MARKIO TADO Vs. TAKAM SORANG

JUDGEMENT

(1.) THIS miscellaneous application has been filed under Order VII Rule 11 (a) and Order VI Rule 16 of the Code of Civil Procedure, 1908 questioning the maintainability of additional affidavit dated 27.01.2011 filed by the respondent/election petitioner as per prescribed Form 25 of the Conduct of Election Rules, 1961 for bringing the same as a part of Election Petition No. 01(AP)/2009 without leave of the Court in violation of time limit prescribed under Section 81 of the Representation of People Act, 1951 and dismissal of the said Election Petition.

(2.) I have heard Mr. M. Pertin, learned counsel, appearing for the applicant Respon-dent No. l/returned candidate and also Mr. B. L. Singh, learned counsel for the respon-dent/Election petitioner.

(3.) IN regard to additional affidavit, Mr. Pertin, learned counsel for the applicant, submits that by filing the said additional affidavit the respondent/Election petitioner has admitted that the election petition is lacking affidavit in Form 25 prescribed under Rule 94-A of the Conduct of Election Rules, 1961 hereinafter referred to as Election Rules only. This lack of affidavit in prescribed Form is fatal to the election petition and such election petition is liable to be dismissed at the threshold. He submits that lack of affidavit in prescribed Form is an incurable defect and it cannot be cured or allowed to be cured by the Election petitioner by way of filing an additional affidavit. Further he submits that by filing the additional affidavit the respondent/Election petitioner is trying to fill up the serious lacuna as he could understand by this time that his election petition is liable to be dismissed at the initial stage. IN support of his above arguments, Mr. Pertin refers to the foltowing decisions -