# G.M. SIDDESHWAR v. PRASANNA KUMAR

- **Citation:** [2013] 4 S.C.R. 1107
- **Court:** Supreme Court of India
- **Decided:** 2013-03-08
- **Case number:** Civil Appeal Nos. 2250-2251 of 2013
- **Bench:** R.M. Lodha, J. Chelameswar, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-m-siddeshwar-v-prasanna-kumar-28961
- **Pages:** 32

## Headnote

Election Laws:
Election petition - Alleging resort to corrupt practice by
the returned candidate - Whether imperative to file additional
affidavit as required under Or. VI r.15(4) CPC, in addition to
A
B
c
the affidavit as required by proviso to s. 83(1) of the
Representation of the People Act - Held: The Act does not 0
mandate filing of an additional affidavit, but requires only
verification - Hence additional affidavit u!Or. VI r.15(4) is not
required - A composite affidavit, both in support of the
averments made in the petition and with regard to allegation
of corrupt practices would be sufficient - Representation of the
E
People Act, 1951 - s.83(1) - Conduct of Election Rules, 1961
- Code of Civil Procedure, 1908 - Or. VI r.15(4).
Election Petition - Maintainability - Petition whether liable
to summary dismissal if affidavit is not in statutory form - Held:
If there is substantial compliance with the statutory form,
F
petition cannot be dismissed summarily - Just because of the
defective affidavit, the petition, will not cease to be election
petition - The defects are curable - Representation of the
People Act, 1951 - s. 83 - Conduct of Election Rules, 1961 -
r.94-A, Form No.25.
G
The questions for consideration in the present
appeals were whether in order to maintain an election
petition (wherein resort to corrupt practices were alleged
1107
H
1108
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A against the returned candidate), was it imperative for the
election petitioner to file an affidavit in terms of Or. VI
r.15(4) CPC, in support of the averments made in the
election petition, in addition to an affidavit as required by
the proviso to s.83(1) of Representation of the People Act,
B 1951; and that whether an election petition is liable to be
dismissed summarily, if an affidavit filed in support of the
allegations of corrupt practices of returned candidate
was not in the Statutory Form No.25 as prescribed by the
Conduct of Election Rules, 1961.
c
Dismissing the appeals, the Court
HELD: 1.1. A plain and simple reading of Section
83(1)(c) of the Representation of the People Act, 1951
clearly indicates that the requirement of an 'additional'
D affidavit is not to be found therein. While the requirement
of "also" filing an affidavit in support of pleadings filed
under the CPC may be mandatory in terms of Order VI
Rule 15(4) of the CPC, the affidavit is not a part of the
verification of the pleadings - both are quite different.
E 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. The Court is being asked to read a
requirement that does not exist in Section 83(1)(c) of the
F Act. [Para 30] [1122-D-F]
P.A. Mohammed Riyas vs. M.K. Raghavan and Ors.
(2012) 5 SCC511: 2012 (4) SCR 56 - disapproved.
Dhananjay Sharma vs. State of Haryana (1995) 3 SCC
G 757: 1995 (3) SCR 964; Mohan Singh vs. Amar Singh,
(1998) 6 SCC 686: 1998 (1) Suppl. SCR 252 - referred to.
163'" Report of the Law Commission of India (LC/) on the
Code of Civil Procedure (Amendment) Bill, 1997 - referred
H to.
G.M. SIDDESHWAR v. PRASANNA KUMAR
1109
1.2. The procedure of filing a composite affidavit, both
A
in support of the averments made in the election petition
and with regard to the allegations of corrupt practices by
the returned candidate, is not contrary to law and cannot
be faulted. Such a composite affidavit would not only be
in substantial compliance with the requirements of the
B
Act but would actually be in full compliance thereof. The
filing of two affidavits is not warranted by the Act nor is
it necessary, especially when a composite affidavit can
achieve the desired result. [Para 34) [1124-D-E]
1.3. The Court must make a fine balance between the
C
purity of the election process and the avoidance of an
election petition being a source of annoyance to the
returned candidate and his constituents. Hence the
salutary intenti

## Text

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[2013] 4 S.C.R. 1107
G.M. SIDDESHWAR
v.
PRASANNA KUMAR
(Civil Appeal Nos. 2250-2251 of 2013 etc.)
MARCH 08, 2013
[R.M. LODHA, J. CHELAMESWAR AND MADAN B.
LOKUR, JJ.]
Election Laws:
Election petition - Alleging resort to corrupt practice by
the returned candidate - Whether imperative to file additional
affidavit as required under Or. VI r.15(4) CPC, in addition to
A
B
c
the affidavit as required by proviso to s. 83(1) of the
Representation of the People Act - Held: The Act does not 0
mandate filing of an additional affidavit, but requires only
verification - Hence additional affidavit u!Or. VI r.15(4) is not
required - A composite affidavit, both in support of the
averments made in the petition and with regard to allegation
of corrupt practices would be sufficient - Representation of the
E
People Act, 1951 - s.83(1) - Conduct of Election Rules, 1961
- Code of Civil Procedure, 1908 - Or. VI r.15(4).
