JUDGMENT :

1. Petitioner is a returned candidate (Pradhan) wherein Respondent-3 (Election Petitioner) was a runner up in election and the margin of victory was 16 votes.

2. Election petitioner filed an election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as “Act, 1947), however, it was not supported by an affidavit of election petitioner though it was filed in his presence. Petitioner submitted written submission with specific assertion that election petition was liable to be rejected being filed without any affidavit of election petitioner.

3. On the basis of pleadings in election petition, Election Tribunal framed 18 issues and Issue No. 15 relates to effect of non filing of affidavit in support of election petition.

4. Petitioner filed preliminary objection to consider and decide Issues No. 11, 12, 13, 15 and 16. However, objections were rejected vide order dated 21.04.2022 passed by Election Tribunal that election petition was listed for evidence, therefore, objections are not maintainable.

5. At this stage, petitioner approached this Court by filing Writ-C No. 13760 of 2022 which was disposed of vide order dated 16.05.2022 with direction to Election Tribunal to decide Issues No. 12, 15 and 16 at first instance.

6. Subsequent to above order election petitioner filed affidavit in support of election petition on 17.05.2022.

7. In compliance of above order, the referred Issues No. 12, 15 and 16 were considered and decided by Election Tribunal vide order dated 16.06.2022 whereby preliminary objection raised by petitioner was accepted that election petition was not accompanied by an affidavit, which was a mandatory requirement under Order 6 Rule 15(4) CPC and it being a non-curable defect, rejected election petition.

8. Being aggrieved election petitioner filed Civil Revision No. 41 of 2022 which was allowed vide impugned order dated 15.11.2022 passed by Additional District Judge, Court No. 1, Agra with observation that Election Tribunal has not taken note of affidavit of election petitioner filed subsequently on 17.05.2022 which has duly affirmed the contents of election petition. Consequently, order impugned therein was set aside and election petition was restored for hearing.

9. Sri Kshitij Shailendra, learned counsel for petitioner, vehemently urged that election petition must be accompanied by an affidavit. Both forms part of election petition. There is no dispute that in the present case at first instance election petition was filed without any affidavit in its support and it being a non-curable defect, could not be cured by a subsequent affidavit. Learned counsel referred Order 6 Rule 15(4) of CPC that, “the person verifying pleading shall also furnish an affidavit in support of his pleadings.” He placed reliance on a judgment passed by Rajasthan High Court in Heera Singh Chouhan vs. C.D. Dewal and others, AIR 2004 (Raj) 34, para 25, which is reproduced as under:

“25. Thus, it can safely be said that the present case does not fall within the category where the defect can be cured. The question can be seen from another point of view that the petitioner is a law knowing person being a lawyer, the defect was pointed out by the respondent at the earliest possible stage. An application has been moved on behalf of the petitioner that he may be permitted to file additional affidavit and in anticipation of the permission, the affidavit has been filed. Curiously the affidavit is not self-contained and oath taken relates to certain paragraphs of the election petition regarding which no oath has been taken by the petitioner on the day when the additional affidavit was sworn. Thus on that day it cannot be said that there was an oath taken by the deponent about contents of the petition delineating corrupt practice when the affidavit was sworn. Thus, even if the attempt on the part of the election-petitioner Is considered to be an attempt to cure the defect then this attempt falls short of meeting the re