(C.M. Application No.115252 of 2021-Application for exemption from publication of notice in Newspaper) (C.M. Application No.118492 of 2021-Application for extension of time to file reply to the application for exemption from publication filed by petitioner) (C.M. Application No.118015 of 2021-Reply/Objection to aforesaid application no. 11252 of 2021)
1. C.M. Application No.115252 of 2021 is filed by the petitioner praying that he may be exempted from publishing notice in Hindi daily Dainik Jagran, Ambedkar Nagar Edition, as was directed by the Court by it's orders dated 18.7.2019 and 23.9.2019.
2. Against the aforesaid application, objections are filed on behalf of respondent, which bears C.M. Application No.118015 of 2021 and an Application for condoning delay in filing objections is C.M. Application no.118492 of 2021.
3. I have heard the petitioner, who appears in person, and Sri Sudeep Seth, learned Senior Advocate, assisted by Sri Sarvesh Kumar Tiwari, Advocate, appearing for the respondent.
4. The facts with regard to publication of notice in newspaper are, that, notices on the election petition were issued by order-dated 18.7.2019. The Court directed that notices shall be issued by ordinary post, registered A.D. and shall also be published simultaneously in a newspaper having wide circulation in the area to be selected by the Registry of the Court. The petitioner deposited an amount of Rs.250/- on 22.07.2019, as required under Rule 6(b) of Chapter XV-A of the Allahabad High Court Rules, 1952 (for short ''the High Court Rules'). The Senior Registrar of this Court by order-dated 23.7.2019 permitted the publication in Hindi daily Dainik Jagran widely circulated in the area. Thereafter, office by its report-dated 4.9.2019 reported that notices were provided to the petitioner for publication in Hindi daily Dainik Jagran. Notices were also sent to the respondent by other modes as directed by the court, which stand served upon the respondent. However, the petitioner has returned the notice for publication through his letter dated 8.8.2019, stating his inability to get the notice published in local Dainik Jagran, with request to the office to get the same published. The report also notes that a letter is sent to the Editor/Manager, Advertisement, Hindi daily newspaper ''Dainik Jagran' for providing quotation/charges for publication of notice and its reply is still awaited. The matter was placed before the Court; whereon the Court considered the office report dated 4.9.2019 and directed the matter to be placed on 23.9.2019. On 23.9.2019, the Court found that quotation is received from the Manager (Marketing), Dainik Jagran and directed that notice be published in newspaper as per order of the Senior Registrar on deposit of necessary charges and directed the case to be listed on 31.10.2019. On 30.10.2019, office submitted a report that ''in compliance of Hon. Court order dated 23.9.2019, a letter was sent to the petitioner but petitioner has not deposited the necessary charges for publication of notice, hence notice could not be published in the news paper'. Thereafter the matter came up before the Court on 31.10.2019. On the said date, the petitioner appeared but the case was adjourned on the illness slip of learned counsel for respondent. On the dates fixed thereafter, learned counsel for the respondent took time for filing the written statement or otherwise filed adjournment applications. The case was also delayed on certain dates due to COVID pandemic situation. It was taken up on 6.9.2021 and an oral objection was raised by the counsel for the respondent that despite order of this court dated 23.9.2021 petitioner has not deposited the money for publication of notice in newspaper. On the said objection petitioner took two days time for filing appropriate application.
5. In furtherance of the said order, petitioner on 8.9.2021 filed the present application for exemption from publication of notice. Petitioner in Para-5 of the application has disclosed the material facts with regard to non-deposit of money by him. It states, that, the petitioner had deposited the initial amount of Rs.250/- for publication of notice as per Rule 6(b) of Chapter XV-A of the High Court Rules. The said notice was to be published through the Senior Registrar, but the concerned office gave notice for publication to the petitioner, which was duly received by him on 27.09.2019. The petitioner ignored the irregularity committed by the office and approached the Dainik Jagran, Ambedkar Nagar Office on 3.8.2019 for publication. Despite the fact that he fulfilled all the formalities notice was not published either on 4th or 5th of August 2019, and was returned to the petitioner on 6.8.2019 by Dainik Jagran, Ambedkar Nagar Office. In the said background, petitioner returned the said notice along with covering letter to the Deputy Registrar, High Court, Lucknow by registered post dated 8.8.2019. Thereafter, on 11.9.2019, the sole respondent had put in appearance through counsel. Again, the court by order-dated 23.9.2019 directed the office to take steps for publication of notice. The Senior Registrar on 28.09.2019 obtained a quotation of Rs. 23,717/- from Dainik Jagran, Lucknow instead of Dainik Jagran, Ambedkar Nagar. Since the quotation was wrongly obtained from Dainik Jagran, Lucknow office, hence, the petitioner did not deposit Rs.23,717/- in the Registry. Since the sole respondent had already appeared in the matter and filed written statement along with an application for condoning the delay, hence, the objection raised by the respondent is unwarranted and is only for delaying the proceedings. In the aforesaid background, the petitioner should be exempted from depositing further cost for publication of notice.
6. During the course of argument, the petitioner again referred to the contents of his application and submitted that since service upon the sole respondent has already taken place, there is no need for publication of notice. He further submits that since the Senior Registrar had wrongly taken the quotation from Dainik Jagran, Lucknow office, therefore also, he did not deposit the money. He fairly admitted that he never moved any application before the Senior Registrar or before the Court objecting to the amount of quotation or office from where quotation was taken. His submission is that in the given circumstances, petitioner is not required to deposit money, as service upon respondent has already taken place, and objection raised by the respondent is only to delay the proceedings.
