Holding

Minor defects in verification and affirmation of an election petition are curable and do not warrant dismissal; the petition must be remitted for amendment.

Summary

Umesh Challiyil filed an election petition under the Representation of the People Act, 1951 alleging corrupt practices by the elected candidate K.P. Rajendran. The Kerala High Court dismissed the petition on preliminary objections, holding that the verification in the petition and the affirmation in the supporting affidavit (Form 25) were defective and that the affidavit was not properly certified. The Supreme Court held that the alleged defects – the wording of the verification and the lack of a notary’s post‑signature certification – were merely technical and did not go to the root of the case; they are curable and cannot justify dismissal under s.86 of the Act. The Court observed that the High Court should have given the petitioner an opportunity to amend the petition rather than summarily dismiss it. Consequently, the appeal was allowed, the High Court’s order set aside, and the matter remitted for further proceedings.

Issues considered

The alleged defects in verification of the election petition and affirmation of the affidavit under s.83 of the Representation of the People Act, 1951 – whether they are fatal grounds for dismissal under s.86.
Whether the High Court erred in dismissing the election petition without granting an opportunity to cure the procedural defects.
Whether non‑compliance with the form of verification/affidavit can be remedied under the CPC and the Conduct of Election Rules.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 15, s. Order 6 Rule 16, s. Order 6 Rule 17, s. Order 7 Rule 11
Conduct of Election Rules, 1961s. Rule 94A
Constitution of Indias. Article 225
Representation of the People Act, 1951s. 117, s. 123, s. 81, s. 82, s. 83, s. 85, s. 86

Subjects

election petitioncorrupt practiceverificationaffidavitRepresentation of the People ActSection 83Section 86curable defectpreliminary objectionhigh courtSupreme Court

Judgment

(2008] 3 S.C.R. 457
j

UMESH CHALLIYIL A
v.
K.P. RAJENDRAN
(Civil Appeal No. 598 of 2007)
FEBRUARY 26, 2008
B
.. >· [A.K. MATHUR AND ALTAMAS KABIR, JJ.]

Representation of the People Act, 1961: s.83 - Election
petition on the ground of corrupt practices - Rejection of, on
account of defects in verification of election petition and in c
affirmation of affidavit- High Court dismissed election petition
under s. 86 - Correctness of - Held: Not correct - The defects
were of very minor nature - It is true that verification was not in
same words as was required in form No. 7 under Rule 82 of
the Conduct of Election Rules of High Court of Kera/a, 1971
D
framed in exercise of power under Article 225 of the
Constitution of India - However, it can not be said to be bad if
it has not used the word, "true" and expressed in other way -
There seems to be no distinction between the two -Affirmation
a/so does not in any way go to the root of the matter so as to
render the entire election petition not properly constituted - E
Both the defects were too innocuous to have resulted in
dismissal of the election petition - High Court instead to giving
opportunity to amend or cure defects resorted to easy course
of dismissal of election petition which was not warranted -
Matter remitted to High Court - Code of Conduct Rules, 1961 F
- Rule 94A - Code of Civil Procedure, 1908 - 0. 6 r. 15.
The appellant filed election petition praying that
election of the respondent to the Legislative assembly be
declared void on the ground of corrupt practices. The
G
respondent who was elected candidate raised preliminary
objections on the maintainability of the election petitions
that the affidavit in Form 25 was not affirmed and as such,
the affirmation was not duly certified; that the verification
457 H
458 SUPREME COURT REPORTS [2008] 3 S.C.R.

A of the election petition was defective; that the sources of
information as regards the allegations of corrupt practices
of which the appellant did not have personal knowledge;
and the allegations in the election petition were vague and
lacked pleadings as regards the material particulars. The
B High Court accepted the preliminary objections and
dismissed the petition. Hence the present appeal. •

Allowing the appeal and remitting the matter to High
Court, the Court

c HELD : 1. As per s.83 of the Representation of People
Act, 1961, a concise statement of material facts should be
given in the petition and if the allegations are of corrupt
practice then the full statement of all names of the parties
alleged to have committed such corrupt practice and the
D date and place of the commission of each such practice
has to be disclosed and it should be signed by the
petitioner and verified in the manner laid down in the CPC
for verification of the pleadings . It further provided that
where the allegations are of corrupt practice, the petition
should also be accompanied by an affidavit in the
E
prescribed form in support of the allegation of such
corrupt practice and the particulars thereof in Form No.25.
The verification which is required as per the provisions
of the CPC under Order 6 Rule 15 is that the pleadings
should be verified and it should specify with reference to
F the numbered paragraphs of the pleadings, what he
verifies of his own knowledge and what he verifies upon
information which he received is believed to be true.
(Paras 3, 4] (464-A-E]

