ORDER

(CAV)

Heard Mr. N. Borah learned counsel for the applicant as well as Mr. K.P. Pathak, learned senior counsel, assisted by Mr. A. Baruah, learned counsel for the opposite party.

2) The applicant is the petitioner in the connected election petition. The said election petition has been filed to assail the election of the opposite party/ respondent as a Member of Assam Legislative Assembly from No. 32 Bongaigaon Legislative Assembly Constituency, which was held in the year 2021. For the sake of clarity and convenience, in this order the parties are referred by their respective position in the connected election petition.

3) By filing this interlocutory application under Section 151 of the Civil Procedure Code, the petitioner has prayed for leave of the Court to cure the defect in the affidavit appended to the connected election petition to the extent it is not in conformity with the prescribed format envisaged in Form 25 under Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter referred to as the “1961 Rules” for brevity).

4) The learned counsel for the petitioner had submitted that as per the requirement of proviso to Section 3(1) of The Representation of the People Act, 1951 (hereinafter referred to as the “1951 Act” for short), an election petition where corrupt practice is alleged, is required to be accompanied by an affidavit in the prescribed Form 25 in support of allegations of such corrupt practice and the particulars thereof. It is submitted that although an affidavit was filed in support of the election petition, but due to inadvertence, the said affidavit was not in consonance with the requirement of the prescribed Form 25 under Rule 94-A of the 1961 Rules as it did not contain verification to support allegations of corrupt practice by the respondent. It was further submitted that the respondent had filed an interlocutory application for rejection of plaint, which was registered as I.A.(C) 1272/2021, but an election petition cannot be rejected merely owing to defect in the affidavit. Hence, by relying on the cases of (i) Umesh Challiyil v. K.P. Rajendran, (2008) 11 SCC 740, and (ii) Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196, it was submitted that the petitioner be given an opportunity to cure the defect in the affidavit (at pages 29 & 30 of the election petition).

5) It may be mentioned that although the learned counsel for the petitioner had made elaborate submissions on scope of corrupt practice by th referring to the communication No. 3/4/2019/ SDR/Vol-I dated 19 March, 2019 (pages 101-104 of the election petition) to project that non declaration of FIR cases would amount to corrupt practice. But the same is not considered at this juncture because the said submissions would be a contentious issue to be decided in the election petition and moreover, the said point is not relevant to be delved into at this stage to decide the prayer made in this application.

6) Per contra, the learned senior counsel for the respondent had submitted that in the prayer, the petitioner has specifically mentioned that the affidavit at pages 29-30 of the election petition was required to be cured. In this regard, it was submitted that by way of the election petition, the petitioner is assailing the election of the petitioner, amongst others, on the count of alleged corrupt practice committed by the petitioner. It was submitted that it was also admitted by the petitioner that the affidavit sought to be cured was not as per the requirement of Form 25 under Rule 94A of the 1961 Rules. In this regard, it was submitted that apart from the said affidavit at pages 29 & 20 of the connected election petition, there was no other affidavit to verify the pleadings as required under Sub-Rule (4) of Rule 15 of Order VI of the CPC. Accordingly, it was submitted by the learned senior counsel for the respondent that it would have been another thing if any prayer was made to allow the petitioner to file an affidavit in