Thottathil B. Radhakrishnan, J.@mdashThis Election Petition is by a candidate, who contested the election held on 29-4-2006, to the Kerala Legislative Assembly from No. 67 Kodungalloor Constituency.
2. The Petition is filed on the ground that the election of the Respondent is void on ground that corrupt practices referable to Section 123(4) of the Representation of the People Act, 1951, "the Act", for short, have been committed either by the Respondent''s election agent or by some other person with the consent of the Respondent or his election agent.
3. The Respondent has raised preliminary objections to the election Petition.
4. The objections urged at the time of hearing on the preliminary objections are that (1) the affidavit in Form 25 is not affirmed and such affirmation duly certified as enjoined by law; (2) the verification of the election Petition is defective; (3) the sources of information as regards the allegations of corrupt practices have not been pleaded; (4) neither the election Petition nor the affidavit in Form 25 discloses the source of information regarding the corrupt practices of which the Petitioner does not have personal knowledge; (5) the allegations in the Election Petition are vague and imprecise and lack pleadings as regards material facts and particulars in terms of the provisions of the Act and that (6) the Election Petition does not disclose a cause of action, to be tried.
5. It is specifically urged by the learned Counsel for the Respondent that such defects have been pointed out as per the statement of preliminary objections filed on 16-8-2006, with notice to the Petitioner, and even if curable, they have not been cured and the Petitioner has demonstrably pressed for consideration of the Election Petition without curing such defects and therefore, the said defects have become fatal to the election Petition.
6. Per contra, the learned Counsel for the Election Petitioner contended that neither the verification nor the affidavit in Form No. 25 is defective and that the accusation made against the pleadings that they do not disclose cause of action and are vague and imprecise, is unsustainable. He also urged that the sources of information as regards the allegations of corrupt practices, wherever relevant, have been pleaded in the Election Petition.
In re Objection No. (1) that the affidavit in Form 25 is not affirmed and such affirmation duly certified as enjoined by law
7. Section 83 of the Act prescribes the contents of an Election Petition. The proviso occurring after Sub-section (1) of Section 83 enjoins 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. Rule 94A of the Conduct of Election Rules, 1961, "the Rules", for short, provides that the affidavit referred to in the proviso to Sub-section (1) of Section 83 shall be sworn to, before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form 25. Form 25 of the Rules is as follows:
FORM 25
Affidavit
(See Rule 94A)
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 say:
(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)etc.
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.
8. The objection is that the affidavit of the election Petitioner is not signed and affirmed in the manner prescribed in as much as there is no certification by the Notary that it was solemnly affirmed by the Petitioner before him. This objection is based on the fact that after the signature of the deponent, the only words occurring before the signature of the Notary are "Before me,". The words "Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of June 2006" occur above the signature of the deponent. It is argued that apart from being away from the Form prescribed the affidavit does not contain any 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.
9. It is apposite to extract the last portion of the Petitioner''s affidavit, which is as follows:
Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of June, 2006.
(Sd)
Umesh Challiyil
Deponent
Before me,
Sd. 26-6-2006
Magistrate of the First Class/
Notary/Commissioner of Oaths
(Seal)
C.A. Majeed
Advocate & Notary
D.H. Road,
Ernakulam Kochi-16.
10. The requirement of the proviso to Section 83(1) of the Act, read with Rule 94A of the Rules and Form 25 is that the Magistrate of the First Class, Notary or Commissioner of Oaths before whom the election Petitioner affirms the said affidavit, has to record that the deponent affirmed, before him, the contents of that affidavit at the place and on the date shown by the attesting officer. However, what is quoted above would show that the Notary has not certified as prescribed by the statute. This is so because, the statement as regards the solemn affirmation made before the signature of the deponent and the use of the words "before me" after the signature of the deponent is insufficient to hold that the certification by the Notary is to the effect that the deponent has solemnly affirmed to the contents of the affidavit before the Notary at the place where, and on the day on which, the deponent is shown to have signed the affidavit. The affidavit is therefore not in terms of the Form prescribed and is not even in substantial compliance thereof, as regards affirmation in terms of Rule 94A of the Rules.
In re objection No. (2) that the verification of the Election Petition is defective
11. The main thrust of the objections regarding the verification of the election Petition is that the Petitioner has not verified that the averments in the Election Petition are true. It is pointed out that apart from saying that the averments in paragraphs 1, 2 and 4 are within his personal knowledge and the averments in paragraphs 3 and 5 to 8 are within his knowledge, information and belief, it is not stated while verifying, that the averments are true. All that is stated is that no part of the averments is false and nothing what is relevant has been concealed. The Respondent contends that this, obviously, shows that the Petitioner has no claim that the averments contained in the various paragraphs in the election Petition are true or, at least, that he believes them to be true. It is hence contended that the verification is defective.
12. Section 83(1)(c) of the Act requires that an Election Petition shall be signed by the Petitioner and verified in the manner laid down in the CPC ("CP Code", for short), for the verification of pleadings. Section 83(2) 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 VI, Rule 15 of the CP Code provides that every pleading shall be verified. Sub-rule (2) thereof provides that the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
13. Verification is not a term defined in the CP Code. The act of verifying for the purpose of Order VI, Rule 15, CP Code, is intended to clearly fix the responsibility for the averments and allegations on the person signing the verification. If one makes an assertion in his pleadings on the basis of information received by him, he has to say so and further assert that he believes that statement to be true. It is not different when one verifies of his own knowledge. He has to assert that it is true. This is how the concept of verification has been understood in relation to pleadings.
