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REPORTABLE

      IN THE SUPREME COURT OF INDIA

    CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.       4993       OF     2012   (Arising out of S.L.P. (C) No. 20013 of 2010)

Ponnala Lakshmaiah  …Appellant

Versus

Kommuri Pratap Reddy & Ors. …Respondents

J     U     D     G     M     E     N     T      

T.S.     THAKUR,     J.   

1. Leave granted.

2. The short question that falls for determination in this  

appeal by special leave is whether the High Court of Andhra  

Pradesh was right in holding that the election petition filed  

by respondent No.1 against the appellant who happens to

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be the successful candidate in the election to the 98-

Jangaon Assembly Constituency in the State of Andhra  

Pradesh, disclosed a cause of action and could not therefore  

be dismissed at the threshold.  The factual matrix in which  

the election petition came to be filed by the respondent has  

been set out at length by the High Court, hence need not be  

recounted except to the extent the same is essential for the  

disposal of the appeal. The High Court has, while holding  

that the averments made in the election petition raised  

triable issues and disclosed a cause of action, observed:

“23. As seen from the statement showing voter  turn out report in connection with General Elections,  2009 to 98-Jangaon Legislative Assembly Constituency  on 16.04.2009, the total votes polled, as reported by  the Returning Officer, is shown as 1,50,678 from 251  polling stations.  Whereas the final result sheet in Form  no.20, total valid votes is shown as 1,51,411.  So,  from this document, it is clear that prima facie a proper  counting had not taken place.  Therefore, prima facie it  can be said to be an irregularity on the part of the  Returning Officer involved in dereliction of the duty.  Similarly, there is a specific allegation that out of 653  postal ballots, the election petitioner would have  secured more than 300 votes, if properly counted, and  out of the said votes, 142 votes which were validly  polled in favour of the election petitioner, were illegally  declared as invalid and another 52 votes polled in  favour of the election petitioner were counted in favour  of the first respondent, and 45 invalid votes were  illegally counted in favour of the first respondent.  Since the margin between the elected candidate and  the nearest rival is only 236 votes, had postal ballots  been counted properly, then there would be a  possibility of materially affecting the result of the  election in so far as the returned candidate. So, under

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no stretch of imagination, it can be said that the  allegations in the Election Petition are vague.

24. No doubt, it is true that in view of the decision  of the Apex Court, recounting of the votes cannot be  resorted to as a matter of course and every endeavour  should be made to protect the secrecy of the ballots.  But, at the same time suspicion of the correctness of  the figures mentioned in the crucial documents of the  statement showing voters’  turn out report and Form- 20-final result sheet, where there is a variance  between total number of votes polled and votes  counted. The two basic requirements laid down by the  Apex Court, to order recounting, are: (a) the election  petition seeking recount of the ballot papers must  contain an adequate statement of the material facts on  which the allegations of irregularity or illegality in  counting are founded; and  (b) on the basis of  evidence adduced in support of the allegations, the  Tribunal must be prima facie satisfied that in order to  decide the dispute and to do complete and effectual  justice between the parties, making of such an order is  imperatively necessary.

Therefore, the questions–whether counting of  votes by the officials is in accordance with the rules  and regulations and also whether the votes polled in  favour of the election petitioner were rejected as  invalid or there was improper counting of votes polled  in favour of the returned candidate, are required to be  decided after adducing evidence only. The allegation  that because of the improper counting of postal ballots  polled in favour of the election petitioner, the election  petitioner could not secure 300 votes, if accepted as  true at this stage, it would materially affect the  election result because the margin of votes polled  between returned candidate and his nearest rival is  very narrow.  In the Election Petition, the allegation  with regard to irregularity or illegality in counting of  votes, which affects election of the returned candidate  materially, has been clearly stated in the Election  Petition.  It is not a vague or general allegation that  some irregularities or illegalities have been committed  in counting.  Similarly, there is allegation that in the  first instance, after totalling of all votes, the election  petitioner secured a majority of 44 votes and the same  was informed to the electronic media, and some TV  channels telecasted the same immediately.  A Compact  Disc (CD) is also field along with the Election Petition,  in support of the said allegation.  It is also alleged that

