Judgment ( 1. ) THIS order shall govern decision of preliminary issues. ( 2. ) IN this petition, under Section 80 read with S. 81 and S. 100 of the Representation of the People Act, 1951 (for brevity ?the Act?), election of the returned candidate viz. the respondent to the udaipura Legislative Assembly Constituency has been challenged inter alia on the ground of corrupt practices. The corresponding notice was served on Durgesh, the son of the respondent, on 18. 05. 2007. Thereafter, on 13. 08. 2007 along with written statement, the respondent filed an application, under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as ?the code?) read with Section 86 of the Act, for rejection of the election petition due to non-compliance with various statutory requirements. However, taking into consideration the nature of objections and the legislative mandate contained in Section 86 (7) of the Act to conclude election trial within a specified period, vide order-dated 10. 01. 2008, direction was given to treat the objections raised by the respondent in her written statement and re-projected in the application as preliminary issues. Accordingly, the following questions were framed. The corresponding answer is noted against each one of them : no. Issue Finding (1) Whether the election petition as framed and filed lacks in statement of material facts and particulars ? the petition lacks in material facts as to the corrupt practice relating to excess expenditure but is maintainable in respect of the other corrupt practices as alleged. (2) Whether the petition alleges the respondent to have resorted to corrupt practices or to have been undertaken with her consent ? No (3) Whether the petition as framed and filed is in compliance of Section 83 of the Representationof Peoples Act, 1951 (for short the Act?) ? the petition is defective only as to the corrupt practice relating to excess expenditure (4) Whether the copy of the election petition supplied to the respondent, complies with the requirements of Section 81 (3) of the Act ? yes (5) Whether there is contradiction in the verification clause and the affidavit vis-?-vis the allegations made relying upon the ?information received? or ?the petitioner?s knowledge? fatally affecting the affidavit filed in support of the petition ? yes (5) Whether there is contradiction in the verification clause and the affidavit vis-?-vis the allegations made relying upon the ?information received? or ?the petitioner?s knowledge? fatally affecting the affidavit filed in support of the petition ? no (6) Whether the petition deserves to be dismissed at the outset, without trial, for the aforesaid latent and patent defects, and nonfulfillment of mandatory requirements of law ? no reasons FOR THE FINDINGS issue NO. 4 ( 3. ) ACCORDING to the respondent, the copy of the petition, as supplied to her, is neither attested nor verified as true copy by the petitioner. For this, attention has been invited to the fact that amongst the copies of the petition and affidavits annexed thereto, the certification ?t. C. ? is available only on the photocopy of the affidavit in Form 25, appended to the Conduct of the Election Rules, 1961 (for short ?the Rules? ). However, the fact of the matter is that the petition was entertained only after perusing the report of the officer of the Registry to the effect that it was found free from any noticeable defect. The relevant Rule made by this Court, in exercise of the powers conferred by Article 225 of the Constitution of India, reads : Every Election Petition shall be ? (a)typewritten or printed fairly and legibly on white foolscap size paper of reasonable quality, one side of the paper only being used, leaving a quarter margin on the left and at least ? inches open space on the top and bottom of each sheet; (b)written in the English language, numbering separately the paragraphs thereof; (c)couched in proper language, and in conformity with section 81, 82 and 83 of the Representation of the people Act, 1951?. ( 4. ) SUB-SECTION (3) of Section 81 of the Act mandates that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. ( 5. ) THE report of the Registry as to checking of the petition raises a presumption, though rebuttable, that the copy of the petition as filed by the petitioner was a true copy (Chandrakant Uttam chodankar vs. Dayanand Rayu Mandrakar (2005) 2 SCC 188 referred to ). ( 5. ) THE report of the Registry as to checking of the petition raises a presumption, though rebuttable, that the copy of the petition as filed by the petitioner was a true copy (Chandrakant Uttam chodankar vs. Dayanand Rayu Mandrakar (2005) 2 SCC 188 referred to ). In that case, the following observations made by the