Ravindra Maithani, J
1. In this Election Petition, the challenge is made to the election of respondent no. 1 in the Legislative Assembly of Uttarakhand from 54, Lohaghat
Assembly Constituency. Pleadings have already been exchanged.
2. On 03.08.2022, issues were framed. Issue Nos. 4, 5, 6 & 7 are to be decided as preliminary issues. These issues are as hereunder:-
“(4) Whether the affidavit, which is filed by the petitioner with regard to alleged corrupt practice is not as per Section 83 of the Representation of
Peoples Act, 1951 read with Rule 94-A of the Conduct of Election Rules, 1961, as alleged in para 1(e) & (f) under the caption of Preliminary
Objections in the written statement filed by the respondent no. 1? If so, its effect?
(5) Whether the annexures filed with the Election Petition are not in accordance with sub-section (2) of Section 83 of the Representation of Peoples
Act, 1951, as alleged in para 1(j) under the caption of Preliminary Objections in the written statement filed by the respondent no. 1? If so, its effect?
(6) Whether the petitioner did not verify the documents as required under Section 81(3) of the Representation of Peoples Act, 1951, as alleged in para
1(m) under the caption of Preliminary Objections in the written statement filed by the respondent no. 1? If so, its effect?
(7) Whether the Election Petition is bad for non-compliance of provision of Section 83(1)(c) of the Representation of Peoples Act, 1951, as alleged in
para 1(i) under the caption of Preliminary Objections in the written statement filed by the respondent no. 1? If so, its effect?â€
3. Heard learned counsel for the parties and perused the record.
4. It has been argued by the learned Senior Counsel appearing for the respondent no. 1 that the Election Petition is not in conformity with the
provisions of the Representation of Peoples Act, 1951 (“the Actâ€), therefore, the Election Petition deserves dismissal under Section 86 of the Act.
5. In fact, the above issues have been framed with regard to application of Sections 81 and 83 of the Act. These Sections including Section 82 of the
Act are as hereunder:-
“81. Presentation of petitions.â€"(1) An election petition calling in question any election may be presented on one or more of the grounds
specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days
from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates
of their election are different, the later of those two dates.
Explanation.â€"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) …….
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy
shall be attested by the petitioner under his own signature to be a true copy of the petition.
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“82. Parties to the petition.â€"A petitioner shall join as respondents to his petitionâ€
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates 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, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.â€
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83. Contents of petition.â€"(1) An election petitionâ€
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of
pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support
of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.â€
6. An Election Petition may be dismissed if it does not comply with the certain provisions of the Act. It has been provided under Section 86 of the Act.
It reads as hereunder:-
“86. Trial of election petitions.â€"(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81
or section 82 or section 117.
Explanation.â€"An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause
(a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has
or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the
same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of
commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a
respondent.
Explanation.â€"For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the
respondents to appear before the High Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the
petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not
allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to
day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date
on which the election petition is presented to the High Court for trial.â€
7. The grounds, which may affect election of a returned candidate are enumerated under Sections 100 & 101 of the Act. It reads as hereunder:-
“100. Grounds for declaring election to be void.â€"(1) Subject to the provisions of sub-section (2) if the High Court is of opinionâ€
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this
Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned
candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affectedâ€
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any nonâ€"compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall
declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the
High Court is satisfiedâ€
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed
contrary to the orders, and without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may
decide that the election of the returned candidate is not void.â€
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“101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.â€"If any person who
has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other
candidate has been duly elected and the High Court is of opinionâ€
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority
of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate,
as the case may be, to have been duly elected.â€
8. In fact, there have been allegations of corrupt practices also and issues have been raised that facts necessary to reveal the corrupt practice have
not been revealed by the petitioner. What is “corrupt practiceâ€, it is described under Section 123 of the Act. It is the case of the petitioner that the
respondent no. 1 did conceal his source of livelihood. He was a Government contractor, a fact which he concealed and gave false affidavit. It,
according to the petitioner, amounts to corrupt practice.
Issue Nos. 4, 5 & 7
9. Issue Nos. 4, 5 & 7 touch upon the applicability of Section 83 of the Act, therefore, these three issues may be decided together.
10. Issue No. 4 has been framed based on averments made in para 1(e) and (f) under the caption of Preliminary Objection filed by respondent no. 1;
issue No.5 has been framed based on averments made in para 1(j) under the caption of Preliminary Objection filed by respondent no. 1 and issue no. 7
has been framed based on averments made in para 1(i) under the caption of Preliminary Objection filed by respondent no. 1. It would be appropriate
to reproduce these paragraph nos. 1(e), (f), ((i) and (j) of the written statement filed by respondent no.1. They are as hereunder:-
“1. (e) That petitioner had not disclosed any material facts and source of information alleging Corrupt Practice as define in Section-123 of
Representation of People Act in the affidavit filed under Form-25 accompanying the Election Petition.
(f) That petitioner have not mentioned the name of the Corrupt Practice in affidavit filed under Form-25 and instead he has mentioned in Paragraph
(a) of the affidavit the name of Respondent No. 1. Furthermore, it has not been mentioned in the affidavit that it was sworn before the Oath
Commissioner.
