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Judgment
148 paragraphs · 7,456 wordsSashikanta Mishra, J
The Election Petition has been filed by the present Opposite Party No.1, Kishore Kumar Nayak challenging the election of the present Petitioner, Byomkesh Ray, in the General Election, 2024 from 47-Chandbali Assembly Constituency citing several grounds. The present I.A. was filed by the returned candidate, Byomkesh Ray, under Section 86 of the R.P. Act, 1951 read with Order VI Rule 16, Order VII Rule 11 and Section 151 of CPC praying to strike out the pleadings contained in Paragraphs 6-A to 6-G and for rejection/dismissal of the Election Petition in its entirety at the very threshold in terms of Section 86 of the Act.
The I.A. was heard extensively by this Court and disposed of vide judgment dtd.8.8.2025, inter alia, allowing it in part by striking out the pleadings under Paragraph 6-E of the Election Petition. It was held that the Election Petition as laid, discloses a valid cause of action and involves triable issues for which it would not be proper to throw away the same at the threshold without taking it to trial.
Said judgment was challenged by the returned candidate, Byomkesh Ray, before the Supreme Court in SLP(c) No.28207/2025. After hearing the parties, the Supreme Court, vide order dtd.14.10.2025 remitted the matter for decision on a limited issue observing as follows:
“5. During the course of hearing, we find that one of the issues that arises for consideration is whether the affidavit subsequently filed by respondent no.1 – election petitioner, purportedly in Form 25, satisfies the statutory requirements and if so, whether such affidavit could be permitted to be filed beyond the period of limitation prescribed for filing of an Election Petition. Such an issue directly came up for consideration before us in C.A. No.11017/2025 (Tankadhar Tripathi vs. Dipali Das – 2025 SCC OnLine SC 1793). There, after formulating the question in paragraph 18 of the report, it was briefly answered, in the operative part of the judgment, thereby remanding the case with the object to have the advantage of the opinion of the High Court on that issue as well as other related questions.
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Resultantly, the appeal is allowed in part. The impugned order of the High Court dated 08.08.2025 is set aside, and the matter is remitted to the High Court for re-determination of the issue, as observed above.”
At the outset, a doubt having arisen as to whether the judgment passed by this Court in the I.A. having been set aside, it is necessary to hear the I.A. afresh on all the grounds urged therein, the parties advanced their arguments on this point.
Mr. U.K.Samal, learned counsel appearing for the returned candidate, fairly contends that though the judgment of this Court was set aside, but if the order of the Supreme Court is read as a whole, coupled with the specific issue identified for determination by this Court afresh, it would be clear that the earlier findings stand confirmed.
Mr. N.K.Sahu, learned counsel for the Election Petitioner also makes similar arguments as Mr. Samal and submits that the matter has been remitted only to decide the issue as an identical matter was also remitted to this Court in the case (Tankadhar Tripathy v. Dipali Das, 2025 SCC OnLine SC 1793).
Mr. B. Mishra, learned Senior Counsel appearing for Respondent No.2 submits that out of the seven grounds raised by the returned candidate in the I.A. for determination, only the ground relating to non-filing of affidavit in Form-25 has been remitted for redetermination.
Therefore, the findings of this Court on the other grounds must be held to have been confirmed.
From a reading of the relevant observations of the Supreme Court as quoted hereinbefore and on consideration of the arguments advanced by the parties noted above, this Court is also of the view that the issue relating to filing/non-filing of affidavit in Form-25 is only required to be considered by this Court. This is being said for all the more reason that the Supreme Court allowed the appeal in part and remitted the matter for redetermination of the issue as observed by it earlier. By necessary implication, the order of the Court on all other grounds are no longer necessary to be gone into save only for reiterating the same.
Having dealt with this preliminary point, this Court would now deal with the contentions put forth by the parties on the issues identified by the Supreme Court. It would be apt to refer to the observations of the Supreme Court again, as quoted before. Reference has been made to the judgment passed in Tankadhar Tripathy (Supra). In the said case, the Supreme Court remitted the matter for determination by this Court with the following observations:
“24. In light of the above discussion, the matter stands remitted to the High Court with the following directions and conclusions:
a. The High Court is requested to identify and enumerate the defects in the Form 25 affidavit and assess whether such defects, if any, were curable. To this end, the High Court may consider the following as preliminary issues:
i. Whether the affidavit in the instant case, alleging ‘corrupt practices,’ is defective and does not satisfy the requirement under Form 25?
ii. If defective, does it substantially satisfy the requirements of Form 25, and can it be so construed in accordance with the decisions of this Court cited in paragraphs 15 to 17 above?
iii. If the defect in the Form 25 affidavit could be cured, would it be mandatory to file a supplementary affidavit within the period of limitation?
iv. Whether the High Court-cum-Election Tribunal possesses the power to condone the delay and permit the Election Petitioner to file the affidavit, in the prescribed format of Form 25, beyond the period of limitation?
