RAMKRISHNA JAGANNATH PATIL Vs. CHANDRAKANT BHAURAO KHAIRE

JUDGEMENT

(1.) By this petition under section 80 of the Representation of the People Act, 1951 (henceforth referred to as the R. P. Act) , petitioner challenges the election of the respondent as a Member of the Parliament (Lok sabha) from Aurangabad Parliamentary Constituency. The brief details of the election are as follows :

(2.) After considering the petition and written statement, issues are framed on 22-12-2004 at Exhibit 12 and by application (Exh. 14) filed on 14-1-2005. Advocate of respondent has prayed for treating Issue Nos. 5 and 9 as preliminary issues. The issues read as follows : issues :- Findings 5. Is petition barred by limitation (Section 81 (1) of the Act) yes, in view of finding on Issue No. 8.6. Is petition bad for non-compliance of section 83 (l) (a) and (b) If yes, what effect as in para 14 (a) Omission to contain concise statements of the material facts on which the petition relies (b) Omission to set forth full particulars of corrupt practice alleged 7. Is petition bad for non-compliance of section 81 (3) of the Act If yes, what effect not proved. 8. Is petition bad for non-compliance of proviso to sub-section (1) of section 83 of the Act If yes, what effect yes. It is not a petition in the eye of law. 9. Is petition bad for non-compliance of section 83 (l) (c) (defective verification) If ves. what effect

(3.) By application (Exh, 11) petitioner has prayed to accept on record the affidavit filed by petitioner alongwith the said application (Exh. 11). It is contended that petitioner was under bona fide impression that verification of the petition by solemn affirmation before the Registrar was sufficient for the purpose of filing of election petition. However, petitioner subsequently realised that there is also requirement of filing of affidavit as per Rule 94 (A) of the conduct of Election Rules, 1961, in Form No. 25. Accordingly, petitioner has desired to file the affidavit. It is also contended that defect in filing the affidavit is not fatal in view of decision of the Supreme Court in the matter of (Sardar Harcharan Singh Brarv. Sukh Dharshan Singh) , 2004 (7) Supreme 721 : 2005 (5) All. M. R. (S. C. ) 123. The defect regarding the affidavit is a curable defect, because petitioner, although had not filed affidavit precisely in Form no. 25, the petition was duly verified on oath. This application is opposed by respondent vide Exhibit 13 contending that election petition itself can be dismissed in the light of provisions of the Code of Civil Procedure if the mandatory requirement of section 83 of the Act, 1951, is not complied with. By this say, respondent has not only opposed the application to file an affidavit, but also repeated other contentions, such as true copy of the election petition has not been supplied/served on respondent as required in section 81 (3) , petitioner has not filed concise statements of material facts and the petition is not verified as per mandatory provision of section 83. The defective petition is no petition in the eyes of law, there is violation of section 81 (3) and there is no affidavit supporting the petition in the prescribed form. It is contended that it would be improper to allow petitioner to file affidavit at a later stage. Absence of affidavit, according to respondent, is not a curable defect. Contentions raised in application (Exh. 14) praying for decision on Issue nos. 5 to 9 by treating those as preliminary issues are practically the same as raised in the written statement as also reply to application (Exh. 11) filed by respondent at Exhibit 13. Although by reply filed at Exhibit 15, petitioner prayed for rejection of application (Exh. 14) , ultimately by mutual consent, the Advocates have argued out the matter for decision on Issue Nos. 5 to 9 preliminary issues reproduced hereinabove. Consequently, it is desirable to consider applications (Exh. 11 and 14) as also Issue Nos. 5 to 9 simultaneously.