MAKHU LAL Vs. BACHCHA PATHAK

JUDGEMENT

(1.) This is an application under O. 6, R. 16, O.7, R. 11 and S. 151 of the Code of Civil Procedure (C.P.C.) and under S. 86(1) of the Representation of People Act, 1951 (briefly, the Act 1951) to dismiss the election petition of the petitioner and to strike out numerous paragraphs in the petition under O.6, R. 16, C.P.C. read with O.7, R. 11 and S. 151, C.P.C. Though the application contains several averments but urges Sri A. Kumar counsel for the respondent, the election petition be dismissed on the ground that it has not been signed and verified by the petitioner in the manner laid down under the C.P.C. and in accordance with the provisions of Act, 1951. These averments have been made in paragraphs Nos. 10 and 11 of the affidavit accompanying the application. Precisely the submission of Sri Kumar is that schedules 1 to 6 have been attached to the election petition, but none of them has been verified. To elaborate his argument, Sri Kumar urges that sub-sec. (2) of S. 83 of the Act, 1951 enjoins upon that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition, S. 86(3) mandates that High Court shall dismiss an election petition which does not comply with the provisions of S.81 or S. 82 or S. 117. S.83(2) does not find berth in S. 86(1). Therefore, for non- compliance of sub-sec. (2) of S. 83, election petition cannot be dismissed under sub-sec. (1) of S. 86. To overcome this difficulty, Sri Kumar, further says that S. 81(3) requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The Schedules 1 to 6 to the election petition, according to the petitioner, contain material facts and, therefore, says Sri Kumar, that the schedules 1 to 6 are integral part of the petition and they having not been verified in the same manner in which the petition has to be verified, copy of the election petition served upon the respondent is not true and correct copy of the election petition within the meaning of S. 81(3) and that being so, Sri Kumar further urges that the election petition deserves to be dismissed under S. 86(1) for non-compliance of S. 81(3).

(2.) It is this argument which has to be cpnsidered in this election petition filed by the petitioner who claims himself to be an elector. The petitioner has called in question the election of the respondent, a returned candidate on the grounds ABC and D as contained in para 7 of the petition. Grounds A and B relate to improper reception and improper rejection of a large number of votes. Ground C relates to non-compliance of provisions of the Constitution, of the Act 1951 and the Rules and Orders made under the Act, 1951. In ground 'D' it is said that the result of the election has been materially affected by not ordering the recounting in the circumstances of the case. The facts relating to these grounds have been stated in the next following paragraphs.

(3.) The short question for consideration in this application is whether the election petition deserves to be dismissed under S.86(1) for the reason that schedules 1 to 6 appended to the petition have not been verified as required by S. 83(1). It is undisputed that all these schedules have not been verified, but says Sri Pandey counsel for the petitioner, the omission of verification of the schedules appended to the petition, is not fatal, such defect is curable and the petitioner should be directed to varify the schedules and remove the defect in verification. S. 87(1) states that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court as nearly may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. The election petitions are, therefore, to be tried as far as possible applying the procedure as contained in the C.P.C. The question for considerations is whether the omission of verification of the plaint under C.P.C. entails a fatal defect. The settled law, insofar as the C.P.C. is concerned, is that the defect in verification is not fatal and that omission of verification or wrong verification is merely an irregularity and not an illegality. In Prabhu Narayan v. A. K. Srivastava, AIR 1975 SC968 it was held that the petition can only be dismissed for a substantial defect. In K. K. Nambiar v. Union of India, AIR 1970 SC 652 : (1970 Lab IC 566), the Supreme Court said that importance of verification is to test the genuinesses and authenticity of the allegations and also to make the deponent responsible for allegations.