AJAY ARJUN SLNGH versus SHARADENDU TIWARI & OTHERS
[2016] 4 S.C.R. 555, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
[2016] 4 S.C.R. 555 
AJAY ARJUN SlNGH 
v. 
SHARADENDU TIWARI & OTHERS 
(Civil Appeal No. 2697 of2016) 
MARCH 15, 2016 
[J. CHELAMESWAR AND ABBAY MANOHAR SAPRE, JJ.] 
Representation of the People Act, 1951 - s.83(l){c) proviso 
rlw. Order VI Rule 15(4) of CPC - Interlocutory application under 
Order VIL Rule 11 CPC - Filed in Election petition - By the returned 
candidate seeking dismissal of petition on the ground interalia that 
the affidavit filed alongwith the petition was no.t in conformity with 
Form 25 of the Conduct of Election Rules, 1961 - Election petitioner 
mentioned in his reply that the affidavit in Form 25 was to be found 
at pages 394 and 395 of the petition and asserted that he filed two 
affidavits with the petition - The High Court- held that though the 
petitioner had not filed the affidavit in Form-25, but the defect was 
curable and hence directed the petitioner to file an affidavit in Form 
25 - Election Petitioner filed the affidavit as directed - Review 
petition by the returned candidate against the order of High Court 
was dismissed ..:.. Two appeals filed by the returned candidate in this 
Court - The election petitioner also filed appeal challenging the 
finding that affidavit in Form 25 was not filed - This Court 
adjourned the matter in order to enable the parties to seek a 
clarification as to whether there was one or two affidavits filed 
alongwith the petition - Application for the clarification order filed 
in High Court - High Court
clarified that two affidavits were filed 
alongwith the election petition - Returned candidate filed another 
appeal to this Court challenging the clarification order - On the 
ground that the order suffered from lack of jurisdiction being in 
contravention of r. 13(2) of High Court of Madhya Pradesh Rules, 
2008 - Held: The clarification order of High Court did not suffer 
from lack of jurisdiction as the order was in conformity with s.80A(2) 
of the Representation of the People Act - Stipulation u/r. 13(2) is 
contrary to stipulation u/s. 80A(2) - As per Art. 225 of the 
Constitution (under which High Court Rules were made) any Rule 
shall be subject to the law, made by appropriate Legislature - It is 
proved that the election petition was accompanied by an affidavit 
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in Form 25 in compliance with the requirement of statute under 
proviso to s.83(l)(c) - Conduct of Election Rules, 1961 - Form 25 
- Constitution of India - Art. 225 - High Court of Madhya Pradesh 
Rules, 2008 - Code of Civil Procedure, 1908 - Or. VIL r. 11. 
Dismissing the appeals filed by the returned candidate and 
allowing that of the election petitioner, the Court 
HELD: 1. 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. The High 
Court chose to deal with the matter 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. [Para 20) [567-C-E] 
2.1 According to the returned candidate, I.A. No.11665 of 
2015 (seeking clarification from the High Court) 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 Judge, 
who retired thereafter, ought to be heard by a Division Bench 
and the Judge who passed the order in the OR VII R 11 petition 
retired subsequently. This preliminary objection raised by the 
returned candidate is not acceptable. [Paras 29 and 31) [570-F-
G; 571-A; 572-A-B) 
2.2 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
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
jurisdiction shall be exercised ordinarily by a Single Judge who 
is to be designated by the Chief Justice, 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. 
(Para 31) (572-B-D] 
2.3 The Rules of the High Court are framed by the High 
Court pursuant to the power vested in it under Article 225. 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 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". 
[Para 31] (572-E; 573-A-C] 
3. The plea of the returned candidate that the subsequent 
and conflicting finding of the High Court
dated 29.9.2015 is not 
legally tenable, as 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. 
