REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4993 OF 2012
(Arising out of S.L.P. (C) No. 20013 of 2010)
Ponnala Lakshmaiah …Appellant
Versus
Kommuri Pratap Reddy & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. The short question that falls for determination in this appeal by
special leave is whether the High Court of Andhra Pradesh was right in
holding that the election petition filed by respondent No.1 against the
appellant who happens to be the successful candidate in the election to the
98-Jangaon Assembly Constituency in the State of Andhra Pradesh, disclosed
a cause of action and could not therefore be dismissed at the threshold.
The factual matrix in which the election petition came to be filed by the
respondent has been set out at length by the High Court, hence need not be
recounted except to the extent the same is essential for the disposal of
the appeal. The High Court has, while holding that the averments made in
the election petition raised triable issues and disclosed a cause of
action, observed:
“23. As seen from the statement showing voter turn out report
in connection with General Elections, 2009 to 98-Jangaon
Legislative Assembly Constituency on 16.04.2009, the total votes
polled, as reported by the Returning Officer, is shown as 1,50,678
from 251 polling stations. Whereas the final result sheet in Form
no.20, total valid votes is shown as 1,51,411. So, from this
document, it is clear that prima facie a proper counting had not
taken place. Therefore, prima facie it can be said to be an
irregularity on the part of the Returning Officer involved in
dereliction of the duty. Similarly, there is a specific allegation
that out of 653 postal ballots, the election petitioner would have
secured more than 300 votes, if properly counted, and out of the
said votes, 142 votes which were validly polled in favour of the
election petitioner, were illegally declared as invalid and another
52 votes polled in favour of the election petitioner were counted
in favour of the first respondent, and 45 invalid votes were
illegally counted in favour of the first respondent. Since the
margin between the elected candidate and the nearest rival is only
236 votes, had postal ballots been counted properly, then there
would be a possibility of materially affecting the result of the
election in so far as the returned candidate. So, under no stretch
of imagination, it can be said that the allegations in the Election
Petition are vague.
24. No doubt, it is true that in view of the decision of the
Apex Court, recounting of the votes cannot be resorted to as a
matter of course and every endeavour should be made to protect the
secrecy of the ballots. But, at the same time suspicion of the
correctness of the figures mentioned in the crucial documents of
the statement showing voters’ turn out report and Form-20-final
result sheet, where there is a variance between total number of
votes polled and votes counted. The two basic requirements laid
down by the Apex Court, to order recounting, are: (a) the election
petition seeking recount of the ballot papers must contain an
adequate statement of the material facts on which the allegations
of irregularity or illegality in counting are founded; and (b) on
the basis of evidence adduced in support of the allegations, the
Tribunal must be prima facie satisfied that in order to decide the
dispute and to do complete and effectual justice between the
parties, making of such an order is imperatively necessary.
Therefore, the questions–whether counting of votes by the
officials is in accordance with the rules and regulations and also
whether the votes polled in favour of the election petitioner were
rejected as invalid or there was improper counting of votes polled
in favour of the returned candidate, are required to be decided
after adducing evidence only. The allegation that because of the
improper counting of postal ballots polled in favour of the
election petitioner, the election petitioner could not secure 300
votes, if accepted as true at this stage, it would materially
affect the election result because the margin of votes polled
between returned candidate and his nearest rival is very narrow.
In the Election Petition, the allegation with regard to
irregularity or illegality in counting of votes, which affects
election of the returned candidate materially, has been clearly
stated in the Election Petition. It is not a vague or general
allegation that some irregularities or illegalities have been
committed in counting. Similarly, there is allegation that in the
first instance, after totalling of all votes, the election
petitioner secured a majority of 44 votes and the same was informed
to the electronic media, and some TV channels telecasted the same
immediately. A Compact Disc (CD) is also field along with the
Election Petition, in support of the said allegation. It is also
alleged that none of the contested candidates filed any petition
for recounting of votes within maximum period of five minutes after
the election petitioner was declared to have secured a majority of
44 votes. Therefore, there is prima facie material to show that
there was irregularity or illegality in counting of votes which
resulted in affecting materially the election of the returned
candidate, so as to proceed further with the Election Petition.