G 2. In the affidavit in question instead of writing "that I
believe to be true" what has been stated , "no part thereof
is false and nothing which is relevant has been
concealed." This verification has been found by High
Court to be defective. It is true it is not in same words as
H was required in Form No.7 under Rule 82 of the Conduct
UMESH CHALLIYIL v. K.P. RAJENDRAN 459

.. of Election Rules of High Court of Kerala, 1971 framed in A
exercise of power under Article 225 of the Constitution of
India. After going through the affidavit filed by the appellant
and the format of the concluding portion of the affidavit,
the verification can be said to be bad except that it has
not used the word, "true" it is expressed in other way, " B
no part thereof is false and nothing which is relevant has
been concealed." There seems to be no distinction
... lo
between the two. But the substance and the essence has
been conveyed. Therefore, High Court has taken incorrect
view that the verification is not in the form as required c
under Form No.7 under Rule 82 of the Rules of the High
Court of Kerala, 1971 and it is a major defect in the
constitution of the election petition and therefore, it
should be rejected under s.86 of the Act of 1951. What ·
one is required to do is to make proper verification
disclosing the contents of which paragraphs are within D
• his personal knowledge, and the .averments in which
paragraphs are within his knowledge, information or the
information derived from other source and he believes
the same to be true. Therefore, both the phraseology
convey the same meaning except that instead of using E
the words, "that the averments in paragraphs 1, 2 and 4
are within his personal knowledge and the averments in
paragraphs 3 and 5 to 8 are within his knowledge,
information and that the averments are true" he has stated,
,. " no part thereof is false and nothing which is relevant F
has been concealed". Practically the same sense is
conveyed and it is not such a defect which could entail
dismissal of the election petition. [Para 5] [466-B-H;
467-A-B]
3. The defect in the affidavit as pointed out by High G
Court was that the appellant had not signed and affirmed
in the manner inasmuch as there is no certification of the
• Notary that it was solemnly affirmed by the appellant
before him. This objection was based on the fact that after
the signature of the deponent the only words occurring H
460 SUPREME COURT REPORTS (2008] 3 S.C.R.

..
A before the signature of the Notary ~re, "Before me". The
words, "Solemnly affirmed by Shri Umesh Challiyil at
Ernakulam on this the 26th day of June, 2006" occurred
above tlie signature of the deponent. Therefore, it was
contended that the affidavit does not bear the certification
B by the Notary as to the affirmation by the deponent since
such certification ought to be by the Notary after the
signature of the deponent. This affidavit was also found
to be defective by High Court. This too is a defect of very
minor nature. It may be a bona fide mistake on the part of
C the deponent as well as the Notary but basically it conveys
the sense that the affidavit has been solemnly affirmed
by Umesh Challiyil at Ernakulam. This affirmation also
does not in any way go to the root of the matter so as to ...
render the entire election petition not properly constituted
entailing the dismissal of the same. Both the defects which
D have been pointed out by High Court were too innocuous
to have resulted in dismissal of the election petition on
the basis of the preliminary objection. The Courts have to
view it whether the objections go to the root of the matter
or they are only cosmetic in nature. It is true that the
E election petition has to be seriously construed. But that
apart the election petition should not be summarily
dismissed on such small breaches of procedure. These
were the defects, even if the Court has construed them to
be of serious nature, at least notice should have been
F issued to the party to rectify the same instead of resorting •
to dismissal of the election petition at the outset. [Para 6]
[469-D-H; 470-A-C]
4. There is no tenability in the contention of
respondent that in fact these objections were raised by
G the respondent in his counter and the appellant had
sufficient opportunity to have cured them, but the same
was not done and therefore the election petition was
dismissed. The appellant who bona fidely felt that his •
election petition in all respect is complete would not entail
H such a serious consequence of dismissal of the election
UMESH CHALLIYIL v. K.P. RAJENDRAN 461