Election Petition - Maintainability - Petition whether liable
to summary dismissal if affidavit is not in statutory form - Held:
If there is substantial compliance with the statutory form,
F
petition cannot be dismissed summarily - Just because of the
defective affidavit, the petition, will not cease to be election
petition - The defects are curable - Representation of the
People Act, 1951 - s. 83 - Conduct of Election Rules, 1961 -
r.94-A, Form No.25.
G
The questions for consideration in the present
appeals were whether in order to maintain an election
petition (wherein resort to corrupt practices were alleged
1107
H
1108
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A against the returned candidate), was it imperative for the
election petitioner to file an affidavit in terms of Or. VI
r.15(4) CPC, in support of the averments made in the
election petition, in addition to an affidavit as required by
the proviso to s.83(1) of Representation of the People Act,
B 1951; and that whether an election petition is liable to be
dismissed summarily, if an affidavit filed in support of the
allegations of corrupt practices of returned candidate
was not in the Statutory Form No.25 as prescribed by the
Conduct of Election Rules, 1961.
c
Dismissing the appeals, the Court
HELD: 1.1. A plain and simple reading of Section
83(1)(c) of the Representation of the People Act, 1951
clearly indicates that the requirement of an 'additional'
D affidavit is not to be found therein. While the requirement
of "also" filing an affidavit in support of pleadings filed
under the CPC may be mandatory in terms of Order VI
Rule 15(4) of the CPC, the affidavit is not a part of the
verification of the pleadings - both are quite different.
E 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. The Court is being asked to read a
requirement that does not exist in Section 83(1)(c) of the
F Act. [Para 30] [1122-D-F]
P.A. Mohammed Riyas vs. M.K. Raghavan and Ors.
(2012) 5 SCC511: 2012 (4) SCR 56 - disapproved.
Dhananjay Sharma vs. State of Haryana (1995) 3 SCC
G 757: 1995 (3) SCR 964; Mohan Singh vs. Amar Singh,
(1998) 6 SCC 686: 1998 (1) Suppl. SCR 252 - referred to.
163'" Report of the Law Commission of India (LC/) on the
Code of Civil Procedure (Amendment) Bill, 1997 - referred
H to.
G.M. SIDDESHWAR v. PRASANNA KUMAR
1109
1.2. The procedure of filing a composite affidavit, both
A
in support of the averments made in the election petition
and with regard to the allegations of corrupt practices by
the returned candidate, is not contrary to law and cannot
be faulted. Such a composite affidavit would not only be
in substantial compliance with the requirements of the
B
Act but would actually be in full compliance thereof. The
filing of two affidavits is not warranted by the Act nor is
it necessary, especially when a composite affidavit can
achieve the desired result. [Para 34) [1124-D-E]
1.3. The Court must make a fine balance between the
C
purity of the election process and the avoidance of an
election petition being a source of annoyance to the
returned candidate and his constituents. Hence the
salutary intention of the Law Commission to ensure purity
in the litigation process must extend to an election
D
petition notwithstanding the mandate of Parliament as
expressed in Section 83 of the Act. [Para 35] [1124-F-G;
1125-C]
Azhar Hussain vs. Rajiv Gandhi 1986 (Supp) SCC 315
E
: 1986 SCR 782 - relied on
1.4. It cannot be said that the Order VI Rule 15 of the
CPC has been legislated by reference or by incorporation
into the Act for the reasons that on a plain reading of
F
Section 83 of the Act, only a verification and not an
affidavit in support of the averments in an election
petition is required, except when allegations of corrupt
practices are made by the election petitioner. Any
amendment in the CPC is of no consequence in this
regard unless the meaning of 'verification' is amended to G
include an affidavit. [Para 37] [1126-8-D]
Gimar Traders (3) vs. State of Maharashtra (2011) 3 SCC
1 : 2011 (3) SCR 1 - referred to.
H
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[2013] 4 S.C.R.
A
2.1. 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
B 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. [Para 3] [1113-E-F]
2.2. Section 86 of the Act makes no reference to
Section 83 thereof and so, prima facie, an election petition
C cannot be summarily dismissed under Section 86 of the
Act for non-compliance of the provisions of Section 83
thereof. [Para 42] [1129-G-H]
Ponnala Lakshmaiah vs. Kommuri Pratap Reddy (2012)
D 7 SCC 788:2012 (6) SCR 851; Hardwari Lal vs. Kanwal
Singh (1972) 1 SCC214: 1972 (3) SCR 742; Sardar
Harcharan Singh Brar vs. Sukh Darshan Singh (2004) 11
SCC 196: 2004 (5) Suppl. SCR 682; G. Mallikarjunappa
and Anr. vs. Shamanur Shivashankarappa and Ors.(2001) 4
E SCC 428 - relied on.
