Kerala High Court
Padmakumari. T vs N. Venugopal on 13 January, 2022
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
OP(C) NO. 2400 OF 2021
IA 8/2021 IN OPELC 1/2021 OF PRINCIPAL MUNSIFF COURT,
ERNAKULAM
PETITIONER/S:
PADMAKUMARI. T
AGED 45 YEARS
WIFE OF K.S GIRISH QUARTERS NO. E-3-46,RNAS
AREA WILLINGTON ISLAND, KOCHI 680 003
BY ADVS.
K.RAMAKUMAR (SR.)
T.RAMPRASAD UNNI
N.ANILKUMAR
S.M.PRASANTH
G.RENJITH
R.S.ASWINI SANKAR
T.H.ARAVIND
TONY GEORGE THOMAS
SINU.G.NATH
RESPONDENT/S:
1 N. VENUGOPAL
AGED 70 YEARS
SON OF NEELAKANDA PILLAI, SREELAKAM ,
PADARACHIRA, 1ST CROSS ROAD, KADAVANTHARA SOUTH
SOUTH, PIN 682 020
2 C.D NANDAKUMAR
AGED NOT KNOWN, SON OF NOT KNOWN TO THE
PETITIONER, HOUSE NO. 21/1771, VRINDAVANAM,
VELIPPARAMBIL ROAD, PULLARDESOM ROAD,
PULLARDESOM, PALLUTTHY, PIN 682 006
3 JOSEPHINE JULIET RAJU
AGE NOT KNOWN, D/O. NOT KNOWN TO THE
PETITIONER, POLLAYIL HOUSE, HOUSE NO. CC 1/1922
A, NJALIPARAMBU, PIN 682 001
4 STANLEY POULOSE
AGE NOT KNOWN, SON OF NOT KNOWN TO THE
O.P.(C) No.2400 of 2021
-2-
PETITIOENR KUZHIKKADAN HOUSE NO 1/1442, FORT
KOCHI 682 001
BY ADVS.
S.SUJIN R1
NAVANEETH D.PAI R1
N.SATHEESH R2
CHACKOCHEN VITHAYATHIL R3
JINISHLAL S.B. R4
OTHER PRESENT:
ADCV.N.N.SUGUNAPALAN SR FOR R1
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
07/01/2022, THE COURT ON 13/01/2022 DELIVERED THE
FOLLOWING:
O.P.(C) No.2400 of 2021
-3-
"CR"
JUDGMENT
Dated this the 13th day of January, 2022
The petitioner is the first respondent in OP
(Election) No.1 of 2021 pending on the files of
the Principal Munsiff's Court, Ernakulam. The
election petition is filed calling in question
the petitioner's election to Division
No.29/Willington Island North of the Kochi
Municipal Corporation. It is unnecessary to
elaborate on the contention raised in the
election petition, since the issue raised in
this original petition is confined to the
legality of Exhibit P3 order by which the
petitioner's challenge against the
O.P.(C) No.2400 of 2021
maintainability of the election petition was set
at naught.
2. The objection as to maintainability of
the election petition was raised on the following
grounds;
(i) non-compliance of Sections 165(2) of the
Kerala Municipality Act, 1994 ("the Act" for
short), every page of the copy of the election
petition served on the petitioner not having been
attested by the election petitioner under his own
signature. (ii) violation of Section 167(1)(c),
the election petition having not been verified in
the manner laid down in the Code of Civil
Procedure. (iii) violation of the proviso to
Section 167(1)(c), the election petition not
being accompanied by an affidavit in the
prescribed form in support of the allegation of
corrupt practice. (iii) photocopy of the
O.P.(C) No.2400 of 2021
affidavit filed along with the election petition,
petitioner has signed only in the second page.
(iv) copy of the election petition served on the
petitioner is not an exact copy of the original.
(v)Copies of the documents produced along with
the election petition are not served on the
petitioner.
3. The first respondent filed objections,
contending that she had complied with the
requirement of Section 165(2) of the Act by
attesting copies of the election petition under
her own signature. By Exhibit P3 order, learned
Munsiff dismissed the interlocutory application
and held the election petition to be
maintainable. Hence, this original petition .