7. Sri Sudeep Seth, learned Senior Advocate, appearing for the respondent, submits that the Court had repeatedly asked the petitioner to publish the notice in the news paper and if he had any objection with regard to the amount or any other issue, the only course open for the petitioner was to move an appropriate application, either before the Court or before the Senior Registrar. He never moved any such application either before the Court or before the Senior Registrar. Therefore, he has knowingly and willingly failed to comply with the direction of the Court. The objection raised now by the petitioner with regard to amount in quotation is an afterthought, only to cover up his failure to comply with the direction of this Court. The law with regard to requirement of publication of notice is settled by number of judgments of the Supreme Court and this Court. Reliance is placed upon the judgment of this Court dated 17.7.2015 in the case of Dr. Mohammad Ismail Faruqui vs. Shri Rajnath Singh: Election Petition No.5 of 2014.
8. I have considered the submissions made by the parties. In case of Dr. Mohammad Ismail Faruqui also, the Court directed for service of notice by other modes as well as by publication in a newspaper. The petitioner in the said case took steps for service through ordinary post as well as by registered post. He was informed the cost of publication in chosen newspaper to be Rs. 9024/-. The petitioner moved an application dated 8.4.2015, supported by an affidavit, with the prayer that publication of notice in the news paper may be dispensed with, on the ground that it was not possible for him to arrange such huge amount of money. In the said case also a ground was taken that the respondent otherwise also stands served with the notice sent by registered post AD and, thus, there is no necessity of publication. This Court after considering the submissions and the earlier settled law held:
"The submissions advanced by the petitioner and learned counsel for the contesting respondent have been considered by the Court.
The first submission of the petitioner that as the dispute is between the petitioner and the sole respondent, the Court should dispense with the publication of the notice in the newspaper since the respondent is represented by a counsel cannot be accepted.
As noticed above, Rule 3 contained in Chapter XV-A of the Rules provides that every election petition shall be presented to the Registrar. Rule 5 provides that the Bench may direct issue of notice to the respondent. Such notice shall also direct that if the respondent wishes to put up a defence he shall file his written statement together with a list of all documents, whether in his possession or power or not, upon which he intends to rely as evidence in support of his defence on or before the date fixed; and further, that in default of appearance being entered on or before the date fixed in the notice the election petition may be heard and determined in his absence. Sub-rule (a) of Rule 6 provides that notice for the respondent shall be issued by ordinary process and simultaneously by registered post. Sub-rule (b) of Rule 6, however, provides that the notice of the election petition shall also be simultaneously published in a newspaper selected by the Registrar. The Registrar had selected a newspaper and the petitioner was duly informed of this fact and the amount that he was required to deposit for publication of the notice. It is at that stage that the petitioner moved an application for dispensation of the publication of the notice in the newspaper.
Dispute in an election petition is not restricted to the petitioner and the respondent alone but involves the entire constituency and every interested person should have notice of the presentation of the election petition. This is what was observed by the Supreme Court in Inamati Mallappa Basappa vs. Desai Basavaraj Ayyappa and others, AIR 1958 SC 698 (supra). The Supreme Court considered this issue in the light of the unamended provisions where the election petition was required to be presented before the Election Commission. The Supreme Court, after placing reliance upon its earlier decisions, observed that by publication of notice in the official gazette not only the respondents to the petition get notice but the entire constituency as a whole receives such a notice so that each and every voter of the constituency and all parties interested become duly aware of the presentation of the election petition. The whole constituency is thus alive to the fact that the result of the election duly declared has been questioned on various grounds with the likely result that the election of all or any of the returned candidates may be declared void and the petitioner or any other candidate declared duly elected in place of the returned candidate. The constituency, therefore, has a vital interest in the proceedings before the Tribunal which have a characteristic of their own different from the ordinary civil proceedings. Paragraphs 10 and 11 of the judgment are reproduced below:
"10. It is necessary at the outset, therefore, to understand the nature and scope of an Election Petition. As has been observed by us in the judgment just delivered in Kamaraja Thevar v. Kunju Thevar, Civil Appeals No.763 & 764 of 1957 and Civil Appeal No.48 of 1958 : (A.I.R. 1958 S.C. 687) (A):-
"An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power."
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"An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process."
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"An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested."
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11. An Election Petition presented to the Election Commission is scrutinised by it and if the Election Commission does not dismiss it for want of compliance with the provisions of Section 81, Section 82 or Section 117 of the Act, it accepts the same and causes a copy thereof to be published in the official gazette and a copy thereof to be served by post on each respondent. The respondents to the petition not only get notice of the same but the constituency as a whole receives such notice by publication thereof in the official gazette so that each and every voter of the constituency and all parties interested become duly aware of the fact of such Election Petition having been presented. A copy of the Election Petition published in the official gazette would also show to all of them that the petitioner in a particular Election Petition, in addition to claiming a declaration that the election of all or any of the returned candidates is void, has also claimed a further declaration that he himself or any other candidate has been duly elected. The whole constituency is thus alive to the fact that the result of the election duly declared is questioned on various grounds permitted by law with the likely result that the election of all or any of the returned candidates may be declared void and the petitioner or any other candidate may be declared duly elected, in place and stead of the returned candidate. The constituency may have an interest in either maintaining the status quo or if perchance the election of the returned candidate is set aside, in seeing that some other deserving candidate is declared elected in his place and stead and not necessarily the petitioner or any other candidate sponsored by him whose election could be challenged on any of the grounds mentioned in Section100 (1). It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunals with a characteristic of their own and differentiates them from ordinary civil proceedings. ................."
