ORDER
B.R. Arora, J.
1. The petitioner, whose nomination paper was rejected by the Returning Officer, Rajsamand, has called in question the election of Mr. Shanti Lal from Rajsamand Assemply Constituency No. 1 (reserved) on the ground of improper rejection of her nomination paper and, also, on the ground of commission of corrupt practices in elections by Shri Shanti Lal.
2. A Notification under Section 15(2) of the Representation of the People Act, 1951 (for short, ‘the Act’) was issued by the Election Commission calling upon the various constituencies to elect Members for the Rajasthan Legislative Assembly including the Rajsamand Assembly Constituency No. 1, which was reserved for Scheduled Caste. As per the Programme, issued by the Election Commission under Section 30 of the Act, October 19, 1993 was the last date fixed for filing the nomination. 20th October, 1993 was the date for scrutiny of the nominations, 22nd October, 1993 was the last date for withdrawal of the nomination (s) and 11th November, 1993 was the date on which the polling was to be held. The petitioner, as alleged by her, being a member of the Scheduled Caste, was eligible to contest the election from this reserved constituency. Petitioner’s candidature was sponsored by the Indian National Congress. She, therefore, as a condidate of the Indian National Congress, filed her nomination from this constituency. In all fifteen candidates filed their nominations from this reserved constituency. At the
time of scrutiny, the eligibility of the petitioner to contest the election from this reserved constituency was challenged by one Smt. Pushpa Khatri on the ground that by birth the petitioner is Goswami by caste, which is not recognised as a Scheduled Caste in Rajasthan and she is not the legally wedded wife of Mr. Ratan Lal Khatik because at the time of her alleged marriage with Mr. Ratan Lal Khatik, his earlier marriage with Smt. Chhagni was subsisting. The Returning Officer, after satisfying himself that Dr. (Smt.) Shipra does not possess the necessary qualification for contesting the election from this reserved constituency, accepted the objections raised by Smt. Pushpa Khatri and rejected the nomination of the petitioner by holding, firstly, that Dr. (Smt.) Shipra is not the member of the Scheduled Caste and, secondly, that she has not filed the necessary declaration under Section 33(2) of the Act specifying the particular caste to which she belongs. The nominations of other fourteen candidates were found in order and they were accepted by the Returning Officer. After the scrutiny, seven of the candidates, whose nominations were found in order, withdrew from the contest and the election, which took place on 11-11-93, was contested by seven persons and after election, Mr. Shanti Lal (the respondent) was declared ‘elected’ to represent the aforesaid reserved constituency.
3. The petitioner called in question the election of Mr. Shanti Lal from Rajsamand Reserved Constituency, by this election petition. The respondent, after service of the summons and the copy of the election petition, without filing reply to the election petition, raised certain Preliminary Objections regarding the maintainability of the election petition.
4. It is contended by the learned counsel for the respondent that the election petition, filed by the petitioner, deserves to be dismissed on the grounds that : (i) the election petition has not been properly verified by the petitioner as it does not disclose the source of information with respect to Paragraphs Numbers 9 to 12 of the election petition, which have been varified as true on the basis of
the information received; (ii) there is no proper verification of Annexure 4, Annexure 5 and Annexure 6; (iii) Smt. Pushpa Khatri who raised the objection and the Returning Officer whose order has been challenged, have not been made parties to the proceedings; (iv) the cost has not been deposited in accordance with the Rules; (v) the election petition does not disclose any cause of action and no triable issue arises in this election petition; and (vi) the copy of the affidavit, supplied with the election petition does not contain the attestation clause and as such it cannot be said to be a true and correct copy of the election petition. In reply to the Preliminary Objections raised by the learned counsel for the respondent, pointing-out certain defects regarding the maintainability of the election petition, it is contended by the learned counsel for the petitioner that (i) there is no defect in the verification of the election petition and the verification has been made in accordance with law. Alternatively, it is submitted that mere defect in the verification of the election petition is not fatal to the maintainability of the election petition and the petition cannot be thrown-out solely on the ground of the defect found in the verification because it can be cured under Section 83(1)(c) of the Act; (ii) so far as verification of Annexures 4, 5 and 6 is concerned, it is contended by the learned counsel for the petitioner that the original of Annexure 4, Annexure 5 and Annexure 6 have already been placed on record and the verification have been made in accordance with the law and if at all there is any defect in the same, the defect is curable and can be cured by the petitioner; (iii) regarding third preliminary objection it is contended by the learned counsel for the petitioner that neither Smt. Pushpa Khatri nor the Returning Officer are the necessary parties as per Section 82 of the Act because the contest of the election petition is confined to the candidates at election and all others are excluded; (iv) so far as deposit of the amount of Rs. 2000/- as security for the cost of the election petition is concerned, it is submitted that the petitioner has already deposited the same in accordance with Rules 820 to 822 of the Rules of the High
Court of Judicature for Rajasthan (for short, ‘the Rajasthan Rules’); (v) the election petition filed by the petitioner contains all the material particulars regarding corrupt practice committed by the respondent and (vi) the attestation part of the affidavit is not the content or part of the affidavit and, therefore, it was not necessary to supply the copy of the same. The true and correct copy of the election petition has, therefore, been supplied to the respondent. It was, therefore, prayed by the learned counsel for the petitioner that the preliminary objections, raised by the respondent, deserve to be dismissed and ignored.
5. I have considered the submissions
made by the learned counsel for the parties.
6. The first preliminary objection, raised by the learned counsel for the respondent, is that the election petition is not properly verified as it does not disclose the source of information with respect to Paragraphs Numbers 9 to 13. Before considering the controversy and to see the provisions of the law, it is necessary to look-into the verification appended to the election petition, which reads as under:–
“I Dr. (Smt.) Shipra, abeve-named petitioner, on this 11th day of January, 1994, verify that the contents of Paragraphs Nos. I to 8 are true to my knowledge and the documents referred to therein and the con-tents of Paras Nos. 9, 10, 11, 12 and 13 are true on the basis of the information received and believed to be true.”
