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Ajay Arjun Singh v. Sharadendu Tiwari And Others
Factual and Procedural Background
General elections to the Madhya Pradesh Legislative Assembly were held in 2013. On 8 December 2013, Shri Ajay Arjun Singh (“the returned candidate”) was declared elected from the 76 Churhat Assembly Constituency. On 20 January 2014, Shri Sharadendu Tiwari (“the election petitioner”), one of the unsuccessful candidates, filed Election Petition No. 1 of 2014 in the High Court of Madhya Pradesh alleging two corrupt practices under Section 123(1) and (6) of the Representation of the People Act, 1951 (“RP Act”).
The returned candidate was served on 18 June 2014. He responded by filing I.A. No. 43 of 2014 under Order VII Rule 11 CPC seeking dismissal of the election petition for (i) absence of a proper Form 25 affidavit and (ii) failure to disclose a cause of action. The High Court dismissed that application on 25 August 2014 but, treating the affidavit-defect as curable, directed the petitioner to file a fresh Form 25 affidavit within 15 days. A review application (I.A. No. 13575 of 2015) was also dismissed on 18 March 2015.
The returned candidate challenged those two orders before the Supreme Court through SLPs Nos. 33933 of 2014 and 11096 of 2015. The election petitioner filed SLP No. 15361 of 2015 challenging certain adverse observations in the review order. During hearing, conflicting factual assertions regarding the number and adequacy of affidavits filed on 20 January 2014 emerged, prompting this Court to direct the High Court to clarify the record. By order dated 29 September 2015 the High Court clarified that two affidavits had in fact been filed on 20 January 2014 and that the affidavit at pages 394-395 complied with the proviso to Section 83(1)(c) RP Act. The returned candidate assailed that clarification in SLP No. 31051 of 2015, adding a preliminary jurisdictional objection based on the Madhya Pradesh High Court Rules, 2008.
Legal Issues Presented
- Whether, on 20 January 2014, the election petitioner filed an affidavit in Form 25 satisfying the proviso to Section 83(1)(c) of the RP Act, or whether its absence mandated rejection of the election petition under Order VII Rule 11 CPC.
- Whether the High Court’s single-judge clarification order dated 29 September 2015 was without jurisdiction in view of Rule 13(2) of the Madhya Pradesh High Court Rules, 2008.
- Whether earlier observations in the High Court’s order dated 25 August 2014 operated as res judicata or otherwise estopped the election petitioner from asserting compliance with Form 25.
Arguments of the Parties
Returned Candidate’s Arguments
- The High Court had earlier conclusively found that no Form 25 affidavit was filed; allowing a subsequent contrary finding violates finality and principles akin to res judicata.
- Compliance after limitation cannot cure the initial absence; filing an affidavit on 31 August 2014 shows that none existed on 20 January 2014.
- Absence of the Registrar’s seal and signature on pages 394-395, unlike the rest of the petition, indicates the affidavit was inserted later; the handwritten “57-A” entry in the index reinforces this inference.
- The clarification application ought to have been heard by a Division Bench under Rule 13(2) of the 2008 High Court Rules because the single judge who passed the earlier order had since retired; therefore, the clarification order is void ab initio.
Election Petitioner’s Arguments
- Two affidavits, including a Form 25 affidavit at pages 394-395, were filed with the petition on 20 January 2014; this was pleaded in reply dated 11 July 2014 and never specifically denied.
- The Registrar’s failure to sign pages 394-395 is an omission of the court; parties should not be prejudiced by such omissions (actus curiae neminem gravabit).
- Rule 13(2) of the 2008 Rules cannot override Section 80-A(2) RP Act, which entrusts election petitions to a single judge; moreover, the returned candidate never raised the Rule 13 objection before the High Court and cannot do so for the first time in the Supreme Court.
- The purported adverse finding in the 25 August 2014 order was vague, unsupported by examination of the record, and never directly in issue; in any event, as the order favoured the petitioner, there was no occasion to appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| P.A. Mohammed Riyas v. M.K. Raghavan, (2012) 5 SCC 511 | Need for separate affidavits—one under Order 6 Rule 15(4) CPC and another under the proviso to Section 83(1) | Referred as the earlier view that had required two distinct affidavits; later overruled. |
| G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 (AIR 2013 SC 1549) | Composite affidavit can satisfy both Order 6 Rule 15(4) CPC and Section 83(1) proviso | High Court had cited this case; Supreme Court noted the correct position that substantial compliance suffices. |
| State of Punjab v. Krishan Niwas, (1997) 9 SCC 31 | Principle that a party who accepted a benefit under an order cannot later challenge that order | Relied on by returned candidate; Court held the principle inapplicable because the factual issue was never decisively adjudicated. |
| Banku Chandra Bose v. Mariam Begum, 1916 SCC OnLine Cal 22 (AIR 1917 Cal 546) | Similar estoppel principle concerning benefit under an order | Same as above; Court found it irrelevant to the present controversy. |
| 2013 9 SCC 261 & 2003 9 SCC 606 (case names not given in text) | Delineation of when adverse findings may be challenged despite favourable final orders | Cited to support that non-appeal does not bar disputing a finding when relied on later. |
Court's Reasoning and Analysis
1. Jurisdiction objection under High Court Rules. Section 80-A(2) RP Act expressly vests election petitions in a single judge, with discretion left to the Chief Justice to constitute a larger bench. A High Court rule cannot curtail that statutory discretion. Consequently, Rule 13(2) of the 2008 Rules could not invalidate the single-judge clarification order; moreover, the objection was never raised below.
