Meethian v. Poulose — 1996 DIGILAW 347 (KER)

Judgment :- Balasubramanyan, J. This Election Petition relating to the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency was filed in this Court on 21.6.1996. The results of the election having been announced on 5.8.1996 it was within time. The Election Petition contained a prayer for 'setting aside the election by the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency' . The office noted certain defects in the Election Petition and returned the Election Petition for curing the defects the same day. The following defects were noted. 1. Description of Annexures is incomplete and wrong. 2. English translation of Annexures not filed. 3. Exhibits are not legible. 4. It may be clarified whether the relief sought is in accordance with the R.P. Act. 5. Chalan number may be shown correctly. Some of the defects were cured, the relief claimed was modified and the Election Petition was re-presented on 27. 6.1996 with an assurance that English translation of Annexure I will be produced at the time of evidence. 27.6.1996 was obviously beyond the time fixed for the filing of an Election Petition under S.81(1) of the Representation of the People Act. On 27.6.1996, the office again returned the Election Petition with the endorsement 'defects subsist. Returned'. The Election Petition was re-presented the same day with an endorsement 'defect cured and re-presented'. It is not possible to find out from the relevant endorsements what exactly were the defects that were cured while originally re-presenting the Election Petition and what were the defects that subsisted which were cured when the Election Petition was returned once again. Thereafter, the Election Petition was posted on 1.7.1996 before the judge assigned by the Chief Justice for exercise of jurisdiction under the Act. The learned judge ordered issue of summons to the respondent in terms of R.210 of the Rules of the High Court of Kerala. The Election Petition was posted to 23.7.1996. On 23.7.1996 the respondent appeared through counsel and sought to raise a preliminary objection regarding the presentation of the petition and on the basis of the copies of the Election Petition served on the respondent. The Election Petition was adjourned to 29.7.1996. The Election Petition was posted to 23.7.1996. On 23.7.1996 the respondent appeared through counsel and sought to raise a preliminary objection regarding the presentation of the petition and on the basis of the copies of the Election Petition served on the respondent. The Election Petition was adjourned to 29.7.1996. On 29.7.1996, one of the copies of the Election Petition served on the respondent was produced before Court by counsel for the respondent who also submitted that he would be making a formal application for marking that copy in evidence. According to counsel for the respondent the copy served on him was not a true copy of the original and going by the prayer in the copy served on the respondent, it had to be taken that no proper Election Petition had been filed within the time prescribed by S.81 of the Act. In the copy so served on the respondent and produced before me on 29.7.1996, the main prayer read as follows: "Declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency". He also adopted the stand that the Registry of High Court had no authority to return the Election Petition for curing the defects and that in any event in the present case the Election Petition was re-presented after the period fixed in S.81(1) of the Act and consequently the Election Petition must be held to be out of time. He also submitted that Annexure-III was not signed as true copy and in Annexure III-A there was no endorsement or certification that it was a true copy of the original. Since counsel for the Election Petitioner wanted time to consider the position emerging from the aspects pointed out by counsel for the respondent and since the senior counsel appearing for the respondent was slightly indisposed, the Election Petition was posted to 30.7.1996 for consideration of the preliminary objections. On 30.7.1996, in the light of the submissions, in discussion with counsel on either side six preliminary issues were framed and arguments were commenced on those issues. 2. At this stage, it has become necessary to advert to one unfortunate incident that occurred during the arguments on 30.7.1996. Senior counsel for the petitioner wanted to have a look at one of the copies of the Election Petition served on the respondent which he had produced before the Court on 29.7.1996. 