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2022 DIGILAW 784 (RAJ)

Prahlad Gunjal v. Shanti Kumar Dhariwal

2022-03-07

ASHOK KUMAR GAUR

body2022
ORDER 1. The application No.46369/2019 has been filed by the respondent No.6 under Order 7 Rule 11 CPC read with Sections 80, 81, 82, 83, 86 & 87 of the Representation of People Act, 1951 (hereinafter shall be referred to as 'the Act of 1951') and Rule 94- A of the Conduct of Election Rules, 1961 (hereinafter shall be referred to as 'the Rule of 1961'). 2. Following are the objections which have been raised by the respondent No.6 in the application under consideration:- A. Copy of the election petition received by the respondent No.6 is not duly signed by the petitioner which is a mandatory requirement as per Section 81(3) of the Act of 1951. B. The petitioner has not made proper party as respondent in the Election Petition and the direction has been sought against the Election Commission of Rajasthan to hold fresh election and as such the Election Commission of Rajasthan has not been made party respondent. C. The petitioner has not mentioned the cause of action in his election petition and the same is mandatory as per Section 33(1A), 36, 100(1)(b) and 123(4) of the Act of 1950. The sub-clause (a) of Order 7 Rule 11 CPC provides for rejection of plaint if it does not disclose the cause of action. D. The election petition has not been filed by the petitioner verifying the pleadings according to sub-clause (1) of Order 6 Rule 15 CPC as nowhere at the foot of the election petition, the petitioner has filed an affidavit about verification of the pleadings. E. The allegation of corrupt practice if made against the Returned Candidate, then it is mandatory to furnish an extra affidavit along with the prescribed form under Rule 94-A of the Rules of 1961 and a proforma of affidavit has been given in the Rules of 1961, known as Form No.25 and the same is not filed, as such, the election petition is required to be dismissed. 3. Learned counsel for the respondent No.6 in support of his submissions has placed reliance on the judgment of the Supreme Court in the case of Azhar Hussain V. Rajiv Gandhi reported in AIR 1986 Supreme Court 1253 and Dhartipakar Madan Lal Agarwal vs. Shri Rajiv Gandhi reported in AIR 1987 SC 1577 . 4. 3. Learned counsel for the respondent No.6 in support of his submissions has placed reliance on the judgment of the Supreme Court in the case of Azhar Hussain V. Rajiv Gandhi reported in AIR 1986 Supreme Court 1253 and Dhartipakar Madan Lal Agarwal vs. Shri Rajiv Gandhi reported in AIR 1987 SC 1577 . 4. Counsel for the petitioner has filed reply to the application filed by the respondent No.6 and made following averments:- (i) The petitioner while filing the election petition has strictly followed the provisions contained under Chapter-II of the Act of 1951 and the provisions envisaged under Section 80 & 81(3) of the Act of 1951, have been meticulously followed. (ii) The petitioner has made full compliance of the provisions of Section 82 of the Act of 1951 and necessary parties have been included in the title of the Election Petition and there is no requirement of inclusion of Election Commission of Rajasthan as necessary party. (iii) The Election Petition filed by the petitioner gives the material facts and also provides cause of action and definite allegations have been levelled against the Returning Candidate of corrupt practices as defined under Section 123(4) of the Act of 1951. (iv) The petitioner has duly verified the pleadings and each page of the election petition is duly signed by him and there is no violation of Order 6 Rule 15(1) CPC. (v) The petitioner has produced the proper affidavits, as required under the law and to prove the corrupt practices, the affidavits of witnesses will be filed during the proceedings and in support of affidavit, ocular testimony of the witnesses, will also be led during pendency of the Election Petition. 5. Learned counsel for the petitioner submitted that neither the Election Commission of India nor the Election Commission of Rajasthan is necessary party and as such he refers to the judgment passed by the Bombay High Court in the case of Election Commission of India Vs. Rajabhau (Parag) Prakash Waje and Ors. (Election Petition No.22/2019). 6. Learned counsel for the petitioner submitted that the petitioner has disclosed all the material facts which are sufficient to bring an action against the respondents and as such material facts revealed in the Election Petition would not entail dismissal of election petition. Rajabhau (Parag) Prakash Waje and Ors. (Election Petition No.22/2019). 6. Learned counsel for the petitioner submitted that the petitioner has disclosed all the material facts which are sufficient to bring an action against the respondents and as such material facts revealed in the Election Petition would not entail dismissal of election petition. Learned counsel in support of the said submissions place reliance on the judgment passed by the Karnataka High Court in the case of Prasanna Kumar Vs. G.M. Siddeshwar reported in AIR 2010 (Kar) 113 . 