7. Section 83 of the Act deals with the contents of the election petition and states that an election petition shall be signed by the petitioner and verified in a manner laid down in the Code of Civil Procedure for the verification of the plaint. Order 6, Rule 15, C.P.C. deals with the verification of pleadings and states that the person verifying it shall specify, by reference to numbered paragraphs of the pleadings, what he/she verifies of his/her own knowledge and what is verified upon the information received and believed to be true. The object of verification is to test the genuineness and authenticity of the aver-
ments made in the election petition and to fix responsibility for the allegations made on the person who verifies it and to ensure that false allegations are not made recklessly. A false verification has, therefore, been made punishable under Sections 191 and 193 of the Indian Penal Code. The verification made by the petitioner in the election petition, though does not disclose the source of information but as per the requirement of law, it is not necessary to do so. Merely stating that the statement made in these paragraphs, i.e., Paragraphs Numbers 9 to 13 are true on the basis of the information received and believed to be true is he sufficient compliance of Order 6, Rule 15, C.P.C. and it is not necessary in the verification clause to disclose the grounds or the source of information in regard to the averments which are based on the information received. In the case of F.A. Sapa v. Singora, AIR 1991 SC 1557 it has been held , that it is not essential that the verification clause, on the foot of the election petition or the affidavit accompanied to the election petition, should disclose the grounds or the source of information in regard to the averments or allegations which are based on the information believed to be true. Similar view has, also, been taken by the Hon’ble Apex Court in the case of : K. M. Mani v. P. L. Anthony, AIR 1979 SC 234 wherein it has been held that it is enough for the election petitioner to say that the averments made in the paragraphs are true to his/her information. In view of the judgments of the Hon’ble Supreme Court in these two cases and the requirements of the law, it was not necessary for the election petitioner to disclose the source of the information. The contention, raised by the learned counsel for the respon-dent, is, therefore, devoid of any force.
8. The next preliminary objection, raised by the learned counsel for the respondent, is that proper verification of the documents has not been made and the documents .Annexure 4, Annexure 5 and Annexure 6 are the integral part of the election petition and, therefore, the election petition deserves to be dismissed on this ground. As per Section 83 of the Act, the manner, in which the verification has to be made on the election petition, has been
provided but no Pro-forma : how the verification is to be made has been given. It is only the authenticity, the publication in news paper(s) and the distribution in the area which are required to be verified and that verification has been made by the petitioner. The verification on the documents Annexure4, Annexune 5 and Annexure 6, made by the petitioner, is in accordance with law and the contention raised by the learned counsel for the respondent is devoid of any force.
9. The next preliminary objection, raised by the learned counsel for the respondent, is that Smt. Pushpa Khatri, who raised the objection, and the Returning Officer, whose order has been challenged, have not been made parties to the proceedings. Section 82 deals with the ‘Parties to the election petition’. Section 83 deals with the contents of the election petition and Section 84 deals with the relief that may be claimed by the petitioner. Chapter III of Part VI deals with the trial of election petition. According to Section 82 of the Act, if an election of a returned candidate is called in question without any relief that he himself or other candidate should be declared as duly elected candidate, it is only the elected candidate who is a necessary party, but in a case where the declaration has been made that he himself or other person should bedeclared duly elected then all the candidates, who were in the fray, should be made parties and in case of corrupt practice, the candidate, against whom such allegations are levelled, should 5e made a party to the election petition. In the trial of election petition, provisions of Code of civil Procedure have been made applicable to a limited extent and the concept of impleading the proper parties cannot be imported to the election petition as this concept is alien to these proceedings. The answer to the question; who is to be impleaded as a party to the election petition has to be seen in the four corners of the Act itself because the Act is a complete Code which does not contemplate joinder of a person or authority as parts to an election petition. Only those can be joined as respondents who are mentioned in Section 82 and Section 86(4) of the Act. As per Section 82 of the Act, it is a dispute confined to the candidates at election
and all other persons are excluded and they cannot be joined as parties in the election petition on the principle of ‘fair play and equity’. Though the election is a dispute in which the constituency itself is the principal party interested but he contest of the election petition is confined to the candidates at the election and all other are excluded and therefore, Smt. Pushpa Khatri, who raised the objection, is not a necessary party to the election petition. It has been held by the Hon’ble Apex Court in : Jugal Kishore Patnayak v. Ratnakar Mohanty, AIR 1976 SC 2130 that a person, , who raised an objection to the validity of the nomination paper of the petitioner, is not a necessary party to the election petition and the requirement of the law is satisfied when the successful candidate has been impleaded as a party respondent. Similarly, the Returning Officer whose order has been challenged by the petitioner, is not a necessary party because the election petition is not in the nature of an appeal and the proceedings are in the nature of original proceedings. It has been held in Jyoti Basu v. Devi Goshal, AIR 1982 SC 983 that “the concept of ‘proper party’ is and must remain alien to an election dispute. Under the Act, only those may be joined as respondents to an election petition, who are mentioned in Sections 82 and 86(4) and not the others. However, desireable and expedient it may appear to be, none else shall be joined as the respondents.” As neither Smt. Pushpa Khatri, who raised the objection, nor the Returning Officer, whose order has been challenged, were the candidates to the election and as such they did not fall within the purview of Section 82 of the Act and hence they are not the necessary parties to the election petition. The contention, raised by the learned counsel for the respondent, on this count, is bereft of any force and deserves to be rejected.
