- (1.) An application has been filed on behalf of respondent-applicant praying inter alia that the affidavit filed along with the election petition is not in conformity with the provisions of Section 83(1) of the Representation of the People Act (hereinafter referred as 'the Act'). Since the mandatory provisions of Section 83(1) of the Act have not been complied with, the election petition be dismissed. It be held that there is no affidavit accompanying the election petition in the prescribed pro forma. The petition Is based on allegation of corrupt practice, in absence of an affidavit in Form 25, the election petition is not liable to be sustained and hence it entails dismissal.
(2.) Another argument of the learned counsel for the respondent-applicant is that even after filing of the objection that the affidavit filed by the election-petitioner is not in accordance with proviso to Section 83(1) of the Act as the same is not in Form 25. the election-petitioner has failed to correct the defect. Thus, the petitioner is not liable to be granted any indulgence because compliance has not been made even after the election- petitioner was made aware of the defect in the affidavit filed. He has supported his argument by a judgment of this Court reported in 1996 (1) RLW 543 in the matter of Kanak Mal v, Bhikha Bhai. He has further relied upon a Supreme Court decision reported in 2004 (1) SCC 46 : (AIR 2004 SC 38) in the matter of Regu Mahesh alias Maheshwar Rao v. Rajendra Pratap Bhanj Dev. Learned counsel for the respondent on the strength of the aforesaid cases urged that the provisions of Section 83(1) of the Act have been held to be mandatory. The election petition without an affidavit, where the allegations of corrupt practice are made, is no 'election petition' In the eye of law and, therefore, the petition deserves to be dismissed.
(3.) Per contra, the learned counsel for the election-petitioner urged that an affidavit has been filed. No doubt, it is not in the form prescribed. However, subsequent to the filing of the election petition, the election- petitioner has filed an affidavit in the form prescribed in the Rules. According to him defect in affidavit is a curable defect. He places reliance on a Supreme Court decision decided in the matter of H. D. Revanna v, G. Puttaswammy Gowda reported in, AIR 1999 SC 768 in which it has been held as under: "The argument is no doubt attractive. But, the relevant provisions in the Act are very specific. Section 86 provides for dismissal of election petition in limine for non-compliance of Sections 81, 82 and 117. Section 81 relates to presentation of election petition. It is not the case of the appellant before us that the requirements of Section 81 were not complied with though in the High Court a contention was urged that a true copy of the election petition was not served on the applicant and thus the provisions of Section 81 were not complied. Sections 82 and 117 are not relevant in this case. Significantly Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Section 86. This Court has laid down that non-compliance of Section 83 may lead to dismissal of petition only if the matter falls within the scope of O. 6, R. 16 or O. 7, R 11. CPC. Defect in verification of the election petition has been held to be curable and not fatal. In Muraka Radhey Shyam Ram Kumar v. Roop Singh Rathore, 1964 (3) SCR 573 : (AIR 1964 SC 1545), Constitution Bench has held in unmistakable terms that a defect in the verification of an election petition as required by Section 83(l)(c) of the Act was not fatal to the maintainability of the petition and that a defect in the affidavit was not a sufficient ground for dismissal of the petition. Another Constitution Bench held in Ch. Subbarao v. Member, Election Tribunal, Hyderabad, (1964) 6 SCR 213 : (AIR 1964 SC 1027), that even with regard to Section 81(3), substantial compliance with the requirement thereof was sufficient and only in the cases of total or complete non-compliance with the provisions of Section 81(3), it could be said that the election petition was not one presented in accordance with the provisions of the part of the Act. It is the said principle of substantial compliance which was adopted in K. M. Mani v. P. J. Antony, (1979) 2 SCC 221 : (AIR 1979 SC 234). Reliance has rightly been placed thereon by learned counsel for the respondent. In F.A. Sapa v. Singora, 1991 (3) SCC 375 : (1991 AIR SCW 1492), this Court held that a defect in the verification of the petition as well as a defect in the affidavit can be cured and it is not fatal to the maintainability of the petition. Neither in Virendra Kumar Saklecha v. Jagiwan, (1972) 1 SCC 826 : (AIR 1974 SC 1957), nor in L. R. Shivarama- gowda v. T. M. Chandrashear, (1998) 6 Scale 361 : (1998 AIR SCW 3767) this Court went to the extent of holding that the election petition should be dismissed in limine for a deficiency in the affidavit or verification. In fact the question was expressly left open in the former case and it did not arise in the latter.";