4. Heard Senior Advocates K.Ramakumar for
the petitioner, N.N.Sugunapalan for the first
respondent and Advocate N.Satheesh for the
O.P.(C) No.2400 of 2021
second respondent.
5. Learned Senior Counsel appearing for the
petitioner commenced his argument by highlighting
the rigor with which courts are expected to deal
with applications challenging the maintainability
of an election petition. The reason being that
the electorate having given its verdict, which
is sacrosanct, the mandate should not be set at
naught lightly by unseating an elected candidate.
The doctrine of benefit of doubt, equitable
considerations or even substantial compliance
have no role in the adjudication of an election
petition. In support of this proposition,
reliance is placed on the decision in Arikala
Narasa Reddy v. Venkata Ram Reddy Reddygari and
another [(2014) 5 SCC 312]. According to the
learned Senior Counsel, the trial court has given
a complete go by to the above cardinal principle.
O.P.(C) No.2400 of 2021
6. In elaboration of the objections as to
maintainability of the election petition, the
following arguments are put forth;
(a) Section 165(2) of the Act mandates that,
copies of the election petition should be
attested by the petitioner under his own
signature as true copy of the original. The
Annexures, namely the list of documents and list
of witnesses being an integral part of the
election petition, the attestation should be
after the Annexures, whereas in Ext. P1,
attestation is above the Annexures. Section
165(2) does not provide for such truncated
attestation. Reference is made to Section 76 of
the Evidence Act to urge that attestation as true
copy and signature should at the foot of the
copies of documents and not anywhere else.
(b) The election petitioner has not signed
O.P.(C) No.2400 of 2021
in all pages of the copy of the election petition
served on the petitioner. Section 165(2) mandates
that each copy of the election petition shall be
attested by the petitioner under his own
signature. As held in Kaveri Amma v. Devaki [1996
(2) KLT 189], the object of such a stipulation is
to make the petitioner responsible for all the
averments made by him. Non-compliance of such
requirement would result in dismissal of the
election petition, even without entering into the
merits of the petition. Support is also drawn
from the decision in Rajendra Singh v. Usha Rani
and others [AIR 1984 SC 956], wherein it has been
consistently held that, mistake in the copy
furnished to the respondent will entail dismissal
of the election petition.
(c) As per Section 167(1)(c), an election
petition shall be signed by the petitioner and
O.P.(C) No.2400 of 2021
verified in the manner laid down in the Code of
Civil Procedure. The Schedule and Annexure also
being an integral part of the election petition,
verification can only be after the Schedule and
Annexures, whereas in the election petition the
verification is above the schedule. As such,
there is no verification at all, which defect is
undoubtedly incurable. The decision in Mary
Thomas v. Anil Akkara [2017 (2) KHC 518] is
pressed into service to buttress this contention.
(d) As per the mandate of Section 167(1)(c),
the election petition should be signed by the
petitioner and verify in the manner laid down in
the Code of Civil Procedure for the verification
of the pleadings. Order VI Rule 15 of CPC is the
relevant provision. As per Order VI Rule 15(4),
the person verifying the pleading should furnish
an affidavit in support of the pleadings. No such
O.P.(C) No.2400 of 2021
affidavit is filed along with the election
petition.
(e) As per the proviso to Section 167(1),
when corrupt practice is alleged, the petition
shall be accompanied by an affidavit in the
prescribed form. Rule 62 of the Municipality
(Conduct of Election) Rules stipulates that the
affidavit under the proviso to Sub-section (1) of
Section 167 shall be in Form No.28 and shall be
sworn before a Magistrate of First Class or a
Notary. The affidavit filed along with the
election petition was not in Form No.28, which is
a fatal defect, as held in A.Mohammed v. Nalakath
Soopy [1997 (1) KLT 697]. When this fatal defect
was pointed out, an affidavit in Form No.28 was
filed by the election petitioner, that too,
without seeking permission from the court. The
trial court committed gross illegality by
O.P.(C) No.2400 of 2021
accepting the affidavit.