(i) That the prayers made in the Election Petition are not signed by the petitioner instead they have been signed by his Advocate which is not
permissible as per Section-83 (1) (c).
(j) That petitioner have not signed and verified the documents from Page No. 24 onwards of the Election Petition and neither these documents are
verified as per provision of the CPC Order VI Rule-15, nor the pleading was supported by affidavit as per provision of CPC Order VI Rule-15(4).â€
11. Issue No. 4 relates to the necessity of affidavit when election is challenged on the basis of corrupt practice. As is evident, the proviso to sub-
section (1) of Section 83 of the Act provides that where the petitioner alleges any corrupt practice, he shall file an affidavit in a prescribed form. This
prescribed form is Form No. 25 given under the Conduct of Election Rules, 1961 (“the Rulesâ€). It is as hereunder:-
“ [FORM 25
(See rule 94A)
Affidavit
I, ........................, the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati.............(respondent
No............in the said petition) make solemn affirmation/oath and sayâ€
(a) that the statements made in paragraphs.......................of the accompanying election petition about the commission of the corrupt practice
of*...................and the particulars of such corrupt practice mentioned in paragraphs.................of the same petition and in
paragraphs.....................of the Schedule annexed thereto are true to my knowledge;
(b) that the statements made in paragraphs....................of the said petition about the commission of the corrupt practice of*.........................and the
particulars of such corrupt practice given in paragraphs..........................of the said petition and in paragraphs.......................................of the
Schedule annexed thereto are true to my information;
(c)
(d)
Signature of deponent. Solemnly affirmed/sworn by Shri/Shrimati.............at.....this.............day of...............….19 .
Before me,
Magistrate of the first class/Notary/
Commissioner of Oaths.
 ______________________________________________
* Here specify the name of the corrupt practice.â€
12. A reading of this Form 25 of the Rules makes it clear that in para (a), line 2, the name of corrupt practice is required to be stated. It is the case of
respondent no. 1 that the name of corrupt practice has not been specified in the affidavit in Form No. 25 by the petitioner, which amounts to non-
conformity with the provisions of the Act, therefore, the Election Petition deserves dismissal.
12. On Issue Nos. 5 and 7, it is the case of the respondent that the petitioner has not verified and signed the documents from page No. 24 onwards of
the Election Petition and they have neither been verified nor the pleadings are supported with an affidavit as required under Order 6 Rule 15 (4) of the
Civil Procedure Code, 1908 (the Codeâ€). It is also the case of respondent no. 1 that the Prayers made in the Election Petition are not signed by the
petitioner. Instead, they have been signed by his Advocate, which is not in conformity with Section 83(1)(c) of the Act.
14. Learned Senior Counsel for respondent no. 1 would submit that unless the Election Petition is in conformity with the provisions of the Act, such
Petition cannot be entertained and deserves dismissal under Section 86 of the Act. It is argued that the form, which is filed in Form 25 by the petitioner
is not in conformity with the prescribed form, because in para (a) of this affidavit, instead of specifying the corrupt practice, the petitioner has written
his name, which makes it bad. It is also argued that page 24 onwards of the Election Petition has not been signed and verified by the petitioner, as also
the petitioner has not signed the prayer clause in the Election Petition. Therefore, it is argued that the Election petition deserves to be dismissed on this
count alone.
15. In support of his contention, learned Senior Counsel appearing for respondent no. 1 has placed reliance on the principle of law as laid down in the
cases of L.R. Shivaramagowda and others v. T.M.Chandrashekhar (Dead) by L.Rs. and others, 1999 (1) SCC 666; Ravinder Singh v. Janmeja Singh
and others, (2000) 8 SCC 191; Kirt Ram Singh v. Sewa Ram and others, 2001 SCC OnLine MP 215 and Dr. Shipra (Smt.) and others v. Shanti Lal
Khoiwal and others, (1996) 5 SCC 181.
16. In the case of L.R. Shivaramagodwa (supra), the Hon’ble Supreme Court made distinction between “material facts†and “material
particulars†and observed “While the failure to plead material facts is fatal to the election petition and no amendment of the pleading
could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material
particulars can be cured at a later stage by an appropriate amendment……. The Court pointed out that the corrupt practice being
hiring or procuring of the vehicle for the conveyance of the electors, if full particulars of conveying by a vehicle of electors to or from
any polling stations were given, Section 83 was duly complied with, even if the particulars of the contract of hiring, as distinguished
from the fact of hiring were not given.â€
17. In the case of L.R. Shivaramagowda (supra), the Hon’ble Supreme Court observed that the affidavit filed along with the Election Petition did
not reveal as to which part of the affidavit is personally known to the petitioner and which part is based on information. There were other
discrepancies also, which, according to the Hon’ble Supreme Court was a failure to comply with Rule 94-A of the Rules.
