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Election Petition, decided on 14th June, 1987.

---S.55(3)--Civil Procedure Code (V of 1908), O.VI, R.15, S.139(b) O.XIX, R.3--Election petition--No affidavit of petitioner in support of allegations in election petition attached--Affidavits of witnesses annexed to such election petition not fulfilling legal requirements- Effect--Provisions of S.55(3) of Act LXXXV of 1976 envisages that election petition was to be signed by petitioner and verified in manner laid down in Civil Procedure Code for verification of pleadings--Where verification had not been made at the foot of the election petition in accordance with requirements of Civil Procedure Code either on oath or on solemn affirmation but was simply signed by petitioner, same, held, neither met the requirements of R.15(2), O.VI, C.P.C. nor did it carry date and place in compliance of provisions of R.15(3) of O.VI, C.P.C. --Affidavits of witnesses attached with election petition having neither been sworn to, nor verified by Oath Commissioner, could not be termed as affidavits due to absence of oath and certificate of Oath Commissioner--Statement made on oath attested by Notary Public but not by Oath Commissioner would not meet requirements of O.VI, C.P.C. as envisaged by S.139(b) thereof--Even the form of some of affidavits was not correct inasmuch as it had not been stated as to how much of the statement made therein was from knowledge and how much of it was made on the basis of belief and were thus violative of O.XIX, R.3, C.P.C.

State of Bombay v. Purushottan Jog Naik A I R 1952 S C 317; Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India and another A I R 1954 Cal. 499 and Dipendra Nath Sarkar v. State of Bihar and others A I R 1962 Pat. 101 ref.

---S.55(3)--Notification No. F.1(7)/85 Cord. dated 16-3-1985--Election petition--Election petition to be accompanied by documents and affidavits of witnesses as desired to be produced by petitioner- Petitioner was required to make available for cross-examination all witnesses whose affidavits were filed with election petition--Procedure laid down in Notification being mandatory and election petition itself having not been verified either on oath or solemn affirmation and there being no separate affidavit of petitioner in support thereof, nothing remained capable of proof by petitioner and muchless was there anything to be proved by witnesses.

---Ss.55(3) & 63--Civil Procedure Code (V of 1908), O.VI, R.15- Defect about verification of election petition whether capable of rectification--Defect about verification of pleadings although regarded as formal and capable of rectification, yet petitioner, held, could not benefit on that score where such defect being within-Ti-is knowledge for a long time and still a prayer for rectification thereof, had not been made by him--Court could only allow an amendment prayed for, but could not of its own require any amendment of such nature to be made--Persistent default was not liable to be simply ignored--Election petition being defective as regards verification and in derogation of legal requirements, was, dismissed.

S.M. Ayub v. Syed Yousaf Shah and 2 others P L D 1967 SC 486 ref.

Petitioner in person.

Nemo for Respondents Nos.1, 27 and 31.

Muhammad Zafar Chaudhry for Respondent No.2.

Sardar Muhammad Farooq for Respondents Nos.3, 29 and 30.

Abaid-ur-Rehman for Respondent No.4.

Kh. Muhammad Farooq for Respondent No.5.

Miss Agness Tabassum for Respondent No.21.

Syed Faiz-ul-Hassan for Respondent No.28.

Philip E.William for Respondents Nos.32 to 35.

Respondents Nos.6 to 20 and 22 to 26: Ex parte.

Date of hearing: 6th January, 1987.

This Election Petition relates to the National Assembly election for non-Muslim Seats reserved for Christians. Election thereto held on 25-2-1985, is challenged on various grounds set out in paras 3 to 13 thereof. Eight written statements have been filed to contest the election-petition by denying the allegations made therein which are of general character and the petition does not contain full particulars of corrupt or illegal practices or other illegal acts alleged to have been committed and even a full statement of the parties and the dates and places of their commission has not been furnished in accordance with the requirements of section 55 of Act LXXV of 1976. Specific objection thereabout has been taken in the written statement filed by the returned candidate Lt.-Col.(Retd.) W.Herbert (respondent No.3). It is objected that whereas an affidavit of the petitioner himself in support of the allegations has not been furnished, the so-called affidavits of witnesses annexed to the election-petition do not fulfil the legal requirements so that those persons would no be capable of being produced as witnesses in it within the contemplation of the Notification dated 16-3-1985.

2. By the order dated 15-12-1985, learned counsel were provided opportunity to prepare and address arguments on those preliminary objections. They have been heard.

3. There is no affidavit of the petitioner filed in support of the Election Petition which has been verified by him with a general statement that whatever is stated in the aforesaid paras is true and correct to the best of his knowledge and belief. Subsection (3) of section 55 of the Representation of the People Act, LXXXV of 1976 (hereinafter referred to as 'the Act) lays down as under:-

"(3) Every election petition and every Schedule or Annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."

