Thangjam Arunkumar vs Yumkham Erabot Singh

2023INSC762 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 4179-4180 OF 2023 ARISING OUT OF SLP (C) Nos. 11828-11829 of 2023

THANGJAM ARUNKUMAR … APPELLANT(S)

VERSUS

YUMKHAM ERABOT SINGH & ORS. …RESPONDENT(S)

JUDGMENT

Pamidighantam Sri Narasimha, J.

1. This appeal arises out of the decision of the High Court of

Manipur1 dated 11.04.2023, whereby the returned candidate’s

application under Order 7 Rule 11 of the Code of Civil Procedure,

19082, to dismiss the election petition filed by the unsuccessful

candidate on the ground that it lacks material particulars and is

in violation of mandatory requirements of law was rejected by the

High Court. The returned candidate is the Appellant before us.

Signature Not Verified Digitally signed by Deepak Singh Date: 2023.08.24 15:09:44 IST Reason: 1 Hereinafter “the High Court”.

2 Hereinafter, “the CPC”.

1 Facts:

2. The short and precise facts necessary for our consideration

are as follows. The Appellant is the returned candidate to the XII

Manipur Legislative Assembly, having been elected from the 15-

Wangkhei Assembly Constituency. The Respondent No.1, the

unsuccessful candidate moved Election Petition No. 24 of 20223

alleging violations under Sections 80, 80A, 81, 84 read with

Sections 100(1)(d)(iv) and 101 of the Representation of People Act,

19514. The election petitioner prayed that the election of the

Appellant be held void and also to declare him to be the elected

candidate. It is important to note that the election petition alleges

corrupt practice, in as much as the petitioner pleaded that the

returned candidate has not provided the material particulars with

respect to a financial transaction relating to financing a loan.

3. In response to the election petition, the Appellant moved two

applications under Order 7 Rule 11 read with Section 151 of the

CPC and under Section 86 of the Act seeking dismissal of the

election petition on the grounds of – (i) non-disclosure of cause of

action/triable issue vis-à-vis the alleged corrupt practice

committed by the Appellant; (ii) the absence of a concise statement

3 Hereinafter, “the Election Petition”.

4 Hereinafter, “the Act”.

2 of facts as mandated under Section 83 of the Act; and (iii) for not

serving a true self attested copy of the election petition on the

returned candidate as provided under Section 81 of the Act. Apart

from the above, and more importantly, the Appellant also sought

dismissal of the election petition on the ground that the Form-25

affidavit as prescribed under Section 83 of the Act r/w Rule 94A of

the Conduct of Election Rules, 19615 has not been filed along-with

the election petition. It was alleged that such an affidavit is

mandatory, as the election petition raises allegations of corrupt

practice.

4. The High Court, by the order impugned, dismissed the

applications under Order 7 Rule 11 of the CPC. The High Court

observed that – (i) the election petitioner had elaborately pleaded

all the material facts and set forth full particulars of all the actions

and omissions of the Appellant, sufficient to constitute a case of

corrupt practice. The High Court, therefore, concluded that there

is a cause of action and triable issues; (ii) the High Court also

concluded that the alleged non-compliance of Section 81(3) of the

Act is incorrect as the election petitioner had effectively attested

the election petition. For this purpose, High Court relied on the

5 Hereinafter, the “Rules”.

3 decisions of this Court in Ch. Subbarao v. Member, Election

Tribunal, Hyderabad & Ors.6, and also a decision of the same Court

in Pukhrem Sharatchandra Singh v. Mairembam Prithviraj @

Prithibiraj Singh7, later came to be upheld by this Court in

Mairembam Prithviraj @ Prithviraj Singh v. Pukhrem Sharatchandra

Singh8. The High Court observed that although the election

petitioner attested the election petition as “true copy of the

original” and not as “true copy of the petition”, the same is in

compliance with Section 81(3) of the Act.

5. The submission that in all cases involving allegations of

corrupt practices, the election petitioner must mandatorily file an

affidavit under Section 83(1) of the Act was rejected without much

discussion. The High Court simply following the decision of this

Court in Lok Prahari through its General Secretary v. Union of India

& Ors.9, rejected the plea.

Submissions:

6. Mr. Devadatt Kamat, learned senior counsel appearing for the

Appellant initially argued the first two grounds, namely that there

is a non-disclosure of the cause of action and also that there is a

6 AIR 1964 SC 1027 7 2016 SCC OnLine Mani 30 8 (2017) 2 SCC 487 9 (2018) 4 SCC 699

4 complete non-compliance of the requirement under Section 81(3)

of the Act with respect to the attestation of the election petition.

