P. K. Musahary, J.—

This miscellaneous application has been filed under Order VII Rule 11 (a) and Order VI Rule 16 of the Code of Civil Procedure, 1908 questioning the maintainability of additional affidavit dated 27.01.2011 filed by the respondent/election petitioner as per prescribed Form 25 of the Conduct of Election Rules, 1961 for bringing the same as a part of Election Petition No. 01 (AP)/2009 without leave of the Court in violation of time limit prescribed under Section 81 of the Representation of People Act, 1951 and dismissal of the said Election Petition.

2. I have heard Mr. M. Pertin, learned counsel, appearing for the applicant Respon#31;dent No. I/returned candidate and also Mr. B. L. Singh, learned counsel for the respon#31;dent/Election petitioner.

3. At the outset Mr. Pertin, learned counsel, submits that this Misc. Case has been filed as a counter/objection to the additional affidavit filed by the respondent/Election petitioner on 27.01.2011 without the leave of the Court. Mr. Pertin learned counsel, agreed that Mr. B. L. Singh, learned counsel for the respondent/Election petitioner be allowed to address the Court first to justify the reason for filing such additional affidavit and its sustainability under the law. In view of the above, Mr. Singh has been allowed to address the Court first.

4. It is submitted by Mr. Singh, learned counsel for the respondent/Election petitioner that the additional affidavit was filed in view of the order dated 4.2.2011 passed by the Hon'ble Supreme Court in SLP(C) No. 343687 2010 whereby it was ordered that it would be open to the respondent to file additional documents including copy of the affidavit referred to in the proviso to Section 83(1) of the Representation of People Act, 1951. As submitted by him, the said additional affidavit was sworn on 27.01.2011 but it was filed on 7.2.2011, i.e. after the aforesaid order was passed by the Hon'ble Supreme Court. He further submits that the additional affidavit in question is to be accepted as a part of the election petition.

5. In regard to additional affidavit, Mr. Pertin, learned counsel for the applicant, submits that by filing the said additional affidavit the respondent/Election petitioner has admitted that the election petition is lacking affidavit in Form 25 prescribed under Rule 94-A of the Conduct of Election Rules, 1961 hereinafter referred to as Election Rules only. This lack of affidavit in prescribed Form is fatal to the election petition and such election petition is liable to be dismissed at the threshold. He submits that lack of affidavit in prescribed Form is an incurable defect and it cannot be cured or allowed to be cured by the Election petitioner by way of filing an additional affidavit. Further he submits that by filing the additional affidavit the respondent/ Election petitioner is trying to fill up the serious lacuna as he could understand by this time that his election petition is liable to be dismissed at the initial stage. In support of his above arguments, Mr. Pertin refers to the following decisions -

(1) R.P. Moidutty Vs. P.T. Kunju Mohammad & Anr. (Para 33 & 35) reported in (2000)1 SCC 481,

(2) V. Narayan Swami Vs. C. P. Thirunavukkarasu (Para 23) reported in (2000) 2 SCC 294,

(3) Ravinder Singh Vs. Janmeja Singh & Ors., (Para 9, 10, 11 & 12) reported in (2000) 8 SCC 191,

(4) FA Sapa & Ors. Vs. Singora & Ors. (Para 16, 28 and 33) reported in (1991) 3 SCC 375 and

(5) K.C. Madhava Kurup Vs. K. Mural-eedharan (para 7) reported in AIR 1991 Kerala 20.

6. As regards the prayer for dismissal of the election petition the learned counsel for the applicant submits that the election petition does not disclose any cause of action as contemplated under Order VII Rule 11 (a) of the Code of Civil Procedure inasmuch as the election petitioner failed to state the material facts and material particulars on the charges of corrupt practice. The election petition, according to Mr. Pertin, learned counsel, does not contain materia

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