14. An immediate reference to the Form of the affidavit under Rule 4A of the Rules which is extracted as part of paragraph No. 7 above, would show that one has to assert that what he states out of his knowledge are true and what he states out of information are true. The Civil Rules of Practice, Kerala made by the High Court of Kerala in exercise of the powers u/s 122 of the CP Code, to regulate the procedure and practice, prescribes a form for verification. Form No. 5 under Rule 14 of those Rules relates to Formal Parts of Plaint or Original Petition. The following is the relevant portion of that Form:
we declare that what is stated in paragraphs [ ] is true to our knowledge and that what is stated in paragraphs [ ] is stated on information which we believe to be true.
(emphasis supplied)
The Civil Rules of Practice issued to regulate procedure in the subordinate courts may not mutatis mutandis apply to election Petitions. But I read that in this context, to ensure that the mode of verification has always been understood to be an assertion in the positive that the averments are true and no part of the averments is false.
15. Similarly, the concluding portion of an affidavit prescribed by Form No. 7 in terms of Rule 82 of the Rules of the High Court of Kerala, 1971 made by the High Court of Kerala in exercise of powers under Article 225 of the Constitution of India and Section 122 of the CP Code requires a deponent to state that what is stated by him out of his own knowledge is true. The said form is as follows:
Form No. 7 (Rule 82)
Concluding Portion of Affidavit
What is stated above in paragraph......is true to my knowledge and what is stated in paragraphs.......stated on information and belief derived from records and/or obtained from......and I believe the same to be true.
(emphasis supplied)
16. "Verify", going by the Chambers''s Twentieth Century Dictionary, is: to testify; to assert or prove to be true; to ascertain, confirm, or test the truth or accuracy of. Going by the New Webster''s Dictionary of the English Language, "verify" means: to prove to be true; to confirm; to establish the truth of; to examine or test the correctness or authenticity of; and in law, to assert under oath; and the word "verification" means "the act of verifying or the state of being verified; a formal assertion of the truth of something;......". The words "verify" and "verification" are derived from the Latin words "verus" meaning "true" and "facio" meaning "to make".
17. In Neminath v. Poona University LXXV Bombay Law Reports 332, the meaning of the word "verification" occurring in an Ordinance relating to a University, touching examination of candidates, arose for consideration. Noticing that neither among the terms "verify" and "verification" is defined in that Ordinance, it was noticed that Webster''s Third New International Dictionary defines verification as "the act or process of verifying or the state of being verified: the authentication of truth or accuracy by such means as facts, statements, citations, measurements, or attendant circumstances, etc.". Accordingly, it was held that the ordinary meaning of verification is to ascertain by proper means the truth or accuracy of the thing to be verified. Though the meaning of the word "verification" in the context of verifying the answer sheets of a candidate may be of a shade that is not the same as "verification" by a person of his pleadings, the basic concept of verification is the ascertainment and assertion of truth and not merely a statement that it is not false.
18. The aforesaid discussion would show that what is required of a person while he verifies pleadings in terms of Order VI, Rule 15 of the CP Code is that he should assert that whatever he states out of his knowledge is true and whatever he states out of information is true. To say that something is not false is no substitute to the ascertion that a particular statement is true, which is what is required of a person verifying his pleadings. This is now the concept of verification has been understood. The interpretation of law has to be in consonance with the principles that the Constitution breaths, a cardinal one among them being that Truth alone triumphs--Sathyameva Jayathe.
19. It is not everything that is not false, according to one, that could be placed by him before a court in a solemn judicial proceedings for adjudication. He should take up the responsibility for the statement, coupled with the liability to be fixed with the responsibilities of having made such statement. For that, one has to assert that what he states is true. It is insufficient, if one says that no part of what he says is false. So much so, the verification of the election Petition is defective for want of the assertion by the Petitioner that the facts stated in the election Petition, be they on the basis of his knowledge or on the basis of information, are true.
The effect of upholding objections (1) and (2):
20. In
21. In
In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the Petitioner persisted in pursuing the Petition without proper verification which the Petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the Petition could not have been tried.
22. Following the decision in R.P. Moidutty''s case (supra) the Apex Court in
23. In the case in hand, as already noticed, the Respondent filed Statement of Preliminary Objections on 16-8-2006 with notice to the election Petitioner. Paragraphs 16 and 17 of the said Statement of Preliminary Objections contain the specific challenge to the sustainability of the verification on the ground that there is no statement that the contents of the election Petition are true. Paragraphs 22, 23 and 24 of the Statement of Objections contain the specific challenge to the sustainability of the affidavit in Form 25 making specific reference to the fact that it has not been duly attested and certified as enjoined by law. Thereafter, even while faced with the decision of the Apex Court in Regu Mahesh''s case (supra) and the argument on behalf of the Respondent that in spite of objections being taken, even the curable defects have not been cured, the stand taken by the election Petitioner as noticed in paragraph 6 (supra) is that neither the verification nor the affidavit in Form 25 is defective. So much so, following the ratio of the decisions of the Apex Court in R.P. Moidutty''s case and Regu Mahesh''s case (supra), the election Petition is defective for want of proper verification and such defect having not been cured in spite of objections, but was pressed for consideration without curing the defects, the same is liable to be rejected.
24. Having regard to the aforesaid, the other preliminary objections do not survive for consideration.
25. In the result, the election Petition is rejected.
26. The substance of this decision shall be communicated to the Election Commission and to the Speaker of the Kerala Legislative Assembly as required by Section 103 of the Act. An authentic copy of this order shall also be sent to the Election Commission as prescribed.
