Ajay Arjun Singh Vs Sharadendu Tiwari

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2697 OF 2016 (Arising out of SLP (Civil) No.33933 of 2014)

Ajay Arjun Singh … Appellant

Versus

Sharadendu Tiwari & Others … Respondents

WITH

CIVIL APPEAL No.2699 OF 2016 (Arising out of SLP (Civil) No.11096 of 2015)

CIVIL APPEAL No.2700 OF 2016 (Arising out of SLP (Civil) No.15361 of 2015)

CIVIL APPEAL No.2701 OF 2016 (Arising out of SLP (Civil) No.31051 of 2015)

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. General elections to the legislative assembly of Madhya

Pradesh took place in the year 2013. On 8.12.2013, one Shri

Ajay Arjun Singh (hereinafter referred to as the RETURNED

CANDIDATE) was declared elected as a member of legislative

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assembly from 76 Churhat Assembly Constituency in the said

election. On 20th January, 2014, challenging the declaration

of said Ajay Arjun Singh, one of the contesting candidates

Sharadendu Tiwari (hereinafter referred to as ‘the ELECTION

PETITIONER’) filed an Election Petition No.1 of 2014 before the

High Court of Madhya Pradesh.

3. The election of the RETURNED CANDIDATE was

challenged on the grounds that the RETURNED CANDIDATE

is guilty of commission of two corrupt practices falling under

sub-sections (1) and (6) of Section 123 of the Representation of

the People Act, 1951 (hereinafter referred to as ‘the RP Act’),

i.e. (1) making appeal to the voters in the name of religion and

bribery; and (2) incurring expenditure in contravention of

Section 77 of the RP Act respectively.

4. Notice to the respondents in the Election Petition was

ordered on 10th February, 2014. The RETURNED CANDIDATE

was served1 with the said notice on 18.6.2014. Admittedly,

the election petition and all the annexures thereto were served

1 Admittedly the RETURNED CANDIDATE could not be served with the summons in the normal course by the High Court. He appeared in the High Court (admittedly) pursuant to the substituted service (paper publication). The RETURNED CANDIDATE has an explanation for the same. The truth of the explanation is not in issue.

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on the RETURNED CANDIDATE on his appearance in the

Court on 18.6.2014.

5. On 1st July, 2014, the RETURNED CANDIDATE filed I.A.

No.43 of 2014 invoking Order VII Rule 11 of CPC (hereinafter

referred to as “OR VII R 11 petition”) praying that the Election

Petition be dismissed on the ground that it does not disclose a

cause of action. The said petition was dismissed by order of

the High Court dated 25.8.2014. Aggrieved by the dismissal of

OR VII R 11 petition, the RETURNED CANDIDATE filed an

application for review (I.A. No.13575/2015 – hereinafter

referred to as the “Review Petition”), which was also dismissed

by the High Court by an order dated 18.3.2015.

6. Therefore, the RETURNED CANDIDATE filed SLPs

No.33933/2014 and 11096/2015 aggrieved by orders dated

25.8.2014 and 18.3.2015 respectively.

7. Aggrieved by certain findings recorded by the High Court

(the details of which will be considered later) in the order dated

18.3.2015 in the Review Petition, the ELECTION PETITIONER

preferred SLP No.15361/2015.

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8. To adjudicate the correctness of the various impugned

orders, an examination of the issues which fell for the

consideration of the High Court is required to be identified.

9. The prayer in the OR VII R 11 petition filed by the

RETURNED CANDIDATE is as follows:

“It is, therefore, prayed that the present election petition be dismissed.”

(i) Para 8 of the OR VII R 11 petition reads as follows:

“That, besides the above, affidavit sworn and filed along with the petition by the petitioner is not in conformity with Form 25 of the Conduct of Election Rules, 1961. The name of the corrupt practice has not been specified which is required to be specifically stated in the affidavit prescribed under Form No.25. The affidavit which the petitioner has filed is thus defective and, therefore, the petition deserves to be dismissed.”

(ii) Para 13 of the said petition states:

“That, for the aforesaid reasons, the present election petition is liable to be dismissed as the as do not disclose any cause of cause of action.”

Giving some allowance to the clerical errors, we presume that

the RETURNED CANDIDATE prayed that the Election Petition

be dismissed on the ground that it does not disclose any cause

of action.

In other words, the RETURNED CANDIDATE prayed that the

Election petition be dismissed for two reasons:

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(i) that the affidavit filed along with the Election

petition is not in conformity with Form 25 of

the Conduct of Election Rules, 1961; and

(ii)that the Election petition does not disclose any

cause of action.

They are two distinct grounds.

10. In response to the said application (OR VII R 11 petition),

the ELECTION PETITIONER filed a reply dated 11.07.2014. It

is stated in para 6 therein as follows:

“6. That, the third objection which respondent no.1/returned candidate has raised with respect to the non filing of the affidavit inconformity of the Form 25 of the Conduct of Election Rules, 1961. The petitioner has filed the said affidavit along with the election petition which is attached at page no.394 and 395 of the election petition and also found mention at serial no.57-A in the index filed along with the election petition. Since the petitioner has also filed affidavit in support of the election petition and has also filed the affidavit in prescribed format, therefore, there is no defect in this regard. Though, the petitioner respectfully submits that the petition and the affidavit is in proper order but if in the opinion of the court if there is any defect, the election petitioner is willing to cure the same.”

