proposed amendments are salutary and may,
at least to some extent, check the tendency to make
false averments in the pleadings. ……. This tendency
has certainly to be checked. Even if the parties in two
to five per cent cases could be dealt with appropriately
for making false statements in the pleadings, it would
greatly help in arresting this tendency……”
33. While the necessity of an affidavit in support of facts
stated in a plaint may be beneficial and may have salutary
results, but we have to go by the law as it is enacted and not
go by the law as it ought to be. The CPC no doubt requires that
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pleadings be verified and an affidavit “also” be filed in support
thereof. However, Section 83(1)(c) of the Act merely requires
an election petitioner to sign and verify the contents of the
election petition in the manner prescribed by the CPC. There is
no requirement of the election petitioner “also” filing an
affidavit in support of the averments made in the election
petition except when allegations of corrupt practices have been
made.
34. In any event, as in the present case, the same result has
been achieved by the election petitioner 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.
35. The Court must make a fine balance between the purity of
the election process and the avoidance of an election petition
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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 being engaged in a campaign
to relieve the distress of the people in general and of the
residents of his constituency who voted him into office,
and instead of resolving their problems, he would be
engaged in campaign to establish that he has in fact been
duly elected.”
In light of the above, it is not possible to accept the view that
the salutary intention of the LCI to ensure purity in the litigation
process must extend to an election petition notwithstanding the
mandate of Parliament as expressed in Section 83 of the Act.
Legislation by reference:
36. The final contention urged under this subject was that in
view of the language used in Section 83(1)(c) of the Act, the
doctrine of legislation by reference would need to be invoked in
as much as any amendment to the CPC would be applicable to
the working of the Act. It was argued that since an amendment
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was made to Rule 15(4) of Order VI of the CPC, that
amendment has been legislated by reference in the Act and so
the election petitioner would be bound by the terms thereof
and would, therefore, not only need to sign and verify the
contents of an election petition, but also file an affidavit in
support thereof. Reliance was placed on a Constitution Bench
decision in Girnar Traders (3) v. State of Maharashtra,
(2011) 3 SCC 1. In that case, after an analysis of the entire
case law on the subject, the Constitution Bench held:
“Having perused and analysed the various judgments
cited at the Bar we are of the considered view that this
rule [of legislation by reference] is bound to have
exceptions and it cannot be stated as an absolute
proposition of law that wherever legislation by reference
exists, subsequent amendments to the earlier law shall
stand implanted into the later law without analysing the
impact of such incorporation on the object and effectuality
of the later law. The later law being the principal law, its
object, legislative intent and effective implementation
shall always be of paramount consideration while
determining the compatibility of the amended prior law
with the later law as on relevant date.”
37. We are not inclined to debate the contention whether
Order VI Rule 15 of the CPC has been legislated by reference or
by incorporation into the Act for the reasons already indicated
above, namely, that on a plain reading of Section 83 of the Act,
only a verification and not an affidavit in support of the
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averments in an election petition is required, except when
allegations of corrupt practices are made by the election
petitioner. Any amendment in the CPC 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 corrupt practice of* ……………… and the particulars of such corrupt practice given in paragraphs
………………. of the said petition and in paragraphs
………………….. of the Schedule annexed thereto are
true to my information:
(c)
(d)
(e)
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(f)
etc.
Signature of deponent
Solemnly affirmed/sworn by Shri/ Shrimati ………………. at
………….this………. day of …………… 20…………..
Before me, Magistrate of the first class/
Notary/Commissioner of Oaths.
*Here specify the name of the corrupt practice.”
39. Prasanna Kumar’s affidavit accompanying the election
petition reads as follows:
“Form 25
(Rule 94-A)
In The High Court of Karnataka at Bangalore
(Original Jurisdiction)
Election Petition No. 2/2009
Between:
Prasanna Kumar .... Petitioner
And
Sri G.M. Siddeshwar and Ors .... Respondents
Affidavit
I, Prasanna Kumar, the petitioner in the accompanying Election
petition, catting in question the election of Sri G.M.
Siddeshwar (1st respondent in the said petition) make solemn
and affirmation on oath and say-
(a) That I am an elector in 13 Davanagere Lokasabha
Constituency in Harihar Assembly Segment and I am fully
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aware and acquainted with the facts of the case and swear to
this affidavit,
(b) That the statements made in paragraphs 1, 2, 3, 5, 7, 8, 11,
12 and 13 & 14 of the accompanying Election Petition about the
violation of the law during the conduct of election and the
particulars mentioned in the above noted paragraphs are true
to my knowledge and contents of paras 18, 19, 20 and 21 are
based on legal advise;
(c) That the statements made in paragraphs 3, 4, 6, 8, 9, 10, 15
and 16 of the accompanying Election Petition about the
commission of electoral offence of corrupt practices and the
particulars mentioned in the said paragraphs of the petition are
true to my knowledge and partly on Information.
(d) That Annexures - 1 to 14 and 18, 19, 20, 22, 23, 24 are true
copies and 15, 16, 17, 21 are original copies.
