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2017 DIGILAW 299 (AP)

Kothapalli Geetha v. Gummidi Sandhya Rani

2017-06-02

A.RAJASEKHAR REDDY

body2017
ORDER : A. RAJASEKHAR REDDY, J. 1. 1st respondent in the EP No. 30 of 2014 filed this election application, being E.A. No. 11 of 2015, under Order 7, Rule 11 CPC, read with Section 86 of Representation of Peoples Act, 1951, (for short, 'the RP Act') to reject the election petition filed by the election petitioner-1st respondent herein, (hereinafter referred to as 'election petitioner') on the ground of lack of cause of action. The case of the petitioner herein (hereinafter referred to as 'returned candidate') is that in the general elections she contested the election to the seat of Member of Parliament from Araku parliamentary constituency, seat a reserved for Scheduled Tribe (ST) and having emerged as a successful candidate was declared elected as Member of Parliament on 16.5.2014. That as per Section 83(1)(a) of the RP Act, the plaint of the election petition should contain a concise statement of material facts on which the election petitioner relies and such a statement of material facts is mandatory to maintain the election petition. That in the instant case, no such concise statement of material facts is stated by the election petitioner in the plaint and the election petition filed by the election petitioner does not disclose any cause of action and, therefore, the election petition is liable to be rejected for want of lack of cause of action. 2. It is further case of the returned candidate that she contested from Araku (ST) Parliamentary constituency on the basis of a caste certificate issued by the competent authority and she has been recognised as belonging to the community of Scheduled Tribe all through her education and she was also appointed as Deputy Collector based on her social status certificate of Scheduled Tribe. That her social status certificate was not questioned by the election petitioner and there is no pleading or a concise statement of facts that the social status certificate produced by the returned candidate is not genuine. That in the absence of such a pleading, this Court has no jurisdiction to determine whether the social status certificate is genuine or not and whether the returned candidate belongs to Scheduled Tribe or not. That in the absence of such a pleading, this Court has no jurisdiction to determine whether the social status certificate is genuine or not and whether the returned candidate belongs to Scheduled Tribe or not. That the competent authority under the Andhra Pradesh (SC, ST, BC) Regulation of Issue of Community Certificate Act, 1993 (for short, 'the Act') and the rules made there under alone can go into the genuineness or otherwise of the caste certificate and can take action based on the outcome of the enquiry. That as on date, the social status certificate issued to the returned candidate by the competent authority is in force and as such is valid in the eye of law. That the election petitioner has not made any allegation of corrupt practice either against the returned candidate or the returning officer, except stating that the returned candidate does not belong to Scheduled Tribe and not eligible to contest to a seat which is reserved for Scheduled Tribe. That election petitioner has not stated which provision of law is violated by the returning officer in accepting the nomination of the returned candidate. The allegation of the election petitioner that the returned candidate has been claiming differently at different points of time and recorded as Mala, Christian, Adi-Andhra etc., are false and incorrect, whereas the returned candidate has been claiming her social status as Scheduled Tribe all through her life and all educational records show her as belonging to Scheduled Tribes (ST). That the election petition is based on surmises and conjectures and is filed needlessly to harass and not allowing her to concentrate on the developmental works in the constituency. 3. Counter-affidavit is filed by the election petitioner, inter alia, stating that the returned candidate belonged to Mala caste which is not included in the presidential order i.e., list of Scheduled Tribes, but she is claiming herself as belonging to Scheduled Tribe i.e., Valmiki. That under Section 4(b) of the RP Act, the returned candidate is not qualified to contest in reserved seat as she does not belong to Scheduled Tribe. A specific plea is taken that the returned candidate does not belong to a community of Schedule Tribe. That under Section 4(b) of the RP Act, the returned candidate is not qualified to contest in reserved seat as she does not belong to Scheduled Tribe. A specific plea is taken that the returned candidate does not belong to a community of Schedule Tribe. That document (Annexure-3), i.e., LH School admission register of the year 1943, pertaining to (Kothapalli Jacob), father of the returned