18. In the case of Ravinder Singh (supra), the Hon’ble Supreme Court observed as hereunder:-
“10. Proviso to Section 83(1) of the Act lays down, in mandatory terms, that where an election petitioner alleges any corrupt practice, the election
petition shall also be accompanied by an affidavit, in the prescribed form, in support of the allegations of such practice and the particulars thereof. The
affidavit, which has been filed in support of the election petition, does not at all deal with the charge of bribery falling under Section 123(1) of the Act.
Leaving aside the questions that the affidavit is not even in the prescribed form â€" Form 25 of the Conduct of Elections Rules, the allegations of
corrupt practice made in the election petition are not supported by the otherwise defective affidavit either. All the names of the informants which have
been given in the affidavit relate to the corrupt practice under Section 123(4) and the affidavit in this respect is a verbatim reproduction of the
verification clause of the election petition concerning corrupt practice under Section 123(4). No name of any informant has been mentioned in respect
of the allegations of corrupt practice under Section 123(1) in the affidavit. In the absence of the requisite affidavit filed in support of the allegation of
corrupt practice under Section 123(1) of the Act, as detailed in the election petition, no issue could be raised for trial.
11. Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged
corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83(1)
of the Act, the election petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner
is obliged to disclose his source of information in respect of the commission of that corrupt practice. The reason for this insistence is obvious. It is
necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving inquiry and save the returned
candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery,
the allegation pertaining thereto, could not be put to trialâ€" the defect being of a fatal nature.â€
19. In the case of Kirt Ram Singh (supra), the Hon’ble High Court observed that “the defect was not in the verification only but the
affidavit did not comply with the mandatory requirement about mentioning of particulars of corrupt practices and the name of the
corrupt practicesâ€. Under such circumstances, in the case of Kirt Ram Singh (supra), the Court found that the affidavit did not comply with the
mandatory requirements with regard to corrupt practices, therefore, those parts of the Election Petition were struck off.
20. In the case of Dr. Shipra (supra), the Hon’ble Supreme Court observed “Since the corrupt practices are required to be proved to
the hilt, the element of vagueness would immediately vitiate the election petitionâ€.
21. On the other hand, learned Senior Counsel for the petitioner would submit that an Election Petition may be dismissed under Section 86 of the Act
only if the Election Petition does not comply with the provisions of Section 81, 82 or 117 of the Act. It is argued that non-compliance with any
provision of Section 83 of the Act would not entail dismissal of Election Petition under Section 86 of the Act and in such circumstances, the deficiency
may be cured; the Court should ask for such rectification.
22. In support of his contention, learned counsel for the petitioner has placed reliance on the principle of law as laid down in the case of Bhagwan
Rambhau Karankal v. Chandrakant Batesingh Raghuwanshi and others (Civil Appeal No. 4555 of 2000); G.M. Siddeshwar v. Prasanna Kumar,
(2013) 4 SCC 776 and A. Manju v.Prajwal Revanna @ Prajwal R. & Ors., (2022) 3 SCC 269.
23. In the case of Bhagwan Rambhau Karankal (supra), the Hon’ble Supreme Court discussed the requirement of Section 83 of the Act and held
that such defect does not warrant dismissal of the petition under Section 86 of the Act. In para 12, the Hon’ble Supreme Court observed as
hereunder:-
“12. In so far as an objection regarding non-verification of the concise statement filed separately by the election petitioner is concerned, that is a
requirement of Section 83(1)(a) of the Act. Section 86(1) of the Act provides that an Election Petition is liable to be dismissed in limine if it does not
comply with the provisions of Sections 81, 82 or 117 of the Act. A defect of the type envisaged under Section 83 does not warrant dismissal of an
election petition under Section 86(1) of the Act in limine. What are the other consequences, if any, which may flow from that omission is a matter
which has to be considered during the trial. The High Court was clearly in error in equating a defect under Section 83 of the Act with a defect under
Section 81 of the Act.:
24. In the case of G.M. Siddeshwar (supra), the Hon’ble Supreme Court observed “The principles emerging from these decisions are
that although non-compliance with the provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance
with the provisions thereof. However, if there is total and complete non-compliance with the provisions of Section 83 of the Act, then
the petition cannot be described as an election petition and may be dismissed at the thresholdâ€.
25. In the case of A. Manju (supra), the Hon’ble Supreme Court followed the principle of law as laid down in the case of G.M. Siddeshwar
(supra). In fact, in the case of A. Manju (supra), the Hon’ble Supreme Court observed that even non-submission of Form 25 does not lead to
dismissal of the Election Petition. The Hon’ble Supreme Court observed as hereunder:-
“26. 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 [Ponnala Lakshmaiah v.
Kommuri Pratap Reddy, (2012) 7 SCC 788] which have received the imprimatur of the three-Judge Bench in G.M. Siddeshwar case [G.M.
Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] appear not to have been appreciated in the correct perspective. In fact,
G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kuma,r (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] 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 [Ponnala
Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788] as well as G.M.Siddeshwar [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC
776 : (2013) 2 SCC (Civ) 715] , 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.â€
(emphasis supplied)
26. In fact, with regard to non-compliance of the provisions of Section 83 of the Act, the Hon’ble Supreme Court long back in the case of
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545, observed that the defects with regard to Section 83 of the Act can
be cured in accordance with the principle of the Code. In para 12 and 13, the Hon’ble Supreme Court observed as hereunder:-
“12. We now turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the corrupt
practices alleged against the appellant. The argument on this part of the case is that the affidavit was neither in the prescribed form nor was it
properly sworn as required by the rules in the Conduct of Election Rules, 1961; therefore there was a failure to comply with the proviso to sub-section
(1) of Section 83 of the Act. The argument further is that an election petition under Section 81 must comply with the provisions of Section 83 and
unless it complies with those provisions, it is not an election petition under Section 81.
13. We think that this contention has been sufficiently disposed of by what has been stated by the Election Tribunal. The Election Tribunal has rightly
pointed out that the affidavit was in the prescribed form but due to inexperience the Oaths Commissioner had made a mistake in the verification
portion of the affidavit. The Tribunal said:
“It appears that due to inexperience of the Oaths Commissioner instead of ‘verified before me’ words, ‘verified by me’ have been
written. The signature of the deponent has been obtained in between the writing with respect to admission on oath of the contents of affidavit by the
petitioner and the verification by the Oaths Commissioner. According to the prescribed form the verification should be ‘solemnly affirmed or sworn
by’ “such and such†on ‘such and such date’ before me'. The verification of the affidavit of the petitioner is apparently not in the
prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form. The
mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioner's petition summarily, as the
provisions of Section 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later
stage alsoâ€.
This view of the Election Tribunal was affirmed by the High Court. We agree with the view expressed by the Election Tribunal and we do not think
that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election
petition.â€
27. In the case of T.M. Jacob v. C. Poulose and others, (1999) 4 SCC 274, the Hon’ble Supreme Court observed thaât €œThe defect of the
type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained
in the Code of Civil Procedureâ€.
28. There may be various aspects and dimensions of the non-compliance of the provisions of Section 83 of the Act. Insofar as Issue No. 4 is
concerned, what is being argued is that the affidavit in Form No. 25 is not properly filled up. Admittedly, the petitioner has filed two affidavits. One, in
compliance to Order 6 Rule 15(4) of the Code and another in accordance with Section 83 of the Act, which is in Form No. 25. It is also settled law
that an affidavit is an integral part of the petition.
29. In his petition, the petitioner has categorically stated about the corrupt practice, which according to the petitioner is concealment of material facts
that the source of the livelihood of the petitioner is mainly out from Government contracts. In paragraphs 8, 9, 10, 11 and 12 of the petition, the
petitioner has given details about it. During the course of arguments, on behalf of the petitioner it is argued that, in fact, false information was given by
the respondent no. 1 with regard to his source of livelihood. He is a Government contractor and he concealed it.
30. In affidavit, Form No. 25, with regard to corrupt practice, various paragraphs of the petition have been disclosed by the petitioner with the
averment that those paragraphs reveal commission of corrupt practice. In affidavit filed in Form No. 25, in para (a), line 3, the petitioner instead of
specifying the corrupt practice recorded his name. Material facts and material particulars with regard to corrupt practice have been given by the
petitioner. Merely because there is an error in filling up the affidavit in Form No. 25, it cannot be said that this error should entail dismissal of the
Election Petition. This error is curable. The petitioner may be directed to cure it.
31. Even otherwise, it is not a case of total non-compliance of Section 83 of the Act. The doctrine of curability as held in the case of T.M. Jacob
(supra) also applies in this matter. Therefore, on Issue No. 4, this Court concludes that the affidavit filed by the petitioner with regard to alleged
corrupt practice is as per Section 83 of the Act read with Rule 94-A of the Rules. However, there is some error in affidavit in terms of specifying the
corrupt practice, but for that matter, the petitioner has to be directed to file a proper affidavit in Form No. 25 categorically specifying the name of
corrupt practice.
32. Issue No. 5 is framed based on the objections of respondent no. 1 that the documents from Page No. 24 onwards of the Election Petition have not
been signed and verified by the petitioner as required under Order 6 Rule 15. It is also the averment of respondent no. 1 that there is no affidavit as
required under Order 6 Rule 15(4) of the Code.
33. Section 83(2) of the Act requires that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same
manner as the petition. Order 6 Rule 15 provides for verification of pleadings.
34. Order 6 Rule 15(4) of the Code, inter alia, provides that the person verifying the petition shall also furnish an affidavit in support of his pleadings.
As stated, it forms part of the petition. The affidavit has been filed by the petitioner as required under Order 6 Rule 15(4) of the Code. The objections
raised on that behalf has no merits. But, it is true that although various annexures have been mentioned in the petition, but they have not as such
marked by the petitioner. Page 22 is a schedule, which is a list of document. It is though signed and verified, but page 24 onwards, which are
annexures are neither signed nor verified by the petitioner. The affidavit filed under Order 6 Rule 15(4) is an integral part of the Election Petition.
