PETITIONER:
MURARKA RADHEY SHYAM RAM KUMAR
Vs.
RESPONDENT:
ROOP SINGH RATHORE & OTHERS(and connected appeal)
DATE OF JUDGMENT:
07/05/1963
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SINHA, BHUVNESHWAR P.(CJ)
DAYAL, RAGHUBAR
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1964 AIR 1545 1964 SCR (3) 573
CITATOR INFO :
R 1970 SC 765 (9)
R 1971 SC 342 (6)
RF 1974 SC1185 (16)
F 1984 SC 305 (9,21)
R 1991 SC1557 (20,22)
ACT:
Election Dispute-Joinder of -parties-Joinder of candi-
date who did not contest-If invalidates eletion petition-
"Copy", meaning of-Defects in verification and affidavit-
Maintainability of petition-Representation of the People
Act, 1951 (43 of 1951), ss. 81,82,83,90.
HEADNOTE:
The validity of the election of the appellant to the
House of the People at the third general elections held in
the month of February, 1962, was challenged by two of the
electors of the constituency from which the appellant was
elected, by filing election petitions for setting aside the
election. The nomination paper of B, one of the two
electors aforesaid, had been rejected by the returning
officer. The appellant who was one of the respondents to
the two election petitions raised preliminary objections to
the maintainability of the petitions and pleaded that they
should be dismissed on the grounds, inter alia, (1) that B
whose nomination paper was rejected and who was not a
contesting candidate was improperly impleaded as a
respondent to the election petition in contravention of the
provisions of s. 82 of the Representation of the People Act,
1951, (2) that there was non-compliance with the provisions
of s. 81 (3) of the Act because the copy of the election
petition served on the appellant was not a true copy of the
original filed before the Election Commission, and (3) that
there was non-compliance with the provisions of s. 83 of the
Act inasmuch as (a) the election petition was not verified
in the manner laid down in s. 83, and (b) the affidavit in
respect of corrupt practices which accompanied the petition
was neither properly made nor in the prescribed from.
Held (1) that where all the parties whom it was neces-
sary to join under the provisions of s. 82 of the
Representation of the People Act, 1951, were joined as
respondents to the
574
petition, the circumstance that a person who was not a
necesary party had also been impleaded did not amount to a
contravention of s. 82 of the Act;
(2) the word "copy" in s. 81 (3) of the Act did 'not
mean an absolutely exact copy but a copy so true that nobody
could by any possibility misunderstand it, and that the test
whether a copy was a true one was whether any variation from
the original was calculated to mislead an ordinary person;
In re Hewer, Ex parte Kahan, (I 882) 21 Ch. D. 87 1,
relied on.
(3)that a defect in the verification of an election
petition as required by s. 83 (1) (c) of the Act did not
attract s. 90 (3) and so was not fatal to the mintainability
of the petition; and,
(4)that a defect in the affidavit was not a
sufficient around for dismissal of the petition.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 30 and
31 of 1963.
Appeals by special leave from the judgment and order
dated August 31, 1962, of the Rajasthan High Court in D. B
Civil Writ Petitions Nos. 376 and 377 of 1962.’
M. C. Setalvad, G. S. Pathak, N. P. Nathwani, H. J.
Thacker and G. C. Mathur for the appellant (in C.A. No. 30
of 1963).
G.S. Pathak, N. P. Nathwani, H. J. Thackar and G. C.
Mathur, for the appellant (in C.A. No 31 of 1963).
S. C. Agarwala, R. K. Garg, D. P. Singh and M. K.
Ramamurthi, for respondent No. 2 (in C. A. No. 30 of 1963).
R.K. Garg, for respondent No. 2 (in C. A. No. 31 of
1963).
V.K. Krishna Menon and Janardan Sharma for the
Intervener.
575
1963. May 7. The judgment of the Court was delivered
by
S. K. DAS J.-These two appeals have been heard together
as they raise some common questions of law and fact, and
this judgment will govern them both.
