Vague,cryptic and casual order in former proceeding containing finding that was neither directly in issue not properly examined can not amount to Res Judicata.
We reject submissions of the RETURNED CANDIDATE for
the following reasons:
(i) The 1st 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 of 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.
(ii) 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 alongwith the
election petition). In deciding the OR VII R 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 OR
VII R 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
OR VII R 11 petition though the finding is adverse to the
ELECTION PETITIONER, he need not have filed an
appeal Hardevinder Singh v. Paramjit Singh,
(2013) 9 SCC 261, para 21 at page 268:
(iii) 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 25.08.2014 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.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2697 OF 2016
(Arising out of SLP (Civil) No.33933 of 2014)
Ajay Arjun Singh
Versus
Sharadendu Tiwari & Others
Dated:March 15, 2016.
Citation:(2016) 6 SCC 576
2. 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 20th January, 2014, challenging the declaration
of said Ajay Arjun Singh, one of the contesting candidates
Sharadendu Tiwari (hereinafter referred to as ‘the ELECTION
PETITIONER’) filed an Election Petition No.1 of 2014 before the
High Court of Madhya Pradesh.
3. 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.
4. Notice to the respondents in the Election Petition was
ordered on 10th February, 2014. The RETURNED CANDIDATE
was served1
with the said notice on 18.6.2014. Admittedly,
the election petition and all the annexures thereto were served
1
Admittedly the RETURNED CANDIDATE could not be served with the summons in the normal course
by the High Court. He appeared in the High Court (admittedly) pursuant to the substituted service (paper
publication). The RETURNED CANDIDATE has an explanation for the same. The truth of the
explanation is not in issue.
on the RETURNED CANDIDATE on his appearance in the
Court on 18.6.2014.
5. On 1st July, 2014, the RETURNED CANDIDATE filed I.A.
No.43 of 2014 invoking Order VII Rule 11 of CPC (hereinafter
referred to as “OR VII R 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. Aggrieved by the dismissal of
OR VII R 11 petition, the RETURNED CANDIDATE filed an
application for review (I.A. No.13575/2015 – hereinafter
referred to as the “Review Petition”), which was also dismissed
by the High Court by an order dated 18.3.2015.
6. Therefore, the RETURNED CANDIDATE filed SLPs
No.33933/2014 and 11096/2015 aggrieved by orders dated
25.8.2014 and 18.3.2015 respectively.
7. Aggrieved by certain findings recorded by the High Court
(the details of which will be considered later) in the order dated
18.3.2015 in the Review Petition, the ELECTION PETITIONER
preferred SLP No.15361/2015.
8. 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.
9. The prayer in the OR VII R 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 the OR VII R 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 Election 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
No.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.
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 Election 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 (OR VII R 11 petition),
the ELECTION PETITIONER filed a reply dated 11.07.2014. It
is stated in para 6 therein as follows:
“6. That, the third objection which respondent
no.1/returned candidate has raised with respect to the non
filing of the affidavit inconformity of the Form 25 of the
Conduct of Election Rules, 1961. The petitioner has filed
the said affidavit along with the election petition which
is attached at page no.394 and 395 of the election
petition and also found mention at serial 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 prescribed format,
therefore, there is no defect in this regard. Though, the
petitioner respectfully submits that the petition and the
affidavit is in proper order but if in the opinion of the court if
there is any defect, the election petitioner is willing to cure
the same.”
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 page nos.394 and 395 of
the election petition and also mentioned at serial 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 petition2
.
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 if 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 while
dismissing OR VII R 11 petition recorded:
“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 aforesaid defect is curable, same can be cured
by filing affidavit in the prescribed Form 25.”
The High Court further directed:
2
Para 6 of reply to the IA No.43 of 2014
“… Since the petitioner has also filed affidavit in support of the election petition and has also filed
an affidavit in the prescribed format, therefore, there is no defect in this regard….”
“the petitioner is directed to file an affidavit in Form 25 within 15 days
from the date of receipt of certified copy of the order.”
Pursuant to this order, admittedly an affidavit was filed by the
ELECTION PETITIONER on 31.08.2014.
14. To understand the controversy in these appeals, an
analysis of the provisions of the RP Act is required. Section
833
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 VI Rule 15 of the Code deals
3
“Section 83. Contents of petition.—(1) An election petition—
(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 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
(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 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 as the petition.
with the verification of the pleadings4
. Sub-rule 45
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
4
Order VI Rule 15. Verification of pleadings.— (1) Save as otherwise provided by any law for the time
being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or
by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the
pleading, what he verifies of his own knowledge and what he verifies upon information received and
believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which
and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his
pleadings.