(emphasis supplied) This view was reiterated by the Supreme Court in Dr. P. Nalla Thampy Thera vs. B.L. Shanker and others, AIR 1958 SC 135 (supra) and the contention that the view taken by the Supreme Court in Inamati Mallappa Basappa (supra) that the election dispute involves the entire constituency was not correct was not accepted. The relevant paragraph 22 of the decision in Dr. P. Nalla (supra) is reproduced below :
"22. The ratio of this decision as also the observations in Basappa's case (AIR 1958 SC 698), the appellant contends are, wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded. We do not think the appellant's contention can be accepted. The earlier decisions of this Court do not in any way militate against the view taken in Dhoom Singh's case (supra) and the observations made in Basappas's case (supra). Those decisions were not concerned with the question as to whether an election petition can be dismissed for default. The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code wold be applicable. About eight years back this Court had occasion to point out that if the intention of the legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act. We find that even earlier in Sheodhan Singh v. Mohan Lal Gautam, (1969) 3 SCR 417 at p. 421: (AIR 1969 SC 1024 at p. 1026), this Court had stated:
"From the above provisions it is seen that in an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds"
(emphasis supplied) In view of the aforesaid observations made by the Supreme Court in Inamati Mallappa Basappa (supra) and Dr. P. Nalla (supra) that dispute in an election petition is not centered around merely between the petitioner and the respondents but the entire constituency, the publication of the notice in the newspaper is necessary. The contention of the petitioner that the publication of the notice in the newspaper should be dispensed with since the respondent has been served cannot, therefore, be accepted.
The second contention of the petitioner is that since the petitioner does not have the means to pay the cost for publication in the newspaper selected by the Registrar of the Court, the Court can order for deferred payment as was done in Election Petition No.4 of 2014.
It is not possible to accept this contention of the petitioner. Rule 6(b), clearly requires notices of the election petition to be simultaneously published in the newspaper selected by the Registrar. Rule 6(c) also requires that notices, process fee, charges and a sum of Rs.250/- as an initial deposit on account of cost of publication in the newspaper shall be supplied by the petitioner within seven days of the order directing notice to issue. Even this amount was not deposited by the petitioner. Rule 6(d) also requires that where the cost of publication in the newspaper exceeds Rs.50/-, the Registrar shall call upon the petitioner to deposit the excess amount in the Court within the time fixed by him. The Registrar had called upon the petitioner to deposit Rs.9024/-.
As noticed above, while dealing with the first contention of the petitioner, it has been found that publication in the newspaper is to ensure that the entire constituency is made aware of the pendency of the election petition. In this view of the matter deferred payment would not serve any purpose. The submission of the petitioner that even the amount of Rs.250/- which is required to be deposited in terms of Rule 6(c) is on higher side, cannot also be accepted as this is certainly less than the amount that is actually required for publication of the notice.
This election petition was presented before the Registrar of the Court on 27 June 2014. Notice was issued on 6 February 2015. The Court has to be satisfied that the grounds mentioned by the petitioner in the application filed for dispensing the publication of the notice in the newspaper are bona fide grounds and the intention behind moving of the application is not to merely avoid the deposit of the amount for publication in the newspaper. Rule 6(c) provides that notices, process fee, charges and a sum of Rs.250/- as an initial deposit on account of the cost of publication in a newspaper shall be supplied by the petitioner within seven days of the order directing notice to issue. Rule 6(c) further provides that in default, the election petition shall be laid before the Bench for orders and the Bench may reject the election petition unless for sufficient cause it grants further time. The Court is of the opinion that sufficient cause has neither been placed nor does it exist for dispensing with the publication of the notice in the newspaper and that by filing the application, the petitioner is merely avoiding the deposit of amount for publication in the newspaper.
The application filed by the petitioner for dispensation with the publication of the notice in the newspaper is, therefore, without any substance and deserves to be rejected.
Thus, for all the reasons stated above, Civil Misc. Application No.32181 of 2015 filed by the petitioner for dispensing with the publication of the notice in the newspaper is rejected.
As a result of the rejection of the application, the election petition stands dismissed."
9. The aforesaid case squarely covers the present case. The necessity of publication is duly considered by the Supreme Court and is reiterated by this Court. The failure in publication goes to the root of the matter.
10. In the present case, the petitioner has failed to take steps for publication of notice. The first ground taken by the petitioner for seeking exemption from publication of notice is that the respondent stands served. The said aspect is fully covered by the judgment in the case of Dr. Mohammad Ismail Faruqui (supra), as discussed above.
11. So far as the next submission of the petitioner, that, the Senior Registrar had taken the quotation from Dainik Jagran, Lucknow office instead of Dainik Jagran, Ambedkar Nagar office, is concerned, in case the petitioner had any such objection, he ought to have raised the same at appropriate time before the Senior Registrar or moved an appropriate application before the Court. He failed to take any such steps. Even now, when it was pointed out by the respondent, the petitioner has only moved an application for exemption from publication. There is no prayer made by the petitioner that he is ready and willing to deposit the money for publication. Even during the course of arguments, the petitioner, submitting his case in person, did not reply to the query of the Court, whether he is now willing to deposit the money for publication of notice. His only reply has been that now there is no need for publication of notice.