11. It can be seen from the above that the ELECTION

PETITIONER clearly mentioned about the filing of an affidavit

in form 25 which is to be found at page nos.394 and 395 of

the election petition and also mentioned at serial no.57-A in

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the index to the election petition. Though not very elegantly

pleaded, the ELECTION PETITIONER did assert the fact that

he had filed two affidavits along with the election petition2.

12. It can be seen from the above that the ELECTION

PETITIONER has also made a submission that “if in the

opinion of the Court if there is any defect, the ELECTION

PETITIONER is willing to cure the same”. Such a statement

appears to have been made by way of abundant caution in a

bid to save the election petition from being dismissed on the

ground of non-compliance with the proviso to Section 83 (1) in

the event of the High Court reaching the conclusion that the

affidavit filed by the ELECTION PETITIONER along with the

election petition is not in fact compliant with the requirement

of law.

13. The High Court, by its order dated 25.8.2014 while

dismissing OR VII R 11 petition recorded:

“In the instant case, the petitioner has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94-A of the Conduct of Election Rules, 1961. Since aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25.”

The High Court further directed:

2 Para 6 of reply to the IA No.43 of 2014 “… Since the petitioner has also filed affidavit in support of the election petition and has also filed

an affidavit in the prescribed format, therefore, there is no defect in this regard….”

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“the petitioner is directed to file an affidavit in Form 25 within 15 days from the date of receipt of certified copy of the order.”

Pursuant to this order, admittedly an affidavit was filed by the

ELECTION PETITIONER on 31.08.2014.

14. To understand the controversy in these appeals, an

analysis of the provisions of the RP Act is required. Section

833 of the RP Act stipulates what is required to be contained in

an election petition. Section 83(1)(c) requires every election

petition to be verified in the manner laid down in the Code of

Civil Procedure, 1908. Order VI Rule 15 of the Code deals

3 “Section 83. Contents of petition.—(1) An election petition—

(a) Shall contain a concise statement of the material facts on which the petitioner relies;

(b) Shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings;

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

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with the verification of the pleadings4. Sub-rule 45 stipulates

that the person verifying the pleadings shall also furnish an

affidavit in support of such pleadings.

15. An election petition challenging the validity of an election

can be filed on any one of the various grounds specified under

Section 100 of the RP Act. The commission of a corrupt

practice either by the “returned candidate or his election agent

or by any other person with the consent of either the returned

candidate or his agent” is one of the several grounds on which

the High Court can declare the result of a returned candidate

to be void. The election of a returned candidate can also be

set aside on the ground of the commission of corrupt practice

“in the interest of the returned candidate by an agent other

than his election agent” and by virtue of such corrupt practice

“the result of the election, insofar as it concerns a returned

4 Order VI Rule 15. Verification of pleadings.— (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

5 Sub-rule (4) came to be inserted to the Code by Act 46 of 1999

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candidate, has been materially affected”. In either case, in

view of the stipulation contained in proviso to Section 83(1) RP

Act, the election petition is required to be accompanied by an

affidavit in the prescribed form.

16. In exercise of the power under Section 169 of the RP Act,

the Representation of the People (Conduct of Elections and

Election Petitions) Rules, 1956 have been framed by the

Government of India. Rule 94A prescribes as follows:

“Rule 94A. Form of affidavit to be filed with election petition.— The affidavit referred to in the proviso to sub- section (1) of section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25.”

Form 25 also indicates the layout of the affidavit. The

requirement of giving such affidavit where there are allegations

of commission of corrupt practice in an election petition came

to be inserted in the Act by virtue of an amendment in the year

1962.

17. The question whether an election petition challenging the

election of a returned candidate on the ground of corrupt

practice is required to be accompanied either by one affidavit

or two affidavits in view of the insertion of clause (4) of Rule 15

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of Order VI, fell for consideration of this Court in P.A.

Mohammed Riyas v. M.K. Raghavan & Others, (2012) 5

SCC 511 and this Court held thus:

“45. … We are also unable to accept Mr Venugopal’s submission that even in a case where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions.”

18. Subsequently, the same question again fell for

consideration before a larger bench of this Court in G.M.

Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776. The

court disapproved the view taken in Mohammed Riyas case

and held:

“1. … The principal question of law raised for our consideration is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order 6 Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Representation of the People Act, 1951. In our opinion, there is no such mandate in the Representation of the People Act, 1951 and a reading of P.A. Mohammed Riyas v. M.K. Raghavan which suggests to the contrary, does not lay down correct law to this limited extent.