The appellant before us, Murarka Radhey Shyam Ram Kumar
was elected to the House of the People at the third general
elections held in the month of February, 1962. He was
elected from a constituency known as the jhunjhunu
Parliamentary Constituency in Rajasthan. Two election
petitions were filed for setting aside the election of the
appellant. One of these was filed by one Ridmal Singh who
stated that he was an elector in the said constituency.
Another application was filed by one Balji who was also an
elector in the said Parliamentary Constituency and whose
nomination paper was rejected by the returning officer. We
are not concerned in the present appeals with the grounds on
which the two election petitions, one by Ridmal Singh and
numbered as 269 of 1962 and the other by Balji and numbered
as 295 of 1962, were based, because the election petitions
have not yet been tried on merits By two applications dated
July 6, 1962, the appellant who was one of the respondents
to the two election petitions raised certain preliminary
objections to the maintainability of the two election
petitions. The Election Tribunal dealt with these
preliminary objections by its orders dated August 13, 1962.
It dismissed the preliminary objections. Thereupon the
appellant filed two writ petitions in the High Court of
Rajasthan by which he prayed that the orders of the Election
Tribunal dated August 13, 1962, and certain consequential
orders passed on August 14, 1962, be quashed and that an
order or direction be issued to the Election Tribunal to
dismiss the two election petitions on the main ground that
they do
576
not comply with certain mandatory provisions of the
Representation of the People Act, 1951, hereinafter referred
to as the Act. These two writ petitions were dismissed by
the High Court by its order dated August 31, 1962. The
appellant then applied for special leave to this court and
having obtained such leave, has preferred the present
appeals.
We may now state briefly the grounds on which the
appellant contends that the two election petitions were not
maintainable and should have been dismissed by the Election
Tribunal With regard to Election Petition No. 269 of 1962
the grounds urged before us on behalf of’ the appellant are
three in number Firstly, it is contended that there was
noncompliance with the mandatory provisions of s. 82 of the
Act. We shall presently read that section. The contention
of the appellant is that Ballu or Balji whose nomination
paper was rejected and who was not a contesting candidate
was improperly impleaded as respondent No. 7 to the election
petition, though s. 82 requires that in cases where in
addition to the relief o declaring the election of the
returned candidate to be void, a further declaration is
claimed that the petitioner himself or some other candidate
has been duly elected, all the contesting candidates must be
made parties to the election petition. Ballu or Balji was
not a contesting candidate and was therefore impleaded to
the election petition in contravention of the provisions of
s. 82. Secondly, it is urged that there was non-compliance
with the provisions of s. 81 (3) of the Act because the copy
of the election petition served on the appellant was not a
true copy of the original filed before the Election
Commission nor war, it properly attested to be a true copy
under the signature of the petitioner who filed the election
petition. Thirdly, it is urged that there was non
compliance with the provisions of s. 83 of the Act inasmuch
as the affidavit in respect of corrupt
577
practices which accompanied the election petition was
neither properly made nor in the prescribed form.
With regard to Petition No. 295 of 1962 the grounds
alleged are these Firstly, it is stated that at the time of
its presentation to the Election Commission, the petition
was not accompanied by true copies of the petition as
required by s. 81 (3) of the Act because there was a
reference to four enclosures at the foot of the schedule of
the original petition, but in the copy served on the
appellant the enclosures were not reproduced. Secondly it
is urged that the election petition was not duly verified
inasmuch as the date and place of verification were not
stated at the foot of the verification clause Thirdly, it
is urged that a copy of the treasury receipt showing the
deposit of a sum of Rs. 2,000/- in favour of the Election
Commission was not enclosed with the copy of the petition
which was served on the appellant, nor was the copy of the
order dated january 22, 1962, by which the returning officer
rejected the nomination paper of the petitioner, signed or
verified by the, petitioner.