12. In the given facts and circumstances of the case, I find that the petitioner has failed to comply with the orders dated 18.7.2019 and 23.9.2019 of this Court for publication of notice. He has not sought any condonation of delay in complying with the said orders of the court or shown willingness to make publication even now. Rather he has only sought an exemption from publication of notice. The said exemption cannot be granted by this Court as is already settled by this Court in the case of Dr. Mohammad Ismail Faruqui (supra) and judgments of the Supreme Court referred to in the said case.
13. Therefore, the application for exemption is liable to be rejected and is hereby rejected.
14. In view thereof, the other two applications also stand disposed of.
(C.M. Application No.118050 of 2021-Application for extension of time to file an application under Order VII Rule 11 of Code of Civil Procedure, 1908 on behalf of the respondent/returned candidate) (C.M. Application No.118019 of 2021-Application under Order VII Rule 11 of Code of Civil Procedure, 1908 on behalf of the respondent/returned candidate)
15. The respondent has filed these two applications. The first application is for condonation of delay and the second is an application under Order VII Rule 11 of CPC. The facts with regard to delay are that on 6.9.2021, when before the Court respondent orally raised his objections that petitioner has failed to make publication of notice in the news paper and other preliminary objections for rejecting the election petition, petitioner prayed for two days' time to file appropriate application for the publication purposes. While granting the said time to the petitioner, the Court also granted two days' time to the respondent to file reply to such an application filed by the petitioner and also permitted respondent to file his preliminary objections within two days. Permission was also granted to the petitioner to file reply to such preliminary objections. The case was fixed for 13.9.2021. On that date, Court again permitted all applications to be filed by the next day and 15.9.2021 was fixed in the case. The applications were duly filed on 14.9.2021.
16. Sri Sudeep Seth, learned Senior Advocate, on the above facts submits; (i) there is no delay in filing of the applications as the applications are filed within the time extended by the Court by order dated 13.9.2021; (ii) there is no period of limitation in filing the application under Order VII Rule 11 of CPC; (iii) even presuming there is delay of a day or two, the same may be condoned as the same is not intentional. He submits that the Photo Affidavit Centre operated by the High Court was opened for a limited period and the Oath Commissioner was not available and hence there was delay in filing the applications.
17. Elaborating his argument, Mr. Seth submits, that, the law with regard to Order VII Rule 11 of CPC is settled since long and an application under Order VII Rule 11 of CPC can be filed at any stage of the proceedings. Once such an application is filed, the Court is bound to dispose of the same before proceeding with the trial. Therefore, the fact that respondent has already filed his written statement along with a delay condonation application would not in any manner impact his right to file an application under Order VII Rule 11 of CPC. Reliance is placed upon the judgment of the Supreme Court in R.K. Roja vs. U.S. Rayudu and another, (2016) 14 SCC 275.
18. On the other hand, the petitioner strongly objects to the delay and submits that the election laws are held to be strict in nature and the respondent should not be granted any relaxation. The time initially given by the court was two days and any objections could only be filed within the said two days only. The Limitation Act is not applicable and thus the application for condonation of delay, filed under Section 5 of the same, is also not maintainable. The petitioner also submits that since the respondent has already filed his written statement along with a delay condonation application, therefore, now the application under Order VII Rule 11 of CPC cannot be filed. In support of his submissions petitioner has relied upon K. Venkateswara Rao and another vs. Bekkam Narsimha Reddy and others, AIR 1969 SC 872, Hukumdev Narain Yadav vs. Lalit Narain Mishra (1974) 2 SCC 133 and G.V. Sreerama Reddy and another vs. Returning Officer and others (2009) 8 SCC 736.
19. In the case of R.K. Roja (supra), also arising from an election petition, Supreme Court considered the manner and stage of filing an application under Order VII Rule 11 CPC. Relevant portion of the said judgment reads:
"2. ...........On receipt of notice in the election petition, the appellant filed Annexure P-4, application for rejection of the petition, under Order 7 Rule 11 CPC by way of a counter-affidavit. It appears that the Court declined to consider the same on the ground that there was no formal application and hence proceeded with the trial. At that stage, the appellant filed Annexure P-5, formal application for rejection of the election petition on the ground that the election petition did not disclose any cause of action. That application as per the impugned order dated 27-4-2016 was posted along with the main petition, and thus, the appeal.
3. The High Court has taken the view that the same "was not filed at the earliest opportunity" and that the appellant was not diligent in prosecuting the application. Therefore, the Court took the view that "... this application filed by the first respondent shall be decided at the time of final hearing ...".
4. We are afraid that the stand taken by the High Court in the impugned order cannot be appreciated. An application under Order 7 Rule 11 CPC can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable v. Charity Commr. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] : (SCC p. 146, para 10) "10. ... The trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial."
The only restriction is that the consideration of the application for rejection should not be on the basis of the allegations made by the defendant in his written statement or on the basis of the allegations in the application for rejection of the plaint. The court has to consider only the plaint as a whole, and in case, the entire plaint comes under the situations covered by Order 7 Rules 11(a) to (f) CPC, the same has to be rejected.