candidate, wherein his caste is recorded as Adi-Andhra and that itself falsifies the case of the returned candidate that she belongs to Schedule Tribe. That all the required material facts and particulars are pleaded in the petition which disclose cause of action. The pleadings stated in the election petition are mixed question of fact and law and that disputed questions cannot be decided at the time of considering this application. That the Court can at any stage of the proceedings order to struck off or amend any matter in the pleading which may be unnecessary, scandalous, frivolous or vexatious which delay the fair trial or which otherwise abuse the process of the Court. That there was no necessity for the election petitioner to seek for cancellation of the caste certificate of the returned candidate before the returned candidate filing her nomination to a reserved seat of Scheduled Tribe. That the validity, legality, sanctity of the caste certificate can also be decided by this Court while considering the election petition. That the caste certificate of the returned candidate is not a conclusive proof. Therefore, the EA is liable to be dismissed as the facts stated in the plaint very much discloses cause of action. 4. Heard Sri D.V. Seetharama Murthy, learned Senior Counsel appearing for the learned Counsel for the returned candidate-petitioner and Sri J. Satya Prasad, learned Counsel for the election petitioner-1st respondent. 5. Sri D.V. Seetharama Murthy, learned Senior Counsel appearing for the returned candidate contended that the election petition is not maintainable as in the plaint it has not been specifically pleaded that the social status certificate of the returned candidate is a false certificate and no material is placed in that behalf. It is also contended that there is no cause of action to try the election petition as it is based only on mere allegation that the returned candidate does not belong to Scheduled Tribe. It is also contended that there is no cause of action to try the election petition as it is based only on mere allegation that the returned candidate does not belong to Scheduled Tribe. It is also submitted by the learned Senior Counsel that the election petitioner is virtually seeking this Court to grant a relief of declaration with respect to the social status of the returned candidate that she does not belong to Scheduled Tribe, which is not permissible in law. Learned Counsel also asserts that there is no pleading in the election petition to the effect that how election of returned candidate materially affected the results of election. It is also stated that the copy of the election petition served on the returned candidate is not a true copy filed in the Court as in the copy served on the Counsel, the 'verification statement' does not disclose which contents of the paragraphs of the election petition are within the personal knowledge or based on legal advise, thereby deprived the returned candidate to file an effective reply. In support of his contentions learned Senior Counsel relied on the decisions in Jyoti Basu v. Debt Ghosal, (1982) 1 SCC 691 ; Ram Sukh v. Dinesh Agarwal, (2009) 10 SCC 541 ; Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 ; Nandiesha Reddy v. Kavitha Mahesh, (2011) 7 SCC 721 ; Hori Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233 ; T.H. Musthaffa v. M.P. Varghese, (1999) 8 SCC 692 ; Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, 2014 (3) ALD 1 (SC) : (2014) 5 SCC 312 and Om Prakash Srivastava v. Union of India, 2006 (2) ALD (Crl.) 308 (SC) : (2006) 6 SCC 207 . 6. Sri J. Satya Prasad, learned Counsel for the election petitioner, per contra, contended that the returned candidate originally belonged to Mala caste which is not included in the Presidential Order i.e., in the list of Scheduled Tribes, but claiming herself as belonging to Scheduled Tribe community i.e., Valmiki and as such she is not eligible to contest in reserved seat for Scheduled Tribes in Aruku-18 (ST) Parliamentary constituency. It is further contended that the averments of the affidavit filed in support of the election petition, and the pleadings, constitute cause of action and material facts as required under Section 83(1)(a) of the RP Act and inasmuch as Section 100(1)(a) of the RP Act provides that as on the date of election, if a returned candidate was not qualified or was disqualified, that itself is a ground for declaring the election void, the election petition is maintainable and this EA is liable to be dismissed. It is also stated by learned Counsel that the election petitioner secured 3,21,793 votes, whereas the returned candidate secured 4,31,191 votes and rest of the candidates lost then-deposits and in such circumstances there is no need to plead that improper acceptance of the nomination of the returned candidate materially affected the winning chances of the election petitioner, as there were only two candidates in the fray. It is contended that the show-cause notice issued to the returned candidate and the report of the Revenue Divisional Officer constitute, prima facie proof of allegation that the returned candidate does not belong to Scheduled Tribe. In support of his contentions, learned Counsel relied on the decisions in Nimmaka Jaya Raju v. Satrucharla Vikyaya Rama Raju, 2004 (2) ALD 157 : 2004 (4) ALT 14 ; T.M. Jacob v. C. Poulose, AIR 1999 SC 1359 : 1999 (3) ALD (S.C.S.N.) 7; Ram Prasad Sarma v. Mani Kumar Subba, (2003) 1 SCC 289 ; Anil R. Deshmukh v. Onkar N. Wagh, AIR 1999 SC 732 : 1999 (2) ALD (S.C.S.N.) 7-1; Umesh Challiyill v. K.P. Rajendran, (2008) 11 SCC 740 and Nandiesha Reddy v. Kavitha Mahesh (supra). 