Defective affidavit (not Form 25) in corrupt practice election petition is curable defect; opportunity to rectify required before dismissal under O7 R11 CPC. Pleadings alleging bribery with candidate's consent disclose triable cause warranting trial.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this EMP filed under Order VI, Rule 16 read with Order VII, Rule 11 read with Section 151 of the CIVIL PROCEDURE CODE , the applicant has prayed for the following relief:-

“It is therefore, respectfully prayed that paragraphs 3, 4, 7(I)(a) to (f), 7(II)(a) and (b), 7(III)(a) and 8 may kindly be struck off under Order 6 Rule 16 and the Election Petition may kindly be dismissed under Order 7 Rule 11 r/w Section 151 of CPC r/w Section 81, 83, 86 & 87 of the Representation of the People Act, 1951, in the interest of justice.”

2. In terms of this application, the applicant/respondent No.1 in the election petition contends that the non- applicant/election petitioner (hereinafter referred to as the petitioner), has challenged his election from Assembly Constituency-49, Shree Naina Devi Ji, as a member of the Himachal Pradesh Legislative Assembly.

3. According to the applicant, the election petition has been filed in violation of the provisions of the Representation of People Act, 1951 (hereinafter referred to as ‘the 1951 Act’). It is vague, ambiguous, lacks material facts and does not disclose any cause of action. The averments made in the election petition do not amount to alleging or stating of any ground for setting aside the election of the applicant. The election petition has been filed in violation of the provisions of Section 82(b) of the 1951 Act, as respondents No.5 to 7 impleaded in the election petition were neither other candidates who contested the election nor proper or necessary parties. It is further the contention of the applicant that Section 83 of the 1951 Act, mandates that an election petition must contain all material facts which the petitioner is relying upon. If allegation of corrupt practice exist, then, it must contain all material facts as well as the particular of corrupt practice alleged and in the absence of same, the petition is liable to be dismissed in limine. As per the proviso to (1) of the 1951 Act, a statutory Form 25 has been provided vide Rule 94-A, of the Conduct of Elections Rules, 1961 for filing of the affidavit in support of the allegations of corrupt practice. In terms of Rule 94- A the affidavit referred to in the proviso to sub-section(1) or sub- section (83) shall be sworn before a Magistrate 1st Class or a Notary or a Commissioner of oaths and has to be in Form-25 The applicant contends that though in the election petition there are allegations of corrupt practice, yet the election petitioner has not filed the prescribed affidavit in Form-25 and, therefore, as there is a non-compliance of Rule 94-A of the 1961 Rules, read with (1) of the 1951 Act, and in absence of this affidavit being in Form-25, the petition cannot be put to trial.

4. Further, it is the contention of the applicant that the allegations regarding corrupt practice have been verified by the petitioner in the other affidavit as “true and correct as per legal advice received”. According to the applicant, once the law requires the petitioner to clearly specify with regard to corrupt practice as to which allegations are based on the basis of personal knowledge and which as per information