5. Once an application is filed under Order 7 Rule 11 CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (election petition in the present case) is only to be rejected at the threshold."
20. The law thus is settled that an application under Order VII Rule 11 can be filed at any stage of the proceedings. There is no limitation applicable in filing of an application under the said rule. The defendant can also file such an application even after filing of the written statement. So far as the judgments of the Supreme Court relied upon by the petitioner in the case of K. Venkateswara Rao and another vs. Bekkam Narsimha Reddy and others, AIR 1969 SC 872, wherein the Supreme Court has held in para-14: ''in our opinion however the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act.' and Hukumdev Narain Yadav vs. Lalit Narain Mishra (1974) 2 SCC 133, in Para-25 of which the Supreme Court again held that ''the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial and in this view, it is necessary to consider whether there are any merits in the application for condonation of delay', both of which are again followed by the Supreme Court in G.V. Sreerama Reddy and another vs. Returning Officer and others (2009) 8 SCC 736 are concerned, suffice is to say that since the law is long settled and again reiterated in R. K. Roja (supra) that there is no time limit provided for filing an application under Order VII Rule 11 of the CPC and the court is bound to decide the same before proceeding with the trial of the case, thus, there is no force in the submission of the petitioner that the application of respondent under Order VII Rule 11 CPC should be rejected on ground of delay. There was no need for the respondent to file the delay condonation application along with his application filed under Order VII Rule 11 CPC. Even otherwise the applications are filed within time finally allowed by the court by order dated 13.9.2021 and thus, on facts also, there is no delay in filing the applications by the respondent. Accordingly, C.M. Application No.118050 of 2021 stands disposed of.
21. In view of above, this Court is bound to consider the application filed by the respondent under Order VII Rule 11 of CPC on its merits.
22. The respondent in his application under Order VII Rule 11 of CPC has taken the following objections:
(i) The election petition lacks any specific paragraph stating when and how the cause of action arose and more particularly, the petitioner has no cause of action against the respondent;
(ii) The petition is neither signed nor verified in the manner prescribed in Order VI Rule 15 of C.P.C.
(iii) There are allegations of corrupt practice in Para 6(32) and Ground 7(R) of the election petition. However, there is no affidavit filed by the petitioner in support of the election petition, as is mandatorily required by Section 83 of Representation of People Act (for short ''the RP Act').
(iv) There is no original petition filed before this Court and the election petition filed by the petitioner, on which he has affixed the Court fee and office has submitted its report, is only a true copy, so attested by the petitioner.
(v) The petitioner has failed to publish notice in the newspaper as is mandatorily required under law and hence, the petition is barred by law and is not maintainable. (This issue is already considered above while deciding the application filed by the petitioner for exemption from making publication)
23. On the aforesaid grounds, learned counsel for the respondent submits that election petition is liable to be dismissed at this stage only. The petitioner has refused to file any reply to the application filed under Order VII Rule 11 of CPC submitting that he would only make oral submission against the same.
24. On ground (i), submission of learned counsel for the respondent is that there is no paragraph in the entire election petition specifying when the cause of action arose to the petitioner to file the petition. It was incumbent upon the petitioner to put such a specific paragraph in the petition. In reply, petitioner submits that though technically such a specific paragraph may be missing, but a reading of the entire election petition shows that cause of action arose when his nomination was illegally rejected and when election was held and result was declared without permitting him to contest the election. The said facts are narrated at length in the election petition. To understand the cause of action entire petition is to be taken into consideration and the argument of the counsel for the respondent, that court should find one paragraph in the petition with regard to cause of action and ignore the pleadings in their entirety, is not sustainable in law. I do not find force in the submission of the respondent with regard to cause of action. To find out the cause of action pleadings of the petitioner in their entirety are to be considered. There is no such law that requires that the petition should have a specific paragraph stating specifically the dates on which cause of action accrued to the petitioner. For the said purposes, the petition in its entirety has to be read. A reading of the election petition shows that there are sufficient pleadings detailing cause of action to the petitioner for filing the election petition and the dates when the cause of action accrued to the petitioner. The said submission of the respondent is rejected.
25. Ground (ii) raised by learned counsel for the respondent is that the verification made by the petitioner is in violation of provision of Order VI Rule 15 of CPC. It is submitted by him that verification is neither made at the foot of the plaint, but is made on a separate sheet, nor it is made paragraph-wise, as prescribed under Order VI Rule 15 of CPC, therefore, the same is in violation of Section 83(1)(c) of the RP Act. As per the respondent, under Order VI Rule 15(2) of CPC, the verification shall be by reference to numbered paragraphs of the pleadings, which must be verified either on personal knowledge or upon information received or believed to be true. In the present case, verification states that; "contents made in material facts as well as grounds of the present election petition are true to me in my personal knowledge and nothing material herein has been concealed and no part of it is false". Reliance is also placed upon Section 83(1)(c) of the RP Act, which reads as follows:
"83(1). An election petition-
(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]"
26. Opposing the same, petitioner submits that Section 86(1) of the RP Act provides that High Court shall dismiss an election petition that does not comply with the provisions of Sections 81, 82 or 117 of the RP Act. It is not provided that violation of Section 83 would also result in outright dismissal of an election petition. Therefore, even presuming that there is partial noncompliance in verification, the same would not be fatal to the election petition and petitioner can be permitted to correct the same. In support of his case, he places reliance upon the judgments of the Supreme Court in the case of Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and another (2006) 1 SCC 75; Sheo Sadan Singh vs. Mohan Lal Gautam, 1969(1) SCC 408; Mairembam Prithviraj alias Prithviraj Singh vs. Pukhrem Sharatchandra Singh (2017) 2 SCC 487; Ajay Maken vs. Adesh Kumar Gupta and another (2013) 3 SCC 489; U.S. Sasidharan vs. K. Karunakaran and another (1989) 4 SCC 482; C.P. John vs. Babu M. Palissery and others (2014) 10 SCC 547.