2. At this stage, it has become necessary to advert to one unfortunate incident that occurred during the arguments on 30.7.1996. Senior counsel for the petitioner wanted to have a look at one of the copies of the Election Petition served on the respondent which he had produced before the Court on 29.7.1996. At the time the copy was given to Senior counsel for the Election Petitioner by the Court, the prayer in the copy read as follows: "Declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency". Learned counsel verified the omission which was in the prayer which was rather obvious in that there was no declaration sought of the election concerned 'to be void'. In the original, of course, the words 'to be void' had been written up. But the same had been not added to the copy. After scrutinizing the copy and addressing arguments by accepting the position that the copy contained only a prayer to the following effect: 'to declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency'. the copy was returned at the close of the inconclusive arguments on the preliminary aspects. But while returning the copy it was brought to the notice of the court that the words 'to be void' had been unauthorisedly added to the prayer in the copy. When this was pointed out to the Senior Counsel appearing for the petitioner and he was informed that this amounted to tampering with the records in the Court, Senior Counsel explained with an apology that the said words had been added by his junior under the bonafide impression that the copy he was correcting was the office copy kept in the file and without realising that he was supplying the words in the copy served on the respondent, produced by counsel for the respondent before Court and given by Court to Senior Counsel for the Election Petitioner to verify the prayer that existed in the copy served on the respondent. To put the records straight regarding this aspect, this Court contemporaneously passed an order clarifying that the prayer in the copy of the Election Petition served on the respondent and subsequently tampered with by counsel for the Election Petitioner was only to the following effect: "To declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency". During the course of the argument counsel for the Election Petitioner had also called upon counsel for the respondent to produce the second copy of the Election Petition served on the respondent so as to enable the court to understand whether the omission of the words 'to be void' was only in one of the copies or in both the copies. The matter was adjourned to 31.7.1996 for further arguments. On 31.7.1996, counsel for the respondent produced the second copy of the Election Petition served on the respondent in terms of R.210 of the Rules of the High Court of Kerala along with a memo with a request that the copies served on the respondent may be marked formally in the proceedings so as to enable the Court to appreciate fully the preliminary arguments sought to be raised. Arguments were continued. The envelope in which the 2nd copy was sent to the respondent was also produced. For the purpose of convenience I have marked the copy that was produced before the Court by counsel for the respondent on 29.7.1996 as Ext. X1, the copy served on the respondent through post and produced on his behalf on 31.7.1996 as Ext. X2 and the envelope in which that copy was sent to the respondent as Ext. X2(a). On completion of arguments on 31.7.1996, the Election Petition was posted to 12.8.1996 for finding on the preliminary issues. 3. As emerging from the arguments addressed before me, the following issues were framed as preliminary issues: 1. Whether the Registry of the High Court has authority to return an Election Petition for curing defects? 2. Whether the re-presentation of the Election Petition after curing the defects, after the period specified in S.81 of the Act, is fatal? 3. Whether there is a proper prayer in the Election Petition in the light of the copy served on the respondent? 4. Whether the copies served on the respondent are true copies of their original? 5. 2. Whether the re-presentation of the Election Petition after curing the defects, after the period specified in S.81 of the Act, is fatal? 3. Whether there is a proper prayer in the Election Petition in the light of the copy served on the respondent? 4. Whether the copies served on the respondent are true copies of their original? 5. Whether the absence of attestation as true copy in Annexure III A is fatal? 6. Whether on the averments in the Election Petition a cause of action is made out?" 4. I shall proceed to answer these issues one by one. Issues 1 and 2 For the purpose of convenience issues 1 and 2 may be considered together. As noticed, the Election Petition was filed on 21.6.1996, with certain defects. The Registry presumably in exercise of the power vested in the Registrar under R.15(2) of the Rules of the High Court of Kerala returned the Election Petition for curing those defects. The Election Petition was re-presented on 27.6.1996 which was a date beyond the time prescribed by S.81(1) of the Act. A Division Bench of this Court in Kaveri Amma v. Smt. Devaki N. Devadiga (1996 (1) KLJ 845) had held that the Registry had no power to return on Election Petition for curing defects. The Election Petition involved in the decision of course relating to an Election Petition filed under S.88(a) and 89 of the Kerala Panchayat Raj Act. S.89(1) provided for the filing of an Election Petition to be presented on one or more of the grounds specified in S.102 and 103 of that Act to the appropriate Court as specified in S.88 of the Act within 30 days from the date on which the returned candidates was declared elected. Sub-s.2 of S.89 more or less corresponded to S.81(3) of the Act. The Division Bench was considering the correctness of the decision of the Single Bench reported in Devaki v. Kaveri Amma (1996 (1) KLT 130) wherein a learned Single Judge had held that an Election Petition filed under the Panchayat Raj Act containing defects which may be violative of the mandatory provisions of the Act could not be permitted to be cured by the