RAFAQAT HUSSAIN AWAN Versus DEEWAN ALI CHUGHTAI
ORDER
Through this election petition, the petitioner challenges the election of respondent No.1 as Member Legislative Assembly from LA- 28, Muzaffarabad‑6 on the ground of illegal and corrupt practices by or on his behalf. The election petition is at initial stage however, the respondent No.1 through his application, dated 6‑10‑2003 has prayed that the above titled election petition may be dismissed with costs before indulging into detailed inquiry into facts. The grounds enumerated in this application are that the election petition has been filed without complying with mandatory provisions of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 (hereinafter called as Election Ordinance). According to respondent No. 1, the election petition does not contain particulars and details of alleged corrupt practices as required by section 51(1) of the said Ordinance. Another objection regarding non -verification of the petition in‑accordance with the requirement of section 51(3) of the Election Ordinance read with Order 6, rule 15 of C.P.C. has also been taken through the application for dismissal of the election petition. It is further contended through the application that the Annexures being part of election petition also lack their verification in accordance with mandatory provision of section 51(3) of Election Ordinance. The objections by the petitioner to this application are also on the file wherein it is contended that the application by the respondent No. 1 was not filed with clean hands as he wanted to prolong the litigation. According to the objection to the application, all the legal requirements regarding verification etc. have been complied with and being so, the election petition required its decision on merits after taking evidence.
2. The learned counsel for respondent No. 1 argued that the petitioner failed to comply with mandatory provision of Election Ordinance for he did not mention particulars and details of alleged illegal acts and corrupt practices as required by section 51(1) of the said Ordinance. It was further submitted that the election petition deserved its dismissal at the out set because neither the election petition nor Annexures were verified 'in accordance with Order 6, rule 15 of C.P.C. therefore, the non‑compliance of mandatory provision contained under section 51(3) of Election Ordinance warranted dismissal of the election petition under section 59 of the Election Ordinance. During arguments he relied upon the following case‑law:‑‑
(1) 2003 YLR 2784, (2) 1998 CLC 83, (3) 1997 CLC 1724, (4) 1995 CLC 150, (5) 1986 CLC 2050 and (6) 2002 SCR 146.
3. While controverting the arguments on the side of respondent, the learned counsel for the petitioner argued that the full particulars of illegal acts and corrupt practices had been given in petition, therefore, it was wrong to say that the petitioner had failed to comply with the legal requirement under section 51(1) of the Ordinance. It was further argued that the election petition and Annexures were also verified in accordance with law provided by. Order 6, rule 15 of C.P.C. as such the election petition was to be decided on merits after taking evidence. The learned counsel cited the following case‑law in order to support his version:‑‑
(1) PLJ 2003 (SC Pakistan) 934, (2) 1994 CLC 2041; and (3) 1990 CLC 301.
4. After examining law cited at Bar, I would like to select two judgments one delivered by our own Supreme Court and other by Supreme Court of Pakistan in cases titled Muhammad Rafique Nayyar v. Raja Nisar Ahmed Khan 2003 YLR 2784 and S.M. Ayub v. Syed Yousuf Shah and others PLD 1967 SC 486 respectively. These two authorities deal with the point of verification of pleadings or annex. and schedule appended with the petition. The point of verification in the instant petition goes to its roots therefore, it is felt proper to settle this controversy first.
In Muhammad Rafique Nayyar's case, it was observed as under:‑‑
"No doubt section 99 of the Code of Civil Procedure provides that no decree shall be reversed or substantially varied nor shall any case be remanded; in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. But in the trial of election petition, the Code of Civil Procedure has a limited application to the extent it has been provided in the statute itself and not beyond that. It is correct that normally a statute is to be regarded as directory in nature unless the penalty is provided in the statute itself. If the penalty is provided then the provisions of statute do not remain directory but they become mandatory in nature. Section 59 of the Election Ordinance clearly postulates that if the provisions of sections 50 and 51 have not been complied with, the Tribunal shall dismiss the election petition. Thus, the provisions of sections 50 and 51 being mandatory in nature, the Election Tribunal was left with no option except to dismiss the election petition filed by the appellant as the ‑same was not verified nor the details and particulars of the corrupt and illegal practices were disclosed or mentioned by appellant in the election petition."
In S.M. Ayub's case, the following observation was made:‑‑
"By 'schedule or annex.' mentioned in subsection (3) of section 59 of the Act is apparently meant such a schedule and Annexure as either makes additional allegations of a substantive character against the opposite party, or at least furnishes better particulars of the allegations made in the petition, so as to give them the status of substantive grounds of the petition, itself. The documents under consideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of 'schedule or annex.' mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right to finding that the failure of the petitioner to append his signatures or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution of the petition."
