1. By this application, the applicant (respondent no.1) seeks dismissal of the Election Petition No.20 of 2014 in limine on various grounds set out in the civil application. Some of the relevant facts for the purpose of deciding this application are as under :
2. The original petitioner i.e. Ravindra Ramji Mundhe has challenged the election of the applicant as a Member of Maharashtra Legislative Assembly from Shrivardhan Legislative Assembly Constituency No.193 in the General Elections of Vidhansabha held in the year 2014 on various grounds set out in the said election petition. The said election was challenged basically on two grounds i.e. (i) the applicant had indulged in corrupt practice and (ii) on the grounds mentioned in section 100(1)(d)(iii) of the Representation of People Act, 1951. On 8th May, 2015, the applicant filed written statement in the said election petition raising various objections. In paragraph 2 of the written statement, it was contented by the applicant herein that the election petition was liable to be dismissed on the ground that the same was filed without complying with the mandatory provision of section 83 of the Representation of People Act, 1951 (for short "the said Act"). The applicant also contended that the petitioner had alleged corrupt practice within the meaning of section 123(2)(a)(i) of the said Act alleged to have been practiced by the applicant. The petitioner, however, failed to give a concise statement of the material facts on which the petitioner had relied upon in the election petition. It was further contended that the pleadings were not verified in the manner laid down. It was contended that since the allegations of corrupt practice stated in paragraph 9 were not supported and accompanied by affidavit in the prescribed form, the petition was liable to be rejected on that ground. The affidavit at page no.160 of the petition was not in the prescribed Form No.25 under Rule 94 A of the said Act and did not disclose the source of knowledge and the source of information in support of the allegations made by the petitioner.
3. The applicant also denied various allegations made by the petitioner on merits in the said written statement filed by him. On 24th June, 2016, the applicant herein filed statement of admission and denial of the documents which were referred to and relied upon by the applicant in the compilation of the documents. This Court has already marked those documents by a separate order passed on 20th September, 2016.
4. On 20th September, 2016, learned counsel for the petitioner made a statement before this Court that his client would withdraw all the allegations of corrupt practice made in the Election Petition No.20 of 2014 against the applicant herein and sought time to file an application for amendment. This Court accordingly granted liberty to the petitioner to file an application for amendment within one week from the date of receipt of the said order. The petitioner filed an Application (Lodging) No.21 of 2016 inter-aila praying for amendment in election petition.
5. On 23rd January, 2017, the applicant herein sought time to file an affidavit in reply to the said Application (Lodging) No.21 of 2016 and other three applications filed by the petitioner. On 6th February, 2017, this Court recorded the statement made by the learned counsel for the applicant herein that he has no objection if the amendment was allowed. He did not admit the contents of the amendment proposed to be carried out by the applicant. This Court accepted such statement made by the learned counsel for the applicant and allowed the same Application (Lodging) No.21 of 2016 inter-alia praying for amendment to the election petition keeping all the contentions open. This Court also permitted the applicant herein to file an additional written statement to the amended election petition within two weeks from the date of service of the amended election petition.
6. On 27th February, 2017, the learned counsel for the applicant sought time to file an additional written statement and also sought liberty to file an application for dismissal of the election petition on the ground that inspite of amendment carried out in the petition, the petitioner had not cured the defects. This Court granted such liberty to the applicant to file an application for dismissal of the election petition if he so desired.
7. Pursuant to the said order dated 6th February, 2017 passed by this Court in the Application (Lodging) No.21 of 2016, the petitioner carried out amendment to the election petition on 18th February, 2017.
8. On 16th March, 2017, the learned counsel for the petitioner made an oral application before this Court seeking amendment for verification clause at page 157. It was submitted that the amendment sought in the verification clause at page 157 was inadvertently applied on page 152 instead of page 157. Learned counsel for the applicant herein gave his no objection if the amendment as sought orally by the petitioner on that day was allowed by this Court. This Court accepted the said statement made by the learned counsel for the applicant and permitted the petitioner to carry out amendment as sought by making an oral application. This Court dispensed with re-verification of the petition. Pursuant to the said order passed by this Court, the petitioner carried out further amendment in the verification clause. On 8th March, 2017, the applicant filed Civil Application (Lodging) No.4 of 2017 inter-alia praying for dismissal of the election petition in limine.
9. Mr.Borulkar, learned counsel appearing for the applicant invited my attention to the averments made in the written statement filed by the applicant and submits that the applicant had specifically raised an objection that the election petition is filed without complying with the mandatory provision of section 83 of the said Act and the pleadings were not verified in the manner laid down in the said Act. The affidavit annexed at page 160 is also not in the prescribed Form No.25 under Rule 94 A of the Conduct of Election Rules, 1961 (for short the said "Rules"). He submits that though the petitioner had applied for amendment to the election petition in view of the applicant having raised various objections in the written statement itself and though this Court had allowed the application for amendment made by the petitioner, the applicant has not cured all the defects.
10. It is submitted that that though the applicant had brought to the notice of the petitioner the defect in verification and pleadings under Order 6 Rule 15 of the Code of Civil Procedure, 1908 and section 83 of the said Act, the petitioner has failed and neglected to cure the defects by correcting the verification clause and the affidavit in support in conformity with the provisions of the Code of Civil Procedure, 1908. The petitioner has also failed to comply with the provisions of section 83 of the said Act. He submits that affidavitin- support of the petition filed by the petitioner is not in conformity with the provisions of Order 6 Rule 15 of the Code of Civil Procedure, 1908. He invited my attention to pages 160 and 161 of the election petition and would submit that in view of withdrawal of the allegations of corrupt practice by the petitioner, the petitioner has deleted the affidavit which was filed under Rule 94 A of the said Rules. He submits that in view of the said provision, every such election petition has to be tried by the High Court in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suit subject to the provision of the said Representation of the People Act, 1951.
11. Learned counsel for the applicant placed reliance on the judgment of the Supreme Court in the case of Regu Mahesh alias Regu Maheshwar Rao vs. Rajendra Pratap Bhanj Dev & Anr., (2004) 1 SCC 46 and in particular paragraphs 9, 15 and 17 to 19 and would submit that since the petitioner has not cured all defects inspite of liberty granted by this Court and the applicant, the election petition deserves to be dismissed on that ground alone.
12. Leaned counsel for the applicant placed reliance on the judgment of the Supreme Court in the case of Amar Singh vs. Union of India & Ors., (2011) 7 SCC 69 and in particular paragraph 64 and would submit that since affidavit in support filed by the petitioner was not in accordance with Order 19 Rule 3 of the Code of Civil Procedure, 1908 which prescribes a format of an affidavit, the election petition filed by the petitioner was defective and thus deserves to be dismissed.
13. Learned counsel for the petitioner brought to the notice of this Court the judgment of the Supreme Court in the case of G.M. Siddheshwar vs. Prasanna Kumar, (2013) 4 SCC 776 and distinguished the said judgment on the ground that there was a composite affidavit filed by the petitioner in that matter which was accepted by the Supreme Court as in substantial compliance of the provisions of the said Act whereas, in this case, the petitioner has admittedly deleted the affidavit filed under Rule 94 A of the said Rules and thus only one affidavit remains on record which is not in conformity with the said format under Order 19 Rule 3 and in accordance with Order 6 Rule 15 (4) of the Code of Civil Procedure, 1908. He submits that affidavit filed by the petitioner at page 158 also was to be filed in conformity with the verification on page 39 of the election petition. He submits that in the verification clause, the petitioner has mentioned the number of paragraphs of the petition which were alleged to be in accordance with the knowledge of the petitioner and the averments made in the other paragraphs based on the information, however the said paragraphs were not mentioned similarly in the affidavit filed by the petitioner.
