{"id":594,"date":"1963-05-07T00:00:00","date_gmt":"1963-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/murarka-radhey-shyam-ram-kumar-vs-roop-singh-rathore-othersand-on-7-may-1963"},"modified":"2016-11-24T02:27:03","modified_gmt":"2016-11-23T20:57:03","slug":"murarka-radhey-shyam-ram-kumar-vs-roop-singh-rathore-othersand-on-7-may-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/murarka-radhey-shyam-ram-kumar-vs-roop-singh-rathore-othersand-on-7-may-1963","title":{"rendered":"Murarka Radhey Shyam Ram Kumar vs Roop Singh Rathore & Others(And … on 7 May, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Murarka Radhey Shyam Ram Kumar vs Roop Singh Rathore & Others(And … on 7 May, 1963<\/div>\n
Equivalent citations: 1964 AIR 1545, \t\t 1964 SCR (3) 573<\/div>\n
Author: S Das<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nMURARKA RADHEY SHYAM RAM KUMAR\n\n\tVs.\n\nRESPONDENT:\nROOP SINGH RATHORE & OTHERS(and connected appeal)\n\nDATE OF JUDGMENT:\n07\/05\/1963\n\nBENCH:\nDAS, S.K.\nBENCH:\nDAS, S.K.\nSINHA, BHUVNESHWAR P.(CJ)\nDAYAL, RAGHUBAR\nAYYANGAR, N. RAJAGOPALA\nMUDHOLKAR, J.R.\n\nCITATION:\n 1964 AIR 1545\t\t  1964 SCR  (3) 573\n CITATOR INFO :\n R\t    1970 SC 765\t (9)\n R\t    1971 SC 342\t (6)\n RF\t    1974 SC1185\t (16)\n F\t    1984 SC 305\t (9,21)\n R\t    1991 SC1557\t (20,22)\n\n\nACT:\n     Election Dispute-Joinder of -parties-Joinder of  candi-\ndate  who did not contest-If invalidates  eletion  petition-\n\"Copy\",\t meaning of-Defects in verification  and  affidavit-\nMaintainability\t of  petition-Representation of\t the  People\nAct, 1951 (43 of 1951), ss. 81,82,83,90.\n\n\n\nHEADNOTE:\n     The  validity of the election of the appellant  to\t the\nHouse  of the People at the third general elections held  in\nthe  month of February, 1962, was challenged by two  of\t the\nelectors  of the constituency from which the  appellant\t was\nelected, by filing election petitions for setting aside\t the\nelection.   The\t nomination  paper  of B,  one\tof  the\t two\nelectors  aforesaid,  had  been rejected  by  the  returning\nofficer.   The appellant who was one of the  respondents  to\nthe two election petitions raised preliminary objections  to\nthe  maintainability of the petitions and pleaded that\tthey\nshould\tbe dismissed on the grounds, inter alia, (1) that  B\nwhose  nomination  paper  was rejected and  who\t was  not  a\ncontesting   candidate\t was  improperly  impleaded   as   a\nrespondent to the election petition in contravention of\t the\nprovisions of s. 82 of the Representation of the People Act,\n1951, (2) that there was non-compliance with the  provisions\nof  s.\t81 (3) of the Act because the copy of  the  election\npetition served on the appellant was not a true copy of\t the\noriginal filed before the Election Commission, and (3)\tthat\nthere was non-compliance with the provisions of s. 83 of the\nAct  inasmuch as (a) the election petition was not  verified\nin  the manner laid down in s. 83, and (b) the affidavit  in\nrespect of corrupt practices which accompanied the  petition\nwas neither properly made nor in the prescribed from.\n     Held (1) that where all the parties whom it was  neces-\nsary  to  join\tunder  the  provisions\tof  s.\t82  of\t the\nRepresentation\tof  the\t People Act, 1951,  were  joined  as\nrespondents to the\n     574\npetition,  the\tcircumstance  that a person who\t was  not  a\nnecesary  party had also been impleaded did not amount to  a\ncontravention of s. 82 of the Act;\n     (2)  the word \"copy\" in s. 81 (3) of the Act  did\t'not\nmean an absolutely exact copy but a copy so true that nobody\ncould by any possibility misunderstand it, and that the test\nwhether a copy was a true one was whether any variation from\nthe original was calculated to mislead an ordinary person;\n     In\t re Hewer, Ex parte Kahan, (I 882) 21 Ch.  D. 87  1,\nrelied on.\n     (3)that  a defect in the verification of an  election\npetition  as  required by s. 83 (1) (c) of the Act  did\t not\nattract s. 90 (3) and so was not fatal to the mintainability\nof the petition; and,\n     (4)that   a  defect  in  the  affidavit  was  not\t a\nsufficient around for dismissal of the petition.\n\n\n\nJUDGMENT:\n<\/pre>\n
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 30 and
\n31 of 1963.\n<\/p>\n
      Appeals  by special leave from the judgment and  order
\ndated  August 31, 1962, of the Rajasthan High Court in D.  B
\nCivil Writ Petitions Nos. 376 and 377 of 1962.’
