Padmakumari. T v. N. Venugopal and others

**“CR”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943 OP(C) NO. 2400 OF 2021** **IA 8/2021 IN OPELC 1/2021 OF PRINCIPAL MUNSIFF COURT,** ## **ERNAKULAM** ## **PETITIONER/S:** PADMAKUMARI. T AGED 45 YEARS WIFE OF K.S GIRISH QUARTERS NO. E-3-46,RNAS AREA WILLINGTON ISLAND, KOCHI 680 003 BY ADVS. K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI N.ANILKUMAR S.M.PRASANTH G.RENJITH R.S.ASWINI SANKAR T.H.ARAVIND TONY GEORGE THOMAS SINU.G.NATH ## **RESPONDENT/S:** 1 N. VENUGOPAL AGED 70 YEARS SON OF NEELAKANDA PILLAI, SREELAKAM , PADARACHIRA, 1ST CROSS ROAD, KADAVANTHARA SOUTH SOUTH, PIN 682 020 2 C.D NANDAKUMAR AGED NOT KNOWN, SON OF NOT KNOWN TO THE PETITIONER, HOUSE NO. 21/1771, VRINDAVANAM, VELIPPARAMBIL ROAD, PULLARDESOM ROAD, PULLARDESOM, PALLUTTHY, PIN 682 006 3 JOSEPHINE JULIET RAJU AGE NOT KNOWN, D/O. NOT KNOWN TO THE PETITIONER, POLLAYIL HOUSE, HOUSE NO. CC 1/1922 A, NJALIPARAMBU, PIN 682 001 4 STANLEY POULOSE AGE NOT KNOWN, SON OF NOT KNOWN TO THE O.P.(C) No.2400 of 2021 -2- PETITIOENR KUZHIKKADAN HOUSE NO 1/1442, FORT KOCHI 682 001 BY ADVS. S.SUJIN R1 NAVANEETH D.PAI R1 N.SATHEESH R2 CHACKOCHEN VITHAYATHIL R3 JINISHLAL S.B. R4 ## **OTHER PRESENT:** ADCV.N.N.SUGUNAPALAN SR FOR R1 **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2022, THE COURT ON 13/01/2022 DELIVERED THE FOLLOWING:** O.P.(C) No.2400 of 2021 -3- ## **“CR”** ## **JUDGMENT** Dated this the 13[th] day of January, 2022 The petitioner is the first respondent in OP (Election) No.1 of 2021 pending on the files of the Principal Munsiff's Court, Ernakulam. The election petition is filed calling in question the petitioner's election to Division No.29/Willington Island North of the Kochi Municipal Corporation. It is unnecessary to elaborate on the contention raised in the election petition, since the issue raised in this original petition is confined to the legality of Exhibit P3 order by which the petitioner’s challenge against the O.P.(C) No.2400 of 2021 -4- maintainability of the election petition was set at naught. 2. The objection as to maintainability of the election petition was raised on the following grounds; (i) non-compliance of Sections 165(2) of the Kerala Municipality Act, 1994 (“the Act” for short), every page of the copy of the election petition served on the petitioner not having been attested by the election petitioner under his own signature. (ii) violation of Section 167(1)(c), the election petition having not been verified in the manner laid down in the Code of Civil Procedure. (iii) violation of the proviso to Section 167(1)(c), the election petition not being accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice. (iii) photocopy of the O.P.(C) No.2400 of 2021 -5- affidavit filed along with the election petition, petitioner has signed only in the second page. (iv) copy of the election petition served on the petitioner is not an exact copy of the original. (v)Copies of the documents produced along with the election petition are not served on the petitioner. 3. The first respondent filed objections, contending that she had complied with the requirement of Section 165(2) of the Act by attesting copies of the election petition under her own signature. By Exhibit P3 order, learned Munsiff dismissed the interlocutory application and held the election petition to be maintainable. Hence, this original petition . 4. Heard Senior Advocates K.Ramakumar for the petitioner, N.N.Sugunapalan for the first respondent and Advocate N.Satheesh for the O.P.(C) No.2400 of 2021 -6- second respondent. 5. Learned Senior Counsel appearing for the petitioner commenced his argument by highlighting the rigor with which courts are expected to deal with applications challenging the maintainability of an election petition. The reason being that the electorate having given its verdict, which is sacrosanct, the mandate should not be set at naught lightly by unseating an elected candidate. The doctrine of benefit of doubt, equitable considerations or even substantial compliance have no role in the adjudication of an election petition. In support of this proposition, reliance is placed on the decision in _**Arikala**_ ## _**Narasa Reddy v. Venkata Ram Reddy Reddygari and**_ _**another [(2014) 5 SCC 312]**_ . According to the learned Senior Counsel, the trial court has given a complete go by to the above cardinal principle. O.P.