5
Sub-rule (4) came to be inserted to the Code by Act 46 of 1999
8Page 9
candidate, has been materially affected”. In either case, in
view of the stipulation contained in proviso to Section 83(1) 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 94A prescribes as follows:
“Rule 94A. Form of affidavit to be filed with election
petition.— The affidavit referred to in the proviso to subsection
(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 clause (4) of Rule 15
of Order VI, fell for consideration of this Court in P.A.
Mohammed Riyas v. M.K. Raghavan & Others, (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. The
court disapproved the view taken in Mohammed Riyas case
and held:
“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 have 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 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 25.08.2014 or 18.03.2015, 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 page nos.394-395 is compliant with the
requirement of stipulations under proviso to Section 83(1). At
para 5 of the order dated 25.08.2014, the High Court recorded
as follows:
“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.”
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 the G.M.
Siddeshwar case (supra) 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
25.08.2014:
“I do not find 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 the 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 the 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.”
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, the 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 the Form No.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 page nos.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
25.08.2014 that “the petitioner has not filed the affidavit in
the prescribed Form No.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 25.08.2014 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:
“Para 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 pages 394 and 395 of the Election
Petition and the third affidavit dated 31.8.2014 pursuant to
order of the Hon’ble Court dated 25.8.2014.”
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 18.03.2015. Aggrieved by the same, the RETURNED
CANDIDATE filed SLP No.11096 of 2015.
23. It is rather difficult to understand the order dated
18.03.2015. 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:
“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.”
Interestingly, at para 9, once again the High Court recorded a
conclusion:
“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. ...”
The cryptic conclusions recorded in the order dated
18.03.2015 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 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
No.11096 of 2015.
25. When the appeals were argued before this Court on
20.08.2015, the ELECTION PETITIONER made a submission
that two separate affidavits were filed along with the election
petition and the High Court’s observation (supra) are based on
an erroneous identification of the affidavit. The RETURNED
CANDIDATE took a stand that there was no 2nd 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
“The matters were argued at some length before us. Learned counsel appearing for the RETURNED
CANDIDATE has proceeded on the basis that there is no affidavit at all as required under Section 83(1)(c)
of the Act whereas it is pointed out by learned counsel on behalf of ELECTION PETITIONER that as a
matter of fact two separate affidavits were filed along with the election petition. The first being an affidavit
in compliance of requirement of the provisions under Order VI Rule 15(4) of Civil Procedure Code and the
second an affidavit in compliance with requirement of Section 83(1)(c) of the Act. Xerox copies of both the
affidavits are available on record here.
The question whether there was one affidavit or two affidavits filed along with the election
petition as mentioned above, the actual date when those affidavits were filed, whether either of the two
affidavits is filed in compliance with the requirement of Section 83(1)(c) of the Act or not are matters for
examination of the High Court. The High Court is required to record definite findings in the event there is
any dispute with respect to the questions mentioned above. Unfortunately, the orders of the High Court are
27. Pursuant to the said order, the ELECTION PETITIONER
filed I.A. No.11665/2015 seeking clarifications from the
Madhya Pradesh High Court. The said I.A. was disposed of by
an order dated 29.9.20157
.
The High Court, recorded;
“37. On the basis of aforesaid discussion, the questions posed by the
Supreme Court in order dated 20-08-2015, are answered in the following
manner:
Question No. 1: Whether there was one affidavit or two affidavits
filed along with the election petition?
Answer: Two affidavits were filed along with election petition.
Question No. 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 No. 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 page nos. 394 & 395 of the election petition
is filed in compliance with the requirement of proviso appended to section
83(1)(c) of the Representation of People Act, 1951.
38. I.A. No. 11665/2015 stands disposed of accordingly.”
28. The said order is the subject matter of challenge in SLP
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
cryptic and the findings recorded by the High Court (extracted earlier in this order) are not clear with
regard to the above mentioned questions.”
7Challenging the correctness of the said order, SLP 31051/2015 is filed by the RETURNED CANDIDATE.
RETURNED CANDIDATE took a preliminary objection that the
order dated 29.9.2015 suffers from lack of jurisdiction and
therefore, it is required to be set aside on that ground alone8
.
29. According to the RETURNED CANDIDATE, I.A. 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 Bench9
and Justice Solanki who
passed the order in the OR VII R 11 petition retired
subsequently.
