Shankar Prasad Ray vs Phani Bhusan Choudhury

1) Heard Mr. N. Borah learned counsel for the applicant as well as Mr. K.P. Pathak, learned senior counsel, assisted by Mr. A. Baruah, learned

counsel for the opposite party.

2) The applicant is the petitioner in the connected election petition. The said election petition has been filed to assail the election of the opposite party/

respondent as a Member of Assam Legislative Assembly from No. 32 Bongaigaon Legislative Assembly Constituency, which was held in the year

2021. For the sake of clarity and convenience, in this order the parties are referred by their respective position in the connected election petition.

3) By filing this interlocutory application under Section 151 of the Civil Procedure Code, the petitioner has prayed for leave of the Court to cure the

defect in the affidavit appended to the connected election petition to the extent it is not in conformity with the prescribed format envisaged in Form 25

under Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter referred to as the “1961 Rulesâ€​ for brevity).

4) The learned counsel for the petitioner had submitted that as per the requirement of proviso to Section 3(1) of The Representation of the People Act,

1951 (hereinafter referred to as the “1951 Act†for short), an election petition where corrupt practice is alleged, is required to be accompanied by

an affidavit in the prescribed Form 25 in support of allegations of such corrupt practice and the particulars thereof. It is submitted that although an

affidavit was filed in support of the election petition, but due to inadvertence, the said affidavit was not in consonance with the requirement of the

prescribed Form 25 under Rule 94-A of the 1961 Rules as it did not contain verification to support allegations of corrupt practice by the respondent. It

was further submitted that the respondent had filed an interlocutory application for rejection of plaint, which was registered as I.A.(C) 1272/2021, but

an election petition cannot be rejected merely owing to defect in the affidavit. Hence, by relying on the cases of (i) Umesh Challiyil v. K.P. Rajendran,

(2008) 11 SCC 740, and (ii) Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196, it was submitted that the petitioner be given an

opportunity to cure the defect in the affidavit (at pages 29 & 30 of the election petition).

5) It may be mentioned that although the learned counsel for the petitioner had made elaborate submissions on scope of corrupt practice by referring

to the communication No. 3/4/2019/ SDR/Vol-I dated 19th March, 2019 (pages 101-104 of the election petition) to project that non declaration of FIR

cases would amount to corrupt practice. But the same is not considered at this juncture because the said submissions would be a contentious issue to

be decided in the election petition and moreover, the said point is not relevant to be delved into at this stage to decide the prayer made in this

application.

6) Per contra, the learned senior counsel for the respondent had submitted that in the prayer, the petitioner has specifically mentioned that the affidavit

at pages 29-30 of the election petition was required to be cured. In this regard, it was submitted that by way of the election petition, the petitioner is

assailing the election of the petitioner, amongst others, on the count of alleged corrupt practice committed by the petitioner. It was submitted that it

was also admitted by the petitioner that the affidavit sought to be cured was not as per the requirement of Form 25 under Rule 94A of the 1961 Rules.

In this regard, it was submitted that apart from the said affidavit at pages 29 & 20 of the connected election petition, there was no other affidavit to

verify the pleadings as required under Sub-Rule (4) of Rule 15 of Order VI of the CPC. Accordingly, it was submitted by the learned senior counsel

for the respondent that it would have been another thing if any prayer was made to allow the petitioner to file an affidavit in support of the allegations

of corrupt practice. But such prayer having not been made, it would irreparably prejudice the respondent if the Court suo motu permits the petitioner to

file another affidavit to verify pleadings at this stage.

7) It would be relevant to quote below the statements made by the respondent in paragraphs 4 to 7 of the written objection, which is as follows:-

“4. That in total absence of the Affidavit in Form 25 of the Conduct of Elections Rules, 1961, the Election Petition itself was not an

Election Petition duly presented under Section 81 of the Representation of the People Act, 1961 read with the relevant provisions of the

Chapter VIII-A of the Gauhati High Court Rules and hence, the Election Petition is liable to be dismissed at the threshold in the very first

hearing itself.

That the defect sought to be cured by the Election Petitioner is a substantial defect and not a curable defect and hence, is not liable to be

cured at a later stage.

That the Representation of the People Act, 1951, being a self contained code, the very filing of the Election Petition without the Affidavit

in the prescribed form is an abuse of the process of the Court and if at this stage, after filing of the Election Petition, the Election Petitioner

is allowed to introduce the Affidavit, it will cause hardship, injustice and prejudice to the Applicant/ Returned candidate.

