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2014 DIGILAW 4161 (MAD)

Petitioner v. Respondent

2014-11-07

T.MATHIVANAN

body2014
Judgment 1. In all the three applications, the first respondent in the main election petition in E.L.P.No.10 of 2011 is the applicant. O.A.No.867 of 2013:- 2. This application is filed under Order XIV Rule 8 of the Original Side and Rule 3 of the Rules of the Madras High Court Election Petition, 1967 read with Order VI Rule 16 C.P.C & Section 87 of the Representation of the People Act, 1951 for the following relief:- a. To strike off the paragraph Nos.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 19 of the Election Petition No.10 of 2011 for want of material facts and material particulars and they also seem to be scurrilous, vexatious and as an abuse of the process of the Court? O.A.No.868 of 2013:- 3. This application appears to have been filed under Order XIV Rule 8 of the Original Side Rules, 1956, and Rule 3 of the Rules of the Madras High Court-Election Petitions, 1967 read with Order VII Rule 11 C.P.C. and Section 87 of the Representation of the People Act, 1951, for the following relief:- a. To reject the Election Petition No.10 of 2011 since it has not been filed under Section 100(1)(a) and 100(1)(d)(i) of the Representation of the People Act, 1951? O.A.No.869 of 2013:- 4. This application has been filed under Order XIV Rule 8 of the Original Side and Rule 3 of the Rules of the Madras High Court Election Petition, 1967 read with Order VII Rule 11 C.P.C. and Section 87 of the Representation of the People Act, 1951, for the following reliefs:- a. To reject the Election Petition No.10 of 2011 in limine; aa. For want of verification as prescribed under Section 83(1)(c) of the Representation of the People Act, 1951 read with Order VI Rule 15 of the Civil Procedure Code, 1908; and b. non-compliance with Section 83(1)(b) read with its proviso of the Representation of the People Act, 1951. Brevity of facts in common:- 5. The applicant herein is the first respondent in the election petition in ELP.No.10 of 2011, whereas the first respondent herein is the petitioner in the main election petition and the second respondent herein is also the second respondent in the main election petition. 6. Brevity of facts in common:- 5. The applicant herein is the first respondent in the election petition in ELP.No.10 of 2011, whereas the first respondent herein is the petitioner in the main election petition and the second respondent herein is also the second respondent in the main election petition. 6. The first respondent herein has filed the election petition to declare the election of the applicant/first respondent from NO.199, Periyakulam (SC) Assembly Constituency held on 13.4.2011 and the results declared on 13.5.2011 as null and void and set aside the same and to conduct re-election under Section 80, 80A, 100(1)(b) and 100(1)(d)(ii) read with Section 123(1) and 123(7) of the Representation of the People Act, 1951. 7. The main election petition is pending trial and the applicant is yet to file his counter statement. Under this circumstance, the first respondent/election petitioner had previously taken out an application in O.A.No.988 of 2013 under the provisions of Order 14 Rule 8 of the Original Side Rules and order VI Rule 17 of C.P.C. to permit him to amend the portion of the provisions mentioned in the petition as Section 100(1)(a) and 100(1)(d)(i) instead of 100(1)(b) and 100(1)(d)(ii). 8. That petition was strenuously contested by the applicant/first respondent. 9. After hearing both sides, that petition was dismissed on the ground that the amendment, which was sought for therein, was hit by the period of limitation as contemplated under Section 81 of the Representation of the People Act, 1951. 10. That petition was dismissed on 15.4.2014. It is obvious to note here that hitherto that order is not challenged by the first respondent/election petitioner and therefore, it has become final. 11. Under this circumstance, the applicant, who is the first respondent in the main election petition has come forward with these three applications with the prayers as afore stated. 12. The main contention of the applicant/first respondent as it is seen from the averments of the affidavit is on three fold:- a. The petition does not contain valid verification of the pleadings as per Section 83(1)(c) of the Representation of People Act, 1951. b. The petition does not contain 'material facts' and full particulars and statement constituting complete or full cause of action as required under Section 83(1)(a) and 83(1)(b) of the Representation of the People Act, 1951. b. The petition does not contain 'material facts' and full particulars and statement constituting complete or full cause of action as required under Section 83(1)(a) and 83(1)(b) of the Representation of the People Act, 1951. c. The petition is also not accompanied by an affidavit in support of the allegation of corrupt practice and the particulars thereof as per Section 83(1)(b) read with its proviso of the Representation of the People Act, 1951. 13. According to the applicant/first respondent, the first respondent/election petitioner has not verified the averments of paragraphs 3 to 15 and 19 in accordance with Section 83(1)(c) of the Representation of the People Act, 1951 read with Order VI Rule 5 of C.P.C. and therefore, he has urged that the averments in paragraph Nos.3 to 15 and 19 be struck off as they do not contain any material facts and full particulars. 