Dr. Anita Babbar vs Sh. O.P. Babbar & Ors.
2011 Latest Caselaw 2959 Del

                                        REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+     IA NO. 16682/2009 IN ELECTION PETITION NO. 05/2009


DR. ANITA BABBAR                                    ..... Petitioner
                             Through:   Mr.K.C. Mittal, Advocate with
                                        Mr. N. Safaya and Mr. Tarunesh
                                        Kumar, Advocates.

                    versus


SH. O.P. BABBAR & ORS.                                   ..... Respondents
                     Through:           Mr. H.S. Phoolka, Sr. Advocate
                                        with Mr. Ashok Kashyap,
                                        Advocate for respondent No.1.


%                            Date of Decision : June 02, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                             JUDGMENT

: REVA KHETRAPAL, J.

1. By way of this application under Section 151of the Code of

Civil Procedure read with Section 86 of the Representation of

the People Act, 1951 (hereinafter referred to as "the Act"), the

respondent No.1 prays for dismissal of the petition as not

maintainable in view of non-compliance of the provisions of

Sections 81 and 83 of the Act.

2. It is stated in the application that the petitioner has failed to

supply a complete set of papers alongwith the petition to the

respondent No.1. It is further stated that the counsel for the

respondent No.1 appeared before the Court on 20.05.2009 and

requested the counsel for the petitioner to supply the complete

set to enable him to file reply to the petition. The counsel for

the petitioner held out an assurance that the complete set would

be supplied the same day. However, a set of the petition

alongwith the annexures was supplied to the counsel for the

respondent No.1 on 6.7.2009, but even this copy was not

complete and not a true copy of the petition filed in this Court.

Thus, Set No.1, which was received with the notice and Set

No.2, which was received on 6.7.2009, were both not complete

and did not tally with the original. On inspection of the Court

records, the following deficiencies were found in both the sets:-

Set No.1. (Received with Notice)

―(a) Page18 - Para 19 of the petition, there are blanks. No receipt number or date is mentioned.

(b) Page 18 - No date is given at the bottom as well as it is no where stated that it was signed by the counsel.

(c) The verification of the petition is not verification in accordance with law. No number of paragraphs have been mentioned and the date also not mentioned. Memo of parties as well as index does not contain the signature of the counsel and even the date is kept blank.

(d) Page 14 - Para 11 - About 10 lines from the bottom and 14th line from the top of the page are not legible. The copy supplied is not true copy of the petition as filed in the court.

(e) Similarly, at page 15, about 4 lines from top to the 10th line onwards are not legible and there is no attestation at page 15 as attested true copy. The copy supplied is not true copy of the petition as filed in the court.

(f) The copy of the petition furnished to the answering Respondent is illegible at the end of each of the page, as the petitioner has put stamp of ‗True Attested Copy' on the contents of the page itself. It appears that this has been done with a view that the answering respondent may not be able to file an effective reply.

(g) The petitioner failed to supply first page of the affidavit to the petitioner in the first set supplied and in the second page of the affidavit, date of affidavit is kept blank.

(h) At page 19 of the copy supplied column of paras and date are not filled in the verification clause.

Set No.2. (Containing Annexures supplied on 6-7-2009)

(a) Page 18 - Para 19 of the Petition, there are blanks. No receipt number or date is mentioned.

(b) Page 18 - No date is given at the bottom as well as it is no where stated that it was signed by the counsel.

(c) The verification of the Petition is not verification in accordance with law. No number of paragraphs have been mentioned and the date is also not mentioned. Memo of Parties as well as index does not contain the signature of the counsel and even the date is kept blank.

(d) Page 14 - Para 11 - About 10 lines from the bottom and 14th line from the top of the page are not legible. The copy supplied is not true copy of the Petition as filed in the court.

(e) Similarly, at page 15, about 4 lines from top to the 10th line onwards are not legible and there is no attestation at page 15 as attested true copy. The copy supplied is not true copy of the Petition as filed in the court.

(f) At page 19, columns of para and date are not filled in the verification clause.

(g) Annexure D has not been properly verified and its legible stated to be fairly typed copy has not also been properly verified. All other alleged to be fair typed copies of the annexures have not been properly verified in accordance with law.

(h) That there is no pagination about page 23. Stated to be Annexure C pertains to the photographs of the scooters alongwith the alleged stepney covers bears no pagination. On perusal of the photographs it is found that no verification is done as attested true copies as provided U/s 81(3) of the Representation of People Act 1951. The petitioner has also failed to supply the alleged photographs of 20 scooters. The copy supplied of the alleged photographs under signatures are of 10 scooters only and the six are duplicate and four are illegible. Therefore such photographs not duly verified in accordance with the provisions of law have been supplied has nothing but only piece of paper and has been manipulated by the petitioner. Such a manipulated photographs carry no weight and it is only handiwork of the petitioner.

No full particulars in this regard also submitted by the petitioner. In these circumstances narrated above the petition deserves summarily rejections.‖

It may be mentioned at this juncture that both the

sets on the prayer of the counsel for the respondent No.1

were ordered to be kept in a sealed cover.

3. It is further alleged in the application:-

―4. On inspection of the court record it is found that there are additions in the affidavit made by hand at two places without countersignature by the petitioner or her counsel or the person who attested the same. It appears after the alleged attestation of the affidavit some interpolation have been made. Thus such an interpolation are purgery and were not sworn before the Oath Commissioner. Thus, the affidavit is no affidavit in the eyes of law. No attested true copy of the affidavit filed before this Hon'ble Court has been supplied to the answering respondent even while the second set was supplied on 6.7.2009.

5. The alleged affidavit of corrupt practices is also not true copy of the original filed before this Hon'ble Court, as there is no name of the notary public or oath commissioner mentioned on it and it does not bear the stamp of the oath commissioner or notary public. It also does not bear the date and there is no certificate on the copy of the affidavit that the same was sworn before Oath Commissioner or Notary Public. The affidavit filed before the Hon'ble Court the name of the person who attested the same is not mentioned, thus it is not an affidavit, which is required to be filed under

the provisions of law. On this count also the petition is also liable summarily rejected (sic.).

6. That from the perusal of record it has come to the notice that the petitioner presented the petition on 21.1.2009 containing 22 pages, though there is overwriting without any signature but the caveat report obtained on 22.1.2009 suggestive of that the petition was taken back unauthorisedly to fill the material lacunae and annexures were added subsequently which is not permissible. The overwriting on 22 numerical itself suggest that there are subsequent interpolations, thus the petition is liable to be rejected on this ground alone.

7. The endorsement on the index shows that the petitioner failed to file as many copies of the petition as there are seventeen respondents mentioned in the petition at the time of filing the petition, which is a mandatory requirement of Section 81(3) of the said Act. Thus, the mandatory requirement having not complied with, therefore, the petition must fail (sic.).

8. That the copies of the petition supplied to the answering respondent do not bear date and signature of counsel on index, memo of parties and the petition. The requirement of law is that the petitioner is to submit necessary copy as attested true copy filed before the Hon'ble Court. Thus the petition is liable to be rejected as it does not meet the requirement of law.

9. That the petition does not comply with the requirements of Section 83 (a & b). It does

not contain a concise statement of material facts on which the petitioner relies nor does it set forth full particulars of any corrupt practice that the petitioner alleges. It does not disclose the name of persons who received the gifts or even particulars of the alleged corrupt practice including time, date, place of the commission of each corrupt practice. The petition is devoid of any material particulars and therefore, liable to be dismissed as lack of these particulars amounts to no cause of action being disclosed in the petition. In this regard, particular submission is made with regard to paragraphs 5 to 13 of the petition. Vague allegations without any material particulars or other requirements of law have been made. On this short ground, the petition is liable to be dismissed.

10. That the petitioner has failed to file proper affidavit as provided under Rule 94A and in Form 25 of the Conduct of Election Rules 1961, of the alleged corrupt practices. Therefore, the petition is liable to be summarily rejected.‖

4. Relying upon the judgment of the Hon‟ble Supreme Court in

the case of Harcharan Singh Josh Vs. Harkishan reported as

AIR 1996 SC 3350, it is further submitted in the application

that the aforesaid defects are not curable defects. Strict

compliance has to be made in a case such as the case in hand

and the concept of substantial compliance has no application in

such a case.