As, at this stage, prima facie case for recounting, as seen from
the allegations in the Election Petition, is made out, the
pleadings cannot be struck off as unnecessary. Therefore,
rejecting the Election Petition at this stage does not arise.”
3. Having carefully gone through the averments made in the election
petition, we are of the opinion that the election petition sets out the
requisite material facts that disclose a cause of action and gives rise to
triable issues, which can not be given a short shrift by taking an unduly
technical view as to the nature of the pleadings. There is no denying the
fact that Courts are competent to dismiss petitions not only on the ground
that the same do not comply with the provisions of Sections 81, 82 & 117 of
the Representation of the People Act, 1951 but also on the ground that the
same do not disclose any cause of action. The expression “cause of action”
has not been defined either in the Civil Procedure Code or elsewhere and is
more easily understood than precisely defined. This Court has in Om Prakash
Srivastava v. Union of India & Anr. (2006) 6 SCC 207 attempted an
explanation of the expression in the following words:
“The expression "cause of action" has acquired a judicially settled
meaning. In the restricted sense "cause of action" means the
circumstances forming the infraction of the right or the immediate
occasion for the reaction. In the wider sense, it means the
necessary conditions for the maintenance of the suit, including not
only the infraction of the right, but also the infraction coupled
with the right itself. Compendiously, as noted above the expression
means every fact, which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment
of the Court. Every fact, which is necessary to be proved, as
distinguished from every piece of evidence, which is necessary, to
prove each fact. comprises in "cause of action”.”
4. It is equally well settled that while examining whether a plaint or
an election petition discloses a cause of action, the Court has a full and
comprehensive view of the pleading. Averments made in the plaint or
petition cannot be read out of context or in isolation. They must be taken
in totality for a true and proper understanding of the case set up by the
plaintiff. This Court has in Shri Udhav Singh v. Madhav Rao Scindia
(1977) 1 SCC 511 given a timely reminder of the principle in the following
words:
“We are afraid, this ingenious method of construction after
compartmentalisation, dissection, segregation and inversion of the
language of the paragraph, suggested by Counsel, runs counter to
the cardinal canon of interpretation, according to which, a
pleading has to be read as a whole to ascertain its true import. It
is not permissible to cull out a sentence or a passage and to read
it out of the context, in isolation. Although it is the substance
and not merely the form that has to be looked into, the pleading
has to be construed as it stands without addition or subtraction of
words, or change of its apparent grammatical sense. The intention
of the party concerned is to be gathered, primarily, from the tenor
and terms of his pleading taken as a whole.”
5. Reference may also be made to the decision of this Court in Church of
North India v. Lavajibhai
Ratanjibhai and Ors. (2005) 10 SCC 760, wherein this Court reiterated that
for purposes of determining whether the plaint discloses a cause of action,
the Court must take into consideration the plaint as a whole. It is only
if even after the plaint is read as a whole, that no cause of action is
found discernible that the Court can exercise its power under Order VII
Rule 11 of the CPC.
6. To the same effect is the decision of this Court in Liverpool &
London S.P. and I. Asson. Ltd. v. M. V. Sea Success I. & Anr. (2004) 9 SCC
512; where this Court held that the disclosure of a cause of action in the
plaint is a question of fact and the answer to that question must be found
only from the reading of the plaint itself. The Court trying a suit or an
election petition, as the position is in the present case, shall while
examining whether the plaint or the petition discloses a cause of action,
to assume that the averments made in the plaint or the petition are
factually correct. It is only if despite the averments being taken as
factually correct, the Court finds no cause of action emerging from the
averments that it may be justified in rejecting the plaint. The following
paragraph from the decision is apposite in this regard:
“Whether a plaint discloses a cause of action or not is essentially
a question of fact. But whether it does or does not must be found
out from reading the plaint itself. For the said purpose the
averments made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments made in the
plaint are taken to be correct in its entirety, a decree would be
passed.”