Sd/-
Signature of the Deponent
Solemnly affirmed/sworn to by Sri Prasanna Kumar
at Bangalore, this the 18th day of June 2009.
Sd/- Identified by me
Sd/- corrections: (nil).
sworn to before me”
40. A perusal of the affidavit furnished by Prasanna Kumar ex
facie indicates that it was not in absolute compliance with the
format affidavit. However, we endorse the view of the High
Court that 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
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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 86 of the Act:
42. Undoubtedly, Section 86 of the Act makes no reference to
Section 83 thereof and so, prima facie, an election petition
cannot be summarily dismissed under Section 86 of the Act for
non-compliance of the provisions of Section 83 thereof. This
was briefly adverted to in Hardwari Lal v. Kanwal Singh,
(1972) 1 SCC 214 but that was in the context of dismissal of
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the election petition under the provisions of the CPC. The
contention urged in Hardwari Lal was to the effect that since
Section 83 of the Act does not find a mention in Section 86
thereof, an election petition could not be summarily dismissed
for non-compliance of Section 83. A three-judge Bench of this
Court held that since an election petition is required to be tried
as nearly as possible in accordance with the procedure
applicable under the CPC to the trial of suits, an election
petition could nevertheless be dismissed if it did not disclose a
cause of action.
43. The issue was, again, specifically raised in Azhar
Hussain. The question considered was:
“Since the Act does not provide for dismissal of an election
petition on the ground that material particulars necessary
to be supplied in the election petition as enjoined by
Section 83 of the Act are not incorporated in the election
petition inasmuch as Section 86 of the Act which provides
for summary dismissal of the petition does not advert to
Section 83 of the Act there is no power in the court trying
election petitions to dismiss the petition even in exercise
of powers under the Code of Civil Procedure.”
44. While answering this issue, this Court referred to
Hardwari Lal. It was held, relying on that decision that since
powers under the CPC could be exercised by the Court, an
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election petition could be summarily dismissed if it did not
disclose a cause of action. This is what this Court had to say:
“In view of this pronouncement there is no escape from
the conclusion that an election petition can be summarily
dismissed if it does not furnish cause of action in exercise
of the powers under the Code of Civil Procedure. So also it
emerges from the aforesaid decision that appropriate
orders in exercise of powers under the Code of Civil
Procedure can be passed if the mandatory requirements
enjoined by Section 83 of the Act to incorporate the
material facts 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. Noncompliance 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:
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“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 integra in the light of a
three-Judge Bench decision of this Court in Sardar
Harcharan Singh Brar v. Sukh Darshan Singh. In that case
a plea based on a defective affidavit was raised before the
High Court resulting in the dismissal of the election
petition. In appeal against the said order, this Court held
that non-compliance with the proviso to Section 83 of the
Act did not attract an order of dismissal of an election
petition in terms of Section 86 thereof. Section 86 of the
Act does not provide for dismissal of an election petition
on the ground that the same does not comply with the
provisions of Section 83 of the Act. It sanctions dismissal
of an election petition for non-compliance with Sections
81, 82 and 117 of the Act only. Such being the position,
the defect if any in the verification of the affidavit filed in
support of the petition was not fatal, no matter the proviso
to Section 83(1) was couched in a mandatory form.”
47. The issue having been considered several times by this
Court must now be allowed to rest at that.
What is an election petition:
48. However, another aspect of this contention is that if the
provisions of Section 83 of the Act are not complied with, then
the election petition that has been filed cannot truly be
described as an election petition.
49. In Murarka Radhey Shyam Ram Kumar v. Roop
Singh Rathore & Ors. [1963] 3 SCR 573, the Constitution
Bench dealt with the issue whether non-compliance with the
proviso to Section 83(1) of the Act was fatal to the
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maintainability of an election petition wherein allegations of
corrupt practices were made. It was urged that the affidavit in
respect of corrupt practices which accompanied the election
petition was neither properly made nor in the prescribed form.
A different facet of this argument was that an election petition
must comply with the provisions of Section 83 thereof and if it
did not, then it could not be called an election petition.
50. The Constitution Bench agreed with the Election Tribunal
that a defect in the verification of an affidavit “cannot be a
sufficient ground for dismissal of the petitioner's petition
summarily, as the provisions of Section 83 are not necessarily
to be complied with in order to make a petition valid and such
affidavit can be allowed to be filed at a later stage also.” In
other words, non-compliance with the proviso to 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
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[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 & 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 curability on
the principles contained in the CPC. It was held that the defect
in the affidavit in that case was curable and was not of such a
fatal nature as to attract dismissal of the election petition at the
threshold.
53. The doctrine of substantial compliance as well as the
doctrine of curability were followed in V. Narayanaswamy v.
C.P. Thirunavukkarasu, (2000) 2 SCC 294. This Court held
that a defect in verification of an affidavit is not fatal to the
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election petition and it could be cured. Following Moidutty it
was held that if the election petition falls foul of Order VI Rule
16 and Order VII Rule 11 of the CPC and does not disclose a
cause of action then it has to be rejected at the threshold.
