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1996 DIGILAW 171 (KER)

Harischandra v. S. K. Mohammed

1996-03-28

N.DHINAKAR

body1996
ORDER: - Petitioner is the successful candidate in the election to the Manjeshwar Block Panchayat which was held on 23-9-1995. 2. The 1st respondent, an unsuccessful candidate filed O.P. No. 28 of 1995 before the District Judge, Kasaragod, challenging the election of the petitioner under Section 89 of the Kerala Panchayat Raj Act (for short 'the Act'). 3. Petitioner on receipt of notice on the election petition appeared before the District Judge and raised two objections contending that the provisions of Section 89 of the Act were not complied with. His objection was that what was served upon him was not the true copy of the election petition filed under Section 89(1) of the Act and hence there was no compliance with the provisions of Section 89(2) of the Act. According to the petitioner, in the copy, served upon him the words "true copy" were not found written though the 1st respondent has affixed his signature. His further objection before the trial Court was that the documents filed along with the original petition were not furnished to him along with the copy of the election petition as according to him, the documents form integral part of the petition and as such there is violation of the provisions of Section 89(2) of the Act. The learned District Judge on consideration of the objections raised by the petitioner and after an elaborate discussion, by his order dated 5-12-1995 rejected the said contentions and hence this original petition. 4. Counsel for the petitioner submits that Section 89(2) of the Act is a self-contained section and is independent of Section 89(1) of the Act as Section 89(1) provides for filing of the O.P. and Section 89(2) provides for furnishing copies of the petition filed under Section 89(1) and non-compliance of Section 89(2) is fatal. Section 89(2) of the Act reads as follows: "89(2). 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." Relying upon the words "true copy" occurring in Section 89(2) the counsel contends that there is non-compliance of Section 89(2) as the copy served upon him did not contain the words "true copy" though the 1st respondent has affixed his signature in the, said copy. He would further contend that even if it is assumed that the words 'true copy' are not necessarily to be written, the copy supplied to him was not a true copy because the copy served upon him is not identical to the one filed in the Court as the signature of the advocate at page 4 as found in the original is missing in the copy served upon him. In support of the above contentions the petitioner relies upon the judgments of the. Supreme Court in Sharif-ud-Bin v. Abdul Gani Lone, AIR 1980 SC 303 and Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169: (1996 AIR SCW 145). In the first case the Supreme Court was interpreting Section 89(3) of the Jammu and Kashmir Representation of the People Act (Act 4 of 1957) which is in pari materia to Section 81(3) of the Representation of the People Act, 1951. It is to be noted that Section 89(2) of the Act is in pari materin to Section 81(3) of 1951 Act. I am afraid that on the facts of this case the two decisions referred to and relied upon by the counsel for the petitioner do not help the petitioner's contention. In 1Pe first case referred to above the Supreme Court while interpreting sub-section (3) of Section 89 of the Jammu and Kashmir Representation of the People Act observed that the said sub- section provides that every copy of the petition shall be attested by the petitioner under his own signature to be a true copy of the petition and that the emphasis in the above provision is on the words "under his own signature". The Supreme Court further observed that the object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appears to be that the petitioner should take full responsibility for its contents and that the respondent or respondent so should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into Court. In the said case before the Supreme Court the copies were attested not by the petitioner, but his advocate and under the circumstances the Supreme Court came to the conclusion that a respondent in an election petition will not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself. The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. It is not in dispute in this case that the 1st respondent has attested all the copies with his own signature. So, the judgment of the Supreme Court referred to above will not apply to the facts of this case. It will not be out of place at this stage to refer to a judgment by a larger Bench of the Supreme Court in Ch. Subbarao v. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027. In the above case a similar question arose before the Supreme Court. An election petition filed was accompanied by the number of copies required to accompany the petition under Section 81(3) of the Representation of the People Act, 1951. The election petition was type written and the copies which accompanied the petition were carbon copies of the type-script. The copies bore two signatures in original of the Election Petitioner authenticating both the contents of the petition as well as the verification thereof. The petitioner did not however insert the words "true copy" before or above his signatures. When an objection was raised about the non-insertion of the words "true copy" the Supreme Court held that if the signature of the petitioner whose name was set out in the body of the petition was appended at the end, surely it authenticated the contents of the documents. If the signatures found on the copies were intended to authenticate the document to which it was appended, viz. the copy, it would only mean that the copy did not reproduce the signature in the original. If the signatures found on the copies were intended to authenticate the document to which it was appended, viz. the copy, it would only mean that the copy did not reproduce the signature in the original. The Supreme Court further stated that there was no compelling necessity to hold that the signature were merely intended to be a copy of those on the original in order to spell out a non-compliance with Section 81(3), seeing that a signature in the original was not needed on the copy and a writing copying out the name of the signatory would suffice. The absence of writing in the copy indicating the signature in the original would not detract the copy from being a true copy. Ultimately the Supreme Court held that there was substantial compliance of the section. I am, therefore, of the view that the contention of the petitioner that there was non-compliance of Section 89(2) because of the absence of the words "true copy" cannot be accepted and accordingly the said contention is rejected. 5. The other contention of the petitioner is that what was served upon him was not a true copy of the petition, as though at page 4 of the O.P. the signature of the advocate is found it is not seen in the copy received by him. In short, he would contend that the copy received by him is not identical to the one which was filed in Court. In support of his plea he relies upon the judgment of the Supreme Court, as stated above, in Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169 : (1996 AIR SCW 145). In the above case, the Supreme Court has held that the object of Section 81(3) of the Representation of the People Act, 1951, is clearly to ensure that each respondent to the election petition gets an identical copy of the election petition as presented in the Court to acquaint the respondent with the actual and full contents of the election petition as it is presented in the Court. On the basis of the identical copy each respondent can prepare his defence and also take the plea of deficiency, if any, in the contents of the election petition with reference to Section 83 of the Representation of the People Act, in order to apply in the Court for action being taken under Order 7, Rule 11 or Order 6, Rule 16, C.P.C. as the case may be. According to the petitioner's counsel, the Supreme Court has stated that the respondent should get identical copies of the election petition and as the copy received by the petitioner is not identical in nature there is no compliance of Section 89(2). I am not able to agree with this contention of the petitioner also. It is to be noted that the context in which the words "identical copy'" were used by the Supreme Court. In my view, the Supreme Court was only making an emphasis that the true copies must be identical in its contents and not in its form of the election petition presented in the Court, so that the petitioner can prepare his defence and also take the plea of deficiency, if any, in the contents of the election petition. I am of the view that 'true copy' only means, it must be a true copy of the contents of the documents and it need not necessarily be a carbon copy. Section 89(2) of the Act requires attestation only by the petitioner and not by an advocate. Even in the absence of a signature of the counsel in the copy a petition will not become defective and it will be still a true copy of the contents of the original election petition as long as it contains the signature of the petitioner. In this context the following observations of the Supreme Court in Ch. Subbarao v. Member, Elelctioh Tribunal, AIR 1964 SC 1027 will be relevant: "If the signatory now found on the copies were intended to authenticate the document to which it was appended viz, the copy, it would only mean that the copy did not reproduce the signature in the original. Subbarao v. Member, Elelctioh Tribunal, AIR 1964 SC 1027 will be relevant: "If the signatory now found on the copies were intended to authenticate the document to which it was appended viz, the copy, it would only mean that the copy did not reproduce the signature in the original. There was no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-complaince with Section 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signature would suffice. The absense of a writing in a copy indicating that a signature in the original would not detract the copy from being a true copy." (Emphasis supplied) In Murarka Radhey Shyam Ram Kumar v. I. Roop Singh Rathore, AIR 1964 SC 1545 the Supreme Court while interpreting the word "copy" occurring in Section 81(3) of the Act 1951 which is in pari materia to Section 89(2) of the Act held that the word 'copy' in sub- section (3) of Section 81 does not mean an absolutely exact copy, but mean that the copy shall be so true that nobody can by any possibility misunderstand it and the test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. When we apply the above principle it is clear that the absence of the signature of the advocate in the copy