2.3. Although non-compliance with the provisions of
Section 83 of the Act is a curable defect, yet there must
be substantial compliance with the provisions thereof.
However, if there is total and complete non-compliance
F with the provisions of Section 83 of the Act, then the
petition cannot be described as an election petition and
• may be dismissed at the threshold. [Para 55] [1134-C-D]
Murarka Radhey Shyam Ram Kumar vs. Roop Singh
G Rathore and Ors.(1963) 3 SCR 573; Ch. Subba Rao vs.
Member, Election Tribunal.Hyderabad (1964) 6 SCR 213 -
followed.
T.M. Jacob vs. C. Poulose and Ors. (1999) 4 SCC 274:
1999 (2) SCR 659;
V.
Narayanaswamy vs.
C.P.
H Thirunavukkarasu (2000) 2 SCC 294: 2000 (1) SCR 292; Anil
GM. SIDDESHWAR v. PRASANNA KUMAR
1111
Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009)
A
9 sec 310: 2009 (14) SCR 10 - relied on.
2.4. In the present case, the affidavitfiled by the election
petitioner in compliance with the requirements of the
proviso to Section 83(1) of the Act was not an integral part
8
of the election petition, and no such case was set up. It is
also clear that the affidavit was in substantial compliance
with the requirements of the law. Therefore, the High Court
was quite right in coming to the conclusion thatthe affidavit
not being in the prescribed format of Form No.25 and with
a defective verification were curable defects and that an C
opportunity ought to be granted to the election petitioner
to cure the defects. [Para 65] [1137-F-G]
Ponna/a Lakshmaiah vs. Kommuri Pratap Reddy (2012)
7 SCC 788:2012 (6) SCR 851; Sahodrabai Rai vs. Ram
D
Singh Aharwar (1968) 3SCR 13; M. Kama/am vs. Dr. V. A.
Syed Mohammed (1978) 2 SCC 659: 1978 (3) SCR 446;
F.A. Sapa and Ors. vs. Singora and Ors.(1991) 3 SCC 375:
1991 (2) SCR 752 ; R.P. Moidutty vs. P. T. Kunju Mohammad
and Anr. (2000) 1 SCC 481; Umesh Challiyil/ vs. K.P.
E
Rajendran (2008) 11 SCC 7 40: 2008 (3) SCR 457 - relied
on.
F.A. Sapa and Ors. vs. Singora and Ors. (1991) 3 SCC
395 - referred to.
F
Case Law Reference:
2012 (4) SCR 56
disapproved
Para 3
(2000) 1 sec 481
referred to
Para 16
(1991) 3 sec 395
referred to
Para 17
G
1995 (3) SCR 964
referred to
Para 32
1998 (1) Suppl. SCR 252
referred to
Para 33
2011 (3) SCR 1
referred to
Para 36
H
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[2013] 4 S.C.R.
A
2012 (6) SCR 851
1972 (3) SCR 742
1986 SCR 782
c2001) 4 sec 428
B
2004 (5) Suppl. SCR 682
(1963) 3 SCR 573
(1964) 6 SCR 213
C
1999 (2) SCR 659
2000 (1) SCR 292
2009 (14) SCR 10
(1968) 3 SCR 13
D
1991 (2) SCR 752
2008 (3) SCR 457
relied on
relied on
relied on
relied on
relied on
followed
followed
relied on
relied on
relied on
relied on
relied on
relied on
Para 41
Para 42
Para 43
Para 45
Para 46
Para 49
Para 51
Para 52
Para 53
Para 54
Para 57
Para 61
Para 64
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E 2250-2251 of 2013.
F
G
From the Judgment & Order dated 24.02.2010 of the High
Court of Karnataka at Bangalore in Misc. Civil No. 386 and
1431 of 2010 in Election Petition No. 2 of 2009.
WITH
Civil Appeal Nos. 2252-2255 of 2013.
V. Giri, G.V. Chandrashekar, N.K. Verma (For Anjana
Chandrashekar) for the Appellant.
Basava Prabhu Patil, Rajesh Mahale, Krutin R. Joshi,
Subramonium Prasad for the Respondent.
The Judgment of the Court was delivered by
H
MADAN B. LOKUR, J. 1. Leave granted.
G.M. SIDDESHWAR v. PRASANNA KUMAR
1113
[MADAN B. LOKUR, J.]
