Prasanna Kumar v. G.m. Siddeshwar & Others

(Misc.Cvl.386 of 2010 is filed by the respondent No.1 under section 81(3), 83 and 86 of the representation of people act, 1951 read with order VII Rule 7 of the C.P.C. to dismiss/reject the election petition in the interest of justice and equity.

Misc.Cvl.1431 of 2010 is filed by the respondent No.1 under order VI Rule 16 of the C.P.C., 1908 to strike out paragraph Nos.1 (III)(1) to (iv), II (2) to (17) of the election petition in the interest of justice and equity.)

ORDER ON MISC.CVL.NOS.386 AND 1431 OF 2010

The petitioner has challenged the validity of the election of the first respondent to the 15th Lok Sabha from 13 Davanagere Lok Sabha Constituency at the election held on 30.04.2009 and the result of the election declared on 16.05.2009. The respondent No.1 has filed Misc. Cvl. 386/2010 invoking Section 81(3), 83 and 86 of the Representation of People Act, 1951 (hereinafter called the said Act) r/w Order VII Rule 11 of the C.P.C. for the dismissal/rejection of the election petition and Misc.Cvl.1431/2010 invoking Order VI Rule 16 of the C.P.C for striking out paragraph Nos.1(III) (i) to (iv), II(2) to (17) of the election petition.

2. Sri M.B. Naragund, the learned counsel for the respondent No.1 complains of the non-compliance of the second part of Section 81(3) of the said Act which reads as follows:

(3) . every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.

He submits that the copies of the petition are merely signed by the petitioner and his advocate. There is no attestation whatsoever. Even at the end of the election petition also, there is no attestation by the petitioner as the true copy. He further submits that every page of the annexures to the election petition has got to be attested by the petitioner as true copy. But the same has not been done by the petitioner. Only at the end of each annexure, the petitioner has attested the concerned annexure as the true copy. He further submits that the petitioner has produced 4 compact disks as Annexure-14 to the election petition. He complains of the breach of Section 83(2) of the said Act, which prescribes that any schedule or annexure to the election petition shall be signed by the petitioner and verified in the same manner as the petition. Neither the petitioner nor the Notary has attested the compact disks as the true copies. There is no certification by the concerned Returning Officer on the compact disks in question.

3. According to the learned counsel, every annexure referred to in the election petition and its supporting affidavit requires to be attested and certified by the concerned Notary. Notary has failed to put his signature and seal on every page of every annexure. None of the annexures are verified as required by law, so contends Sri Naragund.

4. The learned counsel submits that, as per Order VI Rule 15(4) of the C.P.C., the person verifying the pleadings shall also furnish an affidavit in support of his pleadings. There is no verifying affidavit filed with the petition as required by law.

5. Nextly Sri Naragund submits that the petition suffers from the misjoinder of unnecessary parties. As per the provisions contained in Section 82(a) of the said Act, when the petitioner has not claimed a further declaration that he himself or any other candidate has been duly elected, he ought not to have roped in these proceedings the respondent Nos.2 to 28.

6. Sri Naragund submits that as per the proviso to Section 83 of the said Act, the election has to be accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice and the particulars thereof, where the petitioner alleges any corrupt practice. As per Rule 94-A of the Conduct of Elections Rules, 1961, the affidavit referred in the proviso to sub-section (1) of Section 83 shall be in Form No.25. The said Form No.25 requires specification of the name of the corrupt practice.

7. The learned counsel also takes exception to the petitioner stating that contents of certain paragraphs are based on both his information and his knowledge; they have to be based either on information or on knowledge and not on both.

8. In the instant case, the petitioner though has made allegations of corrupt practice in para Nos.3, 4, 6, 8, 9, 10, 15 and 16 of the petition, he has failed to give the material facts and particulars. The petitioner has failed to give the material facts in the pleadings set out in Para Nos.3, 4, 6, 7, 8, 9 and 10. As the complete cause of action is not disclosed, the election petition is liable to be rejected. He brings to my notice that the petitioner has not mentioned paragraph No.7 in para (c) of Form No.25. The learned counsel submits that in paragraph No.15 of the petition, it is stated that the respondent No.1 accused the owners of the Shamanur Sugars Limited, Duggavathi that they swindled Rs.17.81 crores. The source of the said information is Prajavani issue, dt.17.04.2009 (Annexure-21). Its reading does not reveal that the respondent No.1 has made any such statement.