10. The next preliminary objection raised by the learned counsel for the respondent is that the sum of Rs. 2000/- as security for the costs of the election petition, as required under Section 117 of the Act, was not deposited by the petitioner in accordance with the Rules and, therefore, the election petition
deserves to be dismissed on this score also. As per Section 117 of the Act, the petitioner is required to deposit in the High Court, in accordance with the Rules of the High Court, a sum of Rs. 2000/ – as security for the costs of the petition. Part VIII of Chapter XXXV of the Rajasthan Rules deals with the deposit and payment of money. Rule 820 of the Rajasthan Rules states that payment of money shall be made by means of printed tender form in triplicate duly filled-in by the payer. Rule 821 of the Rajasthan Rules provides that the payer shall present the form to the Deputy Registrar and the Deputy Registrar shall call for the report from the Official in charge of the Record of the case as to the correctness of the amount, the nature of the payment tendered and the number of the case, if any, as entered in the form and whether the payment is due from the person On whose behalf it is tendered. The Deputy Registrar then puts his signatures on the tender form, shall get the tender entered in the Register of Tenders as well as sign the order to receive payment on the duplicate and triplicate forms. Thereafter the original tender shall be retained in the safe custody by the Superintendent. Accounts Section, the duplicate and triplicate forms being returned to the payer for presentation and payment of money to the Officer named in the order, i.e., the Cashier of the Treasury. Rajasthan Rule 822 provides that on presentation of the two tender forms and on payment of the money to the Officer named in the order to receive payment, the payer shall receive as an acknowledgment one of the forms of tender duly signed and the other form shall be retained as a voucher by the Treasury or the Cashier and posted in a file book.
11. The petitioner, in the present case, deposited Rs. 2000/- as security for the costs of the petition in accordance with Rajasthan Rules 820, 821 and 822. She filled all the columns of the tender form in triplicate, presented it to the Deputy Registrar, who called the report from the Officer in charge and after obtaining the report, signed the same and ordered to receive the payment and thereafter the petitioner deposited the amount in treasury/bank. As acknowledg-
ment of the payment of the amount, she was given one form of tender duly signed, which has been produced by the petitioner along with the Election Petition. The security for the costs of the election petition, has, thus, been deposited by the petitioner in accordance with the Rules. There is no illegality Committed by the petitioner in depositing the amount of security for the cost. The conten-tion, raised by the learned counsel for the respondent, is, therefore, devoid of any force.
12. The next preliminary objection, raised by the learned counsel for the respondent is that the facts necessary to formulate a, complete cause of action are missing and the allegations regarding the corrupt practices by the returned candidate during the election are vague, bereft of material particulars and do not disclose any triable issue fit to be decided by the Court and the election petition, therefore, deserves to be dismissed. In support of this contention, learned counsel for the respondent has placed reliance over : Samant Balakrishna v. George Ferandiz, AIR 1969 SC 1201, Udhav Singh v. Madhav Rao Sindhia, AIR 1976 SC 744, Azhar Hussainv. Rajiv Gandhi, AIR 1986 SC 1253, Dhartipakar Madan Lal Agrawal v. Rajiv. Gandhi, AIR 1987 SC 1577, K. C. Madhava v. Muraleedharan, AIR 1991 Kerala 20 and Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392 : (1994 AIR SCW 2028). The contention of the learned counsel for the petitioner, on the other hand, is that all the facts which are essential to clothe the petition with complete cause of action have been pleaded. The allegations regarding corrupt practice, made in the election petition, are specific and clear and contain all necessary details. The petition discloses some triable issue fit to be decided by the Court and the election petition, therefore, cannot be dismissed at the threshold without being tried. In support of its contention, learned counsel for the petitioner has placed reliance over ; S. R. Bommai v. Union of India, (1994) 2 JT (SC) 215 : (AIR 1994 SC 1918).
13. Section 83 of the Act, which deals with the contents of the election petition, provides that it shall contain a concise state-
ment of the material facts on which the petitioner reliefs; and shall set-fourth 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. In an election petition, pleadings are regulated by Section 83 and it makes it obligatory on the petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. Pleadings provide a guide for the proper mode of trial and show at their face whether a reasonable cause of action or defence is disclosed. In William v: Wilcox ((1878) 4 QBD 127, 133) it has been stated that “it is an elementary rule in pleadings that, when a state of facts is relied, it is enough to allege it simply, without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegations”. It has been held by the Supreme Court in Mohan Rawale v. Damodar Tatyba (1994) 2 SCC 392 : (1994 AIR SCW 2028) that “an election petition can be rejected under Order VII, Rule 11(a), C.P.C. if it does not disclose the cause of action. Pleadings could, also, be struck out under Order VI, Rule 16, inter alia, if they are scandalous, frivolous or vexatious. The latter two expressions meant cases where the pleadings are obviously frivolous or vexatious or obviously unsustainable.” The Supreme Court, in the case of Laxmi Narayan v. Ram Ratan Chaturvedi (1990) 2 SCC 173 : (AIR 1991 SC 2001), after dealing with a catena of the judgments of the Supreme Court, laid down the principles regarding the nature of the pleadings in an election-petition, which reads as under:–
“(1) the pleadings of the election petition in his petition should be absolutely precise and clear, containing all necessary details and particulars as required by the law vide Dhartipakar Madan Lal Agrawal v. Rajiv Gandhi, AIR 1987 SC 1577 and Kona Prabhakara Rao v. M. Seshagiri Rao (1982) 1 SCC 442 : (AIR 1981 SC 658).”
“(2) The allegations in the election petition should not be vague, general in nature or lacking all materials of frivolous or vexatious
because the Court is empowered at any stage of the pleadings to strike down or delete -pleadings which are suffering from such vices as not alleging any triable issue, vide Manphul Singh v. Surrinder Singh (1973) 2 SCC 599 : (AIR 1973 SC 2158), Kona Prabhakaran Rao v. M. Seshagiri Rao (supra) and Dhartipakar Madan Lal Agrawal v. Rajiv Gandhi (supra).”
The same view was reiterated by the Supreme Court in: Quamarul Islam y. S.K. Kanta, (1994) 1 JT (SC) 452 : (AIR 1994 SC 1733). The law, thus, requires that an election petition shall contain a concise statement of material facts and set-fourth full particulars of corrupt practice in, clear and precise manner. The basic facts, which constitute the ingredients of particular corrupt practice alleged by the petitioner, mu.st be specified. All the facts which are essential to clothe the petition with complete cause of action may be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act. In the light of the above settled principles, 1 would like to first examine the pleadings including the affidavit filed by the election petitioner in support of the allegations of corrupt practice, to find-out whether they specify these tests.