(C) No.2400 of 2021 -7- 6. In elaboration of the objections as to maintainability of the election petition, the following arguments are put forth; (a) Section 165(2) of the Act mandates that, copies of the election petition should be attested by the petitioner under his own signature as true copy of the original. The Annexures, namely the list of documents and list of witnesses being an integral part of the election petition, the attestation should be after the Annexures, whereas in Ext. P1, attestation is above the Annexures. Section 165(2) does not provide for such truncated attestation. Reference is made to Section 76 of the Evidence Act to urge that attestation as true copy and signature should at the foot of the copies of documents and not anywhere else. (b) The election petitioner has not signed O.P.(C) No.2400 of 2021 -8- in all pages of the copy of the election petition served on the petitioner. Section 165(2) mandates that each copy of the election petition shall be attested by the petitioner under his own signature. As held in _**Kaveri Amma v. Devaki [1996 (2) KLT 189]**_ , the object of such a stipulation is to make the petitioner responsible for all the averments made by him. Non-compliance of such requirement would result in dismissal of the election petition, even without entering into the merits of the petition. Support is also drawn from the decision in _**Rajendra Singh v. Usha Rani and others [AIR 1984 SC 956]**_ , wherein it has been consistently held that, mistake in the copy furnished to the respondent will entail dismissal of the election petition. (c) As per Section 167(1)(c), an election petition shall be signed by the petitioner and O.P.(C) No.2400 of 2021 -9- verified in the manner laid down in the Code of Civil Procedure. The Schedule and Annexure also being an integral part of the election petition, verification can only be after the Schedule and Annexures, whereas in the election petition the verification is above the schedule. As such, there is no verification at all, which defect is undoubtedly incurable. The decision in _**Mary Thomas v. Anil Akkara [2017 (2) KHC 518]**_ is pressed into service to buttress this contention. (d) As per the mandate of Section 167(1)(c), the election petition should be signed by the petitioner and verify in the manner laid down in the Code of Civil Procedure for the verification of the pleadings. Order VI Rule 15 of CPC is the relevant provision. As per Order VI Rule 15(4), the person verifying the pleading should furnish an affidavit in support of the pleadings. No such ## O.P.(C) No.2400 of 2021 -10- affidavit is filed along with the election petition. (e) As per the proviso to Section 167(1), when corrupt practice is alleged, the petition shall be accompanied by an affidavit in the prescribed form. Rule 62 of the Municipality (Conduct of Election) Rules stipulates that the affidavit under the proviso to Sub-section (1) of Section 167 shall be in Form No.28 and shall be sworn before a Magistrate of First Class or a Notary. The affidavit filed along with the election petition was not in Form No.28, which is a fatal defect, as held in _**A.Mohammed v. Nalakath**_ _**Soopy [1997 (1) KLT 697]**_ . When this fatal defect was pointed out, an affidavit in Form No.28 was filed by the election petitioner, that too, without seeking permission from the court. The trial court committed gross illegality by O.P.(C) No.2400 of 2021 -11- accepting the affidavit. (f) Copies of the documents produced along with the election petition have not been furnished to the respondent, which is a fatal defect, as held in _**U.S.Sasidharan v.**_ ## _**K.Karunakaran [1987 (2) KLT 1001]**_ . (g) Copy of the election petition served on the petitioner is not a replica of the original. In _**Rajendra Singh** (supra)_ serving of incorrect copy is held to be a ground for dismissal of the election petition in _**Rajendra Singh** ._ 7. Answering the contentions, Sri.N.N. Sugunapalan, learned Senior Counsel appearing for the first respondent submitted that the objection regarding maintainability is raised only as a ruse for protracting the election petition. It is pointed out that Exhibit P3 order was pronounced on 27.7.2021 and the original petition filed only ## O.P.(C) No.2400 of 2021 -12- on 10.12.2021. In the meanwhile, the court below proceeded with the trial of the election petition, completed the examination of witnesses and posted the case to 14.12.2021 for final hearing. At that juncture, the original petition was filed with the _mala fide_ intention of prolonging the final decision in the election petition. Relying on the decision in _**Ajay Arun**_ ## _**Singh v. Sharadendu Tiwari and others [(2016) 15**_ _**SCC 219]**_ , it is contended that preliminary objection in an election petition is to be taken at the earliest point of time and in one go. The attempt to protract the election petition, for the disposal of which a time limit has been stipulated under the Statute, should be sternly dealt with. 8. According to the Senior Counsel, the defects in the election petition, unless fatal, O.P.