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CASE NO.: Appeal (civil) 4172-73  of  1999

PETITIONER: G. MALLIKARJUNAPPA AND ANOTHER

       Vs.

RESPONDENT: SHAMANUR SHIVASHANKARAPPA & OTHERS

DATE OF JUDGMENT:       04/04/2001

BENCH: CJI, R.C. Lahoti & Doraiswamy Raju

JUDGMENT:

DR. A.S. ANAND, CJI

L...I...T.......T.......T.......T.......T.......T.......T..J

   Election  from  6th Davanagere Constituency to the  12th Lok Sabha was held on 22nd of February, 1998.  The result of election  was declared on 2nd March, 1998.  First  appellant besides  respondents 1 to 7 were candidates at the election. The second appellan t is the son of the first appellant.  He is an elector of the Constituency, who had also acted as the election agent of the first appellant.  The first respondent was  declared  elected  by a margin of  11,332  votes.   The election  of  first respondent was cha lenged by  filing  an election  petition by both the appellants on various grounds of  commission  of  corrupt  practices.   According  to  the appellants,  it was to meet a procedural objection raised by the Registry of the High Court that two sets of court fee we e  paid  and  the  original   joint  election  petition  was bifurcated  into  two  separate   election  petitions  being Election  Petition  Nos.  4 and 5 of 1998.  Besides  seeking setting  aside of the election of the first respondent,  the appellants  also sought a declarat on to the effect that the first appellant be declared elected.  After respondents were served,  the  first respondent filed an application  (I.A.1) under  Order 7 Rule 11 read with Section 151 C.P.C.  praying for dismissal of Election Petition in limine unde Section 86 of  the  Representation of People Act firstly on the  ground that  the  affidavit  filed  in   support  of  the  Election Petition,  was not in the proper format and there was, thus, violation  of  Section  83(2) of the Representation  of  the People  Act.   It as also alleged that verification  of  the affidavit  and  the Election Petition did not tally and  the election  petitions  were liable to be dismissed in  limine. The  other  objection raised was the alleged  incapacity  of appellant No.2 to maintain an Election etition on the ground that  the  name of appellant No.2 as given in  the  Election Petition  did  not  tally  with the name  of  appellant,  as contained  in the form for appointment of election agent and because of "difference of identity" the Election Petition co ld not proceed to trial and was liable to be rejected at the threshold.  Some other objections were also raised but those

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touch  upon the merits of the case and we are not  concerned with those at this stage.

   The  appellants  resisted the application  and  asserted that  Election  Petition  could not be dismissed  in  limine under  Section 86(1) of the Representation of People Act  on the  alleged  grounds mentioned in I.A.1.  A learned  Single Judge  of  the  High Court of Karnataka vide  order  of  3rd November, 1998 allowed the application (I.A.1) and dismissed both the Election Petitions (Election Petition Nos.  4 and 5 of  1998)  in  limine.   It was held  that  there  had  been non-comp  liance with Rule 94-A of the Rules inasmuch as the affidavit  filed  in support of the allegations  of  corrupt practices  with  the Election Petitions did not comply  with the  requirements  of the format as prescribed in  Form  No. 25.   As regards the other object on to the  maintainability of  the Election Petitions, namely, that appellant No.2  was shown  as  "G.M.  Siddheshwarappa" in the election  petition whereas  in  the election agent form, the election agent  of appellant  No.1, namely, appellant No.2, had signed his name as  "Siddeshwar"  and  not as "G.M.   Siddeshwarappa".   The learned  single  Judge found that there was  "difference  of identity" of the petitioner in the Election Petition and the election agent form, rendering the election petitions as not maintaininable  Order of the learned Single Judge dismissing both  the election petitions has been put in issue before us in these appeals.

   Mr.   A.K.   Goel, learned senior counsel  appearing  on behalf of the appellants, submitted that the High Court fell in  error  in dismissing the Election Petition  for  alleged non-compliance  with Section 83(2) of the Representation  of the  People  Act and that ev en if there was some defect  in the  affidavit on its verification, it was a curable  defect and  Election  Petition did not merit dismissal  in  limine. Reliance  in this behalf was placed on F.A.  Sapa and others vs.   Singora  and  others,  1991(3)   SCC  375.   Mr.   oel submitted  that affidavit did not suffer from any defect and that  even  if it was defective and not in  accordance  with Rule  94A  as  alleged, non-compliance  with  provisions  of Section  83(2)  of  the R.P.  Act, did not  attract  Section 86(1)  of  the  Act and th election petitions could  not  be dismissed  in limine.  Mr.  Goel further submitted that  the name  of appellant No.2 is G.M.  Siddheshwarappa.  He is  an elector of the Constituency and his name also appears in the voters’ list as G.M.  Siddheshwarappa.  That e is the son of appellant  No.1  but  the  mere fact that in  the  form  for appointment  of  appellant  No.2  as an  election  agent  of appellant  No.1,  he had signed as "Siddheshwar"  is  wholly immaterial and of no consequence and there was no "crisis of identity" or "difference of identity" as held by the learned single Judge of the High Court.