14. In the present case, the election of the returned candidate has been challenged on two grounds, i.e. (i) on the ground wrongful rejection of the nomination of the petitioner; and (ii) on the ground of commission of corrupt practices by the respondent. The material facts and particulars regarding improper rejection of the nomination of the petitioner are given in paras Nos. 1 to 6 and the grounds with respect to same have been given in para No. 9; and with respect to the corrupt practice, the material facts and particulars have been given in para No. 10. Nothing has been argued by the learned counsel for the respondent regarding the grounds of improper rejection of the nomination of the petitioner, taken in para No. 9, and the only argument, raised by the learned counsel for the respondents, is that the grounds given in para No. 10, relating to
corrupt practice committed by the respondent, does not disclose the cause of action nd the material facts and particulars have not been stated. After perusal of the grounds, taken in paragraphs Nos. 9 and 10, I am of the opinion that the election petition does disclose some triable issue fit to be decided by the Court and it is not a case of failure of the pleadings to disclose reasonable cause of action. The election petition, filed by the petitioner, therefore, cannot be dismissed at the threshold on this ground. The contention, raised by the learned counsel for the respondent is, therefore, bereft of any substance.
15. The last preliminary objection, raised by the learned Counsel for the respondent is that the copy of the election petition, served on the respondent along with the summons, does not bear the attestation/affirmation part, i.e., the endorsement by the officer/ Oath Commissioner administering the oath/ affirmation to the petitioner. The place and date of administering the oath are, also, missing. Omission to supply endorsement part in the affidavit, which is an essential part of the affidavit, which, in turn, is integral part of the election petition, constitutes non-compliance of Section 81(3) of the Act and renders the petition liable to be dismissed under Section 86(1) of the Act. The case of the learned counsel for the petitioner, on the other hand, is that the endorsement by the Oath Commissioner is not the integral part of the contents of the petition and the omission to supply this part will not affect the defence of the respondent in any way. The respondent can inspect the record and find-out, after the inspection, whether the copy of the petition, supplied to the respondent, is a true and correct copy of the petition or not and by supplying the copy of the election petition along with the annexures and the affidavit, the compliance of Section 81(3) of the Act has been made and the election petition cannot be dismissed under Section 86(1) of the Act at the threshold.
16. This takes us to the point: whether omission to supply attestation or affirmation part of the affidavit, i.e., the endorsement by the authority administering the oath in the
afffidavit, constitutes a non-compliance of the mandatory provisions of Section 81(3) so as to render the petition liable to be dismissed under Section 86(1) of the Act. This controversy has two facets — the first facet of the controversy is: whether the endorsement by the authority administering the oath is the essential and integral part of the affidavit accompanying the election petition; and whether the affidavit, which is required to be filed in the prescribed form along with the election petition in support of the allegations of corrupt pracice, if the petitioner alleges any corrupt practice, is an integral part of the election petition; and the second facet of this controversy is : what will be the effect.of non-bearing of this attestation in copy of the election petition?
17. The first question, which arises for consideration, is: what constitutes an election petition for the purpose of Sub-section (3) of Section 81 of the Act — does it contain only the election petition proper or it, also, includes a supporting affidavit referred to in the proviso to Sub-section (1) of Section 83 of the Act? Section 83 of the Act deals with the contents of the election petition. Sub-section (I) of Section 83 sets-out what an election petition shall contain and further provides that it shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of it. The proviso appended to Sub-section (1) of Section 83 requires that where the election of the returned candidate has been called in question is based on the ground of alleged corrupt practices then as per proviso to subsection (1) of Section 83 of the Act, it shall be accompanied by an affidavit in the prescribed form in support of the allegation(s) of corrupt practice and the particulars thereof. Insertion of proviso to Sub-section (1) of Section 83 lays down what shall be the contents of the election petition. The language of this section clearly shows that the affidavit, filed in support of the election petition where the election of the returned candidate has been called in question on the ground of corrupt practice, is intended to be regarded as part of the election petition. Section 83(2) of the Act,
also, by anology, supports this fact. It has been held by the Supreme Court in the case of: M. Kamalam v. Dr. V.A. Syed Mohammad, AIR 1978 SC 840 that “election petition, for the purpose of Sub-section (3) of Section 81, is confined not only to the election petition proper but it, also, includes a Schedule or annexure contemplated in Sub-section (2) of Section 83 of the Act and a supporting affidavit, referred to in the proviso to Section 83(1). The election petition is truely and in 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….. In
fact the copy of the affidavit consists the end-portion of the copy of the election petition”. The view taken by the Apex Court in the case of: M. Kamalam was reiterated by the Apex Court in the case of M. Karanuanidhi v. H,N Handa, AIR 1983 SC 558 and it has been held that the affidavit is an integral part of the election petition.
18. The next question, which requires consideration, is: whether the endorsement of the authority regarding oath or affirmation, is an integral part of the affidavit, which, in turn, is an integral part of the election petition? According to Sub-section (3) of Section 3 of the General Clauses Act, “affidavit” shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. It is an inclusive definition and does not define the “affidavit” by setting out its connotation. In general, “affidavit” is a written declaration/ statement made on oath or affirmation before an authorised officer. As per Rule 94A of the Rules, the affidavit shall be sworn before a Magistrate of First Class or a Notary or a Commissioner of Oath and shall be in Form 25. Form 25 prescribes the Form of the affidavit, which reads as under:–
FORM 25
(Rule 94-A)
1,….., the petitioner in
the accompanying election petition calling in question the election of Shri/
Shrimati….. (respondent No. ….. in
the said petition) make solemn affirmation/ oath and say–
(a) that the statements made in paragraphs ….. of the accompanying election petition
about the commission of the corrupt practice of ….. and the particulars of such corrupt
practice mentioned in paragraphs ….. of the
same petition and in paragraphs ….. of the
Schedule annexed thereto are true to my personal knowledge.