2. Effect of earlier High Court finding (25 August 2014). The earlier order contained only a cursory statement that no Form 25 affidavit was filed, without analysing pleadings or record. The issue of the existence of a second affidavit was neither directly raised nor decided. Therefore, principles of res judicata or estoppel did not preclude reconsideration.
3. Existence of two affidavits on 20 January 2014. The High Court, after examining its record in I.A. No. 11665 of 2015, found that two affidavits were filed on the date of presentation and that the affidavit at pages 394-395 complied with Form 25. The Supreme Court noted that:
- The returned candidate’s own pleadings (rejoinder dated 24 December 2014) acknowledged the presence of two affidavits.
- Order VII Rule 11 application complained only of defects in format, implicitly accepting contemporaneous filing.
- Absence of the Registrar’s signature on pages 394-395 was an official omission; parties should not suffer for acts of the court.
4. Consequences of filing a fresh affidavit on 31 August 2014. The election petitioner did so ex abundanti cautela, consistent with his earlier stand. Compliance with a curative direction does not bar him from asserting that the original affidavit was already on record.
5. Burden of proof. Because the returned candidate never put in issue the fact of filing on 20 January 2014, the burden never shifted to the election petitioner. The High Court’s factual findings therefore stood unassailed.
Holding and Implications
HOLDING: Civil Appeal arising out of SLP (C) No. 31051 of 2015 filed by the returned candidate is DISMISSED. Consequently, Civil Appeals arising out of SLPs (C) Nos. 33933 of 2014 and 11096 of 2015 (also filed by the returned candidate) are DISMISSED. The Civil Appeal arising out of SLP (C) No. 15361 of 2015 filed by the election petitioner is ALLOWED. No order as to costs.
Implications: The election petition will proceed on merits before the High Court without being rejected in limine. The judgment reinforces that (a) filing a compliant Form 25 affidavit is essential but factual disputes about its filing require careful judicial scrutiny; (b) procedural omissions by court officers should not prejudice litigants; and (c) High Court rules cannot override statutory provisions governing election petitions. No new substantive doctrine is created, but the decision underscores meticulous handling of election-law pleadings.
Jasti Chelameswar, J.— Leave granted. General Elections to the Legislative Assembly of Madhya Pradesh took place in the year 2013. On 8-12-2013, one Shri Ajay Arjun Singh (hereinafter referred to as “the returned candidate”) was declared elected as a Member of Legislative Assembly from 76 Churhat Assembly Constituency in the said election. On 20-1-2014, challenging the declaration of the said Ajay Arjun Singh, one of the contesting candidates Sharadendu Tiwari (hereinafter referred to as “the election petitioner”) filed Election Petition No. 1 of 2014 before the High Court of Madhya Pradesh.
2. The election of the returned candidate was challenged on the grounds that the returned candidate is guilty of commission of two corrupt practices falling under sub-sections (1) and (6) of Section 123 of the Representation of the People Act, 1951 (hereinafter referred to as “the RP Act”) i.e. (1) making appeal to the voters in the name of religion and bribery; and (2) incurring expenditure in contravention of Section 77 of the RP Act respectively.
3. Notice to the respondents in the election petition was ordered on 10-2-2014. The returned candidate was served with the said notice on 18-6-2014. Admittedly, the election petition and all the annexures thereto were served on the returned candidate on his appearance in the Court on 18-6-2014.
4. On 1-7-2014, the returned candidate filed IA No. 43 of 2014 invoking Order 7 Rule 11 CPC (hereinafter referred to as “the Order 7 Rule 11 petition”) praying that the election petition be dismissed on the ground that it does not disclose a cause of action. The said petition was dismissed by order of the High Court dated 25-8-2014 2014 SCC OnLine MP 8637. Aggrieved by the dismissal of Order 7 Rule 11 petition, the returned candidate filed an application for review (IA No. 13575 of 2015—hereinafter referred to as the “review petition”), which was also dismissed by the High Court by an order dated 18-3-2015 2015 SCC OnLine MP 4876.
5. Therefore, the returned candidate filed SLPs Nos. 33933 of 2014 and 11096 of 2015 aggrieved by the orders dated 25-8-2014 2014 SCC OnLine MP 8637 and 18-3-2015 2015 SCC OnLine MP 4876 respectively.
6. Aggrieved by certain findings recorded by the High Court (the details of which will be considered later) in the order dated 18-3-2015 2015 SCC OnLine MP 4876 in the review petition, the election petitioner preferred SLP No. 15361 of 2015.
7. To adjudicate the correctness of the various impugned orders, an examination of the issues which fell for the consideration of the High Court is required to be identified.
8. The prayer in Order 7 Rule 11 petition filed by the returned candidate is as follows:
“It is, therefore, prayed that the present election petition be dismissed.”
(i) Para 8 of Order 7 Rule 11 petition reads as follows:
“That, besides the above, affidavit sworn and filed along with the petition by the petitioner is not in conformity with Form 25 of the Conduct of Elections Rules, 1961. The name of the corrupt practice has not been specified which is required to be specifically stated in the affidavit prescribed under Form 25. The affidavit which the petitioner has filed is thus defective and, therefore, the petition deserves to be dismissed.”
