In pursuance of the aforesaid election programme, 7 candidates including the election petitioner filed their respective nominations. After the polling and counting as per the election programme, respondent no. 1 was declared elected on 13-01-2010 by the returning officer by a margin of 173 votes. The respondent no. 1 was shown to have received 1581 votes and the election petitioner 1408 votes.
The election petition is based on the allegation of illegalities and irregularities committed by the returning officer and his staff in the process of counting of polled votes by improper reception of void and invalid votes in favour of respondent no. 1 and improper rejection of valid votes of the petitioner, which materially affected the election. The grounds for challenge are referable to Section 100(1)(d) of the Representation of the People Act, 1951 (in short the 'Act, 1951'). Reliefs prayed for in the election petition are as under :
"A. declare the election of respondent no. 1 as Member of the Legislative Council from Pilibhit - Shahjahanpur Local Authorities Constituency as null and void and set aside the same.
B. to declare the petitioner as duly elected Member of Legislative Council from Pilibhit-Shahjahanpur Local Authorities Constituency.
C. to issue order and direction for inspection and recount of rejected votes of the election in question.
D. pass any other order or direction which this Hon'ble Court may deem fit and proper in the facts of the case."
Following issues were framed for consideration in the election petition vide order dated 15-07-2011 :
(1) Whether there was any improper rejection of valid votes cast in favour of the petitioner and whether the said rejection has materially affected the result of the election in-so-far as it concerns the respondent no.1 (returned candidate)?
(2) Whether there was any improper reception of void votes and whether such reception has materially affected the result of the election in-so-far as it concerns the respondent no.1 (returned candidate)?
(3) Whether the Election Petition does not disclose any cause of action?
(4) Whether the Election Petition is barred by Order VII, Rule 11 of the Code of Civil Procedure?
(5) To what relief, if any, is the petitioner entitled? "
Subsequently, respondent no. 1, the returned candidate made two applications; one under Order VI Rule 16 of the Code of Civil Procedure (in short the 'Code') read with Section 86(1) of the Act , 1951 and second misc. civil application under Order VII Rule 11 of the Code.
Hon'ble Judge nominated to hear the election petition released the same vide order dated 13.7.2012 and it came to be nominated to me by an order dated 31.7.2012 passed by Hon'ble the Chief Justice.
When the matter was taken up on 18.2.2013, learned counsel for the respective parties agreed that two issues namely, issue no. (3) and (4) may be decided as a preliminary issue and the aforesaid two applications shall be governed by the decision on the said two issues.
In view of the aforesaid, issue nos. (3) & (4) were taken up as preliminary issue and hearing commenced on the said two issues along with application under Order VI Rule 16 and Order VII Rule 11 of the Code.
Heard Sri K.R.Singh, learned counsel for the election petitioner and Sri Umesh Chandra, learned Senior Advocate assisted by Sri Aseem Chandra and Sri Prateek J. Nagar for the respondent no. 1.
Sri Umesh Chandra, learned Senior Advocate appearing for respondent no. 1 vehemently contended that there is no material fact pleaded in the election petition which can be said to have materially affected the result of the election. He further submitted that the main allegation of the petitioner in the election petition is that at least 295 votes of the petitioner were improperly rejected. The said allegation has been made without stating or pleading any material facts and ingredients to establish the fact like serial number of the ballot paper, round number of counting in which the alleged irregularity was committed, names of the counting assistants, names of the counting supervisor and nature of objection, if any, raised at the time of counting and source of information and the basis of the allegation. It was further urged that in the absence of these material facts, which were necessary to be pleaded by the petitioner in the election petition, the same lacks material facts rendering the pleadings frivolous, vexatious, unnecessary and irrelevant and thus are liable to be struck off from the pleadings. He further submitted that other allegation of the petitioner in the election petition is that at least 226 votes of the petitioner were rejected on the ground of marking made by the voters in the ballot papers at a wrong place but there is nothing on record to demonstrate that the election petitioner or his counting agents ever made any complaint in respect of the same at any point of time. He further pointed out that copy of the alleged complaint filed along with the election petition to the District Election Officer dated 13.01.2010 made by the election petitioner himself does not contain any objection about improper rejection of votes on the ground of wrong marking, which went to show that averments made in the election petition in this regard are nothing but an after thought of the petitioner. It was further submitted that since the election petition does not disclose any cause of action the same is liable to be rejected under Order VII Rule 11 of the Code. He also submitted that verification of the election petition as well as the verification of the annexures, Schedule-I and the affidavit is deeply defective and does not confirm to Order VI Rule 15 inasmuch as the verification clause is not in accordance with the sub-rule (2) of Order VI Rule 15 which provides that verification should specifically state what is verified on own knowledge and what upon information received and believed to be true.