(b) that the statements made in paragraphs ….. of the said petition about the commission of the corrupt practice of* ….. and
the particulars of such corrupt practice given in paragraphs….. of the said petition and in
paragraphs ….. of the Schedule annexed
thereto are true to my information;
(c) …..
(d) …..
etc.
Signature of deponent.
Solemnly affirmed/sworn by Shri/ Shrimati..... at..... this ..... day of..... 19-. Before me, Magistrate of the first class/ Notary/Commissioner of Oaths) *Here specify the name of the corrupt practice.)
The affidavit, thus, requires a solemn affirmation or oath before the person duly authorised and then at the foot of which the signature of the deponent should appear and below that the Officer authorised to administer oath himself puts his signature in token of that he administered the oath or the deponent affirms declaration and further that the deponent has signed in his presence. By attestation the authorised authority subscribes to both these aspects. The essential ingredients of an affidavit are: (i) making a declaration/statement relevant to subject-matter by the deponent; and (ii) swearing of or affirmation of the truth of the declaration
or the statement before the authority who is authorised to administer the oath or to accept the affirmation. The oath or solemn affirmation, which supports the statement/declaration is an essential ingredient of the affidavit and is its integral part. It is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation, and the affidavit not sworn before the authorised authority is no affidavit in the eye of law. The attestation and affirmation part of the affidavit and the endorsement made by the authorised authority to subscribe that the deponent had administered the oath and signed the declaration in his presence, is, thus, the integral part of the affidavit, which, in turn, is an integral part of the election petition.
19. Before dealing with the next controversy, it will be proper to consider the cases, on which reliance has been placed by the learned counsel for the respondent in support of his contention.
20. In K. Madhava Kurup v. K. Muraleedharan AIR 1991 Kerala 20, the election of the returned candidate for the Lower House of Parliament from Kozhikoda Parliamentary Constituency was challenged on the ground of commission of corrupt practice and an affidavit in support of the election petition was filed, which was attested by a Senior Superintendent of the Directorate of Treasury. As the affidavit was not in a proper form and was not attested by a competent person, therefore, the Court dismissed the election petition on the ground of non-production of a proper affidavit as it is in violation of Section 83 of the Act. The case, though relied upon by the learned counsel for the respondent, is not applicable in the present case as the present controversy was not the subject-matter in Kerala’s case.
21. In Purshottam v. Returning Officer, Amrawati AIR 1992 Bombay 227, the election of the Members of Maharashtra Legislative Council from Amrawati Constituency was challenged on several grounds including the ground of corrupt practice alleged to have been committed by the returned candidate. A
copy of the affidavit supplied by the petitioner along with the election petition, did not bear the name and designation of the Notary and, also, did not contain the endorsement made under the signatures of the Notary which found place in the original affidavit. The copy of the affidavit served on the respondent, also, did not contain the stamps of the Notary about the affirmation before him. The single Bench of the Bombay High Court held that the absence of endorsement of the Notary on the copy of the affidavit accompanied to the election petition does not conform to Section 83 of the Act and, therefore, the election petition is liable to be dismissed on account of this omission.
22. In Jhammak Lal v. Dr. Laxmi Narain and others (S.B. Election Petition No. 9 of 1991–decided on 7-12-1992) similar controversy was under consideration before the Madhya Pradesh High Court. The election petition was filed by an elector challenging the election of the returned candidate Dr. Laxmi Narain Pandey from Mandsore Parliamentary Constituency on the ground of corrupt practice. The copy of the election petition, served on the respondent along with the summons, did not contain the affirmation part in the affidavit. A preliminary objection was raised that for want of necessary details in the affidavit, as supplied to and served on the respondent, the copy is not the true copy of the election petition and it is fatal to the maintainability of the election petition. After discussing the law on the point, a single Bench of Madhya Pradesh High Court held that the affidavit sworn by the petitioner in support of the allegations of corrupt practice being an integral part of the petition, has not been supplied to the respondent in its true form. Being an integral part of the petition, failure to comply with the requirement of Section 81(3) of the Act renders the petition liable to summary dismissal for the non-compliance of the provisions of Section 81(3) of the Act. The election petition, filed by the petitioner, was, therefore, dismissed. The controversy raised in Jhammak Lal’s case is the same which has been raised in the present case and this case is fully applicable to the present controversy.
23. In Mani Ram v. Surinder Kumar AIR
1993 Punj and Har 152, the election of Surinder Kumar from the Kaithal Assembly Constituency of Haryana was challenged on the ground of commission of corrupt practice in the election by the returned candidate. Two preliminary objections were raised by the respondent, namely, (i) that the election petition does not contain the concise statement of material facts and particulars and as such does not disclose the cause of action; and (ii) that the affidavit filed in support of the allegation of corrupt practice, was not in accordance with the law. A single Bench of Punjab and Haryana High Court held that the petition does not disclose any cause of action and, therefore, deserves to be dismissed. Regarding the defect in the affidavit, the Court opined that the affidavit in support of the allegations of corrupt practice is clearly defective and contrary to law. The verification of the paragraph pertaining to the allegation of corrupt practice, was not made in accordance with law and it was not disclosed what part of the paragraph of Paragraphs Nos. 4(i) and 4(ii) were correct according to his own information and what on the basis of the information supplied by Satpal and Narain Das. It was, therefore, held that the effect of omission is, however, rendered academic by the petition being liable to be dismissed on the earlier issue as disclosing no cause of action. The controversy, raised in the Punjab and Haryana’s case is different from the controversy raised in the present case and, therefore, this judgment is, also, of no avail to the learned counsel for the respondent.