(C) No.2400 of 2021 -13- cannot result in dismissal of the petition. In support of this contention, reliance is placed on the decision in _**Umesh Challiyil v. K.P.Rajendran [(2008) 11 SCC 740]**_ , wherein it has been held that election petitions should not be dismissed summarily for small breaches. It is submitted that no serious breach having been alleged by the petitioner, the trial court was justified in dismissing the petition. 9. Refuting the contention that the election petition has been verified and attested in a truncated manner, contrary to the mandate of Sections 165 (2) and 167(1)(c), it is argued that the verification and attestation is proper and as provided in the Statute. The list of documents and witnesses are not integral part of the election petition and hence, the verification had to be made after the relief portion. Moreover, ## O.P.(C) No.2400 of 2021 -14- the list of documents and witnesses have been separately verified and attested, thereby fully satisfying the statutory requirement. The decision in _**F.A.Sapa and others v. Singora and**_ _**others [(1991) 3 SCC 375]**_ is relied on to contend that if a document does not form an integral part of the election petition, but is merely referred to in the petition, or filed in the proceeding as evidence of any facts, failure to supply a copy thereof will not prove fatal. Reliance is placed on the decision in _**Neena**_ _**Vikram Verma v. Balmukund Singh Gautam and others**_ _**[(2013) 5 SCC 673]**_ to contend that even if there is defect in the verification, that can be removed in accordance with the principles of CPC and is not fatal to the election petition. 10. The contention that copy of the election petition is not attested or signed in all pages O.P.(C) No.2400 of 2021 -15- is answered by pointing out that the mandate of Section 165(2) is that the copy should be attested to be a true copy of the petition under the election petitioner's own signature. This requirement has been met by signing at the foot of copy served on the petitioner. In _**Thomas v. Varghese Paul [1996 (2) KLT 682]**_ , it has been categorically held that there is no necessity to attest in each page of the copy. 11. In reply to the contention that an affidavit as envisaged under Order VI Rule 15(4) was not filed along with the election petition, it is urged that 167(1)(c) does not mandate the filing of such affidavit and even if such requirement is there in Order VI Rule 15(4), it's non-compliance cannot result in dismissal of the election petition. In _**Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others [(2012) 7 SCC**_ -16- ## O.P.(C) No.2400 of 2021 _**788]**_ , the Apex Court has held that non-filing of affidavit in prescribed form to be a curable defect. Moreover, in _**G.M.Siddeshwar v. Prasanna**_ _**Kumar [(2013) 4 SCC 776]**_ , it is held that a composite affidavit, which supports (a) the pleadings in the election petition and (b) the allegation of corrupt practice, will satisfy the mandate of Section 167(1). 12. Attention is drawn to Section 169(1) of the Act empowering the court to dismiss an election petition which do not comply with the provisions of Sections 165, 166 or Section 191. It is contended that the Legislature having consciously omitted to include Section 167 in Section 169, failure to comply with the requirements of Section 167 cannot result in dismissal of the election petition at the preliminary stage. O.P.(C) No.2400 of 2021 -17- 13. In answer to the contention that the petitioner had failed to file the affidavit in Form 28 along with the election petition, it is submitted that the necessity to file such an affidavit would arise only when corrupt practice is alleged. In order to be a 'corrupt practice', the alleged act should be one falling under Section 144 of the Act. The allegations in Ext.P1 do not fall within any of the corrupt practices mentioned in Section 144. Even then, when the petitioner raised an allegation that affidavit in Form 28 is mandatory, such affidavit was filed as a measure of abundant caution. The first respondent's failure to file the affidavit along with the election petition not being a fatal defect, the trial court was fully justified in having accepted the affidavit in the interest of justice. In any event, the order under challenge -18- ## O.P.(C) No.2400 of 2021 is not one warranting interference in exercise of the supervisory jurisdiction vested with this court. 14. Adv.N.Satheesh, learned Counsel appearing for the second respondent supported the arguments of the petitioner and contended that Ext.P3 order is liable to be set aside for the various reasons stated in the original petition. 