PONNALA LAKSHMAIAH Vs KOMMURI PRATAP REDDY .
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: C.A. No.-004993-004993 / 2012
Diary number: 21477 / 2010
Advocates: Y. RAJA GOPALA RAO Vs
ANNAM D. N. RAO
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 1
1
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
Page 2
2
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
Page 3
3
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
Page 4
4
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
Page 5
5
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
Page 6
6
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
Page 7
7
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,
Page 8
8
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
Page 9
9
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
Page 10
10
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
Page 11
11
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
Page 12
12
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
Page 13
13
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
Page 14
14
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 &
Page 15
15
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
Page 16
16
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.
Page 17
17
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
Page 18
18
petition alleging corrupt practice by the winning candidate. The proviso enacted to Sub-section (1) of Section 83 of the Act is couched in a mandatory form inasmuch as it provides that a petition alleging corrupt practice shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. The form is prescribed by Rule 94-A. But at the same time, it cannot be lost sight of that failure to comply with the requirement as to filing of an affidavit cannot be a ground for dismissal of an election petition in limine under Sub- section (1) of Section 86 of the Act. The point is no more res integra and is covered by several decisions of this Court. Suffice it to refer to two recent decisions namely G. Mallikarjunappa and Anr. v. Shamanur Shivashankarappa and Ors. and Dr. Vijay Laxmi Sadho v. Jagdish, both three-Judges Bench decisions, wherein the learned Chief Justice has spoken for the Benches. It has been held that 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 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.
17. More importantly the Court held that if the High Court
had found the affidavit to be defective for any reason it
should have allowed an opportunity to the election
Page 19
19
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
Page 20
20
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
Page 21
21
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.”
Page 22
22
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
Page 23
23
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
Page 24
24
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
Page 25
25
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