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none of the contested candidates filed any petition for  recounting of votes within maximum period of five  minutes after the election petitioner was declared to  have secured a majority of 44 votes.  Therefore, there  is prima facie material to show that there was  irregularity or illegality in counting of votes which  resulted in affecting materially the election of the  returned candidate, so as to proceed further with the  Election Petition.  As, at this stage, prima facie case for  recounting, as seen from the allegations in the Election  Petition, is made out, the pleadings cannot be struck  off as unnecessary.  Therefore, rejecting the Election  Petition at this stage does not arise.”

3. Having carefully gone through the averments made in  

the election petition, we are of the opinion that the election  

petition sets out the requisite material facts that disclose a  

cause of action and gives rise to triable issues, which can  

not be given a short shrift by taking an unduly technical  

view as to the nature of the pleadings.  There is no denying  

the fact that Courts are competent to dismiss petitions not  

only on the ground that the same do not comply with the  

provisions of Sections 81, 82 & 117 of the Representation of  

the People Act, 1951 but also on the ground that the same  

do not disclose any cause of action.  The expression “cause  

of action” has not been defined either in the Civil Procedure  

Code or elsewhere and is more easily understood than  

precisely defined. This Court has in Om Prakash  

Srivastava v. Union of India & Anr. (2006) 6 SCC 207

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attempted an explanation of the expression in the following  

words:

“The expression "cause of action" has acquired a  judicially settled meaning. In the restricted sense  "cause of action" means the circumstances forming the  infraction of the right or the immediate occasion for the  reaction. In the wider sense, it means the necessary  conditions for the maintenance of the suit, including  not only the infraction of the right, but also the  infraction coupled with the right itself. Compendiously,  as noted above the expression means every fact, which  it would be necessary for the plaintiff to prove, if  traversed, in order to support his right to the judgment  of the Court. Every fact, which is necessary to be  proved, as distinguished from every piece of evidence,  which is necessary, to prove each fact. comprises in  "cause of action”.”

4. It is equally well settled that while examining whether  

a plaint or an election petition discloses a cause of action,  

the Court has a full and comprehensive view of the  

pleading.  Averments made in the plaint or petition cannot  

be read out of context or in isolation.  They must be taken  

in totality for a true and proper understanding of the case  

set up by the plaintiff.  This Court has in Shri Udhav Singh  

v. Madhav Rao Scindia  (1977) 1 SCC 511 given a  

timely reminder of the principle in the following words:

“We are afraid, this ingenious method of construction  after compartmentalisation, dissection, segregation and  inversion of the language of the paragraph, suggested  by Counsel, runs counter to the cardinal canon of  interpretation, according to which, a pleading has to be

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read as a whole to ascertain its true import. It is not  permissible to cull out a sentence or a passage and to  read it out of the context, in isolation. Although it is  the substance and not merely the form that has to be  looked into, the pleading has to be construed as it  stands without addition or subtraction of words, or  change of its apparent grammatical sense. The  intention of the party concerned is to be gathered,  primarily, from the tenor and terms of his pleading  taken as a whole.”

5. Reference may also be made to the decision of this  

Court in Church of North India v. Lavajibhai

Ratanjibhai and Ors. (2005) 10 SCC 760, wherein this  

Court reiterated that for purposes of determining whether  

the plaint discloses a cause of action, the Court must take  

into consideration the plaint as a whole.  It is only if even  

after the plaint is read as a whole, that no cause of action is  

found discernible that the Court can exercise its power  

under Order VII Rule 11 of the CPC.

6. To the same effect is the decision of this Court in  

Liverpool & London S.P. and I. Asson. Ltd. v. M. V.  

