TaxTMI 
TaxTMI 
2016 (3) TMI 1383
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....ctices falling under sub-sections (1) and (6) of Section 123 of the Representation of the People Act, 1951 (hereinafter referred to as 'the RP Act'), i.e. (1) making appeal to the voters in the name of religion and bribery; and (2) incurring expenditure in contravention of Section 77 of the RP Act respectively. 4. Notice to the respondents in the Election Petition was ordered on 10th February, 2014. The RETURNED CANDIDATE was served with the said notice on 18.6.2014. Admittedly, the election petition and all the annexures thereto were served on the RETURNED CANDIDATE on his appearance in the Court on 18.6.2014. Admittedly the RETURNED CANDIDATE could not be served with the summons in the normal course by the High Court. He appeared in the High Court (admittedly) pursuant to the substituted service (paper publication). The RETURNED CANDIDATE has an explanation for the same. The truth of the explanation is not in issue. 5. On 1st July, 2014, the RETURNED CANDIDATE filed I.A. No.43 of 2014 invoking Order VII Rule 11 of CPC (hereinafter referred to as "OR VII R 11 petition") praying that the Election Petition be dismissed on the ground that it does not disclose a cause of acti....
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.... petition), the ELECTION PETITIONER filed a reply dated 11.07.2014. It is stated in para 6 therein as follows: "6. That, the third objection which respondent no.1/returned candidate has raised with respect to the non filing of the affidavit inconformity of the Form 25 of the Conduct of Election Rules, 1961. The petitioner has filed the said affidavit along with the election petition which is attached at page no.394 and 395 of the election petition and also found mention at serial no.57-A in the index filed along with the election petition. Since the petitioner has also filed affidavit in support of the election petition and has also filed the affidavit in prescribed format, therefore, there is no defect in this regard. Though, the petitioner respectfully submits that the petition and the affidavit is in proper order but if in the opinion of the court if there is any defect, the election petitioner is willing to cure the same." 11. It can be seen from the above that the ELECTION PETITIONER clearly mentioned about the filing of an affidavit in form 25 which is to be found at page nos.394 and 395 of the election petition and also mentioned at serial no.57-A in the index to....
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....nt as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings; Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Order VI Rule 15. Verification of pleadings.- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and....
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....panied either by one affidavit or two affidavits in view of the insertion of clause (4) of Rule 15 of Order VI, fell for consideration of this Court in P.A. Mohammed Riyas v. M.K. Raghavan & Others, (2012) 5 SCC 511 and this Court held thus: "45. ... We are also unable to accept Mr Venugopal's submission that even in a case where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions." 18. Subsequently, the same question again fell for consideration before a larger bench of this Court in G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776. The court disapproved the view taken in Mohammed Riyas case and held: "1. ... The principal question of law raised for our consideration is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order 6 Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Repres....
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....he Conduct of Election Rules, 1961. Since the aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25." We are sorry to note that the para commences with a clumsy statement "so far as the contention with respect to verification or affidavit" and makes an irrelevant reference to the G.M. Siddeshwar case (supra) and ultimately records a conclusion without any discussion of the pleadings or evidence that the ELECTION PETITIONER has not filed an affidavit in Form-25. It was however ordered at para 6 of the order dated 25.08.2014: "I do not find any ground for rejection of the petition in limine under Order 7 Rule 11 of the CPC. Accordingly, I.A. No.43/2014, filed by the respondent No.1 is hereby dismissed. The petitioner is directed to file affidavit in Form 25 of the Conduct of Election Rules, 1961 within 15 days from the date of receipt of certified copy of the order. Respondent No.1 is also directed to file written statement within two weeks from the date of receipt of certified copy of this order." It is a wholly unsatisfactory way of dealing with any issue in a judicial proceeding and more so with election petitions. ....
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....cult to understand the order dated 18.03.2015. There was an unnecessary examination of various authorities of the Supreme Court without first settling the basic facts and identifying the issues. The High Court extracted the content of an affidavit which according to the ELECTION PETITIONER is an affidavit filed in compliance with the requirement of Section 83(1)(c) but not the affidavit in Form 25 and records a conclusion at para 6 as follows: "6. A bare reading of earlier affidavit filed by the petitioner makes it clear that the petitioner had covered all the pleadings in his affidavit and no pleading was left which was not mentioned in the affidavit but what was lacking was that the earlier affidavit was not in the prescribed Form No.25 of the Rule 94-A of the Rules of 1961. Certainly, there was a non-compliance of proviso to Section 83(1) of the Act of 1951 but Section 83(1) of the Act of 1951 is not covered under Section 86 of the Act of 1951." Interestingly, at para 9, once again the High Court recorded a conclusion: "9. As mentioned hereinabove, in the instant case substantial compliance of Section 81(3) of the Act of 1951 has already been done by the pet....
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....ction petition as mentioned above, the actual date when those affidavits were filed, whether either of the two affidavits is filed in compliance with the requirement of Section 83(1)(c) of the Act or not are matters for examination of the High Court. The High Court is required to record definite findings in the event there is any dispute with respect to the questions mentioned above. Unfortunately, the orders of the High Court are cryptic and the findings recorded by the High Court (extracted earlier in this order) are not clear with regard to the above mentioned questions." 27. Pursuant to the said order, the ELECTION PETITIONER filed I.A. No.11665/2015 seeking clarifications from the Madhya Pradesh High Court. The said I.A. was disposed of by an order dated 29.9.2015. Challenging the correctness of the said order, SLP 31051/2015 is filed by the RETURNED CANDIDATE. The High Court, recorded; "37. On the basis of aforesaid discussion, the questions posed by the Supreme Court in order dated 20-08-2015, are answered in the following manner: Question No. 1: Whether there was one affidavit or two affidavits filed along with the election petition? Answ....
