Can't Cure Defect Of Non-Filing Of An Affidavit Supporting Election Plea At Filing Stage By Filing A Subsequent Affidavit: Allahabad HC

The Allahabad High Court has observed that the defect of non-filing an affidavit in support of an election petition at the stage of filing of an election petition cannot be cured by way of filing the subsequent affidavit. The bench of Justice Saurabh Shyam Shamshery observed thus while confirming an order of an election tribunal that rejected an election petition filed under Section 12-C of U.P. Panchayat Raj Act, 1947 on the ground of non-filing of the affidavit. The Court concluded that the Election Tribunal had rightly rejected the election petition at a preliminary stage for the non-compliance of a mandatory requirement of filing an affidavit under Order 6 Rule 15(4) CPC. Here it may be noted that the abovementioned provision states that the person verifying the pleading shall have to furnish an affidavit in support of his pleadings. The case in brief Essentially, an Election Petitioner, who was a runner-up in the Pradhani election filed an election plea (without any affidavit) challenging the election of the candidate who won y 16 votes and thus, was elected as a Pradhan. The said election plea was rejected by the tribunal by allowing the preliminary objection raised by the petitioner (elected pradhan) that the election petition was not accompanied by an affidavit, which was a mandatory requirement under Order 6 Rule 15(4) CPC. Being aggrieved, the election petitioner filed a Civil Revision which was allowed by the Additional District Judge, Court No. 1, Agra with the observation that the Election Tribunal had not taken note of the affidavit of the election petitioner filed subsequently duly affirming the contents of the election petition. Consequently, the order impugned therein was set aside and the election petition was restored for hearing. Now, challenging that very order, the petitioner moved the High Court. The petitioner argued that at the first instance, the election petition was filed without any affidavit in its support and it being a non-curable defect, could not be cured by way of filing a subsequent affidavit. On the other hand, the counsel for the election petitioner argued that since he had filed a subsequent affidavit, thus, the election plea was maintainable. Court’s observations Having heard the arguments of the counsels, at the outset, the Court noted that a challenge to an election of a returned candidate is a serious affair wherein the election petitioner has to set up a case to set aside the election on legal grounds and for that purpose, pleadings play an important role. The Court further observed that though no specific format is prescribed for election petition under Act, 1947 as well as Rules framed thereunder, however, principle and procedure prescribed under the Code of Civil Procedure has to be followed and every pleading including an election petition has to be affirmed by an affidavit of election petitioner. The Court added that in this regard a specific provision was inserted by Act 46 of 1999 w.e.f. 01.07.2002 under Order 6 Rule 15 (4) that “the person verifying the pleading shall also furnish an affidavit in support of his pleadings.” The Court further relied upon the Bombay High Court’s ruling in the case of Ashok Tapiram Patil alias A. T. Nana Patil vs. Gurumukh Mehrumal Jagwani and others, (2006) 6 BomCR 832, wherein it was held that the election petition must be accompanied by an affidavit in support of pleadings of the election petition. Consequently, finding the approach of the election tribunal in rejecting the election plea as appropriate, the Court set aside the order of the Additional District Judge, Court No. 1, Agra, and affirmed the Election Tribunal’s order Appearances Counsel for Petitioner: Kshitij Shailendra, Sandeep Kumar Counsel for Respondent: C.S.C., Ajay Dubey, Kamini Pandey (Dubey) Case Title – Lokendra Singh vs. State Of U.P. And 2 Others [WRIT - C No. - 39558 of 2022] Case Citation: 2023 LiveLaw (AB) 38 Click Here To Read/Download Order

Can't Cure Defect Of Non-Filing Of An Affidavit Supporting Election Plea At Filing Stage By Filing A Subsequent Affidavit: Allahabad HC

Sparsh Upadhyay

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