8
See Ground No.8 of SLP (C) No.31051 of 2015
“Whether the impugned order has been passed in violation of the provisions of Chapter IV Rule
13 of the Madhya Pradesh High Court Rules, 2008? If yes, whether the impugned order is liable to be
set aside on the ground alone?”
9
The relevant portion of Rule 13 reads as follows:-
“13. (1)(a) Save as provided in sub-rule (2), an application for review, clarification or
modification of a judgment, decree or final order, passed by a Judge or Judges shall be heard by the same
Judge or Judges:
Provided that such application filed in respect of an interlocutory order in a pending case shall be
posted before the regular bench.
(b) An application for review, clarification or modification of a judgment, decree or final
order, passed by a Judge or Judges who or one or more of whom is or are –
(i) temporarily unavailable and in the opinion of the Chief Justice, the application, looking
to the urgency of the matter, cannot wait for such Judge or Judges to resume work or,
(ii) permanently unavailable,
shall be heard
(1) if the decree or order, review of which is applied for, was passed by a Judge sitting alone,
by the regular division bench.”
30. In response, it is submitted on behalf of the ELECTION
PETITIONER that:
i) such an objection was never raised by the
RETURNED CANDIDATE before the High
Court when I.A. No.11665 of 2015 was being
heard and therefore now cannot be permitted
to raise the same;
ii) that, the adjudication of an election petition is
governed by Section 81A read with Section 86
of the Representation of the Peoples 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;
iii) that, I.A. 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.
(iv) 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:
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 80A of the
Representation of People Act, 1951 to the High Court
within whose jurisdiction the election dispute arises.
Section 80A(2) stipulates that the jurisdiction shall be
exercised ordinarily by a Single Judge who is to be
designated by the Chief Justice10
.
(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 judges, 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 22511. 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
10 Sec. 80A(2) – Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the
Chief Justice, shall, from time to time, assign one or more Judges for that purpose.
Provided that where the High Court consists only of one Judge, he shall try all election
petitions presented to that Court.
11Article 225. Jurisdiction of existing High Courts.—Subject to the provisions of this Constitution and
to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that
Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court,
and the respective powers of the Judges thereof in relation to the administration of justice in the Court,
including any power to make rules of Court and to regulate the sittings of the Court and of members thereof
sitting alone or in Division Courts, shall be the same as immediately before the commencement of this
Constitution:
Provided that any restriction to which the exercise of original jurisdiction by any of the
High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the
collection thereof was subject immediately before the commencement of this Constitution shall no longer
apply to the exercise of such jurisdiction.
a Division Bench. Such stipulation is contrary to
the stipulation of Section 80A(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.
In view of the above conclusion, we do not wish to
examine the other defences of the ELECTION
PETITIONER in this regard.
32. 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 20.01.2014 at the time of presenting
the election petition, the second of which being the
affidavit (at page nos.394-395) referred to at Serial
No.57A 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 20.01.2014 as contended by the ELECTION
PETITIONER whether such an affidavit satisfies the
prescription contained in Form 25.
33. By order dated 29.09.2015 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 20.01.2014 (the date on which the election petition was
presented to the High Court). The High Court also recorded a
finding that the affidavit at page nos.394-395 of the election
petition which finds mention at Sr. No.57A in the index is “in
compliance with the requirement of proviso appended to
section 83(1)(c) of the Representation of People Act, 1951”.
34. If the abovementioned two findings are legally tenable,
three appeals (arising out of SLP 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.
35. The correctness of the said findings is contested by the
RETURNED CANDIDATE on the following grounds:
I. That at the earliest point of time, the High
Court in its order dated 25.08.2014 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 29.09.2015 is
unsustainable.
II. In the order dated 25.08.2014, 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 afresh
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 25.08.2014 is
incorrect.
III. Rule 6(4) of the Rules relating to election
petitions in the Madhya Pradesh High Court
requires:
“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 page nos.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 page nos.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 page
nos.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.
Hence there is non-compliance with the
requirement of the mandate contained in proviso to
Section 83(1) warranting the dismissal of the election
petition in limine.
36. The ELECTION PETITIONER’s response to the above
submissions of the RETURNED CANDIDATE is:
(i) the High Court did not record any finding in its order
dated 25.08.2014 regarding the existence or otherwise of
the affidavit at page nos.394-395 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 94A of the Conduct of Election 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 categoric 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 page nos.394-395
to satisfy the requirement of law under the proviso to
Section 83(1)12. In the absence of any such categoric
finding it cannot be said that the findings recorded by the
12 Exact content of reply of the ELECTION PETITIONER in this regard is also extracted at para 10 supra.
High Court in its order dated 29.09.2015 are inconsistent
with the earlier finding recorded in the order dated
25.08.2014.