Sri K.R.Singh, learned counsel for the petitioner refuting the arguments of Sri Chandra, submitted that election petition contains complete material facts, which are necessary for trial of election petition. He further submitted that the fact as to whether any objection was made at the time of counting was irrelevant inasmuch as the facts with respect to improper rejection or acceptance of invalid votes are question of facts which are to be proved during trial and since the entire material fact pertaining to the same has been disclosed in the election petition, none of the paragraphs of the election petition are liable to be struck off and the petition is liable to go for a trial wherein the issue can be decided on the basis of evidence to be adduced by the parties. He also submitted that no plea with regard to defect in verification clause has either been raised in the written statement nor any issue has been framed in this regard and at no point of time this objection was ever raised and no oral objection can be taken during argument in respect of any verification without pleading the same. He further submitted that in any view, the defect in verification is curable.
In order to appreciate the rival arguments of the parties, it may be relevant to quote the relevant provisions of the Act, 1951. The grounds on which the election of respondent no. 1 has been challenged are referable to sub-clause (iii) and (iv) of clause (1)(d) of the Act, 1951, which read as under :
" 100. Grounds for declaring election to be void - [(1) Subject to the provisions of sub-section (2) if the High Court is of the opinion -
(a) .......................................
(b) ....................................
(c) ......................................
(d) that the result of the election petition, in so far as it concerns a returned candidate, has been materially affected -
(i) ......................................
(ii) .........................................
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
Section 83 of the Act, 1951 dealing with the contents of the petition is of vital importance to adjudicate upon the controversy and the same is reproduced hereunder :
"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.
Admittedly, it is not a case of any corrupt practice by the respondent no. 1, the returned candidate and the petition is solely based on the ground of improper rejection of valid votes of the petitioner and improper reception of invalid votes of the respondent no. 1, the returned candidate.
Section 87 of the Act, 1951 prescribes the procedure to be followed by the High Court while trying the election petition. The said Section reads as under :
"87. Procedure before the High Court. - (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits :
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
In view of provisions of Section 87, the provision of Order VI Rule 16 and Order VII Rule 11 of the Code stands attracted and they are reproduced hereunder :
"Order VI Rule 16. Striking out pleadings. - The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading -
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit,
(c) which is otherwise an abuse of the process of the Court.
Order VII Rule 11. Rejection of plaint. - The plaint shall be rejected in the following cases :-
(a) where it does not disclose a cause of action;
(b) ...........................
(c) ..........................
(d) .........................."
In the instant case, since the election has not been challenged by the petitioner on the ground of corrupt practice, as such, sub-clause (b) of Section 83(1) of the Act, 1951 are not relevant.
A combined reading of the aforequoted provisions makes it clear that they cast an obligation on the Election Tribunal to determine at the threshold stage of the proceeding itself more so, when objection to the maintainability of the election petition is raised by the opposite party. Whether the contents of the Election Petition fulfil the imperative legal requirements of sub-clauses (a) and (c) of Section 83(1) of the Act, 1951 when Election Petition is based on the ground/grounds other than the ground of "corrupt practice", and if the petition is based on the charge of 'corrupt practice' then whether its contents meet all the mandatory requirements of clauses (a) to (c) of Section 83(1); and that if the petition is found wanting in any material aspects of these requirements whether it then attracts the wrath of Order VII Rule 11(a) and/or of any of the clauses (a) to (c) of Order 6 Rule 16 of the Code. In other words, the ultimate object of this judicial scrutiny of the petition pleadings would be to find if the averments in the petition constitute full and complete cause of action for the petitioner to maintain his petition or not.
A large number of case laws has been referred by the learned counsel for the parties to support their respective arguments which shall be referred to at the relevant place. However, before proceeding to deal with the rival submission on behalf of the contesting parties, it is pertinent to refer to the pleadings of the election petition as well as its verification and the verification of the annexures and schedules.