We may here refer to some of the provisions of the Act
(as they stood ‘at the relevant time) which have a bearing
on the preliminary objections urged before us Under s. 79
(b) the expression “candidate” in parts VI, VII and VIII of
the Act means, unless the context otherwise requires, a
person who has been or claims to have been duly nominated as
a candidate at any election, and any such person shall be
deemed to have been a candidate as from the time when, with
the election in prospect, he began to hold himself out as a
prospective candidate. S. 80 of the Act states that no
election shall be called in question except by an election
petition presented in accordance with the provisions of Part
VI. S. 81 states in effect that an election petition
calling in question any election may be presented on one or
578
more of the grounds specified in sub-s. (1) of s. 100 and s.
101 to the Election Commission by any candidate at such
election or any elector within forty-five says from the date
of election of the returned candidate Sub-s. (3) of s. 81
which sub-section is important for our purpose, reads as
follows :
“Every election petition shall be accompanied
by as many copies thereof as there are respon-
dents mentioned in the petition and one more
copy for the use of the Election Commission,
and every such copy shall be attested by the
petitioner under his own signature to be a
true copy of the petition.”
82 states who shall be parties to the petition. It leads :
“A petitioner shall join as respondents to his
petition –
(a)where the petitioner, in addition to clai-
ming a declaration that the election of all or
any of the returned candidates is void, claims
a further declaration that he himself or any
other candidate has been duly elected, all the
contesting candidates other than the
petitioner, and where no such further
declaration, is claimed, all the returned
candidates; and
(b)any other candidate against whom alle-
gations of any corrupt practice are made in
the petition.”
S.83 lays down what shall be the contents of the petition.
We are concerned in the present case,% with the provisos to
sub-s. (1) of s. 83. That proviso says,
“Provided that where the petitioner alleges
any corrupt practice, the petition shall also
be
579
accompanied by an affidavit in the prescribed
form in support of the allegation of such cor-
rupt practice and the particulars thereof ”
S.85 states that if the provisions of s. 81 or s. 82 or
s.117 have not been complied with, the Election Commission
shall dismiss the petition. S. 86 lays down that if the
petition is not dismissed under s. 85, the Election
Commission shall cause a copy of the petition to be
published in the Official Gazette and a copy to be served by
post on each respondent, and shall then refer the petition
to an Election Tribunal for trial. We may skip over ss. 87,
88 and 89 which deal with matters with which we are not
directly concerned. We then come to s. 90 which lays down
the procedure to be followed before the Election Tribunal.
Sub-s. (1) of s. 90 says that subject to the provisions of
the Act and of any rules made thereunder, every election
petition shall be tried by the Tribunal as nearly as may be
in accordance with the procedure applicable under the Code
of Civil Procedure, 1908, to the trial of suits. Sub-s. (3)
of s. 90states :
”The Tribunal shall dismiss an election peti-
tion which does not comply with the provisions
of section 81, or section 82 notwithstanding
that it has not been dismissed by the Election
Commission under section 85.
Explanation-An order of the Tribunal
dismissing an election petition under this
subsection shall be deemed to be an order made
under clause (a) of section 98.”
Sub-s (4) of s. 90 states that any candidate not already a
respondent shall, upon application made to the Tribunal
within fourteen days from the date of commencement of the
trial and subject to the provisions of s. 119, be entitled
to be joined as a
580
respondent. Sub-s. (6) states that every election petition
shall be tried as expeditiously as possible and endeavour
shall be made to conclude the trial within 6 months from
the date of publication of the copy of the petition in the
Official Gazette under subs. (1) of S. 86.
Let us now examine the preliminary objections which
have been urged before us on behalf of the appellant, in the
light of the provisions to which we have just now referred.
We take first the objection based on the joinder of Ballu or
Balji to Election petition No. 269/1962. The argument on
this part of the case is the following Learned counsel for
the appellant has contended that the provisions of s. 82 of
the Act are mandatory provisions and any failure to comply
with those provisions is fatal in the sense that it is
obligatory on the Tribunal to dismiss an election petition
which does not comply with the Provisions of s. 82. He has
relied for this purpose on sub-s. (3) of s. 90. He has
further contended that in view of the aforesaid provisions
of the Act, namely, the provisions in s. 82 and sub-s. (3)
of s. 90, it is not open to an Election Tribunal to apply
the Principles of the Code of Civil Procedure and treat a
non-,joinder or mis-joinder as not fatal to the
maintainability of the petition.