14. Learned counsel for the applicant placed reliance on section 83 of the said Act which provides for conduct of the election petition and more particularly section 83 (1)(c) and section 83 (2) of the said Act.
15. Learned counsel appearing for the applicant invited my attention to the certificate of election annexed at Exhibit "A" to the petition along with typed copy thereof. He submits that though the petitioner has verified the typed copy on page 55 of the election petition, the petitioner has not verified the photocopy of the certificate of election with certain portion written in hand which certificate ought to have been verified separately. He submits that the certificate of election containing hand written portion and typed copy of the certificate of election are two separate annexures and thus both were required to be verified under section 83(2) of the said Act.
16. Learned counsel invited my attention to Final Result Sheet annexed at Exhibit "B" to the petition and also verification at page 70 of the petition. He also invited my attention to the voter''s list of different constituency on pages 71, 76 to 82, 97, 105, 111, 117, 123 etc, and also translation thereof annexed in the petition. He submits that the petitioner has verified only the documents in Marathi and has not verified English translation thereof which are annexed at Exhibit "B" but not collectively. He submits that each and every documents are required to be verified separately as per Order 19 Rule 3 of the Code of Civil Procedure, 1908 and in accordance with Order VI Rule 15(3) of the Code of Civil Procedure, 1908.
17. Learned counsel also invited my attention to various applications for death certificates at pages 136 to 153 and also verification clause at page 152. He submits that since each and every annexures which are marked as Exhibit "D" was a separate annexure, verification on page 152 was not in compliance with the aforesaid provisions.
18. Learned counsel for the respondent no.1 placed reliance on the judgment of the Supreme Court in case of Sahodrabai Rai vs. Ram Singh Aharwar, AIR 1968 SC 1079 and in particular paragraph 12. He submits that under section 83(2) of the said Act has reference not to a document which is produced as evidence of averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. He submits that even though the annexures to the petition are outside the election petition, they must be signed and verified and such annexures or schedules are then treated as integrate with the election petition and copies of all such annexures must be served upon the respondent. He submits that the whole of the documents referred in the election petition has to be verified.
19. It is submitted that the election petition cannot be dismissed at the threshold for non-compliance of section 83 but if it is in non-compliance of section 81(3) of the said Act, such election petition has to be dismissed. In support of this submission, the learned counsel placed reliance on the judgment of this Court in case of Narendra Bhikahi Darade vs. Kalyanrao Jaywantrao Patil & Ors., 2000(3) Bom.C.R. 744 and in particular paragraphs 4 and 9. He submits that since the petitioner has violated the mandatory provisions contained in section 81 in the election petition, the same is liable to be dismissed at the threshold without trial under section 86 of the Representation of People Act.
20. Learned counsel appearing for the applicant invited my attention to the application (Lodging) No.21 of 2016 filed by the petitioner for carrying out the amendment in view of the error in the verification clause. He also placed reliance on the order dated 6th February, 2017 passed by this Court, allowing the said application keeping all the contentions of both the parties open. He submits that though the petitioner was permitted to carry out amendment for curing the defects, the petitioner did not cure all the defects pointed out by the respondent no.1 in the written statement.
21. Learned counsel for the applicant invited my attention to page 157 of the election petition i.e. verification and submits that the said amendment was once again permitted by this Court on 16th March, 2017 pursuant to an oral application made by the petitioner. He submits that even at that stage the petitioner did not cure all the defects.
22. Ms.Kanade, learned counsel for the petitioner placed reliance on section 80, 80-A, 81, 82 and 83(1) to section 83(c) of the said Act. She also invited my attention to Rule 94 A of the said Rules. She placed reliance on section 83(2) and section 86. She submits that the election petition can be dismissed under section 86 of the Act if the same is in violation of sections 81, 82 and 117. She submits that sections 81 and 82 are not pressed in service by the respondent no.1 in the written statement filed before this Court. Learned counsel placed reliance on the judgment of the Supreme Court in case of F.A. Sapa & Ors. vs. Singora & Ors., 1991(3) SCC 375.
23. Learned counsel invited my attention to paragraph 4 of the written statement filed by the respondent no.1 and would submit that the plea of alleged violation of section 83 of the Representation of People Act made by the respondent no.1 in the written statement are totally vague. She submits that the submissions however, made by the learned counsel for the respondent no.1 across the bar are not even referred in the present application filed for dismissal o the election petition. She submits that the last amendment allowed by this Court in favour of the petitioner was by consent of the respondent no.1. She also invited my attention to paragraph 2 of the written statement filed by the respondent no.1 and would submit that the respondent no.1 has alleged violation of section 83 in the said written statement. The cause of action was not disclosed in paragraph 7. Out of several documents relied upon by the petitioner in the election petition and the compilation of document, the respondent no.1 did not dispute the existence and contents of most of the documents. She submits that in view of the objection raised in respect of the allegations of corrupt practice made by the petitioner, the petitioner has upon advice, withdrawn those allegations, including the affidavit filed by the petitioner under Rule 94 A.
24. It is submitted by the learned counsel that unless an opportunity is given to the petitioner to cure the alleged defect as pointed out by the respondent no.1 now across the bar, the election petition cannot be dismissed on the ground of such alleged defect not having been cured by the petitioner. She submits that there is no whisper about the alleged defect in the affidavit in support filed by the petitioner under Order 6 Rule 15 of the Code of Civil Procedure.
25. Learned counsel for the petitioner invited my attention to the verification clause of the petition on page 39 and would submit that the petitioner has already verified the contents of the petition by specifically pointing out as to which paragraphs of the election petition were true to the personal knowledge of the petitioner and which were based on the information and advice. There was thus no defect in the verification clause. She submits that similarly there was no defect in any of the affidavit in support filed by the petitioner. It is submitted that the Representation of People Act, 1961 is a special statute which provides the circumstances as to when the election petition can be dismissed. The applicant has neither in the written statement filed nor in the affidavit in support of this application has referred to any provisions which are invoked by the respondent no.1 for seeking dismissal of the company petition. She submits that the alleged defects cannot be refereed to by the respondent no.1 across the bar. She submits that section 86 cannot be pressed in service for dismissal of the election petition.