9. According to the learned counsel, the petition contains no material particulars as to how the Principal, GMIT is either the employee or the benamidar of the first respondent. The petition allegation contained in para No.II (13) is that if only the Janata Dal (S) candidate and independent candidates were permitted to withdraw their nominations, the second respondent would have got more number of votes than the first respondent. This allegation is too vague to be considered, so contends Sri Naragund.

10. Similarly, in paragraph 16 of the election petition, there is no reference to the death of Vijaykumar Kodajji. It contains no material particulars such as who made the threat, at which place and in what words and gestures, who are all the eye witnesses, on what basis Kasturamma is taken to be the ardent follower of B.J.P., etc. Advancing these submissions, he prays for striking off paragraph No.16 of the election petition.

11. Urging these contentions, Sri Naragund submits that the election petition is required to be rejected under Section 86 of the said Act for the non-compliance with the requirements of Section 81 and 82 of the said Act. He also submits that as the election petition does not disclose a complete cause of action, it is liable to be rejected under Order VII Rule 11(a) of the C.P.C.

12. Per contra, Sri Ko. Channabasappa, the learned counsel for the petitioner submits that the applications for the dismissal/rejection of the election petition and for striking out certain pleadings are filed only with a view to protract the proceedings. He submits that there are no bona fides in the Misc.Cvl. applications. They are frivolous, vexatious and absolutely untenable. The learned counsel contends that the election petition can be rejected or dismissed only for the non-compliance with the provisions contained Sections 81 or 82 or 117 of the said Act. He enumerated the three conditions under which the election petition can be dismissed as follows:

a) Where the election petition is not presented within 45 days.

b) Where as many copies as the respondent are not supplied.

c) Where the security amount is not deposited.

13. Sri Channabasappa submits that Order VII Rule 11 CPC is invokable only (a) when the petition does not disclose the cause of action, (b) where it is written on insufficiently stamped paper, (c) where it is barred by any other law, (d) where it is not filed in duplicate and (e) where the petitioner/plaintiff fails to comply with the provisions of Rule 9.

14. The omission to write true copy at the foot of the election petition and its annexures does not entail in the dismissal of the election petition. Rule 15(4) of Order VI is not applicable to the election petition. Sri Channabasappa submits that the omissions complained of are of technical nature; technical omissions should not defeat the ends of justice.

15. On the misjoinder of the parties, it is Sri Channabasappas submission that Section 82 of the said Act does not state that if the declaratory relief is not sought, none else can be made a party. Even assuming that the respondents 2 to 28 are made parties unnecessarily, they can be deleted; but on the ground of their being made parties to this election petition, this petition cannot be dismissed. He also submits that it is for the other respondents to pray for their deletion from the array of the parties. The respondent No.1 need not be concerned with their presence or absence.

16. The learned counsel submits that the respondent No.1 is not justified in stating that no material particulars of corrupt practices are furnished in the election petition. The respondent No.1 has filed the statement of objections running into 47 pages meeting every averment and allegation in detail. The plea of inadequacy of information cannot be taken in Misc.application, when it is not taken in the written statement. The petitioner has set out all the material particulars, which are necessary and relevant for the adjudication of the petition.

17. In the course of the rejoinder, Sri Shashikanth, the learned counsel for the respondent No.1 (applicant) submits that even when the defects in the election petition are pointed out, the election petitioner has not cared to rectify them. As no remorse is expressed, no compliance is shown, he prays for the dismissal of the election petition. He submits that if the petitioner is directed or permitted to rectify the defects at this juncture, it would put the respondent No.1 to prejudice.

18. Though other respondents are not parties to the two Misc.Cvl. applications, this Court thought it fit to hear their learned advocates. Sri G.R. Jayanna, the learned counsel for the respondent No.13, Sri M. Srinivas the learned counsel for the respondent No.23 made their submissions on the retention or deletion of other respondents, who are the defeated candidates. Sriyuts Jayanna and Srinivas argued that the defeated candidates are also necessary and proper parties. But they have not placed any argument on the retention or deletion of other respondents with the specific reference to Section 82(a) of the said Act.

19. Both the learned advocates, Sriyuts Naragund and Channabasappa cited a good number of reported and unreported decisions. They would be considered in the course of answering the questions falling for my consideration.

