P. K. Musahary, J.— This miscellaneous application has been filed under Order VII Rule 11 (a) and Order VI Rule 16 of the Code of Civil Procedure, 1908 questioning the maintainability of additional affidavit dated 27.01.2011 filed by the respondent/election petitioner as per prescribed Form 25 of the Conduct of Election Rules, 1961 for bringing the same as a part of Election Petition No. 01 (AP)/2009 without leave of the Court in violation of time limit prescribed under Section 81 of the Representation of People Act, 1951 and dismissal of the said Election Petition. 2. I have heard Mr. M. Pertin, learned counsel, appearing for the applicant Respondent No. I/returned candidate and also Mr. B. L. Singh, learned counsel for the respondent/Election petitioner. 3. At the outset Mr. Pertin, learned counsel, submits that this Misc. Case has been filed as a counter/objection to the additional affidavit filed by the respondent/Election petitioner on 27.01.2011 without the leave of the Court. Mr. Pertin learned counsel, agreed that Mr. B. L. Singh, learned counsel for the respondent/Election petitioner be allowed to address the Court first to justify the reason for filing such additional affidavit and its sustainability under the law. In view of the above, Mr. Singh has been allowed to address the Court first. 4. It is submitted by Mr. Singh, learned counsel for the respondent/Election petitioner that the additional affidavit was filed in view of the order dated 4.2.2011 passed by the Hon'ble Supreme Court in SLP(C) No. 343687 2010 whereby it was ordered that it would be open to the respondent to file additional documents including copy of the affidavit referred to in the proviso to Section 83(1) of the Representation of People Act, 1951. As submitted by him, the said additional affidavit was sworn on 27.01.2011 but it was filed on 7.2.2011, i.e. after the aforesaid order was passed by the Hon'ble Supreme Court. He further submits that the additional affidavit in question is to be accepted as a part of the election petition. 5. In regard to additional affidavit, Mr. Pertin, learned counsel for the applicant, submits that by filing the said additional affidavit the respondent/Election petitioner has admitted that the election petition is lacking affidavit in Form 25 prescribed under Rule 94-A of the Conduct of Election Rules, 1961 hereinafter referred to as Election Rules only. 5. In regard to additional affidavit, Mr. Pertin, learned counsel for the applicant, submits that by filing the said additional affidavit the respondent/Election petitioner has admitted that the election petition is lacking affidavit in Form 25 prescribed under Rule 94-A of the Conduct of Election Rules, 1961 hereinafter referred to as Election Rules only. This lack of affidavit in prescribed Form is fatal to the election petition and such election petition is liable to be dismissed at the threshold. He submits that lack of affidavit in prescribed Form is an incurable defect and it cannot be cured or allowed to be cured by the Election petitioner by way of filing an additional affidavit. Further he submits that by filing the additional affidavit the respondent/ Election petitioner is trying to fill up the serious lacuna as he could understand by this time that his election petition is liable to be dismissed at the initial stage. In support of his above arguments, Mr. Pertin refers to the following decisions - (1) R.P. Moidutty Vs. P.T. Kunju Mohammad & Anr. (Para 33 & 35) reported in (2000)1 SCC 481 , (2) V. Narayan Swami Vs. C. P. Thirunavukkarasu (Para 23) reported in (2000) 2 SCC 294 , (3) Ravinder Singh Vs. Janmeja Singh & Ors., (Para 9, 10, 11 & 12) reported in (2000) 8 SCC 191 , (4) FA Sapa & Ors. Vs. Singora & Ors. (Para 16, 28 and 33) reported in (1991) 3 SCC 375 and (5) K.C. Madhava Kurup Vs. K. Mural-eedharan (para 7) reported in AIR 1991 Kerala 20. 6. As regards the prayer for dismissal of the election petition the learned counsel for the applicant submits that the election petition does not disclose any cause of action as contemplated under Order VII Rule 11 (a) of the Code of Civil Procedure inasmuch as the election petitioner failed to state the material facts and material particulars on the charges of corrupt practice. The election petition, according to Mr. Pertin, learned counsel, does not contain material facts and material particulars and as such it is liable to be dismissed under Order VI Rule 16 of the CPC. In this regard reference has been made by him to the following case laws - (1) Saleem Bhai & Ors. Vs. State of Maharastra (para 9) reported in (2003) 1 SCC 557 , (2) Samar Singh Vs. Kedar Nath & Ors. In this regard reference has been made by him to the following case laws - (1) Saleem Bhai & Ors. Vs. State of Maharastra (para 9) reported in (2003) 1 SCC 557 , (2) Samar Singh Vs. Kedar Nath & Ors. (Para 4 and 5) reported in 1987 (Supp) SCC 663, (3) Azhar Hussain Vs. Rajiv Gandhi (Para 12) reported in 1986 (Supp.) SCC 315 and (4) Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors. (Para -20 and 22) reported in (2004) 3 SCC 137 . 