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2003 DIGILAW 805 (AP)

Lagadapati Venkaiah v. PPRINCIPAL JUNIOR CIVIL JUDGE CUM ELECTLON TRIBUNAL, PARCHUR, PRAKASAM DISTRICT

2003-06-27

GHULAM MOHAMMED

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GHULAM MOHAMMED, J. ( 1 ) THIS writ petition has been filed challenging the order dated 28-3-2002 passed by the 1st respondent in I. A. No. 999 of 2001 in O. P. No. 5 of 2001 and consequently seeks a direction to the respondent to restore the O. P. to its file. ( 2 ) A few facts leading to filing of the present writ petition are as follows: pursuant to the election notification issued on 1-8-2001, the petitioner and the respondents 2 to 4 have filed nominations to the post of Sarpanch and their nominations were declared as valid. The election was held on 14-8-2001 and the 2nd respondent was declared as elected to the post of sarpanch of the village. Aggrieved by the declaration of election, the petitioner filed o. P. No. 5 of 2001 under the provisions of andhra Pradesh Panchayat Raj (Election tribunals in respect of Gram Panchayats, mandal Parishads and Zilla Parishads) rules, 1995, (for short "the Rules"), before the Election Tribunal-cum-Junior Civil judge, Parchur to declare the election of the 2nd respondent as illegal and void. ( 3 ) THEREAFTER, pursuant to the notices issued by the Election Tribunal the respondents herein filed I. A. No. 999 of 2001 under Rule 5 (ii) of the Rules read with section 86 of the Representation of the people Act (for short "rp Act"), with a relief to dismiss the election petition filed by him alleging that there were defects in the election petition. The Election Tribunal allowed the I. A. and dismissed the O. P. Hence, the present writ petition has been filed by the petitioner. ( 4 ) A counter-affidaviat is filed by the 2nd respondent alleging that the 2nd respondent raised objections not only as to depositing of the amount of Rs. 100. The Election Tribunal allowed the I. A. and dismissed the O. P. Hence, the present writ petition has been filed by the petitioner. ( 4 ) A counter-affidaviat is filed by the 2nd respondent alleging that the 2nd respondent raised objections not only as to depositing of the amount of Rs. 100. 00 in respect of each candidate but also to the service of copy of the petition duly attested by the petitioner, but it is not correct to say that the petition was dismissed only on the ground that there is no signature on the served copy of the petition as required under the provisions of the R. P. Act and that the Tribunal has considered the factum of non-compliance with the provisions of Rule 3 (ii) of the Rules as the petitioner failed to verify the petition as prescribed for the verification of the pleadings in the Code of Civil Procedure, 1908. It is further stated that the first respondent gave the finding that there is no proper verification of the pleadings in accordance with the Order 6 Rule 15 of the cpc. The allegation that due to oversight/ typographical mistake in the place of paragraphs "i to IV", it was missed to add "1 to", to entire reading of the para would clearly show that the same was invented only for the purpose of the present writ petition. It is stated that no such contention was raised before the Election Tribunal when the matter was take up for decision and it was not open to the writ petitioner to come up with a new pleading for the first time in the writ petition. ( 5 ) THE Tribunal held that the provisions of Sections 81 (3) and 86 of the RP Act were not complied with. The learned Tribunal further observed that though the petitioner has given separate affidavit with regard to the verification of the pleadings, but according to Order 6 Rule 15 of the CPC the verification shall be on the foot of the petition but not on a separate sheet, hence there is no proper verification of the pleadings. ( 6 ) LEARNED counsel for the petitioner vehemently contended that requirement of order 6 Rule 15 of the Code of the Civil procedure is a curable defect and that the Tribunal ought not to have allowed the application instead of going on technicalities. ( 6 ) LEARNED counsel for the petitioner vehemently contended that requirement of order 6 Rule 15 of the Code of the Civil procedure is a curable defect and that the Tribunal ought not to have allowed the application instead of going on technicalities. In support of his contention he has drawn my attention to the judgment of the learned single Judge of this Court reported in Avagadda Pinnam Naidu v. Vanisimhadriappadu and others, and the judgments of the Supreme Court reported in vijaya Laxmi Sadho v. Jagdish, H. D. Revanna v. G. Puttuswamy Gowda. ( 7 ) HE further contended that the Tribunal was constituted under the provisions of the andhra Pradesh Panchyat Raj (Election tribunals in respect of Gram Panchyats, mandal Parishads and Zilla Parishads) rules, 1995 vide G. O. Ms. No. 111 dt. 3-3-1995 and these rules are to be adhered by the tribunal and that the defects in filing the application are curable defects and that provisions of RP Act are not applicable with regard to Sarpanch election. ( 8 ) ON the other hand learned counsel for the respondents Mr. Ganta Rama Rao mainly contended that with regard to verification of the pleadings as per Order 6 rule 15 of the CPC the verification shall be on the foot of the petition but not on a separate sheet, and that Rule 3 (2) of the rules is mandatory requirement, therefore, the impugned order passed by the Tribunal does not warrant any interference by this court ( 9 ) THE Tribunal observed that the writ petitioner has not complied with the provisions of Section 81 (3) of the RP Act in not filing the served copy into court and that as required under Section 86 of the Act all the copies of documents in support of the petition have not been sent to other side. The tribunal held that there is no proper verification of the pleadings as per Order VI rule 15 of the CPC. The Tribunal however negatived the contention of the 2nd respondent herein with regard to depositing of sufficient security deposit. The tribunal held that there is no proper verification of the pleadings as per Order VI rule 15 of the CPC. The Tribunal however negatived the contention