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While remitting the present matter, Supreme Court also observed under Paragrah-8 as follows:
“If both the Election Petitions, namely, Tankadhar Tripathi’s case (supra) and the instant case, are pending before one Hon’ble Judge, we request the learned Single Judge to take up both the matters with an endeavour to decide the questions, maybe by passing separate orders, with reference to the facts of the individual case.”
It is to be noted that both the cases, namely Tankadhar Tripathy and Kishore Kumar Nayak have been assigned to this Bench for hearing. Therefore, as directed by the Supreme Court, both the matters were heard together, one after the other and both are being disposed of by separate judgments.
Issue no. (i)
Coming to issue No. (i) in Tankadhar Tripathy (Supra), this Court finds that there is no separate affidavit in Form-25 accompanying the Election Petition. Therefore, the point of determination is whether the affidavit accompanying the Election Petition is defective or not. In this regard, Mr. Samal has made extensive arguments to submit that non-filing of affidavit in Form-25 along with the Election Petition is fatal. He submits that the proviso to sub-section (1) of Section 83 was inserted by amendment notified on 20.9.1961. Rule 94-A of the Conduct of Election Rules, 1961 was also amended and notified on 27.2.1962. Since it is a purposeful addition to the statute, it cannot be treated as purposeless by watering down its mandatory character. He further submits that Section 81 contemplates the presentation of an Election Petition which is complete and satisfying the mandate of Section 83. If the allegations do not set up the grounds contemplated under Section 100 and do not conform to the requirements of Sections 81 and 83 of the Act, it is liable to be rejected. Therefore, in the absence of affidavit in the prescribed form, the Election Petition cannot be put to trial. In this context, Mr. Samal has cited the following judgments:
(1) Mulayam Singh Yadav v. Dharam Pal Yadav, (2001) 7 SCC 98
(2) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 SCC OnLine SC 509
(3) Ravinder Singh v. Janmeja Singh, (2000) 8 SCC 191
Mr. Samal further argues that requirement of Form-
25 affidavit is that it must state and specify which of the allegations of corrupt practice are based upon the personal knowledge of the Election Petitioner and which are based on information believed by him to be true. Therefore, in the absence of such affidavit, the allegations of corrupt practice cannot be taken up, and the Election Petition is liable to be rejected. In this context, Mr. Samal cites the judgment in R.P. Moidutty v. P.T. Kunju Mohammad, (2000) 1 SCC 481. Even the affidavit accompanying the Election Petition does not at all meet the requirement of Form-25, as it does not specify which of the allegations are based on personal knowledge of the Election Petitioner and which are based on information received from other sources. In this context, Mr. Samal cites the judgments in V.Narayanaswamy vs. C.P. Thirunavukkarasu, (2000) 2 SCC 294, Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214, P.A. Mohammed Riyas vs. M.K. Raghavan, (2012) 5 SCC 511, G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 and Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298.
Mr. N.K.Sahu, learned counsel appearing for the Election Petitioner, would argue that admittedly, the Election Petition was not accompanied by any affidavit in Form-25, but the affidavit filed along with it substantially complies with the requirement of law. Mr. Sahu refers to the judgment of the Supreme Court in T.M. Jacob v. C. Poulose, (1999) 4 SCC 274 to submit that the so-called violation in the instant case being relatable to Section 83, can be dealt with under the doctrine of curability on the principle contained in the Code of Civil Procedure. He further cites the judgment of G.M. Siddeshwar (Supra), wherein it was held that Section 83(1)(c) requires carrying out verification by the Election Petitioner in the manner prescribed under the C.P.C. and that Order VI Rule 15 requires filing of an affidavit ‘also’. Therefore, the affidavit is a standalone document. Mr. Sahu refers to the judgment of the Supreme Court in the case of A. Manju v. Prajwal Revanna, (2022) 3 SCC 269 to submit that if there is an affidavit, though not in Form-25, it is a curable defect for which the Election Petitioner ought to be granted opportunity to rectify the same.