7. Considering the pleadings, contentions of the learned Counsel for the respective parties, and on a perusal of the documents filed alongwith the election petition, the following issues arise for consideration:- 1. Whether the election petition contains concise statement of material facts as mandated under Section 83(1)(a) of the RP Act? 2. Whether the concise statement of facts stated in the election petition disclose cause of action to try the election petition? 3. Whether non-verification of the contents of the election petition by the election petitioner as required under Section 81(3) of the RP Act is fatal to the case of the election petitioner? 4. 2. Whether the concise statement of facts stated in the election petition disclose cause of action to try the election petition? 3. Whether non-verification of the contents of the election petition by the election petitioner as required under Section 81(3) of the RP Act is fatal to the case of the election petitioner? 4. Whether election petition is liable to be dismissed for not complying with the provisions of Section 81(3) under Section 86(1) of the RP Act? Issue Nos. 1 and 2: 8. The election petitioner, among the grounds stated in Section 100 of the RP Act, seeks to void the election of the returned candidate only on the grounds stated under Section 100(1)(a) and (d)(i) and for consequential relief under Section 101(a) of the RP Act. The provisions of Section 100(1)(a) and (d)(i) reads as under: "Section 100: Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2), if the High Court is of opinion-- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or (b) ........... (c) ........... (d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected-- (i) by the improper acceptance of any nomination, (ii), (iii), (iv) & 2(a) to (c) are omitted) 9. A plain reading of the above provisions; it is understood that Section 100(1)(a) disqualifies a returned candidate if, as on the date of election, he/she was not qualified or was disqualified to contest the election to fill the seat under the Constitution or under the RP Act. Section 100(1)(d)(i) speaks of the election insofar as it concerns a returned candidate, has been materially affected, by improper acceptance of nomination. 10. In the light of the consistent plea of the returned candidate that no material facts are stated and there is no proper verification and attestation of the affidavit, a look at Section 83 of the RP Act is worthwhile, which is as follows: "Section 83. 10. In the light of the consistent plea of the returned candidate that no material facts are stated and there is no proper verification and attestation of the affidavit, a look at Section 83 of the RP Act is worthwhile, which is as follows: "Section 83. Contents of petition:--(1) an election petition-- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b)........; 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: ................ (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." 11. The Supreme Court in Jyoti Basu's case (supra), enunciated the Constitutional position in dealing with election petitions, as follows:- "A right to elect, fundamental though it is to democracy, is anomalously enough, neither a Fundamental Right nor a common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statue, there is no right to elect, no right to be elected and no right to dispute to an election. Statutory creations they are and subject to statutory limitations. The rights arising out of elections, including they are and subject to statutory limitations. The rights arising out of elections, including the right to contest or challenge an election, are not common law rights. They are creatures of the statues which create, confer or limit those rights. Therefore, for deciding the question whether an election can be set aside on any alleged ground the Courts have to consult the provisions of law governing the particular election. They have to function within the framework of that law and cannot travel beyond it." 12. What constitute material facts have been set out in the decision in Ram Sukh's case (supra), wherein it was held thus: "13. The phrase "material facts" has neither been defined in the Act nor in the Code and therefore, it has been understood by the Courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, "material facts" are facts upon which the plaintiffs cause of action or defendant's defence depends." 