K. Vinod Chandran, J.

1. The challenge raised is to the election of the 1st respondent, to the Kerala Legislative Assembly, from the Vengara Assembly Constituency, in the election held on 16.05.2016 and declared on 19.05.2016; by a member of the electorate. The respondents 2 to 6 are the other candidates who contested against the 1st respondent returned candidate.

2. The matter is placed before me on the basis of the defects notified by the Registry, which are as hereunder:

"1. CF Rs. 250/- is not paid as per Schedule II Article 11(4)(v) of the Kerala Court Fees and Suits Valuation Act.

2. Section 80A which gives jurisdiction to the High Court to try an Election Petition is not shown in the petition.

3. The Affidavit filed by the petitioner as referred to in the proviso to sub-section (1) of Section 83 is not sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths as prescribed in R.94A of the Conduct of Election Rules, 1961".

The 1st respondent seeks for a hearing on whether the defects can be directed to be cured and I have heard Sri. D. Anilkumar, the learned Counsel for the petitioner and Sri. S. Sreekumar, learned Senior Counsel appearing for the 1st respondent.

3. No dispute is raised on the first two defects; which are with respect to the non-payment of Court fees and the prevision, conferring jurisdiction on the High Court to try an Election Petition, having not been specifically mentioned in the memorandum. It is agreed that those are curable defects and no argument is addressed on those two counts.

4. The only issue sought to be considered at this stage is, whether the affirmation made in the affidavit, under Form 25 of the Conduct of Election Rules, 1961 [for brevity "Election Rules"] is proper; the same having been affirmed by the Advocate of the petitioner, which the Registry has noticed to be not as prescribed under R.94A of the Elect on Rules and if found to be not proper, whether the defect can be directed to be cured.

5. The learned Counsel for the petitioner would first take this Court to Section 87 of the Representation of the People Act, 1951 [for brevity "RP Act'] under Chapter 111, "Trial of Election Petitions", which speaks about the procedure to be followed, in trial of Election Petitions, before the High Court. The procedure, as per Section 87, as nearly as may be, should be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 [for brevity "CPC"] to the trial of suits. Section 139 of C.P.C. is pointed out to contend that, by clause (b) any officer or other person whom the High Court may appoint in this behalf can administer the oath to the deponent; which procedure has to be adopted in the trial of Election Petitions as per Section 87 of the R.P. Act The Oaths Act, 1969 [for brevity "Oaths Act"], is also referred to, wherein also Section 3 provides for power to administer oaths. Sub-section (2) of Section 3 of the Oaths Act, without prejudice to the power conferred by sub-section (1), provides for any Court, Judge, Magistrate or a person to administer oaths and affirmations for the purpose of affidavits; if empowered in this behalf by the High Court, in respect of affidavits for the purpose of judicial proceedings by clause (a) and by the State Government with respect to all other affidavits by clause (b). Such empowerment had been made by the High Court under the Rules of the High Court of Kerala, 1971; by R.76 which inter alia empowers an Advocate to make such affirmation and administer oath. R.46 of the Civil Rules of Practise is also referred to, which too inter alia, empowers a pleader so to do.

6. The contention raised is that going by the above provisions, an Advocate who is competent to administer oaths and affirmations is competent to administer such oath or affirmation through an affidavit executed and sworn before him; which had been done in the present Election Petition. It is pointed out that a "Commissioner of Oaths" has not been def