7. Learned counsel for the petitioner submitted that though the petitioner has filed the pleadings and has complied with the provisions contained in Order 6 Rule 15 CPC but even if there is infraction of sub-section (3) of Section 81 of the Act of 1951 and there has been no attestation on every page but only at the end of the election petition, the election petition cannot be dismissed on the said ground. In support of the said submissions he places reliance on the judgment passed by the Orissa High Court in the case of Kanak Vradhan Singhdeo Vs. Sri Bibekananda Mehar and Others reported in 1991 AIR (Orissa) 231. 8. Learned counsel for the petitioner submitted that as far as filing of extra affidavit, as per Rule 94-A of the Rules of 1961 in Form No.25 is concerned, the Apex Court in the case of A. Manju Vs. Prajwal Revanna reported in 2021(15) Scale 299 has clearly held that the Election Petition cannot be thrown out at threshold on the plea that the petition is not supported by affidavit in Form No.25. 9. Learned counsel for the petitioner further submitted that the Apex Court in the cases of Ishwardas Rohani Vs. Alok Mishra and Others reported in (2012) 7 SCC 309 and Ajay Makan Vs. Adesh Kumar Gupta & Anr. reported in (2013) 3 SCC 489 has laid down the law that provisions of Section 83(1) of the Act of 1951 would not be fatal and they would not result into dismissal of election petition. 10. I have heard the learned counsel for the parties and with their assistance perused the material available on record. 11. This Court firstly considers the objection of the respondent No.6 with regard to non attestation/verification of the Election Petition and whether such failure would entail rejection of the Election Petition. 10. I have heard the learned counsel for the parties and with their assistance perused the material available on record. 11. This Court firstly considers the objection of the respondent No.6 with regard to non attestation/verification of the Election Petition and whether such failure would entail rejection of the Election Petition. This Court finds that the Apex Court in the case of T.Phungzathang Vs. Hangkhanlian and others reported in (2001) 8 SCC 358 has held that copy of the affidavit not containing the verification and attestation of the Notary/Oath Commissioner is only a curable defect. The Apex Court in the case of T.M. Jacob Vs. C. Poulose and others reported in (1999) 4 SCC 274 has examined the doctrine of substantial compliance and doctrine of curable defect and held that it is only the violation of Section 81 of the Act of 1951 which can attract the application of doctrine of substantial compliance and the defect of the type, provided under Section 83 of the Act of 1951, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. 12. This Court finds that objection of the respondent No.6 that pleadings have not been verified and signed by the petitioner, though this fact has been disputed by the petitioner, however, such defect if at all is still there, the Election Petition cannot be thrown out on this ground, as per the judgments passed by the Apex Court as referred above. 13. The next issue raised by the respondent No.6 is about non impleadment of Election Commission of Rajasthan as party respondent in the Election Petition, this Court finds that the petitioner has arrayed the Returned Candidate; District Election Officer, District Collector Kota; and the Returning Officer (SDM) Assembly Election Area, Kota North as the party respondents and other candidates, who have contested the election, have also been arrayed as proforma respondents. 14. The objection of the respondent No.6 with regard to non impleadment of Election Commission of Rajasthan as party, this Court finds that the Apex Court in the case of Jyoti Basu & Others vs Debi Ghosal & Others reported in AIR 1982 SC 983 and in the case of Michael B. Fernandes Vs. 14. The objection of the respondent No.6 with regard to non impleadment of Election Commission of Rajasthan as party, this Court finds that the Apex Court in the case of Jyoti Basu & Others vs Debi Ghosal & Others reported in AIR 1982 SC 983 and in the case of Michael B. Fernandes Vs. C.K. Jaffar Sharief and another reported in (2002) 3 SCC 521 , has laid down the law that neither the Election Commission of India nor the Chief Election Officer of Returned Candidate, is necessary party to the election petition. 15. The contention of respondent No.6 that the petitioner has failed to file extra affidavit, as per Rule 94-A of the Rules 1961 in Form No.25, this Court finds that the Apex Court in the case of A. Manju Vs. Prajwal Revanna (supra), has again reiterated the law that the Election Petition cannot be thrown away at threshold on the plea of the defeated candidate that petition is not supported by affidavit in Form No.25. The Apex Court has reiterated the principle as laid down in the case of G.M. Siddeshwar Vs. Prasanna Kumar reported in (2013) 4 SCC 776 that opportunity must be given to the election petitioner to cure the defect and merely because the affidavit is defective, it cannot be said that the election petition is not properly filed. 16. This Court accordingly finds that the application filed by the respondent No.6 deserves to be dismissed and is hereby dismissed. 17. Office to proceed further and list this case after two weeks.