HARCHARAN SINGH JOSH v. HARI KRISHAN — 1995 DIGILAW 439 (DEL)

R. C. Lahoti ( 1 ) THIS is an election petition under Section 80 of the representation of the Peoples Act, 1951 (Act, for short) challenging the result of the election of the Member of the Legislative Assembly of Sadar Bazar Assembly constituency Delhi. ( 2 ) THE following preliminary issues have been framed : Whether the petition has been filed within the prescribed period of limitation ? 2. Whether the petition has been properly presented ? 3. Whether the petition and Annexures are properly verified ? whether the petition was not accompanied by requisite number of true copies and hence is liable to be rejected for non compliance with Sec. 81 (3) of the RPA Act, 1951 ? ( 3 ) FACTS relavant to the decision of each of the issues will be noticed at their appropriate places. Suffice it to notice here that the result of the election was announced on 28th November, 1993. The petition was filed on 11th January, 1994. The usual rubber stamp was affixed at the filing counter which reads "filed today. Filing No. 566. 11 JAN 1994. Deputy Registrar". The endorsement does not disclose who had physically handed over the petition at the filing counter whether it was the petitioner or the Counsel or the petitioner accompanied by the Counsel. 3. 1. On 12th January, 1994, the office raised the following objections : 1. It is nowhere mentioned in the plaint that the petition is filed within time. 2. Court fee paid is deficit as Rs. 5. 50 ought to be paid while actually Rs. 5 has been paid. . 3. Requisite Court fee on interim application is 75 paise per page not paid. 3. 2. On the abovesaid objections having been pointed out, the Deputy Registrar made an order on 12. 1. 94 : "return. To be refiled within one week. " 3. 3. The petition was taken back by the Counsel for the petitioner and refiled on 20. 1. 1994, the day preceding being a holiday. Below the office objection and the above REFERRED TO to order of the Deputy Registrar, the Counsel for the petitioner has written that the objections having been removed the matter could be placed before the Court. 3. 4. The election petition was then marked by the Chief Justice for hearing by a Judge of this Court. Below the office objection and the above REFERRED TO to order of the Deputy Registrar, the Counsel for the petitioner has written that the objections having been removed the matter could be placed before the Court. 3. 4. The election petition was then marked by the Chief Justice for hearing by a Judge of this Court. ( 4 ) THE respondent No. 1 is the one who has won at the election. He alone is contesting the petition and has filed the written statement. Issue No. 1 ( 5 ) ON 11. 1. 1994, when the petition was presented in the registry, it was within limitation. The contention of the learned Counsel for respondent No. 1 is that the petition as filed on 11. 1. 1994 was defective to the extent indicated by the office. The rules framed by Delhi High Court contemplate the defect being cured by the petitioner in the office itself. The petitioner could not have taken away the petition for the purpose of removal of defects/objections. The office was not right in directing the return of the petition. Even if it directed such a return it was something not permitted by the Act or the Rules. The petitioner and his Counsel should have refused to take back the petition. However, they took back the petition and after removing the defects pointed out by the office refiled the same on 20. 1. 1994, the date by which the limitation of 45 days had stood expired. The petition filed on 20. 1. 1994 was barred by time. The contention of the Counsel for petitioner is that it is established practice of Delhi High Court (Original Side) to receive the documents presented, scrutinise them for the purpose of finding out defects, if any, and return the document to the party filing it for the purpose of removing the defects and refiling the same within the time appointed by the office. If the document is refiled within the appointed time then it will be deemed to have been filed on the date of original presentation. Even if this practice is not applicable to election petitions, it was a mistake on the part of the office for which the petitioner cannot be made to suffer. If the document is refiled within the appointed time then it will be deemed to have been filed on the date of original presentation. Even if this practice is not applicable to election petitions, it was a mistake on the part of the office for which the petitioner cannot be made to suffer. The Counsel for the respondent No. 1 has replied by submitting that whatever be the practice or the rules applicable to Original Side of the High Court, law of election and election petitions is statutory, not belonging to, the field of comon law. Provisions or analogy cannot be imported into the law and practice governing the trial of election petitions. The petitioner and his Counsel should have been aware of the law. If they took back the petition they did so at their own risk. The petition filed on 20. 1. 94 is liable to be rejected as having been filed beyond the prescribed period of limitation. The Delhi High Court has framed Election Rules (Published in the Delhi gazette, Part II, Section I, dated 18. 5. 