RAJAN SUSHANT v. SUJAN SINGH PATHANI — 1991 DIGILAW 14 (HP)

JUDGMENT V. P. Bhatnagar, J.— Dr. Rajan Sushant has filed the present petition under the Representation of People Act, 1951 (for short, the Act) challenging the election of respondent 1 Shri Sujan Singh Pathania to the Himachal Pradesh 3o-Jawali Legislative Assembly constituency held on 27-2-1990. It has been prayed by him that the aforesaid election be declared void and further that respondent 1 be disqualified for a period of six years under sections 8 and 8-A of the Act and also that a declaration be issued to the effect that the petitioner himself stands duly elected A number of corrupt practices within the ambit of the Act have been alleged to have been committed by the returned candidate himself or on his behalf within the four-corners of the Act but it is not necessary to narrate the said allegations in detail for the purposes of this order. 2. Respondents 2 to 6 were ordered to be proceeded against ex parte by the Court on 25-6-1990. Out of them, the ex parte proceedings against respondent 3 were later on set aside. As it is respondents 1 and 3 have filed their written statements Whereas respondent 1 has raised a number of preliminary objections, respondent 3 has supported the election petition by admitting various allegations made in the petition. While scrutinising the election petition, the Registrar raised some objections as noticed in his orders dated 20-4-1990 and 12-6-1990. According to respondent 1, the election petition is liable to be dismissed on account of the said objections. Further, objections raised by respondent 1 are to the effect that the election petition does not contain concise statement of material facts as provided in section 83 (1) (a) and the information stipulated in section 83 (1) (b) of the Act and that the averments made in the petition in any case do not constitute the grounds within the ambit of section 100 (1) and section 101 of the Act for which reasons the election petition merits dismissal at the very outset. It also entails dismissal because the affidavit filed in support of corrupt practices is not in accordance with law and the election petition and annexures and schedule attached thereto have not been signed and verified in accordance with law, besides the copy supplied to respondent i being not the true copy of the election petition. 3. It also entails dismissal because the affidavit filed in support of corrupt practices is not in accordance with law and the election petition and annexures and schedule attached thereto have not been signed and verified in accordance with law, besides the copy supplied to respondent i being not the true copy of the election petition. 3. The following preliminary issues were framed on 8-10-1990 i— 1. Whether the Election Petition is liable to be dismissed on account of objections adverted to in Registrars orders dated 20-4-1990 and 12-6-1990 ? OPR 1 2. Whether the Election Petition does not contain concise statement of material facts as provided under section 83 (1) (a) and the information stipulated in section 83 (I) (b) of the Representation of People Act ? If so, its effect. OPR 1 3. Whether the averments made in the Election Petition do not constitute the grounds within the ambit of section 100 (I) and section 101 of the Representation of People Act ? If so, its effect. OPR 1 4. Whether the affidavit filed in support of corrupt practices is not in accordance with law ? If so, its effect. OPR 1 5. Whether the Election Petition and Annexures and Schedule attached thereto have not been signed and verified in accordance with law ? If so, its effect, OPR I 6. Whether the copy supplied to respondent 1 is not the true copy of the Election Petition ? If so, its effect. OPR 1 4. Pursuant to the directions issued by the Court to the parties to adduce evidence, respondent 1 merely gave his statement and thereafter closed his evidence on the preliminary issues. The other parties viz. respondent 3 and the petitioner did not adduce any evidence whatsoever. Issue No. 1 : 5. It has been stated by Mr Indar Singh, learned Counsel for respondent 1, that the only point he would press under this issue pertains to the failure on the part of the petitioner to pay requesite court-fee and its effect. According to him, the other points raised in the orders dated 20-4-1990 and 12-6-1990 of the Registrar stand incorporated in the remaining preliminary issues and it would be more appropriate to deal with those points under other issues. According to him, the other points raised in the orders dated 20-4-1990 and 12-6-1990 of the Registrar stand incorporated in the remaining preliminary issues and it would be more appropriate to deal with those points under other issues. There can be no objection in disposing of this issue on the above lines thus restricting it to respondent No 1s objection with regard to nonpayment of court-fee on the election petition 6. This election petition was filed on 16-4-1990. In accordance with Clause :(d) (iv) of H P Court Fee Act, 1968, court-fee of Rs. 2. 