.... petition on such minor omissions. In case, High Court A
found that the election petition was not in the format then
after recording its finding, High Court should have given
an opportunity to the appellant to amend or cure certain
defects pointed out by the Court. It may be relevant to
mention, these are not the grounds mentioned in s.86 of B
the Act for dismissal of election petition. But nonetheless
... even if it is to entail serious consequence of dismissal of
the election petition for not being properly constituted,
~
then too at least the appellant should have been given an
opportunity to cure these defects and put the election
petition in proper format. High Court in stead of giving
c
an opportunity has taken the easy course to dismiss
the election petition which was not warranted. [Para 7)
[470-D-H; 471-A-B]
Murarka Radhey Shyam Ram Kumar v. Roop Singh D
Rathore & Ors. (1964) 3 SCR 573; H.D. Revanna v. G.
Puttaswamy Gowda & Ors. (1999) 2 SCC 217; Sardar
Harcharan Singh Brar v. Sukh Darshan Singh & Ors. (2004)
11 sec 196 - relied on.
R.P Moidutty v. PT Kunju Mohammad & Anr. (2000) 1 E
SCC 481; Azhar Hussain v. Rajiv Gandhi (1986) Supp. SCC
315 - distinguished.
Chandrakant Uttam Chodankar v. Dayanand Rayu
... Mandrakar & Ors. (2005) 2 SCC 188; Ram Prasad Sarma v.
F
" Mani Kumar Subba & Ors. etc. (2003) ~ SCC 289 - referred
to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 598
of 2007.
From the final Judgment dated 6/12/2006 of the High Court G
of Kerala at Ernakulam in E.P. No.6 of 2006.

•• L.N. Rao, Roy Abraham, Seema Jain, Himinder Lal and
Hari Kumar G. for the Appellant.
C.S. Rajan, P. Naital Kumar and P.S. Sudheer for the H
462 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Respondent. ....
The Judgment of the Court was delivered by
A.K. MATHUR, J. 1. This appeal is directed against the
order dated 6.12.2006 passed by the learned Single Judge of
B the Kerala High Court whereby the learned· Single Judge has
rejected the election petition filed by the appellant on the
preliminary objection raised by the respondent that affidavit in
••
form No.25 was not affirmed, as such the affirmation was not
duly certified as per law nor did it disclose its source of "
c information. It was also observed that despite the fact that
objections were taken and the defects could have been cured,
no steps were taken to remove these defects. Hence, learned
Single Judge dismissed the election petition as it was not
properly affirmed as under Sections 83 & 85 of the
Representation of the People Act, 1951 (hereinafter to be
D
referred to as the Act of 1951) read with Rule 94A of the Conduct
of Election Rules, 1961 (hereinafter to be referred to as the Rules
of 1961).
2. Brief facts which are necessary for disposal of this
E appeal are that an election was held on 29.4.2006 to the Kerala
Legislative Assembly from No.67 Kodungalloor Assembly
Constituency. It was alleged in the election petition filed by the
appellant that the election be declared void on the ground of
corrupt practice committed either by the respondent's election
F agent or by some other person with the consent of the respondent )I
<
or his election agent. The election petition was registered and
notice was issued. The respondent was the elected candidate
and he raised a preliminary objection on the maintainability of
the election petition. The preliminary objections were that the
affidavit in Form 25 was not affirmed, as such, the affirmation
G
was not duly certified; the verification of the election petition
was defective; the sources of information as regards the
allegations of corrupt practices of which the appellant did not
have personal knowledge; the allegations in the election petition
were vague and lacked pleadings as regards the material
H
UMESH CHALLIYIL v. K.P. RAJENDRAN 463
[A.K. MATHUR, J.]

.. particulars. It was contended by the petitioner/ appellant (herein) A
that there were no illegality in the verification nor the affidavit in
form No.25 was defective. It was submitted that the accusations
were specific and they were not vague and the facts mentioned
in the election petition were duly sworn by proper affidavit.
3. The first preliminary objection was upheld by learned B
Single Judge that the affidavit which has been filed along with
~
. the election petition was not duly verified and the affidavit was
not in the form as required under Form No.25 nor was it
inconformity with Section 83 of the Act of 1951. Secondly, the
verification of the election petition was not in the manner which c
is required under the Code of Civil Procedure, 1908 (hereinafter
to be referred to as CPC). Section 83 of the Act of 1951 states
what are the contents of the election petition. Section 83 reads
as under:
D
" 83. Contents of petition.- (1) An election petition -
1
-. \,.
(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 E
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
F
(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 G
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
H
464 SUPREME COURT REPORTS [2008] 3 S.C.R.

