Affidavit in corrupt-practice election petitions is mandatory, but defects in prescribed form can be cured by fresh filing.

An election petition alleging corrupt practice must be accompanied by an affidavit, and that requirement is mandatory because the affidavit itself is the essential safeguard of verification and accountability. However, strict compliance with the prescribed form is directory, so a defect in form does not by itself invalidate the petition if an affidavit has in fact been filed. A defective affidavit is not treated as an amendment of the pleading under Order VI Rule 17 CPC, but the defect can be cured by filing a fresh proper affidavit within time fixed by the tribunal. The matter may therefore proceed once rectified.

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Issues: (i) Whether the requirement in the proviso to Section 83(1) of the Representation of the People Act, 1951, that an election petition alleging corrupt practice be accompanied by an affidavit in the prescribed form is mandatory or directory; (ii) whether a defective affidavit can be treated as sufficient and whether the defect can be cured by filing a fresh affidavit.

Issue (i): Whether the requirement in the proviso to Section 83(1) of the Representation of the People Act, 1951, that an election petition alleging corrupt practice be accompanied by an affidavit in the prescribed form is mandatory or directory.

Analysis: The substance of the proviso is the filing of an affidavit in support of allegations of corrupt practice. The prescribed form is intended to ensure restraint and accountability, but the form itself is not of the essence of the requirement. In the absence of any express statutory consequence for non-compliance, the provision was construed in light of the object of the enactment and the general principles governing mandatory and directory provisions. Substantial compliance was held sufficient where an affidavit is in fact filed.

Conclusion: The requirement of filing the affidavit is mandatory, but filing it in the prescribed form is directory. The existence of an affidavit is essential, while defects in form do not by themselves justify striking out the allegations of corrupt practice.

Issue (ii): Whether a defective affidavit can be treated as sufficient and whether the defect can be cured by filing a fresh affidavit.

Analysis: A defective affidavit under the proviso is not part of the pleading itself. It operates as a supporting statement on oath and is not amenable to amendment in the same manner as the election petition. A defective affidavit cannot be ignored merely because it is not in exact conformity with the prescribed form, but the defect is capable of being removed by filing another proper affidavit. The Tribunal may therefore require a fresh affidavit to be filed within a fixed time.

Conclusion: A defective affidavit is not fatal to the election petition, and the defect may be cured by filing a fresh affidavit; it cannot be treated as an amendment of the pleading under Order VI Rule 17 of the Code of Civil Procedure, 1908.

Final Conclusion: The Tribunal's view that the prescribed form was not mandatory was affirmed, but its failure to require rectification of the defective affidavit was corrected, and the matter was allowed to proceed after filing of a proper affidavit.

Ratio Decidendi: Where a statute requires an affidavit to accompany a pleading, the requirement to file the affidavit is essential, but compliance with the prescribed form may be treated as directory if the object of the provision is substantially met and no express consequence of invalidity is provided.

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