(ii) Para 13 of the said petition states:
“That, for the aforesaid reasons, the present election petition is liable to be dismissed as the as do not disclose any cause of cause of action.”
Giving some allowance to the clerical errors, we presume that the returned candidate prayed that the election petition be dismissed on the ground that it does not disclose any cause of action.
9. In other words, the returned candidate prayed that the election petition be dismissed for two reasons:
(i) that the affidavit filed along with the election petition is not in conformity with Form 25 of the Conduct of Elections Rules, 1961; and
(ii) that the election petition does not disclose any cause of action.
They are two distinct grounds.
10. In response to the said application (Order 7 Rule 11 petition), the election petitioner filed a reply dated 11-7-2014. It is stated in Para 6 therein as follows:
“6. That, the third objection which Respondent 1/returned candidate has raised with respect to the non-filing of the affidavit in conformity with Form 25 of the Conduct of Elections Rules, 1961. The petitioner has filed the said affidavit along with the election petition which is attached at pp. 394 and 395 of the election petition and also found mention at Sl. No. 57-A in the index filed along with the election petition. Since the petitioner has also filed affidavit in support of the election petition and has also filed the affidavit in the prescribed format, therefore, there is no defect in this regard. Though the petitioner respectfully submits that the petition and the affidavit are in proper order but if in the opinion of the court, there is any defect, the election petitioner is willing to cure the same.”
(emphasis supplied)
11. It can be seen from the above that the election petitioner clearly mentioned about the filing of an affidavit in Form 25 which is to be found at pp. 394 and 395 of the election petition and also mentioned at Sl. No. 57-A in the index to the election petition. Though not very elegantly pleaded, the election petitioner did assert the fact that he had filed two affidavits along with the election petition.
12. It can be seen from the above that the election petitioner has also made a submission that “if in the opinion of the Court, there is any defect, the election petitioner is willing to cure the same”. Such a statement appears to have been made by way of abundant caution in a bid to save the election petition from being dismissed on the ground of non-compliance with the proviso to Section 83(1) in the event of the High Court reaching the conclusion that the affidavit filed by the election petitioner along with the election petition is not in fact compliant with the requirement of law.
13. The High Court, by its order dated 25-8-2014 2014 SCC OnLine MP 8637 while dismissing Order 7 Rule 11 petition recorded: (Sharadendu case 2014 SCC OnLine MP 8637, SCC OnLine MP para 5)
“5. … In the instant case, the petitioner has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94-A of the Conduct of Elections Rules, 1961. Since the aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25.”
The High Court further directed: (SCC OnLine MP para 6)
“6. … The petitioner is directed to file affidavit in Form 25 of the Conduct of Elections Rules, 1961 within 15 days from the date of receipt of certified copy of this order.”
Pursuant to this order, admittedly an affidavit was filed by the election petitioner on 31-8-2014.
14. To understand the controversy in these appeals, an analysis of the provisions of the RP Act is required. Section 83 of the RP Act stipulates what is required to be contained in an election petition. Section 83(1)(c) requires every election petition to be verified in the manner laid down in the Code of Civil Procedure, 1908. Order 6 Rule 15 of the Code deals with the verification of the pleadings. Sub-rule (4) stipulates that the person verifying the pleadings shall also furnish an affidavit in support of such pleadings.
15. An election petition challenging the validity of an election can be filed on any one of the various grounds specified under Section 100 of the RP Act. The commission of a corrupt practice either by the “returned candidate or his election agent or by any other person with the consent of either the returned candidate or his agent” is one of the several grounds on which the High Court can declare the result of a returned candidate to be void. The election of a returned candidate can also be set aside on the ground of the commission of corrupt practice “in the interest of the returned candidate by an agent other than his election agent” and by virtue of such corrupt practice “the result of the election, insofar as it concerns a returned candidate, has been materially affected”. In either case, in view of the stipulation contained in the proviso to Section 83(1) of the RP Act, the election petition is required to be accompanied by an affidavit in the prescribed form.
16. In exercise of the power under Section 169 of the RP Act, the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956 have been framed by the Government of India. Rule 94-A prescribes as follows:
“94-A. Form of affidavit to be filed with election petition.—The affidavit referred to in the proviso to sub-section (1) of Section 83 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form 25.”
Form 25 also indicates the layout of the affidavit. The requirement of giving such affidavit where there are allegations of commission of corrupt practice in an election petition came to be inserted in the Act by virtue of an amendment in the year 1962.
17. The question whether an election petition challenging the election of a returned candidate on the ground of corrupt practice is required to be accompanied either by one affidavit or two affidavits in view of the insertion of sub-rule (4) of Rule 15 of Order 6, fell for consideration of this Court in P.A. Mohammed Riyas v. M.K. Raghavan (2012) 5 SCC 511 and this Court held thus:
“45. … We are also unable to accept Mr Venugopal's submission that even in a case where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions.”
18. Subsequently, the same question again fell for consideration before a larger Bench of this Court in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776, AIR 2013 SC 1549. The Court disapproved the view taken in Mohammed Riyas case (2012) 5 SCC 511 and held: (G.M. Siddeshwar case (2013) 4 SCC 776, AIR 2013 SC 1549 & 789, paras 1 & 30)
“1. … The principal question of law raised for our consideration is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order 6 Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices has been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Representation of the People Act, 1951. In our opinion, there is no such mandate in the Representation of the People Act, 1951 and a reading of P.A. Mohammed Riyas v. M.K. Raghavan (2012) 5 SCC 511 which suggests to the contrary, does not lay down correct law to this limited extent.