The foundation of the argument is that there has been a
non-compliance with the provisions of s. 82. If that
foundation is absent, then the whole argument disappears.
Now, it is admitted that Ballu or Balji was not a contesting
candidate within the meaning of s. 82 because his nomination
paper had been rejected. The admitted position further is
that all the contesting candidates were joined to the
petition as required by s. 82. Therefore, what happened was
this All ‘the parties whom it was necessary to join under
the provisions of s. 82 were joined as respondents to the
petition ; but Ballu
581
or Balji was joined in excess of the requirements of s.
82. The question before us is, does this amount to non-
compliance with, or contravention of, the provisions of s.
82? Learned counsel for the appellant wishes us to read s.
82 as though it said that the persons named therein and no
others shall be joined as respondents to the petition. He
wants us to add the words “and no others” in the section.
We find no warrant for such a reading of s. 82. We agree
with the High Court that if all the necessary parties have
been joined to the election petition, the circumstance that
a person who is not a necessary party has also been
impleaded does not amount to a breach of the provisions of
s. 82 and no question of dismissing the petition under sub-
so (3) of s. 90 arises. It is open to the Election Tribunal
to strike out the name of the party who is not a necessary
party within the meaning of s. 82 of the Act. The position
will be different if a person who is required to be joined
as a necessary party under s. 82 is not impleaded as a party
to the petition. That however is not the case here and we
are of the view that the learned counsel for the appellant
has failed to make out the very foundation on which his
argument on this part of the case is based. In the view we
have taken it is unnecessary to consider further the legal
effect of a contravention of the provisions of s. 82. It is
perhaps necessary to add that learned counsel for the
respondents relied on the decision of this court in Jagan
Nath v. Jaswant Singh (1), where it was held that s. 82 of
the Act as it then stood was not mandatory. S. 82 then
provided as follows:
“A petitioner shall join as respondents to his
petition all the candidates who were duly no.
minated at the election other than himself if
he was so nominated.”
Sub-s. (4) of s. 90 then provided that notwithstanding
anything contained in s. 85, the tribunal may
(1) [1954] S.C.R. 892.
582
dismiss an election petition which does not comply with the
provisions of ss. 81, 83 or 117. There has -been a change
of law since that decision. S. 82 has been re-cast and
sub-s. (3 of s. 90 now states that the tribunal shall
dismiss an election petition which does not comply with the
provisions of s. 81 or s. 82 notwithstanding that it has not
been dismissed by the Election Commission under s. 85.
Therefore we do not think that the decision in Jagan Nath v.
Jaswant Singh (1), is determinative of the problem before
us. We need not however pursue this question any further,
because we have held that in the present cases there was no
contravention of the provisions of s. 82.
We now go to the second point. But before we do so, it
may perhaps be stated that certain defects in the
verification of Election Petition No. 269 of 1962 have been
brought to our notice, as they were brought to the notice of
the Election Tribunal. One of these defects was that though
the verification stated that the averments made in some of
the paragraphs of the petition were true to the personal
knowledge of the petitioner and the averments in some other
paragraphs were verified to be true on the basis of advice
-and information received by the petitioner from legal and
other sources, the petitioner did not state in so many words
that the advice and information received was believed by him
to be true. The Election Tribunal took the view that this
defect in verification was a matter which came within cl.