A as the petition."
As per Section 83, a concise statement of material facts
should be given in the petition and if the allegations are of corrupt
practice then the a full statement, as far as possible, all names
of the parties alleged to have committed such corrupt practice
8 and the date and place of the commission of each such practice
has to be disclosed and it shall be signed by the petitioner and
verified in the manner laid down in the CPC for verification of
the pleadings . It further provided that where the allegations are
of corrupt practice, the petition shall also be accompanied by
C an affidavit in the prescribed form in support of the allegation of
such corrupt practice and the particulars thereof in Form No.25.
4. Now, coming to the question with regard to the
verification, the verification which is required as per the
provisions of the CPC under Order 6 Rule 15 that the pleadings
0
shall be verified and it should specify with reference to the
numbered paragraphs of the pleadings, what he verifies of his
own knowledge and what he verifies upon information which he
received is believed to be true. The format of the verification is
contained in Form No.25 under Order 6 Rule 15, CPC. Relevant
E portion of the form No.25 reads as under :
"FORM 25
(See rule 94A)

F 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 say-
(a) that the statements made in paragraphs .... Of the
G 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
paragraphs .......... Of the Schedule annexed thereto
H are true to my knowledge;
UMESH CHALLIYIL v. K.P. RAJENDRAN 465
• [A.K. MATHUR, J.]
?-

(b) that the statements made in paragraphs .... of the A
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 B
• . ©
(d)
etc.
Signature of deponent c
Solemnly affirmed/ sworn by Shri/ Shrimati. ........
At. ............... this .............. :.day .......... of ......... 19
Before me,
D
Magistrate of the first class/Notary/
Commissioner of Oaths.

* Here specify the name of the corrupt practice."
E
5. Now, what has been stated in the verification of the
election petition reads as under :

... " I, Umesh Challiyill, aged 45 years, S/oC A Krishnan,
Challiyill House, Arakulam West, Kodungalloor, the
'
petitioner herein, do hereby declare that the averments F
made in paragraphs 1, 2 and 4 are within my personal
knowledge and paragraphs 3 and 5 to 8 are within my
knowledge, information and belief and no part thereof is
false and nothing which is relevant has been concealed.
Verified today this the 25th day ofJune, 2006 at Ernakulam.
G
...
J, Sd. Sd .
Advocate Petitioner
I, Umesh Challiyill , aged 45 years, S/o CA Krishnan,
H
466 SUPREME COURT REPORTS [2008] 3 S.C.R.
•
A Challiyill House, Arakulam West, Kodungalloor,. the petitioner
herein, do hereby declare that this is the true copy of the election
petition. Verified this the 261h day of June, 2006 at Ernakulam.
Sd Sd.
Advocate Petitioner."
B
In this affidavit instead of writing" that I believe to be true"
what has been stated , " no part thereof is false and nothing '
which is relevant has been concealed." This verification has been
found by learned Single Judge to be defective. It is true it is not
c in same words as was required in form No.7 under Rule 82 of
the Rules of High Court of Kerala, 1971 framed in exercise of
power under Article 225 of the Constitution of India. After going
through the affidavit filed by the appellant and the format of the
concluding portion of the affidavit, we fail to appreciate that in
D what way the verification can be found to be bad except that it
has not used the word, "true" it is expressed in other way, " no
part thereof is false and nothing which is relevant has been
concealed." Instead of saying, "true" it has been put up in other
way round, "no part thereof is false and nothing which is relevant
E has been concealed", which conveys the same meaning as was
used," I believe the same to be true". We fail to appreciate the
distinction between the two. But the substance and the essence
has been conveyed. Therefore, the view taken by learned Single
Judge that the verification is not in the form as required under
•
Form No.7 under Rule 82 of the Rules of the High Court of Kerala,
F
1971 and therefore, it is a major defect in the constitution of the
election petition and therefore, it should be rejected under
Section 86 of the Act of 1951, we do not agree with this
observation. What one is required to do is to make proper
verification disclosing the contents of which paragraphs are
G within his personal knowledge, and the averments in which
paragraphs are within his knowledge, information or the
information derived from other source and he believes the same
to be true. Therefore, both the phraseology convey the same
..•
meaning except that instead of using the words, " that the
H
UMESH CHALLIYIL v. K.P. RAJENDRAN 467
[A.K. MATHUR, J.]

