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CASE NO.: Appeal (civil)  598 of 2007

PETITIONER: Umesh Challiyil

RESPONDENT: K.P.Rajendran

DATE OF JUDGMENT: 26/02/2008

BENCH: A.K.MATHUR & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO. 598  OF 2007

A.K. MATHUR, J.

1.      This appeal is  directed against the order dated 6.12.2006   passed by the learned Single Judge  of the  Kerala  High Court  whereby the learned Single Judge has rejected the election petition  filed by the appellant on the preliminary objection raised by the  respondent that affidavit in form No.25 was not affirmed, as such the  affirmation was not duly certified as per law nor did it disclose its  source of information. It was also observed that despite the fact  that objections were taken and the defects could have been cured, no  steps were taken to remove these defects. Hence, learned Single Judge  dismissed the election petition as it was not properly affirmed as  under  Sections 83 & 85 of the Representation of the People Act, 1951  (hereinafter to be referred to as the Act of 1951) read with Rule 94A  of the Conduct of Election Rules, 1961 (hereinafter to be referred to  as the Rules of 1961).

2.              Brief facts which are necessary for disposal of this appeal  are that an election was held on 29.4.2006 to the Kerala Legislative  Assembly from No.67 Kodungalloor Assembly Constituency. It was  alleged in the election petition filed by the appellant that the  election be declared void on the ground  of corrupt practice  committed either by the respondent’s election agent or by some other  person with the consent of the respondent or his election agent. The  election petition was registered and notice was issued. The  respondent was the elected candidate and he raised a preliminary  objection on the maintainability of the election petition.  The  preliminary objections were that the affidavit in Form 25 was not  affirmed, as such, the affirmation was not duly certified; the  verification of the election petition was defective; the sources of  information as regards the allegations of corrupt practices of which  the appellant did not have personal knowledge;  the allegations in  the election petition were vague and lacked pleadings as regards the  material particulars. It was contended by the petitioner/ appellant  (herein) that  there were no  illegality in the verification nor  the  affidavit in form No.25 was defective. It was submitted that the  accusations were specific and  they were not vague and the facts  mentioned in the election petition were duly sworn by  proper  affidavit.  

3.              The first preliminary  objection was upheld by learned  Single Judge that the affidavit which has been filed along with the

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election petition was not duly verified and the affidavit was not in  the form as required under Form No.25 nor was it inconformity with  Section 83 of the Act of 1951. Secondly, the verification of the  election petition  was not in the manner which is required under the  Code of Civil Procedure, 1908 (hereinafter to be referred to as CPC).  Section 83 of the Act of 1951 states what are the contents of the  election petition. Section 83 reads as under:

               "  83. Contents of petition.- (1)  An election petition \026 (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."

As per Section 83, a concise statement of material facts should be  given  in the petition and if the allegations are of corrupt practice  then the a full statement, as far as possible, all names of the  parties alleged to have committed such corrupt practice and the date  and place of the commission of  each such practice has to be  disclosed and it shall be signed by the petitioner and verified in  the manner laid down in the CPC  for verification of the pleadings .  It further provided that where the allegations are of 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 in Form No.25.

4.              Now, coming to the question with regard to the  verification, the verification which is required as per the  provisions of the CPC under Order 6 Rule 15 that the pleadings shall  be verified and  it should specify with reference to the numbered  paragraphs of the pleadings, what he verifies of his own knowledge  and what he verifies  upon information which he received  is believed  to be true.  The format of the verification is contained in Form  No.25 under Order 6 Rule 15, CPC. Relevant portion of the form No.25  reads as under :

               "   FORM 25                 ( See rule 94A)

               I,\005\005\005\005\005\005 , the petitioner in the accompanying  election petition calling in question the election  of Shri/Shrimati\005\005\005. (respondent No\005\005\005.in the said  petition ) make solemn affirmation/ oath and say-

(a)     that the statements made in paragraphs  \005. Of the accompanying election petition  about the commission of the corrupt  practice of*\005\005 and the particulars of

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such corrupt practice mentioned in  paragraphs \005\005. Of the same petition and  in paragraphs\005\005\005. Of the Schedule  annexed thereto are true to my  knowledge; (b)     that the statements made in paragraphs  \005. of the said petition about the  commission of the corrupt practice  of*\005\005.and the particulars of such  corrupt practice given in paragraphs\005\005  of the said petition and in  paragraphs\005\005.of the Schedule annexed  thereto are true to my information

)

               (d)                                                            etc.                                                                 Signature of deponent                         Solemnly affirmed/ sworn by Shri/ Shrimati\005\005\005                         At\005\005\005\005\005\005\005\005\005.this \005\005\005\005\005\005 \005\005.day\005\005\005. of \005\005\00519

                                                               Before me,                                 Magistrate of the first class/Notary/                                  Commissioner of Oaths.                         -------------------------------------------------                          * Here specify the name of the corrupt practice."