Paragraphs 1, 2, 3, 4 & 5 of the Election Petition contain the introductory facts relating to the election and number of the votes obtained by the petitioner and the respondent no. 1, the returned candidate, which are not in dispute. The allegations regarding improper rejection of valid votes cast in favour of the petitioner and improper reception of void and illegal ballot papers in favour of respondent no. 1 and non compliance of the provisions of the Act, Rules and the directions issued by the Election Commission are contained in paragraph 6.
Again paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 & 21 are mostly related to the manner of casting of votes in election to the Legislative Council, number of candidates, counting tables as well as method of counting of votes. The allegations contained in paragraph 22, 23 & 24 of the Election Petition are in general term that during counting it was found that a large number of voters had indicated their first preference vote for the petitioner by marking figure 'I' in the space provided in front of the petitioner's column and thus their intention were very clear that they wanted to vote for the petitioner.
In paragraph 23 of the Election Petition, it is stated that there were also large number of voters who marked their preference vote in favour of the petitioner by marking figure 'I' above the name of the petitioner's column and since his name was printed at the top of the ballot paper at serial no. 1, thus while marking the figure 'I' above the column prescribed for marking their votes to the petitioner, their intention was very much clear that they wanted to vote for the petitioner.
In paragraph 24, a general allegation has been made that the ballot papers marked in both the aforesaid manner were valid but the counting staff treated them as disputed and placed the same before the returning officer for his decision. It is only in paragraph 25 of the Election Petition, it has been stated that at least 226 such ballot papers in which the voters had marked their preference in front of the petitioner's name column were valid but they were illegally rejected.
Again in paragraph 26, it has been stated that at least 69 such ballot papers in which the voters have marked their first preference by writing figure 'I' above the column of the petitioner's name were valid and illegally rejected. The said paragraph further mentioned that details of aforesaid 295 ballot papers which were valid in favour of the petitioner but were improperly rejected by the returning officer are contained in Schedule - 1 annexed with petition.
In paragraph 41 of the petition, it is stated that in the aforesaid manner 295 valid votes of the petitioner were improperly rejected by the returning officer whereas the respondent no. 1 was shown to have been elected by a margin of 173 votes and thus the illegalities materially affected the result of the election.
In paragraph 43, it is stated that the petitioner is entitled for inspection and recount of rejected votes and entitled to be declared elected.
The verification of the Election Petition reads as under :
"I, Amit Yadav, the petitioner in the above election petition, do hereby verify that the contents and statements made in paragraph nos. 1, 2, 3, 4, 5 partly, 6 partly, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 partly, 23 partly, 25 partly, 26 partly, 27 partly, 28 partly, 28 partly, 29, 30, 31, 33, 34, 35 partly, 36 partly, 37, 38 partly, 40, 41, 42, 43, 44, 45 and 46 of the election petition are true to my knowledge; and those contained in paragraph nos. 27 partly, 28 partly, 32 and 39 of the election petition are true on the basis of records and those contained in paragraph nos. 6 partly, 22 partly, 23 partly, 24, 25 partly, 26, 35 partly, 36 partly and 38 partly of this election petition are true on the basis of information received by the petitioner from his agents, workers and supporters, which all I believe to be true; and nothing material has been concealed and no part of it is false."
Similarly, verification of annexure no. 1, which is a dummy ballot paper, has been made by the election petitioner "as true to my knowledge on the basis of perusal of records, which all I believe to be true". Schedule I setting out the details of the ballot papers which were validly marked in favour of petitioner but are alleged to have been rejected by the returning officer has been verified as "true to my knowledge which all believe to be true." The document is in the form of a chart which contains details of table number, total number of votes in which the mark was made in front of petitioner's name, total number of votes in which the mark was made above the name of petitioner, total of column no. 3 and 4 and names of the petitioner's counting agent.
Annexure no. 2 is the copy of the chart prepared by the returning officer during counting of first preference vote and has been verified by the election petitioner as "true to my knowledge on the basis of perusal of records, which all I believe to be true."
Annexure No. 3 is the objection filed by the election petitioner himself before the District Returning Officer stating that his votes are being declared invalid which is illegal and recounting be done. The said annexure has been verified by the election petitioner as "true to my knowledge on the basis of perusal of records, which all I believe to be true".