13a. He has also stated that the election petition is deserved to be dismissed on the ground that it is bereft of material facts and material particulars as prescribed under Section 83(1)(b) of the Representation of the People Act, 1951 (in short, the 'Act') as no details are furnished to substantiate the allegation of spending 5½ crores for the election and equally the election petition also deserves to be rejected in limine on the ground that the petition is not accompanied by an affidavit as required by the proviso to Section 83 of the Act. 14. He has also contended that the election petition has been filed only under Section 80, 80A, 100(1)(b) and 100(1)(d)(ii) read with Section 123(1) and 123(7) of the Act, which are related to the allegations of corrupt practice and not of any disqualification as prescribed under Section 100 (1)(a) and 100(1)(d)(i). Hence, the other allegations regarding any disqualification allegedly on the ground of religion cannot be gone into and that the election petition deserves to be dismissed. 15. Besides this, the applicant has also contended that nothing has been pleaded in the election petition to show that he had professed Christianism on the day of nomination or election and therefore, on mere vague and bald allegations levelled by the first respondent/election petitioner, an inalienable right of the applicant/first respondent should not be deprived of. 16. 15. Besides this, the applicant has also contended that nothing has been pleaded in the election petition to show that he had professed Christianism on the day of nomination or election and therefore, on mere vague and bald allegations levelled by the first respondent/election petitioner, an inalienable right of the applicant/first respondent should not be deprived of. 16. It is also the case of the applicant/first respondent that his parents and grand parents and his ancestors are belonged to the Scheduled caste community of 'Samban' in Hindu religion and that they never had converted to or practised any religion other than Hindu religion. He was born to Hindu scheduled caste parents and as such he never converted to or professed to any other religion, more particularly, Christianity. 17. He, therefore, has contended that in the absence of any such material facts, there cannot be any cause of action at all to file the above election petition and therefore, he has urged to reject the election petition in limine under Order 7 Rule 11 of C.P.C. 18. He has also stated that the first respondent/election petitioner has not pleaded that his election (applicant's election) was in breach of Section 5A of the Act, 1951 or that he was disqualified as per Section 100(1)(a) and 100(1)(d)(i), which further indicate that he was qualified to contest the election for the Legislative Assembly of the State in a constituency reserved for scheduled caste persons. Hence, it is obvious that the challenge of his election on the ground of religion lacks substance. 19. He has also contended that when the Retuning Officer after verification had found that the community certificate issued was genuine and hence decided not to set aside the election under the provisions of Section 100(1)(d)(i) and therefore, his candidature and the election cannot be questioned as claimed by the first respondent/election petitioner. 20. In paragraph No.12 of the election petition, the first respondent/election petitioner has stated that the applicant is a Christian as he had declared his religion as Christian in the application filed by him in the election petition filed against one Alagiri, who was elected from the Madurai Parliamentary Constituency. 21. 20. In paragraph No.12 of the election petition, the first respondent/election petitioner has stated that the applicant is a Christian as he had declared his religion as Christian in the application filed by him in the election petition filed against one Alagiri, who was elected from the Madurai Parliamentary Constituency. 21. In this connection, the applicant/first respondent has stated that the first respondent/election petitioner has not disclosed about his (applicant's) subsequent affidavit, dated 10.6.2011 filed in the election petition in ELP.NO.2 of 2009 to rectify the mistake crept in while preparing the said application, however, he had signed the election petition only on 27.7.2011. 22. Therefore, seeking the reliefs as afore stated, these three applications have been filed by the applicant/first respondent. 23. On the other hand, the first respondent/election petitioner has strenuously resisted the above applications by filing his counter affidavit, wherein he has stated that the paragraphs 5 to 15 and 19 of the election petition in ELP. No.10 of 2011 are absolutely necessary as they describe his case and all the above paragraphs are based upon 15 documents, which are produced by him. 24. Paragraph No.19 of the election petition is very much important portion of his election petition and therefore, it cannot be struck off. 25. He has also stated that he has properly verified and signed the verification as per Section 83(1)(c) of the Act and that Section 83(1)(b) read with its proviso of the Act, need not be complied with in his case as he has challenged the acceptance of the nomination papers of the applicant/first respondent. 