averments in paragraphs 1,2 and 4 are within his personal A
knowledge and the averments in paragraphs 3 and 5 to 8 are
within his knowledge, information and that the averments are
. true" he has stated," no part thereof is false and nothing which
is relevant has been concealed". Practically the same sense is
conveyed and it is not such a defect which could entail dismissal B
• of the election petition .
6. Secondly, the affidavit which has been filed is required
under the proviso fo Section 83 of the Act of 1951 that in the
matter of corrupt practice , the petition shall also be
accompanied by an affidavit in the prescribed form in support C
of the allegation of such corrupt practice and the particulars
thereof. That affidavit has also been produced before us and
the contents of the affidavit read as under :
" AFFIDAVIT FILED UNDER SECTION 83 OF THE
REPRESENTATION OF THE PEOPLE ACT 1951 READ D
WITH RULE 94A OF THE CONDUCT OF ELECTION
RULES 1961
I, Umesh Challiyill, aged 45 years, S/o CA Krishnan,
Challiyil House, Arakulam West, Kodungalloor, the petitioner in E
the accompanying election petition calling in question the
election of Shri KP Rajendran (respondent in the said petition)
make solemn affirmation and say-
{a) that the statements made in paragraphs 1, 2 and 4
of the accompanying election petition about the F
commission of corrupt practice of putting up the poster
as seen in the photograph Annexure A and the
publication and distribution of Annexures C and D by
the election agent of the respondent and other agents
of the respondent containing statements of facts G
which are false and which the election agent and
other agents believed to be false or do not believe
to be true in relation to the personal character and
conduct of Shri Umesh Challiyil, the United
Democratic Front Candidate of Kodungallur H

...
468 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Assembly constituency, namely me which are
statements reasonably calculated to prejudice the
prospects of the election of the said Sri Umesh
Challiyil, namely me and the particulars of such corrupt
practice mentioned in paragraph 4 of the same
B petition falling under Section 123(4) of the
Representation of the People Act, are true to my
knowledge.
(b) That the statements made in paragraphs 3 and 5 to
8 of the accompanying election petition about the
c commission of corrupt practice of publication and
distribution of Annexure C & C in all the segments
and the areas within the Kodungallur Assembly
Constituency the particulars of which are as
mentioned in detail in paragraphs 3,5 to 8 by the
D Election agent and other agents of the respondent ;I
making statement of facts which are false and which
he and they believed to be false or do not believe to
be true in relation to the personal character and
conduct of Sri Umesh Challiyil, namely me the
E candidate of the United Democratic Front in the
Kodungallur Assembly Constituency reasonably
calculated to prejudice the prospectus of the election
of the said Sri Umesh Challiyil, namely me and
thereby a corrupt practice falling under Section
123(4) of the Representation of the People Act and
•
F
have been committed and the detailed particulars
of such practice mentioned in the aforesaid
paragraphs of the same petition are true to my
information.
G All the facts are true and correct.
Dated this the 25th day of June, 2006.
Solemnly affirmed by Shri Umesh Challiyil at
Ernakulam on this the 25th day of June, 2006.
H
UMESH CHALLIYIL v. K.P. RAJENDRAN 469
, [A.K. MATHUR, J.]
....
Sd. A
Deponent.
Before me.
Sd.
26106106 B
• '!'" Magistrate of the First Class/
Notary/ Commissioner of Oaths.
Stamp of C.A.MAHEED
ADVOCATE & NOTARY
c
D.H.ROAD ERNAKULAM
KOCHl-16."
Here also the defect as pointed out by learned Single Judge
was that the appellant had not signed and affirmed in the manner D
~-
inasmuch as there is no certification of the Notary that it was
solemnly affirmed by the appellant before him. This objection
was based on the fact that after the signature of the deponent
the only words occurring before the signature of the Notary are,
" Before me". The words, "Solemnly affirmed by Shri Umesh E
Challiyil at Ernakulam on this the 26 1h day of June, 2006."
Occurred above the signature of the deponent. Therefore, it was
contended that the affidavit does not bear the certification by
... the Notary as to the affirmation by the deponent since such
• certification ought to be by the Notary after the signature of the F
deponent. This affidavit was also found to be defective by the
learned Single Judge. But in our view, this too is a defect of very
minor nature. It may be a bona fide mistake on the part of the
deponent as well as the Notary but basically .it conveys the sense
that the affidavit has been solemnly affirmed by Umesh Challiyil G
at Ernakulam. This affirmation also does not in any way go to
the root of the matter so as to render the entire election petition
~ not properly constituted entailing the dismissal of the same. Both
the defects which have been pointed out by learned Single
Judge were too innocuous to have resulted in dismissal of the H
470 SUPREME COURT REPORTS [2008] 3 S.C.R.