***
30. In any event, as in the present case, the same result has been achieved by the election petitioner by filing a composite affidavit, both in support of the averments made in the election 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 affidavits is not warranted by the Act nor is it necessary, especially when a composite affidavit can achieve the desired result.”
19. The issue before this Court in this batch of appeals is whether the election petition was accompanied by an affidavit which is compliant with the requirement of statute under the proviso to Section 83(1)(c). For answering the issue, it is incidentally necessary to determine whether the election petitioner filed two affidavits along with the election petition to satisfy the requirement of the law.
20. Unfortunately, the High Court did not examine, when it passed the orders dated 25-8-2014 2014 SCC OnLine MP 8637 or 18-3-2015 2015 SCC OnLine MP 4876, the question whether there were two affidavits filed by the election petitioner along with the election petition and whether the affidavit said to have been annexed to the election petition at pp. 394-95 is compliant with the requirement of stipulations under the proviso to Section 83(1). At para 5 of the order dated 25-8-2014 2014 SCC OnLine MP 8637, the High Court recorded as follows: (Sharadendu case 2014 SCC OnLine MP 8637, SCC OnLine MP)
“5. So far as the contention with respect to verification or affidavit is concerned, it has been laid down by the Apex Court in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776, AIR 2013 SC 1549, that absolute compliance with format affidavit is not necessary. Substantial compliance with format prescribed is sufficient. In case there is any defect in affidavit or in its verification, the same is curable and the same cannot be a sufficient ground to dismiss the petition in limine. In the instant case, the petitioner has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94-A of the Conduct of Elections Rules, 1961. Since the aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25.”
(emphasis supplied)
We are sorry to note that the para commences with a clumsy statement “so far as the contention with respect to verification or affidavit” and makes an irrelevant reference to G.M. Siddeshwar case (2013) 4 SCC 776, AIR 2013 SC 1549 and ultimately records a conclusion without any discussion of the pleadings or evidence that the election petitioner has not filed an affidavit in Form 25. It was, however, ordered at para 6 of the order dated 25-8-2014 2014 SCC OnLine MP 8637: (Sharadendu case 2014 SCC OnLine MP 8637, SCC OnLine MP)
“6. … I do not find any ground for rejection of the petition in limine under Order 7 Rule 11 CPC. Accordingly, IA No. 43 of 2014, filed by Respondent 1 is hereby dismissed. The petitioner is directed to file affidavit in Form 25 of the Conduct of Elections Rules, 1961 within 15 days from the date of receipt of certified copy of this order. Respondent 1 is also directed to file written statement within two weeks from the date of receipt of certified copy of this order.”
It is a wholly unsatisfactory way of dealing with any issue in a judicial proceeding and more so with election petitions. Election petitions deal with the basic rights of the citizenry of this country. Election is a “politically sacred” event and an election dispute is too serious a matter to be dealt with casually. Therefore, Parliament thought it fit to entrust the adjudication of election disputes to the High Courts. It is unfortunate that the learned Judge chose to deal with the matter so casually. The result is that a finding that there was no affidavit in Form 25 came to be recorded without recording any finding regarding the existence or otherwise of the affidavit which is said to have been annexed in the election petition at pp. 394 and 395 nor its content. Since the interlocutory application was dismissed, the election petitioner had neither a reason nor the necessity to challenge the correctness of the findings recorded in the order as the decision is in his favour.
21. Aggrieved by the said order, the returned candidate filed the review petition seeking review of the said order. The application hinged on the finding recorded in the order dated 25-8-2014 2014 SCC OnLine MP 8637 that “the petitioner has not filed the affidavit in the prescribed Form 25”. It is, therefore, pleaded in the review petition that the direction of the High Court permitting the election petitioner to cure the defect in the affidavit filed along with the election petition is unsustainable and hence, the order dated 25-8-2014 2014 SCC OnLine MP 8637 is to be reviewed. Interestingly, in the rejoinder dated 24-12-2014 filed by the returned candidate to the reply of the election petitioner dated 8-11-2014 in the said review petition, the returned candidate stated as follows:
“4. That, the averments made in the petition were verified by the petitioner as per verification clause; submitted an affidavit in support of the petition and filed another affidavit under Form 25 at pp. 394 and 395 of the election petition and the third affidavit dated 31-8-2014 pursuant to the order of the Hon'ble Court dated 25-8-2014 2014 SCC OnLine MP 8637.”
22. It is clear from the abovementioned pleading of the returned candidate that he is clearly aware of the fact that there were two affidavits filed along with the election petition as averred by the election petitioner in his petition. The said review application was dismissed by order dated 18-3-2015 2015 SCC OnLine MP 4876. Aggrieved by the same, the returned candidate filed SLP (C) No. 11096 of 2015.