67 ). These Rules are in regard to election petition under the Representation of the People Act, 1951. Rules 5 to 8 thereof are relevant and are reproduced hereunder:- "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. ( 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. ( 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 not in conformity with law and the rules, raise objections which could be removed by the party or the Advocate concerned. ( 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 not 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. 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 summons, 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 of written statement and settlement of issues. "( 8 ) IN exercise of power conferred by Sections 122 and 129 of the Code of Civil procedure, 1908 and Section 7 of the Delhi High Court Act, 1966, the Delhi High court has framed rules which are known as the Delhi High Court (Original Side) rules, 1967. Chapter IV dealing with the presentation of plaint and other documents provides by Rule 2 thereof as under:- "1. Endorsement and scrutiny of document- (a) The officer in-charge of filing counter shall endorse the date of receipt on the plaint, petition, application or proceedings and also on the duplicate copy of the index and return the same to the party. He shall enter the particulars of all such documents in the register of daily filing and thereafter cause it to be sent to the office concerned for examination. If on scrutiny, the document is found to be defective, such document shall after notice to the party filing the same, be placed before the registrar. He shall enter the particulars of all such documents in the register of daily filing and thereafter cause it to be sent to the office concerned for examination. If on scrutiny, the document is found to be defective, such document shall after notice to the party filing the same, be placed before the registrar. The registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same and for this purpose may allow to the party concerned such reasonable time as he may consider necessary; (b) Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be receded in writing, decline to register the document; , (c) Any party aggrieved by any order made by the Registrar under this rule may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers. " ( 9 ) THERE is a marked distinction between the two sets of rules in so far as relevant for the purpose at hand. In case of a plaint, if it is found to be defective, the same may be returned for rectification or amendment to the party filing the same and for this purpose allowing the party concerned a reasonable time. The documents not refiled within the time allowed may be refused to be registered. Such a procedure is not contemplated by Election Rules. Soon on presentation, the party or Advocate, presenting the election petition must be asked to attend the office on the third day for removing objections, if any, found on scrutiny thereof. The objections as are capable of being removed, have to be removed in the office, subject to the orders of the Court. The Election Rules do not contemplate the election petition being returned to the party or Counsel for the purpose of refiling after removal of defects. ( 10 ) IN the case at hand the office adopted a strange procedure unknown to the election Rules and returned the petition itself to the petitioner or his Counsel after pointing out the defects, noticed hereinabove. The petitioner and his Counsel would have been better advised if they had not taken the petition back. ( 10 ) IN the case at hand the office adopted a strange procedure unknown to the election Rules and returned the petition itself to the petitioner or his Counsel after pointing out the defects, noticed hereinabove. The petitioner and his Counsel would have been better advised if they had not taken the petition back. They should have insisted on the petition being placed for orders of the Court and removing the defects in the Court or office itself subject to the leave of the Court. It appears that the office and the Counsel for the petitioner both be laboured under a wrong impression. They followed the procedure contemplated by the High Court (Original side) Rules meant for dealing with plaints. Be that as it may, it has to be examined what will be the effect on the maintainability of the election petition by the petitioner and /or his Counsel having taken the petition back and having-tttfiled the same within the time appointed. ( 11 ) THE learned Counsel for the petitioner has relied on CIT v. Bharat Heavy electricals Ltd, (1987) 168 ITR 499 . An income-tax reference under Section 256 (2) of the Income Tax Act, 1961 was filed, but it was not accompanied by certain documents and orders, filing whereof was merely directory and not mandatory. The absence of the orders and documents did not make the petition an imperfect petition or no-petition in the eyes of the law. It was returned to the petitioner for curing the defects. The defects having been cured, it was refiled but after expiry of -the period of limitation. The Division Bench of this Court has held that the representation after curing the defects was only a continuation of the original petition. ( 12 ) IN Narayan Srinivas v. Samjibhai Bhika, AIR 1981 Goa 49 , an election petition was filed. The attestation on true copies of the original petition or documents was required to be corrected by the registry which was to be done within a period of seven days allowed by the Registry, but on the day on which the limitation for filing the election petition had expired. It was held that the petition could not be dismissed on the ground that the day of curing the defect fell outside the limitation. It was held that the petition could not be dismissed on the ground that the day of curing the defect fell outside the limitation. ( 13 ) IN Ashok Kumar Parmar v. D. C. Sankhla, (Suit No. 2281 /87, order dated 6. 