5.              Now, what has been stated in the verification of the  election petition reads as under :                 "   I, Umesh Challiyill, aged 45 years, S/oC  A Krishnan, Challiyill House, Arakulam West,  Kodungalloor, the petitioner herein, do hereby  declare that the averments made in paragraphs 1, 2  and 4 are within my personal knowledge and  paragraphs 3 and 5 to 8 are within my knowledge,  information and belief and no part thereof is false  and nothing which is relevant has been concealed.                         Verified today this the 26th day of June,  2006 at Ernakulam. Sd.                                                             Sd. Advocate                                                        Petitioner                  

I, Umesh Challiyill , aged 45 years, S/o CA  Krishnan, Challiyill House, Arakulam West,  Kodungalloor, the petitioner herein, do hereby  declare that this is the true copy of the election  petition. Verified this the 26th day of June, 2006  at Ernakulam. Sd                                                              Sd. Advocate                                                                                                                                      Petitioner."

In this affidavit instead of writing " that I believe to be true"  what has been stated , " no part thereof is false  and nothing  which  is relevant has been concealed."  This verification has been found by  learned Single Judge to be defective. It is true it is not in same  words as was required in form No.7 under Rule 82 of the Rules of High  Court of Kerala, 1971 framed in exercise of power under Article 225  of the Constitution of India. After going through the affidavit filed  by the appellant and the format of the concluding portion of the

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affidavit, we fail to appreciate that in what way the verification  can be found to be bad except that it has not  used the word, "true"  it is expressed in other way, " no part thereof is false and nothing  which is relevant has been concealed."  Instead of saying, "true" it  has been put up in other way round, "no part thereof is false and  nothing which is relevant has been concealed", which conveys the same  meaning as was used, " I believe the same to be true". We fail to  appreciate the distinction between the two.  But the substance and  the essence has been conveyed. Therefore, the view taken by learned  Single Judge that the verification is not in the form as required  under Form No.7 under Rule 82 of the Rules of the High Court of  Kerala, 1971 and therefore, it is a major defect in the constitution  of the election petition and therefore, it should be rejected under  Section 86 of the Act of 1951, we do not agree with this observation.   What one is required to do is to make proper verification disclosing   the contents of which paragraphs are within his personal knowledge,  and the averments in which paragraphs are within his knowledge,  information or the information derived from other source and he  believes the same to be true.  Therefore, both the phraseology   convey the same meaning  except that instead of using the words, "  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 that the averments are true" he has  stated, " no part thereof is false and nothing which is relevant has  been concealed". Practically the same sense is conveyed and it is not  such a defect which could entail dismissal of the election petition.

6.              Secondly, the affidavit which has been filed is required  under the proviso to Section 83 of the Act of 1951 that in the matter  of 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. That affidavit has also  been produced before us and the contents of the affidavit read as  under :

               " AFFIDAVIT FILED UNDER SECTION 83 OF  THE REPRESENTATION OF THE PEOPLE ACT 1951 READ  WITH RULE 94A OF THE CONDUCT OF ELECTION RULES  1961                                          I, Umesh Challiyill, aged 45  years, S/o CA Krishnan, Challiyil House, Arakulam  West, Kodungalloor, the petitioner in the  accompanying election petition calling in  question  the election of Shri K P Rajendran  (respondent in the said petition) make solemn  affirmation and say-

(a)     that the statements made in paragraphs 1, 2  and 4 of the accompanying election petition  about the commission of corrupt practice  of  putting up the poster as seen in the  photograph Annexure A and the publication  and distribution of Annexures C and D by the  election  agent of the respondent and other  agents of the respondent containing  statements of facts which are false and  which the election agent and other agents  believed to be false or do not believe to be  true in relation to the personal character  and conduct of Shri Umesh Challiyil, the  United Democratic Front Candidate of  Kodungallur Assembly constituency, namely me  which are statements reasonably calculated