7. The above submission of the applicant/ returned candidate has been countered by Mr. Singh, learned counsel for the respondent/ Election petitioner by submitting that the present application is hit by principle of res judicata as provided under Section 11 of the CPC inasmuch as the applicant earlier filed MC(EP) No. 07(AP)/2010 asking for the same relief, viz. dismissal of the election petition as per the provision under Order VI Rule 16 and Order VII Rule 11 (a) of the CPC, 1908 and also to strike out the pleadings which are unnecessary, scandalous, frivolous, vexatious etc. Referring to judgment and order dated 14.09.2010 passed by this Court in the above Misc. Case, Mr. Singh, submits that the said issue has already been adjudicated upon and the prayer of the applicant was rejected by dismissing the said Misc. Case. The applicant has made similar/same prayer in the present application and as such the same is liable to be dismissed. 8. In reply to the submission of the applicant that the lack of affidavit in prescribed form is a fatal and an incurable defect which makes the election petition liable to be dismissed at the threshold, Mr. Singh submits that the decisions relied upon by the applicant's counsel are not applicable to the present case inasmuch as the election petitions in those cited cases were either not accompanied by any affidavit or the accompanying affidavits were not sworn before the authorized officer/ authority. According to him, present is a case where the accompanying affidavit was sworn in adifferent form substantially complying with the Form 25 as prescribed under Rule 94-A of the Conduct of Election Rules, 1961 which falls under minor defect. He also submits that such minor defect is curable and there is no legal bar to filing an additional affidavit to cure the minor defects in the affidavit. He also submits that such minor defect is curable and there is no legal bar to filing an additional affidavit to cure the minor defects in the affidavit. He tries to substantiate this submission by relying on the decision of the Apex Court in Umesh Challiyill Vs. K.P. Rejendran reported in (2008) 11 SCC 740 . Moreover, according to him, the Apex Court granted leave to the Respondent to file additional affidavit in the order dated 4.2.2011 passed in SLP(C) No. 34368/2010. Subsequently, the applicant sought permission to withdraw the said SLP (C) No. 34368/2010 and accordingly, the Hon'ble Supreme Court, granting the permission, dismissed the said SLP as withdrawn vide order dated 18.10.2011. No leave to file petition before this Court, was obtained from the Hon'ble Supreme Court and as such, as submitted by Mr. Singh, the applicant can not file the same petition before this Court and for this reason the instant miscellaneous application filed by the applicant is liable to be dismissed with heavy cost for delaying the proceeding of the election petition and proceed with recording of evidence of the applicant/respondent. 9. I have given my anxious consideration and thought on the submission of the learned counsel for the parties. There should not be any dispute that the applicant/returned candidate as respondent No. 1 filed MC(EP) No. 07(AP)/2010 under Order VI Rule 16 and Order VII Rule 11 (a) of the CPC for striking out the pleadings and dismissal of the election petition. In the said Misc. Case the applicant made the following prayers - "It is therefore prayed that your Lordship would be pleased to admit this petition and call for records and issue notice to the respondent/ opposite party as to why the election petition shall not be rejected/dismissed as per Order VI Rule 16 and Order VII Rule 11 (a) of CPC, 1908, due to devoid of merit and pleading of the election petitioner, failure to establish cause of action and material facts and non supporting of any document in the election petition and as to why the Election Petition No. 01 (AP)/2009 shall not be rejected due to fabricated documents annexed and marked such as Annexures 1, 2, 3, 5, 6, 7 and 8 and prayer made EP No. 01 (AP)/ 2009 therein, shall be strike out upon cause or causes. Hearing the parties your Lordship would be pleased to pass the order which is deems to be fit and proper." 