SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sri G Devarajegowda vs Sri Prajwal Revenna @ Prajwal R on 31 January, 2020

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31ST DAY OF JANUARY 2020

BEFORE

THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

ELECTION PETITION NO.2 OF 2019
BETWEEN:

SRI G DEVARAJEGOWDA
SON OF LATE GUNDEGOWDA,
AGED 42 YEARS
RESIDING AT KAMASAMUDRA VILLAGE,
MAVINAKERE POST
HALEKOTE HOBLI,
HOLENARASIPURA TALUK
HASSAN DISTRICT PIN – 573211
..PETITIONER

(BY SMT PRAMILA NESARAGI, SENIOR ADVOCATE A/W
SRI: SHIVANANDA B.S., ADVOCATE)

AND

1. SRI PRAJWAL REVANNA @ PRAJWAL R
SON OF SRI H D REVANNA
AGED ABOUT 28 YEARS
RESIDING AT NO 43,
PADAVALAHIPPE VILLAGE AND POST,
KASABA HOBLI, HOLENARASIPURA TALUK
HASSAN DISTRICT PIN – 573211

2. SRI MANJU A
S/O LATE ANNAIAH GOWDA,
AGED ABOUT 61 YEARS,
R/AT HANYALU VILLAGE,
ANANDUR POST, RAMANATHAPURA HOBLI,
ARAKALGUD TALUK,
HASSAN DISTRICT-573102

3. SRI VINOD RAJ K H
S/O HANUMANTHAIAH,
AGED ABOUT 29 YEARS,
R/AT NO.562/2, AMBEDKAR NAGAR,
KONANURU, ARAKALGUD VILLAGE,
HASSAN DISTRICT-573102
2

4. SRI H M CHANDREGOWDA
S/O SRI MALLALIGOWDA,
AGED ABOUT 65 YEARS,
R/AT NO.54, HONNASHATTIHALLI,
SRINIVASAPURA POST,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573211
KARNATAKA.

5. SRI M MAHESH @ LOKESH
S/O H C MANJAPPA SHETTY,
AGED ABOUT 49 YEARS,
R/AT DOOR NO.349,
SAISADANA, HEMAVATHINAGAR,
NEAR CHANNAMBIKA THEATRE,
HOLENARASIPURA -573211
HASSAN DISTRICT.

6. SRI R SATEESHA
S/O SRI GOWDEGOWDA,
AGED ABOUT 48 YEARS,
R/AT RAMADEVAPURA,
YELAGUNDA POST, SALIGRAMA HOBLI,
HASSAN DISTRICT-573219
…RESPONDENTS

(BY SRI: UDAYA HOLLA, SENIOR ADVOCATE A/W
SRI: M.KESHAVA REDDY, ADVOCATE FOR R1;
SRI: M.R.VIJAY KUMAR SRI: SUNIL M.V., ADVOCATES FOR R2;
SMT: AKKAMAHADEVI HIREMATH, ADVOCATE FOR R3;
SRI: A. MANJUNATHA SRI: NAGESHA.K., ADVOCATES FOR R4;
R-5 SERVED-UNREPRESENTED
VIDE COURT ORDER DATED 19.8.2019 SUMMONS
TO R5 IS HELD SUFFICIENT;
SRI: MAHESH R.UPPIN, ADVOCATE FOR R6)

THIS ELECTION PETITION IS FILED UNDER SECTION 81 OF THE
REPRESENTATION OF PEOPLE ACT, 1951, BY SRI. G. DEVARAJEGOWDA, PETITIONER
A/W HIS COUNSELS SRI. SRI.SHIVANANDA D.S., SMT.SHEELA RODRIGUES AND SMT
BINDU.H (ADVOCATE FOR PETITIONER) BEFORE THE REGISTRAR (JUDICAL) ON
06.07.2019, (THE PROCEEDINGS OF REGISTRAR (JUDICAL) IS AT PAGE NO.1 OF THE
PETITION), CHALLENGING THE ELECTION OF RESPONDENT NO.1, RETURNED
CANDIDATE SRI.PRAJWAL REVANNA @ PRAJWAL R FORM-16 HASSAN (GENERAL)
PARLIAMENTARY CONSTITUENCY HELD IN THE YEAR 2019 AND THE PETITIONER
PRAYS THIS HON’BLE COURT TO:-

a) TO DECLARE THAT THE RESULT OF THE ELCTION SO FAR IT IS CONCERNED
OF RESPONDENT NO.1 HAS BEEN MATERIALLY EFFECTED BY THE IMPROPER
ACCEPTANCE OF HIS NOMINATION UNDER SECTION 100(1)(b)(d)(i)(iii)(iv) OF
THE REPRESENTATION OF PEOPLE ACT, 1951, CONTRARY TO SECTION 33,
33(A)(B), RULE 4(A) AND FROM 26 AS ILLEGAL AND VOID.
3

b) TO DECLARE THAT ON THE DATE OF ELECTION i.e. 18.04.2019 AND ON THE
DATE OF DECLARATION OF THE RESULT i.e., 23.05.2019, THE 1ST
RESPONDENT HAD COMMITTED CORRUPT PRACTICE AND HE WAS NOT
QUALIFIED TO BE CHOSEN TO FILL THE SEAT OF 16-HASSAN
PARLIAMENTARY CONSTITUENCY UNDER SECTION 100(1)(b)(d)(iv) OF THE
REPRESENTATION OF PEOPLE ACT, 1951.

c) TO DECLARE THAT THE VOTES RECEIVED AND COUNTED IN FAVOUR OF
RESPONDENT NO.1 NUMBERING 6,76,606 VOTES AD IMPROPER RECEPTION
AND TREAT THEM AS VOID, WASTED AND THROWN AWAY VOTES.

d) TO DECLARE THAT THE RESULT OF RESPONDENT NO.1 OF 16-HASSAN
PARLIAMENTARY CONSTITUENCY AS NULL AND VOID.