However, as we expressed our disinclination to interfere on those

grounds, he took up the alternative point and emphatically argued

that the judgment of the High Court is unsustainable as the

election petition completely violated the ‘mandatory’ requirement

of 83(1)(c) of the Act. He argued that the election petition must fail

for not filing the additional affidavit in support of the allegation of

corrupt practice. He elaborated this point by taking us through the

Section, and in particular, the proviso which requires that in cases

of corrupt practice, “the petition shall also be accompanied by an

affidavit”.

7. On the specific submission of Mr. Devadatt Kamat as to how

the election petition alleging corrupt practice must fail for not

filling the additional affidavit, Mr. Shadan Farasat, learned

counsel for the election petitioner submitted that no such

additional affidavit is filed. Mr. Farasat, however, strengthened his

case in the written submission by referring to the decisions of this

Court in G.M. Siddeshwar v. Prasanna Kumar10, and A. Manju v.

10

(2013) 4 SCC 776

5 Prajwal Revanna11, where it was held that non-filing of a Form-25

affidavit is a curable defect.

Issue for consideration:

8. The only issue for consideration is whether the election

petition is liable to be dismissed by allowing the Order 7 Rule 11

application for non-compliance of Section 83(1)(c) of the Act.

Analysis:

9. We may at the outset state that there is absolutely no

consideration of this issue by the High Court. Neither the

implications of Section 83(1)(c) of the Act, nor the interpretation of

its proviso were taken up for consideration by the High Court.

Further, surprisingly, the High Court simply referred to the

decision of this Court in Lok Prahari (supra) and rejected the

submission. Lok Prahari (supra) has no bearing on the issue.

10. We would refer to the statutory provisions and the judgments

on the point for answering the question of law raised by the

Appellant. We will first refer to Sections 83 and 86 of the Act and

Order 6 Rule 15 of the CPC.

“83. Contents of petition — (1) An election petition—

(a) shall contain a concise statement of the material facts on which the petitioner relies;

11 (2022) 3 SCC 269

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(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

86. Trial of election petitions — (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

Order 6 Rule 15: Verification of pleadings — (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.”

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11. The first decision on this issue is by a Constitution Bench in

T.M. Jacob v. C. Poulose12. In the said case, the returned candidate

was defending an election petition filed against him on the ground

of non-compliance with the requirements under Section 81(3) of

the Act. This Court, after going through the difference in the

legislative intent of Sections 81 and 83 of the Act, observed that

non-compliance with the requirements of the former provides for

an automatic dismissal of an election petition under Section 86 of

the Act, and non-compliance with the latter is a curable defect and

would not merit dismissal at the threshold. In this light, this Court

observed that:

“38. … to our mind, the legislative intent appears to be quite clear, since it divides violations into two classes — those violations which would entail dismissal of the election petition under Section 86(1) of the Act like non-compliance with Section 81(3) and those violations which attract Section 83(1) of the Act, i.e., non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam, (1964) 3 SCR 573 and Ch. Subbarao, (1964) 6 SCR 213 cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure.”

12 (1999) 4 SCC 274

8

12. In Siddeshwar (supra), the matter came up before a three-

judge bench of this Court by way of a reference. When the matter

was placed before a two-judge bench, it was contended, relying

upon P.A. Mohammed Riyas v. M.K. Raghavan13, that an election

petitioner has to file the Form-25 affidavit in support of the corrupt

practice allegation, in addition to the usual verifying affidavit

which forms an integral part of the election petition. On the other

hand, the two-judge bench was also appraised of judgments to the

contrary which held that not filing of the affidavit is a curable

defect. In order to give quietus to the issue, the matter was referred

to a bench of three judges. After relying on various precedents, the

three Judge Bench in Siddeshwar observed as under:

“1. The principal question of law raised for our consideration is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order 6 Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Representation of the People Act, 1951. In our opinion, there is no such mandate in the Representation of the People Act, 1951 and a reading of P.A. Mohammed Riyas v. M.K. Raghavan, (2012) 5 SCC 511, which suggests to the contrary, does not lay down correct law to this limited extent.

13 (2012) 5 SCC 511

9

2. Another question that has arisen is that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory Form 25 prescribed by the Conduct of Elections Rules, 1961, whether the election petition is liable to be summarily dismissed. In our opinion, as long as there is substantial compliance with the statutory form, there is no reason to summarily dismiss an election petition on this ground.

However, an opportunity must be given to the election petitioner to cure the defect. Further, merely because the affidavit may be defective, it cannot be said that the petition filed is not an election petition as understood by the Representation of the People Act, 1951.