10. In the present Mise. application the prayer runs as under - "In the premises aforesaid, it is most humbly prayed that your Lordship would be pleased to admit this petition, call for the connected records and to issue Rule or notice calling upon the respondent Election petitioner as to why; I) The additional affidavit dated 27.1.2011 shall not be rejected and dismissed. II) The further proceeding of the Election Petition No. 01 (AP)/2009 shall not be set aside and dismissed as per Order VII Rule 11 (a), Order VI Rule 16, of Code of Civil Procedure, 1908 read with Sections 81 and 83 (1) (C) of the Representation of People Act, 1951 due to failure to establish cause of action. And after cause or causes that may be shown and after hearing the parties, your Lordship may be pleased to pass any order/orders as your Lordship may deem fit and proper." 11. It is an admitted position that the MC(EP) No. 07(AP)/2010, as referred to above, was dismissed by this Court vide judgment and order dated 14.9.2010 after elaborate discussion. Against the aforesaid judgment, the applicant approached the Hon'ble Supreme Court by filing the SLP(C) No. 34368/2010. The issue regarding dismissal of election petition in question has been settled finally and it has attained finality with the dismissal of the connected SLP on withdrawal. The order dated 18.10.2011 passed by the Hon'ble Supreme Court reads- "IN SLP (C) No. 34368/2010 After arguing for a while learned counsel for the petitioners sought permission to withdraw this Special Leave Petition. Permission as sought for is hereby granted. The SLP is accordingly dismissed as withdrawn." From the above order it is crystal clear that the applicant did not ask for and/or granted liberty to file an application before this Court for the same relief. I am, therefore, of the considered view that the issue can not be reopened and accordingly, the prayer for dismissal of the election petition under the provisions of Order VI Rule 16 and Order VII Rule 11 (a) of the CPC is rejected. 12. I am, therefore, of the considered view that the issue can not be reopened and accordingly, the prayer for dismissal of the election petition under the provisions of Order VI Rule 16 and Order VII Rule 11 (a) of the CPC is rejected. 12. This Court in its judgment and order dated 14.9.2010 passed in MC(EP) No. 07(AP)/2010 has already come to a conclusion that the election petition in question contains sufficient material facts and material particulars disclosing triable cause of action and the same is not liable to be rejected under the aforesaid provisions of the Code of Criminal Procedure, 1973 and as such I am not prepared to accept the argument of the learned counsel for the applicant that the Election petition is totally lacking "Schedule of Corrupt Practice" within the meaning of Rule 94-A of the Conduct of Election Rules, 1961. The only defect found in the election petition is that it is not accompanied by an affidavit in Form 25. The affidavit accompanying the election petition has been scribed in a different form but if it is read carefully one can find that it has disclosed clearly as to which part of the averments made in the election petition are true to his knowledge and true to the information based on record. The affidavit in question was sworn before the Commissioner of Affidavit, Gauhati High Court, Itanagar Bench, Naharlagun. The respondent Election petitioner has annexed the documents relied upon by him to substantiate the allegation of corrupt practice accompanied by verifications as required under the law. The sources of knowledge and information of the Election petitioner are disclosed in the Annexures annexed to the election petition. The purpose of furnishing the Annexures is to inform the respondent/returned candidate about the allegation brought against him so that he can meet the same during trial. 13. The decision in Umesh Challiyill (supra) is the appropriate authority in regard to preliminary objection regarding non-conformity with the affidavit in Form 25. In the said case the preliminary objections raised were that the affidavit in Form 25 was not affirmed, affirmation was not duly certified, verification of the election petition was defective, sources of information as regard the allegations of corrupt practice of which the appellant did not have personal knowledge were vague and lacked pleadings as regards material particulars. In the said case the preliminary objections raised were that the affidavit in Form 25 was not affirmed, affirmation was not duly certified, verification of the election petition was defective, sources of information as regard the allegations of corrupt practice of which the appellant did not have personal knowledge were vague and lacked pleadings as regards material particulars. In the present case the Court is concerned with only one preliminary objection i.e. regarding non-furnishing of affidavit in Form 25. Whether such defect is so fatal that may