\n     M.\t  C. Setalvad, G. S. Pathak, N. P. Nathwani, H. J.
\nThacker\t and G. C. Mathur for the appellant (in C.A. No.  30
\nof 1963).\n<\/p>\n
     G.S. Pathak, N. P. Nathwani, H. J. Thackar and G. C.
\nMathur, for the appellant (in C.A. No 31 of 1963).\n<\/p>\n
     S.\t  C.  Agarwala,\t R. K. Garg, D. P. Singh and  M.  K.
\nRamamurthi, for respondent No. 2 (in C. A. No. 30 of 1963).\n<\/p>\n
     R.K. Garg, for respondent No. 2 (in C. A. No. 31  of
\n1963).\n<\/p>\n
     V.K.  Krishna  Menon  and Janardan\t Sharma\t for  the
\nIntervener.\n<\/p>\n
 575<\/span><\/p>\n
     1963.   May 7. The judgment of the Court was  delivered
\nby
\n     S. K. DAS J.-These two appeals have been heard together
\nas  they  raise some common questions of law and  fact,\t and
\nthis judgment will govern them both.\n<\/p>\n
     The appellant before us, Murarka Radhey Shyam Ram Kumar
\nwas elected to the House of the People at the third  general
\nelections  held\t in  the month of February,  1962.   He\t was
\nelected\t  from\ta  constituency\t known\tas   the   jhunjhunu
\nParliamentary  Constituency  in\t Rajasthan.   Two   election
\npetitions  were filed for setting aside the election of\t the
\nappellant.   One of these was filed by one Ridmal Singh\t who
\nstated\tthat  he was an elector in  the\t said  constituency.
\nAnother\t application was filed by one Balji who was also  an
\nelector\t in  the said Parliamentary Constituency  and  whose
\nnomination paper was rejected by the returning officer.\t  We
\nare not concerned in the present appeals with the grounds on
\nwhich  the two election petitions, one by Ridmal  Singh\t and
\nnumbered as 269 of 1962 and the other by Balji and  numbered
\nas  295 of 1962, were based, because the election  petitions
\nhave not yet been tried on merits  By two applications dated
\nJuly  6, 1962, the appellant who was one of the\t respondents
\nto  the\t two election petitions raised\tcertain\t preliminary
\nobjections  to\tthe  maintainability  of  the  two  election
\npetitions.    The   Election  Tribunal\tdealt\twith   these
\npreliminary objections by its orders dated August 13,  1962.
\nIt  dismissed  the preliminary\tobjections.   Thereupon\t the
\nappellant  filed  two writ petitions in the  High  Court  of
\nRajasthan by which he prayed that the orders of the Election
\nTribunal  dated August 13, 1962, and  certain  consequential
\norders\tpassed\ton August 14, 1962, be quashed and  that  an
\norder  or  direction be issued to the Election\tTribunal  to
\ndismiss\t the two election petitions on the main ground\tthat
\nthey do
\n576<\/span>
\nnot   comply  with  certain  mandatory\tprovisions  of\t the
\nRepresentation of the People Act, 1951, hereinafter referred
\nto  as the Act.\t These two writ petitions were dismissed  by
\nthe  High  Court by its order dated August  31,\t 1962.\t The
\nappellant  then applied for special leave to this court\t and
\nhaving\tobtained  such\tleave,\thas  preferred\tthe  present
\nappeals.\n<\/p>\n
     We\t may  now  state briefly the grounds  on  which\t the
\nappellant contends that the two election petitions were\t not
\nmaintainable and should have been dismissed by the  Election
\nTribunal   With regard to Election Petition No. 269 of\t1962
\nthe grounds urged before us on behalf of’ the appellant\t are
\nthree  in  number  Firstly, it is contended that  there\t was
\nnoncompliance with the mandatory provisions of s. 82 of\t the
\nAct.  We shall presently read that section.  The  contention
\nof  the\t appellant is that Ballu or Balji  whose  nomination
\npaper  was rejected and who was not a  contesting  candidate
\nwas improperly impleaded as respondent No. 7 to the election
\npetition,  though  s.  82 requires that in  cases  where  in
\naddition  to  the  relief o declaring the  election  of\t the
\nreturned  candidate  to be void, a  further  declaration  is
\nclaimed that the petitioner himself or some other  candidate
\nhas been duly elected, all the contesting candidates must be
\nmade  parties to the election petition.\t Ballu or Balji\t was
\nnot  a contesting candidate and was therefore  impleaded  to
\nthe election petition in contravention of the provisions  of
\ns. 82.\tSecondly, it is urged that there was  non-compliance
\nwith the provisions of s. 81 (3) of the Act because the copy
\nof  the election petition served on the appellant was not  a
\ntrue  copy  of\tthe  original  filed  before  the   Election
\nCommission  nor war, it properly attested to be a true\tcopy
\nunder the signature of the petitioner who filed the election
\npetition.    Thirdly,  it  is  urged  that  there  was\t non
\ncompliance with the provisions of s. 83 of the Act  inasmuch
\nas the affidavit in respect of corrupt
\n 577<\/span>
\npractices  which  accompanied  the  election  petition\t was