Sea Success I. & Anr. (2004) 9 SCC 512; where this  

Court held that the disclosure of a cause of action in the  

plaint is a question of fact and the answer to that question  

must be found only from the reading of the plaint itself.  The  

Court trying a suit or an election petition, as the position is

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in the present case, shall while examining whether the  

plaint or the petition discloses a cause of action, to assume  

that the averments made in the plaint or the petition are  

factually correct. It is only if despite the averments being  

taken as factually correct, the Court finds no cause of action  

emerging from the averments that it may be justified in  

rejecting the plaint. The following paragraph from the  

decision is apposite in this regard:  

“Whether a plaint discloses a cause of action or not is  essentially a question of fact. But whether it does or  does not must be found out from reading the plaint  itself. For the said purpose the averments made in the  plaint in their entirety must be held to be correct. The  test is as to whether if the averments made in the  plaint are taken to be correct in its entirety, a decree  would be passed.”

7. We may also gainfully refer to the decision of this  

Court in H.D. Revanna v. G. Puttaswamy & Ors. (1999)  

2 SCC 217, where this Court held that an election petition  

can be dismissed for non-compliance of Sections 81, 82 and  

117 of the Representation of the People Act, 1951 but it  

may also be dismissed if the matter falls within the scope of  

Order VI Rule 16 or Order VII Rule 11 of the CPC.  A defect  

in the verification of the election petition or the affidavit  

accompanying the election petition was held to be curable,

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hence, not sufficient to justify dismissal of the election  

petition under Order VII Rule 11 or Order VI Rule 16 of CPC.  

The following passage in this regard is instructive:

“…..the relevant provisions in the Act are very specific.  Section 86 provides for dismissal of an election petition  in limine for non-compliance with Sections 81, 82 and  117. Section 81 relates to the presentation of an  election petition. It is not the case of the appellant  before us that the requirements of Section 81 were not  complied with….. Sections 82 and 117 are not relevant  in this case. Significantly, Section 86 does not refer to  Section 83 and non-compliance with Section 83 does  not lead to dismissal under Section 86. This Court has  laid down that non-compliance with Section 83 may  lead to dismissal of the petition if the matter falls  within the scope of Order 6 Rule 16 or Order 7 Rule 11  CPC. Defect in verification of the election petition or  the affidavit accompanying the election petition has  been held to be curable and not fatal.”

8. Applying the above principles to the case at hand, we  

do not see any error in the order passed by the High Court  

refusing to dismiss the petition in limine on the ground that  

the same discloses no cause of action.  The averments  

made in the election petition if taken to be factually correct,  

as they ought to for purposes of determining whether a  

case for exercise of powers under Order VII Rule 11 has  

been made out, do in our opinion, disclose a cause of action.  

The High Court did not, therefore, commit any error much

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less an error resulting in miscarriage of justice, to warrant  

interference by this Court in exercise of its extra-ordinary  

powers under Article 136 of the Constitution.

9. There was some debate at the bar as to whether the  

petition discloses material facts and particulars and if it does  

not whether it could be dismissed on the ground of the  

petition being deficient, hence no petition in the eyes of  

Law. That argument, need not detain us for long, as the  

legal position on the subject is well-settled by a long line of  

decisions rendered by this Court.  In Raj Narain v. Indira  

Nehru Gandhi & Anr. (1972) 3 SCC 850, this Court held  

that if allegations regarding a corrupt practice do not  

disclose the constituent parts of the corrupt practice  

alleged, the same will not be allowed to be proved and  

those allegations cannot be amended after the period of  

limitation for filing an election petition but the Court may  

allow particulars of any corrupt practice alleged in the  

petition to be amended or amplified.  Dealing with the rules  

of pleadings, this Court observed:

“Rules of pleadings are intended as aids for a fair trial  and for reaching a just decision. An action at law  should not be equated to a game of chess. Provisions

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of law are not mere formulae to be observed as rituals.  Beneath the words of a provision of law, generally  speaking, there lies a juristic principle. It is the duty of  the court to ascertain that principle and implement it.”

10. The Court further held that just because a corrupt  

practice has to be strictly proved does not mean that a  

pleading in an election petition must be strictly construed.  