65 P. was required to be paid on this petition The perusal of the Registrars order dated 4-6-1990 in the file Process Part’ read with objection No. 5 raised by the Scrutiny Assistant shows that no stamp at all was affixed on the election petition when it was filed on 16-4-19^0. The perusal of the record also shows that it was affixed on 4-6-1990 after the expiry of the period of limitation The above facts cannot be and are not disputed. These facts have led Mr. Indar Singh to urge that there was no election petition before the Court as stipulated by law when it was filed. For this purpose he has relied on the provisions of Article 300 (b) which provides that no election is to be called in question except under law made by appropriate legislation. Further, section 80 of the Act is to the effect that an election petition is to be presented in accordance with Part VI of the Act which also postulates the payment of proper court-fee. Thus no election petition having been filed meeting the requirements of law, so the argument runs, this Court has no proper election petition before it at all. This in turn would require its dismissal straightaway. I cannot agree with this contention. 7. As noticed above, the facts are not disputed regarding the controversy involved under this issue The election petition was filed on 16-4-1990 with no court-fee stamp affixed thereon and it was affixed on 4-6-1990 pursuant to the objection raised by the Registry. The question which requires determination is whether the above lacuna would require dismissal of the petition or its rejection under the provisions of Order VII, Rule 1! C. P. C. 8. The question which requires determination is whether the above lacuna would require dismissal of the petition or its rejection under the provisions of Order VII, Rule 1! C. P. C. 8. Section 87 of the Act provides that the provisions of the Code of Civil Procedure would govern the procedure and apply to the election petitions but subject to the provisions of the Act and the Rules framed thereunder. It is not disputed that there is no provision in the Act or the Rules framed thereunder as to what would happen in case the court-fee is not affixed at the time when the petition is presented and the deficiency is subsequently made good. It being so, the relevant provisions in the Code of Civil Procedure viz., section 149 and Order VII, Rule 11, C. P. C will have to be looked into. A conjoint reading of both these provisions makes it abundantly clear that the court may in its discretion allow the petitioner to make up the deficiency of court-fee of whole or in part thereof and that it is only when the petitioner fails to make up the said deficiency that the petition becomes liable to be rejected under Order VII, Rule 11, C. P. C. This discretion, in my view, can be exercised by the Court after the deficiency in the payment of the court-fee or non-payment thereof has been pointed out by way of an objection by the Registry There does not appear to be any necessity for filing a specific application by the petitioner for this purpose indicating reasons for his failure to pay the court-fee in the first instance. Such a requirement is not sine qua non and, therefore, non-implementation thereof would not call for dismissal of the petition. Any law to the contrary, in my opinion, is not good law due to the clear interpretation available from the bare language of section 149 and Order VII, Rule 11 of the Code of Civil Procedure. 9. In the present case the correct court-fee was paid on 4-6-1990 when this deficiency was brought to the notice of the petitioner. Therefore, there is no merit in the contention put forward by the learned Counsel for respondent 1. Issue No. 1 is accordingly decided against him. Issues Nos. 2 and 3 : 10. 9. In the present case the correct court-fee was paid on 4-6-1990 when this deficiency was brought to the notice of the petitioner. Therefore, there is no merit in the contention put forward by the learned Counsel for respondent 1. Issue No. 1 is accordingly decided against him. Issues Nos. 2 and 3 : 10. It has been fairly conceded by Shri Indar Singh, learned Counsel for respondent 1, that some of the averments as made In the election petition fully meet the requirements of law, specially sections 100 (1) and 101 of the Act, With respect to those averments, concise statement of material facts also stands given. However, there are other averments which do not fully meet the requirements of law If so, it is manifest that the election petition in any case will have to be proceeded with and decided at least keeping in view those averments which are complete. In other words, the election petition cannot be dismissed at the present stage of the proceedings. In view of the above position Shri Indar Singh, learned Counsel for respondent 1, has stated that he will have no objection in case the decision of issues 2 and 3 at the present stage of the proceedings is deferred but that parties heard and findings given in any case before recording of evidence on merits This would be necessary to cut short the evidence on averments which may not constitute corrupt practice’ as defined under the Act or which cannot be pressed into service for the reason that concise statement of material facts in relation thereto was not given at the proper time It is obvious that such a decision would be required to be given only if respondent 1 does not succeed in having the election petition dismissed in limine as a result of the other objections No exception can be taken to the above mode The hearing of the parties on these issues and the decision are consequently deferred. Issues Nos 4 and 5 : 11. Proviso to section 83 (1) (c) stipulates that the petition has to be accompanied by an affidavit in the prescribed form, where the petitioner alleges any corrupt practice, in support of the allegation of such corrupt practice and the particulars thereof Rule 94-A of the Conduct of Election Rules, 1961, says that the aforesaid affidavit shall in Form 25. 