Mr. Mishra, submits that undoubtedly the law requires filing of an affidavit in Form-25 by the Election Petitioner in support of his allegations relating to corrupt practice, but then in view of the law as evolved over the years, said requirement is not mandatory and if the affidavit accompanying the Election Petition substantially complies with the requirement of Form-25, the Election Petitioner can be allowed to cure the defect by filing the required affidavit.
It is not disputed that the Election Petition cites several grounds, some of which are allegations of corrupt practice. Reference in particular can be made to the pleadings under Paragraphs-6-A, 6-B, 6-C and 6-D. Admittedly, no affidavit in Form-25 was filed along with the Election Petition.
Section 83, being relevant is reproduced below:
“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 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.”
In Tankadhar Tripathy (Supra), the Supreme Court has taken note of the law in this regard as it has evolved over time. It is observed that the rigor of law in the matter of filing affidavit in Form-25 has been watered down to a great extent. The decisions of the Supreme Court in the cases of G.M. Siddeshwar (Supra), A. Manju (Supra) and Thangjam Arunkumar v. Yumkham Erabot Singh, (2023) 17 SCC 500 were referred to.
Before referring to the above mentioned judgments, it would be proper to refer to the Constitution Bench judgment in T.M. Jacob (Supra), wherein the following was observed:
“The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr Salve. That apart, to our mind, the legislative intent appears to be quite clear, since it divides violations into two classes — those violations which would entail dismissal of the election petition under Section 86(1) of the Act like non-compliance with Section 81(3) and those violations which attract Section 83(1) of the Act, i.e., non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam [AIR 1964 SC 1545: (1964) 3 SCR 573] and Ch. Subbarao [AIR 1964 SC 1027: (1964) 6 SCR 213] cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure.”
Going further, in G.M. Siddeshwar (Supra), the Supreme Court observed as follows
“22. 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 the learned counsel for Siddeshwar that Prasanna Kumar was obliged to file two affidavits—one in support of the allegations of corrupt practices and the other in support of the pleadings?
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 CPC. That Order 6 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.
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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 the pleadings filed under CPC may be mandatory in terms of Order 6 Rule 15(4) CPC, the affidavit is not a part of the verification of the pleadings—both are quite different. While 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.
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While the necessity of filing an affidavit in support of the 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. Code Of Civil Procedure, 1908-Section no doubt requires that 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 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.”
In A. Manju (Supra), the following was observed:
“23. In the conspectus of the aforesaid, if we examine the facts of the present case, the hypertechnical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the High Court.
Thus, the real and core question before us is that in view of the allegations of the alleged non-disclosure of assets in Form 26 by Respondent 1 being cited as “corrupt practice”, would it be mandatory for the election petitioner to file an affidavit in Form 25 and what would be the consequences of not filing such an affidavit.
We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore [Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573 : AIR 1964 SC 1545] which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner's petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] to come to a conclusion that non-compliance with the proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied i.e. even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33-A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of Respondent 1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act.
However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah case [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] which have received the imprimatur of the three-Judge Bench in G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] appear not to have been appreciated in the correct perspective. In fact, G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form
This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge i.e. Ponnala Lakshmaiah [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] as well as G.M. Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013) 2 SCC (Civ) 715], ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form.
This extract is taken from A. Manju v. Prajwal Revanna, (2022) 3 SCC 269: (2022) 2 SCC (Civ) 95: 2021 SCC OnLine SC 1234 at page 279
The arguments of the learned counsel for Respondent 1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This presupposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form
We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of Respondent 1.
The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by Respondent 1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold.
The result of the aforesaid is that the impugned order of the learned Single Judge dated 17-1-2020 [A. Manju v. Prajwal Revanna, 2020 SCC OnLine Kar 1654] is set aside and the application filed by Respondent 1 under Order 7 Rule 11, Section 151 of the said Code and Section 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from today. The further proceedings in the election petition are required to be taken up urgently as almost two-and-a- half years have gone on the preliminary skirmishes rather than the meat of the matter, which we are sure the learned Single Judge of the High Court would so do.”