15. In reply, Sri.Ramakumar submitted, even assuming that there is delay or laches on the part of the respondent in pointing out lethal defects in the election petition, that does not exonerate the court from its statutory obligation under Section 169 of the Act. As soon as non- compliance of any mandatory provision is either brought to its notice or noticed suo motu, whatever be the stage, the court is bound to dismiss the petition. Support for this argument O.P.(C) No.2400 of 2021 -19- is drawn from the decision in _**Udhav Singh v. Madhav Rao Scindia [AIR 1976 SC 744]**_ . With the support of the decision in _**Azhar Hussain v. Rajiv Gandhi [AIR 1986 SC 1253]** ,_ it is argued that _,_ even if Section 167 do not find a place in Section 169, it does not take away the court's power under the Code of Civil Procedure. 16. There cannot be any quarrel to the proposition that election laws are to be interpreted strictly and within the four corners of the Statute. The contextually relevant portion of _**Arikala Narasa Reddy** (supra)_ which deals with this aspect is extracted hereunder; _**“13.** It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and the courts have a duty to enforce the same with all rigours and not to minimise their operation. A right to be elected is neither a fundamental right nor a common law right,_ O.P.(C) No.2400 of 2021 -20- _though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute._ _**”**_ As rightly pointed out by Sri.K.Ramakumar, the contentions with respect to the maintainability or otherwise of an election petition has to be considered with the above proposition in mind. 17. For a proper understanding of the contentions raised, it is essential to have a close scrutiny of the relevant provisions in the Municipality Act extracted here under for easy reference; _“163. Election petitions,— No election shall be called in question except by an election petition presented in accordance with the provisions of this chapter._ _164. The Court competent to try election petitions.—The court having jurisdiction to try an election petition shall be the Munsiff’s Court having jurisdiction over the place in which the office of the Municipality is located._ _165. Presentation of petitions.— (1) An election petition calling in question any election may be presented on one or more of the grounds specified in section 178 and section 179, to the Munsiff's Court by any candidate at such election or any elector_ O.P.(C) No.2400 of 2021 -21- _within thirty days from, but not earlier than, the date of election of the returned candidate. Explanation.— In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition._ _166. Parties to the petition.— A petitioner shall join as respondents to his petition,- (a) where the petitioner, in addition to claiming a declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, the returned candidate; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition._ _167. Contents of petition.— (l)An election petition,- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement 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 (Central Act 5 of 1908) for the verification of pleadings: Provided that were the petitioner alleges any corrupt practice, the_ O.P.(C) No.2400 of 2021 -22- _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._ _168. Relief that may be claimed by the petitioner.— A petitioner may, in addition to claiming a declaration that the election of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected._ _169. Trial of election petitions.— (1) The Court shall dismiss an election petition which does not comply with the provisions of section 165 or section 166 or section 191.”_ 18. The aforementioned provisions are more or less a verbatim reproduction of Sections 80 to 86 of the Representation of the People Act, 1951 (“the RP Act” for short). On close scrutiny of Section 165(2), it can be seen that the provision contains two parts; (i) the election petition shall be accompanied by copies equal to the number of respondents mentioned in the petition and (ii) that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Indisputably, the O.P.(C) No.2400 of 2021 -23- former requirement has been complied with. Therefore, the question is whether the copies served on the respondents are attested and signed to be true copies. Admittedly, the copy served on the petitioner does not contain attestation and signature on all pages. In this regard, it may be pertinent to note that the mandate of the section is that every copy of the election petition, and not every page, should be attested. In _**Kaveri Amma** (supra)_ , copies of the election petition were not attested by the petitioner to be true copies. In that context the Division Bench held that, failure to attest the copies will entail in dismissal of the election petition. The said decision cannot be relied on to contend that each page of the copy should be attested as true copy. This question was considered by the Apex Court in _**F.A.Sapa**_ O.P.