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TMI Blog2004 (12) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of August 2002 from the Registry of the High Court. On the basis of such copies of the Election Petitions filed applications under Order VII Rule 11 of the Code of Civil Procedure on 8th of September 2002 for their rejection on the ground that the election petitioners had failed to comply with the mandatory provisions of section 81(3),83(1)(a)(c) and section 83 (2) of the Act. However, after the pleadings were complete, the following questions were framed: 1)Whether the returned candidates proved that the election petitions were liable to be rejected under section 81(1) read with section 86 of the Act by reason of it being barred by limitation? 2)Whether the returned candidates proved that the election petitions were liable to be rejected in limine under section 86 of the Act by reason of its non-compliance of sections 81(3), 83(1)(a)(c) and 83(2) of the Act? 3)Whether the respondent No.1 proved that the election petition was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure read with section 86 of the Act by reason of non-disclosure of any cause of action? However, out of the aforesaid three questions, the High Court held the question Nos.1 and 3 in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir election are different, the later of those two dates]. 2[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.] Section 82 deals with parties to the election petition. Since this provision is not relevant for our purpose, we do not think it necessary to deal with this section in this judgment. Then comes section 83 of the Act which deals with the contents of the Election Petitions. Section 83 is as follows:- 83 Contents of petition (1) 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 petitioner alleges including as full a statement as possible of the names of the parties alleged to 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 (5 of 1908) for the verification of pleadings: [Provided that where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff of the Court also served two copies of the election petitions and a notice of the High Court on the Learned Counsel for Respondent No.1. She further stated in her deposition that one copy of the election petitions was returned to the Assistant Registrar of the High Court while retaining the notice issued by the Court which accompanied a copy of the election petition. In cross-examination, she admitted that she had personal knowledge that her senior Mr.Thali had filed his vakalatnama on 2nd of August, 2002 on behalf of Respondent No.1 in both the Election Petitions. However, it appears from the record that the vakalatnamas were signed by the Respondent No.1 on 4th of August, 2002 and the signed vakalatnamas were received by the Registry of the High Court on 6th of September, 2002. She also admitted that her senior Mr.Thali, did not make any endorsement of having received copies of the election petitions on behalf of Respondent No.1 in the order sheet of the election petitions. The High Court, relying on these copies in its judgment inter alia held that the election petitions were liable to be rejected on the ground that the copies which were served on the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords, it also appears that the vakalatnamas were signed by the Respondent No.1 on 4th of August, 2002 and received by the Registry on 6th of September, 2002. On 19th of August, 2002, Court Bailiff served two true copies of election petitions on the Learned Counsel for the Respondent No.1. From the above, it is therefore clear that the Learned Counsel for the Respondent No.1 had no authority to collect copies of the Election Petitions from the Registry of the High Court before 6th of September 2002 nor was it open to the Registry of the High Court to supply copies of the election petitions to the Learned Counsel for the Respondent No.1 before the vakalatnamas were filed on behalf of the respondent No.1 i.e. not before 6th of September 2002. Such being the admitted position, it is difficult to believe that such copies relied on by the learned counsel for the respondent No.1 were at all supplied by the Registry of the High Court to the learned counsel for the respondent No.1. For the reasons aforesaid, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Examination Form Question No.3 was as follows: - Q.3 Whether copies of the Petition and accompanying papers are also supplied for being made available to the Respondents and, if the sets of these copies are duly attested by the Petitioner under his own signature as true copy? The answer to this question No.3 from the appellants was 'Yes'. In the Examination Form (RW7), the Assistant Registrar at the end made an endorsement on 19th of July, 2002 to the following effect:- The petition is in order. We may direct the petition to be registered as election petition. (Emphasis supplied). From the aforesaid endorsement of the Assistant Registrar and in view of the answer given to question No.3 of the Examination Form which was duly examined by the Registry of the High Court and after such examination the note was appended saying that since election petitions were in order and therefore the Registry be directed to register the election petitions and further in view of the fact that from the order of the High Court dated 2nd August, 2002, it is evident, when the election petitions were taken up for preliminary hearing, the High Court noted appearance of the Learned Counsel for Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n our view, the High Court had committed an error in holding that the election petitions must be rejected for non-compliance of Section 81(3) of the Act on the ground that true copies of the Election Petitions were not served upon the respondent No.1. As noted herein earlier, the successful candidates/respondent No.1 in both the Election Petitions sought rejection of the election petitions inter alia on the following grounds: (1) Internal page 10 of Exhibit RW-1 which is the copy of the election petition after the prayer clause and verification there is no signature of the election petitioner. (2)The stamp in respect of the swearing of the affidavit was also absent on the copy of the election petition. (3)The affidavit accompanying the petition also does not bear the signature of the election petitioners. The High Court found that after the prayer clause at internal page 10 of the election petition above the petitioner and beneath the verification there was no signature of the election petitioner above the word petitioner and held that the copy of the election petition would show that the election petition was neither signed and verified nor was it attested before any authority. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) postulates that every copy of the election petition shall be attested by the election petitioner under his own signature to be a true copy of the petition. From a bare perusal of the defects which have been referred to hereinearlier, we can safely conclude that such defects cannot be said to be of vital nature. According to Respondent No.1, (1) there was no signature of the election petitioners at page 10 of the petitions after the prayer clause and verifications. (2) the stamp in respect of the swearing of the affidavit was also absent on the copy of the election petitions and, (3) the affidavit accompanying the petition also does not bear the signature of the election petitioners. The Supreme Court in Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore [AIR 1964 SC 1545] held as follows:- When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word petitioner was not necessary . The principles laid down as aforesaid were also followed in Anil R.Deshmukh Vs. Onkar Nath Singh [1999 (2) SCC 205]. So far as the 2nd defect namely the stamp in respect of the swearing of the affidavit was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam case are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86(1) of the Act for alleged non- compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying true copy of the affidavit to the appellant by the respondent. The difference of opinion was settled by the Constitution Bench in Jacob's case by enunciating the principles as noted hereinabove. We have carefully examined the defects as noted herein earlier and on a careful examination of the defects we cannot be persuaded to the view that the defects in the present case also are material or it was vital in nature or the absence of stamp of attestation could be treated to be a ground for rejection of the Election Petitions under Section 81(3) of the Act. It may be mentioned herein that the decision of this Court in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance with the provisions of Section 81(3) read with Section 83(1)(c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act ( Emphasis supplied ). Such being the position, we hold that the High Court was not justified in rejecting the election petitions for non-compliance of Section 81(3) of the Act. Let us now take up the question No.2 raised before us which is in respect of the fact that the election petitions when presented were not accompanied with as many copies thereof as there were respondents mentioned in the petition. On this score, the High Court in both the appeals held in favour of respondent No.1 inter alia on the following findings: a)The Additional Registrar of the High Court in its note/order did not disclose that when the election petitions were filed they were accompanied by as many copies thereof as there were respondents in the petition. Although, it was admitted that subsequently copies of the election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons aforesaid, 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. Coming now to answer the question no.3 as posed herein earlier, we find in the appeal of Chandrakant Uttam Chodankar Vs. Shri Dayanand Rayu Mandrakar Ors. (Election Petition No.1 of 2002 which gave rise to Civil Appeal No.6622 of 2003), the question no.3 was not pressed before the High Court and the Learned counsel appearing for the Respondent No.1 also did not advance any argument in support of such finding before us. However, in the other appeal, namely, in the appeal of Jose Philips Domingo D'Souza (Election Petition No.2 of 2003 which gave rise to Civil Appeal No.6750 of 2003), this question was pressed before the High Court and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue to their knowledge. Due to this defect it was held that the election petition was liable to be rejected for non compliance of section 83(1)(c) of the Act. From the record it appears that the election petitioner applied for copy on 11th July, 2002 and the same was ready for delivery on 16th July, 2002. According to High Court, Exhibit F could not be in possession of the election petitioner when the election petition was signed and verified and affidavit affirmed. According to Mr.Thali, learned counsel for the Respondent No.1, since election petition itself was filed on 16th July, 2002, Exhibit F could not come into possession of the Election Petitioners on 16th July, 2002. We are unable to accept this submission of Mr.Thali. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged to have been supplied to the Learned Counsel for Respondent No.1 could not, at all, be relied on by the High Court. Therefore, in the facts and circumstances of this case, the principles laid down by this Court in the case of J.P.Goyal Vs. Raj Narain Ors., cannot, at all, be applied. In view of our findings made hereinabove that the copies of the election petitions, which were alleged to have been served upon the Learned counsel for the Respondent No.1 by the Registry of the High court, could not, at all, be relied on and in view of the admitted fact that the Bailiff of the High Court had subsequently served true copies of the election petitions on the Learned counsel for the Respondent No.1, the High Court committed an error in rejecting the election petitions for non compliance of the provisions of Sections 81(3) and 83(1) (c) of the Act. Accordingly, the judgments of the High Court are hereby set aside and the matters are remitted back to the High Court for final disposal of the two election petitions, namely Election Petition No.1 and 2 of 2002 at an early date preferably within four months from the date of filing of a copy of this order in the High Court. The High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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