constitution Bench in T. M. Jacob vs. C. Poulose (1999) 4 SCC 274 were quoted :-? (a) the expression ?copy? in Section 81 (3) of the act means a copy which is substantially the same as the original, variation if any from the original should not be vital in nature or should not be such that can possibly mislead a reasonable person in meeting the allegation; (b) if the copy differs in material particulars from the original the same cannot be cured after the period of limitation. ? in T. M. Jacob?s case (supra), the law on the subject was explained in these terms: ?it is only the violation of Section 81 of the Act, which can attract the application of the doctrine of substantial compliance as expounded in Murarka radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 and Ch. Subbarao v. Member, Election tribunal (1964) 6 SCR 213 . 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 clearly emerges from the scheme of Sections 83 (1)and 86 (5) of the Act. A certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86 (1)of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in murarka Radhey Shyam?s case are sound tests and are now well settled?. ( 6. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in murarka Radhey Shyam?s case are sound tests and are now well settled?. ( 6. ) APPLYING these principles to the facts of the case on hand, it may be seen that what was supplied to the respondent was a photocopy of the petition that, from any angle, can not be considered as sufficient to mislead a reasonably prudent person in meeting the allegations made therein or prejudicing his defence. Further, as observed in Chandrakant?s case (supra), the objection as to non-compliance with Section 81 (3) of the Act also does not assume any significance in view of the fact that it was raised after a considerable period of 1 month and 8 days. ( 7. ) THUS, the objection as to non-compliance with Section 81 (3)of the Act is not sustainable. Issue no. 4 is, therefore, answered in affirmative. ISSUE Nos. 1, 2, 3 and 5 ( 8. ) ACCORDING to the respondent, the election petition based on the ground mentioned in Section 100 (1) (b) of the Act deserves to be rejected at the threshold as it lacks in material facts as well as particulars of the various corrupt practices allegedly committed by her or her election agent or by any other person with her consent or that of her election agent. Validity of the corresponding affidavit has also been questioned on the ground that it is not complete in all respects. Moreover, pleadings as to corrupt practice by expending in excess of the limit prescribed under Rule 90 of the Rules have also been characterized as vague. ( 9. ) IN response, learned counsel for the petitioner has submitted that the objections have been raised within ulterior motive of causing an unnecessary delay in the trial of election petition. Highlighting the distinction between the material facts and material particulars, he has submitted that pleadings as to corrupt practices contained full and complete statement of material facts and the corresponding affidavit is also inconformity with Form 25 appended to the Rules. ( 10. ) IN order to appreciate the merits of the rival contentions in a proper prospective, it is necessary to advert to the relevant provisions of law existing in the form of Section 83 of the Act. It reads :83. Contents of petition. ( 10. ) IN order to appreciate the merits of the rival contentions in a proper prospective, it is necessary to advert to the relevant provisions of law existing in the form of Section 83 of the Act. It reads :83. Contents of petition. (1) An election petition (a) Shall contain a concise statement of the material facts on which the petitioner relies; (b) Shall set forth full particulars of any corrupt practice that the petitioner alleged including as full statement as possible of the names of the parties alleged to have commission such corrupt practice and the date and place of the commission of each such practice; and (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 all affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. ] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same matter as the petition. ( 11. ) TO substantiate the objections, learned counsel for the respondent has made extensive reference to the contents of the affidavit, filed in support of the alleged corrupt practices with reference to paras 11 to 22 of the petition. He is of the view that, in the affidavit, sources of information as to various corrupt practices ought to have been disclosed and in the petition, express consent of the respondent or her election agent to such practices must have been pleaded. It has also been pointed out that