(C) No.2400 of 2021 -24- _(supra)_ , the contextually relevant portion of which is extracted below; _“31. The objection raised in the context of Section 81 is that the election petition in every case is a mere photocopy prepared from a typed one and the copy of the election petition served on the returned candidate in each case was not duly attested to be a true copy of the original as required by Section 81(3) and hence the petition was liable to be dismissed in limine under Section 86(1) of the R.P. Act. Section 81(1) does not debar photocopying but Rule 1 of the Rules says that it shall be “typewritten or printed”. There is no dispute that a model election petition was prepared and got typed and prints thereof were taken out by the process of photocopying. These prints were used both as original election petitions as well as copies. The particulars in regard to each petition, e.g., the names of the parties, the voting pattern, the towns and villages where utterances amounting to corrupt practice were made, etc., were filled in and the court fee was affixed on one of them which constituted the original and photocopies thereof were filed before the Stamp Reporter in accordance with the Rules. The photocopy bearing the court fee stamps was indisputably signed by the election petitioner and was presented with sufficient copies to the Stamp Reporter. The original election petition is, therefore, a photocopy of the typed model and the copies are also photocopies prepared from the original petition. Evidently the underlying idea in providing that the election petition shall be typewritten or printed is to ensure that the document is legible. There is no complaint that the document which is admitted as an_ O.P.(C) No.2400 of 2021 -25- _election petition and the copies thereof are not legible. If that be so it is difficult to appreciate the objection that the photocopy should not be treated as an original petition even if it otherwise complies with the requirement of law. The High Court was, therefore, justified in treating the same as the original election petition.”_ 19. The same position was reiterated by a learned Single Judge of this Court in _**Thomas** (supra)_ . On a plain reading of Section 165(2) and on being guided by the legal position laid down in the aforementioned precedents, the challenge on the ground that the copies of the election petition are not attested to be true copies on each page, is liable to be rejected. 20. The next contention is that the election petition is not signed and verified in the manner laid down in the CPC for the verification of pleadings. For answering this contention, it is necessary to have a close look at Order VI Rule 15 extracted here under; O.P.(C) No.2400 of 2021 -26- _“_ _**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 what he verifies upon information received and believed to be true._ _(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed._ _(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings”_ The challenge against verification is on the ground that the verification is not made at the foot of the election petition. In support of the challenge, reliance is placed on the decision in _**Mary Thomas** (supra)_ _**,**_ wherein a learned Single Judge has held schedule I to be an integral part of the election petition. That finding was rendered in the context of the averment in O.P.(C) No.2400 of 2021 -27- Paragraph 12 of the election petition therein that Schedule-I may be treated as part of the pleadings of the election petition. In _**F.A.Sapa** (supra)_ , the Apex Court considered the question whether the schedule or Annexure to the petition would form an integral part of the election petition. It was held that a schedule or Annexure which produces a document as evidenced in support of the allegation in the election petition cannot be described as integrated with the election petition and defect in verification thereof would not prove fatal. As distinct from the facts in _**Mary Thomas** (supra)_ , Ext.P1 does not contain a statement that the Annexure should be treated as part of the election petition. Being so, applying the dictum in _**F.A.Sapa** (supra)_ , it has to be held that verification at the foot of the pleadings satisfies the requirement of Order VI ## O.P.