(f) Copies of the documents produced along
with the election petition have not been
furnished to the respondent, which is a fatal
defect, as held in U.S.Sasidharan v.
K.Karunakaran [1987 (2) KLT 1001].
(g) Copy of the election petition served on
the petitioner is not a replica of the original.
In Rajendra Singh (supra) serving of incorrect
copy is held to be a ground for dismissal of the
election petition in Rajendra Singh.
7. Answering the contentions, Sri.N.N.
Sugunapalan, learned Senior Counsel appearing for
the first respondent submitted that the objection
regarding maintainability is raised only as a
ruse for protracting the election petition. It is
pointed out that Exhibit P3 order was pronounced
on 27.7.2021 and the original petition filed only
O.P.(C) No.2400 of 2021
on 10.12.2021. In the meanwhile, the court below
proceeded with the trial of the election
petition, completed the examination of witnesses
and posted the case to 14.12.2021 for final
hearing. At that juncture, the original petition
was filed with the mala fide intention of
prolonging the final decision in the election
petition. Relying on the decision in Ajay Arun
Singh v. Sharadendu Tiwari and others [(2016) 15
SCC 219], it is contended that preliminary
objection in an election petition is to be taken
at the earliest point of time and in one go. The
attempt to protract the election petition, for
the disposal of which a time limit has been
stipulated under the Statute, should be sternly
dealt with.
8. According to the Senior Counsel, the
defects in the election petition, unless fatal,
O.P.(C) No.2400 of 2021
cannot result in dismissal of the petition. In
support of this contention, reliance is placed on
the decision in Umesh Challiyil v. K.P.Rajendran
[(2008) 11 SCC 740], wherein it has been held
that election petitions should not be dismissed
summarily for small breaches. It is submitted
that no serious breach having been alleged by the
petitioner, the trial court was justified in
dismissing the petition.
9. Refuting the contention that the
election petition has been verified and attested
in a truncated manner, contrary to the mandate of
Sections 165 (2) and 167(1)(c), it is argued that
the verification and attestation is proper and as
provided in the Statute. The list of documents
and witnesses are not integral part of the
election petition and hence, the verification had
to be made after the relief portion. Moreover,
O.P.(C) No.2400 of 2021
the list of documents and witnesses have been
separately verified and attested, thereby fully
satisfying the statutory requirement. The
decision in F.A.Sapa and others v. Singora and
others [(1991) 3 SCC 375] is relied on to contend
that if a document does not form an integral
part of the election petition, but is merely
referred to in the petition, or filed in the
proceeding as evidence of any facts, failure to
supply a copy thereof will not prove fatal.
Reliance is placed on the decision in Neena
Vikram Verma v. Balmukund Singh Gautam and others
[(2013) 5 SCC 673] to contend that even if there
is defect in the verification, that can be
removed in accordance with the principles of CPC
and is not fatal to the election petition.
10. The contention that copy of the election
petition is not attested or signed in all pages
O.P.(C) No.2400 of 2021
is answered by pointing out that the mandate of
Section 165(2) is that the copy should be
attested to be a true copy of the petition under
the election petitioner's own signature. This
requirement has been met by signing at the foot
of copy served on the petitioner. In Thomas v.
Varghese Paul [1996 (2) KLT 682], it has been
categorically held that there is no necessity to
attest in each page of the copy.
11. In reply to the contention that an
affidavit as envisaged under Order VI Rule 15(4)
was not filed along with the election petition,
it is urged that 167(1)(c) does not mandate the
filing of such affidavit and even if such
requirement is there in Order VI Rule 15(4), it's
non-compliance cannot result in dismissal of the
election petition. In Ponnala Lakshmaiah v.