That a specific ground was taken for rejection of the Election Petition for not providing the Affidavit in the prescribed Form 25 of the

Conduct of Election Rules, 1961.â€​

8) In this case, the Election Petition was filed on 14.06.2021. Thereafter on 21.08.2021, the respondent (i.e. the returned candidate) had filed an

application under Order VII, Rule 11 CPC for rejection of election petition. Thereafter, on 13.09.2021, the petitioner has filed this instant interlocutory

application under the provisions of Section 151 CPC, praying for a leave of this Court to cure/ remove the defect in affidavit (at pages 29 and 30 of

the El.P. No. 3/2021 by filing a proper affidavit as enumerated in Section 83(1) of the 1951 Act read with Rule 94A of the 1961 Rules in support of his

allegations of corrupt practice against the respondent.

9) Be it mentioned herein that in this interlocutory application, the petitioner has not made any prayer to allow him to (i) retain the affidavit to verify

pleadings (i.e. pages 29-30 of the election petition), and (ii) to insert an affidavit in the election petition as per requirement of Form 25 under Rule 94A

of the 1961 Rules. In other words, it is not the case of the petitioner that there are two affidavits in the election petition, one to verify the pleadings as

required under Section 83(1)(c) of the 1951 Act read with the provisions of Order VI, Rule 15(4) CPC, and that the other affidavit was filed in support

of allegations of corrupt practice as required under proviso to Section 83(1)(c) of the 1951 Act.

In fact the verification of the election petition is at page 28 of the election petition and the election petition contains only one affidavit, which appears

immediately after verification of the election petition at pages 29 and 30 of the election petition. Therefore, the said affidavit at pages 29-30 of the

election petition can only be construed to be an affidavit for the purpose of verifying pleadings as per the mandate of Section 83(1)(c) of the 1951 Act

read with the provisions of Order VI, Rule 15(4) CPC.

10) Therefore, it is apparently clear that despite being pointed out by the respondent in his application filed under Order VII, Rule 11 CPC, being I.A.

(C) 1272/2021 as well as in the written objection filed in this present application that there was absence of affidavit in Form 25 in the election petition,

the petitioner has taken a conscious and calculated decision of (i) retaining the affidavit at pages 29 and 30 of the election petition and (ii) to cure the

defect in the affidavit to the extent it is not in conformity with the format of Form 25 under Rule 94A of the 1961 Rules.

11) In this regard, it would be relevant to refer to the provisions of Section 83 of the 1951 Act, which is quoted below as follows:-

“83. Contents of petition. - (1) An election petitionâ€

(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.â€​

12) Thus, the petitioner wants to cure the defect and to supplant the affidavit at pages 29 and 30 of the election petition so as to supersede and replace

the said affidavit and convert the same to be an affidavit filed in support of allegations of corrupt practice. In that event there would be no affidavit on

record to verify the pleadings as required under Clause (c) of Sub-Rule (1) of Section 83 of the 1951 Act. This appears to be the conscious choice of

the petitioner as no attempt has been made to amend the present interlocutory application.

13) In the case of Umesh Challiyil (supra), cited by the learned counsel for the petitioner, the background facts is to the effect that it was alleged in

the election petition filed by the appellant (before the Supreme Court of India) that the election be declared void on the ground of corrupt practice

committed either by the respondent's election agent or by some other person with the consent of the respondent or his election agent. The election

petition was registered and notice was issued. The respondent was the elected candidate and he raised a preliminary objection on the maintainability of

the election petition. The preliminary objections were that the affidavit in Form 25 was not affirmed, as such, the affirmation was not duly certified; the

verification of the election petition was defective; the sources of information as regards to the allegations of corrupt practices of which the appellant

did not have personal knowledge; the allegations in the election petition were vague and lacked pleadings as regards the material particulars. It was

contended by the appellant that there were no illegality in the verification nor the affidavit in form No.25 was defective. It was submitted that the

accusations were specific and they were not vague and the facts mentioned in the election petition were duly sworn by proper affidavit. The first

preliminary objection was upheld by learned Single Judge that the affidavit which has been filed along with the election petition was not duly verified

and the affidavit was not in the form as required under Form No.25 nor was it in conformity with Section 83 of the 1951 Act. Secondly, it was held