12. Proviso to section 83 (1) (c) stipulates that the petition has to be accompanied by an affidavit in the prescribed form, where the petitioner alleges any corrupt practice, in support of the allegation of such corrupt practice and the particulars thereof Rule 94-A of the Conduct of Election Rules, 1961, says that the aforesaid affidavit shall in Form 25. 12. It cannot be disputed that the affidavit attached with the petition is not in the prescribed form viz. Form 25, Another point to be noticed is that pursuant to some objections raised by the Registry at the time of scrutinising the petition pointing out certain defects in the affidavit, Shri Onkar Jairath, one of the learned Counsel for the petitioner, made certain additions and alterations in the original affidavit. It goes without saying that such changes could not be legally made in the absence of the petitioner and further that those in no circumstances could constitute part of the affidavit since the changes in question were not sworn to at all before the Oath Commissioner. At best, what can be said is that Shri Onkar Jairath made the changes without realising the legal implication involved. It may also be mentioned here that this was done by him pursuant to the objections raised by the Registry aid it appears as if it did not drawn upon the Registry also that this mode could not legally be adopted. Be that as it may, the most liberal view that can be taken of the matter at the present stage is to revert to the affidavit as originally filed along with the petition and to direct the enquiry only to that original affidavit for the purpose of finding out whether the requirement of proviso to section 83(l)(c)has been met or not. Here, the learned Counsel for the petitioner has also been asked whether he would like to argue the case on the basis of the affidavit as it was originally filed or whether he would like to file another affidavit in the prescribed form and remove the defect, assuming that it is a curable one. This query has been answered on behalf of the petitioner by saying that he is prepared to argue as it is but that he is also not averse to filing another affidavit fully meeting the requirements of Rule 94-A. 13. This query has been answered on behalf of the petitioner by saying that he is prepared to argue as it is but that he is also not averse to filing another affidavit fully meeting the requirements of Rule 94-A. 13. As regards the verification clause section 83 provides that the contents of the petition are to be signed and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The relevant provisions in the Code are contained in Order VI, Rule 15 thereof. Here also, Shri Onkar Jairath admittedly made some additions and alterations in the verification clause after the same were pointed out by the scrutiny section of the Registry. For the reasons already given above these changes cannot but be taken to be unauthorised and, therefore, will have to be ignored. A similar query as in the case of changes made in the affidavit was addressed to the learned Counsel for the petitioner which elicited a similar answer. 14. Before proceeding further, it would be appropriate to deal with the law pertaining to omission to verify an election petition as prescribed and further whether such omission or defect in verification would be a curable irregularity or require rejection of the petition under Order VII, Rule 11 of the Code of Civil Procedure. Learned Counsel for the parties have taken me through the case law on the point. It appears that the sum and substance of the law on the point, is that an election petition should be dismissed only due to a substantial defect and further that omission to verify or defect in verification is not such a substantial defect meaning thereby that it is an irregularity which can be cured. Reference in this connection may be had to Rohiteswar Saikia v. Tonu Kanwar and others, AIR 1990 Gau 41, which has followed Murarka Radhey Shyam Ram Kumar v Roop Singh Rathore and others, AIR 1964 SC 1545. If that is the position with respect to verification clause it cannot be different pertaining to affidavit referred to in the proviso to section 83 ( ) (c) of the Act. If that is the position with respect to verification clause it cannot be different pertaining to affidavit referred to in the proviso to section 83 ( ) (c) of the Act. The concise statement and particulars with respect to the allegations of corrupt practice have been given in the body of the petition If those allegations are sufficient to constitute corrupt practice as defined in the Act, merely because a defect in the affidavit has crept in should not be permitted to shut the door in the face of the petitioner for having his case adjudicated