A election petition on the basis of the preliminary objection. The
Courts have to view it whether the objections go to the root of
the matter or they are only cosmetic in nature. It is true that the
election petition has to be seriously construed. But that apart
the election petition should not be summarily dismissed on such
B small breaches of procedure. Section 83 itself says that the
election petition should contain material facts. Section 86 says ., •
that the High Court shall dismiss the election petition which does
not comply with the provisions of Section 81 of Section 82 or
Section 117. But not of defect of the nature as pointed out by
c the respondent would entail dismissal of the election petition.
These were the defects, even if the Court has construed them
to be of serious nature, at least notice should have been issued
to the party to rectify the same instead of resorting to dismissal
of the election petition at the outset.
D 7. Learned counsel for the respondent has tried to justify
and support the order of the learned Single Judge and submitted
that in fact these objections were raised by the respondent in
his counter and the appellant had sufficient opportunity to have
cured them and in that connection, learned counsel for the
E respondent pointed out that the election petition was presented
on 22.6.2006 and the first date of hearing was 30.8.2006. The
appellant should have cured these defects but the same was
not done. Therefore, there was no option with the learned Single
Judge but to dismiss the election petition. We fail to appreciate "
'
F this argument of learned counsel for the respondent for the simply
reason how can the appellant who bona fidelyfelt that his election
petition in all respect is complete will entail such a serious
consequence of dismissal of the election petition on such minor
omissions. In case, learned Single Judge found that the election
G petition was not in the format then after recording his finding,
learned Single Judge should have given an opportunity to the
appellant to amend or cure certain defects pointed out by the t
Court. It may be relevant to mention, these are not the grounds
mentioned in Section 86 of the Act for dismissal of election
petition. But nonetheless even if it is to entail serious
H
UMESH CHALLIYIL v. K.P. RAJENDRAN 471
...
1'
(A.K. MATHUR, J.]

consequence of dismissal of the election petition for not being A
properly constituted, then too at least the appellant should have
been given an opportunity to cure these defects and put the
election petition in proper format. But learned Single Judge in
stead of giving an opportunity has taken the easy course to
dismiss the election petition which in our opinion, was not B
.. r
,
warranted .
8. Learned counsel for the appellant has invited our
attention to various decisions of this Court in which this Court
has considered the similar effect of the case at hand. The first
is Murarka Radhey Shyam Ram Kumar v. Roop Singh c
Rathore & Ors. ([1964] 3 SCR 573). In this case with regard to
the defect in the verification, this Court observed as follows:
" We agree with the view expressed by the Election
Tribunal and we do not think that the defect in the verification
D
due to inexperience of the Oaths Commissioner is such
a fatal defect as to require the dismissal of the election
petition."
Similarly, other defects were of minor nature , like proper
copies of the election petition were not served or the election E
petition does not bear the signature at one or two places in the
election petition. This Court observed that such defects are not
so fatal which may result in dismissal of the election petition.
~
9. Similarly, in H.D.Revanna v. G.Puttaswamy Gowda &
Ors. [(1999) 2 sec 217], it was observed as follows: F
" The provisions in the Representation of the People Act,
1951 are very specific. Section 86 provides for dismissal
of an election petition in limine for non-compliance with
Sections 81, 82 and 117. Section 81 relates to the
G
presentation of an election petition. It is not the case of the
appellant that the requirements of Section 81 were not
complied with. Sections 82 and 117 are not relevant in the
instant case. Significantly, Section 86 does not refer to
Section 83 and non-compliance with Section 83 does not
H
472 SUPREME COURT REPORTS [2C08] 3 S.C.R.
•
•
A lead to dismissal under Section 86. The Supreme Court
has laid down that non-compliance with Section 83 may
lead to dismissal of the petition if the matter falls within the
Scope of Order 6 Rule 15 or Order 7 Rule 11 CPC. Defect
in verification of the election petition or the affidavit
B accompanying the election petition has been held to be
curable and not fatal"
10. In Sardar Harcharan Singh Brar v. Sukh Darshan
" .
Singh & Ors. [ (2004) 11 SCC 196], this Court held as follows:

c " In the present case, the grounds of corrupt practice and
the facts necessary to formulate a complete cause of action
had been stated. Even the particulars had been given.
However, if the Court felt that the particulars as given in
the petition were deficient in any manner the petitioner
could be directed to supply the particulars and make the
D
deficiency good. In any case, deficiency in particulars could
not have been a ground for dismissing the petition at the
threshold. Only the non-supply of particulars though ordered
by the Court could have led to either striking off of the
pleadings or refusal to try the related instances of alleged
E corrupt practice."
Similarly, their Lordships have further observed that Section
86 which contemplates dismissal of the election petition does
not cover non-compliance of Section 83 of the Act and therefore,
F consequences of Section 86 does not follow.
"•
11. As against this, learned counsel for the respondent
inviged our attention to a decision of this Court in Azhar Hussain
v. Rajiv Gandhi [ 1986 (Supp.) SCC 315]. There also this Court
held that though Section 83 is not mentioned in Section 86, but
G since the election petition could be summarily dismissed under
Order 6 Rule 16 and Order 7 Rule 11, in case of petitioner's
failure to furnish any of the material facts and particulars in t
violation of Section 83 of the Act which are essential for
disclosing the cause of action relating to conditions of corrupt
H practice. The dismissal of the election petitio~ is not on account
UMESH CHALLIYIL v. K.P. RAJENDRAN 473
[A.K. MATHUR, J.]
." of Section 83 but on account of failure of compliance of Order 6 A
Rule 16 and Order 7 Rule 11, CPC. But that is not the case
before us.
12. In Chandrakant Uttam Chodankar v. Dayanand Rayu
Mandrakar & Ors. [ (2005) 2 SCC 188], it was held that where
the defects in copies were curable/ non-vital in nature the election B
. r- petition cannot be dismissed at the threshold for non-compliance
with Section 81 (3) on the basis of such defects. In Ram Prasad
Sarma v. Mani Kumar Subba & Ors. Etc. [(2003) 1 SCC 289],
it was held that verification in support of the allegations of corrupt
practice accompanying the petition by Oath Commissioner was c
not integral part of the petition. Mere absence of the stamp and
name of Oath Commissioner in the true copy of the affidavit
would not amount to vital or material deviation from the original
nor would it mislead the returned candidate when averment was
made in the affidavit that it was being sworn in support of the D
allegations of corrupt practice and election petitioner had put
his signature thereof. Their Lordships held that in such a situation
the election petition is not liable to be dismissed at the threshold.
13. In R.PMoidutty v. PTKunju Mohammad & Anr. [
(2000) 1 SCC 481] their Lordships have expressed that heavy E
onus lies on the election petitioner seeking setting aside of the
election of a successful candidate to make out a clear case for
such relief both in the pleadings and at the trial. The mandate of

•• the people should not be interfered lightly and it emphasized
that under Section 83 of the Act ordinarily it would suffice if the F
election petition contains a concise statement of the material
facts relied on by the petitioner but in the case of corrupt practice
the election petition must set forth full particulars thereof including
as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice , the date and G
place of the commission of each such practice. An election

. petition is required to be signed and verified in the same manner
as is laid down in the Code of Civil Procedure, 1908 for the
verification of pleadings. But this case has nothing to do with
regard to the defective pleadings. This case only emphasized H
474 SUPREME COURT REPORTS !2008) 3 S. C.R.