2. The principal question of law raised for our
A
consideration is whether, to maintain an election petition, it is
imperative for an election petitioner to file an affidavit in terms
of Order VI 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
B
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. c
Raghavan & Ors., (2012) 5 SCC 511 which suggests to the
contrary, does not lay down correct law to this limited extent.
3. 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 No. 25
D
prescribed by the Conduct of Election 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
E
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.
F
The facts:
4. The challenge in these appeals is to a judgment and
order dated 24th February 2010 passed by a learned Single
Judge of the High Court of Karnataka in Miscellaneous Civil
No. 386/2010 and Miscellaneous Civil No. 1431/2010 in
G
Election Petition No.2/2009. The decision is reported as
Prasanna Kumar v. G.M. Siddeshwar & Ors., 2010 (6) KarLJ
78.
5. In Miscellaneous Civil No. 386/2010 the appellant
H
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SUPREME COURT REPORTS
[2013] 4 S.C.R.
A (Siddeshwar) sought the dismissal/rejection of the election
petition challenging his election to the 15th Lok Sabha from 13,
Davangere Lok Sabha Constituency in the election held on 13th
April 2009. It was submitted in the application that the
provisions of Section 81 (3) and Section 83 of the
B Representation of the People Act, 1951 (hereinafter referred
to as the Act) had not been complied with and therefore, in view
of Section 86 of the Act read with Order VII Rule 11 (a) of the
Code of Civil Procedure (hereinafter referred to as the CPC),
the election petition ought to be rejected/dismissed at the
c threshold.
6. For the present purposes, we are concerned with
Section 83 and Section 86 of the Act and to the extent they are
relevant, they read as follows:
D
"83. Contents of petition.-(1) An election petitionE
F
G
H
( a)
shall contain a concise statement of the material
facts on which the petitioner relies;
(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 snail also
be signed by the petitioner and verified in the same
G.M. SIDDESHWAR v. PRASANNA KUMAR
[MADAN B. LOKUR, J.]
manner as the petition."
1115
"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.
Explanation.-An order of the High Court dismissing
an election petition under this sub-section shall be deemed
to be an order made under clause (a) of Section 98.
(2) to (7) xxx xxx xxx [presently not relevant]"
7. Among the grounds urged in the High Court and
reiterated before us were that the proviso to Section 83(1) of
the Act requires an affidavit to be filed in the prescribed form
A
B
c
in support of the allegations of corrupt practice and the
particulars thereof. Rule 94-A of the Conduct of Election Rules,
0
1961 prescribes Form No. 25 as the format affidavit. According
to Siddeshwar, the affidavit filed by the election petitioner
(Prasanna Kumar) did not furnish the material particulars on the
basis of which allegations of corrupt practice were made and
also that it carried a defective verification and therefore it was
not an affidavit that ought to be recognized as such.
E
8. On the issue of non-compliance with the format affidavit,
the High Court was of the view that though there was no
verbatim compliance, but the affidavit filed by Prasanna Kumar
was in substantial compliance with the prescribed format.
F
Consequently, this contention was rejected. The High Court
subsequently dealt with the absence of material particulars in
the affidavit along with the second application.
9. The High Court also considered the contention that the
verification in the affidavit in Form No.25 was defective but
G
concluded that it was a curable defect and therefore, an
opportunity should be given to Prasanna Kumar to cure the
defect. It was held that if the defect is not cured the election
petition is liable to be dismissed.
H
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[2013] 4 S.C.R.
A
10. It was also contended that in view of Section 83(1}(c)
of the Act, an election petition is required to be verified in the
manner laid down in the CPC for the verification of pleadings.
Order VI Rule 15(4) of the CPC requires that the person
verifying the pleadings shall also furnish an affidavit in support
B of the pleadings. In the election petition, such an affidavit was
not filed despite the affidavit being an integral part of the
election petition. For this reason also, the election petition ought
to be dismissed at the threshold.
11. In this regard, the High Court was of the view that there
C was no necessity of the election petitioner filing any other
affidavit in support of the election petition and that the affidavit
filed by Prasanna Kumar in Form No.25 substantially complied
with the requirements of Rule 94-A of the Rules.
D
12. It was finally contended that Prasanna Kumar had
leveled allegations of corrupt practices against Siddeshwar
without any material particulars. As such, the election petition
did not disclose a complete cause of action and was liable to
·be rejected under Order VII Rule 11 (a) of the CPC. This
E contention was considered with the second application.
13. In Miscellaneous Civil No. 1431/2010 Siddeshwar
invoked the provisions of Order VI Rule 16 of the CPC for
striking out some paragraphs of the election petition on the
ground that allegations of corrupt practice were scandalous and
F vexatious. It was contended that on a deletion of the offending
paragraphs, the election petition would not survive.