7. We may also gainfully refer to the decision of this Court in H.D.
Revanna v. G. Puttaswamy & Ors. (1999) 2 SCC 217, where this Court held
that an election petition can be dismissed for non-compliance of Sections
81, 82 and 117 of the Representation of the People Act, 1951 but it may
also be dismissed if the matter falls within the scope of Order VI Rule 16
or Order VII Rule 11 of the CPC. A defect in the verification of the
election petition or the affidavit accompanying the election petition was
held to be curable, hence, not sufficient to justify dismissal of the
election petition under Order VII Rule 11 or Order VI Rule 16 of CPC. The
following passage in this regard is instructive:
“…..the relevant provisions in the Act are very specific. Section
86 provides for dismissal of an election petition in limine for non-
compliance with Sections 81, 82 and 117. Section 81 relates to the
presentation of an election petition. It is not the case of the
appellant before us that the requirements of Section 81 were not
complied with….. Sections 82 and 117 are not relevant in this case.
Significantly, Section 86 does not refer to Section 83 and non-
compliance with Section 83 does not lead to dismissal under Section
86. This Court has laid down that non-compliance with Section 83
may lead to dismissal of the petition if the matter falls within
the scope of Order 6 Rule 16 or Order 7 Rule 11 CPC. Defect in
verification of the election petition or the affidavit accompanying
the election petition has been held to be curable and not fatal.”
8. Applying the above principles to the case at hand, we do not see any
error in the order passed by the High Court refusing to dismiss the
petition in limine on the ground that the same discloses no cause of
action. The averments made in the election petition if taken to be
factually correct, as they ought to for purposes of determining whether a
case for exercise of powers under Order VII Rule 11 has been made out, do
in our opinion, disclose a cause of action. The High Court did not,
therefore, commit any error much less an error resulting in miscarriage of
justice, to warrant interference by this Court in exercise of its extra-
ordinary powers under Article 136 of the Constitution.
9. There was some debate at the bar as to whether the petition discloses
material facts and particulars and if it does not whether it could be
dismissed on the ground of the petition being deficient, hence no petition
in the eyes of Law. That argument, need not detain us for long, as the
legal position on the subject is well-settled by a long line of decisions
rendered by this Court. In Raj Narain v. Indira Nehru Gandhi & Anr. (1972)
3 SCC 850, this Court held that if allegations regarding a corrupt practice
do not disclose the constituent parts of the corrupt practice alleged, the
same will not be allowed to be proved and those allegations cannot be
amended after the period of limitation for filing an election petition but
the Court may allow particulars of any corrupt practice alleged in the
petition to be amended or amplified. Dealing with the rules of pleadings,
this Court observed:
“Rules of pleadings are intended as aids for a fair trial and for
reaching a just decision. An action at law should not be equated to
a game of chess. Provisions of law are not mere formulae to be
observed as rituals. Beneath the words of a provision of law,
generally speaking, there lies a juristic principle. It is the duty
of the court to ascertain that principle and implement it.”
10. The Court further held that just because a corrupt practice has to be
strictly proved does not mean that a pleading in an election petition must
be strictly construed. Even in a criminal trial, a defective charge did
not necessarily result in the acquittal of the accused unless it was shown
that any such defect had prejudiced him. The Court held that it cannot
refuse to enquire into allegations made by the election petitioner merely
because the election petitioner or someone who prepared his brief did not
know the language of the law. The principle was reiterated by this Court
in H.D. Revanna v. G. Puttaswamy & Ors. (1999) 2 SCC 217, V.S.