30. In any event, as in the present case, the same result has been achieved by the election petitioner by filing a composite affidavit, both in support of the averments made in the election petition and with regard to the allegations of corrupt practices by the returned candidate. This procedure is not contrary to law and cannot be faulted. Such a composite affidavit would not only be in substantial compliance with the requirements of the Act but would actually be in full compliance thereof. The filing of two

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affidavits is not warranted by the Act nor is it necessary, especially when a composite affidavit can achieve the desired result.”

19. The issue before this Court in this batch of appeals is

whether the election petition was accompanied by an affidavit

which is compliant with the requirement of statute under the

proviso to Section 83(1)(c). For answering the issue, it is

incidentally necessary to determine whether the ELECTION

PETITIONER filed two affidavits along with the election petition

to satisfy the requirement of the law.

20. Unfortunately, the High Court did not examine, when it

passed the orders dated 25.08.2014 or 18.03.2015, the

question whether there were two affidavits filed by the

ELECTION PETITIONER along with the election petition and

whether the affidavit said to have been annexed to the election

petition at page nos.394-395 is compliant with the

requirement of stipulations under proviso to Section 83(1). At

para 5 of the order dated 25.08.2014, the High Court recorded

as follows:

“5. So far as the contention with respect to verification or affidavit is concerned, it has been laid down by the Apex Court G.M. Siddeshwar v. Prasanna Kumar, AIR 2013 SC 1549 that absolute compliance of format affidavit is not necessary. Substantial compliance

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with format prescribed is sufficient. In case there is any defect in affidavit or in its verification, the same is curable and the same cannot be a sufficient ground to dismiss the petition in limine. In the instant case, the petitioner has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94-A of the Conduct of Election Rules, 1961. Since the aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25.”

We are sorry to note that the para commences with a clumsy

statement “so far as the contention with respect to verification

or affidavit” and makes an irrelevant reference to the G.M.

Siddeshwar case (supra) and ultimately records a conclusion

without any discussion of the pleadings or evidence that the

ELECTION PETITIONER has not filed an affidavit in Form-25.

It was however ordered at para 6 of the order dated

25.08.2014:

“I do not find any ground for rejection of the petition in limine under Order 7 Rule 11 of the CPC. Accordingly, I.A. No.43/2014, filed by the respondent No.1 is hereby dismissed. The petitioner is directed to file affidavit in Form 25 of the Conduct of Election Rules, 1961 within 15 days from the date of receipt of certified copy of the order. Respondent No.1 is also directed to file written statement within two weeks from the date of receipt of certified copy of this order.”

It is a wholly unsatisfactory way of dealing with any issue in a

judicial proceeding and more so with election petitions.

Election petitions deal with the basic rights of the citizenry of

this country. Election is a “politically sacred” event and an

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election dispute is too serious a matter to be dealt with

casually. Therefore, the Parliament thought it fit to entrust

the adjudication of election disputes to the High Courts. It is

unfortunate that the learned Judge chose to deal with the

matter so casually. The result is that a finding that there was

no affidavit in the Form No.25 came to be recorded without

recording any finding regarding the existence or otherwise of

the affidavit which is said to have been annexed in the election

petition at page nos.394 and 395 nor its content. Since the

Interlocutory Application was dismissed, the ELECTION

PETITIONER had neither a reason nor the necessity to

challenge the correctness of the findings recorded in the order

as the decision is in his favour.

21. Aggrieved by the said order, the RETURNED CANDIDATE

filed the Review Petition seeking review of the said order. The

application hinged on the finding recorded in the order dated

25.08.2014 that “the petitioner has not filed the affidavit in

the prescribed Form No.25”. It is, therefore, pleaded in the

Review Petition that the direction of the High Court permitting

the ELECTION PETITIONER to cure the defect in the affidavit

filed along with the election petition is unsustainable and

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hence the order dated 25.08.2014 is to be reviewed.

Interestingly, in the rejoinder dated 24.12.2014 filed by the

RETURNED CANDIDATE to the reply of the ELECTION

PETITIONER dated 8.11.2014 in the said Review Petition, the

RETURNED CANDIDATE stated as follows:

“Para 4. That, the averments made in the petition were verified by the petitioner as per verification clause; submitted an affidavit in support of the petition and filed another affidavit under Form-25 at pages 394 and 395 of the Election Petition and the third affidavit dated 31.8.2014 pursuant to order of the Hon’ble Court dated 25.8.2014.”

22. It is clear from the abovementioned pleading of the

RETURNED CANDIDATE that he is clearly aware of the fact

that there were two affidavits filed along with the election

petition as averred by the ELECTION PETITIONER in his

petition. The said review application was dismissed by order

dated 18.03.2015. Aggrieved by the same, the RETURNED

CANDIDATE filed SLP No.11096 of 2015.

23. It is rather difficult to understand the order dated

18.03.2015. There was an unnecessary examination of various

authorities of the Supreme Court without first settling the

basic facts and identifying the issues. The High Court

extracted the content of an affidavit which according to the

ELECTION PETITIONER is an affidavit filed in compliance with

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the requirement of Section 83(1)(c) but not the affidavit in

Form 25 and records a conclusion at para 6 as follows:

“6. A bare reading of earlier affidavit filed by the petitioner makes it clear that the petitioner had covered all the pleadings in his affidavit and no pleading was left which was not mentioned in the affidavit but what was lacking was that the earlier affidavit was not in the prescribed Form No.25 of the Rule 94-A of the Rules of 1961. Certainly, there was a non-compliance of proviso to Section 83(1) of the Act of 1951 but Section 83(1) of the Act of 1951 is not covered under Section 86 of the Act of 1951.”