(c) of sub-s. (1) of s. 83 and the defect could be removed
in accordance With the principles of the Code of Civil
Procedure, 1908. The Election Tribunal further held that
such, a defect did not attract sub-s. (3) of s. 90 inasmuch
as that sub-section does not refer to non-compliance with
the provisions of s. 83 as a ground for dismissing an
election petition. We agree with the view expressed by the
Election Tribunal. We have pointed out that sub-s. (4) of
(1) [1954] S.C.R. 892
583
s. 90 originally referred to three sections, namely, is
81, 83 and 117. It said that nothwithstanding anything
contained in s. 85 the Tribunal might dismiss an election
petition which did not comply with the provisions of s. 81,
s. 83 or s. 117. S. 90 .was amended by Act 27 of 1956.
Sub-s. (3) then said that the Tribunal shall dismiss an
election petition which does not comply with the provisions
of s. 81, s. 82 or s. 117 notwithstanding that it has not
been dismissed by the Election Commission under s. 85.
There was a further amendment by Act 40 of 1961 and sub-s.
(3) of s. 90 as it now stands has already been quoted by us
in an earlier part of this judgment. It seems clear to us
that reading the relevant sections in Part VI of the Act, it
is impossible to accept the contention that a defect in
verification which is to be made in the manner laid down in
the Code of Civil Procedure, 1908, for the verification of
pleadings as required by cl. (c) of sub-s. (1) of s. 83 is
fatal to the maintainability of the petition.
On behalf of the appellant it has been further
contended that the copy of the petition which was served on
the appellant was not a true copy within the meaning of the
mandatory provisions of subs. (3) of s. 81 of the Act. The
argument is that a failure to comply with the provisions of
sub-s. (3) of s. 81 attracts sub-s. (3) of s. 90 and it is
obligatory on the Tribunal to dismiss an election petition
which does not comply with the requirements of sub-s. (3) of
s. 81. On the basis of the decision of this court in Sri
Babu Ran v. Shrimati Prasanni (1), it is contended that the
principle in such cases is that whenever the statute
requires a particular act to be done in a particular manner
and also lays down that failure to comply with the said
requirement leads to a specific consequence, it would be
difficult to accept the argument that the failure to comply
with the said requirement should lead to any other
consequence
(1) [1959] S.C.R. 1408.
584
It is argued that no question of substantial compliance
arises in such cases, and the mandatory requirement must be
strictly complied with.
Let us first see what are the defects found in the copy
of the petition served on the appellant. It is admitted
that the first part of sub-s. (3) of s. 81 has been complied
with and the election petition was accompanied by as many
copies thereof as there were respondents mentioned in the
petition. It is also admitted that one more copy for the
use of the Election Commission was also given with the
petition. The’ last part of the sub-section says that
“‘every such copy shall be attested by the petitioner under
his own signature to be a true copy of the petition.” The
grievance of the appellant is that this part of the sub-
section was not complied with inasmuch as (1) the copy which
was ‘served on the appellant did not contain the signature
of the petitioner at the foot of the petition though the
original contained such signature, and (2) the verification
in the copy served on the appellant omitted to mention
paragraph 14-g (ii) in that part of the verification which
related to averments stated to be true to the personal know-
ledge of the petitioner. As to the first of these defects
the Election Tribunal pointed out that every page of the
copy served on the appellant was attested to be a true copy
under the signature of the petitioner and furthermore it was
not necessary to append a fresh signature to the copy of the
petition. With regard to the second defect the Election
Tribunal apparently took the view, though it did not say so
in so many words, that the omission of a reference to.
paragraph 14-g (ii) in the verification in the copy served
on the appellant was a case of mere oversight which did not
mislead anybody because in the body of the petition full
details of the averments were made. The High Court took the
view that the defect was not of such a nature as to amount
to noncompliance with the provisions of sub-s. (3) of s. 81.
585
We agree with the High Court and the Election Tribunal
that the first defect is not a defect at all. 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.
Sub-s. (3) of s. 81 requires that the copy shall be attested
by the petitioner under his own signature and this was done.
As to the second defect the question really turns on the
true scope and effect of the word “copy” occurring in sub-s.
(3) of s. 81. On behalf of the appellant the argument is
that sub-s. (3) of s. 81 being mandatory in nature all the
requirements of the sub-section must be strictly complied
with and the word “copy” must be taken to be an absolutely
exact transcript of the original. On behalf of the
respondents the contention is that the word “copy” means
that which comes so near to the original as to give to every
person seeing it the idea created by the original.