10. 1994), I had an occasion to examine the Original Side Rules relating to filing and refiling of the documents in the office. Having reviewed the available case law on the point, I have held :- "it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a no-plaint in the eye of law, then the date of presentation would be the date of re-filling after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit. " ( 14 ) IN Satya Narain v. Dhuja Ram, AIR 1974 S. C. 1185, an election petition was filed not accompanied by the requisite copies. The defect was cured on a day on which the limitation for filing the election petition had expired. Their Lordships held: "in the absence of any provision under the Act or the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation pro- vided for under the Act. " ( 15 ) IT is clear, as will be noticed by reference to case law dealt within connection with other issues that a distinction shall have to be kept in view between the provisions which are mandatory and non-compliance with which results in dismissal of the election petition and such defects as do not nullify the presentation of the election petition. The defects of the later category are capable of being cured without regard to the period of limitation. ( 16 ) ACTIUS curiae Neminem Gravabit-An act of the Court shall prejudice no man. The Court would protect persons from mistaken or wrong acts of its own as well as of its officers. Let the act of Court or its officers cause injury tono one. ( 16 ) ACTIUS curiae Neminem Gravabit-An act of the Court shall prejudice no man. The Court would protect persons from mistaken or wrong acts of its own as well as of its officers. Let the act of Court or its officers cause injury tono one. ( 17 ) THE petitioner cannot be blamed for taking back the election petition under the orders of the officials of the Registry. The election petition once presented in the court, becomes the property of the Court. Even if the petitioner takes it away he holds it on behalf of the Court for the period allowed to him for refiling the same. The unwarranted act of the officials of the registry in returning the election petition back to the petitioner and pursuant thereof the petitioner taking away the petition, howsoever ill advised it might have been, would not nullify or wash out the original presentation of the election petition. It is pertinent to note that the defects pointed out by the Registry were of no substance. In any case, the defects were not such as would have had the effect of nullifying the presentation of the petition. The petition as presented originally was a valid election petition, validly presented to the Court. The refiling has to be ignored. ( 18 ) ISSUE No. 1 is answered affirmatively in favour of the petitioner. Issue No. 2 ( 19 ) SECTION 81 of the Act provides that an election petition may be presented by any candidate or any elector. 21. 1 have called for the filing register of the Original Side cases maintained by me Registry. It shows the election petition has been presented at the filing counter by Mr. M. K. Bajaj, Advocate. The petition was accompanied by a vakalatnama given by the petitioner to Mr. M. K. Bajaj and Mr. R. M. Bagai, Advocates. Both the counsel have signed the vakalatnama in token of their having accepted their appointment as Counsel. ( 20 ) IT is contended by the Counsel for the respondent that the endorsement made on the petition does not show the same having been presented by the petitioner himself while the entries made in the filing register show the petition having been presented by Mr. M. K. Bajaj, advocate. ( 20 ) IT is contended by the Counsel for the respondent that the endorsement made on the petition does not show the same having been presented by the petitioner himself while the entries made in the filing register show the petition having been presented by Mr. M. K. Bajaj, advocate. As it was not personally presented by the petitioner himself, the presentation would be deemed to be invalid by reference to Section 81 of the Act. ( 21 ) IN Ramanlal Premy v. Shivpratap Singh, 56 ELR 174, on the facts and evidence it was found that. the petition had been presented to the Court by the petitioner s Counsel and not by the petitioner personally, nor in the petitioner s immediate presence. Dismissing the petition, it was held : "the formality of presentation of the petition by the candidate himself howsoever insignificant it may appear under the circumstances, was yet a mandatory formality, the non-observance of which invalidated the presentation. ". ( 22 ) IN Sheodan Singh v. Mohan Lal, AIR 1969 S. C. 1024, it was found that the election petition was presented to the registry by an Advocate s clerk in the immediate presence of the petitioner. Their Lordships held that in substance, though not in form, it was presented by the petitioner himself and hence the requirement of the law was fully satisfied. ( 23 ) IT is clear that issue No. 1 cannot be decided without recording evidence thereon. If the petitioner was himself present at the time of presentation, the mate act of handing over the petition by Advocate to the official receiving the same would not invalidate the same. The petitioner s actual presence in close proximity would satisfy the requirement of presentation by him. ( 24 ) THE order sheets dated 3. 