Election Petitioner after service of notice on the respondent in the Election Petition even if the time fixed for challenging the election had not expired. The learned Single Judge relied on the decision of the Supreme Court in Sharif-ud-Din v. Abdul Gani Lone (AIR 1980 SC 303) in support of the position that the copy served on the respondent in an Election Petition could be made the foundation of his defence by the respondent. Relying on the decision of the Supreme Court in Satya Narain v. Dhuja Ram and Ors. (AIR 1974 SC 1185) to the effect that the Registrar or Deputy Registrar of the High Court has no powers under the High Court Rules to permit correction or removal of defects in an Election Petition beyond the period of limitation, the learned judge held that the permitting of the curing of the defects in that case was improper and the Election Petition ought to be dismissed. But in appeal, the Division Bench proceeded on the basis that under no circumstances the Registry would have a power to return an Election Petition for curing the defects. The Division Bench stated as follows: "Election Petition should comply with the form. It should also contain the contentions raised by the petitioner for setting aside the election. The contentions so raised by the petitioner in the averments can be treated as contents. The contents of an election petition may be open to the amendment as provided in the Act. Those provisions relating to amendment of the contents of the petition cannot apply to the form of petition. When the petition as on date of filing is not in conformity with the form, then that petition has only to be dismissed. No opportunity can be given to the petitioner to carry out amendment of the form to make it in conformity with the statutory requirement". The Division Bench also observed: "If an Election Petition happened to be one filed in violation of the form prescribed by the Act, that cannot be allowed to be withdrawn for a proper one to be filed within the time fixed for filing the same. A petition under S.69 can be withdrawn only as per the provisions contained in Ss.108,109 and 110 of the Act... A petition filed under S.89 should comply with all the requirements of that section. If the petition fails to comply with all the requirements of that section, that petition entails dismissal. A petition under S.69 can be withdrawn only as per the provisions contained in Ss.108,109 and 110 of the Act... A petition filed under S.89 should comply with all the requirements of that section. If the petition fails to comply with all the requirements of that section, that petition entails dismissal. It cannot be allowed to be withdrawn for enabling the petitioner to file a proper petition in confirmity with the provisions contained in S.89(2). Provision contained in S.89(2), is too technical, but technicalities have to be strictly complied with by the petitioner, if the petition is to be taken on file". These decisions were relied on by counsel for the respondent to contend that the representation of the Election Petition subsequent to the period prescribed by S.81(1) of the Act after curing the defects has to be ignored and the Election Petition as originally filed on 21.6.1996 has only to be dismissed as defective. Itis true that the Division Bench in KaveriAmma 's Case was not dealing with an Election Petition filed in the High Court nor had it occasion to consider the effect of R.15(2) of the Rules of High Coon of Kerala and R.210 of the Rules of the High Court of Kerala dealing with Election Petitions. It may therefore be relevant to consider the position regarding an Election Petition filed under the Act in the High Court. 4. Chapter II of the Act deals with the presentation of Election Pentium. In the High Court. Chapter III deals with the trial of such petitions. S.80 of the Act provides that no election shall be called in question except by an Election Petition presented in accordance with the provisions of this Part. S.81 deals with the presentation of the petitions. It is prescribed that an Election Petition can be presented on one or more of the grounds specified in S.100(1) and S.101 by any candidate or elector within 45 days from but not earlier than the date of election of the returned candidate. Sub-s.3 of S.81 prescribes that every Election Petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy should be attested by the petitioner under his own signature to be a true copy of the petition. S.82 deals with the parties to be impleaded and S.83 deals with the contents of an Election Petition. S.82 deals with the parties to be impleaded and S.83 deals with the contents of an Election Petition. Clause (c) of S.83(1) provides that an Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The proviso thereto deals with allegations of corrupt practices. Sub-s.2 of S.83 insists that any Schedule or Annexure to the petition should also be signed and verified by the petitioner. S.86 of the Act provides for the procedure for the trial of the Election Petitions. But, sub-s.1 of S.86 insists that the High Court shall dismiss an Election Petition which does not comply with the provisions of S.81 or S.82 or S.117 of the Act S.87 provides that subject to the provisions of the Act and the Rules made thereunder, every Election Petition should be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. 