e) TO DECLARE THAT THE RESULT OF THE ELECTION HAS BEEN MATERIALLY
EFFECTED BY THE IMPROPER RECEPTION AND COUNTING OF 6,76,606 VOTES
IN FAVOUR OF RESPONDENT NO.1 AS VOID UNDER SECTION
100(1)(A)(d)(iii)(iv).

f) (i) TO DECLARE THAT THE RESPONDENT NO.2 HAS RECEIVED MAJORITY OF
THE VALID VOTES;

(ii) THAT BUT FOR THE CORRUPT PRACTICE COMMITTED BY RESPONDENT
NO.1 THE RESPONDENT NO.2 WOULD HAVE OBTAINED MAJORITY OF THE
VALID VOTES;

(iii) TO DECLARE THT 6,76,606 VOTES RECEIVED AND COUNTED IN FAVOUR
OF RESPONDENT NO.1 AS THROWN AWAY, WASTED AND INVALID AND AS
VOID VOTES;

(iv) FURTHER DECLARE THAT 5,35,282 VOTES RECEIVED AND COUNTED IN
FAVOUR OF RESPONDENT NO.2 AS VALID VOTES; AND DECLARING AS
HAVING BEEN DULY ELECTED;

(v) PASS SUCH OTHER SUITABLE ORDER OR ORDERS WHEREBY IN RESPECT
OF PERSON/S WHO RESPONSIBLE FOR CORRUPT PRACTICE AT THE ELECTION
AS GUILTY AS CONTEMPLATED UNDER SECTION 99(1)(a)(i)(ii);

g) TO DECLARE THAT IN FACT THE RESPONDENT NO.2 HAS RECEIVED MAJORITY
OF THE VALID VOTES AND HE HAS TO BE DECLARED AS HAVING BEEN DULY
ELECTED UNDER SECTION 98(c) OF THE REPRESENTATION OF PEOPLE ACT,
1951;

h) TO FUTHER DECLARE THAT THE VOTES OBTAINED BY RESPONDENT NO.1 IS
BY CORRUPT PRACTICES AND THAT RESPONDENT NO.2 WOULD HAVE
OBTAINED A MAJORITY OF THE VALID VOTES.

i) TO DECLARE THAT THE ELECTION OF 1ST RESPONDENT AS RETURNING
CANDIDTE IS VOID AND FURTHER DECLARE THAT THE RESPONDENT NO.2 IS
OUGHT TO HAVE BEEN DULY ELECTED UNDER SECTION 98 READ WITH
SECTION 101 OF THE REPRESENTATION OF PEOPLE ACT, 1951;
4

j) TO MAKE AN ORDER REGARDING THE CORRUPT PRACTICE COMMITTED BY
PERSONS OTHER THAN RESPONDENT NO.1 IN THE ELECTION BY FOLLOWING
PERSONS VIZ. SRI.H.D.REVANNA, SRI.SURAJ AND OTHERS.

k) PASS SUCH OTHER ORDERS DEEMED NECESSARY UNDER SECTION 125(A) OF
REPRESENTATION OF PEOPLE ACT, 1951 AND

l) TO AWARD COSTS AND SUCH OTHER CONSEQUENTIAL RELIEF/RELIEFS IN
THE CIRCUMSTANCES OF THE CASE.

THIS ELECTION PETITION COMING ON FOR HEARING THIS DAY, THE COURT
MADE THE FOLLOWING:-

ORDER

I.A.No.8/2019 is filed by respondent No.1 under section

86(1) of the Representation of People Act, 1951 (hereinafter

referred to as “RP ACT”) seeking dismissal of the Election

Petition for non-compliance of provision of section 81(3) of the

RP Act and proviso to sub-section (1) of section 83 of the RP Act

read with Rule 94A of the Conduct of Election Rules (hereinafter

referred to as the “Rules”).

2. I.A.No.6/2019 is filed by respondent No.6 under

Order 7 Rule 11 r/w. 151 of CPC seeking dismissal of the

Election Petition as the same is barred by time as prescribed

under section 86(1) of RP Act.

3. Respondent No.1 in his affidavit filed in support of

I.A.No.8/2019 has averred that the election petition was
5

presented on 26.06.2019 with major and substantial defects like

non-payment of court-fees, defective verifying affidavit,

defective verification of pleadings, unattested annexures in the

copies to the respondents, unattested copies of election petition

to be served on the respondents, non-attestation of the copies

before Notary, improper marking of annexures and many other

major defects as pointed out by the Office in the order-sheet

produced at Annexure-‘R1-37’. It is stated that in view of the

above defects, the election petition cannot be considered as one

filed within the limitation prescribed under section 81(1) of the

RP Act. All the office objections were removed only on

25.07.2019 beyond the period of limitation of 45 days and

therefore, the election petition is barred by time and is liable to

be dismissed in limine.

4. Respondent No.6 has also made similar averments in

his affidavit and has sought for dismissal of the election petition.

5. Both these applications are opposed by the election

petitioner contending that, that Section 83 of the Representation

of Peoples Act, 1951 read with Rule 94A is not a ground

available under section 86(1) of the RP Act, 1951. The Petitioner
6

has complied substantially Section 81(3) of the Representation

of Peoples Act, 1951 and Section 81(3) is also not mandatory.

The Election Petition has been filed within 45 days from the date

of declaration of result and it is not barred by time. The Election

Petition filed by the Petitioner was not suffering from any defect

of substantial nature. Whatever defects pointed out were not of

substantial nature. Petitioner has complied with the defects

which were trivial in nature, like stitching, binding, paginating

and clerical defects and almost all the defects had been complied

with and it was posted before the court on 12.07.2019. It was

not filed with defective verification affidavit and petitioner’s

signature is subscribed in all pages including verification.