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to prejudice the prospects of the election  of the said Sri Umesh Challiyil, namely me  and the particulars of such corrupt practice  mentioned in paragraph 4 of the same  petition falling under Section 123(4) of the  Representation of the People Act, are true  to my knowledge. (b)     That the statements made in paragraphs 3 and  5 to 8 of the accompanying election petition  about the commission of corrupt practice of  publication and distribution of Annexure C &  C in all the segments and the areas within  the Kodungallur Assembly  Constituency the  particulars of which are as mentioned in  detail in paragraphs 3,5 to 8 by the  Election agent and other agents of the  respondent making statement of facts which  are false and which he and they believed to  be false or do not believe to be true in  relation to the personal character and  conduct of Sri Umesh Challiyil, namely me  the candidate of the United Democratic Front  in the Kodungallur Assembly Constituency  reasonably calculated to prejudice the  prospectus of the election of the said Sri  Umesh Challiyil, namely me and thereby a  corrupt practice falling under Section  123(4) of the Representation of the People  Act and have been committed and the detailed  particulars of such practice mentioned in  the aforesaid paragraphs of the same  petition are true to my information.

All the facts are true and correct. Dated this the 26th day of June, 2006.

Solemnly affirmed by Shri Umesh Challiyil at  Ernakulam on this the 26th day of June, 2006.

                                       Sd.                                         Deponent. Before me.

Sd. 26/06/06 Magistrate of the First Class/                         Notary/ Commissioner of Oaths.

                                       Stamp of C.A.MAHEED                                                  ADVOCATE & NOTARY                                                 D.H.ROAD ERNAKULAM                                                         KOCHI-16."

Here also  the defect as pointed out by learned Single Judge was that  the appellant  had not signed  and affirmed in the manner inasmuch as  there is no certification of the Notary that it was solemnly affirmed  by the appellant before him. This objection was 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." Occurred above the signature of the deponent.  Therefore, it was contended that the affidavit does not  bear the  certification by the Notary as to the affirmation  by the deponent

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since such certification ought to be by the Notary after the  signature of the deponent.  This affidavit was also found to be  defective by the learned Single Judge.  But in our view,  this too is  a defect of very minor nature. It may be a bona fide mistake on the  part of the deponent as well as the Notary but basically it conveys   the sense that the affidavit has been solemnly affirmed by Umesh  Challiyil at Ernakulam.  This affirmation also does not in any way go  to the root of the matter so as to render the entire election  petition not properly constituted entailing the dismissal of the  same. Both the defects which have been pointed out by learned Single  Judge were too innocuous to have resulted in dismissal of the  election petition on the basis of the preliminary objection.  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 true that the  election petition has to be seriously construed. But that apart  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. 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.  But not  of defect of the nature as pointed out by the respondent would entail  dismissal of the election petition. These were the defects, even if  the Court has 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.  

7.              Learned counsel for the respondent has tried to justify   and support the order  of the learned Single Judge and submitted that  in fact these objections were raised by the respondent in his counter  and the appellant had sufficient opportunity to have cured them and  in that connection, learned counsel for the respondent pointed out  that the election petition was presented on 22.6.2006 and the first  date of hearing was 30.8.2006. The appellant should have cured these  defects but the same was not done. Therefore, there was no option  with the learned Single Judge but to dismiss the  election petition.  We fail to appreciate this argument of learned counsel for the  respondent for the simply reason how can the appellant who bona  fidely felt that his election petition  in all respect is complete  will entail such a serious consequence of dismissal  of the election  petition on such minor omissions. In case, 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 appellant to amend or cure certain defects pointed out by the  Court. It may be relevant to mention, these are not the grounds  mentioned in Section 86 of the Act for dismissal of election  petition.  But nonetheless  even if it is to entail serious  consequence of dismissal of the election petition for not being  properly constituted,  then too at least the appellant should have  been given an opportunity to cure these defects and put the election  petition in proper format. But learned Single Judge in stead of  giving an opportunity has taken the easy  course to dismiss  the  election petition which in our opinion, was not warranted. 8.       Learned counsel for the appellant has invited our attention  to various decisions of this Court  in which this Court has  considered the similar  effect of the case at hand. The first is   Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Ors. ([1964] 3  SCR 573). In this case with regard to  the defect in the  verification, this Court observed as follows:

               " 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

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election petition."