the charge as to corrupt practice is akin to a criminal charge for which a roving and fishing inquiry is not permissible. To buttress the contentions, reliance has been placed on the following precedents : ( i)Shri Udhav Singh vs. Madhav Rao Scindia (1977) 1 SCC 511 (ii)Azhar Hussain vs. Rajiv Gandhi AIR 1986 SC 1253. (iii)Manohar Joshi vs. Nitin Bhaurao Patil (1996) 1 scc 169 (iv)L. R. Shivaramagowda vs. T. M. Chandrashekar (1999) 1 SCC 666 , (v)Jeet Mohinder Singh vs. Harminder Singh Jassi (1999) 9 SCC 386 (vi)Mercykutty Amma vs. Kadavoor Sivadasan (2004) 2 SCC 217 ( 12. (iii)Manohar Joshi vs. Nitin Bhaurao Patil (1996) 1 scc 169 (iv)L. R. Shivaramagowda vs. T. M. Chandrashekar (1999) 1 SCC 666 , (v)Jeet Mohinder Singh vs. Harminder Singh Jassi (1999) 9 SCC 386 (vi)Mercykutty Amma vs. Kadavoor Sivadasan (2004) 2 SCC 217 ( 12. ) AS explained by the Apex Court in Jeet Mohinder?s case (above), an election petition alleging corrupt practice is required to be accompanied by an affidavit in Form 25 (supra) that contemplates particulars as to the corrupt practices mentioned in the election petition to be verified by the petitioner separately under two headings : (i) which of such statements including particulars are true to deponent?s own knowledge, and (ii) which of the statements including the particulars are true to information of the deponent. In that case, reference was also made to the following observations made in Gajanan Krishnaji Bapat vs. Dattaji Raghobaji meghe AIR 1995 SC 2284 ?the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice so as to bind him to the charge levelled by him and to prevent any fishing or roving enquiry and also to prevent the returned candidate from being taken by surprise?. ( 13. ) COMING to the affidavit in question, it may be observed that para 1 relates to the statements and particulars made in petition?s paras 4, 5, 13 to 19, 23, 24 and 27 to 31 whereas Para 2 concerns petition?s Paras 11, 12, 20 to 22, 25 and 26. Further, it has been stated clearly that these paragraphs of the affidavit are based on the petitioner?s knowledge and information respectively. The proviso to section 83 (1) lays down 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. But, it does not say that the allegation of corrupt practice and particulars thereof should be given in the affidavit (Prabhu Narayan vs. A. K. Srivastava AIR 1975 SC 968 relied on ). In that case, while considering the question as to applicability of Rule 9 of the Madhya Pradesh High court Rules, the Supreme Court held :? But, it does not say that the allegation of corrupt practice and particulars thereof should be given in the affidavit (Prabhu Narayan vs. A. K. Srivastava AIR 1975 SC 968 relied on ). In that case, while considering the question as to applicability of Rule 9 of the Madhya Pradesh High court Rules, the Supreme Court held :? the provisions of Rule 9 of the Madhya Pradesh high Court Rules regarding the election petitions framed by the Madhya Pradesh High Court by reference to Rule 7 of the Madhya Pradesh High Court Rules found in chapter III regarding affidavits cannot be made use of for this purpose. The former set of rules are made under Article 225 of the Constitution and cannot make any substantive law end the rules themselves on a perusal of them would show that they relate merely to procedural matters unlike rules made under Section 122 of the Code of Civil Procedure? ( 14. ) THE affidavit, therefore, cannot be termed to be defective as the contents and verification are in consonance with the prescribed form. This apart, it is well settled that the defect in verification of an affidavit, being curable, does not merit dismissal of an election petition in limine (See : F. A. Sapa vs. Singora and others AIR 1991 SC 1557 .) ( 15. ) WHILE repelling the objections regarding maintainability of the petition, learned counsel for the petitioner has submitted that he had made disclosure of all the primary facts constituting the ingredients of each one of the corrupt practices and has raised triable issues that may affect the result of the election. To fortify the contention, he has referred to the following excerpts from the decision in Shri Udhav Singh?s case (above) explaining distinction between the material facts and the material particulars :-?like the Code of Civil Procedure, this section (S. 83 of the Act) also envisages a distinction between "material facts and "material particulars Cl. (a) of subsection (1) corresponds to Order 6, Rule 2, while Clause (b) is analogous to Order 6, Rules 4 and 6 of the Code. The distinction between "material facts and "material particulars is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. (a) of