6. I have heard Smt.Pramila Nesargi, learned Senior

Counsel appearing on behalf of Sri.Shivananda D.S., learned

counsel for election petitioner, Sri.Udaya Holla, learned Senior

Counsel appearing on behalf of Sri.M.Keshava Reddy, learned

counsel for respondent No.1 and Sri.Mahesh R.Uppin, learned

counsel for respondent No.6.

7

7. Sri.Udaya Holla, learned Senior Counsel for

respondent No.1 has placed reliance on the following decisions

namely,

(i) SATYA NARAIN vs. DHUJA RAM Others, (1974) 4
SCC 237,

(ii) GOPAL PRASAD SHASTRI vs. Mrs.ARCHANA KUMAR
Others, AIR 1984 DELHI 280,

(iii) GILBERT JOHN MENDONCA vs. NARENDRA
LALCHANDJI MEHTA Others, 2018 SCC Online
BOMBAY 175,

(iv) LACHHMAN DAS ARORA vs. GANESHI LAL Others,
(1999) 8 SCC 532,

(v) AJAY GUPTA vs. RAJU @ RAJENDRA SINGH YADAV,
(2016) 14 SCC 314,

(vi) INDIAN OIL CORPORATION Ltd., vs. MUNICIPAL
CORPORATION Others, (1995) 4 SCC 96,

(vii) NATIONAL INSURANCE Co. Ltd., vs. PRANAY SETHI
Others, (2017) 16 SCC 680,

(viii) SARITHA S. NAIR vs. CHIEF ELECTION
COMMISSIONER OF INDIA, 2019 SCC OnLine Kerala
3713.

8. The sum and substance of argument of the

learned Senior Counsel is that, in the instant case, election was

declared on 23.05.2019. In view of the limitation prescribed in

section 81 of the RP Act, the election petition was required to be

presented by any candidate at such election or any elector within
8

45 days therefrom, but not earlier than the date of election of

the returned candidate. The period of limitation prescribed

under section 81 was to expire on 07.07.2019. Even though the

election petition was filed on 06.07.2019, it was full of defects.

The majority of the defects were not curable and amounted to

non-compliance of the mandatory requirements provided under

sections 81 and 83 of the RP Act. Filing of copies are mandatory

in character. As per section 81 of the RP Act, it is essential that

the petition must be accompanied by requisite number of copies.

If this is not done and the period of 45 days has expired, the

defect cannot be cured subsequently, because the provisions of

the Act are mandatory in nature. If the copies are supplied

subsequently, the same will not cure the non-compliance of

section 81 of the RP Act. After the expiry of period of limitation,

even the Court has no power to condone the delay and extend

time to comply with the provisions of section 81(3) of the RP

Act. Once the limitation sets in, it commands the Court to

dismiss the election petition as held by the Hon’ble Supreme

Court in 1999 (8) SCC 532 that the law of limitation has to be

applied with all its vigour when the statute so prescribes. The
9

court cannot extend period of limitation. The very object of

expeditious trial would be defeated if the presentation of the

election petition should be treated casually and lightly permitting

all kinds of devices to delay the ultimate trial. Placing reliance

on para 11 of the decision in SATYA NARAIN vs. DHUJA RAM

Others in (1974) 4 SCC 237, learned Senior Counsel emphasized

that,

“11. Part VI of the Act deals with disputes
regarding election. Chapter II therein provides
for presentation of election petitions while
Chapter III for trial of election petitions. The
right to challenge an election is conferred under
the Act which is made in conformity with the
provisions of Article 329(b) of the Constitution.
It is well settled that it is a special right
conferred under a self-contained special law and
the Court will have to seek answer to the
questions raised within the four corners of the
Act and the powers of the Court are
circumscribed by its provisions. It is not a
common law right and an election petition
cannot be equated with a plaint in a civil suit.”
10

9. In order to point out the nature of objections raised

by the office, learned Senior Counsel Sri.Udaya Holla referred to

the examination report/check slip wherein the office had

enumerated as many as 22 objections. Amongst these

objections, learned Senior Counsel highlighted the following

objections as the major and substantial defects the non-

compliance of which within 45 days from the date of declaration

of results would render the election petition not a valid petition

in the eye of law. These defects are extracted herebelow:

9. Is any schedule or Annexure filed : No, (A) Each of the Annexures
with the Petition? If so is it signed to be signed and verified by the
and verified? petitioner legible under his
original signature in all the
copies of Election Petition
and 3 office copies.

(B) Each page of the Annexures to
be signed by the Petitioner in
main petition a/w 3 office copies
+ Respondent copies.

__

15. Is the Petition signed by the : Petitioner has to verify the
Petitioner and verified in the manner pleadings of the petition as per
laid down in C.P.C. for verification Order 6 Rule 15 of CPC for
of pleadings? verification of pleadings.
_

17. Is the affidavit in Form No.25 : No, but affidavit filed a/w petition.

(as per Rules 94A Conduct of
Elections Rules, 1961)
_
11

22. Other Objections:

3. Para No. XXXV at page No. 54 to be clarified. Regarding Blanks
to be filled.

6. Annexure-AB not forthcoming.

11. Verification of Pleadings to be in strict compliance with the order 6
Rule 15 of CPC, 1908.

12. Every copy of the Election Petition 3+6 to be attested as “True
copy” by the petitioner under his original signature of the petitioner
(under section 81(3) of the RP Act).

15. Copies of Respondents and 3 office copies to be the true copy of
the original Election Petition in all respect and manner.

16. All Copies of Respondents and 3 extra copies to be dated and
signed by the Advocate for Petitioner in Index, Petition and List of
Documents.

18. Every Annexure to be accompanied by verification.

19. Every Annexure to be verified as contemplated under the Provision
of Code of Civil Procedure, 1908.

10. Referring to the very same examination report/check

slip, learned Senior Counsel submitted that eventhough some of

these objections were rectified on 15.07.2019, yet the objections

at Sl.Nos.9(A)(B), 22(12), 22(16), 22(18) and 22(19) still

remained to be complied even after the expiry of time prescribed

under section 81(1) of the RP Act. As a result, election petition

presented before the Court was not a valid election petition in

the eye of law and is therefore, liable to be dismissed in limine.
12

11. Learned counsel appearing for respondent No.6 has

adopted the arguments canvassed by learned Senior Counsel

appearing for respondent No.1.