5. Reply to the aforesaid application was filed by the petitioner,

asserting that the application was liable to be dismissed as the

same was not signed by the respondent No.1 and was an abuse

of the process of law, having been filed with the sole purpose

of delaying the disposal of the petition on merits. It was denied

that either of the copies supplied to the respondent No.1 were

not complete or were not true copies of the petition filed in this

Court. It was asserted that the petitioner had complied with the

provisions of law regarding submission of copies of petition

and annexures, and a noting in this regard has been made by

the Registry at the time of the filing of the petition itself. It

was stated that the respondent was raising false and frivolous

objections, which were without merit. The petition of the

petitioner suffered from no defect and copy of the same had

been supplied to the respondent No.1 as per law. Each and

every averment made in the application was also specifically

denied.

6. A rejoinder to the aforesaid reply of the petitioner was filed by

the respondent No.1, reiterating and re-affirming the contents

of the application and denying the corresponding paragraphs of

the reply of the petitioner.

7. Detailed arguments were advanced by Mr. H.S. Phoolka, the

learned senior counsel for the respondent No.1 and by Mr. K.C.

Mittal, the learned counsel for the petitioner. Precedents were

also cited at the bar by both the counsel. In the midst of

arguments, on the plea taken up by the learned counsel for the

petitioner that, in law, in so far as Section 83 is concerned,

Section 86 of the Act has no application, the counsel for the

respondent No.1 for the purposes of the present application

withdrew the averments relating to Section 83 of the Act.

Subsequently, the learned counsel for the respondent No.1 also

withdrew the averments made in the application with regard to

non-compliance with Form 25 of the Conduct of Election

Rules, 1961, as stated in para 10 of the application, reproduced

hereinabove. Substantially, thereafter, the counsel for the

respondent No.1 confined his arguments to violation of Section

81 (3) of the Act with casual references to Section 82 and

Section 117 thereof. In so far as Section 117 of the Act is

concerned, it relates to the deposit of security of costs and

admittedly the same had been deposited by the petitioner in

compliance with the Rules framed by this Court. The fact of

deposit of security of costs is not disputed by the respondent

No.1 nor the Registry has raised any objection and, therefore,

Section 117 has been complied with. Similarly, so far as

Section 82 is concerned, the respondent No.1 has not alleged

that the Election Petition is bad for non-joinder of parties and

since it is not in dispute that all the contesting candidates have

already been made parties to the Election Petition, Section 82

of the Act cannot be said to be attracted.

8. Mr. H.S. Phoolka, the learned senior counsel for the respondent

No.1, the returned candidate, in support of his prayer for

dismissal of the petition under Section 86 of the Act

highlighted the differences in the original petition on the one

hand, and the set No.1 and set No.2 furnished to the respondent

No.1 on the other hand. Mr. Phoolka contended that on the

first date of hearing, that is, on 20.05.2009 the counsel for

respondent No.1 requested for a complete set to be supplied.

On 6th July, 2009, the counsel for the petitioner supplied the

second set to the counsel for respondent No.1, however, the

second set which was supplied was also defective. Thus, both

the sets, the first set as well as the second set supplied, were in

total violation of Section 81(3) of the Act.

9. The precedents relied upon by the learned senior counsel for

the respondent No.1 in support of his contention that the

petition was liable to be rejected by virtue of the provisions of

Section 86 read with Section 81 of the Act are as under.

10.In M. Karunanidhi Vs. H.V. Handa AIR 1983 SC 558, which

decision was strongly relied upon by Mr. Phoolka, the question

arose as to whether the Election Petition was liable to be

dismissed as the copy of the Election Petition furnished to the

appellant was not accompanied by a copy of the photograph of

the fancy banner referred to in paragraph 18(b) of the petition.

Reversing the judgment of the High Court, the Supreme Court

held that the photograph of the fancy banner adverted to in the

petition being an integral part of the petition, the failure to

supply a copy of the photograph to the appellant alongwith the

copy of the Election Petition amounted to non-compliance of

sub-Section (3) of Section 81 and, therefore, the Election

Petition must be dismissed summarily under Section 86 of the

Act.

11.In K.K. SHUKLA VS. VIJAY KUMAR GOEL & ORS. 64

(1996) DLT 56, relied upon by the counsel for the respondent

No.1, the subject of controversy was within a very narrow

compass, namely, as to whether an Election Petition presented

without as many copies thereof as there were respondents was

maintainable or not? The further issue was if there was non-

compliance of the provisions of sub-section (3) of Section 81,

whether the Election Petition was maintainable and whether the

Election Petition could be dismissed for such non-compliance

at the very threshold itself? A learned Single Judge (Dr. M.K.

Sharma, J. as His Lordship then was) held that since the

petitioner had not filed copies of the petition at the time of the

presentation of the Election Petition and the Election Petition

admittedly was not accompanied by as many copies thereof as

there were respondents with attestation of the petitioner under

his own signatures, the petition was not maintainable and was

liable to be dismissed. The Court accordingly dismissed the

petition.

12.The next decision relied upon by Mr. Phoolka was U.S.

SASIDHARAN VS. K. KARUNAKARAN AND ANOTHER

AIR 1990 SC 924. In this case, it was submitted by the first

respondent that as copies of the notice, photographs and video

cassette were not supplied to the first respondent alongwith the

Election Petition, the Election Petition was liable to be

dismissed in limine under Section 86 (1) for non-compliance

with Section 81 (3) of the Act. Significantly, in this case, the

video cassette was used in the constituency at the instigation of

the first respondent and it contained the speeches of the

Government servants allegedly used for the furtherance of the

prospects of the election of the first respondent, which

constituted corrupt practice. The Supreme Court, affirming the

judgment of the High Court, with reference to the video

cassette held that when a document forms an integral part of

the Election Petition and a copy of such document is not

furnished to the respondent alongwith the copy of the Election

Petition, the copy of the Election Petition will not be a true

copy within the meaning of Section 81 (3) and, as such, the

Court has to dismiss the Election Petition under Section 86(1)

for non-compliance with Section 81(3).

13.Mr. Phoolka next referred to the case of MULAYAM SINGH

YADAV VS. DHARAM PAL YADAV & ORS. 2001 (7) SCC

98. In this case, the original of the video cassette mentioned

and verified in the Schedule to the Election Petition was not

filed alongwith the petition although copies thereof were filed

for service on the respondents to the petition. A three-Judge

Bench of the Supreme Court held that it was satisfied that the

video cassette mentioned and verified in Schedule 14 was an

integral part of the Election Petition and that it should have

been filed in Court alongwith copies thereof for service upon

the respondents to the Election Petition. The Election Petition

as filed was, therefore, not complete. The Court further held

that Section 81 contemplates the presentation of an Election

Petition that is complete and satisfies the requirements of

Section 83. An Election Petition that is not complete must,

having regard to the imperative mandate of Section 86, be

dismissed. The Election Petition was, therefore, dismissed.

14. Next, the learned counsel for the respondent No.1 relied upon

a three-Judge Bench decision of the Supreme Court in

MITHILESH KUMAR PANDEY VS. BAIDYANATH

YADAV AND OTHERS AIR 1984 SC 305. In this case, the

copy of the Election Petition served upon the first respondent

contained a large number of mistakes in respect of the names of

the persons through whom corrupt practices were alleged to

have been practised during the Election. A learned Judge of

the Patna High Court overruled a preliminary objection taken

by the elected candidate that the election petition should be

dismissed straightaway under the provisions of Section 86 of

the Act, holding that the mistakes were of a superficial and

insignificant nature, bordering on clerical or typing mistakes,

and on the whole there was a substantial compliance of the

provisions of Section 81(3) of the Act. On a review of the law

on the subject, the Supreme Court held that the mistakes in the

copy supplied to the returned candidate related to corrupt

practices, which have to be proved to the hilt just like a

criminal charge and any mistake which contains an element of

vagueness would immediately vitiate the Election Petition and

merit its dismissal under Section 86. The Supreme Court

observed that the statute uses the word "true copy" and the

concept of substantial compliance cannot be extended too far to

include serious or vital mistakes which shed the character of

the "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. Opining that the High Court had

committed a serious error of law in holding that there had been

a substantial compliance of the provisions of Section 81(3) of

the Act, the Supreme Court dismissed the Election Petition

filed in the High Court.

