The main legal point established in the judgment is that defects in the verification and affirmation of the affidavit, as mandated by the R.P. Act, are not curable and can lead to the dismissal of the election petition.

C. R. PAL, J.

( 1 ) THIS Misc. Case arises out of Election Petition No. 9 of 1995 at the instance of respondent No. 1 praying to take up the Issue No. 9 as a preliminary issue.

( 2 ) THE petitioner has filed the election petition challenging the election of the respondent No. 1 to the Orissa Legislative Assembly from 74 (S. C.) Gopalpur Constituency in the election held on 9-3-1995 on the grounds that the respondent No. 1 adopted corrupt practices during that election as enumerated in the election petition. The respondent No. 1 on receiving the notice along with copy of election petition filed his written statement contending, inter alia, that the election petition as laid is not maintainable both on facts and in law; there has been no compliance of the requirements of Sections 81, 82 and 117 of the Representation of the People Act, 1951 the election petition is defective the same having not been properly attested; the petition is not in proper form and that the affidavit in support of allegation of corrupt practices are not in order inasmuch as no specific date, time and name of person and source of information/knowledge have been indicated therein.

( 3 ) ON the pleadings of the parties, this Court framed nine issues for determination. Out of the issues framed, Issue No. 9 which forms the subject matter of consideration in this Misc. Case runs as follows:-"whether the allegations of corrupt practice can be struck off for non-compliance of the provisions of Section 83 of the R. P. Act. "in this Misc. Case the respondent No. 1 has prayed to take up issue No. 9 as a preliminary issue. The case of the respondent No. 1 is that in view of sub-section (3) of Section 81 and proviso to Section 83 (1) (c) it is imperative that the election petition containing allegation of corrupt practice shall also accompany with an affidavit in support of the allegation of such corrupt practices and the particulars thereof in form 25 as stipulated under Rule 94-A of Conduct of Eduction Rules, 1961. It is therefore, contended that for non-compliance of such provisions which are mandatory in nature, the allegations about corrupt practices made in the election petition should be struck off.

( 4 ) THE election petitioner filed his objection in the Misc. Case contending that Section 86 of the Representation of the People Act is not attracted to the instant case as the power available to the Court under Section 86 of the R. P. Act can be exercised only for non-compliance of the provisions of Section 81, 82 and 117 of the said Act. It is also contended that the defect in verification can be removed and that in a case where verification and affirmation is not in proper form, such affidavit can be filed at a later stage, the defect being curable. It is further contended that the prayer is not entertainable at this stage since a number of witnesses have already been examined and as the petition does not contain any specific instance of prejudice resulted to the respondent No. 1. It is also the stand of the election petitioner that the respondent No. 1 having admitted to have printed the alleged calendars containing portrait of Jagannath Temple and Lord Jagannath with the party symbol "wheel" which is an instance of corrupt practice, his contention that absence of verification on the copy of the election petition served on him is prejudicial to him is not entertainable. The election petitioner, therefore, submits to refuse the prayer and dismiss the Misc. Case.

( 5 ) THE learned counsel for the election petitioner relying of Muraka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545 and F. A. Sapa v. Singora reported in AIR 1991 SC 557 contended that the defect in the verification pointed out by the respondent is curable and on that ground a petition cannot be dismissed. In AIR 1964 SC 1545 the appellant who was one of the respondents in the two election petitions before the Election Tribunal raised certain preliminary objections to the maintain