Achuthanandan v. P.J. Francis & Anr. (1999) 3 SCC 737, Mahendra Pal v. Ram
Dass Malanger & Ors. (2000) 1 SCC 261, Sardar Harcharan Singh Brar v. Sukh
Darshan Singh & Ors. (2004) 11 SCC 196.
11. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511, this Court
once again stated the distinction between material facts and particulars
and declared that material facts are primary and basic facts which must be
pleaded by the plaintiff while particulars are details in support of those
facts meant to amplify, refine and embellish the material facts by giving
distinct touch to the basic contours of a picture already drawn so as to
make it more clear and informative. To the same effect are the decisions
of this court in Umesh Challiyil v. K.P. Rajendran (2008) 11 SCC 740,
Virender Nath Gautam v. Satpal Singh & Ors. (2007) 3 SCC 617.
12. The High Court has, in the present case, held that the material facts
constituting the foundation of the case set up by the election petition
have been stated in the election petition. That being so, the requirement
of Section 83 of the Act viz. that “the petition shall contain a concise
statement of material facts” has been satisfied. The question of dismissing
the petition on that ground also therefore did not arise. The High Court
in our opinion committed no wrong in coming to that conclusion. We need
only emphasise that the burden which lies on an election petitioner to
prove the allegations made by him in the election petition whether the same
relate to commission of any corrupt practice or proof of any other ground
urged in support of the petition has to be discharged by him at the trial.
There is no dilution of that obligation when the court refuses to dismiss a
petition at the threshold. All that the refusal to dismiss the petition
implies is that the appellant has made out a case for the matter to be put
to trial. Whether or not the petitioner will succeed at the trial remains
to be seen till the trial is concluded. Even so on a somewhat erroneous
understanding of the law settled by this Court, the successful candidates
charged with commission of corrupt practices or other illegalities and
irregularities that constitute grounds for setting aside their elections
seek dismissal of the petitions in limine on grounds that are more often
than not specious, in an attempt to achieve a two fold objective. First, it
takes a chance of getting the election petition dismissed on the ground of
it being deficient, whether the deficiency be in terms of non-compliance
with the provisions of Sections 81, 82 & 117 of the Act or on the ground
that it does not disclose a cause of action. The second and the more
predominant objective is that the trial of the election gets delayed which
in itself sub-serve the interests of the successful candidate. Dilatory
tactics including long drawn arguments on whether the petition discloses a
cause of action or/and whether other formalities in the filing of the
petition have been complied with are adopted with a view to prevent or at
least delay a trial of the petition within a reasonable time frame. While a
successful candidate is entitled to defend his election and seek dismissal
of the petition on ground legally available to him, the prolongation of
proceedings by prevarication is not conducive to ends of justice that can
be served only by an early and speedy disposal of the proceedings. The
Courts have, therefore, to guard against such attempts made by parties who
often succeed in dragging the proceedings beyond the term for which they
have been elected. The Courts need to be cautious in dealing with requests
for dismissal of the petitions at the threshold and exercise their powers
of dismissal only in cases where even on a plain reading of the petition no
cause of action is disclosed. Beyond that note of caution, we do not wish
to say anything at this stage for it is neither necessary nor proper for us
to do so.
13. Mr. Rao next argued that the election petition was liable to be
dismissed also on the ground that the same was not accompanied by an
affidavit which the election petitioner was obliged to file in terms of
proviso to Section 83 (1) of the Act. He urged that the use of the word
‘shall’ in the proviso made it mandatory for the petitioner to support the
averments in the election petition with an affidavit in Form 25 prescribed
under Rule 94 (A) of the Conduct of Election Rules, 1961. Inasmuch as an
affidavit had not been filed in the prescribed format, the election
petition, argued Mr. Rao, was no election petition in the eye of law and
was, therefore, liable to be dismissed in limine. Reliance in support of
his submissions was placed by Mr. Rao upon the decisions of this Court in
M. Kamalam v. Dr. V.A. Syed Mohammed (1978) 2 SCC 659, R.P. Moidutty v.
P.T. Kunju Mohammad (2000) 1 SCC 481, V. Narayanswamy v. C.P.