Kommuri Pratap Reddy and others [(2012) 7 SCC
O.P.(C) No.2400 of 2021
788], the Apex Court has held that non-filing of
affidavit in prescribed form to be a curable
defect. Moreover, in G.M.Siddeshwar v. Prasanna
Kumar [(2013) 4 SCC 776], it is held that a
composite affidavit, which supports (a) the
pleadings in the election petition and (b) the
allegation of corrupt practice, will satisfy the
mandate of Section 167(1).
12. Attention is drawn to Section 169(1) of
the Act empowering the court to dismiss an
election petition which do not comply with the
provisions of Sections 165, 166 or Section 191.
It is contended that the Legislature having
consciously omitted to include Section 167 in
Section 169, failure to comply with the
requirements of Section 167 cannot result in
dismissal of the election petition at the
preliminary stage.
O.P.(C) No.2400 of 2021
13. In answer to the contention that the
petitioner had failed to file the affidavit in
Form 28 along with the election petition, it is
submitted that the necessity to file such an
affidavit would arise only when corrupt practice
is alleged. In order to be a 'corrupt practice',
the alleged act should be one falling under
Section 144 of the Act. The allegations in Ext.P1
do not fall within any of the corrupt practices
mentioned in Section 144. Even then, when the
petitioner raised an allegation that affidavit in
Form 28 is mandatory, such affidavit was filed as
a measure of abundant caution. The first
respondent's failure to file the affidavit along
with the election petition not being a fatal
defect, the trial court was fully justified in
having accepted the affidavit in the interest of
justice. In any event, the order under challenge
O.P.(C) No.2400 of 2021
is not one warranting interference in exercise of
the supervisory jurisdiction vested with this
court.
14. Adv.N.Satheesh, learned Counsel
appearing for the second respondent supported the
arguments of the petitioner and contended that
Ext.P3 order is liable to be set aside for the
various reasons stated in the original petition.
15. In reply, Sri.Ramakumar submitted, even
assuming that there is delay or laches on the
part of the respondent in pointing out lethal
defects in the election petition, that does not
exonerate the court from its statutory obligation
under Section 169 of the Act. As soon as non-
compliance of any mandatory provision is either
brought to its notice or noticed suo motu,
whatever be the stage, the court is bound to
dismiss the petition. Support for this argument
O.P.(C) No.2400 of 2021
is drawn from the decision in Udhav Singh v.
Madhav Rao Scindia [AIR 1976 SC 744]. With the
support of the decision in Azhar Hussain v. Rajiv
Gandhi [AIR 1986 SC 1253], it is argued that ,
even if Section 167 do not find a place in
Section 169, it does not take away the court's
power under the Code of Civil Procedure.
16. There cannot be any quarrel to the
proposition that election laws are to be
interpreted strictly and within the four corners
of the Statute. The contextually relevant portion
of Arikala Narasa Reddy (supra) which deals with
this aspect is extracted hereunder;
"13. It is a settled legal proposition that the
statutory requirements relating to election law have
to be strictly adhered to for the reason that an
election dispute is a statutory proceeding unknown
to the common law and thus, the doctrine of equity,
etc. does not apply in such dispute. All the
technicalities prescribed/mandated in election law
have been provided to safeguard the purity of the
election process and the courts have a duty to
enforce the same with all rigours and not to
minimise their operation. A right to be elected is
neither a fundamental right nor a common law right,
O.P.(C) No.2400 of 2021
though it may be very fundamental to a democratic
set-up of governance. Therefore, answer to every
question raised in election dispute is to be solved
within the four corners of the statute."
As rightly pointed out by Sri.K.Ramakumar, the
contentions with respect to the maintainability
or otherwise of an election petition has to be
considered with the above proposition in mind.
17. For a proper understanding of the
contentions raised, it is essential to have a
close scrutiny of the relevant provisions in the
Municipality Act extracted here under for easy
reference;
"163. Election petitions,-- No election
shall be called in question except by an
election petition presented in accordance
with the provisions of this chapter.
164. The Court competent to try election
petitions.--The court having jurisdiction to
try an election petition shall be the
Munsiff's Court having jurisdiction over the
place in which the office of the Municipality
is located.