subsection (1) corresponds to Order 6, Rule 2, while Clause (b) is analogous to Order 6, Rules 4 and 6 of the Code. The distinction between "material facts and "material particulars is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of civil Procedure. If the petition is based solely on those allegations, which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. ? ( 16. ) ACCORDING to learned counsel for the petitioner, upon a conspectus of almost all the decisions relied on by learned counsel for the respondent, the scope of enquiry at the stage of determining maintainability of an election petition has been defined by the supreme Court in Harkirat Singh v. Amarinder Singh (2005)13 SCC 511 in the following terms :? stepping into prohibited area of appreciating the evidence by entering into merits of the case is permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable. ? ( 17. ) IN his opinion, even if it is assumed for the sake of argument that the pleading suffers from deficiency in material particulars of any corrupt practice, it may be made good by way of amendment. To strengthen the argument, primal reliance has been placed on the decision of the Supreme Court in Sardar Harcharan Singh Brar vs. Sukh Darshan Singh (2004) 11 SCC 196 , wherein the following passage from an earlier pronouncement in Mahendra Pal vs. Ram Dass Malanger AIR 2000 SC 16 was cited with approval :? failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. In the case of a petition suffering from deficiency of material particulars the Court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a party to furnish particulars even after the period of limitation for filing an election petition has expired, with permission of the Court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation. ? ( 18. ) IN reply, learned counsel for the respondent has submitted that election petition must not only set forth full particulars of any corrupt practice that the petitioner alleges, including as full statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice but must also contain specific averments as to consent of the returned candidate or his election agent to any corrupt practice in issue. According to him, failure to plead these particulars is a non-curable defect. In support of the contention, the undermentioned passage from Manohar Joshi?s case (ibid) has been referred to : ?if the corrupt practice is committed in the interests of the returned candidate by any other person, even if he be an agent other than his election agent, without the consent of the returned candidate or his election agent, the law provides for the election to be declared void under Section 100 (1) (d) (ii) provided it is also pleaded and proved that the result of the election of the returned candidate has been materially affected thereby. Provision is made in the R. P. Act as well as in the general law to punish the makers of incendiary speeches for the offences committed by them in the form of electoral offences e. g. under Section 125 of the r. P. Act and Sections 153a, 153b and 295-A of the penal Code. Provision is made in the R. P. Act as well as in the general law to punish the makers of incendiary speeches for the offences committed by them in the form of electoral offences e. g. under Section 125 of the r. P. Act and Sections 153a, 153b and 295-A of the penal Code. Thus even if the acknowledged leaders of a party have committed any corrupt practice which results in benefit to the returned candidate then on proof of the benefit having materially affected the election result in favour of the candidate, his election would be set aside on the ground under Section 100 (1) (d) (ii) of the r. P. Act. There is thus no occasion to read into the ground in Section 100 (1) (b) or definition of "corrupt practice" the implied consent of the candidate for any act done by a leader of that party to dispense with a clear pleading and proof of the candidates or his election agents consent as a constituent part of the corrupt practice for the ground under Section 100 (1) (b ). ( 19. ) EXAMINING the pleadings of the petitioner in the light of these principles, one may roundly notice the following salient features : (i) Paras 1 to 10 of the petition contain the introductory facts. (ii) Para 4 of the petition contains a reference to the corrupt practice of excess expenditure within the meaning of Section 123 (6) of the Act but none of the subsequent Paras contains the material facts. (iii) Paras 11 to 25 contain allegations as to other corrupt practices and violations of model code of conduct, details of which need not be re-produced here as the corresponding objections center around material particulars. (iv) The