Annexure No. 4 to the Election Petition is a complaint made to the Election Commissioner of India, New Delhi as well as to the Chief Electoral Officer, Lucknow through fax on 14.01.2010 mentioning the alleged illegalities, which again has been as "true to my knowledge on the basis of perusal of records, which all I believe to be true".
Annexure No. 5 is the photocopy of the newspaper report which has been verified as "true to my knowledge on the basis of perusal of records, which all I believe to be true".
Learned Senior Counsel appearing for the respondent no. 1, the returned candidate pointing out the aforesaid verification contended that the same is not in accordance with the provisions of sub-rule (2) of Rule 15 of Order VI which requires that the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. It was further contended that the verification of annexure-1 as "true to my knowledge on the basis of perusal of records, which all I believe to be true" is not in the manner provided by sub-rule (2) of Rule 15 of Order VI. It was further submitted that verification of annexures and Schedules simultaneously as "true to my knowledge on the basis of perusal of records, which all I believe to be true" cannot be said to be in accordance with the of sub-rule (2) of Rule 15 of Order VI. Similarly, the verification of annexure-3 which is a complaint alleged to have been made by the election petitioner himself to the District Election Officer as "true to my knowledge on the basis of perusal of records, which all I believe to be true" is also not as per the provisions of the Code of Civil Procedure. He further pointed out that various paragraphs of the election petition have been verified by the election petitioner as partly true to his knowledge, partly true on the basis of record and partly on the basis perusal of record and partly on the basis of information received without specifying as to which part of the paragraph is true to the personal knowledge or based on perusal of record or on the basis of information received. He further pointed out that paragraph 5 of the election petition has been partly verified as true to my personal knowledge without specifying which part and the remaining part has not at all been verified and thus the election petition is liable to be rejected for defective verification.
As already noted above, Sri K.R.Singh, appearing for the election petitioner in reply submitted that the aforesaid defects, even if there, are curable and do not warrant rejection of the election petition.
However, it is pertinent to point out at this stage that despite continuous hearing on a number of occasions after objection was raised and replied to, neither any effort has been made by the election petitioner to cure the defects nor time has been prayed for the purpose.
The issue came up for consideration before the Hon'ble Apex Court in the case of F.A. Sapa v. Singora and others, AIR 1991 SC 1557. After analyzing the provisions of Order VI Rule 15 C.P.C. and the provisions of the Act, 1950, in paragraphs 19 & 20, it has been held as under :
"19. That brings us to clause (c) of sub-section (1) of section 83 which provides that an election petition shall be signed by the petitioner and verified in the manner laid down by the Code for the verification of the pleadings. Under section 83(2) any schedule or annexure to the pleading must be similarly verified. Order 6 Rule 15 is the relevant provision in the Code. Sub-rule (2) of Rule 15 says that the person verifying shall specify with reference to the numbered paragraphs of the pleading, what he verifies on his own knowledge and what he verifies upon information received and believed to be true. The verification must be signed by the person making it and must state the date on and the place at which it was singed. The defect in the verification can be (i) of a formal natural and not very substantial (ii) one which substantially complies with the requirements and (iii) that which is material but capable of being cured. It must be remembered that the object of requiring verification of an election petition is clearly to fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time discouraging wild and irresponsible allegations unsupported by facts. Then comes the proviso which provides that in cases where corrupt practice is alleged in the petition, the petition shall also be supported by an affidavit in the prescribed form i.e. From No. 25 prescribed by Rule 94A of the Rules. Lastly sub- section (2) of section 83 lays down that any schedule or annexure to the petition shall also be similarly signed and verified. Two question arise: (i) what is the consequence of a a defective or incomplete verification and (ii) what is the consequence of a defective affidavit? It was also said that the verification clause in regard to averments or allegations based on information ought to disclose the source of information which had not been done in this case.
20. It must at the outset be realised that section 86(1) which lays down that the High court `shall' dismiss an election petition which does not comply with the provisions of Section 81 or Section 8 or section 117 does not in terms refer to section 83. It would, therefore, seem that the legislature did not view the non-compliance of the requirement of section 83 with the same gravity as in the case of section 81, 82 or 117. But it was said that a petition which does not strictly comply with the requirements of section 83 cannot be said to be an election petition within the contemplation of section 81 and hence section 86(1) was clearly attracted. In Murrka Redhey Shyam v. Roop Singh Rathore, [1964] 3 SCR 573 one of the defects pointed out was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in in some other paragraphs were verified to be true on advice and information received from legal and other sources, the petitioner did not in so may words state that the advice and information received was believed by him to be true. The Election Tribunal held that this defect was a matter which came within section 83(1)(c) and the defect could be cured in accordance with the principles of the Code. This Court upheld this view in the following words (at p. 1549 of AIR) :
"It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Cl. (c) of sub-section (1) of S. 83 is fatal to the maintainability of the petition."