(ii) 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 25.08.2014, 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.
(iii) 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.
(iv) It is submitted by the ELECTION PETITIONER with
regard to the absence of the signature of the Registrar on
the affidavit at page nos.394-395 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
alongwith the election petition, if the Registrar failed in
his duty the ELECTION PETITIONER cannot be penalized
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.
37. We reject submissions of the RETURNED CANDIDATE for
the following reasons:
(i) The 1st 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 of 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.
(ii) 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 alongwith the
election petition). In deciding the OR VII R 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 OR
VII R 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
OR VII R 11 petition though the finding is adverse to the
ELECTION PETITIONER, he need not have filed an
appeal Hardevinder Singh v. Paramjit Singh,
(2013) 9 SCC 261, para 21 at page 268:
(iii) 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 25.08.2014 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.
(iii) 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 page nos.394-395.
a) The High Court in its order dated 29.9.2015 in I.A.
No.11665 of 2015 recorded a finding:
21. After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it
permissible to file a cross-objection against a finding. The difference is basically that a respondent may
defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour,
but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In
Banarsi v. Ram Phal, (2003) 9 SCC 606, it has been observed that the amendment inserted in 1976 is
clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree
which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a
situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take
cross-objection against that part of the decree which is against him if he seeks to get rid of the same though
he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In
respect of two other categories which deal with a decree entirely in favour of the respondent though an
issue had been decided against him or a decree entirely in favour of the respondent where all the issues
had been answered in his favour but there is a finding in the judgment which goes against him, in the
pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the
decree. But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not
necessary for the respondent to take any cross-objection laying challenge to any finding adverse to
him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It
gives him the right to take cross-objection to a finding recorded against him either while answering an issue
or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands
withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be
adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.
“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 page no.70 and 71. However, no such
seal or signature of the Registrar is to be found upon
the affidavit at page nos.394 & 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 page nos.394 & 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 serial No.72 to Serial
No.393 bears his seal and signatures. Probably,
nobody pointed out to the Registrar that there is
another affidavit at page no.394; therefore, it was not
sealed and signed like other documents.”
b) 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 8(4). Rule 6 reads as follows:
“Chapter VII
Rules Relating to Election Petitions
Rule 6 (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.”
It can be seen from sub-rule (4) that the concerned
Registrar “shall affix his full signature to every page of
the petition and the affidavit accompanying it”.
c) 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 page nos.394-395.
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.
d) If the existence of the 2nd affidavit at page nos.394-
395 of the ELECTION PETITIONER is not in dispute but
the question is whether the non-compliance of 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.
e) But when the question is whether such an affidavit
was filed along with the election petition on 20.01.2014,
different considerations arise. The question whether the
ELECTION PETITIONER filed the 2nd 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 OR VII R 11 petition.
38. 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 page nos.394 and 395.
According to him, the said affidavit is in Form 25
contemplated in proviso to Section 83(1). The RETURNED
CANDIDATE never disputed the statement (of the ELECTION
PETITIONER) by filing a Rejoinder to the above-mentioned
stand taken in the ELECTION PETITIONER’s reply dated
11.7.2014 in the OR VII R 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 page nos.394-
395 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.
39. But the objection of the RETURNED CANDIDATE in OR
VII R 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 OR VII R 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 page nos.394-395 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.
40. The fact that the ELECTION PETITIONER chose to file yet
another affidavit pursuant to the order dated 25.8.2014 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.
41. 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 the OR VII R 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 page nos.394-
395 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 the Form 25”.
42. Mr. P.P. Rao, learned senior counsel submitted that the
ELECTION PETITIONER having availed the benefit of the order
in OR VII R 11 petition by filing another affidavit cannot now
question the correctness of the finding that he did not file an
37Page 38
affidavit which is compliance with proviso to Section 83(1). In
support of the said submission, Mr. P.P. Rao relied on two
judgments i.e. State of Punjab & Others v. Krishan Niwas,
(1997) 9 SCC 31 and Banku Chandra Bose & Another v.
Marium Begum & Another, AIR 1917 Cal. 546.
43. 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 OR VII R 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 2nd affidavit along with the election petition by pressing
into service a rule of estoppel.
44. 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 SLP
(Civil) Nos.33933 of 2014 and 11096 of 2015 are also required
to be dismissed and they are accordingly dismissed.
45. 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 I.A. 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.
46. In the facts and circumstances of the case, there will be
no order as to costs.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Abhay Manohar Sapre)
New Delhi;
March 15, 2016.
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