2. 1995 and 1. 3. 95 show the parties having not adduced any evidence on any issue excepting No. 4 assuming it could be decided by arguments only, issue being purely legal one. It is the defective method of affixing rubber stamp at the filing counter and not endorsing the name of the person making presentation at the counter which is unabling the Court from deciding the issue. The practice prevalent needs to be cured. ( 25 ) THE issue is left to be determined after recording evidence. It is the defective method of affixing rubber stamp at the filing counter and not endorsing the name of the person making presentation at the counter which is unabling the Court from deciding the issue. The practice prevalent needs to be cured. ( 25 ) THE issue is left to be determined after recording evidence. Issue No. 3 ( 26 ) SECTION 83 of the Act requires every election petition to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings. All the annexures to the election petition are also to be signed by the petitioner and verified in the same manner as the petition. ( 27 ) I find the election petition to have been verified properly. Certain documents have been filed as annexures with the petition. Each of them bears a verification. No fault can be found with the verification so made. ( 28 ) EVEN otherwise, a defect in verification of the election petition has been held to be not fatal to the maintainability of the petition. It is capable of being cured (Seef. A. Sapa v. Singore, AIR 1991 SC 1157 and Murarka Radheyshan Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545 ). ( 29 ) ISSUE No. 3 is decided in favour of me petitioner and against respondent no. l issue No. 4 ( 30 ) 32. This issue has three aspects. 32. 1 Firstly, it is submitted that the copy of the petition as delivered to the respondent No. 1 was not accompanied by page 18 of the petition. The petitioner had not therefore filed as many true copies of the petition as are there the respondents mentioned in the petition. The copy delivered to respondent No. 1 shall be deemed to have been filed by the petitioner in the same state in which it has been delivered to respondent No. 1 and that being not a true copy for want of page no. 18 therein, there is non compliance with Sec. 81 (3) of the Act. 32. 2 Secondly, the copies of the petition meant for service on the respondents though signed by the petitioners are not stated to be true copies. 32. 3 Thirdly, the copy delivered to respondent No. 1 does not tally with the original. 18 therein, there is non compliance with Sec. 81 (3) of the Act. 32. 2 Secondly, the copies of the petition meant for service on the respondents though signed by the petitioners are not stated to be true copies. 32. 3 Thirdly, the copy delivered to respondent No. 1 does not tally with the original. A comparative reading of the copy of the petition delivered to respondent no. 1 with the original petition shows a number of differences. Thus the copy delivered to respondent No. 1 cannot be said to be a true copy of the petition. The petition according to respondent No. 1 is liable to be dismissed for non compliance with Sec. 81 (3) of the Act. ( 31 ) THE learned Counsel for the respondent No. 1 has pointed out the following infirmities/variations in the copy of petition delivered to respondent No. 1 as compared with the original petition filed in the Court:- sl No. SITUATION original copy remarks 1. Para 2 an MLA a MLA - 2. Para 7 as 305 in as 305 voters word voters rajputana in Gali Rajputana not to be found in original 3. Para 7 for the for this - assembly assembly 4. Para 7a a returned candidate a returned candidates - 5. Para 8 roshan Ara roshan Ara road not delhi road, Delhi in original 6. Para 8 english Translation (Missing) title given to of Annexure B. translation 7. Para 8 illicit liquor selling. illegal liquor selling of pamphlet reproduced in petition is absent in copy. 8. Para 10 ganga @ Chander Bhan ganga Chander Bhan @ denoting alias is missing. in copy. 9. Para 10 publicity in whole of the constituency publicity in while of the constituency original-whole copy - while. 10. Para 11 he told them and he told them "and" as / conjunction not used in original. 11. Para 14 with his consent and knowledge has committed. with his consent has committed "and knowledge missing in copy. 12. Para 15 would have has been difference in been declared. declared. tense used. 13. Para 16 the petition is within time (missing) sentence has been added in the original in handwriting 14. Verification verified At verified at delhi. New Delhi. part / (Affidavit ). 