26. Learned counsel invited my attention to section 83 of the said Act and would submit that the respondent no.1 has invoked section 83(c) of the said Act across the bar. She submits that the entire written statement filed by the respondent no.1 proceeds on the premise that the allegations of corrupt practice were not made by the petitioner in the election petition in accordance with the provisions of section 83(c) of the said Act which allegations are admittedly withdrawn by the petitioner. She submits that the affidavit was required to be filed by the petitioner not under section 83 of the Representation of People Act but was necessitated under High Court (Original Side) Rules. She placed reliance on the judgment of the Supreme Court in case of G.M. Siddeshwar vs. Prasanna Kumar, (2012) 4 SCC 776 and in particular paragraphs 15, 19, 20, 22, 24.1, 25, 29, 30 and 33. She submits that the additional affidavit was also filed in accordance with Order 6 Rule 15 of the Code of Civil Procedure, 1908. She invited my attention to Order 6 Rule 15(4) of the Code of Civil Procedure, 1908. She submits that the affidavit in support is not required under section 83(c) unless the corrupt practice is alleged by the petitioner in the election petition. She submits that the Supreme Court in the said judgment has accepted the validity of the election petition even though there was one common affidavit filed by the petitioner in the judgment having found that the same was not defective and refused to dismiss the election petition on that ground.
27. It is submitted by the learned counsel that even if any defect is found by this Court as canvassed by the respondent no.1, it is not a case for dismissal of the election petition under section 86 or under section 83. She submits that if there are any violations of the provisions of Code of Civil Procedure, 1908, the election petition cannot be dismissed on that ground.
28. It is submitted by the learned counsel for the petitioner that various documents have been produced by the petitioner along with the election petition as evidence. She submits that even in respect of the documents produced as evidence along with the election petition, section 83 of the said Act does not apply. She relied upon the averments made in paragraph 2 of the election petition and submits that Exhibit "A" has been relied upon by the petitioner as evidence in support of the said averment. She also invited my attention to the averments made in paragraphs 7, 15, 17 and 19 of the election petition and submits that the petitioner has already given the extract of the voters'' list in the election petition. She submits that the extract of the voters'' list is forming part of one document. The petitioner has already signed the verification at the end of the document.
29. It is submitted that in view of the office objection raised by the Court, the petitioner was required to annexe the translation of some of the documents which were in Marathi. She submits that since those documents are not integral documents, no verification was required. It is submitted that the petitioner had already mentioned the names of 26 dead persons in the body of the petition and had annexed the death certificates in respect of those 26 persons in evidence and had verified all the documents collectively at Exhibit "D". No such objection was ever raised by the respondent no.1 in the written statement. She submits that the petitioner has already filed separate affidavit in respect of each document. The typed copies and translation of the documents in Marathi cannot be considered as a separate document. She invited my attention to the verification of these documents on various pages of the election petition and would submit that in the verification clause, all the copies of the documents have been verified collectively.
30. It is submitted that section 83(2) of the said Act does not refer to the translated copy of a document in any other language other than English. She submits that the initial objection of the respondent no.1 was that the original documents were not verified, which objection itself was frivolous. In support of this submission, she invited my attention to page nos.135 and 157 of the election petition.
31. Learned counsel for the petitioner distinguished the judgment of the Supreme Court in case of Sahodrabai Rai vs. Ram Singh Aharwar & Ors. (supra) on the ground that in that matter the original pamphlet was though attached to the election petition with an averment that "it formed part of the petition" it was not served upon the respondent along with the copy of the election petition. The Supreme Court accordingly held that even though the document is outside the election petition, it must be signed and verified but such annexure or schedules are then treated as integral with the election petition and the copies of the documents ought to have been served upon the respondent. The Supreme Court however, clarified that what was stated in the said judgment did not apply to the documents which were merely evidence in the case but which for reason of clarity and to lend force to the petition were not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but were only evidence of those averments and in proof thereof. The Supreme Court held that the pamphlet therefore, must be treated as the document and not a part of election petition insofar as the averments were concerned. She submits that since various documents though annexed to the election petition were already referred to in the election petition itself, the same were not integral part of the election petition but were relied upon as evidence. The contents of the documents were not taken as averments.
32. Learned counsel for the petitioner distinguished the judgment of the Supreme Court in case of Regu Mahesh @ Regu Maheswar Rao (supra) on the ground that the Supreme Court has adverted to the earlier judgment in case of F.A. Sapa & Ors. and in case of R.P. Moidutty vs. P.T. Kunju Mohammad & Anr., (2000) 1 SCC 481 in which it was held by the Supreme Court that though the defect in the verification was pointed out by raising a plea in that regard in the written statement, which objection was pressed and pursued by arguing the same before the Court, the petitioner had persisted in pursuing the petition without proper verification and thus dismissed the said petition on that ground. She submits that in this case, the objection raised by the respondent no.1 in the written statement are totally vague. Though the petitioner had amended the election petition earlier, no objection was raised by the respondent no.1.
33. Learned counsel for the petitioner distinguished the judgment of the Supreme Court in case of R.P. Moidutty (supra) on the ground that during the pendency of the trial, the petitioner had not cured the defects though pointed out. She submits that in this case when the objections were raised in respect of the allegations of corrupt practice, the petitioner immediately withdrew those allegations of corrupt practice. She submits that this is not a case where the petitioner has not cured the defects though the same are pointed by the respondent no.1. She submits that even at this stage if this Court comes to the conclusion that still if any defects exist in the election petition filed by the petitioner, the petitioner may be granted an opportunity to cure those defects.
34. Learned counsel for the petitioner invited my attention to paragraph 2 of the written statement filed by the respondent no.1 and would submit that the entire written statement proceeds on the premise that the petition was alleged to be defective for the alleged non-compliance of section 83 of the said Act. There was no reference to any document or affidavit in support in support in the written statement. The petitioner has already deleted the statutory affidavit in support of the allegations of corrupt practice. She also invited my attention to paragraphs 2 to 5 of this application and would submit that even these allegations made in the application are totally vague. She submits that it is not the case of the respondent no.1 that the petitioner was negligent.
35. Learned counsel placed reliance on Rules 7 and 8 of the Bombay High Court (Original Side) Rules regarding election petition. She submits that the election petition was examined by the office of this Court and all the objections raised by the office of this Court had been already removed by the petitioner. She submits that only after such office objections were removed by the petitioner, the election petition was numbered and placed before this Court for appropriate orders. She submits that the verification of the petition was in accordance with the provisions of the Bombay High Court (Original Side) Rules.
36. Learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in case of Umesh Challiyill vs. K.P. Rajendran, (2008) 11 SCC 740 and more particularly paragraphs 7, 10, 12, 13 and 19 and would submit that in the said judgment, the judgment of the Supreme Court in case of R.P. Moidutty (supra) has been distinguished by the Supreme Court. She submits that the Court has to consider the nature of objection raised by the respondent no.1 while considering an application for dismissal of the election petition on the ground of the alleged defects. She submits that only if the defect goes to the root of the matter is not cured, inspite of raising such objection by the petitioner, the election petition can be dismissed.
37. Learned counsel placed reliance on the judgment of the Supreme Court in case of Ponnala Lakshmaiah vs. Kommuri Pratap Reddy & Ors., (2012) 7 SCC 788 and in particular paragraph 18 in support of her submission that no notice was given by the applicant to the petitioner for curing the alleged defects. The onus was on the applicant to file an application to point out the specific defects, if any, in the election petition. She submits that since the allegations of the alleged defect made by the respondent no.1 in the written statement are totally vague and there is no opportunity made available to the petitioner to cure such alleged defects. She cited few more judgments for consideration of this Court.