Verification of it has been done. But, Section 83 of the Act requires that the annexures should also be signed and verified by the petitioner. It has not
been done. This is also a kind of defect relating to Section 83 of the Act. It is not total non-compliance of Section 83 of the Act. Something more was
required to be done. In the index, the petitioner has given Annexures’ detail, but as stated the papers have not been marked as to which paper
belongs to which annexure? This is another defect, which is curable. The doctrine of curability would apply on this aspect also. The petitioner may be
required to rectify the error.
35. Therefore, on issue no. 5, this Court concludes that the annexures have not been signed and verified by the petitioner but it is a curable defect and
the petitioner shall be directed to rectify it.
36. Issue No. 7 relates to the objection of respondent no. 1 that the prayer clause has not been signed by the petitioner.
36. It is true that in the Election Petition although the verification has been done by the petitioner, but just above it, the prayer clause has not been
signed by him. It is another mistake, which requires rectification. It is also curable.
37. Therefore, on Issue No. 7, this Court concludes that the prayer clause has not been signed by the petitioner, but it is a kind of defect, which is
curable. The petitioner shall be directed to cure it.
Conclusion on Issue Nos. 4, 5 & 7
38. Issue No. 4: The affidavit filed by the petitioner with regard to alleged corrupt practice is as per Section 83 of the Act read with Rule 94-A of the
Rules. However, there is some error in affidavit in terms of specifying the corrupt practice, but for that matter, the petitioner has to be directed to file
a proper affidavit in Form No. 25 categorically specifying the name of corrupt practice.
39. The petitioner is directed to file an affidavit duly filled up as per Form No. 25 of the Rules on or before 11.11.2022.
40. Issue No. 5: The annexures have not been signed and verified by the petitioner but it is a curable defect and the petitioner shall be directed to
rectify it.
41. The petitioner is directed to mark annexures on the documents filed along with the petition and also sign and verify them as per Section 83 of the
Act on or before 11.11.2022.
42. Issue No. 7: The prayer clause has not been signed by the petitioner, but it is a kind of defect, which is curable. The petitioner shall be directed to
cure it.
43. The petitioner is directed to sign the prayer clause on or before 11.11.2022.
Issue No. 6:
44. This issue is framed based on the objection of the respondent no. 1 as alleged in para 1(m) under the caption of Preliminary Objection filed by
respondent no. 1. This para 1(m) is as hereunder:-
“(m). That the petitioner have not complied provisions of Section 81(3) of the Representation of People Act, 1951 in as much as he has not
submitted the copy of the Election Petition attested by him under his own signature to be true copy of the petition.â€
45. Issue No. 6 relates to non-compliance of Section 81(3) of the Act. This sub-section needs reproduction. It is as hereunder:-
“81. Presentation of petitions.â€"(1) …….
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy
shall be attested by the petitioner under his own signature to be a true copy of the petition.â€
46. Learned Senior Counsel for respondent no. 1 would submit that Page Nos. 29, 31, 36, 37 and 59 of copy supplied to the respondent no. 1 are not
legible, hence, they are not true copy and it is non-compliance of Section 81(3) of the Act. It is also argued that the copy of the Election Petition, as
provided to the respondent no. 1 is signed but page 24 onwards of the Election Petition have not been signed by the petitioner in original, therefore, the
copy given to the respondent no. 1 is not a true copy. It is argued that since true copy of the Election Petition has not been provided to the respondent
no. 1, it is fatal. It is non-compliance of Section 81(3) of the Act and it results in dismissal of the petition under Section 86 of the Act.
47. In support of his contention, learned Senior Counsel placed reliance on the principles of law as laid down in the cases of Adesh Kumar Gupta v.
Shri D.K. Mishra and another, 2017 SCC OnLine Del 12409; Sharif-Ud-Din v. Abdul Gani Lone, (1980) 1 SCC 403; Narendra Bhikahi Darade v.
Kalyanrao Jaywantrao Patil & others, AIR 2000 Bombay 362 and Rajendra Singh v. Smt. Usha, (1984) 3 SCC 339.
48. In fact, in the case of Ajay Maken v. Adesh Kumar Gupta and another, (2013) 3 SCC 489, a question of dismissal of Election Petition due to non-
compliance of the provisions of the Act was raised and the Hon’ble Supreme Court remanded the matter to the High Court on such issues. It is
thereafter that the matter was decided in the case of Adesh Kumar Gupta (supra). In para 7 of the judgment, the Court has noted down the defects.