26. He has further added that these three applications have been filed to drag on the proceedings and that the applicant/first respondent had received the election petition copy, court notice and private notice during September 2011 and after two years, two months, now he has chosen to file the above applications without filing his counter statement in the main election petition and therefore, he has urged to dismiss the above applications on the ground of devoid of any merits. 27. Heard Ms. R. Vaigai, learned counsel appearing for the applicant/first respondent and Mr. T.I. Ramanathan, learned counsel appearing for the first respondent/election petitioner and Mr. M.R. Raghavan, learned counsel appearing for the second respondent. 28. 27. Heard Ms. R. Vaigai, learned counsel appearing for the applicant/first respondent and Mr. T.I. Ramanathan, learned counsel appearing for the first respondent/election petitioner and Mr. M.R. Raghavan, learned counsel appearing for the second respondent. 28. Of the three applications filed by the applicant/first respondent, this Court finds that the application in O.A.No.869 of 2013 is vulnerable and its prayer projects an important and mandatory requirement of filing an affidavit in the prescribed form in support of the allegation of the corrupt practice and the particulars thereof. 29. Admittedly, the first respondent/election petitioner has not complied with the provisions of proviso to Section 83 of the Act, which is mandatory in nature. 30. But Mr. T.I. Ramanathan, learned counsel appearing for the first respondent/election petitioner has putforth his argument saying that the provisions of Section 83(1)(b) read with its proviso of the Act, 1951 need not be complied with in his case as the first respondent/election petitioner had challenged the acceptance of nomination papers of the applicant/first respondent. The learned counsel, viz., Mr. T.I. Ramanathan, has just forgotten the averments of paragraph No.13 of the main election petition, wherein, the first respondent/election petitioner has stated about the alleged corrupt practice of the applicant/first respondent in the election by spending more than Rs.5.00 crores. 31. The first respondent/election petitioner has specifically stated in paragraph No.13 that the applicant/first respondent had spent more than Rs.5.00 crores for the election and that his election accounts were absolutely false, frivolous and vexatious and further he would state that he could prove that the applicant/first respondent had spent more than the limit allowed by the statute. 32. Having come forward with an allegation of corrupt practice as against the applicant/first respondent, the onus of proof heavily rests upon the shoulder of the first respondent/election petitioner. 33. In this connection, it is absolutely necessary for this court to extract the provisions of Section 83(1) and its clauses “a to c” and its proviso, which are as under:- “83. Having come forward with an allegation of corrupt practice as against the applicant/first respondent, the onus of proof heavily rests upon the shoulder of the first respondent/election petitioner. 33. In this connection, it is absolutely necessary for this court to extract the provisions of Section 83(1) and its clauses “a to c” and its proviso, which are as under:- “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 alleges, including as full a 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; 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 an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. 34. Clause 'b' to sub-section 1 of Section 83 mandates that if the petitioner alleges any corrupt practice as against the person, whose election is challenged in the election petition, he shall set forth full particulars including as full a 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. 35. The proviso to Section 83(1)(c) also envisages 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. 36. Unfortunately and admittedly, Clause 'b' of Sub-section (1) of Section 83 as well as the proviso to Section 83(1)(c) have not been complied with by the first respondent/election petitioner. It is mandatory in nature. 37. Besides this, Section 123 of the Act defines what is corrupt practice. Sub-section (1) of Section 123 assumes more importance. 38. In this connection, this Court finds it better to have reference on the decision of the Apex Court in Ravinder Singh vs. Janmeja Singh and others ( (2000) 8 SCC 191 ). 39. It is mandatory in nature. 37. Besides this, Section 123 of the Act defines what is corrupt practice. Sub-section (1) of Section 123 assumes more importance. 38. In this connection, this Court finds it better to have reference on the decision of the Apex Court in Ravinder Singh vs. Janmeja Singh and others ( (2000) 8 SCC 191 ). 39. In this case, the election petition containing allegations of corrupt practice under Subsections 1 and 4 of Section 123 of the Act had been filed without proper affidavit in support of the allegations. Under these circumstances, the Division Bench of the Apex Court headed by His Lordship, Hon'ble Dr. A.S. Anand, Chief Justice of India, as he then was, has held that the non filing of an affidavit in support of the allegations of corrupt practice is fatal to the election petition. 40. In paragraph 13 of the election petition, the first respondent/election petitioner has specifically stated that the applicant/first respondent had spent more than Rs.5.00 crores for the election and that he could prove that the applicant/first respondent had spent more than the limit allowed by the statute. However, admittedly, no details or particulars have been furnished by the first respondent/election petitioner. 