Similarly, other defects were of minor nature , like proper copies of  the election petition were not served or  the election petition does  not bear the signature at one or two places  in the election  petition. This Court observed that  such defects are not so fatal  which may result in dismissal of the election petition.

9.              Similarly, in H.D.Revanna v. G.Puttaswamy Gowda & Ors.  [(1999) 2 SCC 217], it was observed as follows:

               "  The provisions in the Representation  of the People Act, 1951 are very specific.  Section 86 provides for dismissal of an election  petition in limine for non-compliance with  Sections 81, 82 and 117. Section 81 relates to  the presentation of an election petition. It is  not the case of the appellant that the  requirements of Section 81 were not complied  with. Sections 82 and 117 are not relevant in the  instant case. Significantly, Section 86 does not  refer to Section 83 and non-compliance with  Section 83 does not lead to dismissal under  Section 86. The Supreme Court has laid down 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 CPC. Defect  in verification of the  election petition or the affidavit accompanying  the election petition has been held to be curable  and not fatal"

10.             In Sardar Harcharan Singh Brar v. Sukh Darshan Singh & Ors.  [ (2004) 11 SCC 196], this Court held as follows:

               " In the present case, the grounds of  corrupt practice and the facts necessary to  formulate a complete cause of action had been  stated. Even the particulars had been given.  However, if the Court felt that the particulars  as given in the petition were deficient in any  manner the petitioner could be directed to supply  the particulars and make the deficiency good. In  any case, deficiency in particulars could not  have been a ground for dismissing the petition at  the threshold. Only the non-supply of particulars  though ordered by the Court could have led to  either striking off of the pleadings or refusal  to try the related instances of alleged corrupt  practice."

Similarly, their Lordships have further observed that Section 86  which contemplates dismissal of the election petition does not cover  non-compliance of Section 83 of the Act and therefore, consequences  of Section 86 does not follow.

11.             As against this, learned counsel for the respondent inviged  our attention to a decision of this Court in Azhar Hussain v. Rajiv  Gandhi [ 1986 (Supp.) SCC 315]. There also this Court held that  though Section 83 is not mentioned in Section 86, but  since the  election petition could be summarily dismissed under Order 6 Rule 16  and Order 7 Rule 11, in case of petitioner’s failure  to furnish  any  of the material facts and particulars in violation of Section 83 of  the Act which are essential for disclosing the cause of action

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relating to conditions of corrupt practice. The dismissal of the  election petition is not on account of Section 83 but on account of  failure of compliance of Order 6 Rule 16 and Order 7 Rule 11, CPC.  But that is not the case before us.

12.             In Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar   & Ors. [ (2005) 2 SCC 188], it  was held that where the defects in  copies were curable/ non-vital in nature the election petition cannot  be dismissed at the threshold for non-compliance with Section 81(3)  on the basis of such defects. In Ram Prasad Sarma v. Mani Kumar Subba  & Ors. Etc. [(2003) 1 SCC 289], it was held that verification in  support of the allegations of corrupt practice accompanying the  petition by Oath Commissioner was not integral part of the petition.  Mere absence of the stamp and name of Oath Commissioner in the true  copy of the affidavit would not amount to vital or material deviation  from the original nor would it mislead the returned candidate when  averment was made in the affidavit that it was being sworn in support  of the allegations of corrupt practice and election petitioner had  put his signature thereof. Their Lordships held that in such a   situation  the election petition is not liable to be dismissed at the  threshold.  13.             In R.P.Moidutty v. P.T.Kunju Mohammad & Anr. [ (2000) 1 SCC  481] their Lordships have expressed that heavy onus lies on the  election petitioner seeking setting aside of the election of a  successful candidate to make out a clear case for such relief both in  the pleadings  and at the trial. The mandate of the people  should  not be interfered lightly  and it emphasized that under  Section  83   of the Act ordinarily it would suffice  if the election petition  contains a concise statement of the material facts relied on by the  petitioner but in the case of corrupt practice the election petition  must set forth full particulars thereof including as full a statement  as possible of the names of the parties alleged to have committed  such corrupt practice , the date and place of the commission of each  such practice. An election petition is required to be signed and  verified in the same manner as is laid down in the Code of Civil  Procedure, 1908 for the verification of pleadings.  But this case has  nothing to do with regard to the defective pleadings. This case only  emphasized that the election petition should not be lightly dealt  with. In this case also  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. The election petitioner  persistently pursued the election petition without rectification,  therefore, this Court dismissed the petition on that ground.  It was  therefore, observed as follows:                 "  The object of requiring   verification of an election petition is to  clearly fix the responsibility for the averments  