23. It is rather difficult to understand the order dated 18-3-2015 2015 SCC OnLine MP 4876. There was an unnecessary examination of various authorities of the Supreme Court without first settling the basic facts and identifying the issues. The High Court extracted the content of an affidavit which according to the election petitioner is an affidavit filed in compliance with the requirement of Section 83(1)(c) but not the affidavit in Form 25 and records a conclusion at para 6 as follows: (Sharadendu case 2015 SCC OnLine MP 4876, SCC OnLine MP)
“6. A bare reading of earlier affidavit filed by the petitioner makes it clear that the petitioner had covered all the pleadings in his affidavit and no pleading was left which was not mentioned in the affidavit but what was lacking was that the earlier affidavit was not in the prescribed Form 25 of Rule 94-A of the 1961 Rules. Certainly, there was a non-compliance with the proviso to Section 83(1) of the 1951 Act but Section 83(1) of the 1951 Act is not covered under Section 86 of the 1951 Act.”
Interestingly, at para 9, once again the High Court recorded a conclusion: (SCC OnLine MP)
“9. As mentioned hereinabove, in the instant case substantial compliance with Section 81(3) of the 1951 Act has already been done by the petitioner by filing first affidavit along with the petition but only defect was that the affidavit was not in prescribed format, therefore, at the most it was a non-compliance with Section 83(1) of the 1951 Act and same is curable.”
The cryptic conclusions recorded in the order dated 18-3-2015 2015 SCC OnLine MP 4876 only add to the existing confusion.
24. However, aggrieved by the conclusion that the affidavit was “not in the prescribed Form 25”, the election petitioner preferred SLP (C) No. 15361 of 2015 on the ground that such a conclusion came to be recorded on an erroneous identification of the affidavit. Aggrieved by the dismissal of the review petition, the returned candidate filed SLP (C) No. 11096 of 2015.
25. When the appeals were argued before this Court on 20-8-2015 SLP (C) No. 33933 of 2014, the election petitioner made a submission that two separate affidavits were filed along with the election petition and the High Court's observation (supra) is based on an erroneous identification of the affidavit. The returned candidate took a stand that there was no second affidavit as alleged by the election petitioner in compliance with the proviso to Section 83(1) of the RP Act filed along with the election petition.
26. In view of the abovementioned imprecise findings recorded by the High Court without any reference to the pleadings or evidence on record and the contradictory stands taken before this Court by the parties, this Court thought it fit to adjourn the matter in order to enable the parties to seek a clarification regarding the true state of facts whether there was one or two affidavits filed along with the election petition.
27. Pursuant to the said order, the election petitioner filed IA No. 11665 of 2015 seeking clarifications from the Madhya Pradesh High Court. The said IA was disposed of by an order dated 29-9-2015 Election Petition No. 1 of 2014. The High Court, recorded:
“37. On the basis of the aforesaid discussion, the questions posed by the Supreme Court in order dated 20-8-2015 SLP (C) No. 33933 of 2014 are answered in the following manner:
Question 1: Whether there was one affidavit or two affidavits filed along with the election petition?
Answer: Two affidavits were filed along with the election petition.
Question 2: The actual date when those affidavits were filed?
Answer: Both affidavits were filed on 20-01-2014, the date on which the election petition was filed.
Question 3: Whether either of the two affidavits is filed in compliance with the requirement of Section 83(1)(c) of the Representation of the People Act, 1951?
Answer: The affidavit at pp. 394 and 395 of the election petition is filed in compliance with the requirement of the proviso appended to Section 83(1)(c) of the Representation of the People Act, 1951.
38. IA No. 11665 of 2015 stands disposed of accordingly.”
(emphasis supplied)
28. The said order is the subject-matter of challenge in SLP (C) No. 31051 of 2015 filed by the returned candidate. Apart from the various grounds on which the correctness of the findings recorded by the High Court are challenged, the returned candidate took a preliminary objection that the order dated 29-9-2015 Election Petition No. 1 of 2014 suffers from lack of jurisdiction and therefore, it is required to be set aside on that ground alone 2008? If yes.
29. According to the returned candidate, IA No. 11665 of 2015 ought to have been heard by a Division Bench because of the stipulation contained in Rule 13(2) of the High Court of Madhya Pradesh Rules, 2008. The said Rule stipulates that any application seeking clarifications of an earlier order of the Court passed by a learned Judge, who retired thereafter, ought to be heard by a Division Bench and Justice Solanki who passed the order in Order 7 Rule 11 petition retired subsequently.
30. In response, it is submitted on behalf of the election petitioner that:
30.1. Such an objection was never raised by the returned candidate before the High Court when IA No. 11665 of 2015 was being heard and therefore now cannot be permitted to raise the same;
30.2. That, the adjudication of an election petition is governed by Section 81-A read with Section 86 of the Representation of the People Act, 1951. Non-compliance, if any, with the Rules of the High Court framed under Article 225 does not render the order one without jurisdiction;
30.3. That, IA No. 11665 of 2015 is “more about clarification of record, not clarification of order in strict sense”.
In other words, the clarification sought is not regarding either the interpretation of the earlier orders or the legal implications of the earlier orders but an enquiry into certain facts and the record of the High Court pertaining to the election petition. Therefore, Rule 13 would have no application.
30.4. That the requirement of a matter being heard by a Division Bench under Rule 13(1)(b) is limited only to the cases of review, clarification or modification of only judgments, decrees and final orders but not to the interlocutory orders such as the order of which “clarification” was sought.
31. We reject the preliminary objection raised by the returned candidate.
The reason
32. The adjudication of election petitions including the examination of all incidental questions in interlocutory proceedings arising during the course of the adjudication of the election petition is entrusted by Section 80-A of the Representation of the People Act, 1951 to the High Court within whose jurisdiction the election dispute arises. Section 80-A(2) stipulates that the jurisdiction shall be exercised ordinarily by a Single Judge who is to be designated by the Chief Justice.