14. In regard to the objections raised, the High Court was
of the opinion that some of the allegations made against
G Siddeshwar alleging corrupt practices did not contain material
particulars apart from being vague and deficient. Consequently,
a few paragraphs of the election petition were struck off by the
Court under Order VI Rule 16 of the CPC. The remaining
paragraphs were retained since the High Court was of the view
H that they required trial and could not be struck off at the initial
GM. SIDDESHWAR v. PRASANNA KUMAR
1117
[MADAN B. LOKUR, J.]
stage. Consequently, the objections regarding absence of
A
material particulars and absence of a cause of action were
rejected.
15. Feeling aggrieved by the judgment and order passed
by the High Court, Siddeshwar has preferred these appeals.
8
Reference to a larger Bench:
16. These matters were earlier heard by a Bench of two
learned judges when it was contended by learned counsel for
Siddeshwar, relying upon P.A. Mohammed Riyas (decided by
C
a Bench of two learned judges) that since Prasanna Kumar had
not filed an 'additional' affidavit as required by Order VI Rule
15(4) of the CPC in support of the election petition, the High
Court ought to have dismissed it at the threshold. Learned
counsel placed reliance on R.P. Moidutty v. P. T. Kunju o
Mohammad and Another, (2000) 1 SCC 481 in support of his
contention that an election petition could be dismissed at the
threshold if it did not disclose a cause of action.
17. On the other hand, learned counsel appearing for
Prasanna Kumar relied upon a larger Bench decision in F.A.
E
Sapa & Ors. v. Singora & Ors., (1991) 3 SCC 395 and
contended that Mohammed Riyas was not in consonance with
that decision. Reliance was also placed on G. Mallikarjunappa
& Anr. v. Shamanur Shivashankarappa & Ors., (2001) 4 SCC
428 to contend that an election petition is not liable to be
F
dismissed at the threshold under Section 86 of the Act for noncompliance with the provisions of Section 83 of the Act. It was
contended that any defect in non-compliance with the provisions
of Section 83 of the Act is a curable defect which can be
removed and judged at the trial of the election petition.
G
18. After hearing learned counsel for the parties and
considering the view expressed in Mohammed Riyas which
apparently proceeded on the basis that in addition to an affidavit
in Form No.25, an election petitioner was also required to
H
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(2013] 4 S.C.R.
A furnish an 'additional' affidavit in support of the election petition
in terms of Order VI Rule 15(4) of the CPC, it was felt that the
issues raised ought be heard by a larger Bench of at least three
Judges.
8
19. It was also noted that in Mallikarjunappa, a Bench of
three judges of this Court held that an election petition was not
liable to be dismissed in limine under Section 86 of the Act
for non-compliance with the provisions of Section 83 thereof. It
was observed that Mallikarjunappa had not been referred to
C or considered in Mohammed Riyas.
D
20. Accordingly, by an order passed on 19th July 2012 the
issues raised were referred to a larger Bench of three judges.
It is under these circumstances that the Special Leave Petitions
were placed before us for consideration.
(i) Affidavit in terms of Order VI Rule 15(4) of the CPC:
21. The submission made by learned counsel is to the
effect that in addition to an affidavit required to be filed in Form
No.25 prescribed by Rule 94-A of the Rules in support of
E allegations made of corrupt practices by the returned
candidate, an election petitioner is also required to file an
affidavit in support of the election petition keeping in mind the
requirement of Order VI Rule 15(4) of the CPC.
F
G
H
22. Order VI Rule 15 of the CPC reads as follows:
"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
G.M. SIDDESHWAR v. PRASANNA KUMAR
1119
[MADAN B. LOKUR, J.)
verifies of his own knowledge and what he verifies upon
A
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."
23. A plain reading of Rule 15 suggests that a verification
B
of the plaint is necessary. In addition to the verification, the c
person verifying the plaint is "also" required to file an affidavit
in support of the pleadings. Does this mean, as suggested by
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?
D
24. 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
the CPC. That Order VI Rule 15 requires an affidavit "also" to
be filed does not mean that the verification of a plaint is
E
incomplete if an affidavit is not filed. The affidavit, in this context,
is a stand-alone document.
25. Mohammed Riyas dealt with the issue whether the
election petitioner is required to file two affidavits - one affidavit
F
in support of the allegations of corrupt practices and the second
affidavit in compliance with the requirements of Order VI Rule
15(4) of the CPC. This is apparent from the submissions
advanced by learned counsel appearing in the case.
26. It was contended by the election petitioner that two
G
affidavits would be necessary in an election petition only where
the election petitioner wanted the election of the returned
candidate to be set aside on the ground of commission of
corrupt practices under Section 100( 1 )(b) of the Act as well as
, on other grounds as set out in Section 100(1) of the Act. In other
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[2013] 4 S.C.R.
