Makhu Lal Vs. Bachcha Pathak - Court Judgment

Excerpt:
election - maintainability of petition - sections 83 (2), 86 (1) and 81 (3) of representation of the people act, 1951 - whether the election petition deserves to be dismissed under section 86 (1) for non-compliance of section 81 (3) - held, mere defect in the verification of election petition is not fatal to its maintainability. - - precisely the submission of sri kumar is that schedules 1 to 6 have been attached to the election petition, but none of them has been verified. 86. to overcome this difficulty, sri kumar, further says that s. 81(3). in para28 at page 1575, the supreme court reiterated that even though ordinarily defective verification can be cured and failure to disclose the ground or source or information may not be fatal, the failure to place them on record with promptitude may lead the court in a given case to debut the veracity of the evidence ultimately tendered.order1. this is an applicationunder o. 6, r. 16, o.7, r. 11 and s. 151 of the code of civil procedure (c.p.c.) and under s. 86(1) of the representation of people act, 1951 (briefly, the act 1951) to dismiss the election petition of the petitioner and to strike out numerous paragraphs in the petition under o.6, r. 16, c.p.c. read with o.7, r. 11 and s. 151, c.p.c. though the application contains several averments but urges sri a. kumar counsel for the respondent, the election petition be dismissed on the ground that it has not been signed and verified by the petitioner in the manner laid down under the c.p.c. and in accordance with the provisions of act, 1951. these averments have been made in paragraphs nos. 10 and 11 of the affidavit accompanying the application. precisely the submission of sri kumar is that schedules 1 to 6 have been attached to the election petition, but none of them has been verified. to elaborate his argument, sri kumar urges that sub-sec. (2) of s. 83 of the act, 1951 enjoins upon that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition, s. 86(3) mandates that high court shall dismiss an election petition which does not comply with the provisions of s. 81 or s. 82 or s. 117. s. 83(2) does not find berth in s. 86(1). therefore, for non- compliance of sub-sec. (2) of s. 83, election petition cannot be dismissed under sub-sec. (1) of s. 86. to overcome this difficulty, sri kumar, further says that s. 81(3) requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every copy shall be attested by the petitioner under his own signature to be a true copy of the petition. the schedules 1 to 6 to the election petition, according to the petitioner, contain material facts and, therefore, says sri kumar, that the schedules 1 to 6 are integral part of the petition and they having not been verified in the same manner in which the petition has to be verified, copy of the election petition served upon the respondent is not true and correct copy of the election petition within the meaning of s. 81(3) and that being so, sri kumar further urges that the election petition deserves to bedismissed under s. 86(1) for non-compliance of s. 81(3).2. it is this argument which has to be cpnsidered in this election petition filed by the petitioner who claims himself to be an elector. the petitioner has called in question the election of the respondent, a returned candidate on the grounds abc and d as contained in para 7 of the petition. grounds a and b relate to improper reception and improper rejection of a large number of votes. ground c relates to non-compliance of provisions of the constitution, of the act 1951 and the rules and orders made under the act, 1951. in ground 'd' it is said that the result of the election has been materially affected by not ordering the recounting in the circumstances of the case. the facts relating to these grounds have been stated in the next following paragraphs.3. the short question for consideration in this application is whether the election petition deserves to be dismissed under s. 86(1) for the reason that schedules 1 to 6 appended to the petition have not been verified as required by s. 83(1). it is undisputed that all these schedules have not been verified, but says sri pandey counsel for the petitioner, the omission of verification of the schedules appended to the petition, is not fatal, such defect is curable and the petitioner should be directed to varify the schedules and remove the defect in verification. s. 87(1) states that subject to the provisions of this act and of any rules made thereunder, every election petition shall be tried by the high court as nearly may be, in accordance with the procedure applicable under the code of civil procedure, 1908 to the trial of suits. the election petitions are, therefore, to be tried as far as possible applying the procedure as contained in the c.p.c. the question for considerations is whether the omission of verification of the plaint under c.p.c. entails a fatal defect. the settled law, insofar as the c.p.c. is concerned, is that the defect in verification is not fatal and that omission of verification or wrong verification is merely an irregularity and not an illegality. in prabhu narayan v. a. k. srivastava, air 1975 sc968 it was held that thepetition can only be dismissed for a substantial defect. in k. k. nambiar v. union of india, air 1970 sc 652 : (1970 lab ic 566), the supreme court said that importance of verification is to test the genuinesses and authenticity of the allegations and also to make the deponent responsible for allegations.4. order 6, rule 15, c.p.c. deals with verification of pleadings. this rule is devided into three parts; the first part begins 'save as otherwise provided by any other law for the time being in force' and then process to add that every pleading shall be verified by the party or by one of the parties or by some other person acquainted with the facts of the case second part posits that every person verifying shall specify what he verifies of his own knowledge and what he verifies upon information received or believed to be true by reference to paragraphs numbers and third part stats that the verification shall be signed by any party making it. never the defect in verification has been held to be fatal.5. this question directly came up for consideration in murarka radhey shyam v. roop singh rathore, air 1964 sc 1545. in that case one of the defects pointed out was that though the verification stating that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and averments in some other paragraphs were verified to be true on advice and information received from legal and other sources, the petitioner did not say in so many words that the advice and information received was believed by him to be true. upholding the view of the election tribunal that the defect was curable, the supreme court said that' ..... it isimpossible to accept the contention that a defect in verification which is to be made in the manner laid down in the code of civil procedure, 1908, for the verification of pleadings as required by cl. (c) of sub-sec. (1) of s. 83 is fatal to the maintainability of the petition.'6. it is thus clear that that mere defect in the verification of the election petition is not fatal to the maintainability of the petition andthe petition cannot be thrown solely on that ground. the instant petition though has been varified but only the schedules 1 to 6 attached to the petition have not been verified. when the petition itself cannot be dismissed on account of defect of verification, the petition a fortiori, cannot be dismissed on account of defect in the verification of the schedules appended to the petition.7. recently this question came up again in f.a. sapa v. singore, air 1991 sc 1557 : (1991 air scw 1492) decided with other cases. in that case, particulars and details of the corrupt practices were contained in para 4 to 40. in the verification clause, para nos. 3, 16, 17, 25, 31 and 39 were not verified at all. then that question arose whether the election petitions liable to be dismissed on ground on non verification of the aforesaid paragraphs. examining a catena of authorities and relevant provisions as contained in the act, 1951. rules framed thereunder, provisions in the c.p.c. etc. the supreme court enunciated in para 27 at page 1574 that (1) the defect in the verification, if any can be cured (2) it is not essential that the verification clause at the foot of the petition of affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true and (3) the defect in the affidavit in the prescribed form 25 can be cured, unless the affidavit forms intergral part of the petition in which case the defect concerning material facts will have to be dealt with, subject to limitation, under s. 81(3). in para28 at page 1575, the supreme court reiterated that even though ordinarily defective verification can be cured and failure to disclose the ground or source or information may not be fatal, the failure to place them on record with promptitude may lead the court in a given case to debut the veracity of the evidence ultimately tendered.8. the submission of sri pandey that omission of verification of the schedules in merely irregularity and not an illegality and is, therefore, curable, has to accepted. no other submission for dismissing the election petition under s. 86(1) was made by sri kumar.9. for the reasons, the application is dismissed and the election petitioner is directed to verify the schedules appended to the election petition within three weeks from the date of this order. the respondent may file written statement within three weeks. list the petition on 23rd march, 1992 for issues.10. application dismissed.

