MAJOR KRISHNA MOHINI v. RAM PRATAP CHANDEL — 1977 DIGILAW 46 (HP)

JUDGMENT C. R. Thakur, J.—Major Krishna Mohini has filed this election petition calling in question the election of Shri Ram Partap Chandel respondent to the Himachal Pradesh Legislative Assembly on the grounds of corrupt practices and has, therefore, prayed for setting aside the election as being void. This election petition was filed on 30th July, 1977, in the Registry and was put up before the Court on 12th August, 1977. 2. The respondent after service of the notice appeared in the Court on 1st August, 1977. He was granted time to file his written statement by 5ih September, 1977, but on that date instead of filing the complete written statement, he filed O. M. P. 126 of 1977 in which it was alleged that he was supplied the copy of the petition only on that date but the same was not accompanied by any schedule or annexure. Further that there was reference to various annexures in the petition which showed that annexures are enclosed with the election petition. Further that every page of the petition has not been attested to be true copy. The petitioner has failed to comply with the mandatory provisions of sections 81 (3) and 83 (2) of the Representation of People Act, 1951 (shortly called the Act), and as such the election petition deserves to be dismissed under section 86 of the Act. 3. The petitioner in reply to this O. M. P. pleaded in her preliminary objections that the application filed by the respondent is frivolous and against the letter and spirit of section 86 of the Act and the motive behind this application was to delay the expeditious disposal of the petition. The respondent bad failed to file the written statement as directed and as such this application should be dismissed and that he should be debarred from filing the written statement for his culpable conduct. It was averred on merits that the election petition as presented was in perfect order and fully complied with the requirements of law. It was admitted that every page of the election petition had not been attested to be true copy. It was averred on merits that the election petition as presented was in perfect order and fully complied with the requirements of law. It was admitted that every page of the election petition had not been attested to be true copy. The copy supplied to the respondent had been attested at the end under the signatures of the petitioner to be a true copy of the petition and every page of it again bore the signature of the petitioner in token of its being a true copy of the original. It was averred that respondent had not disclosed as to how there was no compliance with the requirements of sections 81 (3) and 83 (2) of the Act. The particulars of corrupt practices are fully described in the petition, wherefrom the respondent can fully understand the charge even without looking to the documents annexed to the petition. The election petition is complete even without the annexures filed therewith. Annexures to the election petition are merely documents and not part of the petition. These documents are merely evidence in the case to lend support to the petition. 7 hey are in no sense integral part of the averments of the petition. The respondent is not entitled to their copies as of right, 5. No regular issues were framed. However, the parties argued the points raised in this O. M. P. The points which have been argued may be set down as: Whether the non-supply of the copies of the annexures to the election petition to the respondent is fatal to the petition, and, whether the non-attestation of each page of the petition is fatal so as to entail in dismissal of the petition? 4. Section 481 deals with the presentation of petitions. Sub-section (3) of this section reads as under; "(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." We are not concerned with the first portion of this sub-section. According to tie learned counsel for the respondent-applicant the annexures to the petition are a part and parcel of the petition itself and, therefore, according to him, he should have been supplied the copies of the annexures, in the absence of which the copy supplied to him cannot be said to be a complete copy of the petition and this is a mandatory provision, the non-compliance of which renders the petition liable to dismissal. He has further invited my attention to section 83 (2) which says :— "Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." It is admitted by the petitioners learned counsel that copies of the annexures have not been supplied to the respondent. He has referred to para 6 of the petition in which the petitioner has made reference to the annexures, which are biodata of the election petitioner and the commendation letters, a cyclostyled poster/hand bill, a printed hand bill on the postal inland letter card, another cyclostyled hand bill/poster, a printed hand bill/poster, which have been filed in support of the corrupt practices mentioned in para 5. There is also a reference to Annexures P-2 to P-5 which are the copies of the annexures already mentioned therein, besides some other annexures. So, the learned counsel contends that unless the copies of these documents which contain the allegations of corrupt practices are supplied to him, he is not in a position to file his written statement and the non-compliance with the mandatory provisions of sections 81 (3) and 83 (2) will result in the dismissal of the petition and in support of his contention he has relied on some authorities. On the contrary, the