In Thangjam Arunkumar (Supra), the Supreme Court observed as follows:
The first decision on this issue is by a Constitution Bench in T.M. Jacob v. C. Poulose [T.M. Jacob v. C. Poulose, (1999) 4 SCC 274]. In the said case, the returned candidate was defending an election petition filed against him on the ground of non-compliance with the requirements under Section 81(3) of the Act. This Court, after going through the difference in the legislative intent of Sections 81 and 83 of the Act, observed that non-compliance with the requirements of the former provides for an automatic dismissal of an election petition under Section 86 of the Act, and non-compliance with the latter is a curable defect and would not merit dismissal at the threshold. In this light, this Court observed that: (T.M. Jacob case [T.M. Jacob v. C. Poulose, (1999) 4 SCC 274] , SCC p. 291, para 38)
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In Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013) 2 SCC (Civ) 715] , the matter came up before a three-Judge Bench of this Court by way of a reference [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 799]. When the matter was placed before a two-Judge Bench, it was contended, relying upon P.A. Mohammed Riyas v. M.K. Raghavan [P.A. Mohammed Riyas v. M.K. Raghavan, (2012) 5 SCC 511] , that an election petitioner has to file Form 25 affidavit in support of the corrupt practice allegation, in addition to the usual verifying affidavit which forms an integral part of the election petition. On the other hand, the two-Judge Bench was also apprised of judgments to the contrary which held that not filing of the affidavit is a curable defect. In order to give quietus to the issue, the matter was referred to a Bench of three Judges. After relying on various precedents, the three-Judge Bench in Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013) 2 SCC (Civ) 715] observed as under: (Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013) 2 SCC (Civ) 715], SCC pp. 781-82, 785-86, 788 & 792, paras 1-2, 22-23, 25 & 37-38)
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More recently, in A. Manju v. Prajwal Revanna [A. Manju v. Prajwal Revanna, (2022) 3 SCC 269 : (2022) 2 SCC (Civ) 95] , this Court dealt with the same question as to whether an election petition containing an allegation of corrupt practice but not supported by an affidavit in Form 25, is liable to be dismissed at the threshold. This Court had observed : (SCC p. 279, para 26)
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The position of law that emerges from the above referred cases is clear. The requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory. It is sufficient if there is substantial compliance. As the defect is curable, an opportunity may be granted to file the necessary affidavit.
In the instant case, the election petition contained an affidavit and also a verification. In this very affidavit, the election petitioner has sworn on oath that the paragraphs where he has raised allegations of corrupt practice are true to the best of his knowledge. Though there is no separate and an independent affidavit with respect to the allegations of corrupt practice, there is substantial compliance of the requirements under Section 83(1)(c) of the Act.
We are in agreement with the conclusion of the High Court that there is substantial compliance of the requirements under Section 83(1)(c) of the Act and this finding satisfies the test laid down by this Court in Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013) 2 SCC (Civ) 715] . Even the subsequent decision of this Court in Revanna [A. Manju v. Prajwal Revanna, (2022) 3 SCC 269: (2022) 2 SCC (Civ) 95] supports the final conclusion arrived at by the High Court.
Recently, in the case of Kimneo Haokip Hangshing v. Kenn Raikhan, 2024 SCC OnLine SC 2548, the Supreme Court observed as follows:
“10. A question had come up before a three Judge Bench of this Court in G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 as to whether an Election Petition is liable to be dismissed at the very threshold even if the allegations of corrupt practices of a returned candidate have not been given by a petitioner in terms of the proviso in Section 83(1)(c) of RPA. The finding of this Court was that this cannot be done even if an affidavit is not filed in terms of the proviso. What is mandatory, however, is that there should be substantial compliance. In other words, if substantial compliance in terms of furnishing all that is required under the law has been given, the petition cannot be summarily dismissed.”
Also, in the case of K. Babu v. M. Swaraj, (2024) 4 SCC 299, the Supreme Court observed as follows:
Before us, arguments were advanced only upon non-compliance with Section 81(3) of the 1951 Act, warranting invocation of Section 86(1) thereof, and not on the other issue regarding lack of material facts and particulars in the pleadings, as required by Section 83 of the 1951 Act. In any event, it is well settled that non-compliance with the requirements of Section 83 of the 1951 Act is not fatal, as Section 86(1) thereof only speaks of non-compliance with Sections 81, 82 or 117 being the basis for dismissal of an election petition at the outset. Defects in an election petition that constitute non-compliance with Section 83 of the 1951 Act have been held to be curable defects (see T. Phungzathang v. Hangkhanlian [T. Phungzathang v. Hangkhanlian, (2001) 8 SCC 358]; Umesh Challiyill v. K.P. Rajendran [Umesh Challiyill v. K.P. Rajendran, (2008) 11 SCC 740]; Ponnala Lakshmaiah v. Kommuri Pratap Reddy [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] ; G.M. Siddeshwar v. Prasanna Kumar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776: (2013) 2 SCC (Civ) 715]; and A. Manju v. Prajwal Revanna [A. Manju v. Prajwal Revanna, (2022) 3 SCC 269: (2022) 2 SCC (Civ) 95]). Further, once the High Court opined that a triable issue under Section 123(3) of the 1951 Act is made out, we find no grounds to interfere therewith.”