38. Mr.Borulkar, learned counsel appearing for the applicant in rejoinder submits that the petitioner cannot expect the applicant to point out specific defects or to give an opportunity to the petitioner to cure such defects. He submits that in the written statement, the respondent no.1 had already pleaded that there were several defects in the election petition and that the pleadings of the petitioner was not in compliance with section 83 of the said Act. In support of this submission, he invited my attention to paragraph 2 of the written statement. He submits that the pleadings of the petitioner is not verified in the manner laid down in the order 19 Rule 3. He submits that the affidavit must be in confirmity with the provisions of Order 6 Rule 15 of the Code of Civil Procedure.
39. Learned counsel for the applicant invited my attention to page 158 of the election petition and would submit that the said affidavit is not in compliance with Order 6 Rule 15(4) of the Rules.
40. It is submitted that there are different voters'' list annexed by the petitioner in the election petition and each of such voters'' list is a separate document requiring separate verification. He submits that the petitioner has annexed the voters'' list of other constituencies and thus the procedure under section 83(2) of the said Act was mandatory. Each of the document was a separate document within the meaning of section 83(2) of the said Act. He placed reliance on the judgment of the Supreme Court in case of M. Karunanidhi vs. H.V. Handa & Ors., AIR 1983 SC, 558, and more particularly paragraphs 39, 41, 42.
41. Learned counsel for the applicant placed reliance of the Delhi High Court in case of Mukhtiar Singh vs. Chief Election Officer, 1996 (37) Delhi Report Judgments, 344 and in particular paragraphs 8 to 13. It is submitted that the voters'' list of different constituency was relied upon by the petitioner to further case of the petitioner and was integral part of the petition. It is submitted that after the petitioner contends that the documents were integral part of the petition, the election petition deserves to be dismissed on that ground alone.
42. Learned counsel for the applicant placed reliance on the judgment of this Court in case of Narendra Bhikahi Darade vs. Kalyanrao Jaywantrao Patil & Ors., 2000(3) Bom.C.R. 744 and in particular paragraph 21 thereof. He submits that since the election petition is not in compliance with sections 81, 83 and 86, the election petition has to be dismissed under the said provisions since the defects are not cured.
43. Ms.Kanade, learned counsel for the petitioner distinguished the judgment of the Delhi High Court in case of Mukhtiar Singh (supra) on the ground that in that case there was an averment that annexure 5 was to be treated as part of the petition. All the names were not given in the petition itself. In this case, the petitioner has given all the names, which are mentioned in those documents in the petition itself.
44. Learned counsel for the petitioner distinguished the judgment of the Supreme Court in case of M. Karunanidhi (supra) on the ground that since the contents of the document were not referred to in the election petition, a photocopy became integral part of the petition. She submits that paragraph 39 of the said paragraph has to be read with paragraph 4. A copy of the photocopy was admittedly not furnished to the respondent in that case. She submits that the facts before the Supreme Court in the said judgment are totally distinguishable with the facts of this case. There was a specific averment in the written statement pointing out the defect in the election petition, which is not averred in this case in the written statement.
REASONS AND CONCLUSIONS :
45. There is no dispute that in various paragraphs of the
election petition, the petitioner had alleged corrupt practice alleged to
have been committed by the applicant in Vidhansabha Election -
2014 in Constituency - 193. On 20th September, 2016, the learned
counsel for the petitioner made a statement before this Court that her
client would withdraw all the allegations of corrupt practice made in
the election petition against the respondent no.1 and sought time to
file an application for appropriate amendment to the election petition.
The petitioner thereafter filed Application(Lodging) No.21 of 2016
inter-alia praying for amendment to various paragraphs of the election
petition and more particularly along with annexures as per schedule
of the amendment annexed to the said application. On 6th February,
2017, this Court recorded the statement made by the learned counsel
for the respondent no.1 that his client did not have any objection if the
amendment was allowed. He however, did not admit the contents of
the amendment proposed to be carried out by the petitioner.
46. This Court accordingly passed an order on 6th February, 2017, allowing the said application in terms of prayer clause (a) and keeping all the contentions open. Pursuant to the said order passed by this Court, the petitioner deleted all the allegations of corrupt practice made in the election petition against the applicant by amending the petition and also deleted the affidavit filed under Rule 94 A from the election petition.
47. The petitioner thereafter made an oral application on 16th March, 2017 for amendment in the verification clause at page 157 on the ground that the amendments sought in the earlier application was inadvertently applied on page 152 instead of page 157. Learned counsel for the respondent no.1 gave his no objection if the amendment as sought verbally on 16th March, 2017 before this Court was allowed. This Court accordingly passed an order on 16th March, 2017 allowing the amendments as sought verbally by the learned counsel for the petitioner insofar as the verification clause is concerned. This Court also dispensed with re-verification. The petitioner accordingly carried out the said amendment.
48. A perusal of the written statement filed by the respondent no.1 on 7th May, 2015 indicates that in paragraph 2 of the written statement, it is contended by the respondent no.1 that the election petition filed by the petitioner is liable to be dismissed on the ground that the same is filed without complying with the mandatory provisions of section 83 of the Representation of People Act,1951. It is further contended that the petitioner has though alleged corrupt practice within the meaning of section 123(2)(a)(i), the petitioner had failed to give concise statement of the material facts on which the petitioner had relied and had failed to set forth the full particulars of corrupt practice in the petition. It was alleged that the pleading was not verified in the manner laid down. It is contended that the affidavit on page 160 of the petition was not in the prescribed form no.25 under Rule 94 A of the said Rules. It is alleged that the affidavit at page no.160 does not disclose the source of knowledge and source of information in support of the allegation made by he petitioner. There is no other ground raised in the written statement for dismissal of the election petition or pointing out any other defect under the provisions of the Representation of People Act.
49. It is not in dispute that after filing of such written statement by the respondent no.1, all the allegations of corrupt practice are already withdrawn by the petitioner. Insofar as the affidavit at page 160 filed under Rule 94 A which was allegedly not in the prescribed Form No.25 as canvassed by the respondent no.1 in the written statement also came to be deleted. The objection of the applicant that the affidavit at page 160 does not disclose the source of knowledge and source of information in support of the allegations made by the petitioner did not survive. Insofar as the contentions raised in the written statement that the pleadings were not verified in the manner laid down also does not survive in view of the amendment permitted by this Court to the verification clause which specifically states that the contents of various paragraphs of the election petition were true to the knowledge of the petitioner and which paragraphs are based on information received by him which he believed to be true.
50. Insofar as the application filed by the respondent no.1 for dismissal of the election petition is concerned, a perusal of the said application indicates that it is averred by the respondent no.1 that only after bringing defects in the verification clause and the pleadings under Order 6 Rule 15 of the Code of Civil Procedure, 1908 and section 83 of the said Act by the applicant in the written statement, the petitioner sought leave to amend the pleadings. This Court by an order dated 6th February, 2017 passed an order on Application (Lodging) No.21 of 2016 allowing the petitioner to amend the pleadings and to cure the defects. In paragraph 4 of the said application, it is alleged that on perusal of the amended copy of the petition served upon the applicant, it was realized that inspite of an opportunity given to the petitioner, he had failed and neglected to cure the defects in verification and the affidavit in support in confirmity with the provisions of Code of Civil Procedure, 1908 and also failed to comply with the provisions of section 83 of the said Act. In paragraph 5, it is contended that in view of the defect continuing in verification and in the affidavit in support of the election petition, the present petition as presented is liable to be dismissed in limine.