\nneither properly made nor in the prescribed form.\n<\/p>\n
     With  regard  to Petition No. 295 of 1962\tthe  grounds
\nalleged are these  Firstly, it is stated that at the time of
\nits  presentation to the Election Commission,  the  petition
\nwas  not  accompanied  by true copies  of  the\tpetition  as
\nrequired  by  s.  81  (3) of the Act  because  there  was  a
\nreference to four enclosures at the foot of the schedule  of
\nthe  original  petition,  but  in the  copy  served  on\t the
\nappellant  the enclosures were not reproduced.\tSecondly  it
\nis  urged that the election petition was not  duly  verified
\ninasmuch  as  the date and place of  verification  were\t not
\nstated\tat the foot of the verification clause\tThirdly,  it
\nis  urged  that a copy of the treasury receipt\tshowing\t the
\ndeposit\t of a sum of Rs. 2,000\/- in favour of  the  Election
\nCommission  was not enclosed with the copy of  the  petition
\nwhich  was served on the appellant, nor was the copy of\t the
\norder dated january 22, 1962, by which the returning officer
\nrejected  the nomination paper of the petitioner, signed  or
\nverified by the, petitioner.\n<\/p>\n
     We may here refer to some of the provisions of the\t Act
\n(as  they stood ‘at the relevant time) which have a  bearing
\non  the preliminary objections urged before us\tUnder s.  79\n<\/p>\n
(b) the expression “candidate” in parts VI, VII and VIII  of
\nthe  Act  means, unless the context  otherwise\trequires,  a
\nperson who has been or claims to have been duly nominated as
\na  candidate at any election, and any such person  shall  be
\ndeemed to have been a candidate as from the time when,\twith
\nthe election in prospect, he began to hold himself out as  a
\nprospective  candidate.\t  S. 80 of the Act  states  that  no
\nelection  shall be called in question except by an  election
\npetition presented in accordance with the provisions of Part
\nVI.   S.  81  states in effect\tthat  an  election  petition
\ncalling in question any election may be presented on one or
\n578<\/span>
\nmore of the grounds specified in sub-s. (1) of s. 100 and s.
\n101  to\t the Election Commission by any\t candidate  at\tsuch
\nelection or any elector within forty-five says from the date
\nof  election of the returned candidate\tSub-s. (3) of s.  81
\nwhich  sub-section  is important for our purpose,  reads  as
\nfollows :\n<\/p>\n
\t      “Every election petition shall be\t accompanied
\n\t      by as many copies thereof as there are respon-
\n\t      dents  mentioned in the petition and one\tmore
\n\t      copy  for the use of the Election\t Commission,
\n\t      and  every such copy shall be attested by\t the
\n\t      petitioner  under\t his own signature to  be  a
\n\t      true copy of the petition.”\n<\/p><\/blockquote>\n
82 states who shall be parties to the petition.\t It leads :\n<\/p>\n
\t      “A petitioner shall join as respondents to his
\n\t      petition –\n<\/p><\/blockquote>\n
\t      (a)where the petitioner, in addition to  clai-
\n\t      ming a declaration that the election of all or
\n\t      any of the returned candidates is void, claims
\n\t      a\t further declaration that he himself or\t any
\n\t      other candidate has been duly elected, all the
\n\t      contesting    candidates\t other\t than\t the
\n\t      petitioner,   and\t  where\t no   such   further
\n\t      declaration,  is\tclaimed,  all  the  returned
\n\t      candidates; and\n<\/p><\/blockquote>\n
\t      (b)any  other  candidate\tagainst\t whom  alle-
\n\t      gations  of any corrupt practice are  made  in
\n\t      the petition.”\n<\/p><\/blockquote>\n
S.83  lays down what shall be the contents of the  petition.
\nWe are concerned in the present case,% with the provisos  to
\nsub-s. (1) of s. 83.  That proviso says,
\n\t      “Provided\t that where the\t petitioner  alleges
\n\t      any corrupt practice, the petition shall\talso
\n\t      be
\n\t       579<\/span>
\n\t      accompanied by an affidavit in the  prescribed
\n\t      form in support of the allegation of such cor-
\n\t      rupt practice and the particulars thereof ”
\nS.85  states  that if the provisions of s. 81 or  s.  82  or
\ns.117  have not been complied with, the Election  Commission
\nshall  dismiss\tthe petition.  S. 86 lays down that  if\t the
\npetition  is  not  dismissed  under  s.\t 85,  the   Election
\nCommission  shall  cause  a  copy  of  the  petition  to  be
\npublished in the Official Gazette and a copy to be served by
\npost  on each respondent, and shall then refer the  petition
\nto an Election Tribunal for trial.  We may skip over ss. 87,
\n88  and\t 89 which deal with matters with which\twe  are\t not
\ndirectly  concerned.  We then come to s. 90 which lays\tdown
\nthe  procedure to be followed before the Election  Tribunal.