It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since section 83 is not one of three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to an integral part of the petition under Sec. 81. "
Again in paragraph 33 of the said reports, it has been observed as under :
"33. Although we have come to the conclusion that the defect in verification is not fatal and can be cured, no attempt has been made by the election petitioners to cure the same nor has the High Court directed the petitioners to do so. By way of a sample our attention was drawn to the election petition No. 7 of 1989 which has given rise to Civil Appeal No. 179 of 1991. The said petition had 47 paragraphs besides the prayer clause. The verification clause shows that paragraphs 1, 2, 4, 5, 18, 19, 28, 35, 30, 33, 36, 38, 41 to 47 of the election petition are on knowledge whereas paragraphs 7 to 15, 20, to 24 , 26, 27, 29, 32, 34, 37, 40 and 41 are on information received and believed to be true. It will be seen from the above that paragraphs 3, 6, 16, 17, 25, 31 and 39 are not verified at all. It was submitted by counsel for the appellants that paragraph 3 contained vital allegations regarding corrupt practice and since that paragraph has not been verified at all, the appellant is likely to be handicapped at the trial. It was contended that such was the position in as many as six petitions if not more. Further some of the paragraphs, e.g., 41 are verified under both heads of the verification clause, thereby causing confusion. In the affidavit sworn in compliance of the proviso to Section 83(1), it is stated that particulars and details of corrupt practice are contained in paragraphs 4 to 40 of the election petition. Then the petitioner states that what he has alleged by way of corrupt practice in the election petition is correct `to the best of my knowledge and to the information received by e and believed by me to be true'. It is thus not clear which allegation of corrupt practice is based on his knowledge and which information he believes to be true. Besides when this affirmation is compared with the verification clause of the election petition, the confusion is worst confounded. Similar is the case with the verification of the annexures. There, therefore, considerable force in the submission of the learned counsel for the appellants that even if the High Court concluded that the defect in verification/affirmation was not fatal, the High Court ought to have directed the petitioners to cure the defects within the time stipulated by it so that the appellants would know the exact position before the trial and would not be taken by surprise. We think the High Court committed an error in failing to give appropriate directions in the matter. More or less similar defects are also found in the verification/affirmation clause in the other election petitions/affidavits. We would, therefore, request the High Court to issue directions to the election petitioner of each petition to remove the defects within such time as it may allow and if they or any of them fail to do so, pass appropriate consequential orders in accordance with law.
Learned counsel for the election petitioner tried to distinguish the aforesaid judgment on the ground that the election petition out of which the said appeal arose contained allegation of corrupt practice, hence, the ratio laid down does not stand attracted.
However, on a careful perusal of consideration in F.A. Sapa (Supra), in my opinion, the law laid down by the Hon'ble Apex Court is not confined only to such petition where corrupt practice is alleged. It also deals with the defect in the verification of the petition as required by Order 6 Rule 15 C.P.C. and the consequence thereof and it has been held that mere defect in verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground but rather an opportunity is to be provided to the election petitioner to remove the defect failing which the consequence shall follow. This becomes clear from the observations made in the paragraph 33 of the reports :
"More or less similar defects are also found in the verification/affirmation clause in the other election petitions/affidavits. We would, therefore, request the High Court to issue directions to the election petitioner of each petition to remove the defects within such time as it may allow and if they or any of them fail to do so, pass appropriate consequential orders in accordance with law."
The aforesaid view taken by me finds support from a subsequent decision of the Hon'ble Apex Court in the case of R.P. Moidutty vs. P.T. Kunju Mohammad and Another, (2000) 1 Supreme Court Cases 481. The said decision was rendered after considering the ratio of the decision in the case of F.A. Sapa (Supra). After considering the defect in the verification clause of the election petition which was more or less similar to the defect in verification of the pleadings in the case in hand, it was observed in paragraph 34 & 35 as under :
"34. The verification of the petition does not even satisfy the requirement of Order 6 Rule 15 CPC. The verification reads as under :
"VERIFICATION I, R.P. Moidutty, s/o Abubakker Haji, aged 54, petitioner in the above election petition do hereby declare that the averments in paras 1 to 17 are true and made from personal knowledge and on the basis of personal enquiry I believe that all the averments made in paras 1 to 17 are true.
