Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 186 (JK)

Ram Saroop v. Returning Officer

2001-09-05

R.C.GANDHI

body2001
1. Petitioner has filed this application under Order 6 Rule 17 of Civil Procedure Code seeking amendment of the affidavit annexed with this petition copy whereof has been served upon the other side. Upon considering the pleadings of the parties, the court, framed 10 issues on December 30th, 1997. Issue No. 3 reads:- "Whether the affidavit filed by the petitioner is not verified according to law, if so, what is its effect? OPR-3." 2. The court while framing the issues also directed that arguments shall be heard on Issue No. 1 to 6 being issues of law. At this stage learned counsel for the petitioner has filed the application seeking amendment of the verification of the affidavit. 3. Respondents have filed objections stating therein that the petition deserves to be dismissed as the defect of verification is patent and not curable. The application is preempting the courts from deciding the issues which have been set out for arguments. It is also stated that in case the application is entertained at this stage, it would conflict with the court order dated December 30th, 1997. The proposed affidavit filed with application is also defective and the application therefore, is liable to be dismissed. Alternatively it is stated that in case issue No. 1 is decided in favour of the petitioner, right be reserved with the answering respondent- 3 to address the court subsequently on the fate of the maintainability of the petition. 4. Heard the learned counsel for the parties and perused the record. 5. Election petition can be dismissed as mandated by Section 97 of the Jammu and Kashmir Representation of People Act, 1957, (for short "the Act") which does not satisfy the provisions of Sections 89,90 and 125 of the Act. Section 89 deals with the presentation of the petition. Section 90 provides for parties to the petition whereas Section 125 mandates security for courts to be deposited at the time of presentation of election petition in the court. The amendment sought for verification of the affidavit annexed with the election petition does not fall within the ambit of these provision of law warranting dismissal of the election petition because of defect of verification in the affidavit. 6. The amendment sought for verification of the affidavit annexed with the election petition does not fall within the ambit of these provision of law warranting dismissal of the election petition because of defect of verification in the affidavit. 6. Learned counsel for the respondents has submitted that the petitioner has not stated in the application seeking amendment as to what were the circumstances which prevented the petitioner not to record the proper and correct verification of the affidavit and what is the cause to approach the court which was not available earlier. Though this plea has substance yet it is not entertainable for the simple reason that it is legal mistake committed which is discernable from the averments of the application. Correction and amendment of verification is not incurable defect. Counsel for the respondents could not support with any law that because of such defect, the petition is liable to be dismissed. His other submission is that the proposed affidavit counting verification is defective in law. In case it is made out finally at the time of final hearing, even after allowing this application that the amended verification of the affidavit is not in consonance with the provisions of law, this argument can be taken and pressed by the respondents at the time of final hearing of the petition and can be dealt with accordingly. 7. Clause (c) of sub-section (1) of section 91 of the Act mandates that the contents of the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure Samvat 1977 (Act X of 1977) for the verification of pleadings; proviso to this section reads:- "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 practices and the particulars thereof." 8. Section91 is to be read with Rule 94-A of the Jammu and Kashmir Conduct of Election Rules 1965 which reads:- "94-A. Form of affidavit to be filed with election petition.- The affidavit referred to in the proviso to sub-section (1) of section 91 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form 25." 9. The controversy before the court is limited to the extent that as to whether the defect in verification is curable and affidavit can be permitted to be verified by amendment in accordance with law. The Supreme Court in T.M Jacob Vs. C. Poulose & Ors. (AIR 1999 SC 1359) while dealing with the curability of the defect in the copy of the affidavit filed in Form 25 has held as under:- "We are unable to agree with Mr. Salve that since proceedings in election petition are purely statutory proceedings and not "civil proceedings" as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into Section 86 (1) read with section 81 (3) of the Act. It is too late in the day to so urge. The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr. Salve. That apart, to our mind, the Legislative intent appears to be quite clear, since it divides violations into two classes-those violations which would entail dismissal of the election petition under Section 86 (1) of the Act like non-compliance with Section 81(3) and those violations which attract Section 83 (1) of the Act i.e. non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expressed in Muraka Radhey Shyam (AIR 1964 SC 1545) and Ch.Subbaraos cases (AIR 1964SC 1027). The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. This position clearly emerges from the provisions of Sections 83 (1) and 86 (5) of the Act." 10. Sections 83 and 86 correspond to Sections 91 and 94 of the State Act. The Supreme Court while dealing with the proposition where copy of affidavit supplied to the respondents did not contain endorsement of attestation in Anil R. Deshmukj Vs. Onkar N. Wagh (AIR 1999 SC 732) has held: "17. It is to be noticed that the reference is only with regard to the applicability of Dr. (Smt) Shipra in cases like the one which arose before the said Bench. Onkar N. Wagh (AIR 1999 SC 732) has held: "17. It is to be noticed that the reference is only with regard to the applicability of Dr. (Smt) Shipra in cases like the one which arose before the said Bench. In the light of the rulings of the Constitution Bench referred to earlier, we have our own reservations on the correctness of the view expressed in Dr. (Smt) Shipras case (1996 AIR SCW 1772) (supra) but it is unnecessary in the present case to dwell on the same. As pointed out earlier, Justice Ramaswamy has confined the ruling to the "fact-situation" in that case. In so far as the present case is concerned, there is a distinguishing factor which makes the ruling in Dr. (Smt) Shipras case (supra) inapplicable. We have already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case, the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance of the provisions of Section 81 (3) read with Section 83(1) (c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act. Unfortunately, this aspect of the matter has been completely ignored by the High Court. Hence the order of the High Court dismissing the election petition in lamine is unsustainable." 11. In case titled Vijay Laxmi Sadho Vs. Jagdish (AIR 2001 SC 600) Supreme Court while dealing with the plea that defective verification of the affidavits filed with the Election Petition in support of allegation of corrupt practice renders the petition not maintainable has observed as under:- "An election petition, is liable to be dismissed in limine under Section 86 (1) of the Act only if the election petition does not comply with either of the provisions of Section 81 or Section 107 of the 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. 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. Thus an election petition in not liable to be dismissed in limine under Section 86 of the Act for alleged non-compliance with provisions of Section 83 (1) of the Act or its proviso. What other consequences, if any, may follow from an allegedly defective affidavit, is 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. Defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under Section 96(1) of the Act. 12. It is thus held that the defect in verification of the affidavit is curable and because of this defect the petition is not liable to be dismissed. 13. For the aforesaid reasons, this application is allowed and the proposed affidavit containing amended verification is permitted to be placed on record. 14. Whether the amended verification of this affidavit is in accordance with law, the right of the respondents to agitate it at the time of final hearing is reserved as submitted an alternative ground, in case the application is allowed, it shall be taken into consideration if pressed.