Even in a criminal trial, a defective charge did not  

necessarily result in the acquittal of the accused unless it  

was shown that any such defect had prejudiced him.  The  

Court held that it cannot refuse to enquire into allegations  

made by the election petitioner merely because the election  

petitioner or someone who prepared his brief did not know  

the language of the law.  The principle was reiterated by  

this Court in H.D. Revanna v. G. Puttaswamy & Ors.  

(1999) 2 SCC 217, V.S. Achuthanandan v. P.J. Francis  

& Anr. (1999) 3 SCC 737, Mahendra Pal v. Ram Dass  

Malanger & Ors. (2000) 1 SCC 261, Sardar Harcharan  

Singh Brar v. Sukh Darshan Singh & Ors. (2004) 11  

SCC 196.     

11. In Harkirat Singh v. Amrinder Singh (2005) 13  

SCC 511, this Court once again stated the distinction

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between material facts and particulars and declared that  

material facts are primary and basic facts which must be  

pleaded by the plaintiff while particulars are details in  

support of those facts meant to amplify, refine and  

embellish the material facts by giving distinct touch to the  

basic contours of a picture already drawn so as to make it  

more clear and informative.  To the same effect are the  

decisions of this court in Umesh Challiyil v. K.P.  

Rajendran (2008) 11 SCC 740, Virender Nath Gautam  

v. Satpal Singh & Ors. (2007) 3 SCC 617.   

12. The High Court has, in the present case, held that the  

material facts constituting the foundation of the case set up  

by the election petition have been stated in the election  

petition. That being so, the requirement of Section 83 of the  

Act viz. that “the petition shall contain a concise statement  

of material facts”  has been satisfied. The question of  

dismissing the petition on that ground also therefore did not  

arise.  The High Court in our opinion committed no wrong in  

coming to that conclusion. We need only emphasise that the  

burden which lies on an election petitioner to prove the  

allegations made by him in the election petition whether the

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same relate to commission of any corrupt practice or proof  

of any other ground urged in support of the petition has to  

be discharged by him at the trial. There is no dilution of that  

obligation when the court refuses to dismiss a petition at  

the threshold.  All that the refusal to dismiss the petition  

implies is that the appellant has made out a case for the  

matter to be put to trial.  Whether or not the petitioner will  

succeed at the trial remains to be seen till the trial is  

concluded.  Even so on a somewhat erroneous  

understanding of the law settled by this Court, the  

successful candidates charged with commission of corrupt  

practices or other illegalities and irregularities that  

constitute grounds for setting aside their elections seek  

dismissal of the petitions in limine on grounds that are more  

often than not specious, in an attempt to achieve a two fold  

objective. First, it takes a chance of getting the election  

petition dismissed on the ground of it being deficient,  

whether the deficiency be in terms of non-compliance with  

the provisions of Sections 81, 82 & 117 of the Act or on the  

ground that it does not disclose a cause of action. The  

second and the more predominant objective is that the trial

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of the election gets delayed which in itself sub-serve the  

interests of the successful candidate.  Dilatory tactics  

including long drawn arguments on whether the petition  

discloses a cause of action or/and whether other formalities  

in the filing of the petition have been complied with are  

adopted with a view to prevent or at least delay a trial of  

the petition within a reasonable time frame. While a  

successful candidate is entitled to defend his election and  

seek dismissal of the petition on ground legally available to  

him, the prolongation of proceedings by prevarication is not  

conducive to ends of justice that can be served only by an  

early and speedy disposal of the proceedings.  The Courts  

have, therefore, to guard against such attempts made by  

parties who often succeed in dragging the proceedings  

beyond the term for which they have been elected. The  

Courts need to be cautious in dealing with requests for  

dismissal of the petitions at the threshold and exercise their  

powers of dismissal only in cases where even on a plain  

reading of the petition no cause of action is disclosed.  

Beyond that note of caution, we do not wish to say anything

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at this stage for it is neither necessary nor proper for us to  

do so.   