41. The non compliance of sub-section 'b' of Section 83(1) affects the election petition. 42. In paragraph Nos.10 and 11 of the above cited decision, it has been observed by His Lordship, as under:- “10. Provision to Section 83(1) of the Act lays down, in mandatory terms, that where an election petition alleges any corrupt practice, the election petition shall also be accompanied by an affidavit, in the prescribed from, in support of the allegations of such practice and the particulars thereof. The affidavit, which has been filed in support of the election petition, does not at all deal with the charge of bribery falling under Section 123(1) of the Act. Leaving aside the questions that the affidavit is not even in the prescribed form-Form 25 of the Conduct of Elections Rules, the allegations of corrupt practice made in the election petition are not supported by the otherwise defective affidavit either. All the names of the informants which have been given in the affidavit relate to the corrupt practice under Section 123(4) and the affidavit in this respect is a verbatim reproduction of the verification clause of the election petition concerning corrupt practice under Section 123(4). All the names of the informants which have been given in the affidavit relate to the corrupt practice under Section 123(4) and the affidavit in this respect is a verbatim reproduction of the verification clause of the election petition concerning corrupt practice under Section 123(4). No name of any informant has been mentioned in respect of the allegations of corrupt practice under Section 123(1) in the affidavit. In the absence of the requisite affidavit filed in support of the allegation of corrupt practice under Section 123(1) of the Act, as detailed in the election petition, no issue could be raised for trial. 11. Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83(1) of the Act, the election petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. The reason for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving inquiry and save the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery, the allegation pertaining thereto, could not be put to trial – the defect being of a fatal nature.” 43. From the conduct of the first respondent/election petitioner, it could easily be presumed that he has miserably failed to prove the cause of action in respect of the allegation of corrupt practice made against the applicant/first respondent. 44. Further, he has not shown any interest in filing an affidavit to support the allegation of corrupt practice, which is absolutely mandatory in nature as per the proviso to Section 83(1)(c) of the Act. 45. In this connection, this Court would like to rely upon the decision reported in Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009) 9 SCC 310 ). 46. In this case, while speaking on behalf of the Division Bench, Hon'ble Mr. 45. In this connection, this Court would like to rely upon the decision reported in Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009) 9 SCC 310 ). 46. In this case, while speaking on behalf of the Division Bench, Hon'ble Mr. Justice Dalveer Bhandari has observed that the position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. 47. His Lordship has also observed that it is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of "material facts" on which the petitioner relies. 48. While penning down the judgment in paragraph 51, His Lordship has also made reference to Samant N. Balakrishna vs. George Fernandez (1969) 3 SCC 238 ). 49. With reference to this decision, His Lordship has observed in the very same paragraph as under:- “51. This Court in Samant N. Balkrishna's case (supra) has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. In Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511 ), the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(l)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.” 50. In paragraph No.52, His Lordship has also observed as under:- “52. In V. Narayanaswamy v. C.P. Thirunavukkarasu (2000) 2 SCC 294 , this Court reiterated the legal position that an election petition is liable to be dismissed if it lacks in material facts. In L.R. Shivaramagowda and Ors. v. T.M. Chandrashekar (dead) by LRs and Ors. (1999) 1 SCC 666 , this Court again considered the importance of pleadings in an election petition alleging corrupt practice falling within the scope of Section 123 of the Act and observed as under:- 11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment....” 51. On coming to the instant case on hand, while advancing her arguments, Ms. Vaigai, learned counsel appearing for the applicant/first respondent has indicated that the failure on the part of the first respondent/election petitioner in non filing of the affidavit in support of the allegation of corrupt practice made by him as against the applicant/first respondent, would definitely be fatal to the election petition. 52. While countering her arguments, Mr. Vaigai, learned counsel appearing for the applicant/first respondent has indicated that the failure on the part of the first respondent/election petitioner in non filing of the affidavit in support of the allegation of corrupt practice made by him as against the applicant/first respondent, would definitely be fatal to the election petition. 