51. Though the grounds now raised in the Application (Lodging) No.4 of 2017 are equally vague, during the course of argument, learned counsel for the applicant (original respondent no.1) pointed out various alleged defects which according to his client continued in verification and in the affidavit in support of the election petition which according to him warrants dismissal of the election petition in limine.
52. I shall now deal with the contentions raised in the written statement, in the affidavit in support of civil application and also across the bar alleging the defects in the election petition and shall also decide whether such alleged defects pointed out across the bar can be allowed to be raised or even if can be raised whether can be allowed to be cured at this stage or not.
53. A perusal of the affidavit in reply dated 22nd March, 2017 filed by the petitioner to this application, indicates that the petitioner has contended in the affidavit in reply that the application filed by the applicant (original respondent no.1) is totally vague and devoid of any particulars on the basis of which he is seeking dismissal of the election petition and thus the said application deserves to be dismissed on this ground alone. It is contended by the petitioner that after pointing out certain defects in verification clauses to the applicant, the petitioner took out an application for amendment, giving specific schedule of amendment in order to cure some inadvertent defects in the election petition. The applicant however, did not oppose the said application. This Court accordingly allowed the petitioner to carry out those amendments by an order dated 6th February, 2017. It is the case of the petitioner that all the defects in the election petition have been thus already cured. However, if any further defects are required to be cured, as now alleged, the applicant ought to have been taken objection to that effect during the course of hearing of the application for amendment. No objection however, for carrying out the amendment has been raised by the applicant. He in fact gave his no objection for allowing the said Application (Lodging) No.21 of 2016.
54. It is the case of the applicant across the bar now that the applicant has annexed several voters'' list of different constituencies in Marathi as well as English transaction thereof as Exhibit "C". It is submitted that though each and every voters'' list of different wards is a separate document, including transaction thereof, the petitioner on page 135 of the election petition has not verified separately in respect of each and every document but only on that page has verified all the documents together. It is contended that that this defect has not been cured by the petitioner though an objection was raised in that regard in the written statement filed by the applicant (original respondent no.1). On perusal of the written statement, I do not find any such specific objection raised by the applicant.
55. Insofar as Exhibit "A" to the petition is concerned, the petitioner has annexed a photocopy of the certificate of election dated 19th October, 2014 and also typed copy of the said certificate. On page 55 of the election petition, the petitioner has verified the said Exhibit "A"and has declared that the said document at Exhibit "A" is a true copy of the certificate of election dated 19th October, 2014 and the contents of it are true to his own knowledge. The petitioner had filed a list of document along with compilation of documents containing 66 documents. By an order dated 20th September, 2016 passed by this Court, after hearing the learned counsel for the petitioner and the respondent no.1, this Court has marked some of those documents as Exhibit. Insofar as the document which is Exhibit "A" i.e. certificate of election is concerned, the applicant has not disputed the existence and contents of the said document and thus the said document is marked as Exhibit "P-1" by this Court.
56. Insofar as the documents annexed by the petitioner to Exhibit "B" i.e. final result sheet is concerned at page 70 of the election petition, the petitioner has verified the said document as true copy of the final result sheet of the election of the State Legislative Constituency - 193. The existence and the contents of this document also are admitted by the applicant before this Court and the said document has been thus marked as Exhibit "P-2".
57. Insofar as Exhibit "C" i.e. several voters'' list of various constituencies are concerned, the petitioner has annexed the photocopy of the voters'' list in Marathi and has also annexed English transaction thereof as Exhibit "C". On page 135 of the election petition, the petitioner has verified those documents at Exhibit "C" as true copies of the relevant extract of the relevant voters'' list. The applicant has admitted the existence and the contents of those documents also and the same are thus marked as Exhibits "P-3 to P- 10". Insofar as Exhibit "D" is concerned, the petitioner has annexed various applications for copies of death certificates registration. The petitioner has also annexed the translation of those applications along with the photocopy of those applications, which are in Marathi. On page 152 of the petition, the petitioner has verified those documents and has declared that those documents at Exhibit "D" were true copies of the death certificates of eight persons and the contents thereof are based on information. Insofar as the copies of death certificates annexed by the petitioner are concerned, the applicant has disputed the contents of those documents and thus the documents are marked as Exhibits "P-12 to P-32".
58. Insofar as Exhibit "E" is concerned, the petitioner has annexed the copy of the order passed by the Election Officer directing re-count of the votes. The petitioner has annexed the said document in Marathi and also an English translation thereof at Exhibit "E". On page 157 of the petition, the petitioner has verified the said documents and has declared that those documents Exhibit "E" were true copies of the said order dated 19th October, 2014 along with true translation and that the contents thereof are based on the information and he believed to be true. It is thus clear that except the death certificates of various voters annexed to the petition by the petitioner, the applicant has not disputed the existence and contents of the copy of the certificate of election, copy of the final result sheet declared by the Election Commissioner of India and the copies of various extracts of voters'' list of different constituencies. It is not in dispute that all those documents which were annexed to the petition including translation of those documents were also served upon the applicant by the petitioner before the applicant filed his written statement and before filing the aforesaid application.
59. The Supreme Court in case of Umesh Challiyill vs. K.P. Rajendran, (2008) 11 SCC 740 has considered the preliminary objection raised by the successful candidates alleging noncompliance of the proviso to section 83(1) of the said Act. Supreme Court also considered the alleged defect with regard to the verification which is required as per the provisions of Order 6 Rule 15 of the Code of Civil Procedure, 1908. The learned Single Judge had dismissed the election petition on the ground that the petitioner had not signed and affirmed in the manner in as much as there was no certification of the Notary that it was solemnly affirmed by the petitioner before him. It was contended by the successful candidate before the Supreme Court that the affidavit did not bear the certification by the Notary as to the affirmation by the deponent since such certification ought to be by the Notary after the signature of the deponent.
60. The Supreme Court held that such defect on which the election petition was dismissed by the learned Single Judge was of very minor nature and was too innocuous to have resulted into dismissal of the election petition on the basis of the preliminary objection. It is held that the Courts have to view it whether the objections go to the root of the matter or they are only cosmetic in nature. It is held that the election petition should not be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should contain material facts. It is held that Section 86 says that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 of Section 82 or Section 117. Supreme Court held that even if the Court had construed them to be of serious nature, at least notice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset.
61. The Supreme Court held that in case that the learned Single Judge found that the election petition was not in the format then after recording his finding, learned Single Judge should have given an opportunity to the petitioner to amend or cure certain defects pointed out by the Court. It is held that these are not the grounds mentioned in section 86 of the Act for dismissal of election petition. Supreme Court held that even if it is to entail serious consequence of dismissal of the election petition for not being properly constituted, then too at least the petitioner should have been given an opportunity to cure these defects and put the election petition in proper format. Learned Single Judge instead of giving an opportunity has taken the easy course to dismiss the election petition which in our opinion which was not warranted.