27. I have considered the submissions of the parties. The Supreme Court has repeatedly considered the law with regard to curable and incurable defects of an election petition. Lastly, in the case of Saritha S. Nair vs. Hibi Eden, 2020 SCC Online SC 1006 (SLP (Civil) No.10678 of 2020 dated 9.12.2020), a three Judges Bench of the Supreme Court, referring to its earlier pronouncements, again considered the said issue. Relevant paragraphs for our purposes read:
"21. Chapter-II, Part-VI of the Representation of the People Act, 1951, contains provisions for "Presentation of election petitions to High Court" and Chapter III contains provisions for "Trial of election petitions". Section 86(1), with which Chapter-III begins, obliges the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. The dismissal of an election petition under Section 86(1) is deemed by the Explanation under Section 86(1) to be a decision under Section 98(a). Section 98 speaks about 3 types of orders that could be passed at the conclusion of the trial of an election petition. They are:-
(i) The dismissal of the election petition; or
(ii) A declaration that the election of the returned candidate is void; or
(iii) A declaration not only that the election of the returned candidate is void, but also that the petitioner or any other candidate was duly elected.
22. It is important to note that the above 3 different types of decisions under Section 98, can be rendered by the High Court only at the conclusion of the trial. But the dismissal under Section 86(1) is an exception. The reference in the Explanation under Section 86(1) to Section 98(a), makes it clear that the power of the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, is available at the pre-trial stage.
28. It is relevant to note that the Act keeps in two separate compartments--
(i) the presentation of election petitions; and
(ii) the trial of election petitions.
The presentation of election petitions is covered by Sections 80 to 84 falling in Chapter-II. The trial of election petitions is covered by Sections 86 to 107 and they are contained in Chapter-III.
29. This compartmentalization, may be of significance, as seen from 2 facts namely:--
(i) That under Section 80 no election shall be called in question except by an election petition presented in accordance with the provisions of "this part"; and
(ii) That a limited reference is made to the provisions of the Code of Civil Procedure, 1908 in Chapter-II, only in places where signature and verification are referred to.
35. Section 86(1) empowers the High Court to dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117 and it does not include Section 83 within its ambit. Therefore, the question whether or not an election petition which does not satisfy the requirements of Section 83, can be dismissed at the pre-trial stage under section 86(1), has come up repeatedly for consideration before this Court. We are concerned in this case particularly with the requirement of Clause (c) of Subsection (1) of Section 83 and the consequence of failure to comply with the same.
36. In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR (1964) SC 1545, a preliminary objection to the maintainability of the election petition was raised on the ground that the verification was defective. The verification stated that the averments made in some paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal and other sources. There was no statement that the advice and information received by the election petitioner were believed by him to be true. Since this case arose before the amendment of the Act under Act 47 of 1966, the election petition was dealt with by the Tribunal. The Tribunal held the defect in the verification to be a curable defect. The view of the Tribunal was upheld by this Court in Murarka Radhey Shyam Ram Kumar (supra). This Court held that "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 for the verification of pleadings as required by Clause (c) of Sub-section (1) of Section 83 is fatal to the maintainability of the petition".
37. The ratio laid down in Muraraka was reiterated by a three member Bench of this Court in F.A. Sapa v. Singora (1991) 3 SCC 375 holding that "the 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". It was also held in F.A. Sapa that "since Section 83 is not one of the three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Section 81".
38. In F.A. Sapa (supra) this Court framed two questions in paragraph 20 of the Report, as arising for consideration. The first question was as to what is the consequence of a defective or incomplete verification. While answering the said question, this Court formulated the following principles:--
(i) A defect in the verification, if any, can be cured
(ii) It is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true
(iii) If the respondent desires better particulars in regard to such averments or allegations, he may call for the same, in which case the petitioner may be required to supply the same and
(iv) The defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under section 81(3) as indicated earlier."
39. It was also held in F.A. Sapa (supra) that though an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial, the defective verification of a defective affidavit may not be fatal. This Court held that the High Court should ensure its compliance before the parties go to trial. This decision was followed by another three-member Bench in R.P. Moidutty v. P.T. Kunju Mohammad (2000) 1 SCC 481.
40. In Sardar Harcharan Singh Brar v. Sukh Darshan Singh (2004) 11 SCC 196, this Court held that though the proviso to Section 83(1) is couched in a mandatory form, requiring a petition alleging corrupt practice to be accompanied by an affidavit, the failure to comply with the requirement cannot be a ground for dismissal of an election petition in limine under Section 86(1). The Court reiterated that non-compliance with the provisions of Section 83 does not attract the consequences envisaged by Section 86(1) and that the defect in the verification and the affidavit is a curable defect. The following portion of the decision is of significance:
"14. xxxx 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."