Interestingly, at para 9, once again the High Court recorded a

conclusion:

“9. As mentioned hereinabove, in the instant case substantial compliance of Section 81(3) of the Act of 1951 has already been done by the petitioner by filing first affidavit along with the petition but only defect was that the affidavit was not in prescribed format, therefore, at the most it was a non-compliance of Section 83(1) of the Act of 1951 and same is curable. ...”

The cryptic conclusions recorded in the order dated

18.03.2015 only add to the existing confusion.

24. However, aggrieved by the conclusion that the affidavit

was “not in the prescribed Form-25”, the ELECTION

PETITIONER preferred SLP No.15361 of 2015 on the ground

that such a conclusion came to be recorded on an erroneous

identification of the affidavit. Aggrieved by the dismissal of the

Review Petition, the RETURNED CANDIDATE filed SLP

No.11096 of 2015.

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25. When the appeals were argued before this Court on

20.08.2015, the ELECTION PETITIONER made a submission

that two separate affidavits were filed along with the election

petition and the High Court’s observation (supra) are based on

an erroneous identification of the affidavit. The RETURNED

CANDIDATE took a stand that there was no 2nd affidavit as

alleged by the ELECTION PETITIONER in compliance with the

proviso to Section 83(1) of the RP Act filed along with the

election petition.

26. In view of the abovementioned imprecise findings

recorded by the High Court without any reference to the

pleadings or evidence on record and the contradictory stands

taken before this Court by the parties, this Court thought it fit

to adjourn the matter in order to enable the parties to seek a

clarification regarding the true state of facts whether there was

one or two affidavits filed along with the election petition6. 6 “The matters were argued at some length before us. Learned counsel appearing for the RETURNED CANDIDATE has proceeded on the basis that there is no affidavit at all as required under Section 83(1)(c) of the Act whereas it is pointed out by learned counsel on behalf of ELECTION PETITIONER that as a matter of fact two separate affidavits were filed along with the election petition. The first being an affidavit in compliance of requirement of the provisions under Order VI Rule 15(4) of Civil Procedure Code and the second an affidavit in compliance with requirement of Section 83(1)(c) of the Act. Xerox copies of both the affidavits are available on record here.

The question whether there was one affidavit or two affidavits filed along with the election petition as mentioned above, the actual date when those affidavits were filed, whether either of the two affidavits is filed in compliance with the requirement of Section 83(1)(c) of the Act or not are matters for examination of the High Court. The High Court is required to record definite findings in the event there is any dispute with respect to the questions mentioned above. Unfortunately, the orders of the High Court are

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27. Pursuant to the said order, the ELECTION PETITIONER

filed I.A. No.11665/2015 seeking clarifications from the

Madhya Pradesh High Court. The said I.A. was disposed of by

an order dated 29.9.20157.

The High Court, recorded;

“37. On the basis of aforesaid discussion, the questions posed by the Supreme Court in order dated 20-08-2015, are answered in the following manner:

Question No. 1: Whether there was one affidavit or two affidavits filed along with the election petition?

Answer: Two affidavits were filed along with election petition.

Question No. 2: The actual date when those affidavits were filed?

Answer: Both affidavits were filed on 20-01-2014, the date on which the election petition was filed.

Question No. 3: Whether either of the two affidavits is filed in compliance with the requirement of section 83(1)(c) of the Representation of the People Act, 1951?

Answer: The affidavit at page nos. 394 & 395 of the election petition is filed in compliance with the requirement of proviso appended to section 83(1)(c) of the Representation of People Act, 1951.

38. I.A. No. 11665/2015 stands disposed of accordingly.”

28. The said order is the subject matter of challenge in SLP

No.31051 of 2015 filed by the RETURNED CANDIDATE. Apart

from the various grounds on which the correctness of the

findings recorded by the High Court are challenged, the cryptic and the findings recorded by the High Court (extracted earlier in this order) are not clear with regard to the above mentioned questions.”

7Challenging the correctness of the said order, SLP 31051/2015 is filed by the RETURNED CANDIDATE.

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RETURNED CANDIDATE took a preliminary objection that the

order dated 29.9.2015 suffers from lack of jurisdiction and

therefore, it is required to be set aside on that ground alone8.

29. According to the RETURNED CANDIDATE, I.A. No.11665

of 2015 ought to have been heard by a Division Bench because

of the stipulation contained in Rule 13(2) of the High Court of

Madhya Pradesh Rules, 2008. The said Rule stipulates that

any application seeking clarifications of an earlier order of the

Court passed by a learned Judge, who retired thereafter, ought

to be heard by a Division Bench9 and Justice Solanki who

passed the order in the OR VII R 11 petition retired

subsequently.