62. The Supreme Court in the said judgment in case of Umesh Challiyill (supra) also considered its earlier judgment in case of H.D. Revanna vs. G. Puttaswamy Gowda & Ors. (1999) 2 SCC 217 in which the Supreme Court held that section 86 of the said Act does does not refer to section 83 and non-compliance with section 83 does not lead to dismissal under section 86. Supreme Court held that non-compliance with section 83 may lead to dismissal of the petition if the matter falls within the Scope of Order 6 Rule 15 or Order 7 Rule 11 of the Code of Civil Procedure, 1908. Defect in verification of the election petition or the affidavit accompanying the election petition has been held to be curable and not fatal.
63. Supreme Court distinguished its judgment in case of R.P. Moidutty (supra). In that case also the objection of improper verification was pressed into service but neither the verification in the election petition nor the affidavit was cured and on the contrary the same was pressed into service and pursued by the election petitioner by arguing the matter before the Court. Since the election petitioner persistently pursued the election petition without rectification, Supreme Court dismissed the petition on that ground. The High Court had dismissed the said petition not at the threshold but after going through the whole trial in that matter.
64. In this case various alleged defects are pointed out by the applicant which were not pointed out in the written statement or in the affidavit in support of this civil application. It is not the case of the applicant that any of these alleged defects which are urged across the bar by the applicant would fall under section 81 or under section 82 or section 117 or that the alleged defects in verification was under order 6 Rule16 or under Order 7 Rule 11 of the Code of Civil Procedure. In my view, the judgment of Supreme Court in case of Umesh Challiyill (supra) squarely applies to the facts of this case. I am respectfully bound by the said judgment.
65. The Supreme Court in case of Dr.Vijay Laxmi Sadho vs. Jagdish, AIR 2001 SC 600 has held that the requirements of filing an affidavit along with the election petition, in the prescribed form, in support of allegations of corrupt practice is contained in section 83(1) of the Act. Election petition is not liable to be dismissed in limine under section 83 of the said Act for alleged non-compliance with provisions of section 83(1) of the Act or of its proviso. It is held that what other consequences, if any, may follow from the an allegedly defective affidavit, is to be judged at the trial of an election petition but Section 86(1) of the said Act in terms cannot be attracted to such a case.
66. The Supreme Court in case of A.K.K. Nambiar vs. Union of India and Another, AIR 1970 SC 652 has held that a defect in the verification by itself will not be sufficient to dismiss the petition. It is held that any defect in the verification will not attract the dismissal of the petition by the High Court on that ground alone.
67. A perusal of section 86 of the said Act itself provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Section 83 of the said Act provides for contents of the election petition. A perusal of the objection raised in the written statement indicates that the allegation that the election petition did not contain a concise statement of the material facts on which the petitioner had relied upon was in respect of the allegations of corrupt practice made by the petitioner in the petition and not in respect of any other pleadings. It was also not urged in the written statement or in the affidavit in support of the civil application that the verification in respect of some of the exhibits was not proper. There was no specific objection raised in the written statement or in the affidavit in support of the civil application that the typed copies of the original documents or that the English translation of some of the documents annexed to the election petition were separate annexures to the petition and were also required to be signed and verified in the same manner as the petition.
68. In my view, the nature of alleged defect pointed out by the appellant across the bar are relating to the verification of some of the documents which objections in my view do not go to the root of the matter but are only cosmetic in nature and are just raised with a view to delay the hearing of this petition further. Admittedly, the applicant has admitted the existence and contents of most of the documents which are annexed by the petitioner in the election petition as well as in the compilation of the documents. Most of these documents are already marked as exhibits by this Court. The Court cannot dismiss the election petition in limine by accepting such casual and petty objections and that also raised across the bar which do not go to the root of the matter and are innocuous.
69. Supreme Court in case of Sardar Harcharan Singh Brar vs. Sukh Darshan Singh and Ors., (2004) 11 SCC 196 has held that non-compliance with the provisions of section 83 of the Act, however, does not attract the consequences envisaged by section 86(1) of the Act. It is held that the election petition is not liable to be dismissed in limine under section 86 of the Act, for alleged noncompliance 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.
70. It is not in dispute that the true copy of the election petition along with the annexures were served upon the respondent no.1 by the petitioner in the year 2014 itself. The applicant had filed a written statement to the election petition on 8th May, 2015 raising various objections. The applicant did not file any application for dismissal of the election petition in limine immediately. On the contrary, the applicant gave his consent in allowing the amendment to the election petition when the Application (Lodging) No.21 of 2016 inter-alia praying for amendment was argued. The applicant had already filed his statement of admission and denial admitting most of the documents on 24th June, 2016. This Court has already marked those documents as exhibits by a separate order passed on 20th September, 2016.
71. The applicant had thereafter made an oral application for amendment in view of the inadvertent error insofar as verification on page no.152 of the election petition was concerned. On 16th March, 2017, the applicant gave his consent to allow further amendment applied by the petitioner orally. On 16th March, 2017, even at that stage, the applicant did not file any application for dismissal of the petition in limine. The petitioner thereafter filed three separate applications for various other reliefs. The applicant has now filed the present application for dismissal of the election petition in limine. Such gross delay on the part of the applicant in filing application for dismissal of the election petition in limine on the ground of certain alleged defects pointed out across the bar and not raised in the written statement or in this application thus deserves to be dismissed on the ground of delay also.
72. Insofar as submission of the learned counsel for the applicant that under section 83(2), all the annexures to the petition including the translation of the documents in English or the typed copy of the handwritten document also has to be signed by the petitioner and verified in the same manner as the petition is concerned, it is not in dispute that the entire copy of the petition along with translated copy or the typed copy of the hand written document was already furnished by the petitioner to the applicant long back. The petitioner has already verified all the documents annexed to the petition, however all together at the end of such documents by a separate verification clause. The existence and contents of such document are admitted by the applicant himself. It is not the case of the applicant that the petitioner has not served the true and correct copy of the entire petition including all annexures duly certified as true and correct copy upon the applicant. Be that as it may, such an objection relating to an alleged defect in verification of the annexures to the petition does not go to the root of the matter and is curable defect and thus can be rectified by giving an opportunity to the petitioner.
73. Insofar as Exhibit "A" i.e. certificate of election is concerned, the petitioner has annexed a typed copy of the said document at page 54. It is certified as true copy by the learned advocate for the petitioner. The petitioner has verified and declared the said document at page no.55 as Exhibit "A" as a true copy of the certificate of election dated 19th October, 2014. It is not the case of the applicant that a typed copy annexed at page 54 is not a true or correct copy thereof.
74. Insofar as Exhibit "B" is concerned, the petitioner has verified the said document at page 70 as true copy of the final result sheet of the election. It is not the case of the applicant that the said document annexed at Exhibit "B" is not a true copy of the final result sheet. Insofar as documents annexed at Exhibit "C" are concerned, the same are voters'' list of various constituents which are in Marathi as well as English translation thereof and all these documents are verified and declared by the petitioner at page 135 as true copies of the relevant extract of the relevant voters'' list. The applicant has not disputed the existence and contents thereof.
75. Insofar as Exhibit "D" is concerned, the petitioner has annexed the copies of the death certificate of 8 persons whose names are given in the election petition. The petitioner has annexed the photocopies of the death certificates in Marathi as well as the English translation thereof under Exhibit "D". The petitioner has verified those documents at page 152 as true copies of the death certificates.