\nSub-s.\t(1) of s. 90 says that subject to the provisions  of
\nthe  Act  and of any rules made thereunder,  every  election
\npetition shall be tried by the Tribunal as nearly as may  be
\nin  accordance with the procedure applicable under the\tCode
\nof Civil Procedure, 1908, to the trial of suits.  Sub-s. (3)
\nof s. 90states :\n<\/p>\n
\t      ”The Tribunal shall dismiss an election peti-
\n\t      tion which does not comply with the provisions
\n\t      of  section 81, or section 82  notwithstanding
\n\t      that it has not been dismissed by the Election
\n\t      Commission under section 85.\n<\/p><\/blockquote>\n
\t\t    Explanation-An  order  of  the  Tribunal
\n\t      dismissing  an  election petition\t under\tthis
\n\t      subsection shall be deemed to be an order made
\n\t      under clause (a) of section 98.”\n<\/p><\/blockquote>\n
Sub-s  (4) of s. 90 states that any candidate not already  a
\nrespondent  shall,  upon application made  to  the  Tribunal
\nwithin\tfourteen days from the date of commencement  of\t the
\ntrial  and subject to the provisions of s. 119, be  entitled
\nto be joined as a
\n580<\/span>
\nrespondent.  Sub-s. (6) states that every election  petition
\nshall  be tried as expeditiously as possible  and  endeavour
\nshall  be made to conclude the trial within  6\tmonths\tfrom
\nthe  date of publication of the copy of the petition in\t the
\nOfficial Gazette under subs.  (1) of S. 86.\n<\/p>\n
     Let  us  now examine the preliminary  objections  which
\nhave been urged before us on behalf of the appellant, in the
\nlight of the provisions to which we have just now  referred.
\nWe take first the objection based on the joinder of Ballu or
\nBalji  to Election petition No. 269\/1962.  The\targument  on
\nthis part of the case is the following\tLearned counsel\t for
\nthe appellant has contended that the provisions of s. 82  of
\nthe  Act are mandatory provisions and any failure to  comply
\nwith  those  provisions\t is fatal in the sense\tthat  it  is
\nobligatory  on the Tribunal to dismiss an election  petition
\nwhich does not comply with the Provisions of s. 82.  He\t has
\nrelied\tfor  this purpose on sub-s. (3) of s.  90.   He\t has
\nfurther\t contended that in view of the aforesaid  provisions
\nof  the Act, namely, the provisions in s. 82 and sub-s.\t (3)
\nof  s. 90, it is not open to an Election Tribunal  to  apply
\nthe  Principles of the Code of Civil Procedure and  treat  a
\nnon-,joinder   or   mis-joinder\t  as  not   fatal   to\t the
\nmaintainability of the petition.\n<\/p>\n
     The foundation of the argument is that there has been a
\nnon-compliance\twith  the  provisions  of  s.  82.  If\tthat
\nfoundation  is absent, then the whole  argument\t disappears.
\nNow, it is admitted that Ballu or Balji was not a contesting
\ncandidate within the meaning of s. 82 because his nomination
\npaper  had been rejected.  The admitted position further  is
\nthat  all  the\tcontesting candidates  were  joined  to\t the
\npetition as required by s. 82.\tTherefore, what happened was
\nthis   All ‘the parties whom it was necessary to join  under
\nthe  provisions of s. 82 were joined as respondents  to\t the
\npetition ; but Ballu
\n 581<\/span>
\nor   Balji  was joined in excess of the requirements  of  s.\n<\/p>\n
82.  The  question before us is, does this  amount  to\tnon-
\ncompliance  with, or contravention of, the provisions of  s.
\n82?  Learned counsel for the appellant wishes us to read  s.
\n82  as though it said that the persons named therein and  no
\nothers\tshall be joined as respondents to the petition.\t  He
\nwants  us to add the words “and no others” in  the  section.
\nWe  find no warrant for such a reading of s. 82.   We  agree
\nwith  the High Court that if all the necessary parties\thave
\nbeen joined to the election petition, the circumstance\tthat
\na  person  who\tis  not a  necessary  party  has  also\tbeen
\nimpleaded  does not amount to a breach of the provisions  of
\ns. 82 and no question of dismissing the petition under\tsub-
\nso (3) of s. 90 arises.\t It is open to the Election Tribunal
\nto  strike out the name of the party who is not a  necessary
\nparty within the meaning of s. 82 of the Act.  The  position
\nwill  be different if a person who is required to be  joined
\nas a necessary party under s. 82 is not impleaded as a party
\nto  the petition.  That however is not the case here and  we
\nare  of the view that the learned counsel for the  appellant
\nhas  failed  to make out the very foundation  on  which\t his
\nargument on this part of the case is based.  In the view  we
\nhave  taken it is unnecessary to consider further the  legal
\neffect of a contravention of the provisions of s. 82.  It is
\nperhaps\t necessary  to\tadd that  learned  counsel  for\t the
\nrespondents  relied on the decision of this court  in  Jagan
\nNath v. Jaswant Singh<\/a>  (1), where it was held that s. 82  of
\nthe  Act  as it then stood was not mandatory.\tS.  82\tthen
\nprovided as follows:\n<\/p>\n
\t      “A petitioner shall join as respondents to his
\n\t      petition all the candidates who were duly\t no.
