Affidavit form requirement flexible: Substantial compliance accepted, respondent to rectify defects

The court held that the requirement of the affidavit in the prescribed form was directory, allowing for substantial compliance. However, it directed respondent No. 1 to file another proper affidavit within a specified time to rectify identified defects. The application was allowed without costs, with the Chief Justice concurring with the judgment.

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Issues Involved:
1. Proper verification of the election petition and annexures.
2. Compliance with the prescribed form of affidavit under Section 83(1) of the Representation of the People Act, 1951.

Detailed Analysis:

1. Proper Verification of the Election Petition and Annexures:
The first issue was whether the election petition and its annexures were properly verified. The defect in the verification was allowed to be rectified by a petition for amendment, and no further grievance was made in this regard. Thus, the Tribunal permitted the amendment, and this issue was resolved without further contention.

2. Compliance with the Prescribed Form of Affidavit:
The second issue concerned whether the affidavit filed with the election petition complied with the prescribed form under the proviso to Section 83(1) of the Representation of the People Act, 1951. The Tribunal held that the affidavit substantially complied with the requirements, which was challenged by the petitioner.

The petitioner argued that the affidavit was mandatory and must be strictly in the prescribed form. The affidavit in question was not in the prescribed form, and the petitioner contended that the allegations of corrupt practices should be struck out under Order VI, Rule 16 of the Code of Civil Procedure, 1908, due to this non-compliance.

Legal Interpretation and Principles:
The judgment delved into the principles of statutory interpretation, citing Maxwell on Interpretation of Statutes and Halsbury's Laws of England. It was emphasized that the intention of the legislature must be ascertained by looking at the whole scope of the statute. The general rule is that an absolute enactment must be fulfilled exactly, but a directory enactment can be fulfilled substantially.

Mandatory vs. Directory Provisions:
The court examined whether the requirement under the proviso to Section 83(1) for filing an affidavit in the prescribed form was mandatory or directory. It was concluded that the essence of the proviso was to ensure that an affidavit accompanies the election petition when allegations of corrupt practices are made. However, the form of the affidavit was not of the essence and was considered directory.

Case Law and Precedents:
The court referred to several precedents, including the Supreme Court decisions in Jagan Nath v. Jaswant Singh, Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, and K. Kamaraja Nadar v. Kunju Thevar. These cases supported the view that procedural requirements should not invalidate an election petition if the core intent of the statute is met.

Defects in the Affidavit:
Two defects were identified in the affidavit filed by respondent No. 1:
(i) The affidavit did not specify which portions of paragraphs 12 and 13 were true to the deponent's knowledge and which were based on information received from agents and voters.
(ii) There was no affidavit in support of the allegations of corrupt practices in paragraph 10 of the election petition.

Rectification of Defective Affidavit:
The court held that a defective affidavit could not be amended under Order VI, Rule 17 of the Code of Civil Procedure, as it was not part of the pleading but a statement on oath. However, the defect could be rectified by filing another affidavit either in the prescribed form or after removing the defects.

Conclusion and Direction:
The court upheld the Tribunal's decision that the requirement of the affidavit in the prescribed form was directory. However, it modified the Tribunal's order, directing it to require respondent No. 1 to file another proper affidavit within a specified time. The application was allowed to the extent indicated, without any order as to costs.

Separate Judgment:
V. Ramaswami, C.J., concurred with the judgment delivered by N.L. Untwalia, J., agreeing with the analysis and conclusions reached.

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