Thus, in view of the settled position of law governing the requirement of an affidavit in Form 25, this Court is of the opinion that the Election Petition contains an affidavit, wherein reference has been made to the pleadings under Paragraphs-6-A, 6-B, 6-C and 6-D, which are allegations of corrupt practice. Hence, as per the proviso to sub-section (1) of section 83, a separate affidavit in Form-25 is necessary. The affidavit on record does not purport to be one under Form 25 nor is it in the format of Form-25. Therefore, it can be treated as a defective affidavit only to the extent of non-adherence to the format prescribed under Rule 94A of the Conduct of Election Rules read with proviso to Sec-83 (1)(c). What consequences are to follow in such event shall be discussed hereafter.
Issue no. (i) is answered accordingly.
Issue no. (ii)
Coming to issue No. (ii), i.e. whether the affidavit on record substantially complies with the requirement of Form-25 or not, it would be proper to first reproduce Form-
25 appended to the Conduct of Election Rules 1961:
“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)
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.”
From a reading of the format, it is evident that the requirement appears to be three-fold:
(i) To specify the corrupt practices;
(ii) To specify which of the corrupt practices are true to the knowledge of the Petitioner; and
(iii) which are true to his information.
Testing the affidavit accompanying the Election Petition on the anvil of the format (Form-25), it seen that it states as follows:
“AFFIDAVIT
Kishore Kumar Nayak, Occupation-Cultivation, aged about 62 years, Vill/.Po.Olaga, PS.Dhusri, Chandbali Constituency, Dist. Bhadrak, Odisha -756138
Father’s Name: Late Biswambar Nayak.
Number of proceedings pending in the High Court or would be instituted (Caveat): None.
Statement of facts: As per averments in the election petition from paragraphs 1 to 12.
The facts stated are true to the best of the knowledge and belief of the deponent.
DECLARATION
I, Kishore Kumar Nayak, aged about 62 years, S/o-Late Biswambar Nayak, Vill/.Po.Olaga PS.Dhusri, Chandbali Constituency, Dist. Bhadrak, Odisha -756138, do hereby solemnly affirm and state as follows:-
(i) I am the election petitioner in this petition.
(ii) That the statements in made paragraph 1 to 6 of the election petition are statements with respect to facts regarding the schedule of election, description of electors, nomination, scrutiny, statement of fact regarding events in chronology upto the date of counting which are true to the best of my knowledge based on information gathered from statutory notification, official records and believe the same to be true.
(iii) That the statement made in Para-6, 6A to 6H and Para-7 to 12 and the relief sought in the election petition are based on my personal knowledge and corroborated by information received by me and I believe the same to be true.
(iv) That the averments made in Para- 6 to 12 of the election petition are the concise statement of material facts which the election petitioner relies.
(v) That the statements are true to the best of my knowledge and belief.”
[Emphasis added]
Paragraph-(iii) of the declaration refers to the specific pleadings containing the corrupt practices, namely, 6-A to 6-H, which includes 6-A to 6-D. As can be seen, the Election Petitioner has declared that the said statements are based on his ‘personal knowledge’ and ‘corroborated by the information received by him’. As argued by Mr.Samal, the said declaration does not specify which corrupt practice is based on the petitioner’s personal knowledge and which is based on information received by him. It further does not specify the source of such information. According to Mr. Samal therefore, the affidavit cannot be treated as being in substantial compliance with the requirement of law.
Mr. Sahu, on the other hand, has argued that Paragraph-(ii) of the affidavit should also be read conjointly with Paragraph-(iii), wherein the Petitioner has specified that the statements are true to the best of his knowledge, based on information gathered from statutory claims, notification, official records and believed to be true.