Thirunavukkarasu (2000) 2 SCC 294, Kamalnath v. Sudesh Verma (2002) 2 SCC
410, Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors. (1984) 2 SCC 1,
Ravinder Singh v. Janmeja Singh (2000) 8 SCC 191, Ram Sukh v. Dinesh
Aggarwal (2009) 10 SCC 541.
14. On behalf of the respondent, it was argued by Mr. Ranjit Kumar that
the non-filing of an affidavit in terms of proviso to Section 83(1) of the
Act was never taken as a ground before the High Court in the application
which the High court has decided in terms of the impugned order nor was the
point ever argued at the bar. The appellant cannot, therefore, urge that
point before this Court for the first time. Relying upon the decision of
this Court in Balwan Singh v. Prakash Chand & Ors. (1976) 2 SCC 440, Mr.
Kumar argued that a plea relating to defective verification of the petition
was not allowed to be taken by this Court for the first time in appeal. It
was further submitted by Mr. Kumar that an affidavit in support of the
election petition had indeed been filed by the respondent-petitioner in
which the averments and the grounds alleged by the respondent were set out
and reiterated on oath. An affidavit filed under Order VI Rule 15(4) of
the CPC supporting the averments made in the election petition has also
been filed including averments made in para 12 to 15 of the election
petition. It was urged that two affidavits mentioned above sufficiently
complied with the requirements of Section 83 of the Act and Rule 94(A) of
The Conduct of Election Rules 1961. He submitted that even assuming that
there was any deficiency in the affidavit sworn by the respondent, not
being in the format in which the same was required to be filed, yet the
same was not fatal to the election petition inasmuch as the Court trying
the petition can at any stage of the proceedings direct the election
petitioner to file a proper affidavit if it finds that the one already
filed is deficient in any way.
15. There is considerable merit in the submission made by Mr. Kumar. The
ground urged by Mr. Rao was not admittedly raised in the application filed
by the appellant before the High Court nor was it argued at the bar. The
High Court had in that view no occasion to deal with the contention that is
sought to be advanced before us for the first time. There is no reason why
the appellant should not have urged the point before the High Court, if he
was serious about its implications.
16. Even otherwise the question whether non-compliance of 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 & Ors. (2004) 11 SCC 196.
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 of 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. This Court observed:
“14. So is the case with the defect pointed out by the High Court
in the affidavit filed in support of the election petition alleging
corrupt practice by the winning candidate. The proviso enacted to
Sub-section (1) of Section 83 of the Act is couched in a mandatory
form inasmuch as it provides that a petition alleging corrupt
practice shall be accompanied by an affidavit in the prescribed
form in support of the allegations of such corrupt practice and the
particulars thereof. The form is prescribed by Rule 94-A. But at
the same time, it cannot be lost sight of that failure to comply
with the requirement as to filing of an affidavit cannot be a
ground for dismissal of an election petition in limine under Sub-
section (1) of Section 86 of the Act. The point is no more res
integra and is covered by several decisions of this Court. Suffice
it to refer to two recent decisions namely G. Mallikarjunappa and
Anr. v. Shamanur Shivashankarappa and Ors. and Dr. Vijay Laxmi
Sadho v. Jagdish, both three-Judges Bench decisions, wherein the
learned Chief Justice has spoken for the Benches. It has been held
that an election petition is liable to be dismissed in limine under
Section 86(1) of the Act if the election petition does not comply
with either the provisions of "Section 81 or Section 82 or Section
117 of the RP Act". The requirement of filing an affidavit along
with an election petition, in the prescribed form, in support of
allegations of corrupt practice is contained in Section 83(1) of
the Act. Non-compliance with the provisions of Section 83 of the
Act, however, does not attract the consequences envisaged by
Section 86(1) of the Act. Therefore, an election petition is not
liable to be dismissed in limine under Section 86 of the Act, for
alleged non-compliance with provisions of Section 83(1) or (2) of
the Act or of its proviso. The defect in the verification and the
affidavit is a curable defect. What other consequences, if any, may
follow from an allegedly "defective" affidavit, is required to be
judged at the trial of an election petition but Section 86(1) of
the Act in terms cannot be attracted to such a case.