(a) Though the said section indicates that the Chief Justice has a discretion to entrust trial of an election petition to a Bench consisting of more than one Judge, such a discretion is to be exercised by the Chief Justice alone.
(b) The Rules of the High Court are framed by the High Court pursuant to the power vested in it under Article 225. The exercise of such power is subject to the provisions of the Constitution and the “provisions of any law of the appropriate legislature”. Rule 13 mandates the listing of certain matters (nature of which is described therein) before a Division Bench. Such stipulation is contrary to the stipulation of Section 80-A(2) that election petitions are to be tried by a Single Judge of the High Court leaving a discretion in the Chief Justice to decide whether in a given case, an election petition shall be heard by more than one Judge. Such a statutory discretion vested in the Chief Justice of the High Court cannot be curtailed by a rule made as the High Court in view of the clear declaration by the Constitution (in the opening clause of Article 225) that “any rule shall be subject to the law made by the appropriate legislature”.
We are, therefore, of the opinion that the objection raised by the returned candidate is not tenable.
33. In view of the above conclusion, we do not wish to examine the other defences of the election petitioner in this regard.
34. We now proceed to examine the appeals on their merits. The fate of these appeals would eventually depend upon the answer to the questions: whether the election petitioner filed two affidavits on 20-1-2014 at the time of presenting the election petition, the second of which being the affidavit (at pp. 394-95) referred to at Sl. No. 57-A of the index appended to the election petition purportedly in Form 25 to satisfy the requirement of law flowing from the proviso to Section 83(1); and if such an affidavit was in fact filed on 20-1-2014 as contended by the election petitioner whether such an affidavit satisfies the prescription contained in Form 25.
35. By order dated 29-9-2015 Election Petition No. 1 of 2014 in IA No. 11665 of 2015, the High Court recorded a finding that the election petitioner filed two affidavits along with the election petition on 20-1-2014 (the date on which the election petition was presented to the High Court). The High Court also recorded a finding that the affidavit at pp. 394-95 of the election petition which finds mention at Sl. No. 57-A in the index is “in compliance with the requirement of the proviso appended to Section 83(1)(c) of the Representation of the People Act, 1951”.
36. If the abovementioned two findings are legally tenable, three appeals [arising out of SLPs (C) Nos. 33933 of 2014, 11096 of 2015 and 31051 of 2015] filed by the returned candidate are to be dismissed and the appeal (arising out of SLP No. 15361 of 2015) filed by the election petitioner would have to be allowed. Therefore, we proceed to examine the correctness of the abovementioned findings recorded by the High Court.
37. The correctness of the said findings is contested by the returned candidate on the following grounds:
37.1. That at the earliest point of time, the High Court in its order dated 25-8-2014 2014 SCC OnLine MP 8637 recorded a finding that the election petitioner did not file the affidavit in the prescribed Form 25. Therefore, the finding to the contra in the order of the High Court dated 29-9-2015 Election Petition No. 1 of 2014 is unsustainable.
37.2. In the order dated 25-8-2014 2014 SCC OnLine MP 8637, after recording a finding that the election petitioner did not file an affidavit in Form 25, the High Court recorded a further finding that such a defect is curable and, therefore, directed the election petitioner to cure the defect by filing a fresh affidavit in Form 25. The election petitioner without challenging the correctness of the finding that he failed to file an affidavit in Form 25 along with the election petition chose to comply with the consequential direction of filing a fresh affidavit. Therefore, the election petitioner is precluded from contending at a later stage that the finding recorded by the High Court in its order dated 25-8-2014 2014 SCC OnLine MP 8637 is incorrect.
37.3. Rule 6(4) of the Rules relating to election petitions in the Madhya Pradesh High Court requires:
“6. (4) the Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it.”
And the affidavit at pp. 394 and 395 of the election petition does not contain the seal and signature of the Registrar of the High Court. Whereas all the other pages of the election petition contain the seal and signature of the Registrar. The absence of the seal and the signature of the Registrar only on the affidavit at pp. 394-395 must necessarily lead to an inference that such an affidavit must have been inserted in the election petition sometime subsequent to the date of the presentation of the election petition. Such an inference would be further strengthened by the fact that in the index of the election petition, reference to the affidavit at pp. 394-395 is made at Entry No. 57-A in the index. The said entry is an addition made in handwriting in an otherwise completely typewritten index.
38. Hence, there is non-compliance with the requirement of the mandate contained in the proviso to Section 83(1) warranting the dismissal of the election petition in limine.
39. The election petitioner's response to the above submissions of the returned candidate is:
39.1. The High Court did not record any finding in its order dated 25-8-2014 2014 SCC OnLine MP 8637 regarding the existence or otherwise of the affidavit at pp. 394-95 or the content of the said affidavit in spite of the specific plea of the election petitioner. The High Court only recorded a vague finding that the election petitioner “has not filed the affidavit in the prescribed Form 25 in accordance with Rule 94-A of the Conduct of Elections Rules, 1961”. It is not clear from the said order as to which one of the two affidavits was in the mind of the High Court when it recorded such a conclusion. The High Court should have recorded a categorical finding in that regard in view of the specific pleading in the reply of the election petitioner that the election petitioner had in fact filed a separate affidavit to be found at pp. 394-95 to satisfy the requirement of law under the proviso to Section 83(1). In the absence of any such categorical finding it cannot be said that the findings recorded by the High Court in its order dated 29-9-2015 Election Petition No. 1 of 2014 are inconsistent with the earlier finding recorded in the order dated 25-8-2014 2014 SCC OnLine MP 8637.