learned counsel for the petitioner-respondent argues that the annexures, the copies of which have not been supplied are only by way of evidence to lend support to the allegations made in the petition. The particulars of the corrupt practices have already been given in the body of the petition and these annexures are only in support thereof. The particulars of the corrupt practices have already been given in the body of the petition and these annexures are only in support thereof. The averments as contained in the petition are quite complete without the posters, which are annexures to the petition, and, therefore, according to him, there is sufficient compliance with the requirement of sections 81 (3) and 83 (2) of the Act and when there is a substantial compliance the non-supply of the copies of the annexures will not entail dismissal of the petition and he too has distinguished the authorities relied on by the learned counsel for the respondent-applicant and has further on relied upon two Supreme Court authorities to which I shall refer presently. 6. The first authority relied upon by the learned counsel for the respondent-applicant is Satya Narain v. Dhuja Ram and others, AIR 197r4 SC 1185. In that case the appellant along with others had contested election to the Assembly from Safidon Constituency but he lost to respondent 1. He filed an election petition in the High Court challenging the election of the first respondent on several grounds of corrupt practices. The petition was presented to the Deputy Registrar of the High Court on 18th April, 1972, who ordered the same to be put up for scrutiny on 24th April, 19/2. It was admitted that the application was filed on 18th April, 1972 without the requisite spare copies and was, therefore, incomplete on the date of the presentation. No schedules were also filed along with the petition. However, the latter point was not pressed by the respondent. The limitation for filing the election petition was up to "27th April, 1972. According to the appellant the spare copies were filed with the Superintendent of the Election Branch in the after-noon of 24th April, 1972 well within the period of limitation. On 24ih April, 1972, shri Mittal, the counsel for the appellant appeared and requested for time to remove the defects pointed out by the office. Somehow the case was not taken up on the subsequent date, i. e. 28ih and it was posted on 29th April, 1972, by which time the spare copies of the petition had been filed by the petitioner and the other defects had also been removed. Somehow the case was not taken up on the subsequent date, i. e. 28ih and it was posted on 29th April, 1972, by which time the spare copies of the petition had been filed by the petitioner and the other defects had also been removed. At the time of hearing only one preliminary objection, namely, that the petition was not in conformity with section 81 (3) of the Act, inasmuch as the requisite spare copies thereof were not annexed with the petition when it was originally presented on 18th April, 1972 and that the election petition was liable to be dismissed. It was urged on behalf of the counsel for the petitioner that the requirement of section 81 (3) that spare copies of the petition shall accompany the petition is directory and not mandatory. Repelling this contention, it was held that the first part of section 81 (3) is a peremptory provision and total non-compliance with the same will entail dismissal of the election petition under section 86 of the Act. This authority, therefore, dealt only with the first part of sub-section (3) of section 31 which enjoins that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition. So, this authority will not be applicable in so far as the later portion is concerned. 7. The second authority relied upon is Jagat Kishore Prasad Narain Singh v. Rajendra Poddar and others, AIR 1971 SC 342. This authority did not decide whether the requirements of section 81 (3) are merely directory and not mandatory. So, this authority will not be applicable in so far as the later portion is concerned. 7. The second authority relied upon is Jagat Kishore Prasad Narain Singh v. Rajendra Poddar and others, AIR 1971 SC 342. This authority did not decide whether the requirements of section 81 (3) are merely directory and not mandatory. In this case the copy of the election petition filed by the appellant served on the respondent was not the true copy of the election petition filed in the Court There were several discrepancies of various kinds in the copies supplied to the respondent as also in the original, there were discrepancies with regard to the particulars of gifts and gratifications and it was laid down by their lordships relying on Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545 that the word copy in section 81 (3) of the Act did not mean an absolutely exact copy but a copy so true that nobody would by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person. It was further observed that pleadings in a case have great importance and that is more so in election petitions particularly when the returned candidate is charged with corrupt practice. He must know what the charge against him is, so that he may prepare his defence. The law requires that a true copy of the election petition should be served on the respondents. The requirement had not been either fully or substantially complied with and it was, therefore, on that account that the petition was liable to be dismissed under section 86 of the Act, This authority also will not assist the respondent-applicant because we are concerned with the non supply of copies of the Annexures. 