The plea, 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, what is 
barred under s.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. Hence 
the plea is rejected. [Paras 35(1), 37(i)] (574-C; 576-E-F] 
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4. It cannot be said that 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, as having . H
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complied with the consequential direction of filing afresh affidavit 
in Form 25, without challenging the correctness of the finding 
that he failed to file an affidavit in Form 25 along with the election 
petition. 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. 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 High Court dismissed the 
OR VII R 11 petition though the finding is adverse to the election 
petitioner, he need not have filed an appeal. [Paras 35(II), 37(ii)) 
(574-D-E; 576-G-H; 577-A-B) 
5.1 The failure of the Registrar to comply with the 
requirement of Rule 6(4) is sought to be explained by the High 
Court by saying that such a lapse occurred probably because 
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nobody pointed out
to the Registrar regarding the existence of 
affidavit at page nos.394-395. 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 
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whether somebody points out to the Registrar or not regarding 
the existence of the affidavit. However, the non-compliance of 
the rule by the Registrar is not fatal to the election petition, 
because it is the settled proposition of law that the act or omission 
of the Court shall not harm any party. [Para 37(c, d)) (579-E-G] 
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5.2 But when the question is whether such an affidavit was 
filed along with the election petition on 20.0l.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. However, such a question was never 
in issue in OR VII R 11 petition. [Para 37(e)] (579-H; 580-A-B)
AJAY ARJUN SINGH v. SHARADENDU TlWARl & OTHERS 
5.3 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." Thus, 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. [Para 39] [580-F-G] 
6. 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. 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. [Paras 40, 43] [580-H; 
581-A, F-G] 
State of Punjab & Others v. Krishan Niwas 1997 (2) 
SCR 1135 : (1997) 9 SCC 31; Banku Chandra Bose 
& Another v. Marium Begum & Another, AIR 1917 Cal. 
546 - held inapplicable. 
P.A. Mohammed Riyas v. MK. Raghavan & Others 2012 
(4) SCR 56 : (2012) 5 SCC 511; GM. Siddeshwar v. 
Prasanna Kumar 2013 (4) SCR 1107 : (2013) 4 SCC 
776; Harvinder Singh v. Paramjit Singh (2013) 9 SCC 
261: 2013 (1) SCR 903 - referred to. 
Case Law Reference 
2012 (4) SCR 56 
2013 (4) SCR 1107 
referred to 
referred to 
Para 17 
Para 18 
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2013 (1) SCR 903 
1997 (2) SCR 1135 
AIR 1917 Cal. 546 
referred to 
held inapplicable 
held inapplicable 
[2016] 4 S.C.R. 
Para 37(iii) 
Para 42 
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2697 
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From the Judgment and Order dated 25.08.2014 of the High Court 
of Madhya Pradesh Principal Seat at Jabalpur in I. A. No. 43 of2014 in 
Election Petition No. I of2014 
WITH 
C. A. Nos.'2699, 2700 and 2701 of2016 
P. P. Rao, Salman Khurshid, Naman Nagrath Sr. Advs., Navin 
Prakash, Anshuman Shrivastava, Pulkit Tare, Ms. Meetu Singh, 
Swarnendu Chatterjee, Vikramaditya Singh, Ms. Ananya Sarkar, M. P. 
Srivignesh, Vikas Upadhyay, Prakash Upadhyay, Nitin Gaur, Kaustubh 
Anshuraj, Ishit Saharia, Advs. for the appearing parties. 
The Judgment of the Court was delivered by 
CHELAMESWAR, J. I. Leave granted. 
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.I of2014 
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 (I) 
and ( 6) of Section 123 of the Representation of the People Act, 1951 
(hereinafter referred to as 'the RP Act'), i.e. (I) making appeal to the 
voters in the name of religion and bribery; and (2) incurring el'penditure 
in confravention of Section 77 of the RP Act respectiyely. 
4. Notice to the respondents in the Election Petition was ordered
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
561 
[CHELAMESWAR, J.] 
on 10th February, 2014. The RETURNED CANDIDATE was served 1 
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with the said notice on 18.6.2014. Admittedly, the election petition and 
all the annexures thereto were served 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 of2014 invoking Order VII Rule 11 ofCPC (hereinafter referred 
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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 
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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 
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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 
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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." 
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(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 
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in the affidavit prescribed under Form No.25. The affidavit which 
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. 