41. In K.K. Ramachandran Master v. M.V. Sreyamakumar (2010) 7 SCC 428, this Court followed F.A. Sapa (supra) and Sardar Harcharan Singh Brar (supra) to hold that defective verification is curable. The Court again reiterated that the consequences that may flow from a defective affidavit is required to be judged at the trial of an election petition and that such election petition cannot be dismissed under Section 86(1).
42. Though all the aforesaid decisions were taken note by a two-member Bench in P.A. Mohammed Riyas v. M.K. Raghavan (2012) 5 SCC 511, the Court held in that case that the absence of proper verification may lead to the conclusion that the provisions of Section 81 had not been fulfilled and that the cause of action for the election petition would remain incomplete. Such a view does not appear to be in conformity with the series of decisions referred to in the previous paragraphs and hence P.A. Mohammed Riyas cannot be taken to lay down the law correctly. It appears from the penultimate paragraph of the decision in P.A. Mohammed Riyas (supra) that the Court was pushed to take such an extreme view in that case on account of the fact that the petitioner therein had an opportunity to cure the defect, but he failed to do so. Therefore, P.A. Mohammed Riyas (supra) appears to have turned on its peculiar facts. In any case P.A. Mohammed Riyas was overruled in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776 on the question whether it is imperative for an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1). As a matter of fact, even the filing of a defective affidavit, which is not in Form 25 as prescribed by the Rules, was held in G.M. Siddeshwar to be a curable defect and the petitioner was held entitled to an opportunity to cure the defect.
43. The upshot of the above discussion is that a defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective."
28. In the aforesaid judgment, the Supreme Court reiterated the earlier settled law and again held that any defect in verification of pleadings is a curable defect and the same can be cured. Petitioner can be permitted to remove the same through an appropriate application. The election petition cannot be rejected on the said ground at this stage. Therefore, this submission of the respondent is also rejected.
29. So far as ground (iii) of corrupt practice is concerned, it is strongly submitted on behalf of respondent that in Para 6(32) and Ground 7(R) of the election petition allegations of corrupt practice are made, and thus, it was mandatory for the petitioner to also file an affidavit in support of the said allegations, as mandated under Section 83(1) of the RP Act. Para 6 (32) and Ground 7 (R) of the election petition read as follows:
"6(32). That the petitioner made a serious and detailed complaint through E-mail against the misconduct of R.O. Suresh Kumar, ARO Mahendra Pal Singh and Election Observer Udai Kumar Singh for taking illegal gratification of Rs.3 crore from a Candidate of B.S.P.-S.P. Led. Party for putting only one EVM in place of Two EVM with respect to 20 Candidates which led the R.O. for Improper rejection of Nomination pepers of present petitioner and Eight others to conclude 1 EVM in place of 2, the E-mail was sent to Chief Election Commissioner Election Constitution of India New Delhi on 6th May at 6.36 a.m. and the same was forwarded to the following Authorities.
a. Chief Electoral Officer U.P.
b. Supreme Court of India c. Sr. Judge Hon'ble Justice Pankaj Kumar Jaiswal Lucknow Bench of Allahabad High Court.
A copy of complaint dt. 06.05.2019 is annexed herewith as Annexure No.12 to this Election Petition. (Page Nos.67 to 71)"
"Ground-7(R). Because the Returning Officer with the illegal gratification of Rs.3 Cr. From the B.S.P.-SP led candidate, improperly rejected the nomination papers of present petitioner and 7 other candidates so that in that election only One EVM may be utilized in place of 2 EVM and SC/ST voters may not confuse and ultimately, B.S.P.-S.P. led candidate may win the election from 55 Ambedkar Nagar Parlimentary Constituency."
30. Submission of learned counsel for the respondent is that the above allegations and ground relates to corrupt practice and thus an affidavit must accompany the petition as provided under Rule 94(A) of the Conduct of Election Rules, 1961 (for short ''the Rules'). The said Rule provides that affidavit should be sworn before a Magistrate of First Class or a Notary or a Commissioner of Oaths and shall be filed in Form 25. In the present case, no affidavit is filed along with the petition.
31. Opposing the same, the petitioner submits that it is wrong to suggest that the present election petition is filed on grounds of corrupt practice. In Para-3 of the election petition, it is specifically stated that the election petition is filed on the ground of Section 100(1)(C) of R.P. Act and that is only with regard to improper rejection of nomination. He further submits that a reading of the entire election petition shows that the same is filed on sole ground that the Returning Officer has wrongly rejected his nomination paper. He emphasizes upon the relief clause of the election petition to prove his point in which only prayer made is to declare the election of the returned candidate void and there is no other relief sought. Therefore, the petitioner submits that there is no need to file any affidavit in support of the election petition. He further reiterates his earlier submission that since Section 86 of the RP Act does not provide for rejection of an election petition that is not in consonance with Section 83 of the RP Act, thus even if there is any defect, the petitioner should be permitted to correct the same. The petitioner as well as counsel for the respondent has relied upon the case of F.A. Sapa and others vs. Singora and others (1991) 3 SCC 375, on the issue that in case there are allegations of corrupt practice, the material facts and particulars are required to be given and an affidavit is also required to be filed. In support of his contention, the petitioner has also relied upon the cases of Abdulrasakh vs. K.P. Mohammed and others (2018) 5 SCC 59; Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009) 9 SCC 310 and Tej Bahadur vs. Narendra Modi, AIROnline 2019 ALL 2004, wherein the Supreme Court has taken similar view as has been taken in F.A. Sapa (supra).