supplied to the petitioner though it was affixed in page 4 of the original petition will not mean that there is non-compliance of Section 89(2) as the petitioner was in no way misled and that there was no possibility of misunderstanding the O.P. by the petitioner. What is required to be complied with under Section 89(2) of the Act is that the copy must be attested by the petitioner with his signature to show that it is the true copy of the original and that the said section does not require that wherever signatures were affixed in the original the copies also should contain the signatures as the signatures were not intended to be copies of those on the original. In my view all that is required under Section 89(2) is, that the copy must be identical in its substance and not in its form. In my view all that is required under Section 89(2) is, that the copy must be identical in its substance and not in its form. 6. The next contention of the petitioner is that the documents shown to have been produced along with the election petition were not served upon him along with the copy of the petition and hence there is non-compliance with Section 89(2) as the said documents, in his view, form integral part of the petition. Though the law requires that annexures and schedules which form integral part of the petition have to be served on the respondents, it will not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back or produced or filed with the election petition. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. (Vide Smt. Sahodrabai Raj v. Ram Singh Aharwar, AIR 1968 SC 1079). It is now a well settled principle that if the documents by themselves form part of the petition then copies of such documents must be furnished to the petitioner. Though Section 89(2) does not refer to the words 'annexures or schedule, it is referred to in sub-section (2) of Section 91 which reads as follows: "91(2). Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." As observed in Panna v. Mukhtiar Singh, AIR 1972 Punj and Har 451 'annexure' is something which is added, joined or attached, affixed or appended. The mere fact, however, that a document or paper is annexed to the petition, would not, necessarily make it a part of the petition in all cases. Placing strong reliance on M. Karunanidhi v. H.V. Handa, AIR 1983 SC 558 counsel for the petitioner contends that the documents filed along with the O.P. form integral part of the election petition and non-furnishing of the said documents has resulted in non-compliance of Section 89(2). I am afraid that the facts in the present case do not attract the above ruling of the Supreme Court. In the above case an election petition was filed with an allegation related to an expenditure of about Rs. I am afraid that the facts in the present case do not attract the above ruling of the Supreme Court. In the above case an election petition was filed with an allegation related to an expenditure of about Rs. 50,000/- in erecting fancy banners throughout the constituency and it was alleged that there were such fancy banners about 50 in number, the cost of each banner being not less than Rs. 1,000/-. It was averred that a photograph of one such banner was filed along with the petition and that though the petitioner had filed with the election petition a photograph of one such banner, a copy of the photograph was not annexed to the copy of the petition furnished to the respondent. Under the above circumstances the Supreme Court held that the photograph was a part of the averment contained in the petition and in the absence of the photograph the averment contained in the petition would be incomplete and therefore the photograph was an integral part of the election petition. A perusal of the election petition in this case would show that what was produced with the election petition were four documents, viz., (1) proceedings of the Returning Officer, (2) Office copy of the request of recounting, (3) identity card and (4) issue of ballot papers. In my view, as the 1st respondent has filed the election petition alleging irregularities in the counting of votes, the documents stated above will not form integral part of the petition. The election petition was filed not because the Returning Officer rejected the 1st respondent's prayer for recounting, but only on the ground that there were irregularities in the counting of votes. The contents of the documents, I feel, do not form integral part of the petition and that they can at best show that the 1st respondent moved the electoral officer for a recounting. I hold that the documents filed along with the petition are not actual part of the petition as annexure and as such the non-furnishing of the documents has not resulted in any violation of Section 89(2) of the Act. I hold that the documents filed along with the petition are not actual part of the petition as annexure and as such the non-furnishing of the documents has not resulted in any violation of Section 89(2) of the Act. For the reasons stated above I hold that the decisions relied upon by the learned counsel in Mohan Rawale v. Damodar Tatyaba alias Dadasaheb, (1994) 2 SCC 392 : (1994 AIR SCW 2028) and M.I. Shanavas v. Returning Officer, (1987) 2 Ker LT 530 are not applicable to the facts of this case and hence this contention of the petitioner also fails. 7. In the result the O.P. is dismissed. The parties will bear their respective costs. Petition dismissed.