20. The first question that falls for my consideration is whether the defeated/non-returned candidates can be arrayed as the respondents in the election petition, wherein the election petitioner does not claim a declaration that he himself or any other candidate has been duly elected If the answer to this question is in the negative, whether the election petition is liable to be rejected in limine on the ground of the misjoinder of parties

21. It is necessary to refer to two decisions of the Apex Court for answering these questions. The Honble Supreme Court in the case of Jyoti Basu and Others v. Debi Ghosal and Others, reported in (1982) 1 SCC 691 [LQ/SC/1982/56] has held that the concept of proper parties is alien to an election dispute under the Representation of People Act, 1951. The question as to who are to be made parties to the election petition has to be answered within the four corners of the said statute. Section 82(a) of the Act, reads as follows:

(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates:

22. A plain reading of the afore-extracted provisions makes it clear that the ring is closed to all except the election petitioner and the returned candidate, if no declaration to the effect that the petitioner or any other candidate has been duly elected, is sought. Other candidates who have contested and lost the elections are not to be made parties, in the absence of the further declaratory relief.

23. The allied or consequential question that is required to be answered is, if all the contesting candidates are made parties even in the absence of the prayer for declaration that the petitioner or particular candidate be declared as elected, what should happen to the election petition As held by the Honble Supreme Court in the case of B.S. Yadiyurappa v, Mahalingappa and Others, reported in AIR 2001 SC 1041, joining other (non-returned) contestants as respondents is only in excess of the requirements of Section 82 of the said Act. No penalty is provided in such an eventuality. The Honble Supreme Court has held that the Tribunal or the High Court, as the case may be, may strike out a party, who is not necessary. The relevant portions of the said judgment are extracted hereinbelow:

8. it does not however follow that if to an election petition parties other than those who are necessary parties under Section 82 have been impleaded, the elections petition is one that does not comply with the provisions of Section 82 and must be dismissed. Such a petition can be amended by striking out from the array of parties those additionally impleaded.

24. In the wake of these judgments, the prayer of the respondent No.1 for the dismissal/return of the election petition on the ground of misjoinder of parties, cannot be acceded to. On the other hand, this Court would direct that the respondent No.2 to 28 be struck out from the array of the respondents.

25. Nextly, the questions that falls for my consideration are whether the pleadings contain material facts calling for the trial of this petition Whether the election petition discloses complete cause of action The following decisions are of great assistance in answering these questions.

26. The Honble Supreme Court in the case of Samant N. Balkrishna and Another v. George Fernandez and Others reported in 1969 (3) SCC 238 [LQ/SC/1969/63] , has held that the material facts of corrupt practices must be stated in the petition. The date and place of the commission of each alleged corrupt practice are required to be furnished in the election petition. If the material facts are missing, it is impossible to think that the charge has been made or can be amplified later.

27. In the case of Sudarsha Avasthi v. Shiv Pal Singh reported in (2008) 7 SCC 604 [LQ/SC/2008/1290] , the Honble Supreme Court has held that if the allegations of the corrupt practices are lacking in preciseness, seriousness and credibility, the matter need not be gone into trial. The Kerala High Court in the case of K.C. Madhava Kurup v. K. Muraleedharan reported in AIR 1991 Kerala 20, has held that the election petition is not maintainable, if it does not contain the material facts and full particulars of corrupt practices.

28. In the context of the charge of corrupt practice, material facts would mean all basic facts constituting the ingredients of particular corrupt practice, which the petitioner has to substantiate before he can succeed on that charge. The election petition must contain the concise statement of material facts on which the petitioner relies. Failure to state even a single material fact would entail in the dismissal of the election petition. In this context, the Honble Supreme Court, in the case of Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar reported in (2009) 9 SCC 310 [LQ/SC/2009/1716] , has this to observe and hold:

50. 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 theto incorporate the material facts in the election petition are not complied with.

61. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are material facts which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the.

29. The Honble Supreme Court in the case of Ramsukh v. Dinesh Aggarwal reported in (2009) 10 SCC 541 [LQ/SC/2009/1876] , has taken the considered view that the success of a winning candidate should not be lightly interfered with; at the same time the Courts have to ensure that people do not get elected by indulging in corrupt practices. As Section 87 of the said Act makes the provisions of the C.P.C. applicable to the extent possible, invoking Order VI Rule 16 and Order 7 Rule 11 of the C.P.C., the meaningless litigation, which is otherwise bound to be abortive, should not be permitted to occupy the judicial time of the Courts.