39.2. That there was no occasion for the election petitioner to challenge the said finding as the ultimate result of the order was in his favour. It is also submitted that though the election petitioner did not challenge the finding recorded by the High Court in its order dated 25-8-2014 2014 SCC OnLine MP 8637, the election petitioner is entitled to dispute the correctness of the finding as and when such a finding is sought to be pressed into service against him.
39.3. Coming to the question of filing a fresh affidavit in obedience of the consequential direction of the High Court, the election petitioner submitted that such a course of action was pursued by him by way of abundant caution.
39.4. It is submitted by the election petitioner with regard to the absence of the signature of the Registrar on the affidavit at pp. 394-95 that though it is the duty of the Registrar of the High Court to sign on each page of the election petition and the affidavit filed along with the election petition, if the Registrar failed in his duty the election petitioner cannot be penalised by drawing an inference that the affidavit was not presented along with the election petition. In this regard, the election petitioner relied upon the well-settled principle of law that the act (which includes an omission) of the court shall not prejudice the rights of any party.
40. We reject the submissions of the returned candidate for the following reasons.
41. The first submission of the returned candidate that the subsequent and conflicting finding is not legally tenable, if at all is based on any legal principle, it is based either on the doctrine of res judicata or some principle analogous to it based on public policy that there must be finality to the judicial orders. Even if the principle of res judicata is invoked (we only presume without examining the applicability of the same), what is barred under Section 11 CPC is the adjudication of an issue which was directly and substantially in issue in a former suit between the same parties and has been heard and finally decided.
42. The question whether two affidavits were filed along with the election petition though was not directly in issue as the returned candidate never filed a rejoinder (to the reply of the election petitioner wherein it was stated that he had filed two affidavits along with the election petition). In deciding Order 7 Rule 11 petition the High Court never examined the question (it is an issue of fact) whether there were two affidavits as pleaded by the election petitioner in his reply to the said petition. We have already recorded that the order in Order 7 Rule 11 petition is too casual. It does not take note of either the facts in issue or identify the point to be decided. Any finding of fact recorded in such circumstances is required to be set aside if appealed against by the aggrieved party if such an order is an appealable order. Since the learned Judge dismissed the Order 7 Rule 11 petition, though the finding is adverse to the election petitioner, he need not have filed an appeal (2013) 9 SCC 261, (2003) 9 SCC 606.
43. Therefore, we do not see any legal principle on the basis of which the returned candidate can successfully contend that in view of the finding recorded in the order dated 25-8-2014 2014 SCC OnLine MP 8637 the High Court could not have recorded a finding in IA No. 11665 of 2015 that two affidavits were filed along with the election petition.
44. We now deal with the submission of the returned candidate regarding the absence of the seal and signature of the Registrar of the High Court on the affidavit at pp. 394-95.
44.1. The High Court in its order dated 29-9-2015 Election Petition No. 1 of 2014 in IA No. 11665 of 2015 recorded a finding:
“24. … However, the Registrar, in compliance with sub-rule (4) of Rule 8, has affixed his seal and signatures at every page of the election petition and the affidavit at pp. 70 and 71. However, no such seal or signature of the Registrar is to be found upon the affidavit at pp. 394 and 395. …”
Further, at para 25 of the order, it is recorded:
“25. In this regard, it has to be kept in mind that all official acts are presumed to be properly done. It is true that affidavit at pp. 394 and 395 does not bear the seal or signatures of the Registrar; however, it appears that it was not sealed and signed by the Registrar because it was annexed almost at the end of the petition. Since, as per rules, documents annexed to an election petition are not required to be signed and sealed by the Registrar, none of the documents filed along with the petition from Sl. No. 72 to Sl. No. 393 bears his seal and signatures. Probably, nobody pointed out to the Registrar that there is another affidavit at p. 394; therefore, it was not sealed and signed like other documents.”
44.2. At the outset, it may be mentioned that there is a typographical error in the abovementioned order. The relevant rule of the High Court dealing with the matter is Rule 6(4) but not Rule 8(4). Rule 6 reads as follows:
“Chapter VII
6. Rules relating to election petitions.—(1) Every election petition complete in all respects, shall be presented during the Court hours to the Additional Registrar or Deputy Registrar Judicial, at Jabalpur.
(2) The name of the person presenting an election petition, with a description of the capacity in which he is presenting it, the date and hour of presentation and any other particulars considered necessary shall be endorsed in the margin of first page of the petition by the Additional Registrar or Deputy Registrar under his own signature.
(3) The Additional Registrar or Deputy Registrar shall have the petition examined in order to find out that all the requirements of the Representation of the People Act, 1951, and these Rules have been complied with.
(4) The Additional Registrar or Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it.
(5) The Additional Registrar or Deputy Registrar, after examining the petition, shall record his opinion on the opening order-sheet in the following—
‘Presented on …… by …… Properly drawn up, apparently within time and properly stamped.’”
(emphasis supplied)
It can be seen from sub-rule (4) that the Registrar concerned “shall affix his full signature to every page of the petition and the affidavit accompanying it”.