13. In other words, "material facts" are facts upon which the plaintiffs cause of action or defendant's defence depends." 13. The distinction between "material facts" and "particulars" and their requirement in an election petition was succinctly brought out by the Supreme Court in Virender Nath Gautam's case (supra), wherein it was held thus: "There is distinction between facta probanda (the facts required to be proved i.e., material facts) and facta probanda (the facts by means of which they are proved i.e., particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probantia (material facts) are proved and which are in the nature of facta probanda (particulars or evidence) need not be set out in the pleadings." 14. In Nandiesha Reddy's case (supra), the Supreme Court has observed as follows: "The phrase 'material fact' as used in Section 83(1)(a) of the Act or Order VI Rule 2 of the Code of Civil Procedure has not been defined in the Act or the Code of Civil Procedure. In our opinion all specific and primary facts which are required to be proved by a party for the relief claimed are material facts. It is settled legal position that all material facts must be pleaded by the party on which the relief is founded. Its object and purpose is to enable the contesting party to know the case which it has to meet. An election petition can be summarily dismissed if it does not furnish the material facts to give rise to a cause of action. However, what are the material facts always depend upon the facts of each case and no rule of universal application is possible to be laid down in this regard." 15. In another decision in Hari Shanker Jain's case (supra), the Supreme Court at Para 22 held as follows: "Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well-settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. By a series of decisions of this Court, it is well-settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression cause of action has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet." 16. In T.H. Musthaffa's case (supra), Supreme Court observed that when there is no pleading about a fact, no issue can be framed and the election petition cannot be permitted to let in evidence in the absence of such a plea. It was further observed that if the pleadings did not contain the necessary foundation for raising an appropriate issue, the same cannot go to trial and any amount of evidence in that regard, however, excellent the same may be, will be futile. 17. In Arikala Narasa Reddy's case (supra), the Supreme Court at Para 9 held as follows: "9. This Court has consistently held that the Court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been "materially affected". There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them." 18. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them." 18. From an analysis of the case laws of the Supreme Court as well as this Court it has to be irresistibly concluded that election petition which lacks material facts and particulars and is filed in non-compliance of Section 83 of the RP Act, deserves rejection at the threshold on that ground. But, what constitutes "material facts" is not defined in Section 83(1)(a) of the RP Act or in Order VI Rule 2 of the Code of Civil Procedure. Material facts have to be understood having regard to the facts of each case, regard being given to all specific and primary facts which can be considered as materials supporting the allegations made. It is settled proposition of law that cause of action is a bundle of facts. The expression "cause of action" has not been defined in the Civil Procedure Code, but is more easily understood than precisely defined. The Supreme Court in Om Prakash Srivastava's case (supra), attempted an explanation of the expression in the following words: "The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. 19. Coming to the facts of the case, I have perused the averments of the affidavit filed in support of the election petition to ascertain whether contents pleaded by the election petitioner in election petition constitute material facts giving rise to cause of action to take further steps in the matter. 