15. In the case of REGU MAHESH ALIAS RAGU MAHESWAR

RAO VS. RAJENDRA PRATAP BHANJ DEV AND

ANOTHER AIR 2004 SC 38 which was also referred to, the

dismissal of the Election Petition under Section 86 of the Act

was prayed for on the ground that the verification to the

petition and the affidavit accompanying the petition did not

conform to the requirement of the statute, inasmuch as there

was no specification of the paragraphs which the petitioner had

verified of his knowledge and which he had verified upon

information. The Supreme Court held that in view of its

Division Bench decision in H.D. Revanna Vs. G. Puttaswamy

Gowda (1999) 2 SCC 217 and three-Judge Bench decision in

Dr. Vijay Laxmi Sadho Vs. Jagdish (2001) 2 SCC 247, the

settled position in law was that the defect in verification or an

affidavit was curable, but there was a gulf of difference

between a curable defect and a defect continuing in the

verification of the affidavit without any effort being made to

cure the defect. (See F.A. Sapa v. Singora, 1991 (3) SCC 375

and R.P. Moidutty v. P.T. Kunju Mohammed, 2000 (1) SCC

481). This being the position, the dismissal of the Election

Petition by the Andhra Pradesh High Court was held to be

justified.

16. Mr. Phoolka next relied upon three decisions of the Hon‟ble

Supreme Court which reiterated certain settled legal principles

in the field of election jurisprudence. The first of these three

cases was the case of JEET MOHINDER SINGH VS.

HARMINDER SINGH JASSI AIR 2000 SC 256 wherein the

legal principles were adumbrated as follows:-

―(i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves enormous load on the public funds and administration ( See Jagan Nath v. Jaswant Singh AIR 1954 SC 210; Gajanar krishnaji Bagat v Dattaji Raghobaj Megha (1995) 5 SCC 347: (1995) AIR SCW 3407: AIR 1995 SC 2284)

(ii) Charge of corrupt practice is quasi-criminal in character. If substantiated it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period. It may

entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to hilt, the standard of proof being the same as in a criminal trial. (See Qnamarul Ham v. S.K. Kanta [1994] 1 SCR 210, F.A. Sapa v. Singora [1991] 2 SCR 752a, Manohar Joshi etc. v. Damodar Tatyaa @ Dada Saheb Rupwati etc. [1991] 1 SCR 759, Ram Singh v. Col. Ramsingh AIR 1986 SC 3)‖

17.The second case cited by Mr. Phooka on legal principles

relating to elections was BALDEV SINGH MANN VS.

SURJIT SINGH DHIMAN AIR 2009 SC 1045. In this

case, the Supreme Court in paragraph 25 referred to the

above mentioned three-Judge Bench judgment of that

Court in Jeet Mohinder Singh's case (supra) and in

paragraphs 25 to 29 discussed the law on this aspect as

under:-

―25. A three-Judge Bench of this Court in Jeet Mohinder Singh versus Harminder Singh Jassi (1999) 9 SCC 386 has held that the success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration. Similar opinion has been expressed in Jagan Nath versus Jaswant Singh & Others 1954 SCR 892, Gajanan Krishnaji Bapat & another versus Dattaji Raghobaji Meghe & Others (1995) 5 SCC 347. The will of the people who have exercised their franchise in an election in favour of a returned candidate must be respected to protect the interest of the returned candidate.

26. The court in a number of cases held that charge of corrupt practice is a quasi- criminal in character and it has to be proved as a criminal charge and proved in the court.

27. In Jeet Mohinder Singh's case (supra), the court observed as under:

Charge of corrupt practice is quasi-criminal in character. If substantiated it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period. It may entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial.

28. The court has expressed similar opinion in the cases Quamarul Islam versus S.K.Kanta & Others (1994) Supp. (3) SCC 5 F.A. Sapa & Others versus Singora & Others (1991) 3 SCC 375, Manohar Joshi versus Damodar Tatyaba & Others (1991) 2 SCC 342, Ram Singh & Ors. Versus Col.

Ram Singh (1985) Supp. SCC 611 and Kripa Shankar Chatterjee versus Gurudas Chatterjee & Others (1995) 5 SCC 1.

29. In Ram Phal Kundu versus Kamal Sharma (2004) 2 SCC 759, the court reiterated the principle of election jurisprudence and observed that the election of the returned candidate should not be lightly interfered with though at the same time the purity of the election process has to be maintained.‖

18.The third case cited by Mr. Phoolka on election

jurisprudence was the decision rendered in RAM SUKH

VS. DINESH AGGARWAL 2009 (10) SCC 541. In this

case also, the Supreme Court referred to the principles

laid down by the Constitution Bench in Jagan Nath

versus Jaswant Singh & Others AIR 1954 SC 210 in

respect of the statutory requirements of election law, as

reiterated in Jeet Mohinder Singh's case (supra):-

―Before examining the merits of the issues raised on behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath v. Jaswant Singh and Ors.

Speaking for the Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely statutory proceeding

unknown to the common law and that Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act.‖

19.The next case cited by Mr. Phoolka in support of his prayer for

dismissal of the petition for non-compliance of Section 86(1) of

the Act was the decision rendered in DR. (SMT.) SHIPRA VS.

SHANTI LAL KHOIWAL ETC. AIR 1996 SC 1691. This case

was strongly relied upon by the learned counsel for the

respondent No.1 and it is, therefore, proposed to deal with it

elaborately at a later stage.

20. Mr. Phoolka next referred to the decision of the Bombay High

Court in the case of NARENDRA BHIKAHI DARADE VS.

KALYANRAO JAYWANTRAO PATIL AIR 2000 BOMBAY

362. In this case, a learned Single Judge of the Bombay High

Court held that non-verification of the concise statement of

material facts and affidavits in the copy of the Election Petition

cannot be considered to be a defect curable by way of an

amendment of the election petition.

21.The next case cited by Mr. Phoolka was the decision rendered

by the Supreme Court in G.V.Sreerama Reddy & Anr. Vs.

Returning Officer & Ors.2009 (8) SCC 736. In this case, the

High Court‟s order holding that there was no proper

presentation of the Election Petition under Section 81 (1) of the

Act, since the Registrar (Judicial) had recorded that the

petitioners were not present while presenting the petition, was

upheld by the Supreme Court by holding that an Election

Petition is to be presented by any candidate or elector relating

to the election personally to the authorized officer of the High

Court and failure to adhere to such course would be contrary to

the said provision and would render the Election Petition liable

to be dismissed on the ground of improper presentation.

22. Mr. Phoolka next relied upon the decision in the case of

R.P.MoiduttyVs. P.T. Kunju Mohammed & Anr. AIR 2000

SC 388. This case related to defects in the affidavit filed by the

petitioner, inasmuch as all the averments made in paras 1 to 17

of the petition were stated to be true to the personal knowledge

of the petitioner and in the next breath the very same averments

were stated to be based on the information of the petitioner and

believed by him to be true. The source of the information was

also not disclosed. The Supreme Court held that want of

affidavit in the required form and also lack of particulars

rendered the petition liable to be rejected at the threshold as the

allegations of corrupt practice could not have been enquired

into and tried at all.

23. The next case cited by Mr. Phoolka was the case of Quamarul

Islam Vs. S.K. Kanta & Ors. AIR 1994 SC 1733. In this case,

in the affidavit filed in support of the allegations of corruption

in the Election Petition, certain averments were stated to be

based on personal knowledge and information. Subsequently,

the petitioner filed a second affidavit, after evidence was led

and arguments were over, wherein the said averments were

stated to be on personal knowledge. It was held that filing of

such affidavit was impermissible, this being a novel procedure

unknown to civil law or election law.

24. Mr. Phoolka next referred to the decision of the Supreme

Court rendered in Ravinder Singh Vs. Janmeja Singh & Ors.

AIR 2000 SC 3026. The ratio decidendi in this case relates to

Section 83 of the Act and is that in the absence of proper

affidavit in the prescribed form, filed in support of the corrupt

practice of bribery, the allegations pertaining thereto could not

be put to trial, the defect being of a fatal nature.

25. The next case relied upon by Mr. Phoolka was the decision of

this Court in Gopal Parsad Shastri Vs. Mrs. Archana

Kumar and Others AIR 1984 DELHI 280. In this case, the

petitioner did not file copies of the Election Petition in

accordance with the requirement of sub-section (3) of Section

81. In fact, he did not file any copies with the Election

Petition. The Office of the High Court raised an objection to

the issuance of notice and thereupon the petitioner filed copies.

The limitation for the presentation of the petition expired in the

meanwhile. It was held that when the limitation had expired,

the Judge had no power to condone the delay and to extend the

time for the filing of copies.