13. Mr. Rao next argued that the election petition was  

liable to be dismissed also on the ground that the same was  

not accompanied by an affidavit which the election  

petitioner was obliged to file in terms of proviso to Section  

83 (1) of the Act.  He urged that the use  of the word ‘shall’  

in the proviso made it mandatory for the petitioner to  

support the averments in the election petition with an  

affidavit in Form 25 prescribed under Rule 94 (A) of the  

Conduct of Election Rules, 1961.  Inasmuch as an affidavit  

had not been filed in the prescribed format, the election  

petition, argued Mr. Rao, was no election petition in the eye  

of law and was, therefore, liable to be dismissed in limine.  

Reliance in support of his submissions was placed by Mr.  

Rao upon the decisions of this Court in M. Kamalam v. Dr.  

V.A. Syed Mohammed (1978) 2 SCC 659, R.P.  

Moidutty v. P.T. Kunju Mohammad (2000) 1 SCC 481,  

V. Narayanswamy v. C.P. Thirunavukkarasu (2000) 2  

SCC 294, Kamalnath v. Sudesh Verma (2002) 2 SCC  

410, Mithilesh Kumar Pandey v. Baidyanath Yadav &

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Ors. (1984) 2 SCC 1, Ravinder Singh v. Janmeja Singh  

(2000) 8 SCC 191, Ram Sukh v. Dinesh Aggarwal  

(2009) 10 SCC 541.  

14. On behalf of the respondent, it was argued by Mr.  

Ranjit Kumar that the non-filing of an affidavit in terms of  

proviso to Section 83(1) of the Act was never taken as a  

ground before the High Court in the application which the  

High court has decided in terms of the impugned order nor  

was the point ever argued at the bar. The appellant cannot,  

therefore, urge that point before this Court for the first  

time. Relying upon the decision of this Court in Balwan  

Singh v. Prakash Chand & Ors. (1976) 2 SCC 440, Mr.  

Kumar argued that a plea relating to defective verification of  

the petition was not allowed to be taken by this Court for  

the first time in appeal. It was further submitted by Mr.  

Kumar that an affidavit in support of the election petition  

had indeed been filed by the respondent-petitioner in which  

the averments and the grounds alleged by the respondent  

were set out and reiterated on oath.  An affidavit filed under  

Order VI Rule 15(4) of the CPC supporting the averments  

made in the election petition has also been filed including

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averments made in para 12 to 15 of the election petition.  It  

was urged that two affidavits mentioned above sufficiently  

complied with the requirements of Section 83 of the Act and  

Rule 94(A) of The Conduct of Election Rules 1961. He  

submitted that even assuming that there was any deficiency  

in the affidavit sworn by the respondent, not being in the  

format in which the same was required to be filed, yet the  

same was not fatal to the election petition inasmuch as the  

Court trying the petition can at any stage of the proceedings  

direct the election petitioner to file a proper affidavit if it  

finds that the one already filed is deficient in any way.   

15. There is considerable merit in the submission made by  

Mr. Kumar. The ground urged by Mr. Rao was not  

admittedly raised in the application filed by the appellant  

before the High Court nor was it argued at the bar.  The  

High Court had in that view no occasion to deal with the  

contention that is sought to be advanced before us for the  

first time. There is no reason why the appellant should not  

have urged the point before the High Court, if he was  

serious about its implications.  

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16. Even otherwise the question whether non-compliance  

of the proviso to Section 83 (1) of the Act is fatal to the  

election petition is no longer res-integra in the light of a  

three-Judge Bench decision of this Court in Sardar  

Harcharan Singh Brar v. Sukh Darshan Singh & Ors.  

(2004) 11 SCC 196.  In that case a plea based on a  

defective affidavit was raised before the High Court resulting  

in the dismissal of the election petition.  In appeal against  

the said order, this Court held that non-compliance with the  

proviso to Section 83 of the Act did not  attract an order of  

dismissal of an election petition in terms of Section 86  

thereof. Section 86 of the Act does not provide for dismissal  

of an election petition on the ground that the same does not  

comply with the provisions of Section 83 of the Act.  It  

sanctions dismissal of an election petition for non-

compliance of Sections 81, 82 and 117 of the Act only.  