(C) No.2400 of 2021 -28- Rule 15(1). Moreover, the first respondent has verified and signed the Annexures to the election petition separately, which is sufficient to satisfy the requirement. 21. The next contention is that the affidavit mandated under Order VI Rule 15(4) was not filed along with the election petition. A perusal of the records shows that an affidavit was filed along with the election petition. In Ext.P2, an objection was raised that the affidavit is not in accordance with the proviso to Section 167(1) read with Rule 62 of the Municipality (Conduct of Election) Rules, as per which, when corrupt practice is alleged, an affidavit in Form 28 has to be filed along with the election petition. In the face of such objection, the first respondent filed an affidavit in Form 28 with specific reference to ## O.P.(C) No.2400 of 2021 -29- paragraph 4 of the election petition and the court below accepted the affidavit. From a reading of Ext.P2, it is clear that the objection was not regarding failure to file affidavit as contemplated under Order VI Rule 15(4), but, an affidavit as mandated under the proviso to Section 167(1) was not filed. Even then, such an argument having been raised, I deem it appropriate to deal with the contention. Indisputably, there is no provision under the Act requiring the filing of an affidavit under Order VI Rule 15(4) of CPC along with the election petition. All that is contemplated is verification of the election petition in the manner laid down in the Code of Civil Procedure. In **G.M.Siddeshwar** _(supra_ ) **,** the Apex Court held that there is no mandate under the RP Act for the election petitioner to file an affidavit in O.P.(C) No.2400 of 2021 -30- terms of Order VI Rule 15(4) CPC in support of the averments made in the election petition, in addition to the affidavit required to be filed by the proviso to Section 83(1) of the RP Act. The contextually relevant portion of the judgment reads as under; _**“25.** It seems to us that a plain and simple reading of Section 83(1)(c) of the Act clearly indicates that the requirement of an additional affidavit is not to be found therein. While the requirement of “also” filing an affidavit in support of the pleadings filed under CPC may be mandatory in terms of Order 6 Rule 15(4) CPC, the affidavit is not a part of the verification of the pleadings—both are quite different. While the Act does require a verification of the pleadings, the plain language of Section 83(1) (c) of the Act does not require an affidavit in support of the pleadings in an election petition. We are being asked to read a requirement that does not exist in Section 83(1) (c) of the Act._ _xxxx_ _**29.** While the necessity of filing an affidavit in support of the facts stated in a plaint may be beneficial and may have salutary results, but we have to go by the law as it is enacted and not go by the law as it ought to be. CPC no doubt requires that pleadings be verified and an affidavit “also” be filed in support thereof. However, Section 83(1)(c) of the Act merely requires an election petitioner to sign and verify the contents of the election petition in the manner prescribed by CPC. There is no requirement of the election petitioner “also” filing an affidavit in support of the averments_ O.P.(C) No.2400 of 2021 -31- _made in the election petition except when allegations of corrupt practices have been made._ _xxxx_ _**34.** We are not inclined to debate the contention whether Order 6 Rule 15 CPC has been legislated by reference or by incorporation into the Act for the reasons already indicated above, namely, that on a plain reading of Section 83 of the Act, only a verification and not an affidavit in support of the averments in an election petition is required, except when allegations of corrupt practices are made by the election petitioner. Any amendment in CPC is of no consequence in this regard unless the meaning of “verification” is amended to include an affidavit.”_ 22. In _**Neena Vikram Verma** (supra),_ the Apex Court, after referring to the Constitution Bench decision in _**Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and others [AIR 1964 SC 1545]**_ , held that a defective affidavit is not sufficient ground for summary dismissal of an election petition. Recently, in _**A.Manju v. Prajwal Revanna alias Prajwal R and others [2021 SCC**_ _**Online SCC 1234]**_ , the Apex Court had occasion to consider whether, failure to file an affidavit in Form 25 (similar to Form 28 herein) along with O.P.