165. Presentation of petitions.-- (1) An
election petition calling in question any
election may be presented on one or more of
the grounds specified in section 178 and
section 179, to the Munsiff's Court by any
candidate at such election or any elector
O.P.(C) No.2400 of 2021
within thirty days from, but not earlier
than, the date of election of the returned
candidate. Explanation.-- In this sub-section,
"elector" means a person who was entitled to
vote at the election to which the election
petition relates, whether he has voted at
such election or not. (2) 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.
166. Parties to the petition.-- A
petitioner shall join as respondents to his
petition,- (a) where the petitioner, in
addition to claiming a declaration that the
election of the returned candidate is void,
claims a further declaration that he himself
or any other candidate has been duly elected,
all the contesting candidates other than the
petitioner, and where no such further
declaration is claimed, the returned
candidate; and (b) any other candidate
against whom allegations of any corrupt
practice are made in the petition.
167. Contents of petition.-- (l)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
(Central Act 5 of 1908) for the verification
of pleadings: Provided that were the
petitioner alleges any corrupt practice, the
O.P.(C) No.2400 of 2021
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.
168. Relief that may be claimed by the
petitioner.-- A petitioner may, in addition to
claiming a declaration that the election of
the returned candidate is void, claim a
further declaration that he himself or any
other candidate has been duly elected.
169. Trial of election petitions.-- (1)
The Court shall dismiss an election petition
which does not comply with the provisions of
section 165 or section 166 or section 191."
18. The aforementioned provisions are more
or less a verbatim reproduction of Sections 80 to
86 of the Representation of the People Act, 1951
("the RP Act" for short). On close scrutiny of
Section 165(2), it can be seen that the provision
contains two parts; (i) the election petition
shall be accompanied by copies equal to the
number of respondents mentioned in the petition
and (ii) that every such copy shall be attested
by the petitioner under his own signature to be a
true copy of the petition. Indisputably, the
O.P.(C) No.2400 of 2021
former requirement has been complied with.
Therefore, the question is whether the copies
served on the respondents are attested and signed
to be true copies. Admittedly, the copy served
on the petitioner does not contain attestation
and signature on all pages. In this regard, it
may be pertinent to note that the mandate of the
section is that every copy of the election
petition, and not every page, should be
attested. In Kaveri Amma (supra), copies of the
election petition were not attested by the
petitioner to be true copies. In that context
the Division Bench held that, failure to attest
the copies will entail in dismissal of the
election petition. The said decision cannot be
relied on to contend that each page of the copy
should be attested as true copy. This question
was considered by the Apex Court in F.A.Sapa
O.P.(C) No.2400 of 2021
(supra), the contextually relevant portion of
which is extracted below;
"31. The objection raised in the context
of Section 81 is that the election petition in
every case is a mere photocopy prepared from a
typed one and the copy of the election
petition served on the returned candidate in
each case was not duly attested to be a true
copy of the original as required by Section
81(3) and hence the petition was liable to be
dismissed in limine under Section 86(1) of the
R.P. Act. Section 81(1) does not debar
photocopying but Rule 1 of the Rules says that
it shall be "typewritten or printed". There is
no dispute that a model election petition was
prepared and got typed and prints thereof were
taken out by the process of photocopying.
These prints were used both as original
election petitions as well as copies. The
particulars in regard to each petition, e.g.,
the names of the parties, the voting pattern,
the towns and villages where utterances
amounting to corrupt practice were made, etc.,
were filled in and the court fee was affixed
on one of them which constituted the original
and photocopies thereof were filed before the
Stamp Reporter in accordance with the Rules.
The photocopy bearing the court fee stamps was
indisputably signed by the election petitioner
and was presented with sufficient copies to
the Stamp Reporter. The original election
petition is, therefore, a photocopy of the
typed model and the copies are also
photocopies prepared from the original
petition. Evidently the underlying idea in
providing that the election petition shall be
typewritten or printed is to ensure that the
document is legible. There is no complaint
that the document which is admitted as an
O.P.(C) No.2400 of 2021
election petition and the copies thereof are
not legible. If that be so it is difficult to
appreciate the objection that the photocopy
should not be treated as an original petition
even if it otherwise complies with the
requirement of law. The High Court was,
therefore, justified in treating the same as
the original election petition."