on merits and obtain justice. Such defects can be undoubtedly removed within a short time by affording an opportunity to that effect 15. In view of the reasons given above 1 direct the petitioner to amend the verification clause as also attach another affidavit in the light of the provisions of law brought out above within a period of two weeks from today. Issues Nos. 4 and 5 are decided accordingly. Issue No. 6 : 16. Respondent 1 has entered into the witness-box as RW I and has stated on oath that the only copy of election petition he received is Ex. R-2. It was accompanied by the copy of the notice Ex. R-l. He denied all suggestions in categorical terms about having received any other copy of the election petition in this case While addressing arguments, Mr. Indar Singh, learned Counsel for respondent 1, pointed out several variations in the original petition and the copy of the election petition R-2 in order to urge that R-2 is not the true copy of the election petition thus inviting the Court to dismiss the petition in limine in terms of section 86 of the Act. 17. It is not necessary to refer to the variations pointed out by Shri Indar Singh because respondent 1 is likely to fail as far as this issue is concerned on another ground. A perusal of the order made by the Court in this case on 25-6-1990 and the Registrar on the following day shows that the learned Counsel for respondent 1 was actually delivered a copy of the petition other than R-2 on 26-6-1990. The relevant portions of the aforesaid two orders may be reproduced per verbatim :— Order dated 25-6-1990 made by the Court : "Respondents 2, 3, 4 and 6 have been served in person. The relevant portions of the aforesaid two orders may be reproduced per verbatim :— Order dated 25-6-1990 made by the Court : "Respondents 2, 3, 4 and 6 have been served in person. Respondent 5 Milap Chand was located in his house but he did not accept the service and bolted the house from inside. This amounts to refusal to accept service of summonses Necessary affixation was done Therefore, respondent 5 also stands duly served Since none is present for respondents 2 to 6 today in the Court, they are proceeded ex parte. Respondent 1 has not filed the written statement It is stated by his learned Counsel Pt. Om Prakash that the copy of the election petition which was filed in the Court to be supplied to him has not been supplied but that another copy has been supplied. The parties would appear before the Registrar today at 3 30 p. m when the other copy would be furnished to Pt. Om Prakash. This order would, however, be subject to Just exceptions and objections which either of the party may raise in due course. At this stage Mr. O. P. Sharma prays for some time to file the written statement This be done within the next three weeks. The case be listed on July 16, 1990. Order dated 26-6-1990 made by the Registrar s "The copy of the petition as was earlier filed in the Registry and was sent to respondent under registered A. D. post which was received in the Registry undelivered, has been taken out of the record today and pursuant to the orders of the Honble Court, has been handed over to Pt. Om Prakash today. It contains 72 leaves. Be listed before the Honble Court on the date already fixed." A conjoint reading of the above two orders leaves no doubt whatsoever that respondent 1 took up the position before the Court on 25-6-H990 that the copy of the election petition meant for him had not been supplied to him till that date. In other words the copy which was delivered to him on 13-6-1990 by the Process Serving Agency and which was tendered into evidence as Ex. R-2 was not the copy which was meant to be actually supplied to him It was in view of the above position taken that the parties were directed to appear before the Registrar. In other words the copy which was delivered to him on 13-6-1990 by the Process Serving Agency and which was tendered into evidence as Ex. R-2 was not the copy which was meant to be actually supplied to him It was in view of the above position taken that the parties were directed to appear before the Registrar. It appears mat by that time one of the undelivered registered A. D. letters issued to respondent 1 had been received back in the Registry. It was that letter which was opened by the Registrar and the copy of the election petition contained therein delivered to learned Counsel for respondent 1. Now, the said copy has been withheld by respondent 1 inasmuch as it has not been tendered into evidence. Not only that, he has denied the very factum of having received it, which is not true. In the above circumstances, a safe presumption arises that the copy which was delivered on 26-6-1990 is the true copy of the election petition and that is why it has been withheld from the Court. The above reason is formidable enough to hold that respondent 1 cannot succeed on this Issue which is accordingly decided against him 18. The petitioner has been allowed IS days to amend the verification clause and attach a fresh affidavit in the prescribed form. This Court is dosing for Winter Vacations on 21-1-1991. In the circumstances it is ordered that this case be listed for further order immediately after the Winter Vacations when I am sitting singly. Order accordingly.