26. On behalf of the election petitioner, Mr. K.C. Mittal, the

learned counsel for the petitioner sought to rebut the

contentions raised by Mr. Phoolka. According to Mr. Mittal, it

is clear from the record that in present case, the petitioner was

present at the time of the presentation of the Election Petition

on 21.01.2009 and an endorsement to this effect was made by

the Registry. It is also apparent from the record that the present

Election Petition was never returned by the Registry for the

removal of objections nor, in fact, any objections were raised.

From the record, it is also evidenced that on 22.01.2009, the

scrutiny of the petitioner‟s Election Petition was done by the

Registry and the concerned official recorded the following

Note:-

"The case has been posted for date: 27-JAN-09 The petition/appeal being in order, may be registered.

SCRU Assistant: SH.DHARMENDER JOSHI Signature Dealing Assistant Sd/-

AOJ/AR (Filing) 22.01.2009"

27. Mr. Mittal, the learned counsel for the petitioner, contended

that the aforesaid facts clearly show that the petition was in

order when it was presented and there was no objection by the

Registry calling for dismissal under Section 86 of the Act. The

petition was processed in accordance with the law and the

Rules framed by the High Court as applicable, and the

respondent No.1 has not only failed to establish any violation

of the nature required in law for the dismissal of the Election

Petition at the threshold, but has also failed to show that any

prejudice was caused to him.

28. Mr. Mittal further submitted that not only the record shows

that the Election Petition was never returned by the Registry,

but infact it could not have been returned by the Registry in

terms of the Office Order dated 18.10.1995 and hence the

allegation of the respondent No.1 that it was returned on

21.01.2009 and re-filed on 22.01.2009 with annexures is

without basis. The Office Order dated 18.10.1995 relied upon

by Mr. Mittal in this regard is extracted below:-

"High Court of Delhi; New Delhi No.303/Rules/DHC Dated: 18.10.1995

OFFICE ORDER :

It has been noticed that a practice is prevalent in the Registry of this Court to return election petitions to the party filling them for the purpose of rectifying the defects/objections pointed out by the Registry and then refilling the same. Such a practice is contrary to the provisions of the Representation of Peoples Act and Election Rules framed by the High Court. The endorsement made in the Registry simultaneously with the filing of election petition is in the form of a rubber stamp which has no provision for mentioning the name of the person presenting the petition and the person(s) accompanying or identifying him at the time of presentation. This practice is also contrary to the provisions of Section 81 of the Representation of Peoples Act, 1951. Both these points came up for judicial scrutiny in the case of ―Harcharan Singh Josh vs. Hari Kishan,‖ EP 6/95 decided on 26.5.1995.

In accordance with the observations made in the said judgment, Hon'ble the Chief Justice vide order dated 23.8.1995 passed in a separate case, has been pleased to order that

(i) The Registry shall not return election petitions to the party filing the same under any

circumstances once it has been presented. The defects/objections if any pointed out by the Registry shall be placed before the Election Judge for orders;

(ii) The following endorsement shall be made on the election petition at the time of presentation:-

             Presented by Shri
             Petitioner/s                      in person

             Accompanied by identified by Shri

                                 Advocate on

              At                      AM/PM. (DATE)
              Time

The above directions shall be strictly complied with by the relevant officer/officers with immediate effect.

Sd/-

(M.A.KHAN) REGISTRAR‖

29.Mr. Mittal, the learned counsel for the petitioner, also drew the

attention of this Court to the alleged deficiencies in the copy of

the petition received by the respondent No.1, which, according

to the respondent No.1, was received from the Registry

(hereinafter referred to as the "first set"), and to the alleged

deficiencies in the copy of the petition, which according to the

respondent No.1, was received from the counsel for the

petitioner (hereinafter referred to as the "second set"). He

pointed out that paras (a) to (e) of the alleged deficiencies were

common in both the sets, whereas paras (f) and (g) of the first

set do not exist in the second set, and para (h) of the first set is

para (f) in the second set. Further, two new grounds as

mentioned in paras (g) and (h) in the second set had been added

subsequently, which did not exist in the first set. This clearly

established that there were no defects with regard to paras (g)

and (h) of the second set in the first set, which it is claimed by

the respondent No.1 was received from the Registry. It was,

therefore, clear that paras (g) and (h) of the second set had been

concocted and as such the allegations contained therein were

frivolous and the respondent No.1 had received Annexure „D‟

properly verified alongwith fair typed copies of all the other

annexures properly verified as well as all the photographs of

the scooters alongwith alleged stepney covers stated to be filed

as Annexure „C‟. Mr. Mittal‟s contention is that this was not a

matter of drawing inference, but the respondent No.1‟s

pleadings indisputably established these facts. As such there

are no defects, as far as paras (g) and (h) of the second set are

concerned. In this view of the matter, all complaints regarding

Annexures „C‟ and „D‟ with regard to the scooter photographs

etc., were baseless, and it stands established on record that the

respondent No.1 did receive the documents mentioned in

paragraphs (g) and (h) of the second set.

30. It was next contended by Mr. Mittal that the details of the

second set as set out in the application also prove that the

complaint as made was only an afterthought, baseless and

concocted. He contended that Mr. Phoolka had highlighted the

fact that the photographs as filed with the original petition had

not been received by the respondent No.1 or at any rate an

incomplete set of the said photographs had been received.

However, had he not received such copies and records

alongwith the first set from the Registry, he would have

immediately made complaint, but there is no such averment

made in the application. This by itself demolishes the case of

the respondent No.1. Thus, it is pointed out that the defects

even according to the respondent No.1 were those only, which

were contained in paras (a) to (e) and (h) of the first set, [para

(h) in the first set is para (f) in the second set] as in any case,

as regards paras (f) and (g) of the first set, there was no such

grievance by the respondent No.1 in the second set.

31.Viewed in the above light, Mr. Mittal contended that the only

surviving alleged deficiencies in the copy furnished to the

respondent No.1, according to the respondent No.1 himself, are

the following:-

―(a) Page18 - Para 19 of the petition, there are blanks. No receipt number or date is mentioned.

(b) Page 18 - No date is given at the bottom as well as it is no where stated that it was signed by the counsel.

(c) The verification of the petition is not verification in accordance with law. No number of paragraphs have been mentioned and the date also not mentioned. Memo of parties as well as index does not contain the signature of the counsel and even the date is kept blank.

(d) Page 14 - Para 11 - About 10 lines from the bottom and 14th line from the top of the page are not legible. The copy supplied is not true copy of the petition as filed in the court.

(e) Similarly, at page 15, about 4 lines from top to the 10th line onwards are not legible and there is no attestation at page 15 as attested true copy. The copy supplied is not true copy of the petition as filed in the court.

(f) At page 19, columns of para and date are not filled in the verification clause.

32.The question, according to Mr. Mittal, which arises for

consideration in the present case, therefore, is whether the

aforesaid deficiencies in the copy supplied to the respondent

No.1 by the counsel for the petitioner are of such a nature as to

entail dismissal of the Election Petition under Section 86 of the

Act for non-compliance with the provisions of Section 81 (3) of

the Act.

33. In the aforesaid context, a number of decisions of the Hon‟ble

Supreme Court were referred to and relied upon by the learned

counsel for the petitioner, being the following:-

(i) T.M. Jacob Vs. C. Poulose AIR 1999 SC 1359;

(ii) Ram Prasad Sharma Vs. Mani Kumar Subba (2003) 1

SCC 289;

(iii) Sri T. Phunzathang v. Sri Hangkhanlian & Ors. JT

2001 (7) SC 439;

(iv) Chandrakant Uttam Chodankar Vs. Dayanand Rayu

Mandrakar & Ors. AIR 2005 SC 547;

(v) Bhagwan Rambhau Karankal v. Chandrakant

Batesingh Raghuwanshi & Ors. JT 2001 (5) SC 245.

34.The common thread running through all these cases is that an

Election Petition cannot be dismissed at the threshold on the

ground of any technical lacunae or defects so as to abort or

frustrate the endeavour of the petitioner to bring to trial the

issues relating to corrupt practices in the election. This is quite

obviously on the premise that this country being a democracy,

free, fair and fearless elections are intended to maintain the

vibrancy of the democratic process and cannot be sacrificed at

the altar of superficial technicalities.