8. The learned consel for the respondent-applicant has further relied on Ramshanker Parmanand v. Jugalkishore Ramsahaya Bajaj and others, AIR 1969 MP 243. This authority says that failure of the petitioner to supply copies of the Annexures to the petition for being served on the respondent is a defect of presentation of the petition and so cannot be allowed to be cured subsequently and consequently the petition is liable to be dismissed. This authority is also distinguishable. This authority says that failure of the petitioner to supply copies of the Annexures to the petition for being served on the respondent is a defect of presentation of the petition and so cannot be allowed to be cured subsequently and consequently the petition is liable to be dismissed. This authority is also distinguishable. In that case the petitioner had also not supplied the copies of the annexures although he had made a reference to those annexures in some paragraphs of the petition and he had also stated in the petition that those annexures were parts of tile election petition. Later on the petitioner filed an application under section 86 (5) of the Act read with Order 6 Rule 17 read with section 151 of the Code of Civil Procedure seeking permission of the court to incorporate contents of those annexures in the body of the petition itself by way of better particulars. But, the was opposed. In the instant, case, a perusal of the petition shows that the petitioner has incorporated the contents of the documents in the body or the petition itself as is evident from clauses (a) to (g) of para 5 of the petition. Therefore, there is nothing whereby the respondent-applicant may be misled in putting in his defence or understanding as to what is the case that he has to meet. 10. The further authority relied upon by the learned counsel is Panna v. Mukhtiar Singh, AIR 1972 Punjab & Haryana 451. This authority also will not be of any help to the learned counsel tor the respondent-applicant because it says that the mere fact that a document or paper is annexed to the petition, would not necessarily make it a part of the petition in all cases. This authority also will not be of any help to the learned counsel tor the respondent-applicant because it says that the mere fact that a document or paper is annexed to the petition, would not necessarily make it a part of the petition in all cases. If in an election petition it is stated that the returned candidate commuted the corrupt practice of hiring or producing of vehicles for free carriage of voters on the polling day, and no further particulars are given in the petition itself, but it is stated that the respondent hired the vehicles mentioned in column I belonging to persons named in column II and driven by drivers listed in column HI for carriage of voters named in column V of Annexures P-l to the petition on the polling day", the annexure would necessarily be a part of the petition, and a copy of the petition without such annexure cannot be treated to be a copy thereof. The facts of this case, therefore, are quite distinguishable. 11. The authority, Mohan Rai v. Surendra Kumar Taparia and others, AIR 1968 Rajasthan 28 7 only says that the court is bound to dismiss the petition under section 86 (1) whenever it is brought to its notice that the petition as originally filed does not comply with provisions of sections 81, or 117. There can be no dispute with the principle. But here there is no question of dismissal of the petition when the Court finds that there is substantial compliance with the requirements of section 81 (3) as also section 83(2) of the Act. 12. The learned counsel for the petitioner-respondent has in turn relied on Smt. Sahodrabai Rai v. Ram Singh Aharwar and others, AIR 1968 SC 1079. It was an appeal against the judgment of the High Court of Madhya Pradesh dismissing the election petition filed by the appellant on the preliminary ground that a proper copy of the election petition was not served upon the answering parties. The appellant had contested as a candidate for election to the Sagar Lok Sabha Scheduled Castes constituency on February 20, 1996 . There were three other contesting, candidates and the first respondent was declared elected. The appellant secured the second largest number of votes. The appellant had contested as a candidate for election to the Sagar Lok Sabha Scheduled Castes constituency on February 20, 1996 . There were three other contesting, candidates and the first respondent was declared elected. The appellant secured the second largest number of votes. He filed an election petition against the successful candidate on four grounds, namely (a) wrongful acceptance of his nomination paper, (b) corrupt practice inasmuch as be appealed to religion through a pamphlet marked Annexure A’ (c) undue influence, and (d) breaches of the Act and Rules. The pamphlet was styled as Bhayankar Vajraghat and was published by Sarvadaliya Goraksiia Mihabhiyan Samiti, Deori Kalan Branch. It charged the party of the appei/ant namely the Cangress with encouraging cow-slaughter and offending the Hindu sentiment. Details were given in it of the number of animals slaughtered every day in Madhya Pradesh and elsewhere and blamed the Congress with being a party to the practice. Jn the body of the election petition a translation in English of the Hindi pamphlet was incorporated. The original pamphlet was attached to the election petition and was marked