Mr. Mishra, also supports the arguments of Mr. Sahu to contend that the affidavit satisfies the requirement of Form-25.
After hearing learned counsel for the parties, this Court is inclined to agree with the arguments of Mr. Samal to the extent that there is no segregation in the affidavit as to which of the allegations of corrupt practice are based on personal knowledge of the Petitioner and believed to be true and which, based on his information. Further, the source of information has also not been specified. This Court does not agree with the argument of Mr.Sahu that Paragraph-(ii) has to be read conjointly with Paragraph-(iii) for the reason that the paragraph-(ii) relates specifically to Paragraphs- 1 to 6 of the Election Petition, whereas the pleadings relating to corrupt practice are contained in Paragraphs-6-A to 6-D.
Be that as it may, the question is, whether the omission to specify which of the allegations are based on personal knowledge and which on information received can be treated as fatal to the case.
In Thangjam Arunkumar (Supra) , the Supreme Court held as follows:
“16. The position of law that emerges from the abovereferred cases is clear. The requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory. It is sufficient if there is substantial compliance. As the defect is curable, an opportunity may be granted to file the necessary affidavit.”
The contrary interpretation would be hyper-technical in nature, which is not desirable, particularly when the Election Petition is found to contain a definite cause of action raising triable issues. The observations made in A. Manju (Supra) are noteworthy:
We must begin at the inception by stating that intrinsically, election law is technical in nature. In the present matter, an election conducted under an independent body like the Election Commission is sought to be assailed, where the mandate of the public has gone in a particular way. The allegations must strictly fall within the parameters of the manner in which such a mandate can be overturned. The primary plea taken by the appellant is largely that success in the elections was obtained by concealment of material, which would have been germane in determining the opinion of the electorate. In effect, were such material to be available with the electorate, they would have exercised another option on the basis of it. However, while the requirements to be met in the election petition may be technical in nature, they are not hypertechnical, as observed in Ponnala Lakshmaiah case [Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788]. We have considered the aforesaid aspect by quoting the observations made therein which have received the imprimatur of a larger Bench.”
Had there been no affidavit at all or had the affidavit accompanying the Election Petition neither referred to the allegations of corrupt practice nor stated that the same were based on knowledge of the Election Petitioner and believed to be true and on information received, the matter would have been different. It would have been a case of total non-compliance rendering the defect incurable. In the instant case, at best, the affidavit on record can be treated as a defective one. It is not akin to absence of an affidavit. This Court therefore, holds that the affidavit on record is in substantial compliance of the requirement of Form-25, though it is defective inasmuch as it does not specify which of the allegations are based on the petitioner’s knowledge and believed to be true and which are based on information received by him. However, the defect being a curable one, the Petitioner can be directed to cure the defect.
Issue no. (ii) is answered accordingly.
Issue nos. (iii) and (iv) are intricately connected to each other. Hence, both are taken up together for consideration.
Issue nos. (iii) and (iv)
Coming to issue Nos.(iii) and (iv), Mr. Samal would argue that the Election Petitioner filed Form-25 affidavit suo motu on 30.12.2024, which is 166 days after filing of the Election Petition. Since there is no provision in the R.P. Act to extend the period of limitation, said affidavit cannot be accepted being filed beyond the period of limitation.
Per contra, Mr. Sahu would argue that the doctrine of curability as referred to by the Constitution Bench of the Supreme Court in T.M. Jacob (Supra) is squarely applicable to the facts of the case. He cites several cases wherein affidavits and Form-25 were filed much after the filing of the Election Petition. He cites the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, 1963 SCC OnLine SC 129, F.A. Sapa v. Singora, (1991) 3 SCC 375, Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196, A. Manju (Supra) etc. He further submits referring to Vidyawati Gupta v. Bhakti Hari Nayak, (2006) 2 SCC 777 that the requirement being procedural in nature, any omission in respect thereof will not render the plaint invalid and that the defect or omission will not only be curable but will also relate back to the date of presentation of the plaint.
Mr. Mishra submits that once the Court holds that there is substantial compliance of the requirement of law in the affidavit on record, the defect, if any, can be cured. Once cured, the same shall relate back to the date of presentation of the election petition and therefore, the question of limitation shall not arise.