19. The same position was reiterated by a
learned Single Judge of this Court in Thomas
(supra). On a plain reading of Section 165(2) and
on being guided by the legal position laid down
in the aforementioned precedents, the challenge
on the ground that the copies of the election
petition are not attested to be true copies on
each page, is liable to be rejected.
20. The next contention is that the election
petition is not signed and verified in the manner
laid down in the CPC for the verification of
pleadings. For answering this contention, it is
necessary to have a close look at Order VI Rule
15 extracted here under;
O.P.(C) No.2400 of 2021
"15. Verification of pleadings.--(1)
Save as otherwise provided by any law for
the time being in force, every pleading
shall be verified at the foot by the party
or by one of the parties pleading or by
some other
person proved to the satisfaction of the
Court to be acquainted with the facts of
the case.
(2) 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.
(3) The verification shall be signed by
the person making it and shall state the
date on which and the place
at which it was signed.
(4) The person verifying the pleading
shall also furnish an affidavit in support
of his pleadings"
The challenge against verification is on the
ground that the verification is not made at the
foot of the election petition. In support of the
challenge, reliance is placed on the decision in
Mary Thomas (supra), wherein a learned Single
Judge has held schedule I to be an integral part
of the election petition. That finding was
rendered in the context of the averment in
O.P.(C) No.2400 of 2021
Paragraph 12 of the election petition therein
that Schedule-I may be treated as part of the
pleadings of the election petition. In F.A.Sapa
(supra), the Apex Court considered the question
whether the schedule or Annexure to the petition
would form an integral part of the election
petition. It was held that a schedule or Annexure
which produces a document as evidenced in support
of the allegation in the election petition cannot
be described as integrated with the election
petition and defect in verification thereof would
not prove fatal. As distinct from the facts in
Mary Thomas (supra), Ext.P1 does not contain a
statement that the Annexure should be treated as
part of the election petition. Being so,
applying the dictum in F.A.Sapa (supra), it has
to be held that verification at the foot of the
pleadings satisfies the requirement of Order VI
O.P.(C) No.2400 of 2021
Rule 15(1). Moreover, the first respondent has
verified and signed the Annexures to the election
petition separately, which is sufficient to
satisfy the requirement.
21. The next contention is that the
affidavit mandated under Order VI Rule 15(4) was
not filed along with the election petition. A
perusal of the records shows that an affidavit
was filed along with the election petition. In
Ext.P2, an objection was raised that the
affidavit is not in accordance with the proviso
to Section 167(1) read with Rule 62 of the
Municipality (Conduct of Election) Rules, as per
which, when corrupt practice is alleged, an
affidavit in Form 28 has to be filed along with
the election petition. In the face of such
objection, the first respondent filed an
affidavit in Form 28 with specific reference to
O.P.(C) No.2400 of 2021
paragraph 4 of the election petition and the
court below accepted the affidavit. From a
reading of Ext.P2, it is clear that the objection
was not regarding failure to file affidavit as
contemplated under Order VI Rule 15(4), but, an
affidavit as mandated under the proviso to
Section 167(1) was not filed. Even then, such an
argument having been raised, I deem it
appropriate to deal with the contention.
Indisputably, there is no provision under the Act
requiring the filing of an affidavit under Order
VI Rule 15(4) of CPC along with the election
petition. All that is contemplated is
verification of the election petition in the
manner laid down in the Code of Civil Procedure.