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the petitioner has filed is thus defective and, therefore, the petition 
deserves to be dismissed." 
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(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. I /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
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
[CHELAMESWAR, J.] 
assert the fact that he had filed two affidavits along with the election 
petition". 
12. It can be seen from the above that the ELECTION 
PETITIONER has also made a submission that "ifin the opinion of the 
Court ifthere 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: 
"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 
2 Para 6 of reply to the IA No.43 of2014 
" ... Since the petitioner has also filed affidavit in support of the election petition and 
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has also tiled an affidavit in the prescribed format, therefore, there is no defect in this 
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regard .... " 
3 "Section 83. Contents of petition.-( I) 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 petitioneralleges, 
including as full a statement as possible of the names of the parties alleged to 
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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 (5of1908) 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. 
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stipulates what is required to be contained in an election petition. Section 
83( I)( 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 with the verification of the pleadings•. Sub-rule 4; 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 I 00 
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 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 
(2) 
Any schedule or annexure to the petition shall also be signed by the petitioner 
and verified in the same manner as the petition. 
•Order VI Rule 15. Verification of pleadings.- (I) Saye as otherwise pro\'ided 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 ofhis own knowledge and what he verifies upon information 
received and believed to be true. 
(3) 
The \'erification 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. 
' Sub-rule ( 4) came to be inserted to the Code by Act 46 of 1999
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
[CHELAMESWAR, J.] 
petition.- The affidavit referred to in the proviso to sub-section 
( 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. Ra1:llavan 
& Others, (2012) 5 SCC 511 and this Court held tJms: 
"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 GM. Siddesllwar v. Prasanna 
Kumar, (2013) 4 SCC 776. The court disapproved the view taken in 
Mohammed Riyas case and held: 
"1. ... The principal question oflaw 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. Moha111111ed Riyas" MK. 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 
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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 ofappeals is whether 
the election petition was accompanied by an affidavit which is compliant 
with the requirement of statute under the proviso to Section 83(l)(c). 
Foranswering 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
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
[CHELAMESWAR, J.] 
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, LA. No.43/ 
2014, filed by the respondent No.I 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. l 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-
567 
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8 
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A 
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 
B 
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 SLPNo.11096 of2015. 
c 
D 
E 
F 
G 
H 
23. It is rather difficultto 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 notthe 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 (I) of the
Act of 19 51 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 herein above, 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
AJAY ARJUN SINGH v. SHARADENDU TJWARI & OTHERS 
[CHELAMESWAR, J.] 
preferred SLP No.15361 of2015 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 SLPNo.11096 of2015. 
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 or-ihe 
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 petition6 • 
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 ofby an order dated 29.9.2015'. 
The High Court, recorded; 
6 '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(l)(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 cryptic and the findings recorded by the High Court (extracted earlier in this order) 
are not clear with regard to the above mentioned questions." 
'Challenging the correctness of the said order, SLP 31051/2015 is filed by the RETURNED 
CANDIDATE. 
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A 
"3 7. 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: 
B 
c 
D 
E 
F 
G 
H 
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 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, 
8 See Ground No.8 ofSLP (C) No.31051 of2015 
"Whether the impugned order has been passed in violation of the provisions of 
Chapter JV 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?"
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
[CHELAMESWAR, J.] 
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. 
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 81 A 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 of2015 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( I )(b) is limited only io the cases of 
review, clarification or modification of only judgments, 
9The relevant portion of Rule 13 reads as follows:-
" 13. (I )(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~ 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 
(I) if the decree or order, review of which is applied for, was passed by a Judge 
sitting alone, by the regular division bench." 
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SUPREME COURT REPORTS 
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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 
D 
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 225 11 • The 
exercise of such power is subject to the provisions of the 
E 
Constitution and the "provisions of any law of the 
F 
G 
H 
"'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. 
"Article 225. Jurisdiction of existing High Courts.-Subject to the pro\'isions 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 oforiginaljurisdiction 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.