52. While countering her arguments, Mr. T.I. Ramanathan, learned counsel appearing for the first respondent/election petitioner has adverted to that the first respondent/election petitioner could cure the defect by filing an affidavit at the stage of hearing the petition. But this was seriously objected to by Ms. Vaigai, saying that if the first respondent/election petitioner is allowed to file his affidavit belatedly, it would be barred by period of limitation and therefore, he could be allowed to file his affidavit in support of the allegation of corrupt practice belatedly after the expiry of period of limitation as contemplated under Section 81 of the Act. 53. In this connection, she has also drawn the attention of this Court to paragraph 59 of the decision in Anil Vasudev's case, wherein His Lordship has observed that, “In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.” 54. As argued by Ms. Vaigai, the election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908). 55. 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. 56. The affidavit must be in From 25 as prescribed by Rule 94-A of the Conduct of Elections Rules, 1961. This has been crystallised by a Three Judges Bench of the Hon'ble Supreme Court in R.P. Moidutty vs. P.T. Kunju Mohammad and another ( (2000) 1 SCC 481 ). In this case, in paragraph No.14, while speaking on behalf of the Three Judges Bench, Hon'ble Mr. Justice R.C. Lahoti, has observed as under:- “14. ........... This has been crystallised by a Three Judges Bench of the Hon'ble Supreme Court in R.P. Moidutty vs. P.T. Kunju Mohammad and another ( (2000) 1 SCC 481 ). In this case, in paragraph No.14, while speaking on behalf of the Three Judges Bench, Hon'ble Mr. Justice R.C. Lahoti, has observed as under:- “14. ........... As the consequences flowing from the proof of corrupt practice at the election are serious, the onus of establishing commission of corrupt practice lies heavily on the person who alleges the same. The onus of proof is not discharged merely on preponderance of probabilities; the standard of proof required is akin to that of proving a criminal or a quasi-criminal charge, clear-cut evidence, wholly credible and reliable, is needed to prove beyond doubt the charge of corrupt practice. (See Ram Chandra Rai v. State of M.P., Manphul Singh v. Surinder Singh, Lakshmi Raman Acharya v. Chandan Singh and Amolakchand Chhazed v. Bhagwandas Arya). The legislature has taken extra care to make special provision for pleadings in an election petition alleging corrupt practice. Under Section 83 of the Act ordinarily it would suffice if the election petition contains a concise statement of the material facts relied on by the petitioner, but in the case of corrupt practice the election petition must set forth full particulars thereof including as full as statement as possible of (i) the names of the parties alleged to have committed such corrupt practice; (ii) the date, and (iii) place of the commission of each such practice. An election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. However, if the petition alleges any corrupt practice then the petition has additionally to be accompanied by an affidavit in Form 25 prescribed by Rule 94-A of the Conduct of Elections Rules, 1961 in support of the allegations of such corrupt practice and the particulars thereof. Thus, an election petition alleging commission of corrupt practice has to satisfy some additional requirements, mandatory in nature, in the matter of raising of the pleadings and verifying the averments at the stage of filing of the election petition and then in the matter of discharging the onus of proof at the stage of the trial. 57. Thus, an election petition alleging commission of corrupt practice has to satisfy some additional requirements, mandatory in nature, in the matter of raising of the pleadings and verifying the averments at the stage of filing of the election petition and then in the matter of discharging the onus of proof at the stage of the trial. 57. With reference to the verification of pleadings in so far as the election petition is concerned, besides Section 83(1)(c), Order 6 Rule 15 of C.P.C. also assumes more importance. This rule is applicable to election petitions presented under the Representation of the People Act, 1951. 58. Mr. T.I. Ramanathan, reiterating his submission that the first respondent/election petitioner might be permitted to cure the defect by filing an affidavit at the time of hearing his election petition has also placed reliance upon the decision in T. Phungzathang vs. Hangkhanlian and others ( (2001) 8 SCC 358 ). 59. In the above cited decision, the appellant filed an election petition challenging the election of the respondent on several grounds, one of them being commission of corrupt practice as contemplated under Section 123 of RP Act, 1951 and sought a declaration that the election of the respondent was void. The election petition was signed and verified by the petitioner in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The petition was accompanied by an affidavit in Form 25 as required by proviso to Section 83(1) of the RP Act and Rule 94-A of the Conduct of Elections Rules, 1961. The affidavit so filed had been sworn before a Commissioner of Oaths and bore, to that effect, an endorsement, signature and rubber stamp of the Oath Commissioner administering oath to the deponent in the manner and form contemplated by Form 25. The set of the copies which accompanied the election petition at the time of filing and which was delivered to Respondent 1 along with the writ of summons was complete in all respects excepting that the endorsement made by the Oath Commissioner attesting the affidavit to have been sworn by the deponent before him, his signature and rubber stamp did not appear on the copy of the affidavit delivered along with the copy of election petition to the respondent. 