Defective Affidavit Not A Ground To Reject Election Petition At Threshold; It Is A Curable Defect: Uttarakhand High Court

"The requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory. It is sufficient if there is substantial compliance. As the defect is curable, an opportunity may be granted to file the necessary affidavit," Uttarakhand High Court, in a significant ruling, held that an election petition cannot be summarily dismissed at the threshold merely because the supporting affidavit is not in the prescribed format.

A single bench of Justice Manoj Kumar Tiwari observed that non-compliance with the format of an affidavit as per Rule 94A of the Conduct of Elections Rules, 1961, is a curable defect and does not warrant the rejection of the petition under Order 7 Rule 11 of the Code of Civil Procedure (CPC).

The petitioner, Smt. Santosh Kumari, challenged her election as Pradhan of Gram Panchayat Bhogpur, Haridwar. The respondent filed an election petition under Section 131 of the Uttarakhand Panchayati Raj Act, 2016, alleging corrupt practices. The petitioner sought the rejection of this election petition under Order 7 Rule 11 (a) and (d) of the CPC, contending that the supporting affidavit was not in the prescribed Form 25 as required by Rule 94A of the Conduct of Elections Rules, 1961.

The primary question before the court was whether an election petition is liable to be rejected at the threshold if the affidavit supporting allegations of corrupt practices is not in the prescribed statutory form. The court was also called upon to determine if such a deficiency constitutes a fatal defect or a curable one under the doctrine of substantial compliance.

Distinction Between Sections 81 and 83 of the Representation of the People Act

The court relied extensively on the Supreme Court's jurisprudence to distinguish between different types of statutory non-compliance. It noted that while Section 86 of the Representation of the People Act, 1951, provides for the automatic dismissal of an election petition for non-compliance with Section 81 (presentation of petition), a defect under Section 83 (contents of petition) is curable.

Doctrine of Curability

Quoting the Constitution Bench in T.M. Jacob v. C. Poulose, the High Court emphasized that the legislative intent divides violations into two classes. Violations that attract Section 83(1) are not grounds for dismissal at the threshold. The bench noted that the defect of the type provided in Section 83 can be dealt with under the doctrine of curability, based on principles contained in the CPC.

"Non-compliance with Section 83 is a curable defect and would not merit dismissal at the threshold."

Substantial Compliance Over Rigid Formality

The Court highlighted that the requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory in a rigid sense. Relying on G.M. Siddeshwar v. Prasanna Kumar, the bench observed that as long as there is substantial compliance with the statutory form, there is no reason to summarily dismiss an election petition. The court must grant the petitioner an opportunity to cure the defect by filing a proper affidavit.

Affidavit Requirement Is Not A Part Of Verification

The bench clarified the distinction between the verification of pleadings and the supporting affidavit. It noted that while Order 6 Rule 15 of the CPC requires an affidavit in support of pleadings, the Representation of the People Act does not necessarily make the lack of a specific format fatal. The court held that the absence of an affidavit in the prescribed form does not by itself cause prejudice to the successful candidate so long as the deficiency is cured when directed.

"The format of the affidavit is at any rate not a matter of substance. What is important is whether the petitioner has made averments testified by him on oath."

Strict Adherence To Order 7 Rule 11 CPC Principles

The Court reiterated the established legal position regarding the rejection of plaints. Citing Popat and Kotecha Property v. State Bank of India, the bench noted that for the purpose of Order 7 Rule 11, only the averments in the plaint are germane. The court cannot look into the defense or external evidence at this stage. It emphasized that the power to terminate a civil action at the threshold is a "drastic" and "extreme" one that must be exercised with caution.

Plaint To Be Read As A Whole Without Compartmentalization

The bench observed that a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage in isolation to seek rejection of the suit. The court noted that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. If the allegations prima facie show a cause of action, the court cannot embark upon an enquiry into their factual truth at the preliminary stage.

"Rejection of a plaint is a drastic power and should never be exercised in a routine or mechanical manner."

Application To The Present Case

In the instant case, the court found that the election petition did contain an affidavit and a verification where the petitioner swore on oath that the allegations of corrupt practices were true to the best of his knowledge. The Court held that this satisfied the test of substantial compliance. Since the defect was curable, the Prescribed Authority was correct in rejecting the petitioner's application for summary dismissal.

The High Court dismissed the writ petition, affirming the orders of the Sub-Divisional Magistrate and the Additional District Judge. It concluded that the petitioner must be granted an opportunity to file the necessary affidavit in the correct format. However, the court left it open for the petitioner to raise all other contentions during the trial before the Prescribed Authority.

Date of Decision: 08 June 2026