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....clarification or modification of a judgment, decree or final order, passed by a Judge or Judges who or one or more of whom is or are - (i) temporarily unavailable and in the opinion of the Chief Justice, the application, looking to the urgency of the matter, cannot wait for such Judge or Judges to resume work or, (ii) permanently unavailable, shall be heard (1) if the decree or order, review of which is applied for, was passed by a Judge sitting alone, by the regular division bench." and Justice Solanki who passed the order in the OR VII R 11 petition retired subsequently. 30. In response, it is submitted on behalf of the ELECTION PETITIONER that: i) such an objection was never raised by the RETURNED CANDIDATE before the High Court when I.A. No.11665 of 2015 was being heard and therefore now cannot be permitted to raise the same; ii) that, the adjudication of an election petition is governed by Section 81A read with Section 86 of the Representation of the Peoples Act, 1951. Non-compliance, if any, with the Rules of the High Court framed under Article 225 does not render the order one without jurisdiction; iii)....
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....tration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution: Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction. The exercise of such power is subject to the provisions of the Constitution and the "provisions of any law of the appropriate legislature". Rule 13 mandates the listing of certain matters (nature of which is described therein) before a Division Bench. Such stipulation is contrary to the stipulation of Section 80A(2) that election petitions are to be tried by a single judge of the High Court leaving a discretion in the Chief Justice to decide whether in a given case, an election petition shall be heard by more than one Judge. Such a statutory discretion vested in the Chief ....
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....n the prescribed Form 25. Therefore, the finding to the contra in the order of the High Court dated 29.09.2015 is unsustainable. II. In the order dated 25.08.2014, after recording a finding that the ELECTION PETITIONER did not file an affidavit in Form 25, the High Court recorded a further finding that such a defect is curable and, therefore, directed the ELECTION PETITIONER to cure the defect by filing a fresh affidavit in Form 25. The ELECTION PETITIONER without challenging the correctness of the finding that he failed to file an affidavit in Form 25 along with the election petition chose to comply with the consequential direction of filing afresh affidavit. Therefore, the ELECTION PETITIONER is precluded from contending at a later stage that the finding recorded by the High Court in its order dated 25.08.2014 is incorrect. III. Rule 6(4) of the Rules relating to election petitions in the Madhya Pradesh High Court requires: "the Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it." and the affidavit at page nos.394 and 395 of the election petition does not conta....
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....also submitted that though the ELECTION PETITIONER did not challenge the finding recorded by the High Court in its order dated 25.08.2014, the ELECTION PETITIONER is entitled to dispute the correctness of the finding as and when such a finding is sought to be pressed into service against him. (iii) Coming to the question of filing a fresh affidavit in obedience of the consequential direction of the High Court, the ELECTION PETITIONER submitted that such a course of action was pursued by him by way of abundant caution. (iv) It is submitted by the ELECTION PETITIONER with regard to the absence of the signature of the Registrar on the affidavit at page nos.394-395 that though it is the duty of the Registrar of the High Court to sign on each page of the election petition and the affidavit filed alongwith the election petition, if the Registrar failed in his duty the ELECTION PETITIONER cannot be penalized by drawing an inference that the affidavit was not presented along with the election petition. In this regard, the ELECTION PETITIONER relied upon the well-settled principle of law that the act (which includes an omission) of the court shall not prejudice the rights ....
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....in I.A. No.11665 of 2015 recorded a finding: 21. After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In Banarsi v. Ram Phal, (2003) 9 SCC 606, it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour....
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....s follows: "Chapter VII Rules Relating to Election Petitions Rule 6 (1) Every Election Petition complete in all respects, shall be presented during the Court hours to the Additional Registrar or Deputy Registrar Judicial, at Jabalpur. (2) The name of the person presenting an Election petition, with a description of the capacity in which he is presenting it, the date and hour of presentation and any other particulars considered necessary shall be endorsed in the margin of first page of the petition by the Additional Registrar or Deputy Registrar under his own signature. (3) The Additional Registrar or Deputy Registrar shall have the petition examined in order to find out that all the requirements of the Representation of the People Act, 1951, and these rules have been complied with. (4) The Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it. (5) The Additional Registrar or Deputy Registrar, after examining the petition, shall record his opinion on the opening order-sheet in the following:- "Presented on ........ by ....... Properly drawn up....
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....ON PETITIONER's reply dated 11.7.2014 in the OR VII R 11 petition. The RETURNED CANDIDATE admits that at least by 18.6.2014 - the date on which he received summons, a copy of the election petition along with Annexures including the affidavit at page nos.394- 395 of the election petition was available on record. But his case NOW is that such an affidavit was not filed along with the election petition within the period of limitation, but must have been inserted in the election petition sometime in the interregnum period between 22.1.2014 (the date on which the period of limitation for filing the election petition expired) and 18.6.2014. 39. But the objection of the RETURNED CANDIDATE in OR VII R 11 petition was only that the "affidavit sworn and filed along with the petition by the petitioner is not in conformity with Form 25 of the Conduct Rules, 1961." From the language of OR VII R 11 petition, it is clear that the RETURNED CANDIDATE's objection is only regarding the format and content of the affidavit but not regarding the date of the filing of the affidavit, on the other hand, the employment of the expression "along with" clearly indicates that the RETURNED CANDIDATE also at t....