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Himachal Pradesh High Court · body

2003 DIGILAW 295 (HP)

DESH RAJ v. BODH RAJ

2003-09-26

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J. :- This order is meant to dispose of the following preliminary issues framed in this Election Petition : I. Whether complete and attested true copy has not been served on the respondent if so, its effect ? OPR II. Whether the petition is liable to be dismissed for want of supply of copies of the documents filed by the petitioner with the petition OPR K III. Whether the petition is liable to be dismissed for want of filing an affidavit, as alleged in preliminary objection No. 4 of the reply ? OPR 2. Brief facts relevant for the purpose of disposal of these issues are that the petitioner has filed this Election Petition under Sections 80, 81 read with Section 100 of the Representation of People Act, 1951 (hereinafter referred to as the Act) for declaring the election of the respondent from 35-Gangath (S.C.) Assembly Constituency in Himachal Pradesh as void on the ground that the said assembly constituency was reserved for the Scheduled Caste candidate whereas the respondent was not qualified to contest the election because he is Tarkhan by caste which is not a Scheduled Caste. Thus his nomination form was wrongly and illegally accepted and his election to the assembly from the aforesaid constituency is void and liable to be set aside. 3. The respondent contested the petition. In his written reply he raised the preliminary objections that complete and attested true copy of the petition has not been supplied to him, that the petition is liable to be dismissed for want of supply of copies of the documents filed with the petition to him and that the petition deserves dismissal for want of filing an affidavit with the petition as required under Order 6 Rule 115(4) of the Code of Civil Procedure (hereinafter referred to as the Code1). 4. On the basis of the aforesaid preliminary objections, the aforesaid issues were framed. Since the parties stated that no evidence was to be led by them on these issues, therefore, these issues are ordered to be treated and disposed of as preliminary issues. 5. I have heard the learned Counsel for the parties and have also perused the relevant records. 6. My findings on the aforesaid issues are as follows:- Issue No. 1 7. 5. I have heard the learned Counsel for the parties and have also perused the relevant records. 6. My findings on the aforesaid issues are as follows:- Issue No. 1 7. It is a question of fact as to whether complete and attested true copy of the petition had been served on the respondent or not. The respondent, in his reply claimed that such copy had not been served on him. However the respondent, on 26.8.2003, expressed the intention not to lead any evidence to prove this issue. Even at the time of arguments, the copy of the petition received by the respondent has not been produced for perusal muchless to point out that it was not attested to be true copy or it was not complete for any reason whatsoever nor it was pointed out as to in what respect the copy of the petition furnished on the respondent is incomplete. Thus, the respondent has failed to prove this issue which is accordingly held against the respondent. Issue No. 2 8. It is also a question of fact as to whether copies of the documents filed with the petition had or had not been supplied to the respondent. On 26.8.2003, the respondent expressed the intention not to lead evidence in support of this issue. Therefore, there is nothing whatsoever to show that copy, if any, of any document, has not been furnished to him. Neither it is specifically pleaded in the reply nor was pointed out at the time of arguments as to copies of which document(s) filed with the petition has not been furnished to him. Thus, the respondent has failed to prove this issue also which is accordingly held against him. Issue No. 3 9. It was contended by the learned Counsel for the respondent that Section 83 of the Act specifically provides that an election petition shall be signed and verified in the manner as laid down in the Code and Order VI Rule 15(4) of the Code provides that the person verifying the pleadings shall also furnish an affidavit in support of the pleadings. Therefore, the petitioner, apart from verifying the pleadings, was bound to furnish an affidavit in support of his pleadings in the petition which he has failed to do. Therefore, the petition is not competent and maintainable. 10. Therefore, the petitioner, apart from verifying the pleadings, was bound to furnish an affidavit in support of his pleadings in the petition which he has failed to do. Therefore, the petition is not competent and maintainable. 10. On the other hand, learned Counsel for the respondent, contended that as per the provisions of Section 8(1)(c) of the Act, which is a self contained Statute, the petitioner is required to sign and verify the pleadings and requirement of filing an affidavit is only if there are allegations of corrupt practice in the petition. Since in this petition, there are no allegations of corrupt practices, therefore, an affidavit was not required to be filed and the requirement of Section will be complied with by verifying the contents of the petition which has been duly done. 11. In the alternative, it was contended that even if it is found that affidavit, as required under Order 6 Rule 15(4) of the Code was required to be filed, even then the non-filing of the affidavit, is not fatal to the petition and the omission can be supplied without any prejudice to the maintainability of the petition. 