A
words, the argument was that two affidavits were required to
be filed by the election petitioner. It is important to note that it
was not argued (as in the present case) that Order VI Rule 15(4)
of the CPC does not require the filing of an affidavit as a part
of the requirement of verifying the election petition. An
B alternative contention was put forward that a single affidavit,
satisfying the requirement of the Act, could also be filed. The
contention put forward was as follows:
c
D
E
"The learned counsel submitted that two affidavits would
be necessary only where an election petitioner wanted the
election to be set aside both on grounds of commission
of one or more corrupt practices under Section 100(1)(b)
of the Act and other grounds as set out in Section 100(1).
In such a case, two affidavits could possibly be required,
one under Order 6 Rule 15(4) CPC and another in Form
25. However, even in such a case, a single affidavit that
satisfies the requirements of both the provisions could be
filed. In any event, when the election petition was based
entirely on allegations of corrupt practices, filing of two
affidavits over the selfsame matter would render one of
them otiose, which proposition was found acceptable by
the Karnataka High Court in Prasanna Kumar v. G.M.
Siddeshwar [2010 (6) KarLJ 78]."
27. It was argued on behalf of the returned candidate that
F
the election petitioner is required to file an affidavit in support
of the pleadings and another affidavit in support of the
allegations of corrupt practices by the returned candidate. In
other words, the election petitioner is required to file two
affidavits. The contention urged was as follows:
G
"Mr Rao contended that Section 83(1 )(c) of the above Act
requires the election petition to be signed by the petitioner
and verified in the manner specified in CPC for the
verification of pleadings. Referring to Order 6 Rule 15 of
the Code, Mr Rao submitted that sub-rule (4) requires that
H
the person verifying the pleading shall also furnish an
G.M. SIDDESHWAR v. PRASANNA KUMAR
1121
[MADAN 8. LOKUR, J.]
affidavit in support of his pleadings, which was a
A
requirement independent of the requirement of a separate
affidavit with respect to each corrupt practice alleged, as
mandated by the proviso to Section 83(1)(c) of the above
Act."
28. The conclusions of this Court are given in paragraphs
B
45 and 46 of the Report in the following words:
"45. Of course, it has been submitted and accepted that
the defect was curable and such a proposition has been
upheld in the various cases cited by Mr Venugopal,
C
beginning with the decision in Murarka Radhey Shyam
Ram Kumar case [AIR 1964 SC 1545) and subsequently
followed in F.A. Sapa case [(1991) 3 SCC 375], Sardar
Harcharan Singh Brar case [(2004) 11 SCC 196] and
K.K. Ramachandran Master case [(2010) 7 SCC 428),
D
referred to hereinbefore. In this context, we are unable to
accept Mr Venugopal's submission that despite the fact
that the proviso to Section 83(1) of the 1951 Act provides
that where corrupt practices are alleged, the election
petition shall also be accompanied by an affidavit in the
E
prescribed form, it could not have been the intention of the
legislature that two affidavits would be required, one under
Order 6 Rule 15(4) CPC and the other in Form 25. We
are also unable to accept Mr Venugopal's submission that
even in a case where the proviso to Section 83(1) was
F
attracted, a single affidavit would be sufficient to satisfy the
requirements of both the provisions.
46. Mr Venugopal's submission that, in any event, since
the election petition was based entirely on allegations of
corrupt practices, filing of two affidavits in respect of the
G
selfsame matter, would render one of them redundant, is
also not acceptable. As far as the decision in F.A. Sapa
case is concerned, it has been clearly indicated that the
petition, which did not strictly comply with the requirements
of Section 83 of the 1951 Act, could not be said to be an
H
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A
e!ection petition as contemplated in Section 81 and would
attract dismissal under Section 86(1) of the 1951 Act. On
the other hand, the failure to comply with the proviso to
Section 83(1) of the Act rendered the election petition
ineffective, as was held in Hardwari Lal case [(1972) 1
B
sec 214] and the various other cases cited by Mr P.P.
Rao."
29. Unfortunately, the submissions made by the election
petitioner were not discussed, but were simply rejected. No
reasons have, unfortunately, been given by this Court for arriving
C at the conclusions that it did and rejecting the contentions of
learned counsel for the election petitioner.
30. It seems to us that a plain and simple reading of
Section 83(1 )(c) of the Act clearly indicates that the requirement
D of an 'additional' affidavit is not to be found therein. While the
requirement of "also" filing an affidavit in support of pleadings
filed under the CPC may be mandatory in terms of Order VI
Rule 15(4) of the CPC, the affidavit is not a part of the
verification of the pleadings - both are quite different. While the
E 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.
F Recommendation of the Law Commission:
31. To get over the difficulty posed by the plain language
of Section 83 of the Act, learned counsel for Siddeshwar
referred to the imperatives of an affidavit in support of
G statements of fact made in a plaint, which would hopefully give
some sanctity to the averments made therein. Reliance was
placed on judgments of this Court as well as on the 163rd
Report of the Law Commission of India (LCI) on the Code of
Civil Procedure (Amendment) Bill, 1997.
