G.S Solanki, J.:— This order shall govern disposal of I.A No. 13575/2014, which is an application filed by respondent No. 1 for review of order dated 25.8.2014 passed by this Court.
2. It is not in dispute that an application I.A No. 43/2014 was filed by respondent No. 1 under Order 7 Rule 11 of the CPC for rejection of the election petition, which has been dismissed by this Court vide order dated 25.8.2014 Respondent No. 1 by way of filing the instant application has sought review of order dated 25.8.2014 on the ground that the said order suffers from error apparent on the face of record and is liable to be reviewed/recalled. It is submitted that this Court has already held in the order under review that there is a defect in the affidavit filed along with the election petition. It is further submitted that the election petition pertains to allegation of corrupt practice, however, this Court was of the view that such defects in affidavit are curable. It is further submitted that when in an election petition, the allegation of corrupt practice is involved and relief is sought on the ground of corrupt practice, then the requirement of affidavit is mandatory requirement of law under the provision of Section 83(1) of the Representation of the People Act, 1951 (hereinafter referred to as the Act of 1951). In such cases, the affidavit is an integral part of the election petition and the Court has no power to direct the petitioner to file an affidavit to cure the defect of previous affidavit. Since the aforesaid position of law has not been considered by this Court, it amounts to an error apparent on the face of record which goes to the root of the matter, therefore, the order dated 25.8.2014 deserves to be reviewed/recalled in the interest of justice and the instant election petition be dismissed for non-compliance of mandatory provision of Section 83 read with Section 86 of the Act of 1951.
3. In the reply, the petitioner has submitted that it is a settled principle of law that scope of review of an order is limited and it cannot be exercised in the manner of appeal against the order. It is further submitted that non-compliance of proviso to Section 83(1) of the Act of 1951 does not attract the order of dismissal of an election petition in terms of Section 86 of the Act of 1951, therefore, the view taken by this Court in the order dated 25.8.2014 is perfectly in tune with the legal position settled by the Apex Court and does not require any interference by exercising the review jurisdiction, therefore, the application is liable to be dismissed.
4. I have heard the learned counsel for the parties at length, gone through the order dated 25.8.2014, I.A No. 43/2014 and reply thereof. Respondent No. 1 had made an objection in regard to the affidavit that same was not in conformity with Form No. 25 of the Conduct of Election Rules, 1961 (hereinafter referred to as the Act of 1961). It was further pleaded that the name of corrupt practice was not specified, which is required to be specifically stated in the affidavit prescribed under Form 25. Certainly, at that time it was not pleaded on behalf of respondent No. 1 that there was no specific compliance of mandatory provision of law like proviso to Sub-section (1) of Section 83 of the Act of 1951. On a bare perusal of order dated 25.8.2014, it reveals that considering the defect of not filing the affidavit in Form No. 25 in accordance with Rule 94-A of the Rules of 1961, this Court after placing the reliance on the decision of the Apex Court in G.M Siddeshwar v. Prasanna Kumar . - AIR 2013 SC 1549 has observed that the defect is curable and same can be cured by filing the affidavit in the prescribed Form No. 25 and the petitioner was directed to file the affidavit in Form No. 25 of the Rules of 1961.
5. The petitioner had sworn the earlier affidavit to the following effect:-
2. That the contents of the petition from Paragraph No. 1, 2 and 10 to 12, 15 to 20 are true to my personal knowledge and are true to my belief, the contents of Para Nos. 3, 4, 6 to 9 and 13 are true and correct as per my information and as per the information derived from the records of the District Election Office, Sidhi and the office of Returning Officer, 76 - Churhat Constituency and the contents of Para 5, 21 to 24 are based on legal advice of counsel and are believed to be true. The averments made in Paragraphs 14, 14A to 14P are true and correct as per my knowledge and belief.…………….
3. That the Annexure Nos. P-1 to P-5 & P-39, P-41 to P-47 and P-50, 52 to the accompanying election petition are true copies of original obtained from office of Returning Officer and District Election Officer and Annexure Nos. P-6 to P-38 and P-40, P-48, P-49, P-51, P-53 to P-55 are original and photograph of original and are true and correct copies of its respective original……………..
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 No. 25 of the Rule 94-A of the Rules of 1961. Certainly, there was a non-compliance of proviso to Section 83(1) of the Act of 1951 but Section 83(1) of the Act of 1951 is not covered under Section 86 of the Act of 1951.
7. In G.M Siddeshwar v. Prasanna Kumar . (supra) a composite affidavit was filed along with the election petition and, therefore, it was observed that there is no need for second or additional affidavit in terms of Order 6 Rule 15(4) of the CPC. In the instant case the affidavit was filed by the petitioner but same was not in Form 25 prescribed under Rule 94-A of the Conduct of Election Rules, 1961, therefore, the petitioner was directed to file affidavit in the prescribed form.
8. Learned Counsel appearing on behalf of respondent No. 1 have submitted that the defect of affidavit in the instant case is not curable, therefore, the Court has no power to direct the petitioner to cure the defect after expiry of period of the limitation. He has placed reliance on a decision of Apex Court in T.M Jacob v. C. Poulose - (1999) 4 SCC 274.
9. As mentioned hereinabove, in the instant case substantial compliance of Section 81(3) of the Act of 1951 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 of Section 83(1) of the Act of 1951 and same is curable. This question has been elaborately considered by the Apex Court in T.M Jacob v. C. Poulose (supra) wherein it has been observed by the Apex Court that where copy of affidavit filed by the election petition in support of allegations of corrupt practice made in the petition contained endorsement that the affidavit had been duly signed, verified and affirmed by the petitioner before a Notary and the Notary had also signed below the endorsement but name, address and stamp and seal of the Notary was missing in the copy of the affidavit, there was substantial compliance with requirements of S.81(3) r/w S. 83(1)(c) and the defect contained in the copy was not vital and had not misled the returned candidate or prejudiced him in formulating his defect so as to attract S. 86.
10. Learned Senior Counsel appearing on behalf of respondent No. 1 has submitted that it is apparent on the face of record that there is an error which is based on clear ignorance or disregard of provision of law, therefore, same can be cured by this Court under the revisional jurisdiction of the Court. He has placed reliance on the decision of the Apex Court in Lily Thomas v. Union of India - (2000) 6 SCC 224.
11. On the contrary, learned Senior Counsel appearing for the petitioner has submitted that the impugned order has been passed after considering the reply of respondent No. 1 and the relevant authorities cited by both the parties, therefore, there is no error apparent on the face of record. He has placed reliance on the decision of the Apex Court in Union of India v. Sandur Manganese and Iron Ores Limited - (2013) 8 SCC 337.
12. I have gone the impugned order dated 25.8.2014, same has been passed after considering the rival contentions of the parties and the authorities cited by both the parties. It is not a case of error apparent on the fact of record. In these circumstances, I do not find any ground to review/recall the order dated 25.8.2014
13. Consequently, I.A No. 13575/2014 is hereby dismissed.
14. List for settlement of issues on 20.4.2015