12(i) Learned Senior Counsel appearing for election

petitioner Smt.Pramila Nesargi countered each of these

arguments, contending that the applications filed by respondent

No.1 and respondent No.6 in I.A.Nos.8/2019 and 6/2019 do not

refer to the election petition filed by the petitioner. Pointedly

referring to the affidavits sworn by respondent Nos.1 and 6,

learned Senior Counsel pointed out that in their respective

affidavits, respondent Nos.1 and 6 averred that, “the election

petition was filed on 26.06.2019 which was defective in nature.”

Based on this portion of the affidavit, learned Senior Counsel has

built up an argument that the objections raised in the

applications refer to the election petition filed on 26.06.2019

whereas no such objections have been pointed out in the

election petition filed by the petitioner on 05.07.2019. Thus she

contended that the applications in I.A.No.6/2019 and
13

I.A.No.8/2019 are not maintainable and are liable to be

dismissed solely on that score.

12(ii) Secondly, learned Senior Counsel argued that the

objections raised by respondent Nos.1 and 6 are not specific and

are lacking in material particulars. Eventhough it is contended

that the copy furnished to respondent Nos.1 and 6 did not

contain the required attestation and signatures of the petitioner

and his Advocate, yet, the copies served on respondent Nos.1

and 6 are not produced before the court and therefore, no

credence could be given to the objections raised in the affidavit.

Further referring to series of judgments rendered by the Hon’ble

Apex Court and various High Courts, learned Senior Counsel

emphasized that law is now well crystallized that an election

petition cannot be dismissed in limine for non-attestation of

annexures or for non-compliance of Order VI Rule 15(4) of CPC.

These defects are curable defects and are not integral part of the

election petition. Order VI Rule 15 of CPC is not a prerequisite

prescribed under the RP Act and therefore, non-compliance of

the said rule does not vitiate the election petition as long as the
14

election petition discloses cause of action and triable issue for

determination of the Court and the same is filed within the time

prescribed under the RP Act. It is the submission of learned

Senior Counsel that RP Act overrides the provisions of CPC and

the High Court Rules. Respondents have not made out any

grievance that on account of the defects noted by the Office,

respondents are either mislead or prejudiced in their defence.

The defective verification is not fatal to the maintainability of the

petition. Likewise, non-attestation of the annexure is also held

to be not material for the purpose of sustaining the charges

made in the election petition. Even if respondents are subjected

to any prejudice on account of the defects in the presentation of

the election petition, the same needs to be proved during trial

and cannot be a ground to seek dismissal of the election petition

at the threshold.

12(iii) In support of her submission, learned Senior

Counsel has submitted a long list of authorities viz:

1. Abdul Rauf v. Govind Ballab Pan and others, 8 ELR 240

2. N.P. Changalraya Naidu v. G.N. Pattabhi Reddy,
AIR 1964 A.P. 164
15

3. Murarka Radhey Sham Ram Kumar v. Roopsingh Rathore,
AIR 1964 SC 1545

4. Ch.Subbarao v. Member of Election, AIR 1964 S.C. 1027

5. Anup Singh v. Abdul Gani, AIR 1965 SC 815

6. Sahodrbai Rai v. Ramasingh Agarwar, AIR 1968 SC 1079

7. Kamalam v. Dr.V.A. Syed Mohamed, (1978) 2 SCC 659

8. F.A. Safa and others v. Singora and others,
(1991) 3 SCC 375

9. Makhu Lal v. Bachcha Patha, AIR 1992 Allahabad 358

10. T.M. Jacob v. Poulose and others, AIR 1999 SC 1359

11. H.D.Revanna v. G. Puttaswamy Gowda, AIR 1999 SC 768

12. Badruddin Qureshi v. Prem Prakash, AIR 1999 SC 2002

13. Anik Deshmukh v. Onkar N, AIR 1999 SC 732

14. T. Punzathang v. Hangkhanlia, AIR 2001 SC 3924

15. Ram Prasad Sharma v. Manikumar Subba and others,
(2003) 1 SCC 289

16. Chandrakantha Uttam Chodankar v.Dayanand Rayu,
AIR 2005 SC 547

17. Prasannakumar v. G.M. Siddeshwar and others,
AIR 2010 KAR 113

18. K.K.Ramachandran Master v. Sreyamakumar and others
(2010) SCC 428
16

19. Kedhar Shashikanth Deshpande v. Bhor Muncipal Corp,
AIR 2011 SC 463

20. Neena Vikram verma v. Balmukanda Singh Gautham,
AIR 2013 SC 1632

21. G.M. Siddeshwar v. Prasannakumar, 2013(4) SCC 776

22. Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others,
AIR 2012 SC 2638

23. Ashraf Kokkur v. Abdul Khaddar, CDJ 2014 SC 715

24. Madiraju Venkataramana Raju v. Peddireddigari
Ramachandra Reddy, 2018(14) SCC 1

25. A. Manju v. Prajwal R, E.P.1/2019

26. Patel Ahmed Mahammad v. Balwant Singh Rajputh and
other, (2018) 18 SCC 501

27. Abdulrasakh v. K.P. Mohamed and others,
(2018) 5 SCC 598

13. I have bestowed my careful consideration to the

contentions urged by the learned Senior Counsels and have

carefully scrutinized the material on record.

14. These contentions give rise to the following

questions:

17

(1) Whether the defects found in the presentation
of election petition and the copies thereof are of vital
nature and amount to non-compliance of mandatory
requirements of sections 81 and 83 of the RP Act?