35.The learned counsel for the petitioner also emphasized that the

copy of the petition having been furnished to the returned

candidate by the Registry of this Court, there is presumption

under Section 114 (2) of the Evidence Act that the copy

furnished was in order. Reference in this context was made to

the judgment of the Supreme Court in the case of Chandrakant

Uttam Chodankar (supra), wherein it was unequivocally laid

down that the presence of endorsement of the Registry of High

Court that true copies were filed at the time of presentation of

the Election Petition and that "Election Petitions were in order"

raises presumption that true copies were served upon the

respondents. The onus is upon the respondent to adduce

evidence and bring on record adequate material so as to rebut

the presumption of correctness of official work having been

done in the regular course of business. Where no such material

to the contrary is brought on record by the respondent, the

petition is not liable to be rejected for non-compliance of

Section 81(3). Significantly also, in this case, the Court

observed:

―How an incorrect copy came in possession of the learned Advocate of the First Respondent herein is not a matter which would fall for our determination but we can record our satisfaction that sufficient number of true copies must be presumed to have been filed having regard to the endorsement made by the Assistant Registrar.‖

It further observed:-

―It is now well-settled that the statutory requirements of Sections 81 and 83 would be met if substantial compliance thereof is made.‖

In paragraphs 41, 42 and 45 of the said judgment, it was

observed as under:-

―41. Concededly, the officers of the High Court are required to perform administrative functions one of which is to scrutinize the election petition so as ascertain as to whether the petitions filed before the Court are free from any defect. Such an official act would draw a presumption of having been performed in ordinary course of business in terms of Section 114(2) of the Indian Evidence Act.

42. In Jugal Kishore Patnaik vs. Ratnakar Mohanty (AIR 1976 SC 2130), Khanna, J. speaking for a 3- Judge Bench raised a presumption of correctness as regard endorsement made by an Officer of the Court in respect of the election petition stating:

"We see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the procedural requirement."

45. The burden to prove that the election petition was not maintainable or the same should be dismissed at the threshold lay on the First

Respondent. The said burden on the First Respondent became heavier having regard to the fact that the Registry of the High Court categorically arrived at a finding that the said election petition did not contain any detect. A wrong principle of law as regard burden of proof as also drawing a presumption which in law could not have been raised and failure to raise a presumption in terms of Section 114(e) of the Evidence Act the High Court must be held to have committed a manifest error. It posed a wrong question and thus, misdirected itself in law.‖

36. This court having heard the detailed submissions of Mr. H.S.

Phoolka, the learned senior counsel for the applicant and Mr.

K.C. Mittal, the learned counsel for the non-applicant, before

adverting to the law laid down by the Hon‟ble Supreme Court

deems it appropriate to enumerate a few facts which stand

established from the record:-

(i) On the index of the Election Petition, there is an

endorsement to the following effect:-

"This petition is present by Dr. Anita Babbar alongwith Mr. Vivek Srivastava, Advocate alongwith 22 pages duly self attested.

Sd/-

21.1.09 AOJ/Filing"

This shows that the petitioner was present at the time of

the presentation of the petition on 21.1.09.

(ii) On the index itself, there is a caveat report dated 22.1.09

to the effect that no caveat had been received in this case.

(iii) At the back of page No. „D‟ containing part of the memo

of parties, there is stamp of filing dated 22.01.09 of the

Deputy Registrar with the filing number as 13329. This

shows that the Election Petition had been entered at

serial number 13329 of the special register maintained

for the aforesaid purpose in accordance with the Rules.

(iv) The file of office notings on its very first page contains

the following endorsement:-

"The case has been posted for date: 27-JAN-09

The petition/appeal being in order, may be registered.

SCRU Assistant: SH.DHARMENDER JOSHI

Signature Dealing Assistant Sd/-

AOJ/AR (Filing) 22.01.2009"

This shows that there is no office noting to the effect that

the requisite number of copies duly attested by the

petitioner were not furnished by the petitioner and

further shows that no office objection was raised as to

the manner of filing or presentation of the Election

Petition in the instant case.

(v) On May 20, 2009, the respondent No.1 entered

appearance for the first time through counsel, Mr. P.K.

Rawal, Advocate, who made no grievance either of the

fact that the copy had not been furnished to him by the

Registry or that an incomplete copy had been furnished.

(vi) The case was thereafter adjourned to 31.08.09 for the

service of the unserved respondents, on which date on an

application under Section 5 of the Limitation Act read

with Section 151 of Code of Civil Procedure filed on

behalf of the respondent No.1, this Court condoned the

delay in filing the written statement on the ground that it

was stated in the application that incomplete copy was

furnished to the respondent No.1 on 6th July, 2009,

thereby rendering it incumbent on the respondent No.1 to

inspect the Court records.

(vii) A perusal of the aforesaid application for condonation of

delay, being IA No.388/2010, shows that this was the

first time that the respondent No.1 chose to bring on

record the fact that there were deficiencies in the copy

furnished to him by the petitioner by alleging in the

application that the complete set of the petition was not

supplied to the respondent. It was further asserted in the

said application that this fact was pointed out by the

counsel for the respondent to the counsel for the

petitioner who promised to supply a complete set, but

even the second set of the petition and annexures "were

not ditto copy of the Election Petition and Annexures, as

filed in the Court."

(viii) A perusal of the written statement shows that the alleged

deficiencies in the two sets of the petition were

enumerated therein in the preliminary objections with the

assertion that non-compliance of the mandatory

requirements like attestation, notarization etc. on the

copies furnished to the respondent amounts to an

omission of vital nature rendering the petition not

maintainable.

(ix) The order dated 21.02.2011 passed in the present

application shows that in the midst of arguments, Mr.

Phoolka, the learned senior counsel for the applicant

made a statement confining his prayer in the present

application for rejection of the Election Petition to non-

compliance with the provisions of Section 81(3) and 117

of the Representation of the People Act, 1951. He

further clarified that all references made by him to

Section 83(1) and (2) of the Act were not being pressed

for the purpose of the present application.

(x) The order dated 23.02.2011 passed in the present

application further shows that on the said date, Mr.

Phoolka stated on instructions that he did not press at

this stage the objection taken by him in paragraph 10 of

the application relating to Form No.25, which pertained

to the affidavit not being in consonance with the said

Form as well as Rule 94 A.

(xi) As noted hereinabove, in view of the fact that a second

set of papers was furnished to the respondent No.1, the

only surviving deficiencies in the copy furnished to the

counsel for respondent No.1, as alleged, are those

enumerated in paragraphs (a) to (f) of the second set of

documents. The alleged deficiencies set out in

paragraphs (g) and (h) in the second set do not find

mention in the first set and presumably the documents

mentioned in paragraphs (g) and (h) must have been

furnished to the respondent No.1 with the first set.

Likewise, paragraph (g) in the first set does not find

mention in the second set and presumably this deficiency

had been removed by the petitioner furnishing to the

respondent No.1 the first page of the affidavit and filling

up the blanks in the second page of the affidavit. Para

(h) of the first set as pointed out is the same as para (f) of

the second set.

37.With the aforesaid factual background, it is deemed appropriate

to reproduce the relevant provisions of law having a bearing on

the present petition.

38.The procedure for presentation of an Election Petition to the

High Court is laid down in Chapter II of the Act, which

contains the provisions extracted below:-

"80. Election petitions.--No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.

80A. High Court to try election petitions.--(1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose:

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.

81. Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of

section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates

Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

[*****]

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition[ ***], and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.

83. Contents of petition.--(1) An election petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be

signed by the petitioner and verified in the same manner as the

petition.

39.Chapter III of the Act which deals with trial of election

petitions, contains Section 86 which reads as follows:

86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.

(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.

(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.

(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be

made by the High Court, be entitled to be joined as a respondent.

Explanation.--For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.

(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.‖

40.The Delhi High Court has also framed a set of Rules called

Election Rules vide notification No. 21 dated 28.04.1967 and

published in Delhi Gazette, Part II, Section 18 dated

18.05.1967. The relevant provisions having a bearing on the

present petition are extracted below:-

―Rule 5. The election petition along with the necessary copies may be presented at any time during the Court Hours. Immediately after it is presented, the date of presentation shall be endorsed thereon, and the petition shall be entered in the special register maintained for the registration of election petitions.

Rule 6. After the petition is presented, the party or Advocate shall be asked to attend the office on the third day from the date of the presentation to remove objections, if any. An undertaking in writing will be obtained from the party or Advocate to remain present in the office on the date appointed. The petitioner shall furnish his address preferably in Delhi or Simla, as the case may be, where any communication may be addressed to or served on him.