44.3. The failure of the Registrar to comply with the requirement of sub-rule (4) is sought to be explained by the High Court by saying that such a lapse occurred probably because nobody pointed out to the Registrar regarding the existence of affidavit at pp. 394-95. We are of the opinion that such a conclusion is not tenable. Rule 6(4) casts a mandatory duty on the Registrar to sign on each page of the election petition and also the affidavit filed along with the election petition. Such a mandatory duty must be performed irrespective of the fact whether somebody points out to the Registrar or not regarding the existence of the affidavit.
44.4. If the existence of the second affidavit at pp. 394-95 of the election petitioner is not in dispute but the question is whether the non-compliance with the rule by the Registrar is fatal to the election petition, perhaps the answer would be that “it is not”. Because it is the settled proposition of law that the act or omission of the Court shall not harm any party.
44.5. But when the question is whether such an affidavit was filed along with the election petition on 20-1-2014, different considerations arise. The question whether the election petitioner filed the second affidavit is a pure question of fact. The burden of proving such a fact in law is on the election petitioner if such a question is really in issue. Because if he failed, the allegations of the commission of corrupt practices by the returned candidate cannot be adjudicated in the absence of an affidavit in Form 25. However, such a question was never in issue in Order 7 Rule 11 petition.
45. As already noticed at para 10 (supra) at the earliest point during the course of the proceedings of the election petition when the question arose whether an affidavit in Form 25 was filed or not, the election petitioner clearly took a stand that there was an affidavit at pp. 394 and 395. According to him, the said affidavit is in Form 25 contemplated in the proviso to Section 83(1). The returned candidate never disputed the statement (of the election petitioner) by filing a rejoinder to the abovementioned stand taken in the election petitioner's reply dated 11-7-2014 in Order 7 Rule 11 petition. The returned candidate admits that at least by 18-6-2014—the date on which he received summons, a copy of the election petition along with annexures including the affidavit at pp. 394-95 of the election petition was available on record. But his case now is that such an affidavit was not filed along with the election petition within the period of limitation, but must have been inserted in the election petition sometime in the interregnum period between 22-1-2014 (the date on which the period of limitation for filing the election petition expired) and 18-6-2014.
46. But the objection of the returned candidate in Order 7 Rule 11 petition was only that the “affidavit sworn and filed along with the petition by the petitioner is not in conformity with Form 25 of the Conduct Rules, 1961”. From the language of Order 7 Rule 11 petition, it is clear that the returned candidate's objection is only regarding the format and content of the affidavit but not regarding the date of the filing of the affidavit, on the other hand, the employment of the expression “along with” clearly indicates that the returned candidate also at that point of time accepted that the affidavit at pp. 394-95 was presented on the same date i.e. 20-1-2014. Therefore, the question of proof of the fact which was never in issue does not arise much less the question of burden of proof.
47. The fact that the election petitioner chose to file yet another affidavit pursuant to the order dated 25-8-2014 2014 SCC OnLine MP 8637 is another circumstance sought to be relied upon by the returned candidate in support of his submission that there was no second affidavit filed along with the election petition.
48. We are of the opinion that in the circumstances of the case, the inference such as the one suggested by the returned candidate cannot be drawn because the election petitioner in his reply to Order 7 Rule 11 petition (specifically stating that he had filed an affidavit in Form 25 along with the election petition) took a stand by way of abundant caution that if the court comes to a conclusion that his affidavit is found to be defective for any reason, he is willing to file further affidavit to cure the defect. Unfortunately, the High Court took a shortcut without examining the question whether the affidavit at pp. 394-95 satisfies the requirement of Form 25 and (without recording a definite finding in that regard) simply recorded a conclusion that the defect is curable and the same can be cured by filing an affidavit in Form 25.
49. Mr P.P. Rao, learned Senior Counsel submitted that the election petitioner having availed the benefit of the order in Order 7 Rule 11 petition by filing another affidavit cannot now question the correctness of the finding that he did not file an affidavit which is in compliance with the proviso to Section 83(1). In support of the said submission, Mr P.P. Rao relied on two judgments i.e. State of Punjab v. Krishan Niwas (1997) 9 SCC 31 and Banku Chandra Bose v. Mariam Begum 1916 SCC OnLine Cal 22, AIR 1917 Cal 546.
50. In our opinion, the principle laid down in the said judgments is of no relevance to the controversy on hand. The dispute on hand is regarding the existence of a fact which was never in issue in Order 7 Rule 11 petition. The returned candidate cannot shift his case from stage to stage. He cannot now be permitted to raise such a question of fact in the absence of an appropriate pleading and contend that the election petitioner is precluded from arguing that he had filed a second affidavit along with the election petition by pressing into service a rule of estoppel.
51. In view of the foregoing discussion, civil appeal arising out of SLP (Civil) No. 31051 of 2015 being without any merits is dismissed. As a consequence, civil appeals arising out of SLPs (Civil) Nos. 33933 of 2014 and 11096 of 2015 are also required to be dismissed and they are accordingly dismissed.
52. Coming to the civil appeal arising out of SLP (Civil) No. 15361 of 2015, the same is required to be allowed in view of the findings recorded by the High Court in IA No. 11665 of 2015 which has become final by virtue of dismissal of civil appeal arising out of SLP (Civil) No. 31051 of 2015. The same is accordingly allowed.
53. In the facts and circumstances of the case, there will be no order as to costs.
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