(2) If so, whether the election petition is liable to
be dismissed in limine for non-compliance of these
requirements within 45 days from the date of
declaration of results?

(3) Whether the High Court Rules confer
jurisdiction upon this Court to permit correction or
removal of fundamental defects in an election
petition beyond the period of limitation provided
under the RP Act?

(4) Whether compliance of the mandatory
requirements of sections 81 and 83 of the RP Act
after the expiry of period of limitation prescribed
under the RP Act validates the defective election
petition?

15. Before proceeding to answer these questions, it may

be relevant to note that the defects enumerated in the check slip

based on which I.A.Nos.8/2019 and 6/2019 are filed by
18

respondent Nos.1 and 6 could be broadly divided into three

categories namely:

(1) Defects relating to verification of pleadings in
terms of Order VI Rule 15 of CPC.

(2) Non-attestation of annexures appended to the
election petition.

(3) Defects in the copies served on respondent Nos.1
and 6.

Defects relating to verification of pleadings

16. Insofar as the verification of the pleadings is

concerned, the objections raised by the office in the examination

report or the check slip make it evident that the election

petitioner did not verify the pleadings as per Order VI Rule 15

CPC at the time of submission of the election petition and the

same were rectified subsequent to 15.07.2019. Objections in

this regard at Sl.No.15 reads as under:

15. Is the Petition signed by the : Petitioner has to verify the
Petitioner and verified in the manner pleadings of the petition as per
laid down in C.P.C. for verification Order 6 Rule 15 of CPC for
of pleadings? verification of pleadings.
19

17. Section 83(1)(c) of the RP Act specifically provides

that, an election petition 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. Dealing with

this provision, the Hon’ble Supreme Court in G.M.SIDDESHWAR

vs. PRASANNA KUMAR, (2013) 4 SCC 776, in para 23 thereof,

has held as under:

23. A reading of Section 83(1)(c) of the Act
makes it clear that what is required of an
election petitioner is only that the verification
should be carried out in the manner prescribed
in CPC. That Order 6 Rule 15 requires an
affidavit ‘also’ to be file does not mean that the
verification of a plaint is incomplete if an
affidavit is not filed. The affidavit, in this
context, is a stand-alone document.”

18. Thus the law on the point is clear that verification of

the election petition in the manner prescribed in Order VI Rule

15 is a sine qua non to maintain the election petition, though

non-filing of verifying affidavit does not render the verification

incomplete. Order VI Rule 15 CPC prescribes the manner in
20

which the pleading is required to be verified. The rule reads as

under:-

“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.”

21

19(i) In the instant case, on perusal of the records, it is

noticed that the petitioner has filed a verifying affidavit along

with the election petition (page No.60) which reads as under:

VERIFYING AFFIDAVIT
(1) I, G.Devarajegowda, son of late
Gundegowda, aged 42 years, residing at Kamasamudra
Village, Mavinakere Post, Halekote Hobli, Holenarasipura
Taluk, Hassan District-573 211, do hereby solemnly
affirm and state on oath as follows:

(2) I submit that, I am the petitioner in the
above case and I am well conversant with the facts and
circumstances of the case.

(3) I submit that the Paragraph-I to XXXVI and
the prayer made therein are true to the best of my
knowledge, information and belief.

(4) I submit that the Annexures-A to Z, and AA
and AB are true copies of the originals.

I, the deponent above named hereby verify and
declare that this is my name and signature.

Sd/- Sd/-
Advocate Deponent
Bangalore,
Dt.05.07.2019.
22

This affidavit is seen to have been sworn on 05.07.2019 and

was filed along with the election petition on the date of

presentation of the election petition i.e., on 05.07.2019. In

addition to the verifying affidavit, the election petitioner has filed

another affidavit at page 64, in accordance with the proviso to

section 83(1) of the RP Act. In para 3 of the said affidavit, the

declarant/election petitioner has sworn thus:

“3) I have filed this affidavit under section
83(1) proviso as I have alleged corrupt practice
against respondent No.1 in the election petition.
I am filing this affidavit in support of the
allegations made by me regarding corrupt
practice and the particulars thereof.”

19(ii) In the subsequent paragraph No.4, the election

petitioner has stated that the averments made by him in the

election petition pertaining to the corrupt practices under

sections 123(1), 123(2), 123(3), 123(3A), 123(6), 123(7) and

123(8) of the Representation of People Act, 1951 are true to the

best of his knowledge.

19(iii) In paragraph No.5, he has sworn to the material

particulars which he has affirmed them to be true. Likewise, in
23

the subsequent paragraphs, he has specified as to which of

those allegations are true to the best of his knowledge and which

are based on the information secured by him.

19(iv) This affirmation, in my view, serves the purpose of

Order VI Rule 15 CPC. The verifying affidavit filed by the

petitioner in terms of Order VI Rule 15 CPC and another affidavit

filed in terms of the proviso to section 83(1) of the Act read

together, in my view, are in substantial compliance of the

requirements of section 83 of the RP Act. In this regard, it may

be pertinent to refer to the dictum of the Hon’ble Supreme Court

in the case of H.D.REVANNA vs. G.PUTTASWAMY GOWDA

Others AIR 1999 SC 768, in paragraph 14 whereof it is held as

under:

“Section 86 provides for dismissal of election
petition in limine for non-compliance of Sections
81, 82 and 117. Section 81 relates to
presentation of election petition. It is not the
case of the appellant before us that the
requirements of Section 81 were not complied
with though in the High court a contention was
urged that a true copy of the election petition
was not served on the appellant and thus the
24

provisions of Section 81 were not complied.
Sections 82 and 117 are not relevant in this
case. Significantly Section 86 does not refer to
Section 83 and non-compliance of Section 83
does not lead to dismissal under Section 86.
This Court has laid down that non-compliance of
Section 83 may lead to dismissal of the petition
only if the matter falls within the scope of O.6,
R.16 or O.7, R.11, CPC. Defect in verification of
the election petition or the affidavit
accompanying election petition has been held to
be curable and not fatal.”