5. The Kerala High Court Act 1958 was enacted to make provision regulating the business and exercise of powers of the High Court. Rules of the High Court of Kerala are framed by virtue of the powers conferred on the High Court by Art.225 of the Constitution of India, S.122 of the Code of Civil Procedure and all other powers enabling the High Court in that behalf. Rules of the High Court lays down the procedure to be folio wed by the High Court in the matter of institution of any proceeding in the High Court and the matters connected therewith. In that process, certain powers and duties have been conferred on the Registrar of the High Court by Rr.15 and 16. Under sub-r.2 of R.15 there is a power to return for curing the defects, any petition, the presentation of which is detective by reason of failure to comply with the prescribed procedure. This is obviously the general power. The procedure relating to Election Petitions are dealt with in Chapter XVI of the High Court Rules. R.208 directs that every Election Petition shall be registered as 'Election Petition' and sivena separate number. R.209 insists that every Election Petition shall contain information as to the date of election of the returned candidate. This is obviously the general power. The procedure relating to Election Petitions are dealt with in Chapter XVI of the High Court Rules. R.208 directs that every Election Petition shall be registered as 'Election Petition' and sivena separate number. R.209 insists that every Election Petition shall contain information as to the date of election of the returned candidate. Then comes R.210, which provides that immediately after registering, the petition is to be placed before the judge for such orders as may be required to be passed under S.86 of the Act. S.86(2) of the Act also provides that the Election Petition presented to the High Court shall be referred to the assigned judge, as soon as may be, after it is presented. The Judge is then entitled to exercise his powers under S.86(1) of the Act. R.210 therefore, provides mat if the petition is not dismissed under S.86(1) of the Act a summons on the direction of the judge shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim made in the petition. This clearly shows that under the scheme of the Rules, the judge could dismiss the election Petition even before ordering service of summons to the respondents, this is obvious from the scheme of S.86 of the Act as well. There is therefore some merit in the contention of counsel for the respondent that in view of R.210 of the Rules of the High Court of Kerala, even in the first instance the Registry is bound to place the Election petition as filed before the judge for appropriate orders. Under S.86(1) the judge is given the power to dismiss an Election Petition which does not comply with the provisions of S.81 or S.82 or S.117 of the Act. Clearly therefore, scrutiny contemplated by R.210 of the Rules of the High Court of Kerala consistent with. 86(1) 'the Act is by the judge assigned and could not undertaken by the Registry. But it is so clear from R.210 that the petition is to be placed before the judge immediately after registering the petition. The registering of the petition can be undertaken by the Registry only on it being satisfied that the Election Petition conforms to the form prescribed by ; Act and the relevant Rules in that behalf. But it is so clear from R.210 that the petition is to be placed before the judge immediately after registering the petition. The registering of the petition can be undertaken by the Registry only on it being satisfied that the Election Petition conforms to the form prescribed by ; Act and the relevant Rules in that behalf. Whereas counsel for the petitioner contends it until the Election Petition is registered, there is nothing in the Rules relating to Election Petitions which makes an inroad into the power available to the Registry under 15 of the High Court Rules, counsel for the respondent contends that even the registering of the petition in terms of R.208 of the High Court Rules could be made by the Registry only after placing the Election Petition as filed, before the judge concerned. Learned counsel for the respondent also points out that when an Election Petition is filed On the last day it may contain fatal defects which may or may not have been noticed by The Registry and on the return of the Election Petition for the curing of some minor defect, petitioner may discover the fatal defect and cure the same and re-present the petition after the period prescribed in S.81(1) of the Act and there will be no means of knowing whether any such thing has been done, if the power is given to the Registry to return the Election Petition by itself, for curing of defects by the petitioner. 