It is as hereunder:-
“7. In the application to reject the election petition on grounds of non-compliance with the requirements of the Act, Maken contends that the copy
supplied to him by the Petitioner was not a “true copy†of the petition within the meaning of Section 81(3). Specifically, the defects in the petition
alleged by Maken have been set out in paragraph 3 of the earlier decision of this Court:
“i) “Not all pages and documents furnished to the Second Respondent, along with copies of the petition, contained signatures of the
Petitioner;
ii) Many portions of the documents filed with the petition were missing;
iii) Copies of several pages of annexures (to the petition) furnished to the Second Respondent were dim or illegible;
iv) The election petition was not properly verified;
v) The verification clause in the copy furnished to the Second Respondent did not contain signatures of the Petitioner.â€
49. In para 15 of the judgment in the case of Adesh Kumar Gupta (supra), the Hon’ble Delhi High Court referred to the judgment in the case of
Murarka Radhey Shyam Ram Kumar (supra) and observed “This test enunciated by the Supreme Court has since come to be used in
subsequent decisions as the test of “substantial complianceâ€; if a copy was substantially same as the original and did not contain
any material or substantial variation, then it would be a true copy and would constitute sufficient compliance under Section 81(3)â€. In
the case of Adesh Kumar Gupta (supra), it was observed that there were variations in the verification clause there were also significant variations
from the original copy. Certain pages in the annexures were missing and some of the pages in annexures were dim and illegible. The Court observed
“While individually such defects in an election petition may be curable, taken together, all of these defaults can hardly be said to
constitute “substantial compliance†with Section 81(3), as per the law down in Murarka Radhey Shyam (supra) and the other
decisions cited above (as per the law laid down in Mourarka Radheshyam (supra) and other decisions).â€
50. In the case of Sharif-Ud-Din (supra), the Hon’ble Supreme Court observed “A respondent would not have the same degree of
assurance if a copy served on him is one attested by any person other than the petitioner himself. The attestation by the advocate for
the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature……. The importance of the
provision contained in Section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is
established that Section 89 of the Act had not been complied with also cannot be overlooked in this contextâ€.
51. In the case of Narendra Bhikahi Darade (supra) also, the principle of law as laid down in the case of Sharif-Ud-Din (supra) has been followed.
52. In the case of Rajendra Singh (supra), some correct and some incorrect copies were filed by the petitioner. The respondent was served with
incorrect copies. Under such circumstances, the Hon’ble Supreme Court observed that it amounts to non-compliance of the provisions of Section
81(3), which is sufficient to entail a dismissal of Election Petition.
53. On the other hand, learned Senior Counsel appearing for the petitioner would submit that the facts in the case of Adesh Kumar Gupta (supra)
were quite distinct. They are not applicable in the instant case. It is argued that the pages, which are alleged to be not legible are nothing but the
nomination papers of the petitioner. An affidavit with regard to it is already on public domain. It does not make any difference.
54. Learned Senior Counsel for the petitioner would submit that the copy, which has been given to the respondent no. 1 is a genuine true copy. Merely
because some pages in the Election Petition are not signed, it cannot be said that the copy served on respondent no. 1 is not a true copy. It is also
argued that because some pages of the copies, which are, in fact, nomination papers of the petitioner, are dim and illegible, also does not make the
copy served on respondent no. 1 as not a true copy. It is argued that these objections were taken by respondent no. 1 when application under Order 7
Rule 11 of the Code was filed. Those aspects have already been considered by the Court, therefore, the same issue cannot be agitated again. Learned
Senior Counsel would submit that the basic rule is substantial compliance, which has been done in the instant case, therefore, it cannot be said that
there is non-compliance of Section 81(3) of the Act.
55. In support of his contention, learned counsel for the petitioner has placed reliance on the principle of law as laid down in the case of Murarka
Radheshyam (supra), T.M. Jacob (supra), Bhagwan Rambhau Karankal (supra), Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and
others, (2005) 2 SCC 188 and F.A. Sapa and others v. Singora and others, (1991) 3 SCC 375.
56. In the case of Murarka Radhey Shyam (supra), the Hon’ble Supreme Court while referring to various authorities on the subject with regard to
true copy observed that “The test whether the copy is a true one is whether any variation from the original is calculated to mislead an
ordinary personâ€. In para 11 of the judgment, this has been explained by the Hon’ble Supreme Court as hereunder:-
“11. We agree with the High Court and the Election Tribunal that the first defect is not a defect at all. When every page of the copy served on the
appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word “petitioner†was not necessary.