8 See Ground No.8 of SLP (C) No.31051 of 2015 “Whether the impugned order has been passed in violation of the provisions of Chapter IV Rule

13 of the Madhya Pradesh High Court Rules, 2008? If yes, whether the impugned order is liable to be set aside on the ground alone?”

9The relevant portion of Rule 13 reads as follows:-

“13. (1)(a) Save as provided in sub-rule (2), an application for review, clarification or modification of a judgment, decree or final order, passed by a Judge or Judges shall be heard by the same Judge or Judges:

Provided that such application filed in respect of an interlocutory order in a pending case shall be posted before the regular bench.

(b) An application for review, clarification or modification of a judgment, decree or final order, passed by a Judge or Judges who or one or more of whom is or are –

(i) temporarily unavailable and in the opinion of the Chief Justice, the application, looking to the urgency of the matter, cannot wait for such Judge or Judges to resume work or,

(ii) permanently unavailable, shall be heard (1) if the decree or order, review of which is applied for, was passed by a Judge sitting alone,

by the regular division bench.”

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30. In response, it is submitted on behalf of the ELECTION

PETITIONER that:

i) such an objection was never raised by the

RETURNED CANDIDATE before the High

Court when I.A. No.11665 of 2015 was being

heard and therefore now cannot be permitted

to raise the same;

ii) that, the adjudication of an election petition is

governed by Section 81A read with Section 86

of the Representation of the Peoples Act, 1951.

Non-compliance, if any, with the Rules of the

High Court framed under Article 225 does not

render the order one without jurisdiction;

iii) that, I.A. No.11665 of 2015 is “more about

clarification of record, not clarification of order

in strict sense”.

In other words, the clarification sought is not

regarding either the interpretation of the

earlier orders or the legal implications of the

earlier orders but an enquiry into certain facts

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and the record of the High Court pertaining to

the election petition. Therefore, Rule 13 would

have no application.

(iv) That the requirement of a matter being heard

by a Division Bench under Rule 13(1)(b) is

limited only to the cases of review, clarification

or modification of only judgments, decrees and

final orders but not to the interlocutory orders

such as the order of which “clarification” was

sought.

31. We reject the preliminary objection raised by the

RETURNED CANDIDATE:

The Reason:

The adjudication of election petitions including the

examination of all incidental questions in interlocutory

proceedings arising during the course of the adjudication

of the election petition is entrusted by Section 80A of the

Representation of People Act, 1951 to the High Court

within whose jurisdiction the election dispute arises.

Section 80A(2) stipulates that the jurisdiction shall be

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exercised ordinarily by a Single Judge who is to be

designated by the Chief Justice10.

(a) Though the said Section indicates that the Chief

Justice has a discretion to entrust trial of an

election petition to a Bench consisting of more than

one judges, such a discretion is to be exercised by

the Chief Justice alone.

(b) The Rules of the High Court are framed by the High

Court pursuant to the power vested in it under

Article 22511. The exercise of such power is subject

to the provisions of the Constitution and the

“provisions of any law of the appropriate

legislature”. Rule 13 mandates the listing of certain

matters (nature of which is described therein) before 10 Sec. 80A(2) – Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose.

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court. 11Article 225. Jurisdiction of existing High Courts.—Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

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a Division Bench. Such stipulation is contrary to

the stipulation of Section 80A(2) that election

petitions are to be tried by a single judge of the High

Court leaving a discretion in the Chief Justice to

decide whether in a given case, an election petition

shall be heard by more than one Judge. Such a

statutory discretion vested in the Chief Justice of

the High Court cannot be curtailed by a rule made

as the High Court in view of the clear declaration by

the Constitution (in the opening clause of Article

225) that “any rule shall be subject to the law made

by the appropriate legislature”.

We are, therefore, of the opinion that the objection

raised by the RETURNED CANDIDATE is not tenable.

In view of the above conclusion, we do not wish to

examine the other defences of the ELECTION

PETITIONER in this regard.

32. We now proceed to examine the appeals on their merits.

The fate of these appeals would eventually depend upon the

answer to the questions:

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Whether the ELECTION PETITIONER filed two

affidavits on 20.01.2014 at the time of presenting

the election petition, the second of which being the

affidavit (at page nos.394-395) referred to at Serial

No.57A of the Index appended to the election

petition purportedly in Form 25 to satisfy the

requirement of law flowing from the proviso to

Section 83(1); and if such an affidavit was in fact

filed on 20.01.2014 as contended by the ELECTION

PETITIONER whether such an affidavit satisfies the

prescription contained in Form 25.

33. By order dated 29.09.2015 in IA No.11665 of 2015, the

High Court recorded a finding that the ELECTION

PETITIONER filed two affidavits along with the election petition

on 20.01.2014 (the date on which the election petition was

presented to the High Court). The High Court also recorded a

finding that the affidavit at page nos.394-395 of the election

petition which finds mention at Sr. No.57A in the index is “in

compliance with the requirement of proviso appended to

section 83(1)(c) of the Representation of People Act, 1951”.