20. It is specifically stated in the election petition that the returned candidate belonged to Mala caste which is not included in the Presidential order i.e., list of Scheduled Tribes, but she has been claiming herself as belonging to Scheduled Tribe and under Section 4(b) of the RP Act, she is not qualified to contest in reserved seat. 20. It is specifically stated in the election petition that the returned candidate belonged to Mala caste which is not included in the Presidential order i.e., list of Scheduled Tribes, but she has been claiming herself as belonging to Scheduled Tribe and under Section 4(b) of the RP Act, she is not qualified to contest in reserved seat. In support of this material plea, Annexure-3 i.e., LH School admission register of the year 1943, pertaining to (Kothapalli Jacob), father of the retained candidate was filed, wherein his caste was recorded as Adi-Andhra, Annexure-4, is the copy of the show-cause notice dated 2.7.1993 issued to the father of the returned candidate calling for explanation as to why the "Valmiki" caste certificate issued to him and his children should not be cancelled and; Annexure-5 is the proceedings of the Joint Collector, East Godavari District, dated 10.10.1993, wherein the certificates i.e., "Valmiki" caste certificates earlier issued in favour of the returned candidate's father, brother and the returned candidate were cancelled and Annexures-6 and 7 are the copies of the orders passed by this Court in W.P. No. 17954 of 1993 and W.A. No. 98 of 2002; Annexure-9 is the proceedings dated 9.5.1994 of the Commissioner of Tribal Welfare, Hyderabad, wherein it was concluded that the returned candidate cannot be considered as a member of "Valmiki" tribe of the agency tracts and called for her explanation as to why her social status claim as "Valmiki" tribe should not be rejected. Prima facie, all these documents coupled with the averments to the effect that the returned candidate does not belong to Scheduled tribe community constitutes concise statement of facts. The pleadings in the election petition are mixed questions of fact and law and disputed questions of facts are involved. The very election petition is build on the thrust that the returned candidate does not belong to "Valmiki" tribe and she is not a member of Scheduled Tribe and, therefore, she was not qualified to contest to reserved seat as on the date of election. The opinion expressed by the Commissioner of Tribal Welfare is not conclusive in nature, but the said proceedings dated 9.5.1994, under Annexure-9, supports the allegation of the election petitioner that the returned candidate does not belong to Scheduled Tribe Community. The opinion expressed by the Commissioner of Tribal Welfare is not conclusive in nature, but the said proceedings dated 9.5.1994, under Annexure-9, supports the allegation of the election petitioner that the returned candidate does not belong to Scheduled Tribe Community. The confirmation of the caste and social status of the returned candidate as belonging to Scheduled Tribe Community by the District Collector, East Godavari, Kakinada, vide proceedings dated 19.7.2016 under the provision of the A.P. (SC, ST and BCs) Regulation of Issue of Community Certificates Act, 1993, is only for the purposes mentioned in Section 3 of the Act, which does not include that such a certificate issued is also valid for elective post of Member of Lok Sabha. 21. Though the learned Senior Counsel appearing for the returned candidate strenuously contended that only material facts and the documents filed therewith, which if established would give the election petitioner the relief of dislodging the returned candidate alone can be considered as material facts, but in the instant case, the facts and the material annexures filed alongwith the election petition, would constitute material facts, the main thrust being that the returned candidate does not belong to Scheduled tribe community and cause of action of arose based on such material facts as it is alleged by the election petitioner that returned candidate was not qualified as on the date of her election. Therefore, issues 1 and 2 are answered in favour of the election petitioner and against the returned candidate. Issue Nos. 3 and 4: 22. The importance of the sources of information while affirming the facts or verifying the pleadings was dealt with by the Supreme Court in Virendra Kumar Saklecha v. Jagjiwan, (1972) 1 SCC 826 and observed that the real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will also give an opportunity to the other side to test the genuineness and veracity of the sources of information. That will also give an opportunity to the other side to test the genuineness and veracity of the sources of information. In Vinod Ramachandra Ghosalka v. Sunit Dattatray Tatkare, 1997 (3) Bom.C.R. 110 ; the Bombay High Court in similar facts situation, where a true copy of the petition served on the other side contained blanks in the verification statement, though such blanks were filled up in the original petition filed into the Court, held that such lapse on the part of the election petitioner is violative of mandatory provision of Section 81(3) of the RP Act and dismissed the election petition on that ground also. In the instant case, the true copy supplied to the returned candidate, each page is signed and attested, but in the verification statement para numbers are not mentioned as to which paras mentioned are within the personal knowledge of the election petitioner and which paras are based on legal advise