60. 60. The respondent thereupon moved an application before the Designated Election Judge contending that the copies of the affidavits filed in support of the corrupt practices alleged in the election petition and supplied to him, did not contain due verification and attestation by the Oath Commissioner or by the prescribed authority, hence there was a violation of the mandatory requirements of Sections 81(3) and 83(1) of the Act and, therefore, the election petition in question was liable to the dismissed. Soon on receipt of the copy of the application, served on the appellant-petitioner out of the court and before the application came up for hearing before the Designated Election Judge, the counsel for the election petitioner delivered another set of copies of election petition with affidavit which had the endorsement and rubber stamp of the Oath Commissioner as it was on the original. But the Election Judge relying on two judgments of the Supreme Court in Shipra (Dr) Shanti Lal Khoiwal (1996) 5 SCC 181 and Harcharan Singh Josh v. Hari Kishan (1197) 10 SCC 294) had dismissed the election petition under Section 86(1) on the ground of non compliance with Section 81(3) read with Section 83(1)(c) of the RP Act. 61. After hearing the appeal, the three Judges' Bench of the Hon'ble Apex Court has held that per curiam, it is only a curable defect. It has also been held that the defect having been cured by the election petitioner before the petition was taken up for hearing before Designated Election Judge, it would not vitiate the petition. Unless the variation between the original affidavit and its copies is substantial and in material particulars, the same is not fatal to the petition and can be cured. 62. The views taken by the Hon'ble Dr. A.S. Anand, Chief Justice of India, (as he then was) and Hon'ble Mr. Justice N. Santosh Hegde have been accepted by the Hon'ble Mr. Justice R.C. Lahoti and His Lordship while concurring the views of the other Hon'ble two Judges has held that administering oath and making an endorsement in proof thereof are acts of the officer administering the oath and are not integral part of the affidavit. If an affidavit is in prescribed form, mistake in the verification portion thereof cannot be a ground for summary dismissal of the election petition. 63. If an affidavit is in prescribed form, mistake in the verification portion thereof cannot be a ground for summary dismissal of the election petition. 63. This Court has gone through the above cited decision with utmost care and caution. At the first instance, this Court could say that the principle laid down in the above cited decision cannot be made applicable to the given case on hand. Because in the above cited case, the only lacunae pointed out by the contesting respondent in his application was that the copy supplied to him did not contain the verification or affirmation made by the Oath Commissioner or by the prescribed authority as required in Form 25 and Rule 94-A of the Conduct of Elections Rules, 1961. 64. In the given case on hand, the defect pointed out by Ms. Vaigai, learned counsel appearing for the applicant/first respondent is that the first respondent/election petitioner has not at all complied with the mandatory requirements of the proviso to Section 83(1)(c). 65. In the above cited decision, the election petition filed by the appellant was accompanied by an affidavit as contemplated under the proviso to Section 83(1)(c) of the RP Act. But the set of copies which were filed along with the election petition at the time of filing and which were delivered to the respondent along with the writ of summons did not contain the verification or affirmation made by the Oath Commissioner or by the prescribed authority as required in Form 25 and Rule 94-A of the Conduct of Elections Rules, 1961. 66. Therefore, the facts and circumstances of the above cited decision cannot be equated with the facts and circumstances of the case on hand. Because in the present case, the first respondent/election petitioner has not chosen to file an affidavit to support the allegation of corrupt practice made against the applicant/first respondent. 67. In the light of the discussions made above, the main election petition in ELP. Because in the present case, the first respondent/election petitioner has not chosen to file an affidavit to support the allegation of corrupt practice made against the applicant/first respondent. 67. In the light of the discussions made above, the main election petition in ELP. NO.10 of 2011 itself is deserved to be dismissed in limine and therefore, the original application in O.A.No.869 of 2013, which is filed by the applicant/first respondent to reject the Election Petition No.10 of 2011 in limine for want of verification as prescribed under Section 83(1)(c) of the RP Act read with Order 6 Rule 15 of the Code of Civil Procedure, 1908 and non compliance of Section 83(1)(b) as well as the proviso to Section 83(1)(c) of the RP Act, 1951, deserves to be allowed. 68. Accordingly, the application in O.A.No.869 of 2013 is allowed and in consequence thereof, the main election petition in ELP NO.10 of 2011 is dismissed without costs. In view of the orders passed in O.A.No.869 of 2013, the other two applications in O.A.Nos.867 and 868 of 2013 are closed.