19(v) No doubt in the instant case the alleged defects in

verification are stated to have been rectified only after the expiry

of 45 days prescribed under section 83 of the RP Act, yet, these

defects being curable and not of vital nature, non-compliance of

these requirements within the period of limitation, in my view,

do not entail dismissal of the election petition at the threshold.

In that view of the matter, the first set of objections raised by

respondent No.1 and respondent No.6 cannot be accepted as a

ground to dismiss the election petition at the preliminary stage.
25

Non-attestation of annexures:

20(i) Coming to the next objection raised by the

respondents regarding maintainability of the election petition for

non-attestation of annexures is concerned, learned counsel for

the election petitioner Smt.Pramila Nesargi has placed reliance

on the decision of the Hon’ble Supreme Court in ASHRAF

KOKKUR vs. K.V.ABDUL KHADER, CDJ 2014 SC 715. In the said

decision, the questions that arose for consideration of the

Hon’ble Supreme Court were, whether a schedule or annexures

to the election petition is an integral part of the election petition?

and whether the election petition is liable to be dismissed for

contravention of section 81(3) of the RP Act?

20(ii) In answering these questions, the Hon’ble Supreme

Court referred to its earlier decision in the case of SAHODRABAI

RAI vs. RAM SINGH AHARWAR, AIR 1968 SC 1079 wherein it is

held that,

“A schedule or an annexure which is merely an
evidence in the case and included only for the
sake of adding strength to the petitioner, does
not form an integral part of the election petition.
It was a case where the annexures were not
26

verified by the election petitioner as required
under section 83(2) of the RP Act.”

20(iii) This issue was specifically considered in

M.KAMALAM vs. V.A. SYED MOHAMMED, (1978) 2 SCC 659

wherein the Hon’ble Supreme Court observed that,

“It would, therefore, be seen that if a
schedule or annexure is an integral part of the
election petition, it must be signed by the
petitioner and verified, since it forms part of the
election petition. The subject-matter of sub-
section (2) is thus a schedule or annexure
forming part of the election petition and hence it
is placed in Section 83 which deals with
contents of an election petition. Similarly, and
for the same reasons, the affidavit referred to in
the proviso to Section 83, sub-section (1) also
forms part of the election petition. The election
petition is in truth and reality one document
consisting of two parts, one being the election
petition proper and the other being the affidavit
referred to in the proviso to Section 83, sub-
section (1). The copy of the election petition
required to be filed under the first part of sub-
section (3) of Section, 81, would, therefore, on
a fair reading of that provision along with
Section 83, include a copy of the affidavit. That
27

is why the appellant attached a copy of the
affidavit to the copy of the election petition
proper and filed the two as one single document
along with the election petition.”

20(iv) The test to determine whether an annexure or

schedule appended to an election petition is an integral part of

the petition has been explained by His Lordship Justice

Hidayatulla in Sahodrabai Rai’s case, referred to supra, as

under:-

“… Even if this be not the case, we are quite clear
that sub-section (2) of Section 83 has reference
not to a document which is produced as evidence
of the averments of the election petition but to
averments of the election petition which are put,
not in the election petition but in the accompanying
schedules or annexures. We can give quite a
number of examples from which it would be
apparent that many of the averments of the
election petition are capable of being put as
schedules or annexures. For example, the details
of the corrupt practice there in the former days
used to be set out separately in the schedules and
which may, in some cases, be so done even after
the amendment of the present law. Similarly,
details of the averments too compendious for being
28

included in the election petition may be set out in
the schedules or annexures to the election
petition. The law then requires that even though
they are outside the election petition, they must be
signed and verified, but such annexues or
schedules are then treated as integrated with the
election petition and copies of them must be served
on the respondent if the requirement regarding
service of the election petition is to be wholly
complied with. But what we have said here does
not apply to documents which are merely evidence
in the case but which for reasons of clarity and to
lend force to the petition are not kept back but
produced or filed with the election petitions. They
are in no sense an integral part of the averments of
the petition but are only evidence of those
averments and in proof thereof.”

21. This exposition makes it undoubtedly clear that if the

facts constituting the grounds to set-aside the election are set

out in the accompanying schedules or annexures, the same

become part and parcel of the pleadings since the election

petition cannot be meaningful dehorse these

schedules/annexures. If the petitioner chooses to narrate the

details of corrupt practice by way of annexures/schedules

instead of making an elaborate narration of the averments in the
29

petition, it goes without saying that such annexures/schedules

are nothing but part of the pleadings which cannot be separated

from the plaint or the petition. Since the signature and

verification of the petitioner is necessary to render the petition

valid in the eye of law, by virtue of prescription contained in

section 83(2) of the Act, the petitioner is required to sign and

verify the same in the same manner as the petition failing which

the petition is rendered liable for dismissal at trial as prescribed

in section 86 of the RP Act.

22. In the light of the above proposition of law

expounded by the Hon’ble Supreme Court as discussed above,

let us now proceed to discuss whether the schedules or

annexures appended to the election petition in the instant case

are an integral part of the election petition so as to warrant

verification and signatures as provided under section 83(2) of

the Act?

23. In the instant case, an incisive reading of the

election petition and the averments made therein go to show

that the various annexures referred to in the election petition are
30

an integral part of the election petition which under law were

required to be signed and verified by the petitioner. I have

drawn this conclusion from the relevant portion of the election

petition extracted herebelow namely para XIV of the petition, in

page 9, wherein the averments read as under:-

“… That as per Form 26, not only the
information contemplated under the Act and
rules, but also instructions issued by the
Election Commission from time to time has to
be duly filled. In the instant case, the
respondent No.1 has filed his nomination along
with the affidavit in Form 26. The nomination
copy is herewith produced as Annexure-G and
Form 26 is produced as Annexure-H. The
petitioner submits that the information
furnished in Form 26 was notified for the
information of the public and candidates as
contemplated under Section 33(A)(3) for the
information of the electorate. After going
through he affidavit, the candidates, respondent
No.2 in particular filed his objections by himself
and by the political party which has sponsored
him. Copies of the same are produced as
Annexures-J and J1.”