make the election petition liable to be dismissed at the threshold. In the said case it has been held that the test is whether the defects would go to the root of the matter or the defects are only cosmetic in nature. It is held therein that if the affidavit sworn by the Election petitioner contains only minor variations from the prescribed format and conveys the substance and essence of the contents of prescribed format, the election petition cannot be summarily dismissed on minor breaches or procedure. Further more it is held that even if the Court construes the defects to be of serious nature, it should give adequate opportunities to the Election petitioner to rectify the same instead of dismissing the election petition at the threshold. It is felt necessary and beneficial to quote para 20 of the said judgment below: "20. However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the root of the matter and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the petitioner to rectify such defects." 14. To derive benefit of the aforesaid judgment it is also felt necessay to quote the affidavit accompanying the election petition as under: "AFFIDAVIT I, Shri Takam Sorang, son of Shri Sorang Takio of village Zara, PO Tali, District Kurung Kumey at present residing at ESS Sector, Itanagar, Papum Pare District aged about 34 years do hereby solemnly affirm and say as follow: (1) That I the petitioner in this petition and as such I am fully conversant with the facts and circumstances of the case. (2) That I am competent to swear this affidavit on behalf of myself. (3) That the statements made in this affidavit and in paragraph -1, 2, 3, 7, 8, 9, 11 and 12 are true to my knowledge and those made in paragraphs- 4, 5, 6 and 10 being matters of record are true to my information derived therefrom and the rest are prayer for relief before this Hon'ble Court. I hereunto set my hand on this 1 st day of Dec' 2009 at Naharlagun Court premises." 15. The said affidavit in question may be compared with the Form 25 as provided under Rule 94-A, which is reproduced below- "Form25 Affidavit I...............................the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati............... (respondent No...........................in the said petition) make solemn affirmation/oath and say - (a) that the statements made in paragraphs.......................of the accompanying election petition about .......................the commission of the corrupt practice of and the particulars of such corrupt practice mentioned in paragraphs..........................of the same petition and in paragraphs........... (respondent No...........................in the said petition) make solemn affirmation/oath and say - (a) that the statements made in paragraphs.......................of the accompanying election petition about .......................the commission of the corrupt practice of and the particulars of such corrupt practice mentioned in paragraphs..........................of the same petition and in paragraphs........... of the Schedule annexed thereto are true to my knowledge; (b) that the statements made in paragraphs ...................of the said petition about the commission of the corrupt practice of .......................and the particulars of such corrupt practice given in paragraphs.......... of the said petition and in paragraphs.......... of the Schedule annexed thereto are true to my knowledge; (c) (d) etc. Signature of deponent" 16. Fairly compared the affidavit in question with the Form 25,1 do not find any serious defect except missing of words "about the commission of corrupt practice", otherwise the same is found to be bearing the substance and essence the contents of the prescribed format, which are enough to inform the respondent returned candidate the charges to be met by him. On this consideration, I hold that the affidavit in question suffers from negligible minor defect which is curable by way of giving the respondent/Election petitioner to cure it by accepting the additional affidavit as has been done by him. 17. Moreover, an issue has been framed on the maintainability of the election petition in its present form leaving further scope for the parties to argue on the issue after closure of evidence. 18. In view of the above discussions, I find that the instant miscellaneous application of the applicant/returned candidate is unwarranted and devoid of merit and the same is liable to be dismissed. It is accordingly dismissed leaving the parties to bear their own cost. 19. The additional affidavit as filed by the Respondent/Election petitioner is accepted and it shall form a part of the election petition. 20. The recording of evidence of respondent returned candidate shall commence now. _____________