15. Affidavit endorsement by -. oath commissioner. Contents of rubber stamp affixed by Oath Commissioner are not reproduced in copy. declared. tense used. 13. Para 16 the petition is within time (missing) sentence has been added in the original in handwriting 14. Verification verified At verified at delhi. New Delhi. part / (Affidavit ). 15. Affidavit endorsement by -. oath commissioner. Contents of rubber stamp affixed by Oath Commissioner are not reproduced in copy. ( 32 ) ON issue No. 4, respondent No. 1 has entered in the witness box and given his own statement. He states that the set of papers as was received by him accompanying the notice of election petition has been filed by him in the Court and marked asEx. A collectively. When the notice was served on him there were several persons sitting by his side. He did not therefore carefully see and examine the papers. Later on, after about 30-40 minutes, he examined the papers and noticed that the set of papers delivered to him did not contain page No. 18. He telephoned to his Advocate and apprised him of the fact. The Counsel told him that he would check up and inspect the record of the Court and then he would file the written statement. In cross-examination, respondent No. 1 admits to be a graduate. He had contested elections earlier also on two occasions. On both the occasions the present petitioner was his opponent. On both the occasions there were election petitions and he had engaged the same Advocate as has been engaged presently by him. ( 33 ) THERE are 24 respondents in the petition. The petition as filed was accompanied by at least 24 copies. The original petition is type written. The copies, all the 24, are cyclostyled copies prepared from a stencil. The petition is accompanied also by annexures. They are a few documents. Whenever a document is in vernacular it is accompanied by an English translation thereof. Page 18 is a document which is a poster announcing the date and subject matter of a public meeting called by some forum during the election. Page 19 is the English translation thereof. ( 34 ) THIS document Annexure-C finds a reference in para 9 of the petition. The english translation of the above annexure has been reproduced in para 9 of the petition and also annexed with the petition as Annexure C-l, page 19. Page 19 is the English translation thereof. ( 34 ) THIS document Annexure-C finds a reference in para 9 of the petition. The english translation of the above annexure has been reproduced in para 9 of the petition and also annexed with the petition as Annexure C-l, page 19. ( 35 ) THERE are several other copies of the petition, available on record, intended for service on the several respondents. They have come back on the record of the court for want of service thereof on the respondents (other than respondent No. 1) to whom they were sent to be served. Those copies do have page 18 as part thereof. ( 36 ) THE respondent No. 1 was served on 9. 3. 94. He made his first appearance through Counsel in the Court on 25. 3. 94 and sought for eight weeks time for filing written statement. The Court allowed him four weeks time. ( 37 ) WRITTEN statement was filed on 26. 4. 94. ( 38 ) THE respondent No. 1 is not new in the field of elections and election petitions. This is the third time when he is contesting an election petition. He has competent and legal advice available to him at all times. The Counsel representing him in the present case was the Counsel representing him on earlier occasions as well. The respondent knows it well, at least he can be safely presumed to know that it is the obligation of the election petitioner to file true and complete copies of the pleadings and valuable right of the respondent to have such a copy served on him. Copy of an election petition was served on him accompanying the process of the court. He was expected to check it then and there to find out whether it was a complete copy. If it was nota complete copy he should have either refused to accept the same or made an endorsement on the copy of the Court notice to that effect making it dear how and in what manner copy delivered to him was deficient. ( 39 ) HAVING become aware of the deficiency in the copy and having obtained legal advice he should have posthaste moved an application pointing out to defect in the set of papers delivered to him and seeking instant dismissal of the petition on that ground. That was notdone. On 25. 3. ( 39 ) HAVING become aware of the deficiency in the copy and having obtained legal advice he should have posthaste moved an application pointing out to defect in the set of papers delivered to him and seeking instant dismissal of the petition on that ground. That was notdone. On 25. 3. 