Rule 7. The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and the rules applicable to the same, and if it is in conformity with law and the rules, raise objections which could be removed by the party or the Advocate concerned. These objections should be brought to the notice of the party or the Advocate on the date fixed for attendance under Rule 6 and such objections shall be removed, subject to the orders of the Court, if any, within two days thereafter. Rule 8. Immediately after the time fixed for the removal of objections has expired, the petition shall be placed before the Court for such order, as may be required to be passed under Section 86 of the Act. If

the petition is not dismissed under Section 86(1) of the Act, a summon on direction of the Court shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issues.

41.It is borne out from the aforesaid Rules that after the

presentation of an Election Petition in this Court, the Registry

of this Court, under the aforesaid Rules framed by the High

Court, scrutinizes the Election Petition. As noted above, Rule

5 requires that the Election Petition alongwith the necessary

copies may be presented at any time during Court hours, which

is required to be endorsed by the Registry and entered in a

special register maintained for the registration of the Election

Petitions. According to Rule 6, the date is fixed for removal of

the objections, if any, while under Rule 7 the Registry is

required to thoroughly examine the petition with a view to see

whether it is in conformity with the requirements of law and

the Rules applicable to the same. This Rule also provides that

if the petition is not in conformity with the law and the Rules

framed by the High Court, the Registry is required to raise

objections, which can be removed by the party or the Advocate.

According to Rule 8, the petition is required to be placed before

the Court for such orders as may be required to be passed. The

Court may dismiss the petition under Section 86 (1) of the Act

if the objections have not been removed by the party presenting

the petition and if there are no objections, the Court shall issue

summons to the respondents to appear before it on a date to be

fixed.

42. A look now at the legal decisions governing the field of

election law. Before adverting to the case of T.M. Jacob

(supra), which is locus classicus and has been strongly relied

upon by the counsel for the petitioner, it may be noted that the

Constitution Bench in the said case has re-affirmed the law as

stated by the earlier two Constitution Benches in Murarka

Radhey Shyam Ram Kumar Vs. Roop Singh Rathore & Ors

1964 SCR (3) 573 and Ch. Subbarao v. Member, Election

Tribunal, Hyderabad and Ors. 1964 SCR (3) 214 and also

explained and expanded the principles laid down in the said

decisions. It is accordingly proposed to refer first to the said

two decisions.

43.In Murarka's case (supra), the two main objections raised by

the returned candidate were that there was non-compliance

with Section 81(3) of the Act since copy of the Election

Petition served on the respondent was not true copy of the

original filed before the Election Tribunal nor was it properly

attested to be a true copy under the signatures of the petitioner.

The other ground was with regard to the non-compliance with

Section 83 of the Act since the affidavit in respect of corrupt

practices was not in the prescribed form. This court is not

concerned with the second objection, for, as noted above, the

provisions of Section 83 are not being pressed into service at

this stage. As regards the first objection, the Court held as

under:-

―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-section (3) of section 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-section (3) of section 81. On behalf of the appellant the argument is that sub-section (3) of section 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-section (3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this Court in K.Kamaraja Nadar v. Kunju Thevar. We are of the view 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 (see Stroud's Judicial Dictionary, Third Edn., Vol. 4, p. 3098). In this view of the matter it is unnecessary to go into the further question whether any part of sub-section (3) of section 81 is merely directory‖.

It was further observed:-

―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-section (3) of section 81. In that view of the matter sub-section (3) of section 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 section 81...........‖

44.In Ch. Subbarao's case (supra), the question for consideration

before the Constitution Bench was whether the omission of the

words "true copy" in the copies, which were admittedly exact

copies of the petition, constituted non-compliance with Section

81(3) so as to render the petition liable to be rejected. In this

case as in Murarka's case (supra), the petition was

accompanied with the requisite number of copies specified in

Section 81(3), but what was urged was as regards certain

defects in the copies filed. The Court observed:

―These defects fell into two types. First there were two matters which it was stated rendered the copies filed not ―true copies‖. If the expressions ―copy‖ or ―true copy‖ were read as exact copies of the original, the copies filed did not satisfy that test. The two defects were:

(1) The original petition contained the signature of the petitioner at the foot of the petition as required by Section 83(1)(c) of the Act. In the copy filed there was no copy of this signature. To that extent therefore the copy was not an exact copy. (2) The second matter under this head was that the verification in the copy served on the appellant did not exactly correspond to that in the original in that in the

latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group. The other type of defect which was claimed to constitute non-compliance with Section 81(3) was that the words ―true copy‖ with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed.‖

Following Murarka's case (supra), the Court held as under:-

―We do not however consider that there is really need for so much refinement when one has to look at whether there is a substantial compliance with the requirement of this provision. If the signatures now found on the copies were intended to authenticate the document to which it is appended viz. the copy, it would only mean that the copy did not reproduce the signature in the original. There is no compelling necessary to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with S.81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice......‖

45. At this stage, it will be useful to refer to the judgment in the

case of Dr. Shipra (supra), which has been strongly relied

upon by the learned counsel for the respondent No.1 and to the

judgment in Harcharan Singh Josh's case (supra), the

relevant portion of which is quoted in the application filed by

the respondent No.1 as well as to the judgment in Anil R.

Deshmukh vs. Onkar N. Wagh and Others 1999 (2) SCC 205,

which was specifically approved in T.M. Jacob's case and in

which the Supreme Court examined the judgment in Dr.

Shipra's case in an almost identical fact situation.

46.In Dr. Shipra's case, the copy of the affidavit supplied to the

respondent did not contain the verification by the notary or oath

Commissioner. When preliminary objection was raised by the

respondent, the learned single Judge of the High Court of

Madhya Pradesh upheld the same and dismissed the election

petition. On appeal to the Supreme Court, the Supreme Court

held that the principle of substantial compliance was

inapplicable. It observed that:

―The contention that the election petition cannot be dismissed under Section 86 at the threshold on account of the omission on the part of the Registry of the High Court to point out the same as per its procedure cannot be countenanced. Lapse on the part of the Registry is not an insurance to deny to the returned candidate the plea that the attestation of the affidavit and its certification to be a true copy is an integral part of the pleadings in the election petition. Section 81, 83(1)(c) and 86

read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same.‖

47.In the case of Anil R. Deshmukh (supra), one of the defects

pointed out to press for dismissal of the Election Petition was

the absence of the endorsement of the verification and the

stamp and seal of the attesting officer on the copy of the

affidavit supplied to the first respondent and the argument was

that in the absence of such endorsement in the copy supplied to

the respondent, it could not be said to be a true copy. Negating

the aforesaid contention and taking note of the fact that correct

copies of the affidavit containing endorsement of verification,

etc. had been served on the respondent as well as his counsel

before the arguments were heard, the Supreme Court held that

the absence of notarial endorsement in the copies furnished to

the respondent did not attract the penalty of dismissal of the

Election Petition on the ground of non-compliance with Section

81 or Section 83 of the Act. As it is clear, the findings

rendered in Anil R. Deshmukh's case (supra) were rendered

by the Supreme Court in an almost identical fact situation as in

Dr. Shipra's case. These were further specifically approved by

the Constitution Bench in T.M. Jacob's case.

48.In T.M. Jacob's case (supra), a Division Bench of the Supreme

Court finding that the matter required reconsideration by a

Larger Bench in view of the reliance placed by the learned

counsel for the appellant upon the decision in Dr. Shipra's

case (supra) ordered that the papers be laid before the Chief

Justice for constitution of a Larger Bench. The Constitution

Bench, thus, examined the question whether the word "copy"

occurring in Section 81(1) of the Act meant an absolutely exact

copy or whether it meant a copy so true that nobody could by

any possibility misunderstand it, and held that the matter was

no longer res integra in view of the fact that the test to

determine the same had been laid down in Murarka's case

(supra) and a similar view had been reiterated by another

Constitution Bench in Ch. Subbarao's case (supra). The

Constitution Bench in T.M. Jacob's case (supra) further held:-

―40. The object of serving a ―true copy‖ of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.