Alternatively, the argument is that the last part of sub-s.
(3) dealing with a copy is merely directive, and for this
reliance is placed on the decision of this court in Kamaraja
Nadar v. Kunju Thevar (1). We are of the view that the word
“”copy” in sub-s. (3) of s. 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 (see Stroud’s
judicial Dictionary, third edition, volume 4, page 3098).
In this view of the matter it is unnecessary to go into the
further question whether any part of sub-s. (3) of s. 81 is
merely directory. Several English decisions were cited at
the Bar The earliest decision cited to us is the decision
in Pocock v. Mason (2) where it was held that the omission
of the words “the” and “by” in the copy of the writ of
capias prescribed by the schedule 2 W. 4, c. 39 did not
invalidate an arrest. The reason given was thus expressed :
“To ascertain whether or not an unfaithful
copy produces any alteration in the meaning
(1) [ 1959] S.C.R. 583. (2) 131 E.R. 1111
586
supposes an exertion of intellect which it may
be inconvenient to require at the hands of those
who serve the copy. It was to obviate this
inconvenience, that the legislature has.given
a form, and required that it should be
pursued. Nothing but ordinary care is neccs-
sary for taking the copy.”
In a later decision Sutton v. Mary and Burgess the copy of
the writ served on the defendant omitted the letter “s” in
the word “she” It was held that the omission was immaterial
as it could not mislead anybody. In Morris v. Smith (2),
there was a motion to set aside the service of the writ of
summons for irregularity, on the ground that the defendant
being an attorney, he was only described as of Paper
Buildings in the Inner Temple, London and the addition of
“gentleman” was not given. It was held that the form in the
statute 2 Will 4, c. 39 s. I did not require the addition of
the defendant to be inserted in the writ and it was
sufficient to state his residence. The writ of summons was
therefore valid. In another case in the same volume Cooke
v. Vaughan (2), it was held that where a writ of capias
described the defendant by the addition of “gentleman”, but
that addition was omitted in the copy served, the copy was
not a copy of the writ, in compliance with the stat. 2 Will.
4, c. 39, s. 4 On behalf of the respondents a number of
decision under the Bills of Sale Act, 1878 and the Amend
ment Act, 1882 (45 and’ 46 Vict. c. 43) were cited The
question in those cases was whether the bill was “”in
accordance with the form in the schedule to this Act
annexed” as required by s. 9 of the Bills of Sale Act 1878,
and Amendment Act 1882. In re Hewer Ex parte Kahen (4), it
was held that a “true copy” of a bill of sale within the
Bills of Sale Act, 1878 s. 10, sub-s. 2, must not
necessarily be an exact copy so long as any errors or
omissions in the copy file( are merely clerical and of such
a nature that no on,
(1) 149 E.R. 1291. (2) 150 E.R. 51
(3) 150 E.R. 1346. (4) (1882) 21 CH D 871
587
would be thereby misled. The same view was expressed in
several other decisions and it is unnecessary to refer to
them all. Having regard to the provisions of Part VI of the
Act, we are of the view that the word “copy” does not mean
an absolutely exact copy. It means a copy 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.
Applying that test we have come to the conclusion that the
defects complained of with regard to Election Petition No.
269 of 1962 were not such as to mislead the appellant ;
therefore there was no failure to comply with the last part
of sub-s. (3) of s. 81. In that view of the matter sub-s.
(3) of s. 90 was not attracted and there was no question of
dismissing the election petition under that sub-section by
reason of any failure to comply with the provisions of s.
81. This disposes of the second preliminary objection
raised before us.
We now turn to the third preliminary objection and this
relates to the affidavit which accompanied the petition in
respect of the corrupt practices alleged against the
appellant. The argument on this part of the case is that
the affidavit was neither in the prescribed form nor was it
properly sworn as required by the rules in the Conduct of
Election Rules, 1961 ; therefore there was a failure to
comply with the proviso to sub-s. (1) of s. 83 of the Act.