   Mr.   G.L.   Sanghi,  learned senior counsel  for  first respondent, on the other hand submitted that verification of the  affidavit was not at all proper and that the  affidavit filed  by  the appellants was also not in the  format  (Form No.25) prescribed under Rul e 94-A of the Act.  He submitted that  since  an  Election  Petition  making  allegations  of corrupt  practices  is  required  to   be  supported  by  an affidavit,  defect  in  the affidavit would render  such  an Election  Petition incompetent and it was liable to be dismi sed in limine.

   We  have  given  our  thoughtful  consideration  to  the

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submissions made at the Bar.  An election petition is liable to  be dismissed in limine under Section 86(1) of the Act if the  election  petition  does  not comply  with  either  the provisions  of  ’Section 81 or Section 82 or Section 117  of the  R.P.   Act’.   The requirement of filing an  affi  avit along  with an election petition, in the prescribed form, in support  of allegations of corrupt practice is contained  in Section   83(1)  of  the   Act.   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.   Therefore,  an election petition is not liable to  be dismissed in limine under Section 86 of the Act, for alleged non-compliance  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.   What   other consequences,   if  any,  may   follow  from  an   allegedly ’defective’ affidavit, is required to be judged at the trial of  an  election  petition but Section 86(1) of the  Act  in terms cannot be ttracted to such a case.

   In  F.A.  Sapa case (supra), a three Judge Bench of this Court specifically dealt with an issue concerning defects in the  verification  of  an election petition as  well  as  of defects  in the affidavit accompanying an election  petition wherein  allegations  of c rrupt practice are  made.   After considering the provisions of Sections 83 and 86 of the Act, as  also  the requirements of Form No.25 prescribed by  Rule 94-A  of  the Rules and relevant provisions of the  Code  of Civil  Procedure , the Court opined:  "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 elieved 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 prescr bed Form  25 can be cured........"

   Again  in Dr.  Vijay Laxmi Sadho v.  Jagdish, JT 2001(1) SC  382, this Court opined:  "We are in respectful agreement with  the view expressed in F.A.  Sapa’s case (supra) and in view of settled law the conclusion becomes irresistible that defect  in verification of an affidavit is curable and  does not  merit dismissal of an election petition in limine under Section 86 (1) of the Act."

   Thus,  we have no hesitation in holding that the view of the  learned single Judge to the contrary is  unsustainable. In  so  far  as  the second ground  on  which  the  Election Petitions  were dismissed namely the alleged "difference  of identity",  the  least  said  the better.   In  fairness  to learned  senior counsel, Mr.  Sanghi appearing for the first respondent,  we  must  record t hat he did  not  pursue  the challenge to the maintainability of the Election Petition on that ground.  The learned Single Judge of the High Court, in our  opinion,  was  in error in holding that there  was  any "difference  of  identity"  of appellant No.2 and th  t  the Election Petitions were not maintainable on that ground.  An

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Election  Petition  challenging the election of  a  returned candidate    can    be   filed     not   only    by    other candidate/candidates  at  the election but also by a  voter. Appellant  No.2,  the  son of ap ellant No.1, who  had  also acted as an agent of appellant No.1, challenged the election of first respondent in his capacity as a voter.  There is no dispute  that  the name of the second appellant as given  in the  election petition tallies with his name as ap earing in the  voters  list.  There was, thus, no discrepancy  in  the name  of  appellant No.2 in the election petition let  alone any  "difference of identity".  The High Court was in  error in  finding  that since there was difference in the name  of the  appellan No.2 as given in the Election Petition and the voters’  list  from  the  one  given in  the  form  for  his appointment  as  an election agent, the defect was  "fatal". The  view  is clearly erroneous.  As a result of  the  above discussion  we  find  that the order of the  learned  Single Judge cannot be sustained.  The election petitions could not have  been dismissed on either of the two grounds in limine. The  impugned  order is, therefore, set aside.   Both  these expression  of  opinion  on the merits of  other  objections raised  in  the  written  statement filed  by  the  returned candidate.  succeed and are allowed.  The Election Petitions are  remanded to the High Court for their disposal on merits in accordance with law.  We clarify that our order shall not be  construed as any expression of opinion on the merits  of other  objections  raised in the written statement filed  by the   returned  candidate.    Petitions  expeditiously.   We request  the  High  Court to dispose of the  Election  There shall  be  no order as to costs so far as these appeals  are concerned.