1994 also while seeking an adjournment for filing written statement, such a serious defect was not brought to the notice of the Court. ( 40 ). It is difficult to believe that the petitioner who appears to be quite seasoned in contesting elections and election petitions would commit a mistake of filing incomplete copies. When the other sets available on record are complete, it is difficult to believe that the petitioner would have permitted one set alone to remain incomplete and that too the one which was meant for service on respondent No. 1, me successful candidate and the only person really interested in contesting the election petition. ( 41 ) PAGE 18 is the original poster and page 19 is English translation thereof. English translation has been delivered to respondent No. 1. What would the petitioner have gained by not supplying the original poster or a copy thereof to the respondent. The probabilities of the case lead to an inference that the set of the petition delivered to respondent No. 1 did have page 18. The objection raised by respondent No. 1 does not inspire confidence. ( 42 ) IN Smt. Sahodrabai Rai v. Ram Singh Aharwar, AIR 1968 S. C. 1079, an election petition itself reproduced the whole of the pamphlet, translated into english, as particulars of a corrupt practice and the original Hindi pamphlet was filed as Annexure to the petition but no copy of the annexure was served on the respondent along with the copy of the petition. It was held that mere was no breach of the provisions of the Act in regard to the filing of the election petition or the service of the copies thereof. Their Lordship held :- "since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves 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. Sub-sec. Even if this be not the case. Sub-sec. (2) of Sec. 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. ( 43 ). The objection relatable to the first part of the issue stated in para 32. 1 above, fails. ( 44 ) SECTION 81 (3) provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Non-compliance with the provision shall entail dismissal of the election petition by virtue of Section 86 of the Act. ( 45 ) FAILURE to endorse true copy on the copies of the election petition, though signed by the petitioner and defect in the form of verification on the copies have been held to be not fatal. It has been held that substantial compliance would be enough. (Dr. Anoop Singh v. Abdul Gani, AIR 1965 SC 815 , Murarka Radheysham ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545 and Subbarao v. Member election Tribunal, AIR 1964 SC 1027 . ( 46 ) MERE failure to write true copy" if the copy be a true copy and signed by the petitioner, would not be fatal. would now proceed to examine the third part of this issue, stated in para 33 above, which is of real and greater significance and consequence. ( 47 ) THE differences in the copy delivered to the respondent No. 1 and the petition have already been stated in very many details in para 33 above. ( 48 ) WHAT is a copy for me purpose of Section 81 (3) of the Act ? In Murarka radhey Shy am Ram Kumar v. Roop Singh, AIR 1964 SC 1545 , their Lordships have held: "the word copy in Sub-section (3) of Sec. 81 does not mean an absolutely exact copy, but means mat the copy shall be so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from me original is calculated to mislead an ordinary person. The test whether the copy is a true one is whether any variation from me original is calculated to mislead an ordinary person. " ( 49 ) IN Jagat Kishore v. Rajender Kumar, AIR 1971 SC 342 the test laid down for finding out whether the copy meant for service on the respondent is a true copy of the election petition or not is that a copy need not be exact copy but a copy so true that nobody can by any possibility misunderstand it. The question to be asked is whether any variation in the original is so calculated as to mislead an ordinary person. ( 50 ) IN Mithilesh Kumar v. Baidyanath, AIR 1984 S. C. 305, their Lordships have laid down the following principles for testing whether there has been a serious disobedience of the mandate contained in Section 81 (3) which would be fatal to the maintainability of the said petition:- "1. That where the copy of me election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightaway under Section 86; 2. A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the Court may not take notice thereof; 3. Where the copy contains important omissions or discrepancies of a vital nature which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial compliance of the provisions of Section 81 (3) of the Act. 4. Prima facie, the statute uses the words "true copy" and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81 (3) of the Act, and as Section 81 (3) of the Act is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section. " 52. 1 In Mithilesh Kumar s case (supra) the petition contained allegations of corrupt practices. " 52. 1 In Mithilesh Kumar s case (supra) the petition contained allegations of corrupt practices. In the copy of the petition supplied to the returned candidates there were the following mistakes as regards names of the persons:- 1. Complete omission of some names which were mentioned in the election petition but not in the copy. 2. Wrong names were given. 3. Some names given in the petition appeared to be males but in the copy they appeared to be females. It was held that the mistakes in the copy were vital and would seriously prejudice the defence. The election petition was held liable to be dismissed in limine. ( 51 ) IN Jagat Kishore's case ( supra) in the election petition it was stated that money was offered to Shri Jetha Kisku MLA by Munshi Hansda, but in the copy it was stated that the money was offered to the said Jetha Kisku by Paul Hansda. It was held:-"this divergence was. bound to mislead the contesting respondents and prejudice their defence. Pleadings in a case has 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. If replying on the allegations in the copy of the petition served on him that the money was paid to Jetha Kisku through paul Hansda, the 1st respondent had collected evidence to show that that allegation is false then the entire basis of his defence would have fallen to the ground because at a later stage he had to meet a totally different case. The law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore, we have no doubt in our mind that the election petition is liable to be dismissed under Section 86 of the act. "an election petition is not to be equated to proceedings at common law or in equity but as the rights are purely the creature of statute, if the statute renders any particular requirement mandatory, the Courts possess and can exercise no dispensing power to waive non compliance. 