\n\t      minated at the election other than himself  if
\n\t      he was so nominated.”\n<\/p><\/blockquote>\n
Sub-s.\t(4)  of\t s. 90 then  provided  that  notwithstanding
\nanything contained in s. 85, the tribunal may
\n(1)  [1954] S.C.R. 892.\n<\/p>\n
582<\/span><\/p>\n
dismiss an election petition which does not comply with\t the
\nprovisions of ss. 81, 83 or 117.  There has   -been a change
\nof  law since that decision.  S. 82 has\t    been re-cast and
\nsub-s.\t(3  of\ts. 90 now states  that\tthe  tribunal  shall
\ndismiss an election petition which does not comply with\t the
\nprovisions of s. 81 or s. 82 notwithstanding that it has not
\nbeen  dismissed\t by  the Election Commission  under  s.\t 85.
\nTherefore we do not think that the decision in Jagan Nath v.
\nJaswant\t Singh<\/a> (1), is determinative of the  problem  before
\nus.   We need not however pursue this question any  further,
\nbecause we have held that in the present cases there was  no
\ncontravention of the provisions of s. 82.\n<\/p>\n
     We now go to the second point.  But before we do so, it
\nmay   perhaps  be  stated  that\t certain  defects   in\t the
\nverification of Election Petition No. 269 of 1962 have\tbeen
\nbrought to our notice, as they were brought to the notice of
\nthe Election Tribunal.\tOne of these defects was that though
\nthe  verification stated that the averments made in some  of
\nthe  paragraphs\t of the petition were true to  the  personal
\nknowledge of the petitioner and the averments in some  other
\nparagraphs  were verified to be true on the basis of  advice\n<\/p>\n
-and  information received by the petitioner from legal\t and
\nother sources, the petitioner did not state in so many words
\nthat the advice and information received was believed by him
\nto  be true.  The Election Tribunal took the view that\tthis
\ndefect\tin verification was a matter which came\t within\t cl.\n<\/p>\n
(c)  of sub-s. (1) of s. 83 and the defect could be  removed
\nin  accordance\tWith  the principles of the  Code  of  Civil
\nProcedure,  1908.  The Election Tribunal further  held\tthat
\nsuch, a defect did not attract sub-s. (3) of s. 90  inasmuch
\nas  that sub-section does not refer to\tnon-compliance\twith
\nthe  provisions\t of  s. 83 as a\t ground\t for  dismissing  an
\nelection petition.  We agree with the view expressed by\t the
\nElection Tribunal.  We have pointed out that sub-s. (4) of
\n(1)  [1954] S.C.R. 892
\n 583<\/span>
\ns.   90\t originally referred to three sections,\t namely,  is
\n81,  83\t and 117.  It said  that  nothwithstanding  anything
\ncontained  in s. 85 the Tribunal might dismiss\tan  election
\npetition which did not comply with the provisions of s.\t 81,
\ns.  83\tor s. 117.  S. 90 .was amended by Act  27  of  1956.
\nSub-s.\t(3)  then said that the Tribunal  shall\t dismiss  an
\nelection petition which does not comply with the  provisions
\nof  s. 81, s. 82 or s. 117 notwithstanding that it  has\t not
\nbeen  dismissed\t by  the Election Commission  under  s.\t 85.
\nThere  was a further amendment by Act 40 of 1961 and  sub-s.
\n(3) of s. 90 as it now stands has already been quoted by  us
\nin  an earlier part of this judgment.  It seems clear to  us
\nthat reading the relevant sections in Part VI of the Act, it
\nis  impossible\tto accept the contention that  a  defect  in
\nverification which is to be made in the manner laid down  in
\nthe  Code of Civil Procedure, 1908, for the verification  of
\npleadings  as required by cl. (c) of sub-s. (1) of s. 83  is
\nfatal to the maintainability of the petition.\n<\/p>\n
     On\t behalf\t of  the  appellant  it\t has  been   further
\ncontended that the copy of the petition which was served  on
\nthe appellant was not a true copy within the meaning of\t the
\nmandatory provisions of subs. (3) of s. 81 of the Act.\t The
\nargument is that a failure to comply with the provisions  of
\nsub-s.\t(3) of s. 81 attracts sub-s. (3) of s. 90 and it  is
\nobligatory  on the Tribunal to dismiss an election  petition
\nwhich does not comply with the requirements of sub-s. (3) of
\ns.  81.\t On the basis of the decision of this court  in\t Sri
\nBabu Ran v. Shrimati Prasanni<\/a> (1), it is contended that\t the
\nprinciple  in  such  cases  is\tthat  whenever\tthe  statute
\nrequires a particular act to be done in a particular  manner
\nand  also  lays down that failure to comply  with  the\tsaid
\nrequirement  leads  to a specific consequence, it  would  be
\ndifficult to accept the argument that the failure to  comply
\nwith   the  said  requirement  should  lead  to\t any   other
\nconsequence
\n(1)  [1959] S.C.R. 1408.\n<\/p>\n
584<\/span><\/p>\n
It  is\targued that no question\t of  substantial  compliance
\narises in such cases, and the mandatory requirement must  be
\nstrictly complied with.\n<\/p>\n
     Let us first see what are the defects found in the copy
\nof  the\t petition served on the appellant.  It\tis  admitted
\nthat the first part of sub-s. (3) of s. 81 has been complied
\nwith  and the election petition was accompanied by  as\tmany
\ncopies\tthereof as there were respondents mentioned  in\t the
\npetition.   It is also admitted that one more copy  for\t the
\nuse  of\t the  Election Commission was also  given  with\t the
