NABA KUMAR DOLEY Vs. BHARAT CHANDRA NARAH

JUDGEMENT

(1.) The respondent, in Election petition No. 2/2011, who is the returned candidate, has filed these applications under Order VII, Rule 11 and Order VI, Rule 16 of the Code of Civil Procedure (in short the 'CPC') read with Sections 81, 83, 86 and 87 of the Representation of Peoples Act, 1951 (in short the '1951 Act'), for rejection of the election petition for want of cause of action for not disclosing the material facts, lack of proper verification as required under Order VI, Rule 15 of the Code of Civil Procedure, for not filing the affidavit as required under proviso to subsection (1) of Section 83 of the 1951 Act and non-furnishing of documents, which form integral part of the election petition as well as for striking out the pleadings in the election petition. Both these applications are taken up together for hearing and disposal as agreed to by the learned counsel for the parties. The opposite party/opposite party (hereinafter referred to as the opposite party) filed the election petition No. 2/2011 under Sections 80 and 81 of the 1951 Act calling in question the election of the present petitioner to the Legislative Assembly of Assam from No. 112 Dhakuakhana (ST) assembly constituency, basically on the ground of corrupt practices within the meaning of Section 123 of the said Act, namely bribery and booth capturing. The petitioner, who is the respondent in the said election petition, on receipt of the summons entered appearance and filed the application (Misc. Case No. 2951/2011) raising the question of maintainability of the election petition on the ground of violation of subsection (1) of Section 81 of the Act contending that the election petition was not presented to the officer authorized by Rule 1 of Chapter VIII-A of the Gauhati High Courts Rules within the period of limitation prescribed by sub-section (1) of Section 81 of the aforesaid Act. The said application was rejected vide order dated 28.11.2011. The petitioner/returned candidate (hereinafter referred to as the petitioner) also filed these applications claiming the relief as noticed above.

(2.) I have heard Mr. K. Agarwal, learned counsel for the petitioner and Mr. S.S. Dey, learned counsel appearing for the opposite party.

(3.) Mr. Agarwal referring to the provisions in Order VI, Rule 15 of the CPC submits that though sub-rule (4), which has been inserted by the CPC Amendment Act 46 of 1999 and came into effect from 1.7.2000, requires filing of a separate affidavit in support of the pleadings in the election petition, apart from the verification by the opposite party under sub-rule (3), the election petition is neither properly verified nor a separate affidavit has been filed by the opposite party, entailing rejection of the election petition on the ground of improper verification of the pleadings, that is, for non-compliance of the provision of Order VI, Rule 15 of the CPC. Referring to the verification-cum- affidavit filed by the opposite party it has been submitted by Mr. Agarwal, learned counsel for the petitioner that as the law requires verification of the pleadings and furnishing the affidavit separately, composite verification and affidavit would not amount to compliance of the requirements of sub-rules (3) and (4) of Rule 15 of Order VI, CPC. Mr. Agarwal further submits that even though the defect in the verification can be cured at a subsequent stage and the election petition may not entail dismissal for want of proper verification, such defect in respect of nonfiling of an affidavit as required by sub-rule (4) cannot be cured, the same being the mandatory requirement.