Rajasthan High Court - Jodhpur
Hathi Singh vs Bheraram on 5 April, 2021
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11327/2020
Hathi Singh S/o Sh. Kishan Singh, Aged About 22 Years,
Resident Of Village Belwa Khatriya, Tehsil Balesar, District
Jodhpur (Raj.).
----Petitioner
Versus
Bheraram S/o Sh. Chhagnaram, Resident Of Village
Belwakhatriya, Tehsil Balesar, District Jodhpur (Raj.).
----Respondent
For Petitioner(s) : Mr. Om Prakash Mehta
For Respondent(s) : Mr. GR Punia, Sr. Advocate
Assisted by Mr. Dinesh Choudhary
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
05/04/2021
In wake of onslaught of COVID-19, abundant caution is being
taken while hearing the matters in Court.
The petitioner has preferred this writ petition under Article
226 & 227 of the Constitution of India claiming the following
reliefs:-
"In light of the aforesaid facts and and circumstances, the present
writ petition preferred by the petitioner/defendant may kindly be
allowed thereby allowing the application under Order 7 Rule 11
CPC preferred by the petitioner/defendant and dismissing the
election petition preferred by the respondent/plaintiff."
Counsel for the petitioner submits that verification made by
the respondent, which is on page 31 of paper-book, in which the
respondent has verified paragraph 1 to 17 of the election petition
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to be true on the basis of his personal knowledge as well as the
legal advice given by his counsel.
Counsel for the petitioner further submits that the
respondent ought to be clear in his mind while making the
verification as to whether it was on his personal knowledge or it
was the legal advice taken by him. Counsel for the petitioner
submits that preciseness of verification is inherent in the provision
of Order 6 Rule 15 CPC read with Rule 82 of the Rajasthan
Panchayati Raj (Election) Rules, 1994 and therefore, in light of
lack of such preciseness the election petition deserves to be
dismissed at this stage.
Counsel for the petitioner has relied upon the judgment of
Hon'ble Apex Court in the matter of R.P Moidutty Vs. P.T. Kunju
Mohammed reported in AIR 2000 SC 388; relevant portion
whereof reads as follows:-
"34. The verification of the petition does not even satisfy the
requirement of Order 6 Rule 15 of the CPC. The verification reads
as under:
VERIFICATION
I, R.P.Moidutty, S/o.Abubakker Haji, aged 54, petitioner in the above
election petition do hereby declare that the averments in para 1 to 17
are true and made from personal knowledge and on the basis of
personal enquiry I believe that all the averments made in para 1 to
17 is true.
Signed and verified in this the 21st day of June, 1996.
PETITIONER
[Underlining supplied]
35.All the averments made in paras 1 to 17 of the petition have been
stated to be true to the personal knowledge of the petitioner and in
the next breath the very same averments have been stated to be
based on the information of the petitioner and believed by him to be
true. The source of information is not disclosed. As observed by the
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Supreme Court in F.A. Sapa etc.etc. vs. Singora and others AIR
1991 SC 1557, the object of requiring verification of an election
petition is to clearly fix the responsibility for the averments and
allegations in the petition on the person signing the verification and,
at the same time, discouraging wild and irresponsible allegations
unsupported by facts. However, the defect of verification is not fatal
to the petition; it can be cured [see: Murarka Radhey Sham Ram
Kumar vs. Roop Singh Rathore and Ors. AIR 1964 SC 1545, A.S.
Subbaraj vs. M. Muthiah 5 ELR 21]. In the present case the defect
in verification was pointed out by raising a plea in that regard in the
written statement. The objection was pressed and pursued by
arguing the same before the Court. However, the petitioner persisted
in pursuing the petition without proper verification which the
petitioner should not have been permitted to do. In our opinion,
unless the defect in verification was rectified, the petition could not
have been tried. For want of affidavit in required form and also for
lack of particulars, the allegations of corrupt practice could not
have been enquired into and tried at all. In fact, the present one is a
fit case where the petition should have been rejected at the threshold
for non-compliance with the mandatory provisions of law as to
pleadings."
Mr. G.R. Punia, Sr. Advocate, counsel for the respondent
submits that the aforesaid citation i.e. R.P Moidutty Vs. P.T. Kunju
Mohammed (supra) makes it clear that if any fault is there in the
verification, an opportunity to cure the same ought to be given.
Counsel for the respondent at the outset submits that the
respondent wants to cure the defects in the verification without
contesting it on merits.
On such categorical submission made by the learned Senior
Advocate, the present writ petition is disposed of with liberty to
the respondents to cure the defect as per the statement made by
Sr. Advocate Mr. Punia in the verification in-question strictly in
accordance with law within a period of two weeks from today.
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In case after curing of the defects, any defect in the petition
as well as documents remains, the petitioner shall be at liberty to
take it up the same before the learned court below.
(DR.PUSHPENDRA SINGH BHATI),J.
9-Nirmala/Sanjay-
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