of the Counsel, though such blanks are hand written in the petition filed into the Court. There is no omission of any facts and averments, the only dissimilarity is that para numbers are not mentioned in the copy petition supplied to the returned candidate. This Court in Rajendra Pratap Bhanj Deo v. Regu Mahesh @ Regu Maheswar Rao, 2003 (2) ALD 304 ; in a similar case held that non-disclosure of correct source of information as to which part of the pleadings are based on "personal knowledge" and which part is based on "information" based on legal advise vitiates the election petition. It was further held that by the date of hearing of the matter by the Court, no application was filed by the petitioner therein seeking to rectify the lapse or amendment of any paragraph of the body of the petition or the verification, though the permissibility or otherwise of such rectification was a different question and; under those circumstances, the election petition was rejected and dismissed on the ground that there does not exist any valid verification of the pleadings and on other alike grounds. The judgment in Regu Maheswar Rao's case (supra), though confirmed by the Supreme Court, but it was observed by the Supreme Court that deficiencies, if any in the verification and affidavit are of curable nature and the High Court should have granted an opportunity to cure the defects. 23. The judgment in Regu Maheswar Rao's case (supra), though confirmed by the Supreme Court, but it was observed by the Supreme Court that deficiencies, if any in the verification and affidavit are of curable nature and the High Court should have granted an opportunity to cure the defects. 23. In T.M. Jacob's case (supra), at Paras 43, 44 and 45 it is held thus: 43. We are unable to agree with Mr. Salve that since proceedings in Election Petitions are purely statutory proceedings and not "civil proceedings" as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into Section 86(1) read with Section 81(3) of the Act. The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repeal the argument of Mr. Salve. That apart, to our mind, the legislative intent appears to be quite clear, since it divides violations into two classes-those, violations, which would entail dismissal of the election petition under Section 86(1) of the Act like noncompliance with Section 81(3) and those violations which attract Section 83(1) of the Act i.e., non-compliance with the provisions of Section 83. 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 and Ch. Subbarao's cases. 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 position clearly emerges from provisions of Sections 83(1) and 86(5) of the Act, which read: "83. Contents of petition.--(1) An election petition (a) shall contain 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". 86. Trial of election on petition.-- .................... 86. Trial of election on petition.-- .................... (5) The High Court may upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its option be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition." 44. Applying the test as laid down in Murarka Radhey Shyam Ram Kumar's case (supra), to the fact situation of the present case, we came to the conclusion that the defects complained of in the present case were not such as could have misled die appellant at all. The non-mention of the name of the notary or the absence of the stamp and seal of the notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature and, thus, the defect, if at all it could be construed as a defect was not a defect of any vital nature attracting consequences of Section 86(1) of the Act. Under the circumstances, it must be held that there was no failure on the part of the Election Petitioner to comply with the last part of sub-section (3) of Section 81 of the Act and, under the circumstances, Section 86(1) of the Act was not attracted and the Election Petition could not have been dismissed by reason of the alleged failure to comply with the provisions of Section 81 of the Act. In this connection, it is also relevant to note that the appellant, neither in the memo of objections nor in the written objections or in CMP No. 2903 of 1996 has alleged that he had been misled by the absence of the name, rubber stamp and seal of the notary on the copy of the affidavit supplied to him or that he had been prejudiced to formulate his defence. Even during the arguments, learned Counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him. 45. Even during the arguments, learned Counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him. 45. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that 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 (supra), are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged, defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86(1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying 'true copy' of the affidavit to the appellant by the respondent." 