Sub-section (3) of Section 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second
defect, the question really turns on the true scope and effect of the word “copy†occurring in sub-section (3) of Section 81. On behalf of the
appellant the argument is that sub-section (3) of Section 81 being mandatory in nature all the requirements of the sub-section must be strictly complied
with and the word “copy†must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the
word “copy†means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the
argument is that the last part of sub-section (3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this Court in
Kamaraja Nadar v. Kunju Thevar [(1959) SCR 583]. We are of the view that the word “copy†in sub-section (3) of Section 81 does
not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see
Stroud's judicial Dictionary, 3rd Edn., Vol. 4, p. 3098). In this view of the matter it is unnecessary to go into the further question whether any part
of sub-section (3) of Section 81 is merely directory. Several English decisions were cited at the Bar. The earliest decision cited to us is the decision in
Pocock v. Mason [131 ER 1111] where it was held that the omission of the words “the†and “by†in the copy of the writ of capias
prescribed by the Schedule 2 W. 4, c. 39 did not invalidate an arrest. The reason given was thus expressed:
“To ascertain whether or not an unfaithful copy produces any alteration in the meaning, supposes an exertion of intellect which it may be
inconvenient to require at the hands of those who serve the copy. It was to obviate this inconvenience, that the legislature has given a form, and
required that it should be pursued. Nothing but ordinary care is necessary for taking the copy.â€
In a later decision Sutton v. Mary and Burgess [149 ER 1291] , the copy of the writ served on the defendant omitted the letter “s†in the word
“sheâ€. It was held that the omission was immaterial as it could not mislead anybody. In Morris v. Smith [150 ER 51] there was a motion to set
aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper
Buildings in the Inner Temple, London and the addition of “gentleman†was not given. It was held that the form in the Statute 2 Will. 4, c. 39
Section 1 did not require the addition of the defendant to be inserted in the writ and it was sufficient to state his residence. The writ of summons was
therefore valid. In another case in the same volume Cooke v. Vaughan [150 ER 1346] it was held that where a writ of capias described the
defendant by the addition of “gentlemanâ€, but that addition was omitted in the copy served, the copy was not a copy of the writ, in compliance
with the Statute 2 Will. 4, c. 39, S. 4. On behalf of the respondents a number of decisions under the Bills of Sale Act, 1878 and the Amendment Act,
1882 (45 and 46 Vict. c. 43) were cited. The question in those cases was whether the bill was “in accordance with the form in the schedule to this
Act annexed†as required by Section 9 of the Bills of Sale Act 1878, and Amendment Act 1882. In reH ewer. Ex parte Kahen [(1882) 21 Ch D
871] it was held that a “true copy†of a bill of sale within the Bills of Sale Act 1878, Section 10, sub-section 2, must not necessarily be an exact
copy, so long as any errors or omissions in the copy filed are merely clerical and of such a nature that no one would be thereby misled. The same view
was expressed in several other decisions and it is unnecessary to refer to them all. Having regard to the provisions of Part VI of the Act, we are of
the view that the word “copy†does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand
it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person.
Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to
mislead the appellant; therefore there was no failure to comply with the last part of sub-section (3) of Section 81. In that view of the matter sub-
section (3) of Section 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure
to comply with the provisions of Section 81. This disposes of the second preliminary objection raised before us.â€
(emphasis supplied)
57. In the case of T.M. Jacob (supra) also, the Hon’ble Supreme Court followed the principle of law as laid down in the case of Murarka Radhey
Shyam (supra) and in paragraphs 35 and 36 observed as hereunder:-
“35. The object of serving a “true copy†of an election petition and the affidavit filed in support of the allegations of corrupt practice on the
respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the
written statement and prepare his defence. The requirement is, thus, of substance and not of form.
36. The expression “copy†in Section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any
material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations
made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the
original within the meaning of Section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of
limitation.â€
(emphasis supplied)
58. In the case of Bhagwan Rambhau Karankal (supra), the Hon’ble Supreme Court observed that merely because of words “true copyâ€
were not endorsed on each page of the copy of the Election Petition, though the copy otherwise is a true copy and bears the signatures
of the election petitoners on each page of the copy, it cannot be said that there has been a total non-compliance with the provisions of
Section 81(3) of the Actâ€.
59. In the case of Chandrakant Uttam Chodankar (supra), the Hon’ble Supreme Court followed the principle of law as laid down in the case of
Murarka Radhey Shyam (supra) supra) and T.M. Jacob (supra).
60. In the case of F.A. Sapa (supra), the Hon’ble Supreme Court observed that “No particular form of attestation is prescribed; all that
the sub-section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition. By
certifying the same as true copy and by putting his signature at the foot thereof, the petitioner of each election petition had clearly
complied with the letter and spirit of Section 81(3) of the R.P. Actâ€.
61. In the case of Murarka Radhey Shyam (supra), the Hon’ble Supreme Court has categorically held that copy does not mean an absolutely
exact copy. The test has also been laid down that if any variation from the original is calculated to mislead an ordinary person such copy cannot be
said to be true copy.