This Court has, in the preceding paragraphs, held that the affidavit on record substantially complies with the requirement of Form-25 and that the defects pointed out therein can always be cured by filing a supplementary affidavit. The R.P. Act prescribes limitation of 45 days for filing of Election Petion, reckoned from the date of publication of the election result. There is no provision to extend the period of limitation under any circumstances. The question is, whether the period of limitation having since expired, the Election Petitioner can be permitted to file a supplementary affidavit. In the instant case, it is not disputed that such an affidavit was filed on 30.12.2024, which is166 days after filing of the Election Petition. But then, this Court having already held the defect in the affidavit accompanying the Election Petition as a curable one, it entails rectification of the defect by filing a supplementary affidavit. In other words, the defect is one of form and not of substance. Had it been a defect of substance, it would have rendered the defect incurable and in such situation, it would not have been permissible to file supplementary affidavit as it would amount to extending the period of limitation. But the defect in the instant case is one of form and thereby curable, so the question of limitation would not apply as otherwise the very doctrine of curability would be rendered redundant. In such event, the affidavit subsequently filed would relate back to the date of presentation of the election petition. The question of extending the period of limitation therefore, does not arise.
In the case of Vidyawati Gupta (Supra), the Supreme Court observed as follows:
“In this regard we are inclined to agree with the consistent view of the three Chartered High Courts in the different decisions cited by Mr. Mitra that the requirements of Order 6 and Order 7 of the Code, being procedural in nature, any omission in respect thereof will not render the plaint invalid and that such defect or omission will not only be curable but will also date back to the presentation of the plaint. We are also of the view that the reference to the provisions of the Code in Rule 1 of Chapter 7 of the Original Side Rules cannot be interpreted to limit the scope of such reference to only the provisions of the Code as were existing on the date of such incorporation. It was clearly the intention of the High Court when it framed the Original Side Rules that the plaint should be in conformity with the provisions of Order 6 and Order 7 of the Code. By necessary implication reference will also have to be made to Section 26 and Order 4 of the Code which, along with Order 6 and Order 7, concerns the institution of suits. We are ad idem with Mr. Pradip Ghosh (sic) on this score. The provisions of sub-rule (3) of Rule 1 Order 4 of the Code, upon which the Division Bench of the Calcutta High Court had placed strong reliance, will also have to be read and understood in that context. The expression “duly” used in sub-rule (3) of Rule 1 Order 4 of the Code implies that the plaint must be filed in accordance with law. In our view, as has been repeatedly expressed by this Court in various decisions, rules of procedure are made to further the cause of justice and not to prove a hindrance thereto. Both in Khayumsab [(2006) 1 SCC 46 : JT (2005) 10 SC 1] and Kailash [(2005) 4 SCC 480] although dealing with the amended provisions of Order 8 Rule 1 of the Code, this Court gave expression to the salubrious principle that procedural enactments ought not to be construed in a manner which would prevent the Court from meeting the ends of justice in different situations.”
[Emphasis added]
Thus, this Court holds that the Election Petitioner can be permitted to file supplementary affidavit complying with the requirement of Form-25 after filing of the Election Petition or at least before commencement of trial, so that the other side is not taken by surprise. It is relevant to mention that in the instant case issues have been not yet been settled and therefore, the question of the other side being prejudice does not arise.
Issue nos. (iii) and (iv) are answered accordingly.
Summing up.
From the above analysis of facts and the settled position of law, the conclusion of this Court can be summed up as under:
(i) The affidavit accompanying the Election Petition, though not in the prescribed format of Form-25 and therefore defective, cannot be said to be non-est in law. The defects noticed therein pertain to the manner of specification and segregation of allegations based on personal knowledge and information and are, therefore, defects of form and not of substance.
(ii) The affidavit, read with the pleadings as a whole, substantially complies with the requirements of the proviso to Section 83(1)(c) of the R.P. Act read with Rule 94-A of the Conduct of Election Rules. Consequently, the Election Petition is not liable to be dismissed in limine under Section 86(1) of the Act.
(iii) The defect being curable in nature, the Election Petitioner can file a supplementary affidavit in conformity with Form-25 even after the presentation of the Election Petition. The bar of limitation applicable to the filing of the Election Petition shall not operate.
(iv) This Court possesses the jurisdiction to permit rectification of such procedural defects which shall relate back to the date of presentation of the Election Petition.
Conclusion.
In the result, the earlier order of this Court rejecting the I.A. is reiterated with the aforementioned observations.
List the Election Petition on 23.02.2026 for hearing of I.A No.163 of 2024.