H
G.M. SIDDESHWAR v. PRASANNA KUMAR
1123
[MADAN B. LOKUR, J.]
32. In this context, in Dhananjay Sharma v. State of A
Haryana, (1995) 3 SCC 757 it was held:
"The swearing of false affidavits in judicial proceedings not
only has the tendency of causing obstruction in the due
course of judicial proceedings but has also the tendency
to impede, obstruct and interfere with the administration
8
of justice .......... The stream of justice has to be kept clean
and pure and anyone soiling its purity must be dealt with
sternly so that the message percolates loud and clear that
no one can be permitted to undermine the dignity of the
court and interfere with the due course of judicial
C
proceedings or the administration of justice."
A similar view was expressed in Mohan Singh v. Amar Singh,
(1998) 6 SCC 686. The LCI referred to both these decisions
and proposed the insertion of sub-section (2) in Section 26 of
0
the CPC making it obligatory upon a plaintiff to file an affidavit
in support of facts stated in the plaint. A similar provision was
proposed in Order VI of the CPC by inserting sub-Rule (4) in
Rule 15 thereof. In this context, the LCI had this to say:
"2.6.1. The response of members of the Bench as well as
E
the Bar has been uniformly against the above proposals.
The general view expressed by them is that such a
provision would only add to the delays in disposal of suits.
It was submitted that there are enough provisions in the
existing law to deal with false and malicious averments in
the pleadings and that this additional requirement would
not make any difference ..... .
F
"2.6.2. The Law Commission is, however, of the opinion
that the proposed amendments are salutary and may, at
least to some extent, check the tendency to make false:
G
averments in the pleadings ........ This tendency has
certainly to be checked. Even if the parties in two to five
per cent cases could be dealt with appropriately for making
false statements in the pleadings, it would greatly help in
arresting this tendency ...... "
H
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A
33. While the necessity of an affidavit in support of facts
stated in a plaint may be beneficial and may have salutary
results, but we have to go by the law as it is enacted and not
go by the law as it ought to be. The CPC no doubt requires
that pleadings be verified and an affidavit "also" be filed in
B support thereof. However, Section 83(1)(c) of the Act merely
requires an election petitioner to sign and verify the contents
of the election petition in the manner prescribed by the CPC.
There is no requirement of the election petitioner "also" filing
an affidavit in support of the averments made in the election
C petition except when allegations of corrupt practices have been
made.
34. In any event, as in the present case, the same result
has been achieved by the election petitioner filing a composite
affidavit, both in support of the averments made in the election
D petition and with regard to the allegations of corrupt practices
by the returned candidate. This procedure is not contrary to law
and cannot be faulted. Such a composite affidavit would not only
be in substantial compliance with the requirements of the Act
but would actually be in full compliance thereof. The filing of two
E affidavits is not warranted by the Act nor is it necessary,
especially when a composite affidavit can achieve the desired
result.
35. The Court must make a fine balance between the purity
F of the election process and the avoidance of an election
petition being a source of annoyance to the returned candidate
and his constituents. In Azhar Hussain v. Rajiv Gandhi, 1986
(Supp) sec 315 this Court observed (in the context of summary
dismissal of an election petition):
G
"So long as the sword of Damocles of the election petition
remains hanging an elected member of the legislature
would not feel sufficiently free to devote his whole-hearted
attention to matters of public importance which clamour for
his attention in his capacity as an elected representative
H
of the concerned constituency. The time and attention
GM. SIDDESHWAR v. PRASANNA KUMAR
1125
[MADAN B. LOKUR, J.]
demanded by his elected office will have to be diverted to
A
matters pertaining to the contest of the election petition.
Instead of being engaged in a campaign to relieve the
distress of the people in general and of the residents of
his constituency who voted him into office, and instead of
resolving their problems, he would be engaged in
B
campaign to establish that he has in fact been duly
elected."
In light of the above, it is not possible to accept the view that
the salutary intention of the LCI to ensure purity in the litigation
process must extend to an election petition notwithstanding the
C
mandate of Parliament as expressed in Section 83 of the Act.
Legislation by reference:
36. The final cqntention urged under this subject was that
0
in view of the language used in Section 83(1 )(c) of the Act, the
doctrine of legislation by reference would need to be invoked
in as much as any amendment to the CPC would be applicable
to the working of the Act. It was argued that since an
amendment was made to Rule 15(4) of Order VI of the CPC,
that amendment has been legislated by reference in the Act and
so the election petitioner would be bound by the terms thereof
and would, therefore, not only need to sign and verify the
contents of an election petition, but also file an affidavit in
support thereof. Reliance was placed on a Constitution Bench
decision in Gimar Traders (3) v. State of Maharashtra, (2011)
3 SCC 1. In that case, after an analysis of the entire case law
on the subject, the Constitution Bench held:
"Having perused and analysed the various judgments cited
E
F
at the Bar we are of the considered view that this rule [of
G
legislation by reference] is bound to have exceptions and
it cannot be stated as an absolute proposition of law that
wherever legislation by reference exists, subsequent
amendments to the earlier law shall stand implanted into
the later law without analysing the impact of such
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(2013] 4 S.C.R.