30. The Honble Supreme Court has taken the considered view in the case of Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi reported in 1987 (Supp) SCC 93, [LQ/SC/1987/471] that the emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the Court to scrutinize the pleadings relating to corrupt practice in a strict manner. Those paragraphs of the petition, which do not disclose any cause of action are liable to be struck out under Order VI Rule 16 of C.P.C.

31. As held by this Court by its order, dated 23.4.1992 passed on I.A.VI in E.P.2/1991, the general and vague allegations raised in the election petition do not constitute a cause of action to go for trial. In the said case, the deification of Sri Rajiv Gandhi for vote-catching was found to be too general an allegation; it was held that no triable issue would arise out of such a pleading.

32. As held by this Court in the case of Sri Ramu v. Sunil Vallapure and Others reported in ILR 2005 KAR 2823, the object of Order VI Rule VI of the C.P.C. is obviously to retain only such pleas which are relevant for the purpose of deciding the case.

33. As held by the Apex Court in the cases of Hardwari Lal v. Kanwal Singh reported in (1972) 1 SCC 214 [LQ/SC/1971/639] and Azhar Hussain v. Rajiv Gandhi reported in 1986 (Supp) SCC 315, [LQ/SC/1986/152] it is manifest that the election petition shall contain, shall set forth the particulars of corrupt practices. This Court may strike out any matter in the pleading, which may be unnecessary or may delay the fair trial of the suit.

34. Keeping in view the aforesaid authorities, what is averred in para II.(15) of the petition has to be considered. The said paragraph reads as follows:

(15) The petitioner further begs to submit that the 1st respondent committed corrupt practice of publication of false statement of fact which he knew was false and did not believe to be true, which falls within the mischief of sub-section (4) of Section 123 of the 1951 Act. At a public meeting held on 16.4.2009 at Duggavathi and Nittur ion Harapanahalli, the 1st respondent himself accused that the owners of M/s. Shamanur Sugars limited at Duggavathi had swindled Rs.17.81 crores collected by the owners of the factory from the sugarcane growers for developing the rural roads and the Honble High Court had directed them to refund the amount to the growers. It was also alleged at the said meeting that there were several such dishonest malpractices on the part of the owners of the Shamanur Sugars. The 2nd respondent is the son of Sri Shamanur Shivashankarappa, M.L.A., who is the Chairman of the Shamanur Sugars limited. The petitioner submits that this false statement of fact regarding the personal character of the owners of M/s. Shamanur Sugars of which the 2nd respondent is a member of the Joint Family made with a view to further the prospects of the election of the 1st respondent. This corrupt practice entails declaring the election as void and setting aside the election of the 1st respondent. A copy of the Prajavani daily dated 17.4.2009 is produced as Annexure-21.

35. The newspaper copy, which is produced as Annexure-21 does not contain any statement made by the respondent No.1 against the respondent No.2. It only states that the Revenue Minister, Mr. Janardhan Reddy would expose the misdeeds of the Duggavathi Sugar Factory, which is under the ownership of Sriyuths Shamanurs. The said Mr. Reddy has further stated that the Shamanurs have committed misappropriation by collecting a sum of Rs.17.81 crores from the sugarcane growing farmers and by not developing the roads. Mr. Reddys further statement is that the High Court has censured the Board of Directors of the said factory and has directed it to disburse the amounts to the farmers.

36. Thus, the plain reading of the newspaper does not reveal that the respondent No.1 himself has leveled any allegation against the respondent No.2 in respect of the irregularities in Duggavathi Sugar Factory. Section 123(4) of the said Act speaks of the publication of a statement which the person believes to be false or does not believe to be true. In para (II) 15 of the election petition, the contents of which are extracted hereinabove, there is no denying or disputing of this Courts passing the order directing the Board of Directors of Duggavathi Sugar Factory to disburse the amounts to the farmers. Mere reproducing or quoting the words from the section of the statute would not do. The election petitioner has to state how he has come to know that the allegation made by the said Mr. Reddy against the Shamanurs is false. The petitioner does not state that the Shamanurs have denied the allegation or that they have informed the petitioner that the allegation is false. I do not see any scope for retaining the paragraph containing this allegation in the election petition. It does not reveal the cause of action for examination by the Court.