12. The relevant provisions of Section 83 of the Act which provides for signing and verifying the election petitions, reads as under :- "83. Contents of petition -: An election petition (a) and (b) xxxxxxx (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. 13. In view of the above provisions, the petitioner has to sign and verify the pleadings in the manner as laid down under the Code. However in a case where the petitioner alleges corrupt practice, he is required to file an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. This was the additional requirement of verifying the election petition which was over and above the manner prescribed for verifying the pleadings under the Code as in force at the time of coming into force of the Act. 14. This was the additional requirement of verifying the election petition which was over and above the manner prescribed for verifying the pleadings under the Code as in force at the time of coming into force of the Act. 14. The Code was amended by the Code of Civil Procedure (Amendment) Act, 1999 (hereafter referred to as the Amendment Act) whereby Sub-Rule (4) was inserted in Order 6 Rule 15 of the Code. Thus, after the amendment, Order 6 Rule 15 of the Code, as now in force, reads as under :- "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." 15. The above amended provisions providing for verification of pleadings under the Code now provides for filing of an affidavit by the person verifying the pleadings in support of the pleadings apart from signing and verifying the pleadings. Therefore, in view of the provisions of Section 83(1) (c) of the Act, the question as to whether the verification of the election petition must be in the manner as provided after the amendment of the Code or sub-Rule (4) supra, will not apply to the election petition. 16. As is clear from the provisions of Section 83(1) (c) supra, that an election petition has to be verified in the manner laid under the Code. Therefore, the provisions of Order 6 Rule 15 of the Code will decidedly govern and regulate the manner of verifying an election petition because the Act itself provides for verification of election petitions in the manner provided by the Code. There is nothing repugnant in the Act to the newly inserted sub-rule (4) of Rule 15 of Order 6. Therefore, the provisions of Order 6 Rule 15 of the Code will decidedly govern and regulate the manner of verifying an election petition because the Act itself provides for verification of election petitions in the manner provided by the Code. There is nothing repugnant in the Act to the newly inserted sub-rule (4) of Rule 15 of Order 6. Thus, on a combined reading of the aforesaid provisions of the Act and the Code, an election petition is required to be verified in the manner laid in Rule 15 of Order 6 thereof, the person verifying the election petition is required to furnish an affidavit in support of the averments made in such petition. 17. In the case in hand, admittedly, the petitioner, who has verified the petition, has not filed affidavit in support of the averments made therein. Therefore, the petition is not verified in accordance with the relevant provisions of law and the verification is, thus, rendered defective. 18. The next question which arises for determination is whether the defect in the verification, as pointed out hereinabove, is fatal to the petition? The settled law insofar as the questions relating to the verification of the pleadings under the Code is concerned, is that the defect in verification is not fatal and the omission to verify or wrongly verify the pleadings is merely an irregularity and not an illegality. There is no provision even in the Act providing for dismissal of an election petition because of such an irregularity. 19. Section 86 of the Act specifically provides for dismissal of an election petition which does not comply with the provisions of Sections 81 or 82 or 117 of the Act. The non-compliance of the provisions of Section 83 does not entail dismissal of a petition under Section 86 of the Act. Had the legislature intended that an election petition, which does not comply with the provisions of Section 83(1)(c) of the Act, should be dismissed, similar provisions as made regarding non-compliance of Sections 81, 82, and 117 of the Act could be made about non-compliance of Section 81(1)(c) of the Act. Thus, the defect in the verification of an election petition cannot be treated on a footing other than such defect in the verification of pleadings in a suit. Thus, the defect in the verification of an election petition cannot be treated on a footing other than such defect in the verification of pleadings in a suit. As already stated hereinabove, a defect in the pleadings in the suit is not fatal to the suit but is merely an irregularity which can be cured. Therefore, the defect in the verification of the present petition being an irregularity is not fatal to the petition but is curable. 20. It was contended by the learned Counsel for the respondent that steps for curing the defect in the verification of the petition, at this stage, is impermeable in law, because verification of a petition cannot be done after expiry of limitation for filing the petition which has already expired. 21. The question of limitation will arise only with regard to adding of a substantive ground of attack in the pleadings but will not apply to the verification of pleadings. 