5. Under Interim Constitution Act, 1974, which is supreme law of the State of Jammu and Kashmir, any dictum by Supreme Court of Azad Jammu and Kashmir is the law of the land in the State of Jammu and Kashmir. In Rafique Nayyer's case, it has been held that verification of election petition is mandatory under section 51(3) of Election Ordinance as its non‑compliance entails dismissal of the petition. Here in this case the verification of petition itself and that of annex. or schedule mentioned in section 51(3) is under debate. Verification of petition shall be dealt with in coming paragraphs of the proposed judgment. However, as regards verification of annex. or schedule, I respectfully subscribe to the view taken by the Supreme Court of Pakistan in S.M. Ayub's case as schedule or annex found to have been appended with the instant petition do not make additional allegation neither they furnish better particulars of the allegation made in the petition so as to give them the status of substantive ground of the petition. Therefore, non‑verification of these annex. or schedule is not fatal to the election petition
6. Verification of pleadings is an act of proving to be correct. A plaintiff or petitioner as the case may be under law, is required to verify the pleadings on oath or solemn affirmation. It is because Court cannot take cognizance of it in absence of verification. Verification, which is in accordance with law, prima facie provides an evidence to believe that the averments made in the plaint or allegations levelled in a petition are correct. This is, something initially satisfying the Court about the genuineness of the claim, so that the cognizance could be taken. Therefore, when verification of pleading is required by law, it should be done as the law says and if it is found not in accordance with law, it is always deemed to be non‑existent. When an act is required by law to be performed in a prescribed manner, it should be performed in that way or not at all. Verification, if proved false, entails penal consequences. A person verifying false averments/allegations on oath or solemn affirmation incurs penal liability for it is an offence under Penal Code. Therefore, a Court or Tribunal, as the case may be, cannot take cognizance of a plaint or petition, unless it is verified in accordance with law, because the person making averment or levelling allegation cannot be held responsible, if proved false. An election petition based on corrupt practices and illegal acts if succeeds entails penal consequences like de‑seating of returned candidate and penal action against those who are found to be involved in such practices or acts. Therefore, an election petition calling for re‑election or declaration of election of a returned candidate to be void on the ground of illegal acts or corrupt practices has G status of a criminal proceedings. To be brief, the verification of election petition is a mandatory legal requirement and it should be complied with as the relevant provisions of law suggests.
7. To add to it, I would like to quote the beautiful observation of Supreme Court of India in case titled Jagan Nath v. Jaswant Singh 9 ELR 23 SC that "an election contest is not an action at law or a suit in equity but it is a purely statutory proceedings unknown to the common law and that the Court possesses .no common law power. It is also well -settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. The general rule is well‑settled that the statutory requirement of election law must be strictly observed". In another case from Indian jurisdiction AIR 1958 SC 698 it was observed that "an election petition is not a matter in which only persons or candidates who strove against each other. The public also are substantially interested in it and this is not merely in the sense that an election has news value. The election is essential part of democratic system. An election petition is not a suit between two persons but is a proceeding in which the constituency is principal party interest":
The upshot of the above discussion is that while dealing with election petition, the Court/Tribunal is required under law, to strictly follow the relevant provision of law and, if a petitioner, seeking annulment of election is found not to have complied with a mandatory provision of law he should face the music.
8. Coming to the present case, it will be useful to reproduce the allegation verification of the petition available at the foot of the petition which reads as follows:‑‑
The English translation of the above referred verification is as follows:‑‑
Verification
"I State on oath that` all the entries made in the petition from clause 1 to 7 alongwith sub‑clauses " ﻑﻠﺍ ﺎﺗ ﻥ " and relief clauses 1 to 3 are admitted to be correct.
9. Now let us see whether the instant election petition is verified under law or not? The petitioner was required to verify the averments or allegations made in the petition on oath or solemn affirmation He was not required under law to admit allegations or averments on oath or solemn affirmation . The above referred verification shows that the petitioner admitted his own averments or allegations in the petition on oath at the time of its filing. To "admit" a fact and to "verify" a fact are two different matters having different meaning and different legally connotation. Apart from dictionary meaning of both the words, Order 12 of C.P.C. is also helpful in reaching a correct conclusion which is reproduced as follows:‑‑
" Notice of admission of case. ‑‑‑Any party to a suit may give notice, by his‑pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party."
10. The provision of law in C.P.C. dealing with admission shows that a fact coming from, alleged or stated by opposite party when stands accepted by the other party it is an admission and it bears its own consequences. It does not require further declaration on oath or solemn affirmation. Verification of allegations averments in a suit or a petition is the base or foundation on which legal edifice is raised for redressal of grievance with the help of Court or Tribunal under law. Therefore, when the petitioner or plaintiff puts his signature at the foot of pleadings; he admits them and no further admission on oath or solemn affirmation is required by him. However, the verification of allegations or averments on oath or solemn affirmation is required under law just to ask the Court or Tribunal to take cognizance. Here the petitioner has admitted his pleadings twice once by putting his signature and secondly by making admission on oath but unfortunately he failed to verify the same on oath or solemn affirmation as required by law.
11. Under Order 6, rule 15, pleadings 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. The person verifying shall specify by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. 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. Under section 51(3) of the Ordinance the election petition and other schedule or annexure to that petition shall be signed by the petitioner and' verified in the manner laid down in Code of Civil Procedure for the verification of the pleadings. Section 59 of the said Ordinance provides that the Tribunal shall dismiss an election petition if the provisions of section 50 or 51 are not been complied with. After examining the relevant provision of Election Ordinance and that of C.P.C. it becomes clear that the verification of pleadings/petition is a mandatory provision of law.
13. Before parting with the judgment, the correct form of verification as provided under "Mogha's Law and Principles of Pleadings" is usefully reproduced as, follows:‑‑
"Verification
I, ___________ petitioner, verify that the contents of the petition paras.,________ are true to my personal knowledge, and of paras. ___________ are true on the basis of information which I reasonably believe to be true, and of paras._________ on the basis of the legal advice and information, are true to the best of my knowledge and belief. Verified on __________ at _________ signed and dated.
Petitioner".
13. The result therefore, is that alleged verification available at the foot of instant election petition is no verification in the eye of law because it has not been made in conformity with law, hence it is non existent under law. Thus, in absence of verification as required by section 51(3) of Election Ordinance read with Order 6, rule 15, C.P.C. the fate of the instant election petition is nothing but its dismissal under section 59 of Election Ordinance. As I have come to the conclusion that the election petition deserved its dismissal as it is not verified in accordance with law, therefore, I do not want to dilate upon other point regarding non‑mentioning of full particulars of corrupt practices and illegal acts as raised by the learned counsel for the respondents.
S.A.K./65/AJK Petition dismissed.