that the verification of the election petition was not in the manner which is required under the CPC. In the said context, the Supreme Court of India

had found that in the affidavit, instead of writing ""that I believe to be true"" it was stated that ""no part thereof is false and nothing which is relevant has

been concealed."" The said verification was found by the learned Single Judge to be defective and it was held by the Supreme Court of India to the

effect that it was true that it is not in same words as was required in form No.7 under Rule 82 of the Rules of High Court of Kerala, 1971 framed in

exercise of power under Article 225 of the Constitution of India. However, the allegations of corrupt practice in the election petition was supported by

an affidavit as per Section 83 of the 1951 Act read with Rule 94-A of the 1961 Rules and in context of the said affidavit, the defect as pointed out by

learned Single Judge was that the appellant had not signed and affirmed in the manner inasmuch as there is no certification of the Notary that it was

solemnly affirmed by the appellant before him. This objection was based on the fact that after the signature of the deponent the only words occurring

before the signature of the Notary are, ""Before me"". The words, ""Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of

June, 2006"" occurred above the signature of the deponent. Therefore, it was contended that the affidavit does not bear the certification by the Notary

as to the affirmation by the deponent since such certification ought to be by the Notary after the signature of the deponent. This affidavit was also

found to be defective by the learned Single Judge. In this context, the Supreme Court of India held that “… in our view, this too is a defect of very

minor nature. It may be a bona fide mistake on the part of the deponent as well as the Notary but basically it conveys the sense that the affidavit has

been solemnly affirmed by Umesh Challiyil at Ernakulam. This affirmation also does not in any way go to the root of the matter so as to render the

entire election petition not properly constituted entailing the dismissal of the same.†Under the aforesaid facts, the relevant finding of the Supreme

Court of India, as recorded in paragraphs 12, 13, 20 and 21 are extracted below:-

“12. Both the defects which have been pointed out by learned Single Judge were too innocuous to have resulted in dismissal of the

election petition on the basis of the preliminary objection. The Courts have to view it whether the objections go to the root of the matter or

they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart the election petition should

not be summarily dismissed on such small breaches of procedure. Section 83, itself says that the election petition should contain material

facts. Section 86 says that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 of

Section 82 or Section 117. But not of defect of the nature as pointed out by the respondent would entail dismissal of the election petition.

These were the defects, even if the Court has construed them to be of serious nature, at least notice should have been issued to the party to

rectify the same instead of resorting to dismissal of the election petition at the outset.

Learned counsel for the respondent has tried to justify and support the order of the learned Single Judge and submitted that in fact

these objections were raised by the respondent in his counter and the appellant had sufficient opportunity to have cured them and in that

connection, learned counsel for the respondent pointed out that the election petition was presented on 22-6-2006 and the first date of

hearing was 30-8-2006. The appellant should have cured these defects but the same was not done. Therefore, there was no option with the

learned Single Judge but to dismiss the election petition. We fail to appreciate this argument of learned counsel for the respondent for the

simply reason how can the appellant who bona fidely felt that his election petition in all respect is complete will entail such a serious

consequence of dismissal of the election petition on such minor omissions. In case, learned Single Judge found that the election petition was

not in the format then after recording his finding, learned Single Judge should have given an opportunity to the appellant to amend or cure

certain defects pointed out by the Court. It may be relevant to mention, these are not the grounds mentioned in Section 86 of the Act for

dismissal of election petition. But nonetheless even if it is to entail serious consequence of dismissal of the election petition for not being

properly constituted, then too at least the appellant should have been given an opportunity to cure these defects and put the election petition

in proper format. But learned Single Judge instead of giving an opportunity has taken the easy course to dismiss the election petition which

in our opinion, was not warranted.

However, in fairness whenever such defects are pointed 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 17 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 the CPC but in the present case we regret to record that the defects which have been pointed

out in this election petition was purely cosmetic and it does not go to the root of the matter 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.

As a result of the above discussion, the view taken by learned Single Judge of the High Court is not correct and we set aside the order

dated 6-12-2006 passed by the learned Single Judge in EP No.6 of 2006 and remit this matter back to the High Court of Kerala for

proceeding with the election petition of the appellant. There would be no order as to costs.â€​

14) Thus, from the herein before referred paragraph 12, it is apparent that in the said case, the allegations of corrupt practice

was supported by an affidavit in Form 25 as per requirement of Rule 94-A of the 1961 Rules, which is the relevant fact that distinguishes the present

case from the facts of the said cited case.