AJAY ARJUN SINGH v. SHARADENDU TlWARI & OTHERS 
[CHELAMESWAR, J.] 
appropriate legislature". Rule 13 mandates the listing of 
certain matters (nature of which is described therein) before 
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 oflaw flowing 
from
the proviso to Section 83( I); 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 IANo.11665 of20!5, 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.57 A in the index is "in 
compliance with the requirement of proviso appended to section 83( I)( c) 
of the Representation of People Act, 1951 ". 
573 
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34. If the abovementioned two findings are legally tenable, three 
appeals (arising out of SLPNos.33933 of2014, ·11096of2015 and 31051 
of2015) 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. 
ill.Rule 6( 4) of the Rules relating to election petitjons 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.
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
[CHELAMESWAR, J.] 
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 )
1 ~. In the absence of any such 
categoric finding it cannot be said that the findings recorded 
by the 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 
12 Exact content of reply of the ELECTION PETITIONER in this regard is also 
extracted at para 1 0 supra. 
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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 o(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 oflaw thatthe 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
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
(CHELAMESWAR, J.] 
said petition. We have already recorded that the order in OR VII 
R I I 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 I I petition though the finding is adverse to the ELECTION 
PETITIONER, he need not have filed an appeal 13 • 
(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 
13 Hardevinder Singh v. l'aramjit Singh, (2013) 9 SCC 261, para 21 at page 268: 
21. After the 1976Amendment of0rder41 Rule 22, the insertion made in sub-rule (I) 
makes it permissible to file a cross-objection against a finding. The difference is basically 
that a respondent may defend hims~lfwithout taking recourse to file a cross-objection 
to the extent the decree stands in his favour, but ifhe intends to assail any part of the 
decree, it is obligatory on his part to file the cross-objection. In Banarsi i: Ram Phal. 
(2003) 9
sec 606. it has been observed that the amendment inserted in 1976 is 
clarificatory and three situations have been adverted to therein. Category I 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 ifhe 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 o.ther 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 findingadverse 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. 
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A 
CANDIDATE regarding the absence of the seal and signature of 
the Registrar of the High Court on the affidavit at page nos.394-
395. 
B 
c 
D 
E 
F 
a) The High Court in its order dated 29.9.2015 in I.A. No.11665 
of2015 recorded a finding: 
"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 (I) Every Election Petition complete in all respects, shall 
G 
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 
H 
necessary shall be endorsed in the margin of first page of the
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
579 
[CHELAMESWAR, J.] 
petition by the Additional Registrar or Deputy Registrar under his 
A 
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. 
B 
( 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 
_acc9mpanying it". 
c) The failure of the Registrar to comply with the requirement of 
sub-rule (4) is soughtto be explained by the High C-0urt 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 o.f 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 
c 
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[2016] 4 S.C.R. 
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 ifhe 
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 I 1 petition. 
38. As already noticed at para IO (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 oflimitation, but must have been
inserted in the 
election petition sometime in the interregnum period between 22.1.2014 
(the date on which the period oflimitation for filing the election petition 
expired) and I 8.6.20 I 4. 
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 I 1 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
AJAY ARJUN SINGH v. SHARADENDU TIWARI & OTHERS 
[CHELAMESWAR, J.] 
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 ifthe 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. Unfortu,nately, 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 
Form25". 
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 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. Sf(lfe of Punj"b & 
Others v. Krisltan Niwas, ( 1997) 9 SCC 31 and B"nku Chandra Bose 
& Another v. Marium Be1:um & 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 
r)JJe of estoppel. 
44. In view of the foregoing discussion, Civil Appeal arising out 
ofSLP (Civil) No.31051 of2015 being without any merits is dismissed. 
As a consequence, Civil Appeals arising out of StP (Civil) Nos.33933 
of2014 and 11096 of2015 are also required to be dismissed and they 
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[2016] 4 S.C.R. 
A 
are accordingly dismissed. 
45. Coming to the Civil Appeal arising out ofSLP (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 of2015 which has become 
final by virtue of dismissal of Civil Appeal arising out of SLP (Civil) 
B 
No.31051 of2015. The same is accordingly allowed, 
c 
46. In the facts and circumstances of the case, there will be no 
order as to costs. 
Kalpana K. Tripathy 
Appeals disposed of.