Annexure A. The election petitioner proceeded to say in her petition "it forms part of the petition". The respondent had raised an objection in the written statement on a later date after filing the written statement that a copy of the pamphlet had not been annexed to the election petition served upon him and, therefore, the election petition was liable to be dismissed in accordance with the provisions of section 86 of tbe Act. The objection found favour with the learned Judge of the High Court and he dismissed the petition. On appeal to the Supreme Court their Lordships observed that sub-section 0) of section 81 and subsection (5) of section 83 provide that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and that every such copy shall be an authenticated true copy. The words used here are only "the ejection petition". There is no motion of any document accompanying the election petition. If the matter stood with only this sub-section there would be on doubt that what was intended to be served is only a copy of the election petition proper. The words used here are only "the ejection petition". There is no motion of any document accompanying the election petition. If the matter stood with only this sub-section there would be on doubt that what was intended to be served is only a copy of the election petition proper. In the case before their Lordships the election petition itself reproduced the whole of the pamphlet of the translation in English of the Hindi pamphlet and it was observed that it could be said that the averments with regard to the pamphlet were them —selves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original. Even, if this be not the case, it is clear that sub-section (2) of section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. Therefore, this authority is fully applicable to the facts of the present case, inasmuch as the petition has reproduced those allegations in the petition itself which are in the annexures accompanying the petition. 13. Further, in Virendra Singh v. Vimal Kumar, AIR 1976 SC 2169 also a similar objection was taken by the respondent that the election petition was liable to be dismissed as the copy of the petition meant to be served on the appellant was not accompanied by a copy of Annexure A i. e. Ex. P-10. Repelling this contention their Lordships held that the allegations of corrupt practice and particulars thereof as given in paragraph 13 of the election petition reproduced above are sufficiently clear and precise. Further on it was observed that the appellant had an easy access to the court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leaflet (Exh. P-10) which formed an annexure to the election petition. Their Lordships further observed that it is also now well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition. P-10) which formed an annexure to the election petition. Their Lordships further observed that it is also now well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition. That apart, the petition could also not have been dismissed in view of section 99 of the Code of Civil Procedure which clearly says that a defect Which does not affect the merits of the case or the jurisdiction of the Court cannot invalidate the decision. 14. Therefore, in the face of these two authorities of the Supreme Court, referred to above, it cannot be said that failure to send the copies of the annexures along with the copy of the petition is fatal because the particulars of the corrupt practice as contained in these leaflets are given in para 6 of the petition and the respondent cannot be said to be misled in preparing his defence. Further it may be stated that the respondent-applicant had inspected the records of this case after he was supplied a copy of the petition and that is admitted by the applicant also that he had inspected the petition. He has not as yet filed his written statement, and therefore, when he has inspected the record and has not filed the written statement so far it cannot be said that he is in any way misled in filing his defence and the mere failure to file the copies of the annexures to serve the same upon the respondent will not entail in dismissal of the petition in the light of the circumstances narrated above. 15. The second point is that the copies are not attested on each page as required under the second part of section 81 (3) and the learned counsel submits that the provisions are mandatory and reliance is placed on Satya Narains case (supra). But, it may be stated that this submission is not correct. The petitioner has signed each page, except page 10, of the petition and the attestation is given at the end of the petition. According to Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others, AIR 1964 SC 1027 there should be substantial compliance. But, it may be stated that this submission is not correct. The petitioner has signed each page, except page 10, of the petition and the attestation is given at the end of the petition. According to Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others, AIR 1964 SC 1027 there should be substantial compliance. In the present case the copy which is served upon the respondent is attested as required under law at the end and each page of the copy is signed and thereby the respondent- applicant cannot be said to be misled in putting his defence. There appears to be sufficient compliance with the requirements of law and hence this point also fails. 16. The preliminary objections raised by the respondent-applicant are hereby over-ruled.