A that the election petition should not be lightly dealt with. In this
.. .
case also objection of improper verification was pressed into
service but neither the verification in the election petition nor
the affidavit was cured and on the contrary the same was
pressed into service and pursued by the election petitioner by
8 arguing the matter before the Court. The election petitioner
persistently pursued the election petition without rectification,
therefore, this Court dismissed the petition on that ground. It -\ .
was therefore, observed as follows:
"The object of requiring verification of an election petition
c is to clearly fix the responsibility for the averments and
allegations in the petition on the person signing the
verification and, at the same time, discouraging wild and
irresponsible allegations unsupported by facts. However,
the defect of verification is not fatal to the petition, it can
D be cured. In the present case the petitioner persisted in
pursuing the petition without proper verification which the
petitioner should not have been permitted to do. Unless
the defect in verification was rectified, the petition could
not have been tried. For want of affidavit in the required
E form and also for lack of particulars, the allegations of
corrupt practice could not have been enquired into and
tried at all. In fact, the present one is a fit case where the
petition should have been rejected at the threshold for
non-compliance with the mandatory provisions of law as
F to pleadings. The affidavit filed by the petitioner in support
of the election petition as required by Rule 94-A also does
••
not satisfy the requirement of the proviso to sub-section
(1) of Section 83 of the Act and Form 25 appended to the
rules."
G In this case, the election petition was dismissed not on the
threshold but after going through the whole trial. It was observed
at paragraph 35 of the judgment as follows : ~

" 35. All the averments made in paras 1 to 17 of the
•
petition have been stated to be true to the oersonal
H
UMESH CHALLIYIL v. K.P. RAJENDRAN 475 .
[A.K. MATHUR, J.]

- ~

knowledge of the petitioner and in the next breath the very
same averments have been stated t6 be based on the
information of the petitioner and believed by him to be
A

true. The source of information is not disclosed. As
observed by the Supreme Court in F.A.Sapa v. Singora
the object of requiring verification of an election petition is 8
to clearly fix the responsibility for the averments and
.. (
allegations in the petition on the person signing the
verification and, at the same time, discouraging wild and
irresponsible allegations unsupported by facts. However,
the defect of verification is not fatal to the petition, it can c
be cured ( see Murarka Radhey Shyam Ram Kumar v.
Roop Singh Rathore andA.S.Subbaraj v. M. Muthiah ). In
the present case the defect in verification was pointed out
by raising a plea in that regard in the written statement.
The objection was pressed and pursued by arguing the
D
same before the Court. However, the petitioner persisted
;i..;
in pursuing the petition without proper verification which
the petitioner should not have been permitted to do. In our
opinion, unless the defect in verification was rectified, the
petition could not have been tried. For want of affidavit in
the required form and also for lack of particulars, the E
allegations of corrupt practice could not have been
enquired into and tried at all. In fact, the present one is a
fit case where the petition should have been rejected at
,.;.: the threshold for non-compliance with the mandatory
f
provisions of law as to pleadings." F
Therefore, this case is entirely different where trial was
gone into and it was clearly found that the verification was not in
proper form. Therefore, that evidence cannot be taken into
consideration. The petitioner even did not rectify the defect. The
G
Court found that the averments could not be looked into.
Therefore, this case is distinguishable on the facts and as
'
_J..
successive judgments which have been quoted above have
consistently taken the view that such defects cannot be taken
as a ground for dismissing the election petition and such defects
H
476 SUPREME COURT REPORTS (2008] 3 S.C.R.
•
A are curable.
•
14. However, in fairness whenever such defects are pointed
then the proper course for the Court is not to dismiss the petition
at the threshold. In order to maintain the sanctity of the election
the Court should not take such a technical attitude and dismiss
B the election petition at the threshold. On the contrary after finding
the defects, the Court should give proper opportunity to cure .., ~

the defects and in case of failure to remove/ cure the defects, it
could result into dismissal on account of Order 6 Rule 17 or
Order 7 Rule 11 CPC. Though technically it cannot be
c dismissed under Section 86 of the Act of 1951 but it can be
rejected when the election petition is not properly constituted
as required under the provisions of the CPC but in the present
case we regret to record that the defects which have been
pointed out in this election petition was purely cosmetic and it
D does not go to the root of the matter and secondly even if the
Court found them of serious nature then at least the court should
have given an opportunity to the petitioner to rectify such defects.
15. As a result of the above discussion, the view taken by
learned Single Judge of the High Court is not correct and we
E set aside the order dated 6.12.2006 passed by the learned
Singl_e Judge in E.P.No.6 of 2006 and remit this matter back to
the High Court of Kerala for proceeding with the election petition
of the appellant. There would be no order as to costs.
~

F Appeal allowed.

D.G. Appeal allowed.