54. Somewhat more recently, in Anil Vasudev Salgaonkar
v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 this
Court reiterated this position in law and held:
“The position is well settled that an election petition can
be summarily dismissed if it does not furnish the cause of
action in exercise of the power under the Code of Civil
Procedure. Appropriate orders in exercise of powers under
the Code can be passed if the mandatory requirements
enjoined by Section 83 of the Act to incorporate the
material facts in the election petition are not complied
with.”
55. The principles emerging from these decisions are that
although non-compliance with the provisions of Section 83 of
the Act is a curable defect, yet there must be substantial
compliance with the provisions thereof. However, if there is
total and complete non-compliance with the provisions of
Section 83 of the Act, then the petition cannot be described as
an election petition and may be dismissed at the threshold.
Integral part of an election petition:
56. An issue arises whether an affidavit required to be filed
under the proviso to Section 83(1) of the Act is an integral part
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of an election petition and, if so, whether the filing of a
defective affidavit would be fatal to the maintainability of an
election petition. This would, in a sense, be an exception to the
general rule mentioned above regarding a defect under Section
83 of the Act being curable.
57. In Sahodrabai Rai v. Ram Singh Aharwar [1968] 3
SCR 13 the question raised was as follows:
“Whether the election petition is liable to be dismissed for
contravention of Section 81 (3) 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 CPC. Therefore, this Court
approached the problem by looking at the CPC 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
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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 respondents.
60. In M. Kamalam v. Dr. V.A. Syed Mohammed, (1978)
2 SCC 659 this Court followed Sahodrabai Rai and held that
a schedule or an annexure which is an integral part of an
election petition must comply with the provisions of Section
83(2) of the Act. Similarly, the affidavit referred to in the
proviso to Section 83(1) of the Act where the election petition
alleges corrupt practices by the returned candidate also forms
a part of the election petition. If the affidavit, at the end of the
election petition is attested as a true copy, then there is
sufficient compliance with the requirement of Section 81(3) of
the Act and would tantamount to attesting the election petition
itself.
61. F.A. Sapa and Others v. Singora and Others, (1991)
3 SCC 375 a three-judge Bench of this Court reviewed the
relevant provisions of the Act, Rule 94-A of the Rules, Form No.
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25, the provisions of the CPC as well as the case law and
arrived at the following conclusions:
“28. From the text of the relevant provisions of the R.P.
Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and
Order 19 Rule 3 of the Code and the resume of the case
law discussed above it clearly emerges (i) a defect in the
verification, if any, can be cured (ii) it is not essential that
the verification clause at the foot of the petition or the
affidavit accompanying the same should disclose the
grounds or sources of information in regard to the
averments or allegations which are based on information
believed to be true (iii) if the respondent desires better
particulars in regard to such averments or allegations, he
may call for the same in which case the petitioner may be
required to supply the same and (iv) the defect in the
affidavit in the prescribed Form 25 can be cured unless
the affidavit forms an integral part of the petition, in which
case the defect concerning material facts will have to be
dealt with, subject to limitation, under Section 81(3) as
indicated earlier. Similarly the court would have to decide
in each individual case whether the schedule or annexure
referred to in Section 83(2) constitutes an integral part of
the election petition or not; different considerations will
follow in the case of the former as compared to those in
the case of the latter.”
62. It was further laid down that even though a defective
affidavit may not be fatal to the maintainability 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
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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 maintain the
sanctity of the election the Court should not take such a
technical attitude and dismiss the election petition at the
threshold. On the contrary after finding the defects, the
Court should give proper opportunity to cure the defects
and in case of failure to remove/cure the defects, it could
result into dismissal on account of Order 6 Rule 16 or
Order 7 Rule 11 CPC. Though technically it cannot be
dismissed under Section 86 of the Act of 1951 but it can
be rejected when the election petition is not properly
constituted as required under the provisions of CPC but in
the present case we regret to record that the defects
which have been pointed out in this election petition were
purely cosmetic and do not go to the root of the matter
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and secondly even if the Court found them of serious
nature then at least the Court should have given an
opportunity to the petitioner to rectify such defects.”
65. Applying these principles to the facts of the present case, it
seems quite clear that the affidavit filed by Prasanna Kumar in
compliance with the requirements of the proviso to Section
83(1) of the Act was not an integral part of the election petition,
and no such case was set up. It also seems quite clear that the
affidavit was in substantial compliance with the requirements of
the law. Therefore, the High Court was quite right in coming to
the conclusion that the affidavit not being in the prescribed
format of Form No.25 and with a defective verification were
curable defects and that an opportunity ought to be granted to
Prasanna Kumar to cure the defects.
66. No submissions were made with regard to the striking out,
in accordance with Order VI rule 16 of the CPC, of specifically
objectionable paragraphs in the election petition. In any event
this is a matter for trial and we see no reason to take a view
different from that taken by the High Court.
Conclusion:
67. There is no merit in these appeals and they are,
accordingly dismissed, but without any costs.
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….…….…………………….. J.
(R.M. LODHA)
….…….…………………….. J.
(J. CHELAMESWAR)
….…….…………………….. J.
(MADAN B. LOKUR)
New Delhi,
March 08, 2013
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