Full Judgment Text
REPORTABLE
2023 INSC 762
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 4179-4180 OF 2023
ARISING OUT OF SLP (C) Nos. 11828-11829 of 2023
THANGJAM ARUNKUMAR … APPELLANT(S)
VERSUS
YUMKHAM ERABOT SINGH & ORS. …RESPONDENT(S)
J U D G M E N T
Pamidighantam Sri Narasimha, J.
1. This appeal arises out of the decision of the High Court of
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Manipur dated 11.04.2023, whereby the returned candidate’s
application under Order 7 Rule 11 of the Code of Civil Procedure,
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1908 , to dismiss the election petition filed by the unsuccessful
candidate on the ground that it lacks material particulars and is
in violation of mandatory requirements of law was rejected by the
High Court. The returned candidate is the Appellant before us.
Signature Not Verified
Digitally signed by
Deepak Singh
Date: 2023.10.16
10:01:34 IST
Reason:
1
Hereinafter “the High Court”.
2
Hereinafter, “the CPC”.
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Facts:
2. The short and precise facts necessary for our consideration
are as follows. The Appellant is the returned candidate to the XII
Manipur Legislative Assembly, having been elected from the 15-
Wangkhei Assembly Constituency. The Respondent No.1, the
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unsuccessful candidate moved Election Petition No. 24 of 2022
alleging violations under Sections 80, 80A, 81, 84 read with
Sections 100(1)(d)(iv) and 101 of the Representation of People Act,
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1951 . The election petitioner prayed that the election of the
Appellant be held void and also to declare him to be the elected
candidate. It is important to note that the election petition alleges
corrupt practice, in as much as the petitioner pleaded that the
returned candidate has not provided the material particulars with
respect to a financial transaction relating to financing a loan.
3. In response to the election petition, the Appellant moved two
applications under Order 7 Rule 11 read with Section 151 of the
CPC and under Section 86 of the Act seeking dismissal of the
election petition on the grounds of – (i) non-disclosure of cause of
action/triable issue vis-à-vis the alleged corrupt practice
committed by the Appellant; (ii) the absence of a concise statement
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Hereinafter, “the Election Petition”.
4
Hereinafter, “the Act”.
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of facts as mandated under Section 83 of the Act; and (iii) for not
serving a true self attested copy of the election petition on the
returned candidate as provided under Section 81 of the Act. Apart
from the above, and more importantly, the Appellant also sought
dismissal of the election petition on the ground that the Form-25
affidavit as prescribed under Section 83 of the Act r/w Rule 94A of
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the Conduct of Election Rules, 1961 has not been filed along-with
the election petition. It was alleged that such an affidavit is
mandatory, as the election petition raises allegations of corrupt
practice.
4. The High Court, by the order impugned, dismissed the
applications under Order 7 Rule 11 of the CPC. The High Court
observed that – (i) the election petitioner had elaborately pleaded
all the material facts and set forth full particulars of all the actions
and omissions of the Appellant, sufficient to constitute a case of
corrupt practice. The High Court, therefore, concluded that there
is a cause of action and triable issues; (ii) the High Court also
concluded that the alleged non-compliance of Section 81(3) of the
Act is incorrect as the election petitioner had effectively attested
the election petition. For this purpose, High Court relied on the
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Hereinafter, the “Rules”.
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decisions of this Court in Ch. Subbarao v. Member, Election
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Tribunal, Hyderabad & Ors. , and also a decision of the same Court
in Pukhrem Sharatchandra Singh v. Mairembam Prithviraj @
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Prithibiraj Singh , later came to be upheld by this Court in
Mairembam Prithviraj @ Prithviraj Singh v. Pukhrem Sharatchandra
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Singh . The High Court observed that although the election
petitioner attested the election petition as “true copy of the
original” and not as “true copy of the petition”, the same is in
compliance with Section 81(3) of the Act.
5. The submission that in all cases involving allegations of
corrupt practices, the election petitioner must mandatorily file an
affidavit under Section 83(1) of the Act was rejected without much
discussion. The High Court simply following the decision of this
Court in Lok Prahari through its General Secretary v. Union of India
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& Ors. , rejected the plea.
Submissions:
6. Mr. Devadatt Kamat, learned senior counsel appearing for the
Appellant initially argued the first two grounds, namely that there
is a non-disclosure of the cause of action and also that there is a
6
AIR 1964 SC 1027
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2016 SCC OnLine Mani 30
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(2017) 2 SCC 487
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(2018) 4 SCC 699
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complete non-compliance of the requirement under Section 81(3)
of the Act with respect to the attestation of the election petition.