Judgment:
ORDER

1. This is an applicationunder O. 6, R. 16, O.7, R. 11 and S. 151 of the Code of Civil Procedure (C.P.C.) and under S. 86(1) of the Representation of People Act, 1951 (briefly, the Act 1951) to dismiss the election petition of the petitioner and to strike out numerous paragraphs in the petition under O.6, R. 16, C.P.C. read with O.7, R. 11 and S. 151, C.P.C. Though the application contains several averments but urges Sri A. Kumar counsel for the respondent, the election petition be dismissed on the ground that it has not been signed and verified by the petitioner in the manner laid down under the C.P.C. and in accordance with the provisions of Act, 1951. These averments have been made in paragraphs Nos. 10 and 11 of the affidavit accompanying the application. Precisely the submission of Sri Kumar is that schedules 1 to 6 have been attached to the election petition, but none of them has been verified. To elaborate his argument, Sri Kumar urges that sub-sec. (2) of S. 83 of the Act, 1951 enjoins upon that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition, S. 86(3) mandates that High Court shall dismiss an election petition which does not comply with the provisions of S. 81 or S. 82 or S. 117. S. 83(2) does not find berth in S. 86(1). Therefore, for non- compliance of sub-sec. (2) of S. 83, election petition cannot be dismissed under sub-sec. (1) of S. 86. To overcome this difficulty, Sri Kumar, further says that S. 81(3) requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The Schedules 1 to 6 to the election petition, according to the petitioner, contain material facts and, therefore, says Sri Kumar, that the schedules 1 to 6 are integral part of the petition and they having not been verified in the same manner in which the petition has to be verified, copy of the election petition served upon the respondent is not true and correct copy of the election petition within the meaning of S. 81(3) and that being so, Sri Kumar further urges that the election petition deserves to bedismissed under S. 86(1) for non-compliance of S. 81(3).