(C) No.2400 of 2021 -32- the election petition is a curable defect or not. The answer is contained in paragraphs 23 to 25 of ## that judgment, extracted hereunder; _23. Thus, the real and core question before us is that in view of the allegations of the alleged non-disclosure of assets in Form-26 by respondent No. 1 being cited as “corrupt practice”, would it be mandatory for the election petitioner to file an affidavit in Form-25 and what would be the consequences of not filing such an affidavit._ _24. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore which opined that the defect in 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. This Constitution Bench judgment was also referred to in G.M. Siddeshwar case to come to a conclusion that non-compliance with 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. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent No. 1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act._ _25. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah case which have received the_ O.P.(C) No.2400 of 2021 -33- _imprimatur of the three Judges Bench in G.M. Siddeshwar case appear not to have been appreciated in the correct perspective. In fact, the G.M. Siddeshwar case has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a 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. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah as well as G.M. Siddeshwar , ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form”_ Going by the legal position enunciated by the above precedents, failure to file an affidavit as provided under Order VI Rule 15(4) of CPC or the affidavit in Form 28 of the Act, cannot be treated as fatal defects warranting _in limine_ dismissal of the election petition. 23. Even though the learned Senior Counsel for the first respondent contended that there is ## O.P.(C) No.2400 of 2021 -34- no requirement to file an affidavit in Form 28 in the instant case, as no allegation of corrupt practice is raised in the election petition, the first respondent having filed the affidavit in Form 28, with specific reference to paragraph 4 of the election petition, which according to the election petitioner contains allegations of corrupt practice, the question whether corrupt practice is alleged in the election petition is best left for the trial court to decide. 24. I also find merit in the contention of the Senior Counsel that Section 169(1), providing for summary dismissal of an election petition, makes no reference to Section 167. Hence, even if there is non-compliance of the requirements under Section 167, that cannot entail in summary dismissal of the election petition. Support for this proposition can be drawn from the decision O.P.(C) No.2400 of 2021 -35- in _**Neena Vikram Verma** (supra)_ , wherein it has been held that Section 86 of the RP Act makes no reference to Section 83 thereof and hence, an election petition cannot summarily be dismissed for non-compliance with the provisions of Section 83 thereof. Likewise, as Section 169(1) makes no reference to Section 167 of the Act, noncompliance of that provision cannot entail in summary dismissal of the election petition. 25. Having found that going by the pleadings in the instant case, the Annexures are not integral part of the election petition, the challenge as to maintainability on the premise that copies of the documents appended to the election petition were not served cannot be sustained. This view is supported by the decision of the Apex Court in _**F.A.Sapa** (supra)_ . Having carefully scrutinized the original of the O.P.(C) No.2400 of 2021 -36- election petition and its copy, I find the copy served on the first respondent to be a true copy of the original. Hence, the challenge on the premise that the copy is not a replica of the original cannot also be countenanced. As held in _**Umesh Challiyil**_ , even though election petition has to be seriously construed, it should not be summarily dismissed on small breaches of procedures and the courts have to consider whether the objection as to maintainability goes to the root of the matter. For the aforementioned reasons, the original petition is dismissed. **==> picture [34 x 11] intentionally omitted <==** **V.G.ARUN** JUDGE _vgs_ O.P.(C) No.2400 of 2021 -37- ## **APPENDIX OF OP(C) 2400/2021** |PETITIONER|EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF PETITION DT 04-01-| ||2021 IN O.P (ELECTION) NO 1 OF| ||2021 ON THE FILE OF THE PRINCIPAL| ||MUNSIFF'S COURT, ERNAKULAM| |Exhibit P2|TRUE COPY OF PETITION (I.A NO. 8| ||OF 2021) TO DISMISS THE ELECTION| ||FILED ON 29-06-2021 BY THE| ||PETITIONER IN O.P (ELE) NO. 1 OF| ||2021 ON THE FILE OF THE PRINCIPAL| ||MUNSIFF'S COURT, ERNAKULAM| |Exhibit P3|TRUE COPY OF ORDER DT 27-07-2021| ||IN I.A NO. 8 OF 2021 IN O.P| ||(ELECTION) NO. 1 OF 2021 ON THE| ||FILE OF THE PRINCIPAL MUNSIFF'S| ||COURT, ERNAKULAM|