37. Charges of corrupt practices have quasi criminal bearing. The sketchy, amorphous and vague statements are not sufficient to constitute the corrupt practices. The contents of the paragraph No (II) 15 do not call for the framing of the issue thereto, as the allegations made are vague and deficient. The Court strikes out paragraph Nos.III(iv) and II(15) of the election petition.

38. The allegations contained in the other paragraphs carefully read would mean that the result of the election has materially been affected. I therefore do not think the other pleadings can be struck off at this stage. The averments made in other paragraphs cannot be said to be obviously vexatious, frivolous, unnecessary and scandalous. Therefore they are not being struck off. We are here not at the stage of trial but only at the stage of pleadings.

39. In turning down the prayer for striking out the pleadings, I am guided by the Honble Supreme Courts judgment in the case of Saativijaykumar v. Thotasingh and Others, (2007) AIR SCW 304, wherein it is held that normally a Court cannot direct the parties how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the Court would not order striking out the pleadings. The power to strike out pleadings is extraordinary in nature and must be excised by the Court sparingly and with extreme care caution and circumspection.

40. Nextly, the questions that fall for my consideration are whether the non-attestation at the foot of the election petition and its annexures would entail in the rejection of the election petition Whether the Notarys failure to put his signature and seal on every page of every annexure entails in the dismissal of the election petition

41. In this regard, it is worthwhile to refer to the Kerala High Court judgment in the case of K.K. Mohamad Koya v. P.M. Sayeed, reported in AIR 1977 Kerala 160. In the said case, all the copies of the petition were signed by the petitioners before and after verification but the copies were not attested as true copies. It was held that there was substantial compliance with Section 81(3) of the said Act. The preliminary objections raised being akin to the said Kerala case, I refuse to return the election petition on the ground of there being no attestation at the foot of the copies that they are the true copies.

42. The Honble Supreme Court in the case of T. Phungzathang v. Hangkhanlian and Others, reported in (2001) 8 SCC 358 [LQ/SC/2001/1881] , has held that the copy of the affidavit not containing the verification and attestation of the Notary/Oath Commissioner is only a curable defect.

43. In its judgment in the case of T.M. Jacob v. C. Poulose and Others, reported in (1999) 4 SCC 274 [LQ/SC/1999/429] , the Honble Supreme Court has examined the doctrine of substantial compliance and doctrine of curable defect. The relevant paragraphs of the said judgment are extracted hereinbelow:

38. 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. It is too late in the day to so urge. The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr. Slave. 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 thelike non-compliance with Section 81 (3) and those violations which attract Section 83(1) of the Act, i.e., non-compliance with the provisions Section 83. It is only the violation of Section 81 of thewhich can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhe Shyam and Ch. Subbarao 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 the provision of Section of 83(1) and 86(5) of the..

40. 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 thewith 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. 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 test suggested in Murarka Radhe Shyam case 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 Sec 86(1) of the for alleged non-compliance with the last part of Section 81(3) of theand that there had been substantial compliance with the requirements of Section 81(3) of thein supplying true copy of the affidavit to the appellant by the respondent.

44. It is not a must that the grievance over the non-compliance with certain statutory requirements be considered at the pre-trial stage itself. The High Courts order that that the compliant of non-compliance with Section 83 of the said Act can be considered even after the election petition had been put to trial is upheld by the Honble Supreme Court in the case of Patel Dipakbhi Chimanbhai v. Chavda Ishwarbhai Kohdabhai reported in (2005) 12 SCC 187. In the said case, the Honble Supreme Court also observed that the plea of non-compliance with the said provision is available for being urged by the appellant in the appeal against the judgment of the High Court in the event of an occasion arising for the purpose.

45. The requirement of Section 83(2) of the said Act is that any schedule or annexure to the election petition shall also be signed by the petitioner and verified in the same manner as the petition. No affirmation or verification is required to be made by the Notary himself. In taking this view, I am fortified by the judgment of the Honble Supreme Court in the case of Badruddin Qureshi v. Prem Prakash Pandey, reported in (1998) 9 SCC 488 [LQ/SC/1997/1692] .

46. Considering the gamut of case-law, this Court forms the view that the ends of justice would be met by repelling the first respondents insistence that every page and every annexure to the election petition has to bear the Notarys signature and seal but by directing the petitioners side to attest every copy of the election petition as true copy.