2. It is this argument which has to be cpnsidered in this election petition filed by the petitioner who claims himself to be an elector. The petitioner has called in question the election of the respondent, a returned candidate on the grounds ABC and D as contained in para 7 of the petition. Grounds A and B relate to improper reception and improper rejection of a large number of votes. Ground C relates to non-compliance of provisions of the Constitution, of the Act 1951 and the Rules and Orders made under the Act, 1951. In ground 'D' it is said that the result of the election has been materially affected by not ordering the recounting in the circumstances of the case. The facts relating to these grounds have been stated in the next following paragraphs.

3. The short question for consideration in this application is whether the election petition deserves to be dismissed under S. 86(1) for the reason that schedules 1 to 6 appended to the petition have not been verified as required by S. 83(1). It is undisputed that all these schedules have not been verified, but says Sri Pandey counsel for the petitioner, the omission of verification of the schedules appended to the petition, is not fatal, such defect is curable and the petitioner should be directed to varify the schedules and remove the defect in verification. S. 87(1) states that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court as nearly may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. The election petitions are, therefore, to be tried as far as possible applying the procedure as contained in the C.P.C. The question for considerations is whether the omission of verification of the plaint under C.P.C. entails a fatal defect. The settled law, insofar as the C.P.C. is concerned, is that the defect in verification is not fatal and that omission of verification or wrong verification is merely an irregularity and not an illegality. In Prabhu Narayan v. A. K. Srivastava, AIR 1975 SC968 it was held that thepetition can only be dismissed for a substantial defect. In K. K. Nambiar v. Union of India, AIR 1970 SC 652 : (1970 Lab IC 566), the Supreme Court said that importance of verification is to test the genuinesses and authenticity of the allegations and also to make the deponent responsible for allegations.

4. Order 6, Rule 15, C.P.C. deals with verification of pleadings. This rule is devided into three parts; the first part begins 'save as otherwise provided by any other law for the time being in force' and then process to add that every pleading shall be verified by the party or by one of the parties or by some other person acquainted with the facts of the case second part posits that every person verifying shall specify what he verifies of his own knowledge and what he verifies upon information received or believed to be true by reference to paragraphs numbers and third part stats that the verification shall be signed by any party making it. Never the defect in verification has been held to be fatal.

5. This question directly came up for consideration in Murarka Radhey Shyam v. Roop Singh Rathore, AIR 1964 SC 1545. In that case one of the defects pointed out was that though the verification stating that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and averments in some other paragraphs were verified to be true on advice and information received from legal and other sources, the petitioner did not say in so many words that the advice and information received was believed by him to be true. Upholding the view of the Election Tribunal that the defect was curable, the Supreme Court said that' ..... it isimpossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Cl. (c) of sub-sec. (1) of S. 83 is fatal to the maintainability of the petition.'

6. It is thus clear that that mere defect in the verification of the election petition is not fatal to the maintainability of the petition andthe petition cannot be thrown solely on that ground. The instant petition though has been varified but only the schedules 1 to 6 attached to the petition have not been verified. When the petition itself cannot be dismissed on account of defect of verification, the petition a fortiori, cannot be dismissed on account of defect in the verification of the schedules appended to the petition.

7. Recently this question came up again in F.A. Sapa v. Singore, AIR 1991 SC 1557 : (1991 AIR SCW 1492) decided with other cases. In that case, particulars and details of the corrupt practices were contained in para 4 to 40. In the verification clause, para Nos. 3, 16, 17, 25, 31 and 39 were not verified at all. Then that question arose whether the election petitions liable to be dismissed on ground on non verification of the aforesaid paragraphs. Examining a catena of authorities and relevant provisions as contained in the Act, 1951. Rules framed thereunder, provisions in the C.P.C. etc. the Supreme Court enunciated in para 27 at page 1574 that (1) the defect in the verification, if any can be cured (2) it is not essential that the verification clause at the foot of the petition of affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true and (3) the defect in the affidavit in the prescribed form 25 can be cured, unless the affidavit forms intergral part of the petition in which case the defect concerning material facts will have to be dealt with, subject to limitation, under S. 81(3). In para28 at page 1575, the Supreme Court reiterated that even though ordinarily defective verification can be cured and failure to disclose the ground or source or information may not be fatal, the failure to place them on record with promptitude may lead the Court in a given case to debut the veracity of the evidence ultimately tendered.

8. The submission of Sri Pandey that omission of verification of the schedules in merely irregularity and not an illegality and is, therefore, curable, has to accepted. No other submission for dismissing the election petition under S. 86(1) was made by Sri Kumar.

9. For the reasons, the application is dismissed and the election petitioner is directed to verify the schedules appended to the election petition within three weeks from the date of this order. The respondent may file written statement within three weeks. List the petition on 23rd March, 1992 for issues.

10. Application dismissed.