Such being the position, the defect if any in the verification  

of the affidavit filed in support of the petition was not fatal,  

no matter the proviso to Section 83(1) was couched in a  

mandatory form.  This Court observed:

“14.  So is the case with the defect pointed out by the  High Court in the affidavit filed in support of the election

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petitioner to remove the same by filing a proper affidavit.  

This Court observed:

“15.  Having formed an opinion that there was any defect  in the affidavit, the election petitioner should have been  allowed an opportunity of removing the defect by filing a  proper affidavit. Else the effect of such failure should  have been left to be determined and adjudicated upon at  the trial, as held in G. Mallikarjunappa and Anr.'s case  (supra).”

18. To the same effect is the decision of a three-Judge  

bench of this Court in G. Mallikarjunappa and Anr. v.  

Shamanur Shiv Ashankappa and Ors. (2001) 4 SCC  

428. The High Court had in that case also dismissed the  

election petitions taking the view that there had been non-

compliance with Rule 94-A of the Conduct of Elections  

Rules, 1961 inasmuch as the affidavit filed in support of the  

allegations of corrupt practices with the election petitions  

did not comply with the requirements of the format as  

prescribed in Form 25.  Allowing the appeal this Court  

observed:

“An election petition is liable to be dismissed in limine  under Section 86(1) of the Act if the election petition  does not comply with either the provisions of “Section  81 or Section 82 or Section 117 of the RP Act”. The  requirement of filing an affidavit along with an election  petition, in the prescribed form, in support of  allegations of corrupt practice is contained in Section

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83(1) of the Act. Non-compliance with the provisions of  Section 83 of the Act, however, does not attract the  consequences envisaged by Section 86(1) of the Act.  Therefore, an election petition is not liable to be  dismissed in limine under Section 86 of the Act, for  alleged non-compliance with provisions of Section  83(1) or (2) of the Act or of its proviso. The defect in  the verification and the affidavit is a curable defect.  What other consequences, if any, may follow from an  allegedly “defective” affidavit, is required to be judged  at the trial of an election petition but Section 86(1) of  the Act in terms cannot be attracted to such a case.”

19. A similar view was taken by a three-Judge Bench of  

this Court in F.A. Sapa and Ors. v. Singora and Ors.  

(1991) 3 SCC 375 and in Dr. Vijay Laxmi Sadho v.  

Jagdish (2001) 2 SCC 247.   

20. We may also refer to a Constitution Bench decision of  

this Court in Murarka Radhey Shyam Ram Kumar v.  

Roop Singh Rathore & Ors. (AIR 1964 SC 1545) where  

this Court held that a defective affidavit is not a sufficient  

ground for summary dismissal of an election petition as the  

provision of Section 83 of the Act are not mandatorily to be  

complied with nor did the same make a petition invalid as  

an affidavit can be allowed to be filed at a later stage or so.  

Relying upon the decision of a three-Judge Bench of this  

Court in T. Phungzathang v. Hangkhanlian and Ors.  

(2001) 8 SCC 358 this Court held that non-compliance

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with Section 83 is not a ground for dismissal of an election  

petition under Section 86 and the defect, if any, is curable  

as has been held by a three-Judge Bench of this Court in  

Manohar Joshi v. Nitin Bhaurao Patil (1996) 1 SCC  

169 and H.D. Revanna v. G. Puttaswamy Gowda & Ors.  

(1999) 2 SCC 217.  This Court observed:

“…….If the view of the High Court in the order  impugned before us is to be upheld, an election  petitioner having filed an affidavit fully satisfying the  requirement of Section 83(1) proviso and Rule 94-A in  all respects but having made an omission in the copy  of the affidavit delivered to the respondent would be  placed in a position worse than an election petitioner  whose original affidavit filed with the election petition  itself did not satisfy the requirement of Section 83(1)  proviso read with Rule 94-A. This could not have been  the intendment of law. Such an interpretation would,  to say the least, make a mockery of justice. That non- compliance with Section 83 cannot be a ground for  dismissal of the election petition under Section 86 and  the defect, if any, is curable, has been the view taken  by a three-Judge Bench in Manohar Joshi v. Nitin  Bhaurao Patil and also in H.D. Revanna v. G.  Puttaswamy Gowda wherein all the decisions available  till then have been considered. In Kamal Narain Sarma  v. Dwarka Prasad Mishra affidavit was sworn in before  the Clerk of Court attached with the Office of the  District Judge empowered by the District Judge under  Section 139(c) of the Code of Civil Procedure for the  purpose of administration of oaths on affidavits made  under the Code of Civil Procedure. The Election  Tribunal allowed a fresh affidavit to be filed in place of  such affidavit, treating it to be defective. On the  matter reaching this Court, a Constitution Bench held  that an extreme and technical view was not justified.  The affidavit was held to be proper and the second  affidavit was held to be not necessary.”

