AKBAR AHMAD Vs. SANTOSH KUMAR GANGWAR

JUDGEMENT

(1.) G. P. Mathur, J. Election for electing a Member of Parliament from 12-Bareilly Parliamentary Constituency in district Bareilly was held on 15-6-1991 and the result of the polling was declared on 18-6-1991 in which respondent No. 1 Santosh Kumar Gangwar was declared to have been duly elected. The Election Petitioner Akbar Ahmad then filed an election-petition in this Court on 2-8-1991 under Section 80 of the Representation of People Act (hereinafter referred to as the Act) impleading 24 respondents including Santosh Kumar Gangwar, as respondent No. 1. On 9-1-1992, an amendment application under Order VI, Rule 17, C. P. C. read with Section 84 of the Act was filed praying that the petitioner may be allowed to amend his election petition by adding prayer in following terms ; (a) Set aside the election of respondent No. 1 by declaring the election of respondent No. 1 as void from 12-Bareilly Parlia mentary Constituency ; (b) Order for inspection, scrutiny and recount all ballot papers of 12-Bareilly Parliamentary Constituency ; (c) Declare the petitioner as returned candidate from 12-Bareilly Parliamentary Constituency ; (d) Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case ; (e) Award costs.

(2.) A counter-affidavit to the amendment application was filed by Santosh Kumar Gangwar, respondent No. 1 on 2-4-1992. Thereafter a second amendment application was filed under Order VII, Rule 17, C. P. C. read with Section 84 of the Act on 19-10-1994 in which an exactly similar prayer was made, namely, that the petitioner may be allowed to amend hid election petition by adding prayer in the same terms in which it was sought in the first amendment application. The respondent No. 1 tiled a counter- affidavit on 23-11-1995 opposing the amendment application. No-rejoinder-affidavit has been filed by the petitioner in reply to the aforesaid counter-affidavit.

(3.) AS stated earlier, in this case two amendment applications con taining exactly similar prayer have been moved. The first amendment application does not bear any date but was filed in court on 9-1-1992 with the signature of the learned counsel for the election petitioner. The affidavit in support of this application was filed by one Ram Kesh son of Sri Manraj resident of 20 A. D. A. Flats AShok Nagar, Allahabad and he has described himself as pairokar of the petitioner. Para 21 of the affidavit was sworn on personal knowledge and para 3 on legal advice of the counsel. The respondent No. 1 Santosh Kumar Gangwar filed a counter-affidavit in reply to the aforesaid amendment application on 2-4-1992 after serving a copy of the same on the clerk of learned counsel for the election on 25-2-1992 In the counter- affidavit it was said that the application or the affidavit filed in support thereof had neither been sworn by the election petitioner Akbar Ahmad nor had been signed by him and thus it was liable to be rejected, being in violation of Section 83 (l) (c) of the Act. It was further asserted in para 6 that the plea taken that 'page 97' could not be stitched in the election petition was incorrect and at any rate the amendment application having been moved after expiry of the period of limitation of 45 days prescribed by Section 81 of the Act, the same was liable to be rejected. It was thereafter that the second amendment application was filed in court on 19-10-1994 which is a verbatim copy of the first amendment application. The affidavit in support of this application has been sworn by the election petitioner Akbar Ahmad on 17-4-1994 and he was identified by Ramkesh, clerk of Sri K. C. Sinha, advocate. The first amendment application was thus supported by an affidavit of the clerk of the counsel and it bears the signature of the counsel alone. The application does at all contain the signature of the election petitioner Sri Akbar Ahmad, nor has been verified by him. Section 83 (l) (c) lays down that an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. Section 81 (3) provides that 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. Section 86 (1) lays down that the High Court shall dismiss an election petition which does not comply with the provision of Section 81 or Section 82 or Section 117. Since the amendment sought was on a very vital part, namely, the Prayer clause of the petition, the application ought to have been filed either by the election petitioner himself with his signature or at least the affidavit in support thereof should have been filed by him. Had this course been adopted there would have been compliance of Section 83 (1 ) (c) for the Prayer clause as well. The affidavit filed by the clerk of the counsel cannot be accepted for the purpose of amending the election peti tion on an important point which has a strong bearing on the case. I am, therefore, of the opinion that the first amendment application filed on 9-1-1992 having not been signed and verified by the petitioner himself, can not be accepted. It is accordingly rejected.