41. The expression ―copy‖ in section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation.

42. We have already referred to the defect which has been found in the copy of the affidavit served on the appellant in the present case. There is no dispute that the copy of the affidavit served on the appellant contained the endorsement to the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner before a Notary. Below the endorsement of attestation, it was also mentioned: Sd/-Notary. There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the

Notary in the copy of the affidavit served on the appellant. There was no other defect pointed out either in the memo of objection or in C.M.P. No. 2903 of 1996 or even during the course of arguments in the High Court or before us. Could this omission be treated as an omission of a vital or material nature which could possibly mislead or prejudice the appellant in formulating his defence? In our opinion No. The omission was inconsequential. By no stretch of imagination can it be said that the appellant could have been misled by the absence of the name and seal or stamp of the Notary on the copy of the affidavit, when endorsement of attestation was present in the copy which showed that the same had been signed by the Notary. It is not denied that the copies of the Election Petition and the affidavit served on the appellant bore the signatures of respondent No. 1 on every page and the original affidavit filed in support of the Election Petition had been properly signed, verified and affirmed by the election petitioner and attested by the Notary. There has, thus, been a substantial compliance with the requirements of section 81(3) read with the proviso to section 83(1)(c) of the Act. Defects in the supply of true copy under section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of section 81(3) read with section 86(1) of the Act. Same consequence would not follow from non- compliance with Section 83 of the Act.

43. We are unable to agree with Mr. Salve that since proceedings in election petitions are purely statutory proceedings and not ―civil proceedings‖ as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance i to section 86(1) read with section 81(3) of the Act. It is too late in the day

to so urge. The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr. Salve. That apart, to our mind, the Legislate intent appears to be quite clear, since it divides violations into two classes- those violations which would entail dismissal of the election petition under section 86(1) of the Act like non- compliance with section 81(3) and those violations which attract section 83(1) of the Act i.e. non- compliance with the provisions of section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam (AIR 1964 SC 1545) and Ch. Subbarao's cases (AIR 1964 SC 1027). The defect of the type provided in Section83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure......

44. .................................

45. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam's case (AIR 1964 SC 1545)(supra) are sound tests and are now well settled. We agree with the same

and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86(1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying ‗true copy' of the affidavit to the appellant by the respondent.

49.Learned senior counsel for the respondent No.1 contended

before this court that the judgment in Dr. Shipra's case (supra)

has not been overruled by the Constitution Bench in T.M.

Jacob's case (supra) and since the facts involved in the case of

Dr. Shipra's case (supra) and Harcharan Singh Josh's case

(supra) were para materia with the facts involved in the

present case, the ratio laid down in the aforesaid two decisions

was squarely applicable to the present case. This Court is

unable to agree with the aforesaid contention for the reason that

the Constitution Bench in T.M. Jacob's case (supra) in clear

and unequivocal terms held that the opinion expressed in the

Dr. Shipra's case was applicable to the "fact situation" of that

case only.

50.Following the judgment in Jacob's case, a three-Judge Bench

of the Supreme Court in Bhagwan Rambabu's case, relied

upon by the petitioner‟s counsel, held as follows:-

―The returned candidate did not point out either in his written statement or in his application filed on 22.9.1998 as to what was the variation, if any, between the original and the copy of Election Petition supplied to him and how was he prejudiced. Merely, because the words ―true copy‖ were not endorsed on each page of the copy of the Election Petition, though the copy otherwise is a true copy and bears the signatures of the election petitioner on each page of the copy, it cannot be said that there has been a total non-compliance with the provisions of Section 81(3) of the Act. In fact, there was substantial compliance with the requirements of Section 81(3) of the Act.‖

51.In the case of Sri T. Phunzathang (supra), which too was

relied upon by the counsel for the petitioner, the copy supplied

by the Election Petitioner to the respondent did not contain the

verification or affirmation by Oath Commissioner or prescribed

authority, though such affirmation or verification had been

made in the original affidavit filed before the High Court.

Relying upon the two judgments of the Supreme Court in Dr.

Shipra's case (supra), and Harcharan Singh Josh's case

(supra), the High Court dismissed the Election Petition under

Section 86(1) on the ground of non-compliance with sub-

section (3) of Section 81 read with Section 83(1)(c) of the Act.

On appeal, a three-Judge Bench of the Supreme Court after re-

visiting the law on the subject held that the petition could not

have been dismissed on the aforesaid ground because by such

omission the copy supplied did not cease to be the "true copy"

and there was no possibility of any prudent person being in any

manner misled in defending himself or being prejudiced in the

defence of his case. Further such omission was only a curable

irregularity. In coming to the aforesaid conclusion, the

Supreme Court relied upon the decision of the Constitution

Bench in T.M. Jacob's case (supra). It further held:-

― It is true that in Josh's case, this Court extended the principle laid down in Dr. Shipra's case but then this Court in Jacob's case in clear terms held that the application of the principle found in Dr. Shipra's case is confined only to the facts of that case; meaning thereby that it is applicable only in cases where the original affidavit filed before the High Court contained the omissions and not to copies of the affidavit supplied to the respondents. Therefore, it is clear that the application of the principle in Dr. Shipra's case to the facts of Josh's case is clearly impermissible. In that view of the matter, the decision in Josh's case being contrary to Jacob's case, the same cannot be construed as a good

law any more. Therefore, the High Court in the instant case could not have relied on Josh's case to dismiss the election petition.

It also summed up the law laid down in T.M. Jacob's case

(supra) as under:-

―(i) The object of serving a ―true copy‖ of an election petition and the affidavit filed in support of the allegations of corrupt practice of the respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is of substance and not of form. (para 35)

(ii) The test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. (para 33)

(iii) The word ―copy‖ does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. (para 34)

(iv) Substantial compliance with Section 81 (3) was sufficient and the petition could not be dismissed, in limine, under Section 86 (1) where there had been substantial compliance with the requirement of Section 81 (3) of the Act. (Para 34)

(v) There is a distinction between non- compliance with the requirement of Section 81

(3) and Section 83. A substantial compliance with the requirements of Section 81 (3) read with the proviso to Section 83 (1) of the Act is enough. Defects in the supply of true copy under Section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provision of Section81 (3) read with Section 86 (1) of the Act. The same consequence would not follow from non-compliance with Section 83 of the Act. (Para 37)

(vi) The argument that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into Section 86 (1) read with Section 81 (3) of the Act, cannot be accepted and has to be repelled. (Para 38)

(vii) It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam and Ch. Subbarao cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. This clearly emerges from the scheme of Sections 83(1) and 86 (5) and of the Act. (Para 38)

(viii) A certain amount of flexibility is envisaged. While an impermissible deviation

from the original may entail the dismissal of an election petition under Section 86 (1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam case are sound tests and are now well settled.‖

52.In the case of Ram Prasad Sharma (supra), which also was

relied upon by the petitioner‟s counsel, after referring to the

entire gamut of case law on the subject, the Supreme Court

observed:

―16. From the various decisions noted above, it clearly emerges out that the correctness of the decision in Dr. Shipra's case was doubted and it has been held by the Constitution Bench in the T.M. Jacob case that it was confined to the facts of that case. therefore it cannot be said that Dr. Shipra case lays down any proposition of law of a binding nature. The two decisions of the Constitution Benches, namely, Radhey Shyam Murarka and T.M. Jacob hold the field as well as the decision in the case of T. Phungzathang. The law as laid down in the above noted decisions would be the guiding precedents in deciding a question relating to a true copy of an affidavit.

17. The purpose of the provision to furnish a true copy of the petition is not to frustrate the cause of the petitioner approaching the Court by adhering strictly to technicalities of little consequence. On the other hand the anxiety is that the respondent must have a correct idea of the allegations of corrupt practices made against him with some responsibility and that he may not be misled in any material respect by furnishing of a copy of the affidavit which may not be a correct copy having vital variation from the original. It is true that in the matters relating to elections and election petitions, strict compliance of the legal provisions is necessary and full care is to be taken to see that rights of an elected representative are not lightly disturbed and rightly so. But an election petition is not to be thrown at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matter. It is substance not form which would matter. If it is permitted otherwise, the returned candidate would only be in the look out microscopically for any kind of technical lacuna or defect to abort the endeavour of the petitioner to bring to trial the issues relating to corrupt practices in the elections. The purpose of the law on the point cannot be to allow the returned candidate to avoid the trial of the issues of corrupt practices raised against him on the basis of any little defect which may not result in any vital variation between the original and the true copy so as to have the effect of misleading the returned candidate. As it is, the prevailing situation of elections and

practices often said to be adopted now and then and here and there does not always give a very happy picture. Free, fair and fearless elections is ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities.‖

53.Adverting now to the legal decisions relied upon by Mr.

