The defect in the verification of an election petition is curable and not fatal, and the court may allow the amendment of the verification clause to rectify the defect.

This misc. case has arisen out of Election Petition No. 4/1999, which has been instituted by the present petitioner, namely, Sri Kanakeswar Narzary under Sections 80 and 80A of the Representation of the Peoples Act, 1951, challenging the election of the respondent No. 9, Shri Sansuma Kungur Bwismuthiary, who got elected to the Lok Sabha in the last Parliamentary election held in 1999.

2. In a nutshell, let me narrate the material facts and various stages, which have led to the institution of the present misc. case:-

i) In the course of the trial of the aforesaid Election Petition No. 4/1999 before P.C. Phukan, J (since retired), the respondent No. 9, on receipt of the notice from the Court, entered appearance through his learned counsel and filed an application under Section 86 of the Representation of the People Act, 1951 (hereinafter referred to as "the RP Act") and Order VII Rule 11 read with the provisions of Order VI Rule 16 of the Code of Civil Procedure praying for striking out the paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 to 35 of the election petition on the ground that the paragraph 36 of the election petition, which stands captioned as 'Grounds' arising out of paragraphs 1 to 35, had not been verified in any manner, although the election petition contains a verification (at page 18 of the election petition) and an affidavit (at page 19 of the election petition). The application gave rise to Misc. Case No. 9/2001 in Election Petition No. 4/1999. In the aforesaid miscellaneous application praying for striking out the paragraph aforementioned, the respondent No. 9 has taken a stand in paragraph 5 of the application that since the 'grounds' contained in paragraph 36 of the election petition have not been verified in any manner, those 'grounds' cannot form the basis of any trial and, hence, these grounds cannot be taken into account for the purpose of adjudication of any issue in the election petition.

ii) It appears from the records that Misc. Case No. 9/2001 aforementioned was heard on different dates. It also appears from the records that in the course of the hearing of the aforesaid misc. case the election petitioner filed an application under Order VI Rule 17 of the Code of Civil Procedure read with Section 87 of the R.P. Act praying for amendment of his election petition. This misc. application gave rise to present Misc. Case No. 24/ 2002. By his said amendment application, the election petitioner prayed leave of the Court to amend the election petition by inserting the words "true to my knowledge" in paragraph No. 36 of the election petition, wherein the words "materially affect" occurs in between paragraphs 35 and 38 in the third line of the verification of the election petition at page No. 18 and the said paragraph 36. In short, in the present Misc. Case No. 24/ 2002, the election petitioner seeks to verify the words "materially affect" occurring under ground No. 6 as "true to my knowledge". As against the said amendment application, the respondent No. 9, the returned candidate, has filed his objection.

iii) It further appears from the records that the Court ordered for listing of the amendment application for consideration keeping the hearing of the striking out application in abeyance. Hence, on the retirement of P.C. Phukan, J, the amendment application has now been posted for hearing as per earlier order and the amendment application has been accordingly heard.

3. I have heard Mr A.M. Mazumdar, learned senior counsel assisted by Mr M. Sarania, on behalf of the election petitioner, and Mr K.P. Pathak, learned senior counsel assisted by Mr S.S. Dey, learned counsel appearing on behalf of the respondent No. 6. None has appeared on behalf of the respondents.

4. According to Mr Mazumdar, what is sought to be amended is only a defect in the verification and such a defect in verification is always a curable defect. In support of his contention, Mr Mazumdar has relied on the Apex Court's decision reporte