and allegations  in the petition on the person  signing the verification and, at the same time,  discouraging wild and irresponsible allegations  unsupported by facts. However, the defect of  verification is not fatal to the petition, it can  be cured. In the present case the petitioner  persisted in pursuing the petition without proper  verification which the petitioner should not have  been permitted to do. Unless the defect in  verification was rectified, the petition could  not have been tried. For want of affidavit in the  required form and also for lack of particulars,  the allegations of corrupt practice could not  have been enquired into and tried at all. In  fact, the present  one is a fit case where the

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petition should have been rejected at the  threshold for non-compliance with the mandatory  provisions of law as to pleadings. The affidavit  filed by the petitioner in support of the  election petition as required by Rule 94-A also  does not satisfy  the requirement of the proviso  to sub-section (1) of Section 83 of the Act and  Form 25 appended to the rules."

In this case, the election petition was dismissed not on the  threshold  but after going through the whole trial. It was observed  at paragraph 35 of the judgment as follows :

               "  35.          All the averments made  in paras 1 to 17 of the petition have been stated  to be true to the personal knowledge of the  petitioner and in the next breath the very same  averments   have   been stated  to be based on  the information of the petitioner and believed by  him to be true. The source of information is not  

disclosed. As observed by the Supreme Court in  F.A.Sapa v. Singora the object of requiring  verification of an election petition is to  clearly fix the responsibility for the averments  and allegations in the petition on the person  signing  the verification and, at the same time,  discouraging wild and irresponsible allegations  unsupported by facts. However, the defect of  verification is not fatal to the petition, it can  be cured ( see Murarka Radhey Shyam Ram Kumar v.  Roop Singh Rathore and A.S.Subbaraj v. M. Muthiah  ). In the present case the defect in verification  was pointed out by raising a plea in that regard  in the written statement. The objection was  pressed and pursued by arguing the same before  the Court. However, the petitioner persisted in  pursuing  the petition without proper  verification which the petitioner should not have  been permitted to do. In our opinion, unless the  defect in verification was rectified, the  petition could not have been tried. For want of  affidavit in the required form and also for lack  of particulars, the allegations of corrupt  practice could not have been enquired into and  tried at all. In fact, the present one is a fit  case where the petition  should have been  rejected at the threshold for non-compliance with  the mandatory provisions of law as to pleadings."

Therefore, this case is entirely different where trial was gone into  and it was clearly found that the verification was not in proper  form. Therefore, that evidence cannot be taken into consideration.  The petitioner even did not rectify the defect. The Court found that  the averments could not be looked into.  Therefore, this case is  distinguishable on the facts  and as successive judgments which have  been quoted above have consistently taken the view that such defects  cannot be taken as a ground for dismissing the election petition and  such defects are curable. 14.             However, in fairness whenever such defects are pointed then  the proper course for the Court is not to dismiss the petition at the

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threshold. In order to maintain the sanctity of the election the  Court should not take such a technical attitude and dismiss the  election petition at the threshold. On the contrary after finding the  defects, the Court should give proper opportunity to cure the defects  and in case of failure to remove/ cure the defects, it could result  into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC.  Though technically it cannot  be dismissed under Section 86 of the  Act of 1951 but it can be rejected when the election petition is not  properly constituted as required under the provisions of the CPC but  in the present case we regret to record that  the defects which have  been pointed out in this election petition was purely cosmetic and it  does not go to the root of the matter and secondly even if the Court  found them   of serious nature then at least the court should have  given an opportunity to the petitioner to rectify such  defects.  15.    As a result of the above discussion,  the view taken by  learned Single Judge of the High Court is not correct and we set  aside the order dated 6.12.2006 passed by the learned Single Judge in  E.P.No.6 of 2006  and remit this matter back to the High Court of  Kerala for proceeding with the election petition of the appellant.  There would be no order as to costs.            Appeal allowed.