54. "an election petition is not to be equated to proceedings at common law or in equity but as the rights are purely the creature of statute, if the statute renders any particular requirement mandatory, the Courts possess and can exercise no dispensing power to waive non compliance. 54. 1 may hasten to state that the differences in the texts of the original and of the copy in so far as items other than 2,5,8,11 and 14 (out of the 15 set out in the table in para 33 above) are concerned, they may be summarily disposed of merely by stating that the differences are either attributable to clerical/typing errors or are inconsequential in nature. In any case they are of no significance and to their extent they do not deprive the copy of its character of being substantially a true copy. ( 52 ) THOSE differences as are mentioned at Serial No. 2,5,8,11 and 15 deserve to be dealt with precisely. First, I would take up the one, mentioned at Serial No. 15. ( 53 ) THE affidavit filed by the petitioner and accompanying the petition was attested by the Oath Commissioner.- The Oath Commissioner affixed his rubber stamp on the affidavit in support of affirmation made by him and signed the same. The contents of this rubber stamp, and the factum of the same having been signed by the Oath Commissioner is not reproduced in the copies. Learned Counsel for the respondent No. 1 has submitted that from the copy the contesting respondent could not have formed an opinion as to whether the original was attested by the oath Commissioner or not. Reliance is placed on a Single Bench decision of madhya Pradesh High Court in Jhamman Lal v. Dr Lakshmi Narain Pandey, (Election Petition No. 9/91, order dated 7. 12. 1992 ). It has been held therein that the copy of the affidavit supplied to the returned candidate with a similar omission as above cannot be said to be conforming to the requirement of Sec. 81 (3) of the Act. 57. 1 However, there is a Division Bench decision of the same High Court high Court of Madhya Pradesh) taking a view to the contrary. It is Ganga Ram b)andilv. Rashmi Devi Parihar, AIR 1987 MP 208 . 57. 1 However, there is a Division Bench decision of the same High Court high Court of Madhya Pradesh) taking a view to the contrary. It is Ganga Ram b)andilv. Rashmi Devi Parihar, AIR 1987 MP 208 . The Division Bench decision has been noticed in para 13 by the learned Single Judge in Jhamman Lal's case but it appears that the ratio of Ganga Ram Bandil's case has not been fully considered. 57. 2 In Ganga Ram Bandil's case the DB has held that :-"an affidavit accompanying an election petition forms integral part of the election petition. The fact however that the true copy of an affidavit accompanying an election petition based on corrupt practice though complete in all respects did not contain the designation of the person, who administered oath to the election-petitioner, as also the endorsement made by him in the original affidavit at the time of administering the oath would not render the election petition liable to be dismissed. What is material is the form and the contents of the affidavit pertaining to the allegations and particulars of corrupt practice in the election petition. The procedural formalities of administration of oath and endorsement on the affidavit about completion of the formalities cannot, therefore, be said to be the contents of the affidavit and their non production in the copy of the affidavit cannot be taken to be fatal to the maintainability of an election petition. So, also Sec. 81 (3) of the Act speaks of copies of petition and provides attestation of every copy as a true copy of the petition. A petition means a petition conforming to the requirements of sec. 83 of the Act. Thus, neither Sec. 81 (3), nor Sec. 83 (1) anywhere provides that the endorsements of the officer administering oath would form part of the contents of the affidavit or of the petition, or that the copy of the petition or affidavit filed under Section 81 (3) must show or reproduce such endorsements. "57. 3. I am in respectful agreement with the view taken by the Division Bench of the High Court of Madhya Pradesh in Ganga Ram's case. The affidavit is an act of the petitioner. It forms an integral part of the petition. In so far as the verification part thereof is concerned, it is an act of the Oath Commissioner. "57. 