Section 83, R.P.Act - section 83 - defect in affidavit - curable.

Headnote:(a) Representation of the People Act, 1951 - Section 83(1)(c) r/w Rule 94-A, Conduct of Election Rules, 1961 and Order VI rule 15(4), CPC - Section 83(1)(c) requires only verification in terms of provisions of CPC - Whether verification incomplete without affidavit in terms of Order VI rule 15 - Held affidavit under rule 15 is stand alone document - Not necessary for validity of verification. (Para 24)
        (b) Representation of the People Act, 1951 - Section 83(1)(c) r/w Order VI rule 15(4) - Act only requires verification of the pleadings - No affidavit in support of the pleadings is required. (Para 30)
        (2012) 5 SCC 511 - Referred
        (c) Representation of the People Act, 1951 - Section 83(1)(c) - Composite affidavit in support of averments and with regard to alleged corrupt practices - Held, full compliance of the Act. (Para 34)
        (1995) 3 SCC 757; (1998) 6 SCC 686; 1986 (Supp) SCC 315 - Relied upon
        (d) Interpretation of Statutes - Legislation by reference - Amendment in Order VI, rule 15 - Requirement of affidavit also - Of no consequence unless verification is defined to include an affidavit. (Para 37)
        (e) Conduct of Election Rules, 1961 - Rule 94-A, Form 25 - Affidavit - Substantially complied - Defect in verification - Curable - Petition maintainable. (Para 40)
        (2012) 7 SCC 788 - Relied upon
        (f) Representation of the People Act, 1951 - Section 86(1) - Non-compliance with section 83(1)(c) - Summary dismissal of election petition - Impermissible. (Paras 42 to 47)
        (1972) 1 SCC 214; 1986 (Supp) SCC 315; (2001) 4 SCC 428; (2012) 7 SCC 788; (2004) 11 SCC 196 - Relied upon
        (g) Representation of the People Act, 1951 - Section 83 - Compliance with - Non-compliance is curable, if there is substantial compliance - Total non-compliance - Petition is not election petition - Liable to be dismissed at the threshold. (Para 55)
        [1963] 3 SCR 573; [1964] 6 SCR 213; (1999) 4 SCC 274; (2000) 2 SCC 294; (2009) 9 SCC 310 - Relied upon
        (h) Representation of the People Act, 1951 - Section 83(3) - Defective affidavit is curable - However, defect should be rectified and there should be complete compliance before parties go to trial. (Para 62)
        [1968] 3 SCR 13; (1978) 2 SCC 659; (1991) 3 SCC 375 - Relied upon
        2010 (6) KarLJ 78 - Approved
        (i) Representation of the People Act, 1951 - Section 83(3) - Defective affidavit - Party should be given opportunity to rectify the defect - Thereafter on non-rectification petition can be rejected under Order 6 Rule 16 or Order 7 Rule 11 ref=act:10444>CPC. (Para 64)
        (2000) 1 SCC 481; (2008) 11 SCC 740; (1991) 3 SCC 395 - Relied upon
       Facts of the case:
        1. The principal question of law arising in this appeal is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Representation of the People Act, 1951.
        2. Another question that has been raised is that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory Form No. 25 prescribed by the Conduct of Election Rules, 1961, whether the election petition is liable to be summarily dismissed.
       Finding of the Court:
        There is no infirmity in the impugned judgment.
       Result : Appeal dismissed.

Judgement Key Points

Based on the provided legal document, the key points regarding the law on affidavits in election petitions are as follows:

Filing an affidavit in terms of Order VI Rule 15(4) of the Civil Procedure Code (CPC) is not an absolute requirement under the relevant election law unless allegations of corrupt practices are made in the petition. The law mandates verification of pleadings in a manner prescribed by the CPC, but it does not explicitly require an additional affidavit supporting the pleadings unless such allegations are present (!) (!) .
An affidavit accompanying an election petition, especially in cases involving allegations of corrupt practices, should substantially comply with the prescribed format. Defects in such affidavits, including verification issues, are considered curable and not necessarily fatal to the maintainability of the petition (!) (!) .
The requirement for an affidavit in the prescribed form (Form 25) is meant to ensure that allegations are made on oath and with proper affirmation. However, strict adherence to the format is not mandatory if there is substantial compliance, and defects can be rectified at a later stage (!) (!) .
The law emphasizes that non-compliance with procedural formalities, such as filing a defective affidavit, does not automatically lead to the dismissal of an election petition. Courts are encouraged to provide an opportunity to cure such defects before dismissing the petition (!) (!) (!) .
The primary purpose of verification and affidavits is to attest to the truth of the allegations. While verification is essential, defects in verification are generally considered curable unless they are total and complete non-compliance that affects the core of the petition (!) (!) .
The law also recognizes that an election petition can be dismissed summarily if it does not disclose a cause of action or if there is total non-compliance with statutory requirements. Nonetheless, minor procedural defects, including those related to affidavits, should be rectified rather than lead to immediate dismissal (!) (!) .
The procedural rules and the law aim to balance the integrity of the election process with the need to prevent technicalities from unduly dismissing valid petitions. Courts are advised to adopt a pragmatic approach, giving opportunities for rectification to uphold the substantive rights of parties involved (!) (!) .

In essence, while affidavits are important for verifying allegations in election petitions, procedural defects are generally considered curable, and courts should prioritize substantial compliance and rectification over dismissing petitions on technical grounds.

JUDGMENT

Madan B. Lokur, J.:-

Leave granted.

2. The principal question of law raised for our consideration is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Representation of the People Act, 1951. In our opinion, there is no such mandate in the Representation of the People Act, 1951 and a reading of P.A. Mohammed Riyas v. M.K. Raghavan & Ors., (2012) 5 SCC 511 which suggests to the contrary, does not lay down correct law to this limited extent.

3. Another question that has arisen is that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory Form No. 25 prescribed by the Conduct of Election Rules, 1961, whether the election petition is liable to be summarily dismissed. In our opinion, as long as there is substantial compliance with the statutory form, there is no reason to summarily dismiss an election petition on this ground. However, an opportunity must be given to the election petitioner to cure the defect. Further, merely because the affidavit may be defective, it cannot be said that the petition filed is not an election petition as understood by the Representation of the People Act, 1951. The facts:

4. The challenge in these appeals is to a judgment and order dated 24th February 2010 passed by a learned Single Judge of the High Court of Karnataka in Miscellaneous Civil No. 386/2010 and Miscellaneous Civil No. 1431/2010 in Election Petition No.2/2009. The decision is reported as Prasanna Kumar v. G.M. Siddeshwar & Ors, 2010 (6) KarLJ 78.

5. In Miscellaneous Civil No. 386/2010 the appellant (Siddeshwar) sought the dismissal/rejection of the election petition challenging his election to the 15th Lok Sabha from 13, Davangere Lok Sabha Constituency in the election held on 13th April 2009. It was submitted in the application that the provisions of Section 81(3) and Section 83 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) had not been complied with and therefore, in view of Section 86 of the Act read with Order VII Rule 11(a) of the Code of Civil Procedure (hereinafter referred to as the CPC), the election petition ought to be rejected/dismissed at the threshold.

6. For the present purposes, we are concerned with Section 83 and Section 86 of the Act and to the extent they are relevant, they read as follows:

“83. Contents of petition.—

(1) An election petition—

(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.”

“86. Trial of election petitions.—

(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.—An order of the High Court dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of Section 98.

(2) to (7) x

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2013 Supreme(SC) 218

SUPREME COURT OF INDIA R.M. LODHA, J. CHELAMESWAR, MADAN B. LOKUR, JJ. G.M. SIDDESHWAR – Appellants. VERSUS PRASANNA KUMAR - Respondent Civil Appeal Nos. 2250-2255 of 2013Decided On : 8-3-2013.

Section 83, R.P.Act - section 83 - defect in affidavit - curable.

Cases Referred (17)

SUPREME COURT OF INDIA
R.M. LODHA, J. CHELAMESWAR, MADAN B. LOKUR, JJ.
G.M. SIDDESHWAR – Appellants.
VERSUS
PRASANNA KUMAR - Respondent
Civil Appeal Nos. 2250-2255 of 2013
Decided On : 8-3-2013.