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TMI Blog1996 (3) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... liminary objections contending, inter alia that copy of the notice together with the affidavit in support of the election petition, i.e., Annexures 5 and 6, served on him, did not contain the verification by the notary; hence the election petition was not maintainable in accordance with Section 83(1)(c) of the Representation of the People Act, 1951 (for short, the 'Act'). The objections found favour with the High Court which accordingly dismissed the election petition by the impugned order dated August 30, 1994. 3. In C.A. No. 8080 of 1994, elections to the Assembly Constituency No. 152, viz., Sahada in the Rajasthan State were held on November 11, and respondent was declared elected on November 28, 1993. The appellant, after he lost the election, filed Election Petition No. 4 of 1994 challenging election of the respondent on the ground of corrupt practices alleged to have been committed by him. Similar to the case of Mrs. Shipra, copy of the affidavit filed in support of the election petition supplied to the respondent, did not contain the verification by the notary. When objection in that regard was raised by the respondent, the learned single Judge by judgment dated S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actice and the date and place of the commission of each such practice; and the election petitioner shall sign the petition and verify in the manner laid down in the Civil Procedure Code, 1908 for the verification of the pleadings. Sub-section (3) of Section 81 envisages that [E] very election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the election petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition . Indisputably, requisite number of copies of the election petition accompanied by the summons were attested by the appellant under her own signature to be true copy. The copy supplied to the respondent admittedly did not bear the attestation part. Rule 94-A of the Rule provides that the affidavit containing allegations of corrupt practices shall be in the prescribed form, viz., Form 25 which enjoins accompaniment of solemn affidavit to be duly sworn by the election petitioner duly verifying correctness of alleged corrupt practice mentioned in various paragraphs of the election petition and attestation by District Magistrate/Notary/Oath. Commissioner. The copy supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joined to file an election petition accompanied by an affidavit duly sworn by the applicant duly verifying diverse allegations of corrupt practices imputed to the returned candidate and attested by the prescribed authority it would be obvious that the statute intended that it shall be performed in the same manner as prescribed in Form 25 read with Rule 94-A of the Rules. The attestation of the affidavit by the prescribed authority, therefore, is an integral part of the election petition. The question, therefore, is : whether copy of the affidavit supplied to the respondent without the attestation portion contained in it (though contained in the original affidavit) can be considered to be a true copy ? 9. In Mithilesh Kumar Pande v. Baidyanath Yadav and Ors. [1984] 2 SCR 278 , in a situation analogous to the present one, question had arisen : whether the copy of an election petition, though attested by the election petitioner under his own signature, when it contained mistakes of vital character, could be considered to be a true copy and whether the mandatory requirement of Section 83(3) of the Act had been complied with ? This Court, after considering the entire case law includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable one. Opportunity should have been given to the appellant to have the defects corrected. In case the appellant had not carried out the correction, that part of the allegations which mentioned in the election petition alone is required to be struck off. The election petition cannot be dismissed under Section 86 of the Act since it is duly presented under Section 81. It would be done only at the trial, on proof of prejudice or the omission or prejudice caused to the respondent. In this case that step was not taken. In support thereof, the counsel cited catena of decisions of this Court, viz., Manohar Joski v. Nitim Bhaurao Patil A and Anr.: AIR 1996 SC 796 ; Subhash Desai v. Sharud J. Rao and Ors. [1994] 3 SCR 271 ; Clx. Subbarao v. Member, Election Tribunal, Hyderabad [1964] 6 SCC 213; Bhikaji Keshao Joshi and Anr.: v. Brijlal Nandlal Biyani and Ors.: [1955] 2 SCR 428 ; Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. [1964] 3 SCR 579 and Sahodrabai Rai v. Ram Singh Aharwai; [1968] 3 SCR 13 . We have carefully gone through all the cited decisions and given our anxious consideration to the respective contentions. In none of the cases the present question had arisen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation. 12. The contention that the election petition cannot be dismissed under Section 86 at the threshold on account of the omission on the part of the Registry of the High Court to point out the same as per its procedure, cannot be countenanced. Lapse on the part of the Registry is not an insurance to deny to the returned candidate the plea that the attestation of the affidavit and its certification to be a true copy is an integral part of the pleadings in the election petition. Section 81 83(1)(c) and 86 read with Rule 94-A of the Rules and form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on a objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question that must be posed, as indicated by this Court's previous decisions, is : does the document purporting to be a true copy of the election petition mislead in a material particular ? The true copy of the election petition furnished by the appellant (election petitioner) to the respondent (the successful candidate) did not show that the appellant's affidavit supporting his allegations of corrupt practice had been duly sworn or affirmed. Where corrupt practice is alleged, the election petitioner must support the allegation by making an affidavit in the format prescribed. An affidavit must be sworn or affirmed in the manner required by law, or it is not an affidavit. The document purporting to be a true copy of the election petition furnished by the appellant to the respondent gave the impression that the appellant's affidavit supporting his allegations of corrupt practice had not been sworn or affirmed and was, therefore, no affidavit at all; it misled in a material particular and its supply was, as the High Court held, fatal to the election petition. K.S. Paripoornan, J. 17. I respectfully agree with my learned Brethren that the appeals should be dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on petition- (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. 19. There are innumerable decisions of this Court which have construed the above statutory provisions. It is hardly necessary to refer to all of them. One of the latest decisions is F.A. Sapa and Ors. v. Singora and Ors. [1991] 2 SCR 752a . A mere look of the proviso to Section 83(1) along with Section 83(2) will show that the affidavit referred to in the proviso to Section 83(1) also forms part of the election petition. The election petition is in truth and reality one document, consisting of two parts - one being the election petition proper and the other being the affidavit referred to in the proviso to Section 83(1) of the Act. So, the copy of the election petition required to be filed under Section 81(3) read along with Section 83 will include a copy of the affidavit. See : M. Kamalum v. Dr. V.A. Syed Mohammed [1978] 3 SCR 446 20. Qazi, J. in Pumshotlam v. Returning Officer, Amravati and Ors. AIR 1992 Bom 227 has, after referring to the above decision of this this Court along with the other decisions and an unreported de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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