In G.M.Siddeshwar (supra), the Apex Court held
that there is no mandate under the RP Act for
the election petitioner to file an affidavit in
O.P.(C) No.2400 of 2021
terms of Order VI Rule 15(4) CPC in support of
the averments made in the election petition, in
addition to the affidavit required to be filed by
the proviso to Section 83(1) of the RP Act. The
contextually relevant portion of the judgment
reads as under;
"25. It seems to us that a plain and simple
reading of Section 83(1)(c) of the Act clearly
indicates that the requirement of an additional
affidavit is not to be found therein. While the
requirement of "also" filing an affidavit in
support of the pleadings filed under CPC may be
mandatory in terms of Order 6 Rule 15(4) CPC,
the affidavit is not a part of the verification
of the pleadings--both are quite different. While
the Act does require a verification of the
pleadings, the plain language of Section 83(1)
(c) of the Act does not require an affidavit in
support of the pleadings in an election
petition. We are being asked to read a
requirement that does not exist in Section 83(1)
(c) of the Act.
xxxx
29.While the necessity of filing an
affidavit in support of the facts stated in a
plaint may be beneficial and may have salutary
results, but we have to go by the law as it is
enacted and not go by the law as it ought to be.
CPC no doubt requires that pleadings be verified
and an affidavit "also" be filed in support
thereof. However, Section 83(1)(c) of the Act
merely requires an election petitioner to sign
and verify the contents of the election petition
in the manner prescribed by CPC. There is no
requirement of the election petitioner "also"
filing an affidavit in support of the averments
O.P.(C) No.2400 of 2021
made in the election petition except when
allegations of corrupt practices have been made.
xxxx
34. We are not inclined to debate the
contention whether Order 6 Rule 15 CPC has been
legislated by reference or by incorporation into
the Act for the reasons already indicated above,
namely, that on a plain reading of Section 83 of
the Act, only a verification and not an
affidavit in support of the averments in an
election petition is required, except when
allegations of corrupt practices are made by the
election petitioner. Any amendment in CPC is of
no consequence in this regard unless the meaning
of "verification" is amended to include an
affidavit."
22. In Neena Vikram Verma (supra), the Apex
Court, after referring to the Constitution Bench
decision in Murarka Radhey Shyam Ram Kumar v.
Roop Singh Rathore and others [AIR 1964 SC 1545],
held that a defective affidavit is not sufficient
ground for summary dismissal of an election
petition. Recently, in A.Manju v. Prajwal
Revanna alias Prajwal R and others [2021 SCC
Online SCC 1234], the Apex Court had occasion to
consider whether, failure to file an affidavit in
Form 25 (similar to Form 28 herein) along with
O.P.(C) No.2400 of 2021
the election petition is a curable defect or not.
The answer is contained in paragraphs 23 to 25 of
that judgment, extracted hereunder;
23. Thus, the real and core question before
us is that in view of the allegations of the
alleged non-disclosure of assets in Form-26 by
respondent No. 1 being cited as "corrupt
practice", would it be mandatory for the election
petitioner to file an affidavit in Form-25 and
what would be the consequences of not filing such
an affidavit.
24. We may take note of the Constitution
Bench judgment of this Court in Murarka Radhey
Shyam Ram Kumar v. Roop Singh Rathore which opined
that the defect in verification of an affidavit
cannot be a sufficient ground for dismissal of the
petitioner's petition summarily and such an
affidavit can be permitted to be filed later. This
Constitution Bench judgment was also referred to
in G.M. Siddeshwar case to come to a conclusion
that non-compliance with proviso to Section 83(1)
of the RP Act was not fatal to the maintainability
of an election petition and the defect could be
remedied, i.e., even in the absence of compliance,
the petition would still be called an election
petition. We cannot say that the High Court fell
into an error while considering the election
petition as a whole to come to the conclusion that
the allegations of the appellant were not confined
only to Section 33A of the RP Act, but were larger
in ambit as undue influence and improper
acceptance of nomination of respondent No. 1 were
also pleaded as violation of the mandate under
Sections 123 and 100 of the RP Act.
25. However, we are not persuaded to agree
with the conclusion arrived at by the High Court
that the non-submission of Form 25 would lead to
the dismissal of the election petition. We say so
because, in our view, the observations made in
Ponnala Lakshmaiah case which have received the
O.P.(C) No.2400 of 2021
imprimatur of the three Judges Bench in G.M.
Siddeshwar case appear not to have been
appreciated in the correct perspective. In fact,
the G.M. Siddeshwar case has been cited by the
learned Judge to dismiss the petition. If we look
at the election petition, the prayer clause is
followed by a verification. There is also a
verifying affidavit in support of the election
petition. Thus, factually it would not be
appropriate to say that there is no affidavit in
support of the petition, albeit not in Form 25.
This was a curable defect and the learned Judge
trying the election petition ought to have granted
an opportunity to the appellant to file an
affidavit in support of the petition in Form 25 in
addition to the already existing affidavit filed
with the election petition. In fact, a
consideration of both the judgments of the Supreme
Court referred to by the learned Judge, i.e.
Ponnala Lakshmaiah as well as G.M. Siddeshwar ,
ought to have resulted in a conclusion that the
correct ratio in view of these facts was to permit
the appellant to cure this defect by filing an
affidavit in the prescribed form"
Going by the legal position enunciated by the
above precedents, failure to file an affidavit as
provided under Order VI Rule 15(4) of CPC or the
affidavit in Form 28 of the Act, cannot be
treated as fatal defects warranting in limine
dismissal of the election petition.
23. Even though the learned Senior Counsel
for the first respondent contended that there is
O.P.(C) No.2400 of 2021
no requirement to file an affidavit in Form 28 in
the instant case, as no allegation of corrupt
practice is raised in the election petition, the
first respondent having filed the affidavit in
Form 28, with specific reference to paragraph 4
of the election petition, which according to the
election petitioner contains allegations of
corrupt practice, the question whether corrupt
practice is alleged in the election petition is
best left for the trial court to decide.
24. I also find merit in the contention of
the Senior Counsel that Section 169(1), providing
for summary dismissal of an election petition,
makes no reference to Section 167. Hence, even if
there is non-compliance of the requirements under
Section 167, that cannot entail in summary
dismissal of the election petition. Support for
this proposition can be drawn from the decision
O.P.(C) No.2400 of 2021
in Neena Vikram Verma (supra), wherein it has
been held that Section 86 of the RP Act makes no
reference to Section 83 thereof and hence, an
election petition cannot summarily be dismissed
for non-compliance with the provisions of Section
83 thereof. Likewise, as Section 169(1) makes no
reference to Section 167 of the Act, non-
compliance of that provision cannot entail in
summary dismissal of the election petition.
25. Having found that going by the pleadings
in the instant case, the Annexures are not
integral part of the election petition, the
challenge as to maintainability on the premise
that copies of the documents appended to the
election petition were not served cannot be
sustained. This view is supported by the decision
of the Apex Court in F.A.Sapa (supra). Having
carefully scrutinized the original of the
O.P.(C) No.2400 of 2021
election petition and its copy, I find the copy
served on the first respondent to be a true copy
of the original. Hence, the challenge on the
premise that the copy is not a replica of the
original cannot also be countenanced. As held in
Umesh Challiyil, even though election petition
has to be seriously construed, it should not be
summarily dismissed on small breaches of
procedures and the courts have to consider
whether the objection as to maintainability goes
to the root of the matter.
For the aforementioned reasons, the original
petition is dismissed.
Sd/-
V.G.ARUN
JUDGE
vgs
O.P.(C) No.2400 of 2021
APPENDIX OF OP(C) 2400/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF PETITION DT 04-01-
2021 IN O.P (ELECTION) NO 1 OF
2021 ON THE FILE OF THE PRINCIPAL
MUNSIFF'S COURT, ERNAKULAM
OF 2021) TO DISMISS THE ELECTION
FILED ON 29-06-2021 BY THE
PETITIONER IN O.P (ELE) NO. 1 OF
2021 ON THE FILE OF THE PRINCIPAL
MUNSIFF'S COURT, ERNAKULAM
Exhibit P3 TRUE COPY OF ORDER DT 27-07-2021
IN I.A NO. 8 OF 2021 IN O.P
(ELECTION) NO. 1 OF 2021 ON THE
FILE OF THE PRINCIPAL MUNSIFF'S
COURT, ERNAKULAM