24. In Anil R. Deshmukh's case (supra), the Supreme Court at Para 17 held thus: "17. It is to be noticed that the reference is only with regard to the applicability of Dr. Smt. Shipra in cases like the one which arose before the said Bench. In the light of the rulings of the Constitution Bench referred to earlier, we have our own reservations on the correctness of the view expressed in Dr. Smt. Shipra's case (supra), but it is unnecessary in the present case to dwell on the same. As pointed out earlier, Justice Ramaswamy has confined the ruling to the "fact-situation" in that case. In the light of the rulings of the Constitution Bench referred to earlier, we have our own reservations on the correctness of the view expressed in Dr. Smt. Shipra's case (supra), but it is unnecessary in the present case to dwell on the same. As pointed out earlier, Justice Ramaswamy has confined the ruling to the "fact-situation" in that case. Insofar as the present case is concerned, there is a distinguishing factor which makes the ruling in Dr. Smt. Shipra's case (supra), inapplicable. We have already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case the true copies of the affidavits had been served on the first respondent and his Counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance of the provisions of Section 81(3) read with Section 83(1)(c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act. Unfortunately, this aspect of the matter has been completely ignored by the High Court. Hence the order of the High Court dismissing the election petition in limine is unsustainable." 25. The decisions of the Supreme Court in Ram Prasad Sarma's case (supra), Umesh Challiyill's case (supra) and Nandiesha Reddy's case (supra), also categorically held that test to determine is whether any variation from the original copy of the petition has the effect of misleading the returned candidate. In other words, the test would be whether such defects would go to the root of the matter or were only cosmetic in nature. It is stated that if variations are minor from the prescribed format, election petition cannot be dismissed on minor breaches of procedure. In the instant, a true copy of the election petition filed into the Court was served on the returned candidate, the only dissimilarity, as observed above, is para numbers were not mentioned in the verification statement, though para numbers were mentioned by handwriting in the election petition filed into the Court, which is curable defect being cosmetic in nature. The election petition contains only minor variations from the prescribed format, but it conveyed the substance and essence of the contents of the petition. The election petition contains only minor variations from the prescribed format, but it conveyed the substance and essence of the contents of the petition. Therefore election petition, in the facts and circumstances of the case, cannot be dismissed on minor breaches of procedure. In view of the above judgment rendered by the Supreme Court on this issue, the returned candidate cannot succeed in this petition relying on the judgment rendered by the Bombay High Court in Vinod Ramchandra Ghosalkha's case (supra). 26. On the analysis above, issues 3 and 4 are also answered in favour of the election petitioner and against the returned candidate and in the result, E.A. No. 11 of 2015 is dismissed. Insofar as E.A. No. 12 of 2015 is concerned, the paragraphs which are sought to be struck off are paras i.e., 7, 7(i) to 7(ix), 8 and 9, which are details of statement of facts of case and Annexures I to IX filed therewith are details and documents filed in support averments of the election petition. The relevance or otherwise of those contents will have to be tested during the course of trial of the election petition and not at this stage. If those paras are struck off at this stage, nothing remains for consideration in the election petition. However, it is to be noticed that in the grounds of the election petition, there is no pleading to the effect that improper acceptance of the nomination by the returning officer materially affected by reason of improper acceptance of such nomination. Therefore, as observed by this Court in the case of Pendyala Venkata Krishna Rao v. Pothula Rama Rao, 2005(3) ALD 47 ; it is incumbent on the part of the election petitioner to allege, how the said improper acceptance of nomination or the non-compliance of the provisions materially affected the result of the returned candidate. Mere quoting the provision of law, without there being a pleading in support of that ground, the ground raised under Section 100(1)(d)(i) of the RP Act is not available to the election petitioner. Hence, the pleadings and ground raised under Section 100(1)(d)(i) of the RP Act for setting aside election, to that extent only is struck off, while maintaining the other grounds. E.A. No. 12 of 2015 is allowed to the extent indicated above.