24. In Shanti Lal v. Guman Mal Lodha
1994 (1) WLC (Raj) 308, the election of the respondent as a Member of Parliament from Pali Constituency was challenged on the ground of corrupt practice. An affidavit was filed in support of the election petition as required under the proviso to Sub-section (1) of Section 83 of the Act. A copy of the affidavit, supplied to the respondent, did not bear the attestation part. The Court, after considering the necessary ingredients of an affidavit, held that “to constitute an affidavit as required under Rule 94A of the Rules of 1961, besides the affidavit of the deponent, the
endorsement regarding attestation of the affidavit and the name and designation of the person attesting the affidavit, is, also, necessary. In other words, such attestation is a sine quo non for a valid and legal affidavit.” The effect of non-supply of the attestation part of the affidavit was, also, considered in this case and the Court held that non-supply of the attestation part of the affidavit is a clear-cut case of violation of the provisions of Section 81(3) read with Section 83(1) of the Act, which is likely to cause material prejudice to the respondent. This material omission and lapses on the part of the petitioner was not considered formal and the learned single Judge of this Court, therefore, dismissed the election petition filed by the petitioner, The controversy, raised in the present case, is similar to that which came up for consideration in Shanti Lal’s case.
25, Now, I take up the cases relied upon by the learned counsel for the petitioner. In Ch. Subbarao v. Principal, Election Tribunal, Hyderabad AIR 1964 SC 1027, the election of the returned candidate from Phirangipuram Constituency in Guntur district in Andhra Pradesh, was challenged. The copy of the election petition, which was served upon the respondent, was not attested at the foot of the copy that it was the true copy. It was held that the absence of the note on the copy that it was a true copy, could not detract the copy to be a ‘true copy’. It was also, held that if there is a total and complete non-compliance of the provisions of Sub-section (3) of Section 81, the election petition may not be “an election petition presented in accordance with the provisions of this part” within Section 80 of the Act. The facts and circumstances of this case show that there had been a substantial compliance with the requirement of Subsection (3) of Section 81 of the Act and, therefore, as the Court found that the insertion of the words ‘true copy’ were not found necessary and the copy was treated as substantially the same as original. This mistake, pointed out by the learned counsel for the respondent in that case, the insignificant and, therefore, the Court refused to dismiss the election petition and held that the sufficient compliance has already been made. This case
of the Supreme Court is not applicable in the present case because here the attestation part, which is an integral part of the affidavit, is missing.
26. In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545, the election of Murarka from Jhun-jhunu Parliamentary Constituency was challenged on the ground of corrupt practice and the copy of the election petition, served upon the respondent did not contain the signatures of the petitioner at the foot of the petition though the original contents were substantially shown in it. It was held by the Apex Court in that case that every page of the copy, served on the respondent, to the election petition was attested to be a true copy under the signature of the petitioner, a fresh signature below the word ‘petitioner’ was not necessary. It was further held that the word ‘copy’ in Sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can, by any possibility, misunderstand it. The test whether the copy is a true one, is whether any variation from the original is calculated to mislead an ordinary person. In the case of Murarka Radhey Shyam above the word ‘petitioner’, typed in the last page of. the election petition, the signature of the petitioner was missing whereas it was found place in the original, though this page contained the signature of the petitioner attesting it to be ‘true copy’. The defect, pointed-out by the respondent, was inconsequential in nature. This mistake was treated as insignificant or the minimal mistake. This case was considered and explained by the Apex Court in the case of: Mithilesh Kumar Pandey v. Baidya-nath Yadav, AIR 1984 SC 305 in the following words (para 10):–
“In other words, this Court merely meant to indicate that where the variation is so minimal and insignificant that it is incapable of misleading any person as to the true purport of the allegation, it would be substantial compliance of the provisions of Section 81(3) of the Act.”
The Court further held that (AIR 1984 SC 305, para 15):–
“A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or mininal mistake, the Court may not take notice thereof.
….. Where the copy contains important
omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate if it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act.
‘….. Prima facie, the statute uses the
words ‘true copy’ and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act.”
As the copy of the petition, served on the returned candidate, contained only insignificant and unsubstantial mistakes, the Court, therefore, took the view that the substantial compliance of the provisions of Section 81(3) has been made. But in the present case, the copy contained a material omission regarding attestation clause in the affidavit, which is an integral part of the affidavit and which, in turn, is an integral part of the election petition and, therefore, there is non-compliance of the provisions of Section 81(3) of the Act. The judgment of the Supreme Court in Murarka Radhey Sham’s case (AIR 1964 SC 1545) is. therefore, of no assistance to the learned counsel for the petitioner as it is not applicable in the facts and circumstances of the present case.
27. In M. Kamalam v. Dr. V.A. Syed Mohammed AIR 1978 SC 840, the election of the returned candidate to the Lok Sabha from Kojikode Constituency was challenged inter alia on the ground of corrupt practice. The copy of the petition, served on the respondent, was signed and verified and was accompanied with the affidavit in support of the allegations of corrupt practice and their particulars. The signature of the petitioner, by way of authentication, appeared at the foot of
the copy of the affidavit but there was no such signature separately appended at the foot of the copy of the election petition. A preliminary objection was raised by the respondent that since the copy of the election petition has not been attested by the petitioner under her own signatures to be a true copy and, therefore, the compliance of Subsection (3) of Section 81 of the Act has not been made and hence the election petition is liable to be dismissed in view of the provisions of Sub-section (1) of Section 86 of the Act. In repelling the contention, raised by the learned counsel for the respondent, the Court observed that the second part of Sub-section (3) of Section 81 has been complied with as the copy of the petition and the affidavit along-with it, as required by law, constituted one document and the signatures of the petitioner in proof of the affidavit is sufficient compliance of the requirement of Sub-section (3) of Section 81 of the Act. The Court further held that, in fact, the copy of the affidavit constituted the end portion of the copy of the election petition and the signature placed by the petitioner at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy and it authenticated the whole of the copy of the election petition to be the ‘true copy’. In the case of M. Kamalam, also, the sufficient compliance of the provisions of Sub-section (3) of Section 81 was made as on the last page of the affidavit, attestation regarding the true and correct copy, was made and the mistake, pointed-out by the respondent, was found insignificant or minimal. This case was, also decided on the basis of the judgment given in : Ch. Subbarao’s case, reported in AIR 1964 SC 1027. This case of the Supreme Court is, also, not applicable to the facts of the present case because here the attestation part of the affidavit is missing and the copy contained important omission of vital nature which are likely to cause prejudice to the defence of the returned candidate and, therefore, it cannot be said that there has been sufficient compliance with the provisions of Section 81(3) of the Act.
