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2001 DIGILAW 500 (MP)

KIRT RAM SINGH v. SEWA RAM

2001-07-13

S.P.SRIVASTAVA

body2001
S. P. SRIVASTAVA, J. ( 1 ) HEARD Shri R. D. Jain, Senior Advocate, learned counsel for the applicant, and Shri Rameshwar Bhargava, learned counsel representing respondent No. 1. ( 2 ) THIS is an application presented on 15-3-2001 praying for recalling of the order dated 21-1-2000 whereunder the allegations regarding corrupt practices against respondent No. 1 were struck off. It may be noticed that vide the order dated 21-1-2000 the allegations of corrupt practices as contained in paragraph 1-B (a) (i), (ii), (iii), (iv) and grounds B (i), (ii) and (iii) had been directed to be struck off from the election petition with a further direction that Annexures R-1 to R-8 shall not be taken into consideration and utilised against the respondent No. 1. Under the same order the prayer made in the application, I. A. No. 7661/99, for taking on record the affidavit and the copy of the election petition which has been submitted all over again along with a new affidavit was rejected. ( 3 ) THIS Court in its aforesaid decision placing reliance on the decision of the Apex Court in the case of Dr. Smt. Shipra v. Shantilal Khoiwal, reported in AIR 1996 SC 1691 and other decisions of the Apex Court had held that the affidavit filed in support of the election petition including copies of the affidavit had to be taken as integral part of the election petition. In the case of Dr. Smt. Shipra (supra) the Apex Court taking into consideration the implications arising under S. 83 (1) along with S. 83 (2) thereof, had held that the affidavit referred in the proviso to S. 83 (1) also forms part of the election petition and that the election petition is in truth and reality one document consisting of two parts i. e. one being election petition proper and the other being the affidavit referred to in the proviso to S. 81 (1) of the Act. It was also observed that the copy of election petition required to be filed under S. 81 (3) read along with S. 83 has to include a copy of the affidavit. The Apex Court in this connection referred to its earlier decision in the case of M. Kamalam v. Dr. It was also observed that the copy of election petition required to be filed under S. 81 (3) read along with S. 83 has to include a copy of the affidavit. The Apex Court in this connection referred to its earlier decision in the case of M. Kamalam v. Dr. V. A. Syed Mohammad, reported in AIR 1978 SC 840 , at page 844, and it was observed that in case the copies of the affidavit are not faithful and do not include the endorsements, a valuable right of the respondent is taken away and considering the purpose which the copy of the endorsement would serve, it could not be said that this portion was not the integral part of the affidavit. ( 4 ) IT may further be noticed that in a decision rendered by a bench of three Hon'ble Juidges of the Apex Court in the case of F. A. Sapa v. Singora reported in (1991) 3 SCC 375 , it was clearly indicated in paragraph 28 of the judgment that the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under S. 81 (3 ). In paragraph 29 of the aforesaid decision it was emphasised that a charge of corrupt practice has a two-dimensional effect its impact on the returned candidate has to be viewed from the point of view of the candidate's future political and public life and from the point of view of the electorate to ensure the purity of the election process, indicating further, that in the circumstances there can be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of S. 83 before the parties go to trial. Further, it was indicated that the affidavit or the schedule or annexure forms an integral part of the election petition itself, strict compliance will be insisted upon. ( 5 ) IN the present case the question about bringing on record the fresh affidavit filed by the petitioner in a bid to cure the defect had been considered in detail in the earlier order of this Court dated 21-1-2000. ( 5 ) IN the present case the question about bringing on record the fresh affidavit filed by the petitioner in a bid to cure the defect had been considered in detail in the earlier order of this Court dated 21-1-2000. Further, the defect was not in the verification only but the affidavit did not comply with the mandatory requirement about mentioning of particulars of corrupt practices and the name of the corrupt practices. ( 6 ) FROM what has been indicated hereinabove, taking into consideration the ratio of the decisions of the Apex Court referred to hereinbefore, there can be no escape from the conclusion that the affidavit had to be treated, in the facts and circumstances of the case, to be an integral part of the election petition itself. Further, the application, I. A. No. 7653/99, seeking to bring on record a fresh affidavit has already been rejected and that order has since been attained finality. ( 7 ) IN view of what has been indicated hereinabove, I do not find any justifiable ground for the recall of the order dated 21-1-2000 as prayed for. This application, in the circumstances, is rejected. ( 8 ) LEARNED counsel for the parties have prayed for a short adjournment. ( 9 ) AS prayed, list on 27/07/2001 for framing of issues. Order accordingly. .