76. A perusal of the petition indicates that in respect of all exhibits annexed to the petition, the petitioner has averred the contents of those documents in the petition itself. The petitioner has also given the names and details of 146 persons alleging that their names are in the voters'' list of more than one constituencies. Similarly the petitioner has also disclosed the names of 37 deceased persons out of which the petitioner has annexed copies of death certificates of 8 persons. It is averred that the petitioner is in process of obtaining death certificate of other deceased persons.
77. Under Sub-Rule 4 of Rule 15 of Order 6 of the Code of Civil Procedure, 1908, the persons verifying the pleadings is also required to furnish affidavit in support of his pleadings. It is not in dispute that at page 158 of the election petition, the petitioner has already filed an affidavit in support dated 2nd December, 2014 and has repeated, reiterated and confirmed the averments made in the accompanying election petition. It is averred that the same has been deemed to have been incorporated in the said affidavit. In my view there is thus no substance in the submission of the learned counsel for the applicant that the affidavit in support of the election petition was not in compliance with the Sub Rule 4 of Rule 15 of Order 6.
78. Under Rule 7 of the Bombay High Court (Original Side) Rules under Appendix II relating to election petition provides that after the petition is presented, the party or advocate has to attend the office on the third day from the date of presentation to remove the objections, if any. Rule 8 provides that the office shall examine the petition with a view to see whether it is in conformity with the requirements of law and the rules applicable to the same and if it is not in conformity with law and the rules, raise objections which shall be removed by the party or the advocate concerned. It is provided that those objections should be brought to the notice of the party or the advocate on the date fixed for attendance under Rule 7 and such objections shall be removed, subject to the orders of the Judge, if any, within two days thereafter. Under Rule 9, immediately after the time fixed for removal of objections, the petition shall be placed before the Judge for such orders as may be required to be passed under section 86 of the Act. If the petition is not dismissed under section 86(1) of the Act, a summons, on the direction of the Judge, shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. A perusal of the docket of the election petition indicates that hardly any objections were raised by the office except one. The petitioner has removed all the objections whatever were raised by the office on 3rd December,2014. The petition was therefore ordered to be filed by the office.
79. Insofar as judgment of Supreme Court in case of Regu Mahesh (supra) relied upon by the learned counsel for the applicant is concerned, it is held by the Supreme Court that Order 6 Rule 15 Sub Rule (2), describes that a person making a verification is required to specify by reference to the numbers of paragraphs of the pleadings what he believes on his own knowledge and what he reveals upon information received and believed to be true. No such objection is raised by the petitioner in the written statement or in the affidavit in support of the civil application. Be that as it may, the defect if any in verification of the pleadings is curable defect and can be rectified by giving an opportunity to the petitioner to remove such defect.
80. In my view there is no requirement to incorporate what is incorporated in the verification clause under Order 6 Rule 15(2) in the affidavit in support of the pleadings. Such defect if any can be cured and the election petition cannot be dismissed in limine. It is not in dispute that the petitioner has been making a request before this Court since inception that in case if this Court comes to the conclusion that there are any defect in the election petition, the petitioner is ready and willing to rectify the same. I am thus inclined to accept the submission of the learned counsel for the petitioner that in respect of such defects which are curable as pointed out aforesaid, an opportunity shall be granted to the petitioner to cure the same immediately. The judgment of Supreme Court in case of Regu Mahesh (supra) does not forward the case of the applicant.
81. Insofar the judgment of the Supreme Court in case of Amar Singh (supra) is concerned, it is held by the Supreme Court that perfunctory and slipshod affidavits which are not consistent either with Order 19 Rule 3 of the Code of Civil Procedure, 1908 or with Order 11 Rules 5 and 13 of the Supreme Court Rules should not be entertained by the Supreme Court. In my view, the said judgment of the Supreme Court does not apply to the facts of this case at all in any manner whatsoever.
82. Insofar as the judgment of the Supreme Court in case of G.M. Siddheshwar (supra) relied upon by the learned counsel for the applicant is concerned, it is held by the Supreme Court that section 83(1)(c) of the said Act requires the election petitioner to verify the election petition in the manner prescribed in the Code of Civil Procedure, 1908. It is held that Order 6 Rule 15 requires an affidavit also to be filed which does not mean that the verification of a plaint is incomplete if an affidavit is not filed. The affidavit in that context is a standalone document. It is held by the Supreme Court that the plaint on simple reading of section 83(1)(c) of the said 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 under under the Code of Civil Procedure, 1908 may be mandatory in terms of Order 6 Rule 15(4) of the Code of Civil Procedure, 1908, the affidavit is not a part of verification of the pleadings and both are quite different. It is held that 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. It is held that no such requirement exists in section 83(1)(c) of the Act.
83. The Supreme Court has held in the said judgment that the Code of Civil Procedure, 1908 no doubt requires that the 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 very the contents of the election petition in the manner prescribed by the Code of Civil Procedure, 1908. There is no requirement of the election petitioner "also" filing an affidavit in support of averments made in the election petition except when the allegations of corrupt practice have been made. The Supreme Court however considered the situation that where a composite affidavit was filed by the election petitioner, both in support of the averments made in the election petition and with regard to the allegations of corrupt practice by the returned candidate, it is held that the said procedure was not contrary to law and cannot be faulted.
84. It is held that such a composite affidavit would not only be in substantial compliance with the requirements of the Act but would actually be in full compliance thereof. It is held that filing of two affidavits is not warranted by the Act nor is it necessary, specially when a composite affidavit can achieve desired result. The Supreme Court held 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 without the allegations of corrupt practice are made by the election petitioner.
85. The Supreme Court in the said judgment of G.M. Siddheshwar (supra) has adverted to its judgment in case of Ponnala Lakshmaiah vs. Kommuri Pratap Reddy & Ors., (2012) 7 SCC 788 in which it has been held by the Supreme Court that what is important and at the heart of the requirement is whether the election petitioner has made averments which are testified by him on oath, no matter in a form other than one i.e. stipulated by the Rules. It is held that absence of an affidavit or an affidavit in a form other than one stipulated by the Rules does not by itself cause any prejudice to the successful candidate so long as deficiency is cured by the election petitioner by filing a proper affidavit when directed to do so. The Supreme Court in case of G.M. Siddheshwar (supra) has reiterated the same view.
86. In this case, the petitioner had filed two separate affidavits i.e. one affidavit in support of the averments made in the election petition and another affidavit was in statutory Form No.25 under Rule 94 A of the said Rules. The petitioner has admittedly withdrawn all the allegations of the corrupt practice made against the applicant and simultaneously also withdrew the said affidavit filed under Rule 94 A of the said Rules. One affidavit however, remains on record. Be that as it may, in view of the judgment of the Supreme Court in case of G.M. Siddheshwar (supra), no such affidavit in support of the averments is mandatory. In any event to obviate any further objection by the applicant, I am inclined to grant an opportunity to the petitioner to amend the existing affidavit affirming what is stated in the verification clause in compliance with Rule 15(4) of the Code of Civil Procedure, 1908.