However, as we expressed our disinclination to interfere on those
grounds, he took up the alternative point and emphatically argued
that the judgment of the High Court is unsustainable as the
election petition completely violated the ‘mandatory’ requirement
of 83(1)(c) of the Act. He argued that the election petition must fail
for not filing the additional affidavit in support of the allegation of
corrupt practice. He elaborated this point by taking us through the
Section, and in particular, the proviso which requires that in cases
of corrupt practice, “ the petition shall also be accompanied by an
affidavit ”.
7. On the specific submission of Mr. Devadatt Kamat as to how
the election petition alleging corrupt practice must fail for not
filling the additional affidavit, Mr. Shadan Farasat, learned
counsel for the election petitioner submitted that no such
additional affidavit is filed. Mr. Farasat, however, strengthened his
case in the written submission by referring to the decisions of this
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Court in G.M. Siddeshwar v. Prasanna Kumar , and A. Manju v.
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(2013) 4 SCC 776
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Prajwal Revanna , where it was held that non-filing of a Form-25
affidavit is a curable defect.
Issue for consideration:
8. The only issue for consideration is whether the election
petition is liable to be dismissed by allowing the Order 7 Rule 11
application for non-compliance of Section 83(1)(c) of the Act.
Analysis:
9. We may at the outset state that there is absolutely no
consideration of this issue by the High Court. Neither the
implications of Section 83(1)(c) of the Act, nor the interpretation of
its proviso were taken up for consideration by the High Court.
Further, surprisingly, the High Court simply referred to the
decision of this Court in Lok Prahari (supra) and rejected the
submission. Lok Prahari (supra) has no bearing on the issue.
10. We would refer to the statutory provisions and the judgments
on the point for answering the question of law raised by the
Appellant. We will first refer to Sections 83 and 86 of the Act and
Order 6 Rule 15 of the CPC.
“ 83. Contents of petition — (1) An election
petition—
(a) shall contain a concise statement of the material
facts on which the petitioner relies;
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(2022) 3 SCC 269
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(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 (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.
86. Trial of election petitions — (1) The High
Court shall dismiss an election petition which does
not comply with the provisions of Section 81 or
Section 82 or Section 117.
Order 6 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 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. ”
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11. The first decision on this issue is by a Constitution Bench in
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T.M. Jacob v. C. Poulose . In the said case, the returned candidate
was defending an election petition filed against him on the ground
of non-compliance with the requirements under Section 81(3) of
the Act. This Court, after going through the difference in the
legislative intent of Sections 81 and 83 of the Act, observed that
non-compliance with the requirements of the former provides for
an automatic dismissal of an election petition under Section 86 of
the Act, and non-compliance with the latter is a curable defect and
would not merit dismissal at the threshold. In this light, this Court
observed that:
“ 38. … to our mind, the legislative intent appears
to be quite clear, since it divides violations into two
classes — those violations which would entail
dismissal of the election petition under Section
86(1) of the Act like non-compliance with Section
81(3) and those violations which attract Section
83(1) of the Act, i.e., non-compliance with the
provisions of Section 83. It is only the violation of
Section 81 of the Act which can attract the
application of the doctrine of substantial
compliance as expounded in Murarka Radhey
Shyam, (1964) 3 SCR 573 and Ch. Subbarao,
(1964) 6 SCR 213 cases. The defect of the type
provided in Section 83 of the Act, on the other hand,
can be dealt with under the doctrine of curability,
on the principles contained in the Code of Civil
”
Procedure.
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(1999) 4 SCC 274
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12. In Siddeshwar (supra), the matter came up before a three-
judge bench of this Court by way of a reference. When the matter
was placed before a two-judge bench, it was contended, relying
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upon P.A. Mohammed Riyas v. M.K. Raghavan , that an election
petitioner has to file the Form-25 affidavit in support of the corrupt
practice allegation, in addition to the usual verifying affidavit
which forms an integral part of the election petition. On the other
hand, the two-judge bench was also appraised of judgments to the
contrary which held that not filing of the affidavit is a curable
defect. In order to give quietus to the issue, the matter was referred
to a bench of three judges. After relying on various precedents, the
three Judge Bench in Siddeshwar observed as under:
“ 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 Representation of the People Act, 1951.
In our opinion, there is no such mandate in the
Representation of the People Act, 1951 and a
reading of P.A. Mohammed Riyas v. M.K.
Raghavan, (2012) 5 SCC 511, which suggests to
the contrary, does not lay down correct law to this
limited extent.