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34. If the abovementioned two findings are legally tenable,

three appeals (arising out of SLP Nos.33933 of 2014, 11096 of

2015 and 31051 of 2015) filed by the RETURNED CANDIDATE

are to be dismissed and the appeal (arising out of SLP

No.15361 of 2015) filed by the ELECTION PETITIONER would

have to be allowed. Therefore, we proceed to examine the

correctness of the abovementioned findings recorded by the

High Court.

35. The correctness of the said findings is contested by the

RETURNED CANDIDATE on the following grounds:

I. That at the earliest point of time, the High

Court in its order dated 25.08.2014 recorded a

finding that the ELECTION PETITIONER did

not file the affidavit in the prescribed Form 25.

Therefore, the finding to the contra in the

order of the High Court dated 29.09.2015 is

unsustainable.

II. In the order dated 25.08.2014, after recording

a finding that the ELECTION PETITIONER did

not file an affidavit in Form 25, the High Court

recorded a further finding that such a defect is

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curable and, therefore, directed the ELECTION

PETITIONER to cure the defect by filing a fresh

affidavit in Form 25. The ELECTION

PETITIONER without challenging the

correctness of the finding that he failed to file

an affidavit in Form 25 along with the election

petition chose to comply with the

consequential direction of filing afresh

affidavit. Therefore, the ELECTION

PETITIONER is precluded from contending at a

later stage that the finding recorded by the

High Court in its order dated 25.08.2014 is

incorrect.

III. Rule 6(4) of the Rules relating to election

petitions in the Madhya Pradesh High Court

requires:

“the Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it.”

and the affidavit at page nos.394 and 395 of

the election petition does not contain the seal

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and signature of the Registrar of the High

Court. Whereas all the other pages of the

election petition contain the seal and signature

of the Registrar. The absence of the seal and

the signature of the Registrar only on the

affidavit at page nos.394-395 must necessarily

lead to an inference that such an affidavit

must have been inserted in the election

petition sometime subsequent to the date of

the presentation of the election petition. Such

an inference would be further strengthened by

the fact that in the index of the election

petition, reference to the affidavit at page

nos.394-395 is made at Entry No.57-A in the

index. The said entry is an addition made in

handwriting in an otherwise completely

typewritten index.

Hence there is non-compliance with the

requirement of the mandate contained in proviso to

Section 83(1) warranting the dismissal of the election

petition in limine.

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36. The ELECTION PETITIONER’s response to the above

submissions of the RETURNED CANDIDATE is:

(i) the High Court did not record any finding in its order

dated 25.08.2014 regarding the existence or otherwise of

the affidavit at page nos.394-395 or the content of the

said affidavit in spite of the specific plea of the ELECTION

PETITIONER. The High Court only recorded a vague

finding that the ELECTION PETITIONER “has not filed

the affidavit in the prescribed Form 25 in accordance

with Rule 94A of the Conduct of Election Rules, 1961”. It

is not clear from the said order as to which one of the two

affidavits was in the mind of the High Court when it

recorded such a conclusion. The High Court should have

recorded a categoric finding in that regard in view of the

specific pleading in the reply of the ELECTION

PETITIONER that the ELECTION PETITIONER had in fact

filed a separate affidavit to be found at page nos.394-395

to satisfy the requirement of law under the proviso to

Section 83(1)12. In the absence of any such categoric

finding it cannot be said that the findings recorded by the

12 Exact content of reply of the ELECTION PETITIONER in this regard is also extracted at para 10 supra.

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High Court in its order dated 29.09.2015 are inconsistent

with the earlier finding recorded in the order dated

25.08.2014.

(ii) that there was no occasion for the ELECTION

PETITIONER to challenge the said finding as the ultimate

result of the order was in his favour. It is also submitted

that though the ELECTION PETITIONER did not

challenge the finding recorded by the High Court in its

order dated 25.08.2014, the ELECTION PETITIONER is

entitled to dispute the correctness of the finding as and

when such a finding is sought to be pressed into service

against him.

(iii) Coming to the question of filing a fresh affidavit in

obedience of the consequential direction of the High

Court, the ELECTION PETITIONER submitted that such

a course of action was pursued by him by way of

abundant caution.

(iv) It is submitted by the ELECTION PETITIONER with

regard to the absence of the signature of the Registrar on

the affidavit at page nos.394-395 that though it is the

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duty of the Registrar of the High Court to sign on each

page of the election petition and the affidavit filed

alongwith the election petition, if the Registrar failed in

his duty the ELECTION PETITIONER cannot be penalized

by drawing an inference that the affidavit was not

presented along with the election petition. In this regard,

the ELECTION PETITIONER relied upon the well-settled

principle of law that the act (which includes an omission)

of the court shall not prejudice the rights of any party.