62. In the case of Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others, AIR 1964 SC 1027, the principles of law as laid down in the
case of Murarka Radhyey Shyam (supra) has been followed. In fact, in the case of Ch. Subbarao (supra), the variations in the copies have been
elaborated in para 6 of the judgement, which is as hereunder:-
“6. The subject of controversy in this appeal lies in a very narrow compass. But before we deal with it, it will be convenient to specify the precise
defect which the learned Judges have held to be fatal to the maintainability of the election petition. As stated earlier, the Election Petition filed was
accompanied by the number of copies required to accompany the petition under Section 81(3). The Election Petition was type-written and the copies
which accompanied the petition were carbon copies of the type-script, so there was no question of the copies being other than “true†copies. The
copies bore two signatures in original of the election petitioner authenticating both the contents of the petition as well as the verification thereof. The
petitioner did not however insert the words “true copy†before or above his signatures. The learned Judges of the High Court considered that this
rendered the petition one not in accordance with Section 81(3) of the Act and it is on this ground that the Election Petition filed by the appellant has
been dismissed and it is the correctness of this decision that is canvassed in the appeal before us.â€
63. In para 27 of the judgment, the Hon’ble Supreme Court observed that there has been substantial compliance of the requirement of Section
81(3) of the Act. The Hon’ble Supreme Court observed as hereunder:-
“27. If the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents
of the document. Now in regard to this the learned Judges of the High Court themselves observed after referring to the terms of Section 81(3):
“No doubt, what is necessary is a substantial compliance with the requirement of attestation. For instance, if it is proved that the election petitioner
has signed animo attestendi, and omitted the words ‘true copy’ by mistake or inadvertently, there is a substantial requirement of the
compliance of Section 81(3). The same may be said if the relative positions of the words ‘true copy’ and of the signature one below the other
are not correct.â€
They however held that as there was no evidence of the signature having been appended animo attestendi, there was non-compliance with Section
81(3). The learned Solicitor-General while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that
the signature at the end of the copy was meant only as a copy of that in the original petition and could not satisfy the requirement as to attestation of
the copy. He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy, even if the
words “true copy†were omitted to be put down. In that case, he said, one signature could be treated as representing the copy of the signature on
the original and the other might be taken to have been made animo attestendi. We do not however consider that there is really need for so much
refinement when one has to look at whether there is a substantial compliance with the requirement of this provision. If the signatures now found on
the copies were intended to authenticate the document to which it is appended viz. the copy, it would only mean that the copy did not reproduce the
signature in the original. There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order
to spell out a non-compliance with Section 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of
the signatory would suffice. The decision of this Court in Murarka case [ C As 30 and 31 of 1963 (Not yet reported) Decided on 7.5.1963] is
authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true
copy. In the circumstances, we consider that there has been substantial compliance with the requirement of Section 81(3) in the petition that was filed
by the appellant and the learned Judges were in error in directing the dismissal of the petition.â€
64. It is true that respondent no. 1 had earlier filed an application under Order 7 Rule 11 of the Code with regard to non-compliance of Sections 81, 83,
etc. of the Code, but fact remains that the Court has not decided such issues. The Court has left those matters at that stage with the observation that
those are triable issues. Now it is time, when those issues are raised again and they would require a determination by this Court.
65. As stated, in the case of Adesh Kumar Gupta (supra), the Election Petition was not dismissed for one reason alone. There were various defects,
which taken together resulted in dismissal of the petition. In the instant case, two issues have been raised, namely, (i) certain papers being dim and
illegible and (ii) page 24 onwards in the Election Petition are not signed whereas the copy served on respondent no. 1 is signed by the petitioner. The
question is â€" as to whether under those circumstances can it be said that a true copy has not been served on respondent no. 1?
66. Each case is based on its own facts. There cannot be any straight jacket formula as to what may not be termed as “true copyâ€. The purpose,
as settled by the Hon’ble Supreme Court, of insisting for providing a true copy to the respondent is that he should know as to what are the
allegations against him and what he has to face at trial? How to defend himself? True copy is not exact copy. There may be some errors here and
there. But, that would not entail dismissal of Election Petition under Section 86 of the Act.
67. How to determine as to whether a copy is a “true copy†or not. In the context of Section 81(3) of the Act, the Hon’ble Supreme Court in
the case of Murarka Radhey Shyam (supra), has given a test, which is â€" “whether any various is calculated to mislead an ordinary personâ€
68. In the instant case, it is argued that the Election Petition is not signed by the petitioner from page no. 24 onwards, whereas the copy provided to
respondent no. 1 has been signed throughout. In view of the test laid down, it cannot be said that the copy provided to the respondent no. 1 is not a
true copy. This Court has earlier today directed the petitioner to sign and verify page no. 24 onwards of the Election Petition, which is part of
annexures of the Election Petition. Therefore, merely because page no. 24 onwards of the Election Petition are not signed by the petitioner whereas
the copy given to respondent no. 1 has been signed, it cannot be said that the copy served on respondent no. 1 is not a true copy of the Election
Petition.
69. There is another point on this context, which is dim and illegible paper nos. 29, 31, 36, 37 and 51 of the Election Petition. It is argued on behalf of
the petitioners that they are nomination papers of the petitioner and if the photo copy is dim, it is not calculated, designed by the petitioner. Even
otherwise, it is also argued that an affidavit in support of it is already on public domain.
70. Keeping in view of the test laid down in the case of Murarka Radhey Shyam (supra), this Court is of the view that merely because the paper nos.
29, 31, 36, 37 and 59 of the Election Petition as given to respondent no. 1 are dim and illegible, it cannot be said that the copy given to respondent no. 1
is not a true copy. The test is the same i.e. whether the variation is designed, calculated? There is no occasion to make any design to give a dim and
illegible copy to the respondent no. 1 of these pages. They are simply the nomination papers of the petitioner. It is said that an affidavit in support of it
is already on public domain. Therefore, this Court concludes that the copy provided to respondent no. 1 is a true copy of the election petition. There is
compliance of Section 81 of the Act.
Conclusion on Issue No. 6
71. Issue No. 6: The petitioner has supplied a true copy of the petition as per Section 81(3) of the Act.
72. On Issue Nos. 4, 5 & 7, this Court has directed the petitioner to rectify defects on or before 11.11.2022.
List on 16.11.2022 along with a report of the Registry for recording evidence on remaining issues. From 16.11.2022, this petition shall be heard on day
to day basis until finally decided.