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(2012) 5 SCC 511
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2. Another question that has arisen is that if an
affidavit filed in support of the allegations of
corrupt practices of a returned candidate is not in
the statutory Form 25 prescribed by the Conduct of
Elections Rules, 1961, whether the election petition
is liable to be summarily dismissed. In our opinion,
as long as there is substantial compliance with the
statutory form, there is no reason to summarily
dismiss an election petition on this ground.
However, an opportunity must be given to the
election petitioner to cure the defect. Further,
merely because the affidavit may be defective, it
cannot be said that the petition filed is not an
election petition as understood by the
Representation of the People Act, 1951.
22. A plain reading of Rule 15 suggests that a
verification of the plaint is necessary. In addition to
the verification, the person verifying the plaint is
“also” required to file an affidavit in support of the
pleadings. Does this mean, as suggested by the
learned counsel for Siddeshwar that Prasanna
Kumar was obliged to file two affidavits—one in
support of the allegations of corrupt practices and
the other in support of the pleadings?
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 filed 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.
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
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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.
37. A perusal of the affidavit furnished by
Prasanna Kumar ex facie indicates that it was not
in absolute compliance with the format affidavit.
However, we endorse the view of the High Court
that on a perusal of the affidavit, undoubtedly
there was substantial compliance with the
prescribed format. It is correct that the verification
was also defective, but the defect is curable and
cannot be held fatal to the maintainability of the
election petition.
38. Recently, in Ponnala Lakshmaiah v. Kommuri
Pratap Reddy, (2012) 7 SCC 788 the issue of a
failure to file an affidavit in accordance with the
prescribed format came up for consideration. This
is what this Court had to say:
“28. … The format of the affidavit is at
any rate not a matter of substance. What
is important and at the heart of the
requirement is whether the election
petitioner has made averments which are
testified by him on oath, no matter in a
form other than the one that is stipulated
in the Rules. The absence of an affidavit
or an affidavit in a form other than the
one stipulated by the Rules does not by
itself cause any prejudice to the
successful candidate so long as the
deficiency is cured by the election
petitioner by filing a proper affidavit
when directed to do so.”
We have no reason to take a different view. The
contention urged by Siddeshwar is rejected. ”
(emphasis supplied)
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13. More recently, in A. Manju v. Prajwal Revanna (supra), this
Court dealt with the same question as to whether an election
petition containing an allegation of corrupt practice but not
supported by an affidavit in Form 25, is liable to be dismissed at
the threshold. This Court had observed:
“ 26. 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 v. Kommuri Pratap Reddy,
(2012) 7 SCC 788 which have received the
imprimatur of the three-Judge Bench in G.M.
Siddeshwar v. Prasanna Kumar, (2013) 4 SCC
776, appear not to have been appreciated in the
correct perspective. In fact, G.M. Siddeshwar v.
Prasanna Kumar, (2013) 4 SCC 776, 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 v. Kommuri Pratap Reddy,
(2012) 7 SCC 788 as well as G.M. Siddeshwar v.
Prasanna Kumar, (2013) 4 SCC 776, ought to have
resulted in a conclusion that the correct ratio in
view of these facts was to permit the appellant to
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cure this defect by filing an affidavit in the
prescribed form. ”
(emphasis supplied)
14. The position of law that emerges for the above referred cases
is clear. The requirement to file an affidavit under the proviso to
Section 83(1)(c) is not mandatory. It is sufficient if there is
substantial compliance. As the defect is curable, an opportunity
may be granted to file the necessary affidavit.
15. In the instant case, the election petition contained an
affidavit and also a verification. In this very affidavit, the election
petitioner has sworn on oath that the paragraphs where he has
raised allegations of corrupt practice are true to the best of his
knowledge. Though there is no separate and an independent
affidavit with respect to the allegations of corrupt practice, there is
substantial compliance of the requirements under Section 83(1)(c)
of the Act.
16. We are in agreement with the conclusion of the High Court
that there is substantial compliance of the requirements under
Section 83(1)(c) of the Act and this finding satisfies the test laid
down by this Court in Siddeshwar (supra). Even the subsequent
decision of this Court in (supra) supports the final
Revanna
conclusion arrived at by the High Court.
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17. For the reasons stated above, we are of the opinion that the
Appellant has not made out a case for interfering with the
judgment of the High Court. We, therefore, proceed to dismiss C.A.
Nos. 4179-4180 of 2023 arising out of the judgment and order of
the High Court dated 11.04.2023 in MC (El. Pet.) No. 67 of 2022
and MC (El. Pet.) No. 135 of 2022.
18. Parties shall bear their own costs.
……..……………………………….CJI.
[Dr Dhananjaya Y Chandrachud]
……………….………………………….J.
[Pamidighantam Sri Narasimha]
New Delhi;
August 23, 2023
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