87. The Supreme Court in the said judgment of G.M. Siddheshwar (supra) also dealt with the issue as to whether an affidavit required to e filed under proviso to section 83(1)(c) is an integral part of the election petition and if so whether non-filing of additional affidavit would be fatal to the maintainability of the election petition. The Supreme Court in the said judgment adverted to its earlier judgment in case of Sahodrabai Rai (supra) in which it is held that where the averments are two compendious for being included in an election petition, they may set out in the schedules or annexures to the election petition. In such an event, these schedules or annexures would be an integral part of the election petition and must therefore be served on the respondent. This is quite distinct from the documents which may be annexed to the election petition by way of evidence and so do not form any integral part of the averments of the election petition and may not therefore be served on the respondent. The Supreme Court also considered its earlier judgment in case of M. Kamalam vs. Dr.V.A. Syed Mohammed, (1978) 2 SCC 659 (supra) in which it is held that the schedule or annexure which is an integral part of the election petition must comply with the provisions of section 83(2) of the said Act. Similarly, the affidavit referred to under the proviso to section 83(1) of the Act where the election petitioner alleged corrupt practice by the returned candidate also forms a part of the election petition. It is held that if an affidavit, at the end of the election petition is attested as true copy, then there is sufficient compliance with the requirement of section 81(3) of the Act and would tantamount to attesting the election petition itself.
88. The Supreme Court also considered its earlier judgment in case of F.A. Sapa & Ors. vs. Singora & Ors., (1991) 3 SCC 375. In the said judgment, the Supreme Court construed Rule 94 A of the said Rules, Form No.25 and also Order 6 Rule 15 and Order 19 Rule 3 of the Code of Civil Procedure, 1908 and held as under :-
"28. From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (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. Similarly the Court would have to decide in each individual case whether the schedule or annexure referred to in Section 83(2) constitutes an integral part of the election petition or not; different considerations will follow in the case of the former as compared to those in the case of the latter."
89. Insofar as the judgment of this Court in case of Narendra Bhikahi Darade (supra) relied upon by the learned counsel for the applicant is concerned, this Court had considered the preliminary objection by the successful candidate that though all the pages of the election petition were signed by the petitioner, many of the pages of copies of the election petition which was served on the respondent, did not contain the signature of the petitioner thereby attesting as true copy. This Court considered the objection that in all most all places where the verification was done, it was written "Sd/- Associate of Bombay High Court" whereas in the original seal, the name of the Associate was there. However, in the copy of the election petition nowhere the name of the attesting officer was written. This Court in the facts of that case held that it was not non-supply of material particulars only but was non-verification of concise statement and affidavit. It is held that in the copy of the election petition, the absence of verification of concise statement and affidavit can be treated as not only defective under section 83(2) but also a non-compliance of section 81(3) of the Act as true copy of the election petition cannot be set to be served on the respondent.
90. In my view, the said judgment of this Court is clearly distinguishable in the facts of this case. It is not the case of the applicant that the petitioner has not supplied true and correct copy of the petition filed by the petitioner in this Court upon the applicant. The petitioner has not set up a defence under section 81(3) of the said Act either in the written statement or in this application or has not urged any argument even across the bar based on the said provision.
91. Insofar as the judgment of the Supreme Court in case of M. Karunanidhi (supra) relied upon by the learned counsel for the applicant is concerned, the Supreme Court in the facts of that case held that the photocopy was not merely a document accompanying an election petition but was part and parcel of the pleading containing paragraph 18(b). In my view, the said judgment is clearly distinguishable in the facts and circumstances of this case. The contents of the documents annexed by the petitioner to the election petition are set out in the petition itself. The judgment of the Supreme Court in case of M. Karunanidhi (supra) thus would not advance the case of the applicant.
92. Insofar as judgment of Delhi High Court in case of Mukhtiar Singh (supra) relied upon by the learned counsel for the applicant is concerned, a perusal of the said judgment indicates that in the election petition which was subject matter of the said judgment, the election petitioner had not given the names and particulars of all the persons who had been allegedly deprived of the opportunity to vote in the election and treated the annexures to be a part of the election petition. In this case, the petitioner has given names of all such persons in the election petition itself and thus the annexures would not form an integral part of the election petition. Delhi High Court has accordingly held that the annexure according to the own showing of the petitioner is not outside the election petition. In my view, the said judgment of Delhi High Court is clearly distinguishable in the facts of this case and would not forward the case of the applicant.
93. Insofar as submission of the learned counsel for the applicant that inspite of the objections raised by the applicant in the written statement, even while appearing the earlier application for amendment filed by the petitioner, however the petitioner did not pray for an opportunity to cure all the defects pointed out by the applicant, the petitioner thus cannot be allowed to cure any defects now and thus the election petition deserves to be dismissed on that ground is concerned, in my view there is no merit in this submission of the learned counsel for the applicant. Various objections raised by the applicant across the bar were not raised by the applicant either in the written statement or in this application. The applicant had carried out the earlier amendment in view of the plea raised by the respondent no.1 regarding various allegations of corrupt practices made by the petitioner in the election petition by consent of the applicant. The petitioner had also sought an amendment to the verification clause which was granted by this Court by consent of the applicant.
94. In my view since the petitioner did not have any opportunity to cure the alleged defects pointed out by the applicant across the bar, the election petition cannot be dismissed on the ground that inspite of the opportunity granted to the petitioner to cure such defects, the petitioner did not apply for amendment to the election petition with a view to cure such defects. It is clear that the applicant has chosen to point out alleged defect in piecemeal and not at one stretch inspite of the opportunity he had to point out such alleged defects while filing written statement.
95. Insofar as the translation of various documents annexed by the petitioner along with the copy of the document which is in Marathi is concerned, it is not the case of the applicant that the translation annexed by the petitioner of such document is not the translation of the same document which is in Marathi. It is also not in dispute that the copy of the translation was served upon the applicant by the petitioner as true copy along with the copy of the original documents in Marathi. The requirement of providing a translation is under the High Court (Original Side) Rules. The authenticity of the translation is not disputed by the applicant. It is also not the case of the applicant that the translation of the documents annexed to the election petition is not the correct translation of the said documents. Even if the translation of the documents annexed by the petitioner may require a separate verification and is considered as formal defect, the fact remains that the applicant did not raise any such objection in the written statement and on the contrary gave his consent when the applicant had applied for amendment to the election petition. At that point of time also, no such objection was raised by the applicant. No such objection is raised specifically in the affidavit in support of this civil application. Be that as it may, the said alleged defect being a defect in verification of the exhibits is curable and on that ground the election petition cannot be dismissed at the threshold and an opportunity for curing such alleged defect has to be given by this Court before proceeding with the trial on the oral application of the petitioner.
96. In my view, the application filed by the applicant is totally devoid of merit. I, therefore, pass the following order :-
a). Civil Application (Lodging) No.4 of 2017 is dismissed.b). The original petitioner is however granted an opportunity to amend the election petition and to cure the alleged defects as under :-i). The petitioner is at liberty to correct the verification clause and the affidavit in support in conformity of provisions of Code of Civil Procedure, 1908 and more particularly in compliance with Order 6 Rule 15(4), Order 19 Rule 3 and shall verify each and every annexure, part of each exhibit separately and shall correspondingly amend the affidavit in support of the petition within two weeks from today. A copy of the amendment allowed to be carried out by this Court shall be served upon the respondent no.1 within one week from the date of carrying out such amendment.c). There shall be no order as to costs.