31

These averments go to show that one of the grounds urged in

the petition for setting aside the election of respondent No.1 is

the false information furnished by respondent No.1 in Form 26.

The details of the said information has not been elaborated in

the petition instead the copy of the nomination itself has been

produced as one of the annexures to show that the information

furnished therein are false and furnisha a ground for setting

aside the election. Likewise, the details of the objection filed by

respondent No.2 are also not specified in the petition instead a

reference to the said objections is made in Annexures-‘J’ and

‘J1’. In the said circumstances, without reading the annexures,

it is not possible to understand the false information alleged to

have been given by respondent No.1 so as to proceed against

him under section 33(A)(3) of the RP Act.

Further in same para, in page 10 of the petition, it is stated:

… When nomination of respondent No.1 was
being scrutinized by Returning Officer, the
respondent No.2 brought to the notice of the
Returning Officer about the objections filed by
him and requested him to reject the
nomination, as Form 26 filed by respondent
32

No.1 was not in accordance with law. But the
Returning Officer accepted the same in spite of
objections without considering the questions
raised by respondent No.2. The acceptance of
the nomination was in the Annexure-G itself. It
was stated therein that he has passed a
separate order. Copy of the same is herewith
produced as Annexure-K. The petitioner is
aggrieved by acceptance of nomination in
Annexures-G and K and being aggrieved not
rejecting the nomination of respondent No.1 has
filed this petition, challenging the validity of the
acceptance of nomination. The affidavit in Form
26 already produced vide Annexure-H suffers
from non-disclosure of material information,
regarding the assets and liabilities, bank
balance, which is of a substantial nature.

Further, in page 11 of the petition, it is pleaded as under:

“… The petitioner submits at this juncture itself
that respondent No.2 has not only filed his
objection to the nomination of respondent No.1,
but had also brought to the notice of the
Returning Officer about the investments made
by respondent No.1 in two LLP firms viz. M/s
Adikarah Ventures LLP and M/s Drone
Workforce LLP. Copies of Investments
particulars are produced as Annexures-L and L1
respectively.”

33

Likewise, in page 13, sub-clause (d), it is stated thus:-

(d) In Part-B, Column No.11 of the affidavit-
Form 26 (vide Annexure-H) respondent No.1
has declared that a sum of Rs.4,89,15,029/-
has been paid through DD and RTGS towards
the purchase of agricultural properties. In fact
in the declaration made by respondent No.1’s
father viz. H.D. Revanna before Lokayukta,
which is compulsory for every sitting M.L.A., has
declared stating that he has paid
Rs.47,36,000/- to respondent No.1. The said
declaration is dated 30.07.2018. Copy of the
declaration is produced as Annexure-M. The
difference is about Rs.79,00,000/- and hence it
is a false declaration.

24. The above averments make it clear that various

annexures and schedules referred in the petition were part and

parcel of the election petition. These are not mere documents

produced as evidence, rather they were sought to be produced

as the very grounds on which the election of respondent No.1

has been challenged. If these annexures are eschewed from

records for want of authentication, the petition becomes bereft

of necessary particulars, resultantly the petition becomes
34

incomplete and the very substratum or the basis of the petition

will collapse. Undeniably, none of these annexures were signed

or verified by the petitioner at the time of presentation of the

petition as noted in the check slip. As a result, these annexures

cannot be treated as part and parcel of the petition. If these

annexures cannot be read as integral part of the petition, there

is no basis to sustain the corrupt practices alleged against

respondent No.1, as such the petition itself has to be dismissed

for not disclosing a cause of action under Order VII Rule 11(a) of

CPC. Besides, without these annexures, no triable issue could

be framed or decided by this Court. Therefore, in the absence of

these annexures, the petition itself has to be treated as not a

valid petition in the eye of law.

25. Of course, as held in the decisions referred above,

non-compliance of requirement under section 83 of the RP Act

by itself does not lead to dismissal of the petition as section 86

of the RP Act does not refer to section 83 of the RP Act.

Nonetheless this defect cannot be cured by permitting the

petitioner to subscribe his signature and verification of these
35

annexures after expiry of limitation prescribed under section 81

of the RP Act. The Hon’ble Supreme Court in SATYA NARAIN’s

case, referred to supra, in para 14, has held as under:-

” x x x

14. We may only add here that, in the
absence of any provision under the Act or the
rules made thereunder, the High Court Rules
cannot confer upon the Registrar or the Deputy
Registrar any power to permit correction or
removal of defects in an election petition
presented in the High Court beyond the period of
limitation provided for under the Act. It may be
noted that Section 169 of the Act provides that
the Central Government is the authority to make
rules after consulting the Election Commission
and in sub-section (3) thereof the rules have to
be laid before each House of Parliament in the
manner provided therein.”

In view of this legal position, attestation made by the petitioner

by subscribing his signatures to these annexures after expiry of

limitation, though with the permission of the Registry or the

Court, has to be held as without authority of law. Consequently,

it has to be held that for want of signature and verification of
36

these annexures, the election petition, as presented to the

Court, is liable to be dismissed.

Defects in the copis served on respondent Nos.1 and 6

26. The objections at Sl.Nos.12, 15 and 16 indicate

that,

12. Every copy of the Election Petition 3+6 to be
attested as “True copy” by the petitioner under his
original signature of the petitioner (under section
81(3) of the RP Act).

15. Copies of Respondents and 3 office copies to be the
true copy of the original Election Petition in all
respect and manner.

16. All Copies of Respondents and 3 extra copies to be
dated and signed by the Advocate for Petitioner in
Index, Petition and List of Documents.