Phoolka, the learned counsel for the petitioner, which have

been referred to hereinbefore, the same are clearly

distinguishable on facts and/or have been considered in

subsequent decisions of the Hon‟ble Supreme Court and held to

be no longer good law:

(i) M. Karunanidhi's case (supra) was elaborately

considered by a three-Judge Bench of the Supreme

Court in A.Madan Mohan Vs. K. Chandrasekhara

AIR 1984 SC 871. In this case, it was vehemently

contended that the schedules and other documents

forming an integral part of the petition should have

been served on the returned candidate and in the

absence of the such compliance, the petition was

liable to be dismissed in limini under Section 86 of

the Act. The Supreme Court affirming the decision

of the High Court however held that all that was

necessary was done in this case and there was no

requirement that the documents or the schedules

should also have been served on the petitioner

because if they were filed in the Court, it was always

open to the petitioner to inspect them and find out the

allegations made in the petition. Opining that the

documents or the schedules were in no sense an

integral part of the petition, being merely evidence in

the case, the Court held that copies of such annexures

were not required to be served on the respondent.

(ii) In K.K. Shukla's case (supra), the Registry of the

High Court had found nine defects and raised

objections in respect of the said nine defects,

including that of the Election Petition not being

accompanied by as many copies thereof as there were

respondents mentioned in the petition, and attested by

the petitioner under his own signatures to be true

copies of the petition. With the aforesaid objections,

the Election Petition was put up for necessary orders

before the Court. This case is clearly distinguishable

as in the present case it is clear from the record that

no defects were pointed out or objections raised by

the Registry. It is not even the case of the returned

candidate that the Election Petition was not

accompanied by the requisite number of copies.

(iii) In Sasidharan's case (supra), the Supreme Court was

dealing with the video cassette which formed an

integral part of the election petition, copy whereof

had not been furnished to the first respondent along

with the election petition. In the present case there is

not even an averment that any video cassette was

used in the constituency, which formed an integral

part of the petition.

(iv) The case of Mulayam Singh Yadav is also

distinguishable from the present case as clearly the

defect related to the presentation and filing of the

original petition and was not with reference to the

copies furnished as in the present case.

(v) The case of Mithilesh Kumar Pandey contained a

large number of mistakes in respect of the names of

the persons through whom corrupt practices were

alleged to have been practised during the election.

This case clearly has no bearing on the facts of the

present case, which is for technical defects in the

copies furnished to the returned candidate.

(vi) In Regu Mahesh's case (supra), the election petition

was dismissed on the ground that the verification to

the petition and the affidavit accompanying the

petition did not conform to the requirement of the

statute. In the instant case, the averments in respect

of Section 83 and Form 25 are not being pressed at

this stage.

(vii) The cases of Jeet Mohinder Singh (supra), Baldev

Singh Mann (supra) and Ram Sukh (supra) relate to

the principles of election jurisprudence, which are

admittedly well settled.

(viii) Dr. (Smt.) Shipra's case (supra), as elaborately

discussed above, is no longer good law and was

rendered in the peculiar "fact situation" of the said

case.

(ix) Narendra Bhikahi Darade's case (supra), which

relates to the concise statement of material facts, is

not relevant as the objection with regard to the non-

compliance of Section 83 is not being pressed at this

stage.

(x) In G.V. Sreerama Reddy's case (supra), the objection

was that the petition was not presented by the election

petitioner. In the present case, indisputably the

petition was presented by the election petitioner

herself.

(xi) R.P. Moidutty's case (supra) pertains to the defects

in the original petition and the objection with regard

to the form of the affidavit and again has no

application to the facts of the present case.

(xii) The judgment in Quamarul Islam (supra) relates to

the provisions of Section 83 of the Act and in view of

the fact that non-compliance with the provisions of

the said Section are not being pressed at this stage has

no application.

(xiii) Ravinder Singh's case (supra) pertains to the absence

of proper affidavit in the prescribed form. This

decision again has no relevance to the facts of the

present case as it pertains to Section 83 of the Act and

Form No.25.

(xiv) In Gopal Parsad Shastri's case (supra), the petitioner

did not file copies of the Election Petition in

accordance with the requirement of sub-section (3) of

Section 81 and an objection was raised by the

Registry. In the present case, the requisite number of

copies were admittedly filed and no objection was

raised by the Registry in this regard.

54.On a conspectus of the facts and law discussed hereinabove, I

am of the view that the onus on the respondent No.1 to prove

that the copy furnished to him was an incomplete one entailing

dismissal of the Election Petition is a heavy one, which cannot

be said to have been satisfactorily discharged in the instant

case. It was at the time of the filing of the written statement

that a plea was taken for the first time by the respondent No.1

that the written statement could not be filed in time on account

of the fact that a complete set had not been furnished to the

respondent No.1. Insofar as the present application is

concerned, it was filed belatedly, even subsequent to the filing

of the written statement. It also deserves to be noted that the

application is not one under Order VII Rule 11 of the Code of

Civil Procedure, 1908, but under Section 151 of the Code read

with Section 86(1) of the Act.

55.Further, as already discussed hereinabove, the only defects left

in the copy furnished to the respondent No.1 by the petitioner,

according to the respondent No.1 himself, are those mentioned

in paras (a) to (f) of the second set. A bare glance of the

deficiencies enumerated in paras (a) to (f) of the second set, in

my opinion, shows that the said deficiencies cannot be said to

be of a vital nature. Rather, the alleged deficiencies appear to

me of a superficial nature with no bearing at all on the

allegations made in the petition. It is not the case of the

respondent No.1 that the petitioner had not filed the requisite

number of copies alongwith the filing of the Election Petition

so as to attract the provisions of Section 81(3). It is also not the

case of the respondent No.1 that the verification to the original

petition is not in accordance with the law, or that the affidavit

filed in support of the petition is not duly attested and verified,

or that any document which forms an integral part of the

petition has not been filed with the petition.

56. It is also on record that the written statement, belatedly filed by

the respondent No.1, was after inspection of the court records,

and thus, even prima facie, no prejudice was caused to the

respondent No.1, even assuming some deficiencies did exist in

the copy furnished to the respondent No.1 by the Registry. A

perusal of the written statement conclusively shows and

establishes that all allegations of corruption in the petition have

been replied to specifically and explicitly by the respondent

No.1, and that the respondent No.1 has understood each and

every charge levelled against him in the petition and has

individually dealt with the same in the written statement. In the

course of hearing also, Mr. Phoolka, the learned senior counsel

for the respondent No.1 was unable to point out as to how any

prejudice had been caused to respondent No.1, so as to entitle

him to press into service the provisions of Section 86(1) of the

Act read with Section 81 thereof. On a specific query put by

this court as to which averment could not be properly replied to

in the written statement by the respondent No.1 for want of

material particulars in the copy furnished to him, no

satisfactory response was received.

57.To conclude, the defects complained of in the present case

cannot be said to be such as would have misled the respondent

No.1 at all with regard to the nature of his defence. Merely

because in the copy furnished to the respondent No.1 the

receipt number or date of the statutory deposit of ` 2,000/- are

not mentioned (though the said amount was admittedly

deposited), the date of filing is not mentioned, the para

numbers in the verification clause are not filled-up, there is no

verification of Annexure "D" as true copy (though it is signed

by the petitioner) and certain pages are slightly dim (though not

illegible), do not appear to me to be the adequate reasons to

throw out the election petition at the threshold. As regards the

non-furnishing of the photographs of the scooter, as already

pointed out, no such deficiency was stated to be there in the

first set and this amounts to an admission on the part of the

respondent No.1 that he had received the same. Even

otherwise, it is the case of the petitioner that the said

photographs have been annexed with the petition not as an

integral part of the petition, but merely as evidence. The

controversy, in fact, relates to the expenditure incurred for the

printing of the stickers and the stepney covers, which the

respondent No.1 got printed from M/s. Saraswati Printers. It is

admitted by the respondent No.1 that he got the stickers and the

stepney covers printed from M/s. Saraswati Printers and as a

matter of fact, it is stated by him that the expenses incurred in

relation thereto have been reflected by him in the statement of

account filed by him. The respondent No.1 having accepted

the fact that he had got the stickers and stepney covers printed,

the onus stands shifted on the petitioner to show that proper

account was not submitted and that the alleged distribution of

the aforesaid stickers and stepney covers amounted to bribery.

58.Most importantly, at the risk of repetition, it needs to be

emphasized that it cannot be lost sight of that respondent No.1

has extensively and elaborately answered all the allegations

levelled in the Election Petition on merits and it is more than

evident that no prejudice has been caused to the respondent

No.1 in putting forth his defence.

59.In view of the aforesaid, there is no merit in the present

application. The same is accordingly dismissed.

60.There will be no order as to costs.

REVA KHETRAPAL (JUDGE) June 02, 2011 sk