47. The grievance over the non-verification of the compact disk is also required to be considered. The objection over the compact disks not containing the petitioners verification turns on the short point of construction. Section 83 (2) of the said Act reads as follows:

83.(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

48. Section 83(2) applies only to the schedule or annexure which is an integral part of the election petition and not to a document which is produced as evidence of the averments of the election petition. The averment in paragraph 11 of the election petition is that a copy of the returning officer is produced at Annexure-14 with compact disks. Therefore the compact disks are virtually in the nature of annexures to the annexure to the election petition and not annexures to the election petition as such. The objection regarding the non-verification of the compact disks is therefore overruled. If the respondent No.1 has any other objection, he can raise the same in the course of the trial or at any other appropriate stage.

49. Two other related questions raised by the first respondent are whether the affidavit accompanying the election petition conforms to filing of the Form No.25 prescribed by the Conduct of Election Rules, 1961 Whether the election petition has to be accompanied by the verifying affidavit as required under Order VI Rule 15(4) of the C.P.C.

50. Form No.25 as prescribed by Rule 94A of the Conduct of Election Rules, 1961 is as follows:

FORM 25

(see rule 94A)

Affidavit

I, .., the petitioner in the accompanying election petition calling 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 .. 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 information;

(c)

(d)

etc.

Signature of deponent.

Solemnly affirmed/sworn by Shri/Shrimati .at .. this day of 19

Before me,

Magistrate of the first class/Notary/

Commissioner of Oaths.

51. The petitioners affidavit accompanying the election petition reads as follows:

FORM 25

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(ORIGINAL JURISDICTION)

ELECTION PETITION NO.2/2009

BETWEEN:

Prasanna Kumar . Petitioner

AND:

Sri G.M. Siddeshwar and others .. Respondents

AFFIDAVIT

I, Prasanna Kumar, the petitioner in the accompanying Election petition, calling in question the election of Sri G.M. Siddeshwar (1st respondent in the said petition) make solemn and affirmation on oath and say

(a) That I am an elector in 13 Davanagere Lokasabha Constituency in Harihar Assembly Segment and I am fully aware and acquainted with the facts of the case and swear to this affidavit.

(b) That the statements made in paragraphs 1, 2, 3, 5, 7, 8, 11, 12 and 13 & 14 of the accompanying Election Petition about the violation of the law during the conduct of election and the particulars mentioned in the above noted paragraphs are true to my knowledge and contents of paras 18, 19, 20 and 21 are based on legal advise;

(c) That the statements made in paragraphs 3, 4, 6, 8, 9, 10, 15 and 16 of the accompanying Election Petition about the commission of electoral offence of corrupt practices and the particulars mentioned in the said paragraphs of the petition are true to my knowledge and partly on information.

(d) That Annexures 1 to 14 and 18, 19, 20, 22, 23, 24 are true copies and 15, 16, 17, 21 are original copies.

Sd/-

Signature of the Deponent

Solemnly affirmed/sworn to by Sri Prasanna Kumar at Bangalore, this the 18th day of June 2009.

Sd/-

Identified by me Sd/-

Corrections: (nill). Sworn to before me

52. If the prescribed form and the affidavit filed are compared, one would not find the verbatim compliance; but the petitioners affidavit is in substantial compliance with the prescribed form. The petitioner has filed the affidavit which combines in itself the requirements of both Rule 94-A of the Conduct of Election Rules, 1961 and Order VI Rule 15(4) of the C.P.C. This Court does not find any non-compliance, much less any illegality in what the petitioner has done. The respondent No.1 cannot insist that the petitioner has to file a separate affidavit as required under Order VI Rule 15(4) of C.P.C. This Court in the case of G. Mallikarjunappa and Another v. Shamanur Shivashankarappa and Others, reported in ILR 1999 KAR 908 has upheld the view that the form as prescribed in the Representation of the People Act, will have an overriding effect and that one cannot go back to C.P.C. for this purpose.

53. This Court, by its order, dated 11.01.2005 on I.A.Nos.I, II and III passed in E.P.No.11/2004 has held that the election petition cannot be dismissed on technicalities, if there is substantial compliance in the matter for verification, as required under Section 81(1) (c) and 83(1) of ther/w. Rule 94-A and Form 25.