6. On the scheme of things it is clear that there are defects which are not very material and there are defects which are fatal. Whether a particular defect is material or not material is essentially a matter for judicial decision in the light of the various decisions of the Supreme Court brought to my notice. There may be cases in which an Election Petition is filed on the last day in terms of S.81(1) of the Act and which may contain a defect which may not be fatal. There may be cases in which an Election Petition is filed on the last day in terms of S.81(1) of the Act and which may contain a defect which may not be fatal. If the Election Petition is returned for curing of the defects after the period prescribed in S.81(1) of the Act and it is re-presented after curing the defects, question would then arise whether the Election Petition could be deemed to be filed in time or out of time, and that will depend, upon the nature of the defect that existed while the petition was originally filed. S.86(1) of the Act makes it clear that an Election Petition ought to be dismissed for non-compliance with Ss.81 or 82 or 117 of the Act. S.117 relates to the security for costs and S.82 relates to the joinder of necessary parties. S.81(1) deals with two aspects. One, whether one or more of the grounds specified in S.100(1) and S.101 of the Act exist and the second, whether it is filed within 45 days from the date of the election of the returned candidate. Sub-s.2 of the S.81 has been omitted and sub-s.3 of S.81 insists 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. Thus, there could exist under S.81 at least two preliminary fatal defects in an Election Petition, it being either out of time or it being violative of sub-s.3 of S.81 of the Act. Existence or otherwise of the ground may be one of the aspects that may have to be considered by the judge while actually dealing with the petition under S.86(1) of the Act. It could also be that the necessary parties have not been impleaded in the Election Petition though filed within time. That defect would also be fatal to be Election Petition. There is therefore, a possibility of defects existing in the Election Petition filed which might be fatal. It could also be that the necessary parties have not been impleaded in the Election Petition though filed within time. That defect would also be fatal to be Election Petition. There is therefore, a possibility of defects existing in the Election Petition filed which might be fatal. It therefore, appears to me that the proper course to follow for the Registry would be to note the defects that have come to its notice on the Election Petition and place it for orders before the judge assigned, and not to undertake the return of Election Petition on its own for the curing of defects by the election petitioner. This in my view would ensure that the defects which may be fatal, are not permitted to be cured after the expiry of the period fixed in S.81(1) of the Act and at the same time, after a judicial scrutiny, such defects as are not fatal being permitted to be cured so as to ensure a fair trial and disposal of the Election Petition. But at the same time, it is difficult to hold that in the scheme of R.15(2) of the High Court Rules read with Rr. 208 to 210 of the High Court Rules the Registry of the High Court does not have the power at all to return an Election Petition for curing the defects after noting in detail what the defects are. Even if the petitioner is permitted to cure those defects and represent the Election Petition, nothing would stand in the way of the judge assigned scrutinizing the defects, time of return by the Registry and the time of re-presentation by the petitioner to arrive at a decision for himself as to whether the defects were fatal, leading to a rejection of the Election Petition under S.86(1) of the Act or deciding to proceed with it by directing issue of summons to the respondent. But I must observe that this view of mine runs counter to the view taken by the Division Bench, though in connection with the filing of an Election Petition under the Panchayat Raj Act before the Munsiff s Court and there is R.32 of the Civil Rules of Practice permitting return of a plaint, petition or Memorandum of Appeal filed„ for the purpose of curing the defects though there appears to be no provision in the Civil Rules of Practice separately providing for Election Petitions filed under the earlier Panchayat Act or under the Panchayat Raj Act. The view of the Di vision Bench is supported by the observations of the Supreme Court in the decision under the Act, in Satya Narain v. Dhuja Ram (AIR 1974 SC 1185) wherein in paragraph 18 of the majority judgment it is clearly stated: "We may only add here that, 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 provided for under the Act. It may be noted that S.169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub-s.(3) thereof the rules have to be laid before each house of Parliament in the manner provided therein. The only reference to the High Court Rules is found in S.117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules reference to in the judgment in the High Court in this case". The Supreme Court was affirming the decision of the High Court of Punjab and Haryana in the decision in Satya Narain v. Dhuja Ram (AIR 1973 P&H 431) wherein Mr. Justice R.S. Narula relying on the decision of the Supreme Court in Mohan Raj v. Surendra Kumar Taparia (AIR 1969 SC 677) held that the Registrar is not conferred with any authority to permit the rectification of a defect under Ss.81,82 or 117 of the Act even within the period of limitation. Justice R.S. Narula relying on the decision of the Supreme Court in Mohan Raj v. Surendra Kumar Taparia (AIR 1969 SC 677) held that the Registrar is not conferred with any authority to permit the rectification of a defect under Ss.81,82 or 117 of the Act even within the period of limitation. It therefore, appears to me that the distinction between defect of want of compliance with S.81, 82 and 117 of the Act and want of compliance of other requirements while filing, is real and there may not be any bar in the other defects being permitted to be cured. But in view of the decision of the Division Bench, I do not think it appropriate to follow this line of reasoning further and I answer issue No.1 by holding that the Registry had no authority to return the Election Petition for curing the defects in this case especially when it relates to the sufficiency or otherwise of the prayer in the Election Petition attracting the requirements of Section 81 of the Act itself. 