17. More importantly the Court held that if the High Court had found the
affidavit to be defective for any reason it should have allowed an
opportunity to the election petitioner to remove the same by filing a
proper affidavit. This Court observed:
“15. Having formed an opinion that there was any defect in the
affidavit, the election petitioner should have been allowed an
opportunity of removing the defect by filing a proper affidavit.
Else the effect of such failure should have been left to be
determined and adjudicated upon at the trial, as held in G.
Mallikarjunappa and Anr.'s case (supra).”
18. To the same effect is the decision of a three-Judge bench of this
Court in G. Mallikarjunappa and Anr. v. Shamanur Shiv Ashankappa and Ors.
(2001) 4 SCC 428. The High Court had in that case also dismissed the
election petitions taking the view that there had been non-compliance with
Rule 94-A of the Conduct of Elections Rules, 1961 inasmuch as the affidavit
filed in support of the allegations of corrupt practices with the election
petitions did not comply with the requirements of the format as prescribed
in Form 25. Allowing the appeal this Court observed:
“An election petition is liable to be dismissed in limine under
Section 86(1) of the Act if the election petition does not comply
with either the provisions of “Section 81 or Section 82 or Section
117 of the RP Act”. The requirement of filing an affidavit along
with an election petition, in the prescribed form, in support of
allegations of corrupt practice is contained in Section 83(1) of
the Act. Non-compliance with the provisions of Section 83 of the
Act, however, does not attract the consequences envisaged by
Section 86(1) of the Act. Therefore, an election petition is not
liable to be dismissed in limine under Section 86 of the Act, for
alleged non-compliance with provisions of Section 83(1) or (2) of
the Act or of its proviso. The defect in the verification and the
affidavit is a curable defect. What other consequences, if any, may
follow from an allegedly “defective” affidavit, is required to be
judged at the trial of an election petition but Section 86(1) of
the Act in terms cannot be attracted to such a case.”
19. A similar view was taken by a three-Judge Bench of this Court in F.A.
Sapa and Ors. v. Singora and Ors. (1991) 3 SCC 375 and in Dr. Vijay Laxmi
Sadho v. Jagdish (2001) 2 SCC 247.
20. We may also refer to a Constitution Bench decision of this Court in
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Ors. (AIR 1964 SC
1545) where this Court held that a defective affidavit is not a sufficient
ground for summary dismissal of an election petition as the provision of
Section 83 of the Act are not mandatorily to be complied with nor did the
same make a petition invalid as an affidavit can be allowed to be filed at
a later stage or so. Relying upon the decision of a three-Judge Bench of
this Court in T. Phungzathang v. Hangkhanlian and Ors. (2001) 8 SCC 358
this Court held that non-compliance with Section 83 is not a ground for
dismissal of an election petition under Section 86 and the defect, if any,
is curable as has been held by a three-Judge Bench of this Court in Manohar
Joshi v. Nitin Bhaurao Patil (1996) 1 SCC 169 and H.D. Revanna v. G.