pleadings regarding consent of the respondent or her agent to the alleged corrupt practices are conspicuously absent. ( 20. ) SECTION 123 of the Act enumerates various corrupt practices and electoral offences and the incurring or authorizing of expenditure in contravention of Section 77 would be deemed to be a corrupt practice within the contemplation of Sub-section (6) of s. 123. ( 20. ) SECTION 123 of the Act enumerates various corrupt practices and electoral offences and the incurring or authorizing of expenditure in contravention of Section 77 would be deemed to be a corrupt practice within the contemplation of Sub-section (6) of s. 123. Although, the petitioner has quoted certain instances of violation of Model Code of Conduct by the various campaigners canvassing in favour of the respondent by using a large number of vehicles but it is the contravention of sub-section (3) of Section 77 of the Act that may amount to the corrupt practice under Section 123 (6) thereof (Dalchand Jain vs. Narayan Shankar Trivedi (1969) 3 SCC 685 referred to ). Reaffirming this principle, the Apex court in L. R. Shivaramagowda?s case (supra), proceeded to observe that even an averment only to the effect that a true and correct account of expenditure was not furnished in the statement of account would not amount to pleading that excessive expenditure over and above the prescribed limit was incurred. It was further held that absence of material facts couldn?t be cured at a later stage by amendment. ( 21. ) TO sum up, even after making reference (in Para 4 of the petition) to the corresponding provision of Section 123 (6) of the Act, the petitioner has not averred as to how the expenditure incurred by the respondent between the date of his nomination and the date of declaration of the result was in excess of the prescribed limit. As elucidated by the Supreme Court in Samant N. Bala Krishna vs. George Fernandez AIR 1969 SC 1201 : "section 83 of the Act is mandatory and requires ; first, a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of persons with the date, time and place. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of persons with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts, it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice, must be stated and the fact must be correlated to one of the heads of corrupt practice, and, seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts. " (emphasis supplied ). ( 22. ) AS an obvious corollary, if the allegations made regarding a corrupt practice do not disclose the constituent parts thereof, the same would not be allowed to be proved and further these allegations cannot be amended after expiry of the period of limitation prescribed for filing an election petition (Raj Narain vs. Indira Nehru Gandhi AIR 1972 SC 1302 referred to ). Accordingly, the issue nos. 9 (a) and (b) pertaining to expenditure in excess of that authorized cannot be tried in the election petition. ( 23. ) HOWEVER, keeping in view the criteria for distinguishing material facts from material particulars, it can safely be concluded that the election petition contains material facts in respect of other corrupt practices alleged to have been committed by the respondent. ( 23. ) HOWEVER, keeping in view the criteria for distinguishing material facts from material particulars, it can safely be concluded that the election petition contains material facts in respect of other corrupt practices alleged to have been committed by the respondent. It is true that the allegations suffer from lack of certain material particulars particularly as to the consent of the returned candidate or his election agent but, as explained in Raj Narain?s case (supra), this Court may allow the deficient particulars to be amended or amplified. ( 24. ) IN this view of the matter, the election petition can not be rejected in its entirety. ( 25. ) IT certainly merits trial in respect of the alleged corrupt practices other than one relating to excess expenditure. ( 26. ) CONSEQUENTLY, the issue nos. 2 and 5 are answered in the negative and the common answer to issue nos. 1 and 3 is that the petition lacks in material facts only with regard to the corrupt practice relating to excess expenditure within the meaning of subsection (6) of Section 123 of the Act. ISSUE No. 6 ( 27. ) IN the wake of the findings of other preliminary issues, the election petition does not deserve dismissal at the threshold. The issue is, therefore answered in the negative. ( 28. ) HOWEVER, as pointed out already, the issue nos. 9 (a) and (b)deserve to be deleted as redundant in absence of material facts justifying the allegations as to corrupt practice regarding excess expenditure.