G.S Solanki, J.:— This order shall govern disposal of I.A No. 43/2014, which is an application filed by respondent No. 1 under Order 7 Rule 11 of the CPC for rejection of the election petition.
2. This application has been filed by respondent No. 1 on the ground that firstly the petition does not disclose any cause of action because the petitioner has only pleaded that respondent No. 1 has not maintained the correct account of all expenditure of the election but he has not pleaded what are the excess expenditures, therefore, on the basis of aforesaid pleadings, no cause of action arose against respondent No. 1. The second ground has been raised in regard to verification of the petition as the affidavit filed in support of the petition is not in conformity with Form 25 of the Conduct of Election Rules, therefore, it is prayed that the instant election petition is liable to be rejected at threshold under Order 7 Rule 11 of the CPC. Respondent No. 1 has placed reliance on a decision of Apex Court in L.R Shivaramagowda v. T.M Chandrashekar (Dead) by LRs - (1999) 1 SCC 666.
3. The petitioner in the reply has denied the contentions raised by respondent No. 1 and it is submitted that there are specific pleadings in regard to maintaining separate account as well as the expenditure exceeded the prescribed limit. Further, if there is any defect in the verification or in the affidavit, same is curable and petitioner is ready to file affidavit in the prescribed Form 25 of the Conduct of Election Rules, 1961, however, only on the aforesaid ground, the petition cannot be dismissed at threshold under Order 7 Rule 11 of the CPC.
4. I have heard the learned counsel for the parties at length and gone through the pleadings made in Paragraph 11 to 18 and item numbers 5, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 21 and 22 of Paragraph 15 of the election petition. All these pleadings are in regard to the material used by respondent no. 1 in his election campaign but same has not been declares as his expenditure. It has also been pleaded that some other items which have been declared but same are undervalued. It further reveals that the petitioner has not only pleaded the case in regard to keeping the separate account but at the same time he has also pleaded that how respondent No. 1 has exceeded the expenditure. In these circumstances, the principles laid down by the Apex Court in L.R Shivaramagowda v. T.M Chandrashekar (Dead) by LRs (supra) are not applicable in the instant case. In the aforesaid case, there was no specific pleading in regard to the fact that how the expenditure has exceeded the prescribed limit. There was no pleading in regard to Section 77(3) of the Representation of People Act, therefore, the case was not covered under Section 123(6) of the Representation of People Act.
5. So far as the contention with respect to verification or affidavit is concerned, it has been laid down by the Apex Court G.M Siddeshwar v. Prasanna Kumar - AIR 2013 SC 1549 that absolute compliance of 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 Election Rules, 1961. Since the aforesaid defect is curable, same can be cured by filing affidavit in the prescribed Form 25.
6. In view of the aforesaid discussion, in my opinion, the petition discloses sufficient cause of action in regard to corrupt practice and defect of affidavit is curable, therefore, I do not fine any ground for rejection of the petition in limine under Order 7 Rule 11 of the CPC. Accordingly, I.A No. 43/2014 filed by respondent No. 1 is hereby dismissed. The petitioner is directed to file affidavit in Form 25 of the Conduct of Election Rules, 1961 within 15 days from the date of receipt of certified copy of this order. Respondent No. 1 is also directed to file written statement within two weeks from the date of receipt of certified copy of this order.
7. List on 11.9.2014