RAMKUMAR MISHRA Vs. KESHARIMAL

JUDGEMENT

(1.) THE respondent has filed an application (I. A. No. 32 of 1973) that so far as the corrupt practice alleged in paragraph 5 of the petition, is concerned, there is no affidavit to this effect and, therefore, the petition be dismissed under Section 87 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act' ).

(2.) THE petitioner, in reply, has stated that the affidavit has already been filed with the petition but so far as paragraph 5 of the petition is concerned, the defect in the affidavit crept in due to a typing mistake and it was not detected before filing the petition.

(3.) I heard both the learned counsel for the parties. Shri Bajpai, learned counsel for the respondent, has invited my attention to paragraphs 11 and 15 of the judgment of the Division Bench of this Court, reported in Dwarkaprasad v. Kamalnarain, 1964 MPLJ 682 at pp. 691, 696 and 697 = (AIR 1964 Madh Pra 273 at pp. 279, 283 ). He also stressed that the decision of the Supreme Court in Kamal Narain v. Dwarkaprasad, AIR 1966 SC 436 is an authority for the proposition that the affidavit sworn before the Clerk of Court in the District Court was good and the question whether Section 83 of the Act is mandatory or directory was not decided. He also cited in support of his contention a ruling reported in Hardwari Lal v. Kanwal Singh, AIR 1972 SC 515. He has further urged that in spite of the fact that in paragraph 16 of his written statement, an objection was taken that the affidavit is not according to the prescribed form, even then the petitioner did not take care to file a proper affidavit in this regard. Shri Baghel, learned counsel on behalf of the petitioner, on the other hand, has urged before me that the petition cannot be dismissed because of the fact that the affidavit is already there and in order to cure the defect found therein, the petitioner has filed another affidavit and the provisions of Section 83 of the Act are not mandatory.