of the 2nd respondent herein with regard to depositing of sufficient security deposit. ( 10 ) IN the counter affidavit the respondent specifically stated that it is not correct to say that the petition was dismissed only on the ground that there is no signature on the served copy of the petition as required under RP Act and that the Tribunal has considered the factum of non- compliance with the provisions of Rule 3 (ii) of the Rules as the petitioner failed to verify the petition as prescribed for the verification of the pleadings in the Code of Civil procedure, 1908. In the circumstances, the question that falls for consideration is as to whether the defects so pointed out are curable or not and whether the Tribunal is right in dismissing the O. P. at this stage. It is apt to quote Rule 3 (ii) of the Rules which reads as follows:" (II) The petition shall contain a statement in concise form, the material facts on which the petitioner relies and the particulars of any corrupt practices which he alleges and shall, where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and verified in the manner prescribed for verification of pleadings in the Code of Civil procedure, 1908. "it is also apt to consider Order 6 Rule 15 of the CPC which is extracted hereunder:" (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. (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. " ( 11 ) OBVIOUSLY the improper verification and attestation are mere procedural defects and the same are curable defects. The object of Order 6 Rule 15 has to be looked into in this regard and any defect in verification of pleadings can be cured at a later stage. In that view of the matter, the Tribunal ought not to have dismissed the O. P. at that stage. ( 12 ) IN Avagadda Pinnam Naidu s case (supra), the learned counsel for the petitioners therein relying on the judgment of the Supreme Court in Harcharan Singh jogh v. Hari Kishan and the other by the Delhi High Court in Mukhtiar Singh v. Chief Election Officer contended that the requirement of attesting and verifying the copies served on the respondents in an election Petition is mandatory requirement; also the requirement to file an affidavit wherever there is an allegation of corrupt practice and the learned Election Tribunal erred in dismissing the Interlocutory applications. Considering those circumstances it was observed by the learned single Judge of this Court that attestation and verification of the copies of the election petition to be served on the respondents and also filing of affidavits in support of the corrupt practices alleged in the election petition are not mandatory in the absence of such provisions either in the panchayat Raj Act or the Rules made thereunder similar to those contained in section 81 (3) of the Representation of the people Act. The relevant portion of the order reads as under:"no such mandatory provisions are brought to my notice insofar as the a. P. Panchayat Raj Act, 1994 or the relevant rules made thereunder. In the absence of such mandatory provisions, the principles laid down by either by supreme Court or the Delhi High court while interpreting the provisions of Representation of the People Act, 1951 cannot be straightaway imported into the election petitions under the a. P. Panchayat Raj Act. In the absence of such mandatory provisions, the principles laid down by either by supreme Court or the Delhi High court while interpreting the provisions of Representation of the People Act, 1951 cannot be straightaway imported into the election petitions under the a. P. Panchayat Raj Act. The fact remains that all the rights including the right to challenge and defend an election or creation of a statute and those rights are required to be adjudicated only on the language of the enactment, which created those rights. In the circumstances, I do not see any merit in these petitions. Both the revision petitions are accordingly dismissed at the admission stage. " ( 13 ) THE Supreme Court in Vijaya Laxmi sadho s case (supra) has held as under:"an election petition is liable to be dismissed in limine under S. 86 (1) of the act only if the election petition does not comply with either of the provisions of S. 81 or S. 82 or S. 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 S. 83 (1) of the act. Thus, an election petition is not liable to be dismissed in limine under s. 86 of the Act, for alleged non- compliance with the provisions of s. 83{1) of the Act or of 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 S. 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 S. 86 (1) of the Act. "the Supreme Court further held as follows: in F. A. Sapa v. Singora, (1991) 3 SCC 375 : (1991 AIR SCW 1492: AIR 1991 SC 1557 ) a three-Judge Bench of this Court specifically dealt with an issue concerning the defects in the verification of an election petition as well as of defects in the affidavit accompanying an election petition wherein allegations of corrupt practice are made. After considering the provisions of Sections 83, and 86 of the act, as also the requirements of Form no. After considering the provisions of Sections 83, and 86 of the act, as also the requirements of Form no. 25 prescribed by Rule 94-A of the rule and relevant provisions of the code of Civil Procedure, it was held (Para 27 of AIR):"from the text of relevant provisions of the R. P. Act, 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the 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 (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed From 25 can be cured. . . . . . This judgment was followed by a division Bench of this Court in h. D. Revanna v. G. Puttaswamy ( AIR 1999 SC 768 )". ( 14 ) IN the circumstances, following the judgment of the Apex Court in Vijay Laxmi sadho s case (supra), the impugned order is set aside and the writ petition is allowed holding that the defects so pointed are curable defects. The petitioner if he is so advised is at liberty to take appropriate steps to rectify the defects. The Election Tribunal shall dispose of the election petition on merits expeditiously preferably within a period of six weeks from the date of receipt of a copy of this order. ( 15 ) ACCORDINGLY the writ petition stands allowed. No costs.