G MALLIKARJINAPPA Vs. SHAMANUR SHIVASHANKARAPPA

JUDGEMENT

(1.) -Election from 6th Davangere Constituency to the 12th Lok Sabha was held on 22nd of February, 1998. The result of election was declared on 2nd March, 1998. First appellant besides respondents 1 to 7 were candidates at the election. The second appellant is the son of the first appellant. He is an elector of the Constitutency, who had also acted as the election agent of the first appellant. The first respondent was declared elected by a margin of 11,332 votes. The election of first respondent was challenged by filing an election petition by both the appellants on various grounds of commission of corrupt practices. According to the appellants, it was to meet a procedural objection raised by the Registry of the High Court that two sets of Court fee were paid and the original joint election petition was bifurcated into two separate election petitions being Election Petitions Nos. 4 and 5 of 1998. Besides setting aside of the election of the first respondent, the appellants also sought a declaration to the effect that the first appellant be declared elected. After respondents were served, the first respondent filed an application (I.A.I.) under Order 7, Rule 11 read with Section 151, C.P.C. praying for dismissal of Election Petition in limine under Section 86 of the Representation of the People Act firstly on the ground that the affidavit filed in support of the Election Petition, was not in the proper format and there was, thus, violation of Section 83(2) of the Representation of the People Act. It was also alleged that verification of the affidavit and the Election Petition did not tally and the election petitions were liable to be dismissed in limine. The other objection raised was the alleged incapacity of appellant No. 2 to maintain an Election Petition on the ground that the name of appellant No. 2 as given in the Election Petition did not tally with the name of appellant, as contained in the form for appointment of election agent and because of "difference of identity" the Election Petition could not proceed to trial and was liable to be rejected at the threshold. Some other objections were also raised but those touch upon the merits of the case and we are not concerned with those at this stage.

(2.) The appellants resisted the application and asserted that Election Petition could not be dismissed in limine under Section 86(1) of the Representation of the People Act on the alleged grounds mentioned in I.A.1.

(3.) A learned single Judge of the High Court of Karnataka vide order of 3rd November, 1998 allowed the application (I.A.1) and dismissed both the Election Petitions (Election Petitions Nos. 4 and 5 of 1998) in limine. It was held that there had been non-compliance with Rule 94-A of the Rules inasmuch as the affidavit filed in support of the allegations of corrupt practices with the Election Petitions did not comply with the requirements of the format as prescribed in Form No. 25. As regards the other objection to the maintainability of the Election Petitions, namely, that appellant No. 2 was shown as "G. M. Siddheswarappa" in the election petition whereas in the election agent form, the election agent of appellant No. 1 namely, appellant No. 2 had signed his name as "Siddeshwar" and not as "G.M. Siddesh-warappa." The learned single Judge found that there was "difference of identity" of the petitioner in the Election Petition and the election agent form, rendering the election petitions as not maintainable. Order of the learned single Judge dismissing both the election petitions has been put in issue before us in these appeals.