15) In the case of Sardar Harcharan Singh Brar (supra), the election of the respondent no. 1 therein was challenged on the ground that the nomination

of one of the respondents had been improperly accepted and that the respondent no.1 was guilty of committing the corrupt practice of obtaining the

assistance of the police officer within the meaning of Section 123(7) of the 1951 Act. It is in the aforesaid context, that the High Court had held that

the averments made were lacking in material facts. Under such factual matrix, the relevant paragraphs 13 to 16 thereof is extracted below:-

“13. Having gone through the contents of the election petition, we are satisfied that the High Court has not been right in directing the

petition to be dismissed at the threshold by forming an opinion that the averments made in the election petition were deficient in material

facts. It is not necessary to burden this judgment with reproduction of the several averments made in the election petition. The High Court

has already done it. The test laid down in the several authorities referred to hereinabove and in particular in the case of Raj Narain v.

Indira Nehru Gandhi, (1972) 3 SCC 850 is fully satisfied. The grounds of corrupt practice and the facts necessary to formulate a complete

cause of action have been stated. Even the particulars have been given. However, if the Court feels that the particulars as given in the

petition are deficient in any manner the petitioner can be directed to supply the particulars and make the deficiency good. In any case,

deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non- supply of particulars

though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged

corrupt practice. We cannot countenance the view taken by the High Court.

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 94A. 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, (2001) 4 SCC 428 and Dr.

Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247, 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.

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's case (supra).

For the foregoing reasons, the appeal is allowed with costs. The judgment of the High Court is set aside. The election petition shall

stand restored on the file of the High Court for hearing and decision consistently with what has been stated hereinabove.â€​

16) It is seen that as per paragraph 14 of the case of Sardar Harcharan Singh Brar (supra), an election petition is not liable to be dismissed in limine

under Section 86(1) of the 1951 Act for alleged non-compliance with provisions of Section 83(1) or (2) of the said 1951 Act or of its proviso and it

was further held that the defect in the verification and the affidavit is a curable defect and that 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 the consequences of Section 86(1) of the 1951 Act cannot

be attracted to such a case. Therefore, the said cited case comes to the aid of the petitioner to allow the prayer made in the present application.

17) There is no doubt that it is too well settled that Courts should be liberal in allowing amendments to cure the deficiencies occurring in the election

petition, and that an endeavour ought to be made to hear and dispose of the election petitions on merit instead of disposing the election petitions on

technical grounds. There are also several authorities on the point that the Court ought to give an opportunity to the petitioner in an election petition to

cure the deficiencies in affidavit. However, as indicated herein before, in this case the petitioner seeks to convert the affidavit to verify pleadings at

page 29 and 30 of the election petition to be converted to one as per the requirement of Form 25 of the 1961 Rules.

18) Thus, in light of the discussions above, the Court is of the considered opinion that defect in the form of an affidavit required to be filed as per Form

25 under Rule 94-A of the 1961 Rules is a curable defect and in support of the said legal proposition, the Court finds support from the two decisions

cited by the learned counsel for the petitioner. Hence, the Court is inclined to allow this interlocutory application. Therefore, the petitioner is allowed to

cure the defect occurring in the affidavit (at page 29 and 30 of the election petition) by filing an affidavit as per requirement of Form 25 under Rule

94-A of the 1961 Rules. Such an affidavit shall be filed within a period of 14 days from the date of this order. The effect of such failure is left open to

be determined and adjudicated in course of the trial as per ratio laid down in G. Mallikarjunappa's case (supra).

19) However, the Court is constrained to record herein that as a consequence of this order, the election petition would be left without an affidavit to

verify pleadings as per the requirement of Section 83(1)(c) of the 1951 Act. Nonetheless, the consequences, if any, which may follow from a election

petition containing no affidavit to verify pleadings as per requirement of Section 83(1)(c) of the 1951 Act read with the provisions of Order VI, Rule

15(4) CPC is left to be judged at the trial of an election petition, which is as per the ratio laid down in the case of Sardar Harcharan Singh Brar

(supra), cited by the learned counsel for the petitioner.

20) Thus, this interlocutory application stands allowed.

21) There shall be no order as to cost.