A
incorporation on the object and effectuality of the later law.
The later law being the principal law, its object, legislative
intent and effective implementation shall always be of
paramount consideration while determining the
compatibility of the amended prior law with the later law
B
as on relevant date."
37. We are not inclined to debate the contention whether
Order VI Rule 15 of the CPC has been legislated by reference
or by incorporation into the Act for the reasons already
indicated above, namely, that on a plain reading of Section 83
C of the Act, only a verification and not an affidavit in support of
the averments in an election petition is required, except when
allegations of corrupt practices are made by the election
petitioner. Any amendment in the CPC is of no consequence
in this regard unless the meaning of 'verification' is amended
D to include an affidavit.
Defective affidavit:
38. What exactly are the contents of an affidavit in Form
E No.25 as prescribed by Rule 94-A of the Rules? The fonmat
reads as follows:
F
"Form 25
(see Rule 94A)
AFFIDAVIT
I, ......................... ,the petitioner in the accompanying
election petition calling in question the election of Shri/
Shrimati ...................... (respondent No ................... .
in the said petition) make solemn affirmation/oath and sayG
(a) that the statements made in paragraphs ............. of
the accompanying election petition about the commission
of the corrupt practice of* .................. and the
particulars of such corrupt practice mentioned in
paragraphs .................... of the same petition and in
H
G.M. SIDDESHWAR v. PRASANNA KUMAR
1127
[MADAN B. LOKUR, J.]
paragraphs .................. of the Schedule annexed
A
thereto are true to my knowledge;
(b) that the statements made in paragraphs ................... .
of the said petition about the commission of the corrupt
practice of* .................. and the particulars of such
corrupt practice given in paragraphs ................... of the
said petition and in paragraphs ....................... of the
Schedule annexed thereto are true to my information:
(c)
{d)
(e)
(f)
etc.
Signature of deponent
Solemnly affirmed/sworn by Shri/ Shrimati .................. .
B
c
D
at ............. this .......... day of ............... 20............ ..
E
Before me, Magistrate of the first class/
Notary/Commissioner of Oaths.
*Here specify the name of the corrupt practice."
39. Prasanna Kumar's affidavit accompanying the election
petition reads as follows:
"Form 25
F
(Rule 94-A)
G
In The High Court of Karnataka at Bangalore
(Original Jurisdiction)
Election Petition No. 2/2009
Between:
H
A
B
c
D
E
F
G
H
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[2013] 4 S.C.R.
Prasanna Kumar
.... Petitioner
And
Sri G.M. Siddeshwar and Ors .... Respondents
Affidavit
I, Prasanna Kumar, the petitioner in the accompanying
Election petition, catting in question the election of Sri G.M.
Siddeshwar (1st respondent in the said petition) make
solemn and affirmation on oath and say-
(a) That I am an elector in 13 Davanagere Lokasabha
Constituency in Harihar Assembly Segment and I am fully
aware and acquainted with the facts of the case and swear
to this affidavit,
(b) That the statements made in paragraphs 1, 2, 3, 5, 7,
8, 11, 12 and 13 & 14 of the accompanying Election
Petition about the violation of the law during the conduct
of election and the particulars mentioned in the above
noted paragraphs are true to my knowledge and contents
of paras 18, 19, 20 and 21 are based on legal advise;
(c) That the statements made in paragraphs 3, 4, 6, 8, 9,
10, 15 and 16 of the accompanying Election Petition about
the commission of electoral offence of corrupt practices
and the particulars mentioned in the said paragraphs of
the petition are true to my knowledge and partly on
Information.
(d) That Annexures - 1 to 14 and 18, 19, 20, 22, 23, 24
are true copies and 15, 16, 17, 21 are original copies.
Sd/-
Signature of the Deponent
Solemnly affirmed/sworn to by Sri Prasanna Kumar
at Bangalore, this the 18th day of June 2009.
GM. SIDDESHWAR v. PRASANNA KUMAR
1129
[MADAN B. LOKUR, J.]
Sd/- Identified by me
A
Sd/- corrections: (nil).
sworn to before me"
40. A perusal of the affidavit furnished by Prasanna Kumar
ex facie indicates that it was not in absolute compliance with
8
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
C
petition.
41. 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:
"The format of the affidavit is at any rate not a matter of
substance.