Signed and verified on this the 21st day of June, 1996.
sd/-
Petitioner"
35. All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by the Supreme Court in F.A. Sapa v. Singora the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (see Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and A.S. Subbaraj v. M. Muthiah). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried............"
After making the aforesaid observations that unless the defect in verification of the petition is not rectified it cannot go for trial, the Hon'ble Apex Court further observed that in the case where allegation of corrupt practice has been made and affidavit, as required by provisions of Section 83 of the Act, 1950, is not filed in the required form, the same could not have been enquired into and tried at all.
The same view has again been reiterated by the Hon'ble Apex Court in the latest decision in the case of P.A. Mohammad Riyas vs. M.K. Raghavan & others, (2012) 5 SCC 511 holding that although Section 83 of the Act, 1950 has not been mentioned in sub-section (1) of Section 86, in the absence of proper verification, it must be held that the provisions of Section 81 had also not been fulfilled and the cause of action for the election petition remained incomplete. In the said case before the Hon'ble Apex Court, although allegations of corrupt practice was made by the election petitioner against the returned candidate but the petition itself was not verified in the manner specified in Order VI Rule 15 of the Code as it was not accompanied by an affidavit as required by clause (4) of the said Rule. The argument advanced that since there was already an affidavit with respect to corrupt practice alleged in the petition as required by proviso to Section 83(1)(c) of the Act, 1950 and filing of two separate affidavit; one under Order VI Rule 15(4) of the Code and other under the provisions of Section 83(1) of the Act in respect of the same matter would render one of them otiose was rejected by the Hon'ble Apex court and it was held that the cause of action cannot be said to be complete in the absence of proper verification as contemplated in Section 83. The Hon'ble Apex Court held that the defect was curable but since opportunity to cure the defect was not availed, the judgment of the High Court dismissing the election petition was upheld and the appeal was dismissed. It may be relevant to quote the paragraph 46 & 47 of the reports, which reads as under :
"46. Mr. Venugopal's submission that, in any event, since the election petition was based entirely on allegations of corrupt practices, filing of two affidavits in respect of the selfsame matter, would render one of them redundant, is also not acceptable. As far as the decision in F.A. Sapa case is concerned, it has been clearly indicated that the petition, which did not strictly comply with the requirements of Section 83 of the 1951 Act, could not be said to be an election petition as contemplated in Section 81 and would attract dismissal under Section 86(1) of the 1951 Act. On the other hand, the failure to comply with the proviso to Section 83(1) of the Act rendered the election petition ineffective, as was held in Hardwari Lal case and the various other cases cited by Mr. P.P. Rao.
47. In our view, the objections taken by Mr. P. P. Rao must succeed, since in the absence of proper verification as contemplated in Section 83, it cannot be said that the cause of action was complete. The consequences of Section 86 of the 1951 Act came into play immediately in view of sub-section (1) which relates to trial of election petitions and provides that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the 1951 Act. Although Section 83 has not been mentioned in sub-section (1) of Section 86, in the absence of proper verification, it must be held that the provisions of Section 81 had also not been fulfilled and the cause of action for the election petition remained incomplete. The petitioner had the opportunity of curing the defect, but it chose not to do so."
Reference in this regard may also be made to another decision of the Hon'ble Apex Court in the case of Regu Mahesh v. Rajendra Pratap Bhanj Dev & another, (2004) 1 SCC 46. In the said case, an application was filed by the returned candidate before the Election Tribunal under Order VI Rule 16 and under Order VII Rule 11 of the Code and Section 83 of the Act, 1950 praying for rejection of the election petition. One of the ground taken in the said application was that verification done did not confirm the requirements as laid down in the Statute. One of the reasons for dismissal of the election petition by the Tribunal was that verification was extremely vague and it was not stated that what was the source of information, on which the pleadings were based and which part really was on the basis of personal knowledge and information was also not indicated. The Hon'ble Apex Court after noticing the provisions of Order VI Rule 15 of the Code observed that sub-rule (2) of Rule 15 prescribes, a person making a verification is required to specify by reference to the numbers of paragraphs of the pleadings what he believes on his own knowledge, and what he reveals upon information received and believed to be true. This, admittedly, was not done in the said case. After noticing the ratio of the decision of F.A. Sapa (Supra), H.D. Revana v. G. Puttaswamy Gowda, (1999) 2 SCC 217 and Vijay Laxmi Sadho (Dr) v. Jagdish, (2001) 2 SCC 247, in paragraph 12, 15 & 16, it has been held as under :
"12. It is, therefore, a settled position in law that defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is a gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect."