\npetition.   The’  last\tpart of the  sub-section  says\tthat
\n“‘every such copy shall be attested by the petitioner  under
\nhis  own signature to be a true copy of the  petition.”\t The
\ngrievance  of  the appellant is that this part of  the\tsub-
\nsection was not complied with inasmuch as (1) the copy which
\nwas  ‘served on the appellant did not contain the  signature
\nof  the\t petitioner at the foot of the petition\t though\t the
\noriginal contained such signature, and (2) the\tverification
\nin  the\t copy  served on the appellant\tomitted\t to  mention
\nparagraph  14-g (ii) in that part of the verification  which
\nrelated to averments stated to be true to the personal know-
\nledge  of the petitioner.  As to the first of these  defects
\nthe  Election  Tribunal pointed out that every page  of\t the
\ncopy served on the appellant was attested to be a true\tcopy
\nunder the signature of the petitioner and furthermore it was
\nnot necessary to append a fresh signature to the copy of the
\npetition.   With  regard to the second defect  the  Election
\nTribunal apparently took the view, though it did not say  so
\nin  so\tmany  words, that the omission of  a  reference\t to.
\nparagraph  14-g (ii) in the verification in the copy  served
\non the appellant was a case of mere oversight which did\t not
\nmislead\t anybody  because in the body of the  petition\tfull
\ndetails of the averments were made.  The High Court took the
\nview  that the defect was not of such a nature as to  amount
\nto noncompliance with the provisions of sub-s. (3) of s. 81.\n<\/p>\n
 585<\/span><\/p>\n
     We agree with the High Court and the Election  Tribunal
\nthat  the first defect is not a defect at all.\t When  every
\npage of the copy served on the appellant was attested to  be
\na  true copy under the signature of the petitioner, a  fresh
\nsignature  below  the word “petitioner” was  not  necessary.
\nSub-s. (3) of s. 81 requires that the copy shall be attested
\nby the petitioner under his own signature and this was done.
\nAs  to\tthe second defect the question really turns  on\t the
\ntrue scope and effect of the word “copy” occurring in sub-s.
\n(3)  of s. 81.\tOn behalf of the appellant the\targument  is
\nthat  sub-s. (3) of s. 81 being mandatory in nature all\t the
\nrequirements  of the sub-section must be  strictly  complied
\nwith  and the word “copy” must be taken to be an  absolutely
\nexact  transcript  of  the  original.\tOn  behalf  of\t the
\nrespondents  the  contention is that the word  “copy”  means
\nthat which comes so near to the original as to give to every
\nperson\t seeing\t it  the  idea\tcreated\t by  the   original.
\nAlternatively, the argument is that the last part of  sub-s.
\n(3)  dealing with a copy is merely directive, and  for\tthis
\nreliance is placed on the decision of this court in Kamaraja
\nNadar v. Kunju Thevar<\/a> (1).  We are of the view that the word
\n“”copy”\t in sub-s. (3) of s. 81 does not mean an  absolutely
\nexact  copy, but means that the copy shall be so  true\tthat
\nnobody can by any possibility misunderstand it (see Stroud’s
\njudicial  Dictionary, third edition, volume 4,\tpage  3098).
\nIn this view of the matter it is unnecessary to go into\t the
\nfurther question whether any part of sub-s. (3) of s. 81  is
\nmerely\tdirectory.  Several English decisions were cited  at
\nthe  Bar  The earliest decision cited to us is the  decision
\nin  Pocock v. Mason (2) where it was held that the  omission
\nof  the\t words\t“the” and “by” in the copy of  the  writ  of
\ncapias\tprescribed  by the schedule 2 W. 4, c.\t39  did\t not
\ninvalidate an arrest.  The reason given was thus expressed :\n<\/p>\n
\t      “To  ascertain  whether or not  an  unfaithful
\n\t      copy produces any alteration in the meaning
\n(1) [ 1959] S.C.R. 583.\t (2) 131 E.R. 1111
\n586<\/span>
\n\t      supposes an exertion of intellect which it may
\n\t      be inconvenient to require at the hands of  those
\n\t      who serve the copy.  It was to obviate   this
\n\t      inconvenience, that the legislature  has.given
\n\t      a\t form,\tand  required  that  it\t should\t  be
\n\t      pursued.\tNothing but ordinary care is  neccs-
\n\t      sary for taking the copy.”\n<\/p>\n
In  a later decision Sutton v. Mary and Burgess the copy  of
\nthe  writ served on the defendant omitted the letter “s”  in
\nthe word “she”\tIt was held that the omission was immaterial
\nas  it could not mislead anybody.  In Morris v.\t Smith\t(2),
\nthere  was a motion to set aside the service of the writ  of
\nsummons\t for irregularity, on the ground that the  defendant
\nbeing  an  attorney,  he  was only  described  as  of  Paper
\nBuildings  in the Inner Temple, London and the\taddition  of
\n“gentleman” was not given.  It was held that the form in the
\nstatute 2 Will 4, c. 39 s. I did not require the addition of
\nthe  defendant\tto  be\tinserted in  the  writ\tand  it\t was
\nsufficient to state his residence.  The writ of summons\t was
\ntherefore  valid.  In another case in the same volume  Cooke
\nv.  Vaughan  (2), it was held that where a  writ  of  capias
\ndescribed the defendant by the addition of “gentleman”,\t but
\nthat  addition was omitted in the copy served, the copy\t was
\nnot a copy of the writ, in compliance with the stat. 2 Will.