These objections indicate that the copies produced along

with the election petition were not attested as “True Copies”

and they did not contain the original signature of the

petitioner as required under section 81(3) of the RP Act. This is
37

in stark violation of section 81(3) of the RP Act which prescribes

that,

“81. Presentation of petitions.-

xxx
(3) 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.”

27. In SHARIF-UD-DIN vs. ABDUL GANI LONE in

(1980) 1 SCC 403, the Hon’ble Supreme Court has observed

thus,

“The object of requiring the copy of an election
petition to be attested by the petitioner under his
own signature to be a true copy of the petition is
that the petitioner should take full responsibility for
its contents and that the respondent or respondents
should have in their possession a copy of the petition
duly attested under the signature of the petitioner to
be the true copy of the petition at the earliest
possible opportunity to prevent any un-authorized
alteration or tampering of the contents of the
original petition after it is filed into court.
Sometimes records in the court have been tampered
with notwithstanding the care and caution taken by
38

courts. It is probably to obviate any scope for such
an allegation being made or to protect the interest of
the respondent, the legislature thought of enacting
sub-section (3) of Section 89 of the Act so that the
respondent may rely on the copy served on him
when he finds that the original document in the court
contains allegations different from those in the copy
in his custody. A respondent would not have the
same degree of assurance if a copy served on him is
one attested by any person other than the petitioner
himself. The attestation by the advocate for the
petitioner cannot be treated as the equivalent of
attestation by the petitioner under his own
signature. If the requirement of the second part of
Section 89(3) that copy of the petition should
contain the signature of the petitioner himself is not
one of substance, there was no need to enact it as
the first part of sub-section (3) of Section 89 of the
Act would have been sufficient for it provides that
every election petition shall be accompanied by as
many copies thereof as there are respondents
mentioned in the petition and the word “copies”
mentioned therein can only mean “true copies”. The
importance of the provisions contained in Section 94
of the Act which makes it obligatory on the part of
the High Court to dismiss a petition when it is
established that Section 89 of the Act had not been
complied with also cannot be overlooked in this
context.

39

20. We are, therefore, of the view that the
requirement that every copy of the election petition
which is intended for service on the respondent
should be attested by the petitioner under his own
signature is a mandatory requirement and the non-
compliance with that requirement should result in
the dismissal of the petition as provided in Section
94 of the Act. The High Court was, therefore, right
in dismissing the petition on the above ground.”

28. In RAJENDRA SINGH vs. Smt. USHA RANI

Others, AIR 1984 SC 956, the Hon’ble Supreme Court has

reiterated that, if true and correct copy is not furnished to the

respondent, the election petition itself is liable to be dismissed in

limine. In the said decision, the Hon’ble Supreme Court has

even gone to the extent of stating that, it is not the duty of the

respondent to wade through the entire record to find out that

whether the copy furnished now is the correct copy or not. In

the instant case, the copies required to be served on the

respondents were not in accordance with section 81 of the RP

Act.

40

29. In the case of MITHILESH KUMAR PANDEY vs.

BAIDYANATH YADAV, AIR 1984 SC 305, there were number of

mistakes in the copy of the petition supplied to the respondent.

After referring to various decisions rendered on this point, the

Hon’ble Supreme Court observed that, if the copy contains

important omissions or discrepancies of a vital nature, which are

likely to cause prejudice to the defence of the returned

candidate, the election petitioner cannot take shelter under the

theory of substantial compliance of mandatory requirements.

30. The position is now well settled that section 81(3)

of the RP Act is mandatory and failure to comply with the same

would result in dismissal of the petition even at the preliminary

stage. This view gets fortified in the decision of the Hon’ble

Supreme Court in SATYA NARAIN’s case, referred to supra,

wherein the issue that fell for consideration of the Hon’ble

Supreme Court was that the required number of copies had not

been filed along with the election petition as required under

section 81(3) of the RP Act and hence, the petition was not

maintainable. Hon’ble Supreme Court upheld this objection and
41

held that the petitioner is bound to furnish required number of

copies along with the election petition and he cannot be

permitted to furnish the copies after the period of limitation. In

the light of this proposition of law, argument of the learned

Senior Counsel that requisite number of copies were produced

before the Court within the time granted by the Court and the

same have been duly served on the respondents cannot be a

reason to hold that the election petitioner has complied with the

statutory requirements prescribed under section 81(3) of the RP

Act.

31. The decision relied on by the learned Senior Counsel

for the petitioner deal with a situation where copies were

defective for one or other reasons and in that context it was held

therein that such defects are curable. But in the instant case,

there is total non-compliance of section 81(3) of the RP Act.

Statutory mandate contained in the section was not complied by

the petitioner at the time of presentation of the election petition

or within the period of limitation provided under section 81 of

the RP Act. Therefore, the argument of the learned Senior
42

Counsel for the petitioner that defects falling under section 81(3)

of the RP Act have been complied with the permission of the

Registry or the Court cannot salvage the situation. As already

pointed out, section 81(3) of the RP Act has been held to be

mandatory and failure to comply with the same, the election

petition is liable to be dismissed as provided under section 86(1)

of the RP Act. As a result, the applications filed by respondent

Nos.1 and 6 deserve to be allowed.

Accordingly, I.A.No.8/2019 filed by respondent No.1 under

section 86(1) of the Representation of People Act, 1951 is

allowed. I.A.No.6/2019 filed by respondent No.6 under Order

VII Rule 11 r/w. section 151 of CPC is allowed.

Consequently, Election petition No.2/2019 is held not

maintainable for non-compliance of statutory requirements

under Section 81(3) of the Representation of People Act, 1951.

For the reasons explained above, it is held that the election

petition presented to the Court is not a valid petition in the eye

of law and the same is therefore, liable to be dismissed and is

accordingly dismissed.

43

In view of the dismissal of the election petition, all

pending I.As. stand dismissed.

Sd/-

JUDGE

Bss

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation