2004 (12) TMI 692 - SC - Indian Laws

Challenged the Judgment or order passed by High Court in rejecting the election petitions based on the copies alleged to have been served or supplied - Validity of the Assembly election of Siolim Constituency, Goa u/s 86 of the Act - non-disclosure of any cause of action - non-compliance of sections 81(3), 83(1)(a)(c) and 83(2) - Whether the returned candidates proved that the election petitions were liable to be rejected u/s 81(1) read with section 86 of the Act by reason of it being barred by limitation? HELD THAT - We are unable to hold that in fact the copies alleged to have been served or supplied to the learned counsel for the respondent No.1 were at all served or supplied by the Registry of the High Court. That apart, from the records, it does not appear that there was any endorsement from the side of the learned counsel for the respondent No.1 to show that he had received copies from the Registry on which they made out the case for rejection of election petitions. For the reasons aforesaid, we are therefore of the view that the High Court was not justified in rejecting the election petitions relying on the copies alleged to have been served or supplied to the learned counsel for the Respondent No.1 without there being any direction to file vakalatnamas from the High Court. It is an admitted position that true copies of the election petitions were served upon the Respondent No.1 by the Court Bailiff. In the absence of any material to show that the true copies of the election petitions were not filed with the election petitions at the time of their presentation and in view of our discussions herein earlier that no reliance could be placed on the copies relied on by the High Court, we are unable to sustain the orders of the High Court. We are also unable to agree with Mr.Thali that no reliance could be placed on the true copies served by the Court Bailiff because they were served after the expiry of the period of limitation. It is difficult to understand that the period of limitation shall start from the date of serving the copies and not from the filing of copies of the election petitions. From the records it does not appear that such copies were filed after the period of limitation. Thus, we may safely conclude that the election petitions were not liable to be rejected relying on the copies of the election petitions alleged to have been served upon the Respondent No.1 especially when true copies of the same were duly supplied to the Respondent No.1. In this case, the Respondent No.1 having failed to discharge such onus, it is not open for the Respondent No.1 to say that true copies of the election petitions were not filed at the time of presentation of election petitions. It is not in dispute that true copies of the election petitions were duly served upon the Learned Counsel for the Respondent No.1 before the preliminary hearing of the Election Petitions. According to Mr.Thali, that could not cure the defect in supplying to the Respondent No.1 a true copy of the election petition as such petitions were served on the Respondent No.1 at a time when the elections petitions became barred. In the absence of any material to show that true copies of the election petitions were also not filed at the presentation of election petitions, we are unable to hold that there was non compliance of Section 81(3) of the Act inasmuch as the copies alleged to have been supplied to the returned candidate were not true copies of the petitions. In this case admittedly note of the Registry of the High Court clearly says that requisite number of copies had been duly filed and the election petition was in order. That being the position, we are unable to agree with Mr.Thali as well as the High Court that the onus was on the election petitioners to prove that true copies of the election petitions were duly filed by him. Furthermore, in view of our discussions herein earlier, the true copies have been duly filed as admitted by the Respondent No.1, even subsequent to the filing of the election petitions and in view of the decision of this Court in Anil R.Deshmukh Vs. Onkar N.Wagh, we are also of the view that since true copies were duly filed before the preliminary hearing of the Election Petitions the defects even if there be any, were thus removed, the election petitions could not be rejected on these grounds. Thus, we are unable to sustain the judgment of the High Court in rejecting the election petitions for non filing of requisite number of copies thereof as well as the copies alleged to have been served on the Learned counsel for the respondents were not true copies. Accordingly, the two common questions as framed herein earlier and decided by the High Court in favour of the Respondent No.1, are decided in favour of the appellants. Therefore, the election petitions were not liable to be rejected on the reasons given hereinearlier. It is not impossible that when on 16th July, 2002 the election petition was filed, it could be filed alongwith Exhibit F which came into possession of the election petitioner on the same day i.e. on 16th July, 2002. That apart, assuming that the Exhibit F was defective, even then mere defect in the verification as held herein earlier was not fatal for which the High Court was justified in rejecting the election petitions for non-compliance of section 83(1)(c) of the Act. For the reasons aforesaid, we therefore hold that the question No.3 which was found in favour of Respondent No.1 by the High Court must be answered in favour of the appellants and against the Respondent No.1. Hence, the appeals are allowed to the extent indicated above. There will be no order as to costs.

Issues Involved:
1. Whether the election petitions were barred by limitation.
2. Whether the election petitions were liable to be rejected for non-compliance with sections 81(3), 83(1)(a)(c), and 83(2) of the Representation of the People Act, 1951.
3. Whether the election petitions were liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure for non-disclosure of any cause of action.

Summary:

Issue 1: Limitation
The High Court held that the election petitions were not barred by limitation. Since no cross-objection or appeal was filed by the respondent No.1, the Supreme Court did not examine this issue further.

Issue 2: Non-compliance with Sections 81(3), 83(1)(a)(c), and 83(2)
The High Court divided this issue into three parts:
(i) Whether the copies of the election petitions supplied were true copies.
(ii) Whether the appellants served the required number of copies to the respondents.
(iii) Whether the verification of the election petitions was proper.

The High Court rejected the election petitions on the grounds of non-compliance with section 81(3) and section 83(1)(c). The Supreme Court, however, found that the High Court erred in relying on the copies alleged to have been supplied by the Registry. It was held that true copies were served by the Court Bailiff after the limitation period, and there was no material to show that true copies were not filed at the time of presentation. The defects noted by the High Court, such as missing signatures and stamps, were not considered vital enough to reject the petitions.

Issue 3: Non-disclosure of Cause of Action
In the appeal of Chandrakant Uttam Chodankar, this issue was not pressed before the High Court. In the appeal of Jose Philips Domingo D'Souza, the High Court held that the petition was liable to be rejected for non-compliance with section 83(1)(c). The Supreme Court disagreed, stating that the verification defects were not fatal to the maintainability of the petition.

Conclusion:
The Supreme Court set aside the judgments of the High Court and remitted the matters back for final disposal of the election petitions. The High Court was directed to dispose of the petitions within four months and allow the respondents to file their written statements within three weeks from receiving the judgment. The appeals were allowed without any order as to costs.

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