15. The case at hand has great similarity with the decision in R.P.Moidutty's case (supra). Not only defects in the verification/affidavit were pointed out, but they were pressed into service seeking dismissal of the election petition. The appellant stated in his reply that he was filing separate petition with permission for leave of the High Court for amending the verification. But that was not done and the appellant continued to stick to his stand that since corrupt practice was not alleged, there is no need for making any amendment. The importance of verification has been noted by this Court in several decisions. In Virendra Kumar Saklecha v. Jagjiwan and Ors. (1972(1) SCC 826) it was noted as under:
"The importance of setting out the source of information in affidavits came up for consideration before this Court from time to time. One of the earliest decisions is State of Bombay v. Purushottam Jog Naik (AIR 1952 SC 317) where this Court endorsed the decision of the Calcutta High Court in Padmadbati Dasi v. Rasik Lal Dhar ((ILR) 37 Cal. 259) and held that the sources of information should be clearly disclosed. Again in Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors. (AIR 1967 SC 295) this Court deprecated slip shod verifications in an affidavit and re-iterated the ruling of this Court in Bombay's case (supra) that verification should invariably be modeled on the lines of Order 19, Rule 3 of the Code 'Whether the Code applies in terms or not'. Again in A.K.K. Nambiar v. Union of India and Anr. (1969 (3) SCC 864), this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.
The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the source of information. The other point of view is that the election petition will not be able to make any departure from the sources or grounds, if there is any embellishment of the case it will be discovered".
16. The Constitution Bench in State of Bombay v. Purushotham (AIR 1952 SC 317) noted as follows:
"The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modeled on the lines of Order 19, Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the source of information should be clearly disclosed. We draw attention to the remarks of Jenkins C.J. and Woodroffe, J, in Padmabati Dasi v. Rasik Lal Dhar (37 Cal. 259) and endorse the learned Judges' observations". "
The law thus stand settled by the pronouncement of the Hon'ble Apex Court that in view of the provisions of Section 83(1)(c) of the Act, 1950, an election petition is required to be verified in the manner as laid down in Order VI Rule 15 of the CPC for verification of the pleadings. Any such defect is curable. But in case the petitioner does not choose to remove the defect and persists in pursuing the petition without proper verification, such an election petition is liable to be dismissed at the threshold.
In the case in hand, as already noticed above, the verification clause of the election petition as well as schedule and annexures is not in accordance with the provision of Order VI Rule 15 and unless the defect in verification is rectified, the petition cannot be tried. Despite a specific objection in this regard having been pressed into service seeking dismissal of the election petition and the petitioner having contended that the defect is curable, neither any effort has been made to cure the defects nor any time has been sought for the said purpose. On the contrary, after the argument on this issue was over on 29.1.2015, hearing on issue no. 3 and 4 and the application under Order VI Rule 16 and Order VII Rule 11 continued till 31.10.2015 and also during the period the judgment was reserved, the petitioner neither made any effort to remove the defect in verification nor has made any prayer for grant of time for the purpose.
It is settled legal position by authoritative pronouncements that statutory requirement prescribed under the Statute relating to elections have to be strictly adhered and followed. Since election disputes are statutory proceedings unknown to common law and thus doctrine of equity does not apply to election disputes. All the technicalities prescribed under the Statute have been provided to safeguard the purity of election and the courts are under an obligation to enforce them with all rigours and not to dilute them.
In view of above, on account of continuing defect in verification of the petition, the annexures and the schedule attached thereto, the petition cannot be said to be in compliance of provisions of Section 83 of the Act, 1950 and thus the cause of action remains incomplete, and the election petition is liable to be dismissed at the threshold and it is not necessary to enter into and examine the merits of other rival contentions advanced on behalf of contesting parties on two issues and applications.
The Election Petition accordingly stands dismissed.
Dt. 12.2.2016 nd.