54. The object of requiring verification of affidavit to an election petition is clearly to fix the responsibility for the averments and the allegations made in the petition; it is to discourage the election petitioner from making wild and irresponsible allegations. Viewed in this perspective, the wrong verification or the defect in verification or omission of verification are to be treated as mere irregularities and not illegalities. As they are not fatal infirmities, they are curable. In the facts and circumstances of the present case, it cannot be held that there is no affidavit supporting the allegation of corrupt practice as required by the proviso to 83(1) of the said Act.

55. Yet another issue to be considered is whether the allegation of corrupt practice can be based both on information and knowledge or only on one of them There are different judicial views on this aspect of the matter. The Honble Supreme Court in the case of Baldev Singh v. Shinder Pal Singh and Another reported in (2007) 1 SCC 341 [LQ/SC/2006/966] , has observed that a factual averment made in the election petition cannot be true to both the knowledge and belief of the deponent. The relevant paragraph of the said judgment is extracted hereinbelow:

23. The verification of an election petition, it was trite, must be done strictly in terms of Order 6 Rule 15 of the Code of Civil Procedure. It was, thus, incumbent on the part of the respondent herein to specifically state as to which statements made in the election petition were true to his knowledge and which were true to his belief. A factual averment made in the election petition cannot be both true to the knowledge and belief of the deponent.

56. The verification of the party without specifying which allegations are to his personal knowledge and which allegations are based on information, does not satisfy the requirements of the Order VI Rule 16 of the C.P.C., as held by the Apex Court in the case of R.P. Moidutty v. P.T. Kunju Mohammed and Another reported in AIR 2000 SC 388 [LQ/SC/1999/938] . Similar view was taken in the case of Regu Mahesh Alias Regu Maheswar Rao v. Rajendra Pratap Bhanj Dev Another reported in AIR 2004 SC 38 [LQ/SC/2003/1082] . In the said case the election petitioner was a practicing advocate. The Honble Supreme Court disapproved of his casual, negligent and cavalier approach in filing the election petition with defective verification. In the instant case also, the petitioner is a practicing advocate.

57. The Kerala High Court in the case of Abrahim v. P.T. Thomas reported in AIR 1992 Kerala 19, rejected the election petition as the affidavit did not state which paragraph containing corrupt practices are based on his knowledge and which are based on his information. The Honble Supreme Courts judgment in the case of L.R. Shivaramagowda v. T.M. Chandrashekar, reported in (1999) 1 SCC 666 [LQ/SC/1998/1138] has held that if the verifying affidavit does not state which corrupt practices are based on the petitioners knowledge and which corrupt practices are based on his information, the affidavit is not in conformity with the prescribed Form No.25. The failure to comply with Rule 94-A of the Conduct of Election Rules, 1961 has a very serious defect.

58. But the latest judgment of the Honble Supreme Court in the case of Umesh Challiyil v. K.P. Rajendran reported in AIR 2008 SC 1577 [LQ/SC/2008/500] , is that what matters is the essence and not the phraseology of words. Use of the words no part thereof is false and nothing which is relevant has been concealed convey the same meaning as I believe the same to be true. It further held that the defective certification by the notary is of minor nature. The affirmation does not in any way go to the root of the matter so as to render the entire election petition not properly constituted. The election petition should not be summarily dismissed for small breaches of procedure. The defects of minor or cosmetic nature such as the defect in verification or affidavit in support of the allegations of corrupt practices are not the grounds for the rejection of the election petition. The Court should give proper opportunity to the election petitioner to cure the defects and in case of failure to remove/cure the defects, it may consider dismissing the election petition on account of Order VI Rule 16 or Order 7 Rule 11 of C.P.C. In the said reported case, the order of the learned Single Judge of the Kerala High Court dismissing the election petition without giving an opportunity to the election petitioner was disapproved by the Honble Supreme Court. The facts of Reghu Maheshs case (supra) and this case are different. In the said case, the election petitioner, who was an advocate by himself, had mentioned two different districts to which he claimed to be belonging.

59. If the petitioner has not mentioned paragraph No.7 in (c) of Form No.25, it only means that the allegation contained therein has to be considered only for the violation of law; it cannot be considered as an allegation of corrupt practice.

60. For the aforesaid reasons, I dispose of Misc. Cvl. 386/2010 with a direction to the petitioner to attest each copy of the election petition and its annexures as the true copy. Further, the respondent Nos.2 to 28 are ordered to be deleted from these proceedings. I allow Misc.Cvl. 1431/2010 in part by striking out paragraph Nos.III(iv) and II(15) of the election petition.