Election Petition cannot be dismissed on account of curable defects: Supreme Court of India

The verifying affidavit in support of the election petition need not be thrown out merely because it is not in Form 25 as prescribed under Rule 94A of Conduct of Election Rules, 1961. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice Sanjay Kishan Kaul & Hon’ble Justice M.M. Sundresh in the matter of A. MANJU vs PRAJWAL REVANNA @ PRAJWAL R & ORS [CIVIL APPEAL NO. 1774 OF 2020].

The facts of the case were that the appellant was a candidate from 16 Hassan (General) Parliamentary Constituency in the 2019 elections and was stated to have been sponsored by the Bharatiya Janata Party. Respondent No.1 was sponsored by Janatha Dal Secular Party and was also a candidate from the Constituency. Respondent Nos. 2 to 6 were sponsored by local/regional parties but, as transpired from the elections, were not serious contestants in real terms. The appellant secured 5,35,282 votes while respondent no.1 secured 6,76,606 votes. The appellant preferred an election petition under Section 81 of the Representation of People Act, 1951 on 26.06.2019 challenging the election of respondent no.1. The appellant sought a declaration that respondent no.1’s election was liable to be declared void on account of respondent no.1 having filed a false affidavit and consequently the appellant should be declared as duly elected. This petition was resisted by respondent no.1 at the threshold who filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908  and Section 86(1) of the Representation of People Act, 1951 seeking dismissal of the election petition on account of non-compliance of Section 81(3) and the proviso to Section 83(1) of the Representation of People Act, 1951. Thus, the instant appeal arose.

The Hon’ble Supreme Court referred to the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 wherein it was held that “the defect in the verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner’s petition summarily and such an affidavit can be permitted to be filed later.” Furthermore, the Hon’ble Supreme Court also stated that the above constitution bench judgment was also referred in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776 to come to a conclusion that non-compliance with the proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition.

Additionally, the Hon’ble Supreme Court observed that “If we look at the election petition, the prayer clause is followed by verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition.

Finally, Hon’ble Supreme Court set aside the impugned order of the learned single Judge dated 17.1.2020 and the application filed by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from the date of the order.

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Judgment Reviewed by: Rohan Kumar Thakur

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