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21. The decisions relied upon by Mr. Rao do not in terms  

deal with a comparable situation to the one this Court was  

dealing with in Sardar Harcharan Singh Brar’s case  

(supra). The format of the affidavit is at any rate not a  

matter of substance. What is important and at the heart of  

the requirement is whether the election petitioner has made  

averments which are testified by him on oath, no matter in  

a form other than the one that is stipulated in the Rules.  

The absence of an affidavit or an affidavit in a form other  

than the one stipulated by the Rules does not by itself cause  

any prejudice to the successful candidate so long as the  

deficiency is cured by the election petitioner by filing a  

proper affidavit when directed to do so.     

22. There is no denying the fact that the election of a  

successful candidate is not lightly interfered with by the  

Courts.  The Courts generally lean in favour of the returned  

candidates and place the onus of proof on the person  

challenging the end result of an electoral contest. That  

approach is more in the nature of a rule of practice than a  

rule of law and should not be unduly stretched beyond a  

limit.  We say so because while it is important to respect a

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popular verdict and the courts ought to be slow in upsetting  

the same, it is equally important to maintain the purity of  

the election process.  An election which is vitiated by reason  

of corrupt practices, illegalities and irregularities  

enumerated in Sections 100 & 123 of the Act cannot  

obviously be recognised and respected as the decision of  

the majority of the electorate. The Courts are, therefore,  

duty bound to examine the allegations whenever the same  

are raised within the framework of the statute without being  

unduly hyper-technical in its approach & without being  

oblivious of the ground realities. Experience has shown that  

the electoral process is, despite several safeguards taken by  

the Statutory Authorities concerned, often vitiated by use of  

means, factors and considerations that are specifically  

forbidden by the statute. The electoral process is vulnerable  

to misuse, in several ways, in the process distorting the  

picture in which the obvious may be completely different  

from the real. Electoral reforms is, therefore, a crying need  

of our times but has remained a far cry.  If the Courts also  

adopt a technical approach towards the resolution of  

electoral disputes, the confidence of the people not only in

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the democratic process but in the efficacy of the judicial  

determination of electoral disputes will be seriously  

undermined. This Court has in several pronouncements  

while emphasising the need to leave the elections  

untouched, reiterated, the need to maintain the purity of  

elections and thereby strengthening democratic values in  

this country. The decisions of this Court in T.A. Ahammed  

Kabeer v. A.A. Azeez & Ors. (2003) 5 SCC 650 and P.  

Malaichami v. M. Andi Ambalam and Ors. (1973) 2  

SCC 170 express a similar sentiment.

23. Suffice it to say, that in the absence of any provision  

making breach of the proviso to Section 83(1), a valid  

ground of dismissal of an election petition at the threshold,  

we see no reason why the requirement of filing an affidavit  

in a given format should be exalted by a judicial  

interpretation to the status of a statutory mandate.  A  

petition that raises triable issues need not, therefore, be  

dismissed simply because the affidavit filed by the petitioner  

is not in a given format no matter the deficiency in the  

format has not caused any prejudice to the successful  

candidate and can be cured by the election petitioner by

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filing a proper affidavit. In the result, this appeal fails and is  

dismissed with costs assessed at Rs.25000/-.

……………………..……………..…J.                   (T.S. THAKUR)

……………………………….………J.    (GYAN SUDHA MISRA)

New Delhi July 6, 2012