37. We reject submissions of the RETURNED CANDIDATE for

the following reasons:

(i) The 1st submission of the RETURNED CANDIDATE that

the subsequent and conflicting finding is not legally

tenable, if at all is based on any legal principle, it is

based either on the doctrine of res judicata or some

principle analogous to it based on public policy that there

must be finality to the judicial orders. Even if the

principle of res judicata is invoked, (we only presume

without examining the applicability of the same), what is

barred under Section 11 of CPC is the adjudication of an

issue which was directly and substantially in issue in a

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former suit between the same parties and has been heard

and finally decided.

(ii) The question whether two affidavits were filed along with

the Election petition though was not directly in issue as

the RETURNED CANDIDATE never filed a rejoinder (to

the reply of the ELECTION PETITIONER wherein it was

stated that he had filed two affidavits alongwith the

election petition). In deciding the OR VII R 11 petition

the High Court never examined the question (it is an

issue of fact) whether there were two affidavits as pleaded

by the ELECTION PETITIONER in his reply to the said

petition. We have already recorded that the order in OR

VII R 11 petition is too casual. It does not take note of

either the facts in issue or identify the point to be

decided. Any finding of fact recorded in such

circumstances is required to be set aside if appealed

against by the aggrieved party if such an order is an

appealable order. Since the learned Judge dismissed the

OR VII R 11 petition though the finding is adverse to the

ELECTION PETITIONER, he need not have filed an

appeal13. 13 Hardevinder Singh v. Paramjit Singh, (2013) 9 SCC 261, para 21 at page 268:

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(iii) Therefore, we do not see any legal principle on the basis

of which the RETURNED CANDIDATE can successfully

contend that in view of the finding recorded in the order

dated 25.08.2014 the High Court could not have

recorded a finding in IA No.11665 of 2015 that two

affidavits were filed along with the Election petition.

(iii) We now deal with the submission of the RETURNED

CANDIDATE regarding the absence of the seal and

signature of the Registrar of the High Court on the

affidavit at page nos.394-395.

a) The High Court in its order dated 29.9.2015 in I.A.

No.11665 of 2015 recorded a finding:

21. After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In Banarsi v. Ram Phal, (2003) 9 SCC 606, it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection . It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.

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“24. … However, the Registrar, in compliance with sub-rule (4) of rule 8, has affixed his seal and signatures at every page of the election petition and the affidavit at page no.70 and 71. However, no such seal or signature of the Registrar is to be found upon the affidavit at page nos.394 & 395. …”

Further, at para 25 of the order, it is recorded:

“25. In this regard, it has to be kept in mind that all official acts are presumed to be properly done. It is true that affidavit at page nos.394 & 395 does not bear the seal or signatures of the Registrar; however, it appears that it was not sealed and signed by the Registrar because it was annexed almost at the end of the petition. Since, as per rules, documents annexed to an election petition are not required to be signed and sealed by the Registrar, none of the documents filed along with the petition from serial No.72 to Serial No.393 bears his seal and signatures. Probably, nobody pointed out to the Registrar that there is another affidavit at page no.394; therefore, it was not sealed and signed like other documents.”

b) At the outset, it may be mentioned that there is a

typographical error in the abovementioned order. The

relevant rule of the High Court dealing with the matter is

Rule 6(4) but not 8(4). Rule 6 reads as follows:

“Chapter VII Rules Relating to Election Petitions

Rule 6 (1) Every Election Petition complete in all respects, shall be presented during the Court hours to the Additional Registrar or Deputy Registrar Judicial, at Jabalpur.

(2) The name of the person presenting an Election petition, with a description of the capacity in which he is presenting it, the date and hour of presentation and any other particulars considered necessary shall be endorsed in the margin of first page

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of the petition by the Additional Registrar or Deputy Registrar under his own signature.

(3) The Additional Registrar or Deputy Registrar shall have the petition examined in order to find out that all the requirements of the Representation of the People Act, 1951, and these rules have been complied with.

(4) The Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it.

(5) The Additional Registrar or Deputy Registrar, after examining the petition, shall record his opinion on the opening order-sheet in the following:—

“Presented on …….. by ……. Properly drawn up, apparently within time and properly stamped.”

It can be seen from sub-rule (4) that the concerned

Registrar “shall affix his full signature to every page of

the petition and the affidavit accompanying it”.

c) The failure of the Registrar to comply with the

requirement of sub-rule (4) is sought to be explained by

the High Court by saying that such a lapse occurred

probably because nobody pointed out to the Registrar

regarding the existence of affidavit at page nos.394-395.

We are of the opinion that such a conclusion is not

tenable. Rule 6(4) casts a mandatory duty on the

Registrar to sign on each page of the election petition and

also the affidavit filed along with the election petition.

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Such a mandatory duty must be performed irrespective

of the fact whether somebody points out to the Registrar

or not regarding the existence of the affidavit.

d) If the existence of the 2nd affidavit at page nos.394-

395 of the ELECTION PETITIONER is not in dispute but

the question is whether the non-compliance of the rule

by the Registrar is fatal to the election petition, perhaps

the answer would be that “it is not”. Because it is the

settled proposition of law that the act or omission of the

Court shall not harm any party.

e) But when the question is whether such an affidavit

was filed along with the election petition on 20.01.2014,

different considerations arise. The question whether the

ELECTION PETITIONER filed the 2nd affidavit is a pure

question of fact. The burden of proving such a fact in law

is on the ELECTION PETITIONER if such a question is

really in issue. Because if he failed, the allegations of the

commission of corrupt practices by the RETURNED

CANDIDATE cannot be adjudicated in the absence of an

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affidavit in Form 25. However, such a question was

never in issue in OR VII R 11 petition.