Puttaswamy Gowda & Ors. (1999) 2 SCC 217. This Court observed:
“…….If the view of the High Court in the order impugned before us
is to be upheld, an election petitioner having filed an affidavit
fully satisfying the requirement of Section 83(1) proviso and Rule
94-A in all respects but having made an omission in the copy of the
affidavit delivered to the respondent would be placed in a position
worse than an election petitioner whose original affidavit filed
with the election petition itself did not satisfy the requirement
of Section 83(1) proviso read with Rule 94-A. This could not have
been the intendment of law. Such an interpretation would, to say
the least, make a mockery of justice. That non-compliance with
Section 83 cannot be a ground for dismissal of the election
petition under Section 86 and the defect, if any, is curable, has
been the view taken by a three-Judge Bench in Manohar Joshi v.
Nitin Bhaurao Patil and also in H.D. Revanna v. G. Puttaswamy Gowda
wherein all the decisions available till then have been considered.
In Kamal Narain Sarma v. Dwarka Prasad Mishra affidavit was sworn
in before the Clerk of Court attached with the Office of the
District Judge empowered by the District Judge under Section 139(c)
of the Code of Civil Procedure for the purpose of administration of
oaths on affidavits made under the Code of Civil Procedure. The
Election Tribunal allowed a fresh affidavit to be filed in place of
such affidavit, treating it to be defective. On the matter reaching
this Court, a Constitution Bench held that an extreme and technical
view was not justified. The affidavit was held to be proper and the
second affidavit was held to be not necessary.”
21. The decisions relied upon by Mr. Rao do not in terms deal with a
comparable situation to the one this Court was dealing with in Sardar
Harcharan Singh Brar’s case (supra). 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.
22. There is no denying the fact that the election of a successful
candidate is not lightly interfered with by the Courts. The Courts
generally lean in favour of the returned candidates and place the onus of
proof on the person challenging the end result of an electoral contest.
That approach is more in the nature of a rule of practice than a rule of
law and should not be unduly stretched beyond a limit. We say so because
while it is important to respect a popular verdict and the courts ought to
be slow in upsetting the same, it is equally important to maintain the
purity of the election process. An election which is vitiated by reason of
corrupt practices, illegalities and irregularities enumerated in Sections
100 & 123 of the Act cannot obviously be recognised and respected as the
decision of the majority of the electorate. The Courts are, therefore, duty
bound to examine the allegations whenever the same are raised within the
framework of the statute without being unduly hyper-technical in its
approach & without being oblivious of the ground realities. Experience has
shown that the electoral process is, despite several safeguards taken by
the Statutory Authorities concerned, often vitiated by use of means,
factors and considerations that are specifically forbidden by the statute.
The electoral process is vulnerable to misuse, in several ways, in the
process distorting the picture in which the obvious may be completely
different from the real. Electoral reforms is, therefore, a crying need of
our times but has remained a far cry. If the Courts also adopt a technical
approach towards the resolution of electoral disputes, the confidence of
the people not only in the democratic process but in the efficacy of the
judicial determination of electoral disputes will be seriously undermined.
This Court has in several pronouncements while emphasising the need to
leave the elections untouched, reiterated, the need to maintain the purity
of elections and thereby strengthening democratic values in this country.
The decisions of this Court in T.A. Ahammed Kabeer v. A.A. Azeez & Ors.
(2003) 5 SCC 650 and P. Malaichami v. M. Andi Ambalam and Ors. (1973) 2 SCC
170 express a similar sentiment.
23. Suffice it to say, that in the absence of any provision making breach
of the proviso to Section 83(1), a valid ground of dismissal of an election
petition at the threshold, we see no reason why the requirement of filing
an affidavit in a given format should be exalted by a judicial
interpretation to the status of a statutory mandate. A petition that
raises triable issues need not, therefore, be dismissed simply because the
affidavit filed by the petitioner is not in a given format no matter the
deficiency in the format has not caused any prejudice to the successful
candidate and can be cured by the election petitioner by filing a proper
affidavit. In the result, this appeal fails and is dismissed with costs
assessed at Rs.25000/-.
……………………..……………..…J.
(T.S. THAKUR)
……………………………….………J.
(GYAN SUDHA MISRA)
New Delhi
July 6, 2012