\n4,  c.\t39, s. 4 On behalf of the respondents  a  number  of
\ndecision  under\t the Bills of Sale Act, 1878 and  the  Amend
\nment  Act,  1882  (45 and’ 46 Vict. c. 43)  were  cited\t The
\nquestion  in  those  cases was whether\tthe  bill  was\t“”in
\naccordance  with  the  form  in the  schedule  to  this\t Act
\nannexed” as required by s. 9 of the Bills of Sale Act  1878,
\nand Amendment Act 1882.\t In re Hewer Ex parte Kahen (4),  it
\nwas  held  that a “true copy” of a bill of sale\t within\t the
\nBills  of  Sale\t Act,  1878  s.\t 10,  sub-s.  2,  must\t not
\nnecessarily  be\t an  exact copy so long\t as  any  errors  or
\nomissions in the copy file( are merely clerical and of\tsuch
\na nature that no on,
\n(1) 149 E.R. 1291.    (2) 150 E.R. 51
\n(3) 150 E.R. 1346.    (4) (1882) 21 CH D 871
\n587<\/span>
\nwould  be  thereby misled.  The same view was  expressed  in
\nseveral\t other decisions and it is unnecessary to  refer  to
\nthem all.  Having regard to the provisions of Part VI of the
\nAct,  we are of the view that the word “copy” does not\tmean
\nan  absolutely\texact copy.  It means a copy  so  true\tthat
\nnobody\tcan by any possibility misunderstand it.   The\ttest
\nwhether the copy is a true one is whether any variation from
\nthe  original is calculated to mislead an  ordinary  person.
\nApplying  that test we have come to the conclusion that\t the
\ndefects\t complained of with regard to Election Petition\t No.
\n269  of\t 1962 were not such as to mislead  the\tappellant  ;
\ntherefore there was no failure to comply with the last\tpart
\nof  sub-s. (3) of s. 81.  In that view of the matter  sub-s.
\n(3) of s. 90 was not attracted and there was no question  of
\ndismissing  the election petition under that sub-section  by
\nreason\tof any failure to comply with the provisions  of  s.\n<\/p>\n
81.   This  disposes  of the  second  preliminary  objection
\nraised before us.\n<\/p>\n
     We now turn to the third preliminary objection and this
\nrelates\t to the affidavit which accompanied the petition  in
\nrespect\t of  the  corrupt  practices  alleged  against\t the
\nappellant.   The argument on this part of the case  is\tthat
\nthe affidavit was neither in the prescribed form nor was  it
\nproperly  sworn as required by the rules in the\t Conduct  of
\nElection  Rules,  1961 ; therefore there was  a\t failure  to
\ncomply\twith the proviso to sub-s. (1) of s. 83 of the\tAct.
\nThe  argument further is that an election petition under  s.
\n81  must comply with the provisions of s. 83 and  unless  it
\ncomplies  with\tthose  provisions, it  is  not\tan  election
\npetition under s. 81.\n<\/p>\n
     We\t think\tthat this contention hag  been\tsufficiently
\ndisposed  of  by  what\thas  been  stated  by  the  Election
\nTribunal.   The\t Election Tribunal has rightly\tpointed\t out
\nthat  the  affidavit was in the prescribed form but  due  to
\ninexperience the oaths
\n588<\/span>
\nCommissioner had made a mistake in the verification  portion
\nof the affidavit.  The Tribunal said :\n<\/p>\n
\t      “It  appears that due to inexperience  of\t the
\n\t      Oaths Commissioner instead of “verified before
\n\t      me” words, “verified by me” have been written.
\n\t      The  signature  of  the  deponent\t have\tbeen
\n\t      obtained\tin between the writing with  respect
\n\t      to  admission  on\t oath  of  the\tcontents  of
\n\t      affidavit\t  by   the   petitioner\t  and\t the
\n\t      verification   by\t the   Oaths   Commissioner.