28. In Ganga Ram Bendil v. Rashmi Parihar AIR 1987 Madh Pra 208, theelection of the returned candidate as a Member of the Legislative Assembly from Lashkar (East)
Constituency of Madhya Pradesh, was challenged on the ground of corrupt practice committed by the returned candidate. The copy of the election petition, which was served on the returned candidate along with the summons, did not contain the attestation part, i.e., the endorsement by the authorised authority administering the oath or affirmation to the election petitioner though the endorsement made by him found place in the original affidavit a preliminary objection was raised that the copy, supplied to the respondent, is not the true and correct copy of the election petition in view of the mandatory provisions of Section 81(3) and, therefore, the election petition deserves to be dismissed in view of the provisions of Sub-section (1) of Section 86 of the Act. The Division Bench of Madhya Pradesh High Court, relying upon the earlier judgment of that Court, held that “an affidavit accompanying an election petition forms integral part of the election petition.” It was, also, held that the true copy of the affidavit, i.e.. the election petition, based on corrupt practice, though complete in all respects but does not disclose the particulars of the persons who did the corrupt practice and. also, the absence of the attestation clause, would not render the election petition liable to be dismissed. According to the Division Bench judgment of the Madhya Pradesh High Court, what is material is the form and contents of the affidavit pertaining to the allegations and the particulars of the corrupt practice in the election. The proce-dural formalities of administration of oath and endorsement on the affidavit about completion of the formalities cannot, therefore, be said to be the contents of the affidavit and their non-production in the copy of the affidavit cannot be taken lo be fatal to the maintainability of an election petition. In holding that the affirmation part of the affidavit is not the contents of the affidavit and is not the integral part of the petition, it appears that the learned Judges of the Division Bench have not taken into consideration the provisions of Rule 94A of the Rules as well as Form 25 appended to the Act. The judgment of the Supreme Court in F.A. Sapa v. Singora, AIR 1991 SC 1557 wherein it
has been held that the defect in the affidavit forms an integral part of the petition in which the defect of concerned material facts will be dealt with subject to the limitation under Section 81(3), has, also, not been considered by the Division Bench. Thejudgmem of the Division Bench, therefore, turns on without consideration of the relevant provisions of the Rules and the Form.
29. In F.A. Sapa v. Singora, AIR 1991
SC 1557, the election of the returned candidate was challenged on the ground of commission of corrupt practice and, also, on the ground that no Schedule of the material particulars of corrupt practice, has been annexed to the affidavit purporting to be under Form 25. The copies of the election petition, served on the returned candidate, were not attested to be the true copies of the original, as required by Section 81(3) and, therefore, it was argued that the election petition deserves to be dismissed. It was held by the Supreme Court that all that this section requires is that the copy should be attested by the petitioner to be a true copy of the petition under his signatures. The requirement of this part of the provision is met by each copy having been signed and attested to be the true by the concerned petitioner. What is essential is that the petitioner must take the responsibility of the copy to be a true copy of the original petition and put his signature in token thereof. No particular Form of attestation is prescribed. All that this section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the original and by verifying it to be a true copy and by putting his signatures thereunder, the petitioner has clearly made a compliance with the provisions of Section 81(3). Regarding the supply of the schedule of the material particulars, it was held that if a document does not form an integral part of the election petition but is merely referred to in the petition or filed in the proceeding as evidence of the fact, failure to supply a copy thereof will not be proved fatal. Therefore, the maintainability of an election petition, in the context of the point in hand, will depend On the fact: whether the Schedule or the annexures, attached to the election petition,
constitute an integral part of the election petition or not. If it constitutes an integral part, it must satisfy the requirement of Section 81(3) of the Act and failure in that behalf will be fatal, but if it does not constitute an integral part of the election petition, a copy thereof need not be served to the respondent along with the copy of the petition.
30. In Sapa’s case (AIR 1991 SC 1557), what has, therefore, been decided is that if the documents, which have not been supplied or have been incorrectly supplied, are the integral part of the election petition then it must satisfy the requirement of Section 81(3) of the Act and failure in that behalf will be fatal, but if it is not an integral part, it is not necessary to be served along with the petition. After considering the relevant provisions of the Act, the Rules and Form 25, in para 27 of the judgment, the Apex Court, in Sapa’s case, dealing with the defect in the affidavit, observed that “the defect in the affidavit in the prescribed form (Form 25) can be cured unless the affidavit forms an integral part of the petition, in which case the defect of the concerned material fact will be dealt with subject to the limitation of Section 81(3) of the Act.” This observation further certifies that the defect in the affidavit cannot be cured if it is an integral part of the petition. In the present case, as the affidavit has been filed in support of the allegation of corrupt practice and, therefore, it is an integral part of the election petition and the copy of the affidavit, supplied to the respondent along with the election petition does not contain the endorsement by the authorised officer administering the oath or affirmation, which is an integral part of the affidavit and, therefore, there is a violation of the mandatory provisions of Section 81(3) of the Act as the copy supplied to the respondent was not the true and correct copy.
