A two-judge Bench of Justice SK Kaul and Justice MM Sundresh has held that non-compliance of the proviso to Section 83(1) of Representation of People's Act would not be fatal to the maintainability of an election petition and the defeat could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition.

The Supreme Court disagreed with the finding of the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition.

An appeal was preferred assailing the impugned judgment of the High Court which had held Form 25 was an integral part of the election petition and its complete absence would mean that there was total non-compliance of Section 83 of the RP Act. The election petition filed by the Appellant was held as not maintainable by the High Court. Aggrieved, the Appellant approached the Supreme Court.

In this case, the Appellant was a candidate for the 2019 elections and was sponsored by BJP while Respondent No. 1 was sponsored by Janatha Dal Secular Party and was also a candidate from the Constituency. The Appellant had secured 5,35,282 votes while respondent no.1 secured 6,76,606 votes during the elections.

The Appellant thereafter, filed an Election Petition under Section 81 of RP Act challenging the election of Respondent No. 1. The Appellant had alleged that Respondent's election was liable to be declared void on account of his filing a false affidavit.

The petition was resisted by the Respondent at the threshold who filed an application under Order VII Rule 11 read with Section 151 CPC and Section 86(1) of the RP Act and sought dismissal of the election petition in the account of non-compliance of Section 81(3) and the proviso to Section 83(1) of the RP Act.

The Appellant contended before the Supreme Court that allegation against Respondent No. 1 dealt with improper acceptance of the nomination and non-compliance with statutory provisions. The allegations of corrupt practices contained in Sections 123 and 100(1) (d) (ii) of the RP Act were not related to the election petition, hence the submission of Form 25 was not required.

The Appellant further relied on the case Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors., where the SC had opined against the rejection of an election petition at the threshold stage on hyper-technical grounds.

The Appellant further argued that in any case non-filing of an affidavit or non-filing of proper verification is a technical defect which was curable and the High Court ought to have given an opportunity to cure the defect by allowing the Appellant to file a proper affidavit.

While the Respondent contended that the defect of not filing Form 25 could not be cured at a later stage by placing reliance on Ravinder Singh v. Janmeja Singh & Ors.

By relying on the precedent G.M. Siddeshwar v. Prasanna Kumar, the Respondent argued that the absence of an affidavit stood on a different footing from submission of a defective affidavit.

The issue which was dealt with by the Court was –

Whether an election petition can be thrown out at the threshold on a plea of the respondent/elected candidate that the petition is not supported by an affidavit in Form 25, as prescribed under Rule 94A of Conduct of Election Rules, 1961, even though the petition is based on allegations of corrupt practices.

The Apex Court noted, "If we examine the facts of the present case, the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis has been rightly rejected by the High Court."

The Court further placed reliance on Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore in which the Constitution Bench of the SC had opined that the defect in the verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner's petition summarily and such an affidavit can be permitted to be filed later.

Further, the Court referred to G.M. Siddeshwar's case and observed –

"Non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election 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," the Bench opined.

Further, the Court observed, "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."

The Court added, "Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold."

Accordingly, the Court set aside the impugned order of the Single Judge and dismissed the application filed by Respondent No. 1 with a direction that further proceedings in the election petition are required to be taken up urgently and allowed the appeal.

The Court had also granted the liberty to the Appellant to file an appropriate affidavit in Form 25 within 15 days.

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