\n\t      According\t  to   the   prescribed\t  form
\n\t      the   verification  should  be\t”   solemnly
\n\t      affirmed or sworn by “such and such” on  “such
\n\t      and  such date” before me”.  The\tverification
\n\t      of   the\taffidavit  of  the   petitioner\t  is
\n\t      apparently  not  in the  prescribed  form\t but
\n\t      reading  as a whole the  verification  carries
\n\t      the  same\t sense\tas  intended  by  the  words
\n\t      mentioned in the prescribed form.\t The mistake
\n\t      of  the  Oaths Commissioner in  verifying\t the
\n\t      affidavit\t cannot be a sufficient\t ground\t for
\n\t      dismissal\t  of   the   petitioner’s   petition
\n\t      summarily, as the provisions of s. 83 are\t not
\n\t      necessarily  to be complied with in  order  to
\n\t      make  a petition valid and such affidavit\t can
\n\t      be allowed to be filed at a later stage also.”\n<\/p><\/blockquote>\n
This view of the Election Tribunal was affirmed by the\tHigh
\nCourt.\t We  agree with the view expressed by  the  Election
\nTribunal  and  we  do  not think  that\tthe  defect  in\t the
\nverification  due to inexperience of the Oaths\tCommissioner
\nis  such a fatal defect as to require the dismissal  of\t the
\nelection petition.\n<\/p>\n
     Turning  now to Election Petition No. 295 of 1962,\t the
\ndefect\tas to the time and place of verification is,  as  we
\nhave said earlier, not a fatal defect.\tIt is a matter which
\ncomes  within cl. (c) of sub.s. (1) of s. 83 and the  defect
\ncan  be\t remedied in accordance with the principles  of\t the
\nCode of
\n 589<\/span>
\nCivil Procedure relating to the’ verification of  pleadings.
\nAs to the four enclosures which were not re-,produced in the
\ncopy served on the appellant, the position was this.  In the
\noriginal petition there was an endorsement to the  following
\neffect “Enclosed :\n<\/p>\n
\t      1.    Two\t copies of the grounds\tof  election
\n\t      petition.\n<\/p><\/blockquote>\n
\t      2.    Original treasury receipt of Rs. 2,000\/-
\n\t      as security deposit.\n<\/p><\/blockquote>\n
\t      3.    Certified  copy  of\t the  order  of\t the
\n\t      Returning\t Officer  rejecting  the  nomination
\n\t      dated 22-1-1962.<\/p><\/blockquote>\n
\t      4.  Vakalatnama duly stamped.”‘
\nIn  the copy served on the appellant the  original  treasury
\nreceipt of Rs. 2,000\/- deposited byway_ of security was\t not
\nre-produced.  A certified copy of the order of the returning
\nofficer\t rejecting  the\t nomination of\tthe  petitioner\t was
\nappended to the copy but this certified copy was not further
\nsigned by the petitioner.  As to the security deposit it was
\nmentioned  in  the body of the petition (paragraph  9)\tthat
\nsuch  a\t deposit had been made.\t The certified copy  of\t the
\nrejection of the nomination paper was verified to be a\ttrue
\ncopy  and  we fail to see how any further signature  of\t the
\npetitioner was necessary thereon.  It is obvious to us\tthat
\na copy of the vakalatnama was not required under sub-s.\t (3)
\nof s. 81 nor was it necessary to make a further\t endorsement
\nthat  two copies of the petition had been filed\t along\twith
\nthe petition.  It is not disputed that copies as required by
\nsub-s.(3) of s. 81 were filed.\tThe only’ grievance made  is
\nthat  the  endorsement “two copies” was not repated  in\t the
\nenclosure portion of the copy served on the appellant.\tWe
\n590<\/span>
\nhave already explained what is meant by the word ” copy”  in
\nsub-s. (3) of s. 81 and we are of the view that the  defects
\npointed\t out  on behalf of the appellant are not of  such  a
\ncharacter as to invalidate the copy which was served on\t the
\nappellant in the present case.\n<\/p>\n
     In conclusion we have to point out that we allowed\t one
\nDr. Z. A. Ahmed to intervene in these appeals on the grounds
\nmentioned  in  his  petition  dated  April  4,\t1963.\t The
\nintervener supported the arguments advanced on behalf of the
\nappellant.  We have fully dealt with those arguments in this
\njudgment  and  nothing\tfurther\t need  be  said\t about\t the
\nintervener’s petition.\n<\/p>\n
     For  the reasons given above, we see no merit in  these
\ntwo  appeals.\tThe appeals are accordingly  dismissed\twith
\ncosts.\n<\/p>\n
\t\t\t\t\t  Appeals dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Murarka Radhey Shyam Ram Kumar vs Roop Singh Rathore & Others(And … on 7 May, 1963 Equivalent citations: 1964 AIR 1545, 1964 SCR (3) 573 Author: S Das Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: MURARKA RADHEY SHYAM RAM KUMAR Vs. RESPONDENT: ROOP SINGH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-594","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMurarka Radhey Shyam Ram Kumar vs Roop Singh Rathore & Others(And ... on 7 May, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/murarka-radhey-shyam-ram-kumar-vs-roop-singh-rathore-othersand-on-7-may-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Murarka Radhey Shyam Ram Kumar vs Roop Singh Rathore & Others(And ... on 7 May, 1963 - 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