The argument further is that an election petition under s.
81 must comply with the provisions of s. 83 and unless it
complies with those provisions, it is not an election
petition under s. 81.
We think that this contention hag been sufficiently
disposed of by what has been stated by the Election
Tribunal. The Election Tribunal has rightly pointed out
that the affidavit was in the prescribed form but due to
inexperience the oaths
588
Commissioner had made a mistake in the verification portion
of the affidavit. The Tribunal said :
“It appears that due to inexperience of the
Oaths Commissioner instead of “verified before
me” words, “verified by me” have been written.
The signature of the deponent have been
obtained in between the writing with respect
to admission on oath of the contents of
affidavit by the petitioner and the
verification by the Oaths Commissioner.
According to the prescribed form
the verification should be ” solemnly
affirmed or sworn by “such and such” on “such
and such date” before me”. The verification
of the affidavit of the petitioner is
apparently not in the prescribed form but
reading as a whole the verification carries
the same sense as intended by the words
mentioned in the prescribed form. The mistake
of the Oaths Commissioner in verifying the
affidavit cannot be a sufficient ground for
dismissal of the petitioner’s petition
summarily, as the provisions of s. 83 are not
necessarily to be complied with in order to
make a petition valid and such affidavit can
be allowed to be filed at a later stage also.”
This view of the Election Tribunal was affirmed by the High
Court. We agree with the view expressed by the Election
Tribunal and we do not think that the defect in the
verification due to inexperience of the Oaths Commissioner
is such a fatal defect as to require the dismissal of the
election petition.
Turning now to Election Petition No. 295 of 1962, the
defect as to the time and place of verification is, as we
have said earlier, not a fatal defect. It is a matter which
comes within cl. (c) of sub.s. (1) of s. 83 and the defect
can be remedied in accordance with the principles of the
Code of
589
Civil Procedure relating to the’ verification of pleadings.
As to the four enclosures which were not re-,produced in the
copy served on the appellant, the position was this. In the
original petition there was an endorsement to the following
effect “Enclosed :
1. Two copies of the grounds of election
petition.
2. Original treasury receipt of Rs. 2,000/-
as security deposit.
3. Certified copy of the order of the
Returning Officer rejecting the nomination
dated 22-1-1962.
4. Vakalatnama duly stamped.”‘
In the copy served on the appellant the original treasury
receipt of Rs. 2,000/- deposited byway_ of security was not
re-produced. A certified copy of the order of the returning
officer rejecting the nomination of the petitioner was
appended to the copy but this certified copy was not further
signed by the petitioner. As to the security deposit it was
mentioned in the body of the petition (paragraph 9) that
such a deposit had been made. The certified copy of the
rejection of the nomination paper was verified to be a true
copy and we fail to see how any further signature of the
petitioner was necessary thereon. It is obvious to us that
a copy of the vakalatnama was not required under sub-s. (3)
of s. 81 nor was it necessary to make a further endorsement
that two copies of the petition had been filed along with
the petition. It is not disputed that copies as required by
sub-s.(3) of s. 81 were filed. The only’ grievance made is
that the endorsement “two copies” was not repated in the
enclosure portion of the copy served on the appellant. We
590
have already explained what is meant by the word ” copy” in
sub-s. (3) of s. 81 and we are of the view that the defects
pointed out on behalf of the appellant are not of such a
character as to invalidate the copy which was served on the
appellant in the present case.
In conclusion we have to point out that we allowed one
Dr. Z. A. Ahmed to intervene in these appeals on the grounds
mentioned in his petition dated April 4, 1963. The
intervener supported the arguments advanced on behalf of the
appellant. We have fully dealt with those arguments in this
judgment and nothing further need be said about the
intervener’s petition.
For the reasons given above, we see no merit in these
two appeals. The appeals are accordingly dismissed with
costs.
Appeals dismissed.