3. I am in respectful agreement with the view taken by the Division Bench of the High Court of Madhya Pradesh in Ganga Ram's case. The affidavit is an act of the petitioner. It forms an integral part of the petition. In so far as the verification part thereof is concerned, it is an act of the Oath Commissioner. The endorsement made by the Oath Commissioner does not form part of the affidavit nor an integral part of the affidavit muchless of the petition. The verification by the Oath Commissioner even if not made before presenting the petition is capable of being made even after filing of the same. It is a curable defect. It is not difficult to visualise a situation where an election petition complete in all other respects, duly accompanied by an affidavit may be kept ready for presentation and affidavit may be attested just before or simultaneously with presentation of the petition. In many a High Courts an official of the Registry is authorised to administer oath to the deponents of affidavits meant for filing in Court proceedings. In such cases it will be impracticable to have the endorsement copied out on the copies of the election petition though available on the original election petition. 57. 4. In my opinion absence of availability on the copies of the details of endorsement made by Oath Commissioner on the original does not render the copies anything less than true copies. ( 54 ) AS to differences mentioned at Sl. No. 2, 5, 8,11, let the details of the differences be noticed so as to appreciate what difference such differences have made. 58. 1. The petition vide para 7 makes an averment that while preparing the voters list for the assembly election of this constituency a number of complete localities were deleted without any basis and "number of other houses and voters from localities such as 305, in Gali Rajputana" were deleted. The original does not make it clear whether the petition alleges 305 houses or 305 voters to have been left out. The copy states clearly that they were 305 voters which were left out. 58. 2. In para 8 there is an allegation of corrupt practice on account of an objectionable pamphlet having been distributed. The original does not make it clear whether the petition alleges 305 houses or 305 voters to have been left out. The copy states clearly that they were 305 voters which were left out. 58. 2. In para 8 there is an allegation of corrupt practice on account of an objectionable pamphlet having been distributed. The report of such corrupt practice by respondent No. 1 and his agent and supporters is alleged to have been "filed with the Police Station 'roshanara, Delhi". While the original speaks of 'roshanara, Delhi', the copy speaks of Roshanara Road, Delhi'. The two localities, namely, 'roshanara' and "roshanara Road', may be different. It is common knowledge that in a big capital city like Delhi, change of a word in the full name of a locality or geographical region would make a lot of difference. There are places, where words Marg, Road, or Lane though prefixed by the same name or noun would suggest different localities. 58. 3. Para 10 of the petition alleges yet another corrupt practice. An objectionable poster is said to have been 'pasted on the walls by Ganga @ Chander Bhan, a supporter of respondent No. 1'. The name of the person pasting such posters as mentioned in the copy is 'ganga Chander Bhan'. 'ganga @ Chander Bhai is not necessary 'ganga Chander Bhan'. 58. 4. In para 14, it is alleged that various corrupt practice as defined in Section 123 of the Act were committed by the agents of respondent No. 1 and other persons with "his consent and knowledge" which has materially effected the result of the election of the returned candidate. The copy alleges such corrupt practice having been committed merely 'with the consent' of respondent No. 1. In the context of the election Law Commission of a corrupt practice 'with the consent of the returned candidate' and in the knowledge of the returned candidate have a world of difference and would have a material bearing on the nature of evidence to be adduced strategy of defence for the returned candidate. 58. 5. In my opinion these variations between the original arid the copy are sure to mislead the returned candidate and prejudice him in his defence. These differences do render the copy delivered to respondent No. 1 not a true copy of the original election petition. 58. 5. In my opinion these variations between the original arid the copy are sure to mislead the returned candidate and prejudice him in his defence. These differences do render the copy delivered to respondent No. 1 not a true copy of the original election petition. The above facts squarely attracts the applicability of the law laid down in Murarka Radhey Sham Ram Kishan's case (supra), Jagat kishore's case (supra) and Mithilesh Kumar' case ( supra)58. 6 There was nothing wrong in the original election petition being typewritten and thereafter stencil having been prepared of the text of the election petition for securing as many copies as were required. It appears that the contents of the stencil paper were not satisfactorily compared with the original and. there the casualty took place. 58. 7. It is held that the petition filed by the petitioner was not accompanied by the requisite number of true copies. There is non-compliance with Sec. 81 (3) of the act. The petition is, therefore, liable to be dismissed by reference to Sec. 86 of the act ( 55 ) 59. The petition is dismissed. In the facts and circumstances of the case and as the/petition is being dismissed before trial there shall be no order as to costs.