7. Even if the Registry had the power to permit the defects to be cured, in the light of the various decisions of the Supreme Court brought to my notice, it could be said that all the defects are not fatal but only some of them are. B ut if the defect noted by the office at the inception is found to be fatal on a scrutiny by the assigned judge and the Election Petition is seen re-presented after the period prescribed in S.81(1) of the Act, it is clear that the Election Petition re-presented after the period specified in S.81 of the Act will have to be rejected. This scrutiny, in my view. has to be undertaken by the assigned judge before ordering issuance of summons under S.86(1) of the Act and of course after giving the petitioner an opportunity of being heard on the question whether the defect involved is a fatal one or not. If the defect is found to be fatal, the Election Petition can only entail a dismissal at the hands of the assigned judge under S.86(1) of the Act. My answer to issue No. 2 therefore, is that the re-presentation of an Election Petition after curing the defects would be fatal when the defects are such as arising from non-compliance with Ss.81,82 or 117 of the Act. My answer to issue No. 2 therefore, is that the re-presentation of an Election Petition after curing the defects would be fatal when the defects are such as arising from non-compliance with Ss.81,82 or 117 of the Act. But if the defects are not those defects coming within the purview of Ss.81,82 and 117 of the Act, the re-presentation of the petition after curing such defects, would not be fatal to the Election Petition. Issues 3 & 4 In the nature of the issues raised and in the nature of the contentions put forward, these issues can be considered together. It is by now well settled that the respondent in an Election Petition is entitled to rely on the copy of the Election petition served on him and is entitled to proceed with his defence of the Election Petition on that basis. In that context, the first question for consideration is whether there is a proper prayer in the Election Petition as per the copy served on the respondent. The prayer as per the copy served on the respondent is only 'to declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency'. According to learned counsel for the respondent, the respondent has been declared elected by the concerned authority under the Act and the prayer made to court does not in any manner harm him or oblige him to come and defend the Election Petition. Learned counsel for the Election Petition has no contention that the prayer in the Election Petition as shown in the copies served on the respondent is not a proper prayer. In fact according to counsel, the prayer is an absurd one and his only argument is that the respondent on seeing the prayer, could not have been misled, if he had also adverted to the other portions of the Election Petition which would have clearly indicated to him that his election was being challenged before court. In the original as corrected pursuant to the return by the registry, the prayer is 'to declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency to be void'. In the original as corrected pursuant to the return by the registry, the prayer is 'to declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency to be void'. The omission of the words 'to be void' from the prayer in the copies served on the respondent is certainly a deviation from the original and therefore, on issue No. 4 it has to be held that the copies served on the respondent are not true copies of the original. In Dr. (Smt.) Slupra etc. etc. v. Shanti Lai Khoiwal etc. etc. UT 1996 (5) 8 SC 681) the Supreme Court has explained mat the test to see whether a copy is a true one is to see whether there exists any deviation from the original which is calculated to mislead an ordinary person and that a true copy is a transcript identical or substitute to the original but not absolutely exact copy. In that case, the omission was of the attestation in the affidavit in the copy served and the Supreme Court held that the view of the High Court that the Election Petition was not maintainable due to the material defect in the true copy of the affidavit which was an integral part of the Election Petition, was correct. Mr. Justice Bharucha in his concurring judgment observed: "The document purporting to be a true copy of the election petition furnished by the appellant to the respondent gave the impression that the appellant's affidavit supporting his allegations of corrupt practice had not been sworn or affirmed and was, therefore, no affidavit at all, it misled in a material particular and its supply was, as