Rule 15 of Order VI of the C.P.C. provides as under:-

"15. Verification of pleadings.--(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation 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. Verification made at the foot of the election petition in the terms set out above has not been made either on oath or on solemn affirmation. It is simply signed by the petitioner and neither meets the requirements of sub-rule (2) ibid nor does it carry the date and place in compliance of the provisions of sub-rule (3).

5. Again, there are appended therewith three so-called affidavits of Jalal Masih, Sohan Masih and Ratan Masih, which have neither been sworn to nor verified by any Oath Commissioner and another six similar affidavits added at the end of the petition also suffer from the same defects inasmuch as two of them are merely attested by a Notary Public but statement about their having been deposed to before any recognized authority is not appended on them. None of the above-mentioned documents has been verified by the petitioner and each of them has simply been signed by them. Even the other documents which include three copies of telegrams and a copy of petition bearing the date 6-3-1985, do not bear any verification according to the requirements of section 55 (3) of the Act.

Section 63 of the Act provides:-

"63. Dismissal of petition during trial.--The Tribunal shall dismiss an election petition, if--

(a) The provisions of section 54 or section 55 have not been complied with; or

(b) If the petitioner fails to make the further deposit required under subsection (4) of section 62."

Section 139 (b) of the C.P.C. provides for an Oath Commissioner having to administer oath to a deponent. Not only that none of the so-called affidavits appears to have been sworn before any Oath Commissioner but also there is no certificate to such an effect appended on either of them.

Even the form of the last four alleged affidavits is not correct inasmuch as it has not been stated as to how much of the statement made therein is from knowledge and how much of it is made on the basis of belief. Supreme Court of India laid emphasis on this requirement of affidavits in State of Bombay v. Purushottan Jog Naik A I R 1952 S C 317 and, again, in Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India and another A I R 1954 Calcutta 499 it was laid down:-

"Where an affidavit affirmed by a person who described himself as a representative of certain company was affirmed by saying that 'several paragraphs of this affidavit' were 'true to his knowledge or knowledge derived from his reading of the records of the case', it was held that an affidavit affirmed in that manner was not fit to be looked at."

While dealing with the evidence furnished on affidavits under Order XI X of the C . P. C in Dipendra Nath Sarkar v . State of Bihar and others A I R 1962 Pat. 101, a Full Bench of the Patna High Court found as under:-

"The affidavit of Sri N.P. Sinha is also defective because it does not clearly express as to how much is a statement of the knowledge of the deponent and how much is a statement of his belief, and there is hence violation of O.XIX, R.3 Code of Civil Procedure."

Thus, the aforesaid purported to be called affidavits, being not liable at all to be termed as affidavits due to the absence of oath and certificate of Oath Commissioner, there is the fatal defect of form as aforesaid and they are not worth even the paper written on.

6. Effect of absence of valid affidavit is to be found in the Notification dated 16-3-1985 issued by the Election Commission in pursuance of the power conferred by the amended section 62(1) of the Act which reads:-

"Subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission."

Procedure notified by the Election Commission in its Notification No.F.1(7)/85-Cord., dated 16-3-1985, so far as is relevant hereto, is that every election petition, "shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner" and clause (4) thereof requires that the petitioner shall make available for cross-examination all witnesses whose affidavits are filed with the petition for cross-examination on the first date of hearing before the Tribunal and it is laid down in clause (6) thereof that "no witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal".

7. The procedure laid down in the above notification is mandatory and since the election petition itself has not been verified either on oath or solemn affirmation and there is no separate affidavit of the petitioner in support thereof appended therewith, therefore, there remains nothing capable of proof by the petitioner and muchless is there anything which some witness may be competent to depose to.

8. Although the defect about verification of pleading is regarded formal and capable of rectification, yet, the petitioner cannot benefit on that score because the defect was brought to his notice more than 1 years before and still a prayer for its rectification has not been made. It is well settled that a Court can only allow an amendment prayed for but cannot on its own require any amendment of this nature to be made and a persisting default would not be liable to be simply ignored. Moreover, the cumulative effect of the aforementioned defects is that apart from the case of the petitioner becoming incapable of being proved, his election petition is rendered not liable to be proceeded with. Judgment of their Lordships of the Supreme Court reported as S.M.Ayub v. Syed Yousaf Shah and 2 others P L D 1967 S C 486, was delivered in the peculiar facts of that case and is not attracted hereto. There is no reason why legal consequences may not follow upon the defects found in this case. The election petition is liable to be dismissed under section 63 of the Act and is also rendered incapable of being proceeded with on account of its failure to comply with the requirements of the afore-cited Notification.

In result, this Election Petition is dismissed. Parties are, however, left to bear their own costs.

A.A./12/ E Election petition dismissed.

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