38. As already noticed at para 10 (supra) at the earliest point

during the course of the proceedings of the election petition

when the question arose whether an affidavit in Form 25 was

filed or not, the ELECTION PETITIONER clearly took a stand

that there was an affidavit at page nos.394 and 395.

According to him, the said affidavit is in Form 25

contemplated in proviso to Section 83(1). The RETURNED

CANDIDATE never disputed the statement (of the ELECTION

PETITIONER) by filing a Rejoinder to the above-mentioned

stand taken in the ELECTION PETITIONER’s reply dated

11.7.2014 in the OR VII R 11 petition. The RETURNED

CANDIDATE admits that at least by 18.6.2014 - the date on

which he received summons, a copy of the election petition

along with Annexures including the affidavit at page nos.394-

395 of the election petition was available on record. But his

case NOW is that such an affidavit was not filed along with the

election petition within the period of limitation, but must have

been inserted in the election petition sometime in the

interregnum period between 22.1.2014 (the date on which the

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period of limitation for filing the election petition expired) and

18.6.2014.

39. But the objection of the RETURNED CANDIDATE in OR

VII R 11 petition was only that the “affidavit sworn and filed

along with the petition by the petitioner is not in conformity

with Form 25 of the Conduct Rules, 1961.” From the

language of OR VII R 11 petition, it is clear that the

RETURNED CANDIDATE’s objection is only regarding the

format and content of the affidavit but not regarding the date

of the filing of the affidavit, on the other hand, the employment

of the expression “along with” clearly indicates that the

RETURNED CANDIDATE also at that point of time accepted

that the affidavit at page nos.394-395 was presented on the

same date i.e. 20.1.2014. Therefore, the question of proof of

the fact which was never in issue does not arise much less the

question of burden of proof.

40. The fact that the ELECTION PETITIONER chose to file yet

another affidavit pursuant to the order dated 25.8.2014 is

another circumstance sought to be relied upon by the

RETURNED CANDIDATE in support of his submission that

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there was no second affidavit filed along with the election

petition.

41. We are of the opinion that in the circumstances of the

case, the inference such as the one suggested by the

RETURNED CANDIDATE cannot be drawn because the

ELECTION PETITIONER in his reply to the OR VII R 11

petition (specifically stating that he had filed an affidavit in

Form 25 along with the election petition) took a stand by way

of abundant caution that if the court comes to a conclusion

that his affidavit is found to be defective for any reason, he is

willing to file further affidavit to cure the defect.

Unfortunately, the High Court took a shortcut without

examining the question whether the affidavit at page nos.394-

395 satisfies the requirement of Form 25 and (without

recording a definite finding in that regard) simply recorded a

conclusion that the defect is curable and the same can be

cured by filing an affidavit in the Form 25”.

42. Mr. P.P. Rao, learned senior counsel submitted that the

ELECTION PETITIONER having availed the benefit of the order

in OR VII R 11 petition by filing another affidavit cannot now

question the correctness of the finding that he did not file an

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affidavit which is compliance with proviso to Section 83(1). In

support of the said submission, Mr. P.P. Rao relied on two

judgments i.e. State of Punjab & Others v. Krishan Niwas,

(1997) 9 SCC 31 and Banku Chandra Bose & Another v.

Marium Begum & Another, AIR 1917 Cal. 546.

43. In our opinion, the principle laid down in the said

judgments is of no relevance to the controversy on hand. The

dispute on hand is regarding the existence of a fact which was

never in issue in OR VII R 11 petition. The RETURNED

CANDIDATE cannot shift his case from stage to stage. He

cannot now be permitted to raise such a question of fact in the

absence of an appropriate pleading and contend that the

ELECTION PETITIONER is precluded from arguing that he had

filed a 2nd affidavit along with the election petition by pressing

into service a rule of estoppel.

44. In view of the foregoing discussion, Civil Appeal arising

out of SLP (Civil) No.31051 of 2015 being without any merits is

dismissed. As a consequence, Civil Appeals arising out of SLP

(Civil) Nos.33933 of 2014 and 11096 of 2015 are also required

to be dismissed and they are accordingly dismissed.

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45. Coming to the Civil Appeal arising out of SLP (Civil)

No.15361 of 2015, the same is required to be allowed in view

of the findings recorded by the High Court in I.A. No.11665 of

2015 which has become final by virtue of dismissal of Civil

Appeal arising out of SLP (Civil) No.31051 of 2015. The same

is accordingly allowed.

46. In the facts and circumstances of the case, there will be

no order as to costs.

….………………………….J. (J. Chelameswar)

…….……………………….J. (Abhay Manohar Sapre)

New Delhi; March 15, 2016.

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