A MOHAMMED Vs. NALAKATH SOOPY

JUDGEMENT

(1.) This Election Petition is filed by the defeated candidate in the election held on 27.4.1996 to the Kerala Legislative Assembly from 42 Perinthalmanna Constituency. The challenge to the election of the respondent from that constituency is on a charge of corrupt practice indulged in by the respondent. The Election Petition is therefore accompanied by an affidavit as enjoined by S.83 of the Representation of the People Act. The respondent was declared elected on 9.5.1996 and the Election Petition was filed on 22.6.1996. Summons was directed to be issued by the assigned Judge on 26.6.1996 returnable by 23.7.1996. On 23.7.1996, the respondent appeared and sought some more time to file his written objection. The Election Petition was adjourned to 5.8.1996 on which day, written objections were filed and the Election Petition was adjourned for replication if any by the petitioner. The respondent had raised a preliminary objection to the maintainability of the Election Petition based on the copies of the Election Petition served on him. Since it was felt appropriate to hear that question initially, the Election Petition was adjourned for a hearing on that question. Arguments on the question of maintainability were heard on 12.8.1996 and 13.8.1996.

(2.) As emerging from the pleadings and the submissions made at the bar and on the suggestions of counsel appearing in the case, the following three issues were framed as preliminary issues.

(3.) Issue 1 and 2: The relief claimed in the Election Petition is on the allegation of corrupt practice indulged in by the respondent. There is therefore, no dispute that the Election Petition should be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice. R.94A of the Rules prescribes that the affidavit referred to in the proviso to sub-s. (1) of S.83 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form No. 25. Form 25, after setting out the form of the affidavit also provides that the affidavit should have been solemnly affirmed or sworn before a Magistrate of the First Class, a Notary or a Commissioner of Oaths. The affidavit filed in this case was not affirmed by the petitioner either before a Magistrate of the First Class or a Notary or a Commissioner of Oaths as insisted upon by R.94A of the Rules. It is affirmed before an Advocate practising in this Court. Actually, it is affirmed before counsel who appears for the petitioner and it is attested by him. The contention raised on behalf of the respondent is that this affidavit not having been affirmed before a Magistrate of the First Class or a Notary or a Commissioner of Oaths were insufficient to satisfy the mandatory requirements of the proviso to S.83(1) of the Act and R.94A of the Rules. It is submitted on behalf of the respondent that an Advocate is not any of the officers or authorities referred to in R.94A of the Rules and hence it is defective. It is further contended that since the affidavit is an integral part of the Election Petition, the defect in the affidavit is fatal to the maintainability of the Election Petition.