22. In Makhu Lal v. Bachcha Pathak, AIR 1992 Allahabad 358, it was held as under:- "4. Order 6, Rule 15, C.P.C. deals with verification of pleadings. This rule is divided into three parts, the first part begins save as otherwise provided by any other law for the time being in force and then process to add that every pleading shall be verified by the party or by one of the parties or by some other person acquainted with the facts of the case, second part posits that every person verifying shall specify what he verifies of his own knowledge and what he verifies upon information received or believed to be true by reference to paragraphs numbers and third part states that the verification shall be signed by any party making it. Never the defect in verification has been held to be fatal. 5. This question directly, came up for consideration in Murarka Radhey Shyam v. Roop Singh Rathore, AIR 1964 SC 1545. In that case one of the defects pointed out was that though the verification stating that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advised and information received from legal and other sources, the petitioner did not say in so many words that the advice and information received was believed by him to be true. Uphold view of the Election Tribunal that the defect was curable, the Supreme Court said that, it is impossible to accept the contention that defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Clause (c) of sub-section (1) of Section 83 is fatal to the maintainability of the petition. 6. It is thus clear that the mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown solely on that ground. The instant petition though has been verified but only the schedules 1 to 6 attached to the petition have not been verified. When the petition itself cannot be dismissed on account of defect of verification, the petition a fortiori, cannot be dismissed on account of defect in the verification of the schedules appended to the petition. 7. Recently this question came up again in F.A. Sapa v. Sinagore, AIR 1991 SC 1557: 1991 AIR SCW 1492 decided with other cases. In that case, particulars and details of the corrupt practices were contained in para 4 to 40. In the verification clause, para Nos. 3, 16, 17, 25, 31 and 39 were not verified at all. Then that question arose whether the election petitions liable to be dismissed on ground on non-verification of the aforesaid paragraphs. Examining a catena of authorities and relevant provisions as contained in the Act, 1951. Rules framed thereunder, provisions in the C.P.C. etc. the Supreme Court enunciated in para 27 at page 1574 that (1) the defect in the verification, if any can be cured (2) it is not essential that the verification clauses at the foot of the petition of affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true and (3) the defect in the affidavit in the prescribed form 25 can be cured, unless the affidavit forms integral part of the petition in which case the defect concerning material facts will have to be dealt with, subject to limitation, under Section 81(3). In para 28 at page 1575, the Supreme Court reiterated that even though ordinarily defective verification can be cured and failure to disclose the ground or source or information may not be fatal, the failure to place them on record with promptitude may lead the Court in a given case to debut the veracity of the evidence ultimately tendered. 23. In Avtar Singh v. Harcharan Singh Brar and others, AIR 1994 Punjab and Haryana 161, it was held as under :- "9. Taking the point of verification first, it may be stated at the outset that the petition has not been duly verified as per legal requirements. The question arises as to what is the effect of defect in verification on the maintainability of the petition. Counsel for the petitioner argued that mere defect in the verification of petitioner is not fatal to the maintainability of the petition and for this purpose he relied upon a judgment of the Supreme Court in F.A. Sapa v. Singore, AIR 1991 SC 1557, where their Lordships of the Supreme Court held as under (at pp. 1570-71 of AIR): "It must at the outset be realised that Section 86(1) which lays down that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 does not in terms refer to Section 83. It-would, therefore, seem that the legislature did not view the non-compliance of the requirement of Section 83 with the same gravity as in the case of Section 81, 82 or 117. But it was said that a petition which does not strictly comply with the requirements of Section 83 cannot be said to be an election petition within the contemplation of Section 81 and hence Section 86(1) was clearly attracted. In Murarka Radhey Shyam v. Roop Singh Rathore, 1964(3) SCR 573: AIR 1964 SC 1545 one of the defects pointed out was that through the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal a need other sources, the petition did not in so many words state that the advice and information received was believed by him to be true. The Election Tribunal held that this defect was a matter which came within Section 83(i)(c) and the defect could be cured in accordance with the principles of the Code. This Court upheld this view in the following words (at p. 1549 of AIR); "It seems clear to us that reading the elevation sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Clause (c) of sub-section (1) of Section 83 is fatal to the maintainability of the petition. It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since Section 83 is not one of three provisions mentioned in Section 86(1),ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Section 81." 24. In view of the ratio in the aforesaid cases, the view that defect in the verification of the petition is not fatal to the petition, is fully supportable. 25. Therefore, it is held that the petition, though not verified strictly in accordance with the provisions of Order 6 Rule 15 of the Code, the defect is not fatal to the petition. This issue is accordingly decided. -