the High Court held, fatal to the election petition". Mr. Justice Paripoornan in his concurring judgment quoted with approval the observations of Qazi, J. in Purushottam v. Returning Officer, Amravati and Ors. (AIR 1992 Bombay 227) to the following effect: "If the copies of the affidavit are not faithful and do not include these endorsements a valuable right of the respondent is taken away and considering the purpose which the copy of the endorsement would serve, it cannot be said that this portion would not be integral part of the affidavit. (AIR 1992 Bombay 227) to the following effect: "If the copies of the affidavit are not faithful and do not include these endorsements a valuable right of the respondent is taken away and considering the purpose which the copy of the endorsement would serve, it cannot be said that this portion would not be integral part of the affidavit. Since these details form an integral part of the affidavit, furnishing a copy without that portion would not be furnishing a complete copy, and in that event, merely because the returned candidate made an endorsement that it was a true copy, it cannot be regarded as a true copy. Considering the purpose that is to be served, I do not think that the lapse can be regarded as inconsequential". Tested in the light of the principles laid down in the above case, it is clear that the copies served on the respondent are not true copies of the Original Election Petition and that they do not contain a proper prayer for declaring the election void as having been filed within time provided by S.81(1) of the Act, In other words, the respondent could legitimately urge that there was no prayer to declare his election void made within time before the High Court in terms of Ss.80 and 81 of the Act. 8. The only argument attempted by counsel for the Election Petition is that the prayer on the face of it is absurd and therefore, there would have been no difficulty for the respondent to realise that fact and in view of the allegations in the Election Petition the respondent could not have been misled in his defence to the Election Petition which was essentially one challenging his election. In the light of the decision in Dr. (Smt.) Shipra 's case referred to above, I am not in a position to accept this argument. It is not merely a question of whether the respondent is misled or not misled. It is also a question of whether the copies served on him in terms of S.81(3) of the Act are true copies of the original and whether those copies served suffer from any serious defect. It is not merely a question of whether the respondent is misled or not misled. It is also a question of whether the copies served on him in terms of S.81(3) of the Act are true copies of the original and whether those copies served suffer from any serious defect. Though endorsed as a true copy, the copy of the petition served on the respondent did not contain an effective prayer for declaring his election void and that in my view enclose him to contend that there was no effective election Petition at all filed against him challenging his election. 9. Learned counsel for the election petitioner finally contended that if this court were to take the view that the Registry could not have returned the Election Petition for curing of defects, then it must be taken that the Election Petition contained a prayer for settling aside the election of the respondent from the Constituency in question and a prayer for setting aside would substantially comply with the requirement of the statute which no doubt states that a declaration that the election is void has to be sought. But I am afraid that this submission also cannot be accepted because going by the copies that were served on the respondent the was no prayer for setting aside his election and the prayer that was made was to declare the election of the respondent to the Legislative Assembly of Kerala from 81 Kothamangalam Constituency. 10. My conclusion therefore on these issues is that the Election Petition tiled in this case, going by the copies served on the respondent under S.81(3) did not contain a prayer for declaring the election of the respondent void and since the defect in the prayer in my view is a material defect, it is fatal to the maintainability of the Election Petition itself. I therefore, hold that the Election Petition in the present case is not maintainable. Issues Nos. 5 and 6 In view of my conclusion as above, these issues do not arise for consideration. In the light of the findings as above, this Election Petition has only to be dismissed. This Election Petition is therefore, dismissed. But, since it is dismissed at the preliminary stage, in exercise of my discretion under S.119 of the Act, I order that the parties suffer their respective costs. In the light of the findings as above, this Election Petition has only to be dismissed. This Election Petition is therefore, dismissed. But, since it is dismissed at the preliminary stage, in exercise of my discretion under S.119 of the Act, I order that the parties suffer their respective costs. The Registrar shall intimate the substance of this decision to the Election Commission and the Speaker of the Kerala Legislature without delay and shall send to the Election Commission an authenticated copy of this decision as soon as possible as required by S.103 of the Act.