32. I have perused the entire election petition with the assistance of both the parties. The allegations in the said paragraph 6(32) are that petitioner made a complaint against the RO, ARO and Election Observer of taking illegal gratification of Rs.3 crore from the SP-BSP led candidate. There are no other or further allegations in the entire petition. Though the said allegation can be said to be an allegation with regard to corrupt practice, however, the petition is not solely filed on the allegation of corrupt practice. Main thrust of the petition is that the nomination paper of the petitioner was illegally rejected. It appears that to emphasize the illegality, the allegations are made in the said paragraph. However, even accepting the submission of the counsel for the respondent, the issue is still covered by the case of Saritha S. Nair considered at length above. This also is a defect under Section 83 of the RP Act and is thus a curable defect and petitioner can be permitted to file an affidavit now also.
33. The last submission of learned counsel for the respondent is that original election petition is not filed before this Court and, therefore, this election petition should be rejected out-rightly. Attention is drawn by the learned counsel for the respondent to the election petition filed before this Court. It is pointed out that each and every page of the election petition bears a stamp "TRUE COPY ATTESTED" and above the same petitioner has put his signatures. Such a stamp is also put even on the verification page and on each page of the Annexures filed along with the election petition. He further submits that no original document is attached with the election petition and even the certified copy of the judgment of the High Court, upon which reliance is placed, is not an original certified document, but a photocopy. Similarly, other documents, like letters written by him or received by him etc., filed by the petitioner are not filed in original, but photocopies of the same are filed. Since only a true attested copy is filed before this Court along with the Court fee, the same would not become an original election petition. Emphasis is made upon Section 81(3) of the RP Act, which reads as follows:
"81(3). Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
34. On the basis of the same, it is submitted that Section 86(1) of the RP Act provides that High Court shall dismiss an election petition that does not comply with the provisions of Section 81, 82 or 117. The present election petition violates Section 81(3) of the RP Act and is liable to be dismissed under Section 86 of the same.
35. Opposing the same, petitioner submits that the petition, upon which he has affixed the Court fee and which is also reported by the Registry, is bound to be treated as the original petition. Therefore, on this ground also, the election petition should not be dismissed.
36. So far as the argument raised by learned counsel for the respondent that the original petition is not filed before the Court is concerned, the same is a defect which is covered under Section 81(3) of the RP Act which requires that "every election petition shall be accompanied by as many copies thereof ..................". Section 81(3) requires that there has to be an election petition and copies thereof are to accompany the same. Therefore, both are entirely distinct and separate things. The petitioner is required to file an election petition and also file its copies for service upon the respondent.
37. Admittedly, the petitioner herein has not filed before this Court the original election petition. The copy filed along with the Court fee is a ''true copy attested'. Such a declaration is made on each and every page of the election petition and its annexures. It is not a case where it can be said to be a bonafide mistake, as on one page or some of the pages, such a declaration is made. The entire election petition on each and every page bears a declaration that it is a ''true copy attested'. In view of this self declaration made by the petitioner, the same cannot be treated to be an original election petition. To submit that since Court fee is paid on the same and the Registry has also reported the same, therefore, it should be treated to be the original petition is a fallacy as it bears a declaration of the petitioner that it is ''true copy attested', same declaration as made on each copy accompanying the same. There is no difference between the two except payment of the Court fee. A copy cannot become an original petition only on the basis of the Court fees and its filing before the Court when it bears a declaration that it is a ''true copy attested'.
38. The Supreme Court in the case of Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and another (2006) 1 SCC 75, has considered the impact of defects in signing of the appeals/petitions and Vakalatnama filed along with the same. After considering the law settled, it concludes in Para-15 which reads:
"15. It is, thus, now well settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the memorandum of appeal or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, can subsequently be corrected. It is the duty of the office to verify whether the memorandum of appeal was signed by the appellant or his authorised agent or pleader holding appropriate vakalatnama. If the office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorised by a vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without giving an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the vakalatnama.
Thereafter, the Supreme Court prescribes exception to the aforesaid Rule and in Para-17 held as follows:
"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."
Therefore, in normal cases, the defects in the pleadings including the defects in signing the same are curable. Had the present case been one of the regular cases or the defects being a minor irregularity, this Court could have permitted the same to be corrected. Present is an election petition and Section 81(3) of the RP Act specifically provides for filing of an election petition along with copies attested by the petitioner. Section 86 of the RP Act provides that failure to comply with the requirement of Section 81 of the RP Act would result in rejection of the election petition at the initial stage only.
In view thereof, condition no.(i) of Para-17 of Uday Shankar Triyar (supra) is applicable to the present case and thus, the consequences as prescribed under Section 86 of the RP Act are to follow, as is already settled in the case of Saritha S. Nair (supra).
39. In view of the discussions made hereinabove, C.M. Application No.118019 of 2021 under Order VII Rule 11 of C.P.C. is disposed of, holding that the election petition itself is not maintainable.
40. In view of above, since application for exemption from publication is already rejected and there is no publication made in the newspaper by the petitioner which is mandatorily required as held above, therefore, the present election petition itself is not maintainable and further, in view of the order passed on C.M. Application No.118019 of 2021 under Order VII Rule 11 of C.P.C. that election petition is not maintainable on the grounds as discussed above, the election petition is also dismissed.
[Vivek Chaudhary, J.] Dated: 25.10.2021 Sachin