31. This takes us to the question: whether the copy of the election petition served on the respondent along with the summons, which did not contain the attestation part, can be said to be the true and correct copy of the election petition, as envisaged under subsection (3) of the Section 81 of the Act? Sub-
section (3) of Section 81 provides that 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 the true copy of the election petition. There is no dispute that requisite number of copies of the election petition accompanied the summons were attested by the petitioner under her own signatures to be the true copy of the election petition. But the copy of the election petition does not contain the attestation part. The question, therefore, is; whether it is a true copy of the election petition? This question really turns on the true scope and effect of the words “true copy” occurring in Section 81(3) of the Act. A “true copy” means a correct and full reproduction of the original. The test whether the copy is a true one, is: whether any variation from the original is calculated to mislead an ordinary person. According to Stroud’s Judicial Dictionary,” a “true copy” does not mean an absolutely exact copy; but it means that the copy shall be so true that nobody can, by any. possibility, misunderstood it.” In Burchill v. Thompson (1920) 2 KB 80, it was held that the omission of the words “per annum” after the statement of the rate of the interest to be paid, prevents the copy from being a true copy. In Murarka Radhey Shyam v. Roop Singh, AIR 1964 SC 1545 it was held that the word ‘copy” does not mean absolutely exact copy. It means a copy so true that nobody can, by any possibility, misunderstood it. The test: whether a copy is a true one, is: whether any variation from the original is calculated to mislead an ordinary person. The interpretation made by the Hon’ble Supreme Court in Murarka’s case, again came up for consideration before the Supreme Court in: Mithilesh Kumar Pandey v. Baidyanath Yadav, AIR 1984 SC 305. The Supreme Court, in the case of Mithilesh Kumar Pandey, explained the view taken by it in Murarka’s case and laid down the following principles after scrutinizing the law on the subject:–
“(1) that where the copy of the election petition served on the returned candidate contains only clerical or typographical mis-
takes which are of no consequence, the petition cannot be dismissed straightway under Section 86 of the Act;
(2) A true copy means a copy which is wholly or substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof;
(3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate it cannot be said that there has been a substantial compliance with the provisions of Section 81(3) of the Act
(4) Prima facie, the statute uses the words “true copy” and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act; and
(5) As Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters; there is no room for giving a liberal or broad interpretation to the provisions of the said Section.”
32. In the light of the law laid down by the Supreme Court, now, it has to be seen whether the copy supplied to the respondent fulfils the requirement of Section 81(3) of the Act. The copies do not contain the attestation/affirmation part of the affidavit which is an integral part of the affidavit and as the affidavit was an integral pan of the election petition, therefore, the copy supplied to the respondent cannot be said to be the true and correct copy of the election petition. Subsection (3) of Section 81 requires specifically that every copy of the election petition must be a true and exact copy of the petition and as the attestation part of the affidavit, which is an integral part of the affidavit and, in turn, the affidavit, which is an integral part of the election petition, has not been supplied to the respondent along with the summons, the copy of the petition, supplied to the respondent,
therefore, cannot be said to be the true and correct copy of the election petition and, as such, there was a complete non-compliance of the requirement of Sub-section (3) of Section 81 of the Act. Learned counsel for the petitioner submits that the respondent, after the service of the petition, can inspect the record and it is only after inspection of the record that the respondent can judge whether the copy supplied to him was a true and correct copy of the election petition and the election petition cannot be thrown-away on this count. This argument has been made by the learned counsel for the petitioner on the basis of the judgment of the Hon’ble Supreme Court in the case of: A. Madan Mohan v. Kalavakunta Chandrasekhara, AIR 1984 SC 871. In the case of A. Madan Mohan, the copies of the documents and the Schedules were not supplied to the respondent. The Apex Court came to the conclusion that the documents and the Schedules were not the integral part of the election petition and there was no necessity of the documents and Schedules to be served on the respondents and if they were filed in the Court, it was always open to them to inspect the same and find out the allegations made in the petition. It is in these circumstances that the Apex Court held that the inspection can be made. The controversy, which is in issue in the present case was not before the Apex Court. The controversy stands settled by the Apex Court in the case of Rajendra Singh v. Smt. Usha Rani, AIR 1984 SC 956 wherein it has been held as under: –
“A perusal of Sections 81(3) and 86 of the Act gives the impression that they do not contemplate filing of incorrect copies at all and if an election petitioner disregards the mandate contained in S. 81(3) by filing the incorrect copies, he takes the risk of the petition being dismissed in limine. under Section 86. It is no part of the duties of the respondents to wade the entire record in order to find-out which is the correct copy. If out of the copies supplied to the respondents the copy is found to be incorrect one, it amounts to non-compliance of the provisions of Section 81(3) which is sufficient, to entail the dismissal of the election petition at the
behest.”
In view of thejudgment of the Supreme Court in Rajendra Singh’s case, it was the duty of the petitioner to have supplied the true and correct copy of the election petition to the respondent along with the summons and it is not the duty of the respondent to wade out the record and to verify whether the copy is correct or not. If that will be allowed then the very attainment of the true objects, namely, saving the time and inconvenience and to expedite the trial, would be entirely frustrated, if the respondent, on whom these copies were served, had still to make enquiries to satisfy himself whether the copy is true copy without the same being asserted so far. There is a complete non-compliance of Section 81(3) as the respondent did not receive the true and correct copy as contemplated by Section 81(3) of the Act.
33. The last question, which requires consideration in the present case is: whether on account of non-compliance of the provision of the Section 81(3) of the Act, by not supplying the true and correct copy, the whole petition should be dismissed or only the allegation regarding the corrupt practice may be struck off and the election petition may be allowed to proceed on other grounds? Section 86(1) of the Act gives a mandate to the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or 82 or Section 117 of the Act. Section 86 does not envisage the dismissal of the election petition in part when it states that if the provisions of Section 81 have not been complied with, the election petition shall be dismissed in toto. The mandatory provisions of Section 81(3) of the Act have not been complied with by the petitioner by way of not-supplying the true and correct copy of the election petition to the respondent, which attracts Section 86 and the result will be the dismissal of the election petition.
34. In the result, the first five preliminary objections, raised by the respondent, are unsustainable and are rejected. However, the last preliminary objection, raised by the respondent, is sustained and the election peti-tion, filed by the petitioner, is dismissed. In
the facts and circumstance of the case. I leave the panics to bear their own costs.