22. A plain reading of Rule 15 suggests that a verification of the plaint is necessary. In addition to the verification, the person verifying the plaint is “also” required to file an affidavit in support of the pleadings. Does this mean, as suggested by the learned counsel for Siddeshwar that Prasanna Kumar was obliged to file two affidavits—one in support of the allegations of corrupt practices and the other in support of the pleadings?

23. A reading of Section 83(1)(c) of the Act makes it clear that what is required of an election petitioner is only that the verification should be carried out in the manner prescribed in CPC. That Order 6 Rule 15 requires an affidavit “also” to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed. The affidavit, in this context, is a stand-alone document.

25. It seems to us that a plain and simple reading of Section 83(1)(c) of the Act clearly indicates that the requirement of an additional affidavit is not to be found therein. While the requirement of “also” filing an affidavit in support of the pleadings filed under CPC may be mandatory in terms of Order 6 Rule 15(4) CPC, the affidavit is not a part of the

10 verification of the pleadings—both are quite different. While the Act does require a verification of the pleadings, the plain language of Section 83(1)(c) of the Act does not require an affidavit in support of the pleadings in an election petition. We are being asked to read a requirement that does not exist in Section 83(1)(c) of the Act.

37. A perusal of the affidavit furnished by Prasanna Kumar ex facie indicates that it was not in absolute compliance with the format affidavit. However, we endorse the view of the High Court that on a perusal of the affidavit, undoubtedly there was substantial compliance with the prescribed format. It is correct that the verification was also defective, but the defect is curable and cannot be held fatal to the maintainability of the election petition.

38. Recently, in Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788 the issue of a failure to file an affidavit in accordance with the prescribed format came up for consideration. This is what this Court had to say:

“28. … The format of the affidavit is at any rate not a matter of substance. What is important and at the heart of the requirement is whether the election petitioner has made averments which are testified by him on oath, no matter in a form other than the one that is stipulated in the Rules. The absence of an affidavit or an affidavit in a form other than the one stipulated by the Rules does not by itself cause any prejudice to the successful candidate so long as the deficiency is cured by the election petitioner by filing a proper affidavit when directed to do so.” We have no reason to take a different view. The contention urged by Siddeshwar is rejected.” (emphasis supplied)

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13. More recently, in A. Manju v. Prajwal Revanna (supra), this

Court dealt with the same question as to whether an election

petition containing an allegation of corrupt practice but not

supported by an affidavit in Form 25, is liable to be dismissed at

the threshold. This Court had observed:

“26. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788 which have received the imprimatur of the three-Judge Bench in G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, appear not to have been appreciated in the correct perspective. In fact, G.M. Siddeshwar v.

Prasanna Kumar, (2013) 4 SCC 776, has been cited by the learned Judge to dismiss the petition. If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court referred to by the learned Judge i.e. Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788 as well as G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to

12 cure this defect by filing an affidavit in the prescribed form.” (emphasis supplied)

14. The position of law that emerges for the above referred cases

is clear. The requirement to file an affidavit under the proviso to

Section 83(1)(c) is not mandatory. It is sufficient if there is

substantial compliance. As the defect is curable, an opportunity

may be granted to file the necessary affidavit.

15. In the instant case, the election petition contained on affidavit

and also a verification. In this very affidavit, the election petitioner

has sworn on oath that the paragraphs where he has raised

allegations of corrupt practice are true to the best of his knowledge.

Though there is no separate and an independent affidavit with

respect to the allegations of corrupt practice, there is substantial

compliance of the requirements under Section 83(1)(c) of the Act.

16. We are in agreement with the conclusion of the High Court

that there is substantial compliance of the requirements under

Section 83(1)(c) of the Act and this finding satisfies the test laid

down by this Court in Siddeshwar (supra). Even the subsequent

decision of this Court in Revanna (supra) supports the final

conclusion arrived at by the High Court.

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17. For the reasons stated above, we are of the opinion that the

Appellant has not made out a case for interfering with the

judgment of the High Court. We, therefore, proceed to dismiss C.A.

Nos. 4179-4180 of 2023 arising out of the judgment and order of

the High Court dated 11.04.2023 in MC (El. Pet.) No. 67 of 2022

and MC (El. Pet.) No. 135 of 2022.

18. Parties shall bear their own costs.

……..……………………………….CJI.

[Dr Dhananjaya Y Chandrachud]

……………….………………………….J. [Pamidighantam Sri Narasimha]

New Delhi;

August 23, 2023

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