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2019 DIGILAW 130 (ALL)

NAWAB KAZIM ALI KHAN v. MOHD ABDULLAH AZAM KHAN

2019-01-17

SURYA PRAKASH KESARWANI

body2019
JUDGMENT Surya Prakash Kesarwani, J. Heard Sri N. K. Pandey along with S. A. Kazmi, learned counsel for the respondent-objector and Sri Navin Sinha, learned Senior Advocate assisted by Ms. Kalpana Sinha, learned counsel for the Election-petitioner on the following applications:- (i) Paper No. A-11 being application no. 3 of 2018 under Section 151 C.P.C. praying to dismiss the election petition as not maintainable under Section 86(1) of the Representation of People Act, 1951. (ii) Paper No. A-10 being application no. 3 of 2018 under order VI Rule 16 read with Order 7 Rule 11(a) of the Code of Civil Procedure praying to struck off paragraph nos. 7 to 28 of the election petition and to dismiss the election petition for want of cause of action under the provision of order 7 Rule 11(a) C.P.C. With the consent of learned counsels for the parties both the applications are being heard together for disposal. Submission of the applicant/respondent-objector:- 2. Learned counsel for the applicant/respondent-objector submits as under: (i) Copy of news item dated 28.01.2017 as referred by the election petitioner in the representation dated 28.01.2017 filed before the Returning Officer has not been filed along with the election petition. Page No. 37 of the original election petition, which is the reverse page of the stamp paper bearing seal of the Stamp Vendor, has not been annexed with the copy of the election petition served upon the respondent-objector. Therefore, the copy of the election petition served upon the respondent-objector can not be said to be true copy of the election petition. Therefore, the election petition deserves to be dismissed as per the provisions of Section 86(1) of the Representation of People Act, 1951. (ii) The election petitioner has stated in Paragraph 25 (iii) and (iv) of the election petition that the respondent-objector has filled-up the examination form and admission form while appearing in Class X examination conducted by CBSE Board, 2007. He has sworn the said paragraph on the basis of record. Therefore, he must have filed copies of the examination form and the application form along with the election petition which has not been done. He has sworn the said paragraph on the basis of record. Therefore, he must have filed copies of the examination form and the application form along with the election petition which has not been done. Thus, the election petition has been filed without annexing material documents and in the absence thereof, the election petition cannot be said to be true copy of the election petition in view of the law laid down by the Hon'ble Supreme Court in U. S. Sasidharan v. K. Karunakaran and another, (1990) AIR SC 924 (para 15, 16 and 17). (iii) No cause of action arose to the election petitioner to file the election petition, since the date of birth of the respondent is 30.09.1990 and at the time of filing of the nomination form, he had attained the age of 25 years in terms of the provisions contained in Article 173(b) of the Constitution of India. Thus, in absence of any cause of action, the election petition deserves to be dismissed under Order VII, Rule 11(a) C.P.C. and the pleadings made by the election petitioner deserves to be struck off under Order VI, Rule 16 C.P.C. 3. In support of his submissions Sri Pandey has relied upon the judgments of Hon'ble Supreme Court in Rajendra Singh v. Usha Rani, (1984) 3 SCC 339 , Mithilesh Kumar Pandey v. Baidyanath Yadav and others, (1984) 2 SCC 1 (para 9, 15 and 17), M. Karunanidhi v. H. V. Handa and others, (1983) AIR SC 558 (para 13, 27 and 38 to 42), Jyoti Basu and others vs. Debi Ghosal and others, (1982) AIR SC 983 (1) (para 7 and 8), Mulayam Singh Yadav v. Dharampal Yadav and others, (2001) 5 Supreme 242 (paras 7, 11, 12 and 13) and a judgment of this Court passed by learned Single Judge, dated 10.02.1992 in Election Petition no. 6 of 1991(Jagram Singh v. Pritam Singh and others). Submission of the Election Petitioner. 4. Sri Navin Sinha, learned Senior Advocate appearing for the election petitioner submits as under:- (i) The election petition contains all material facts and particulars. 6 of 1991(Jagram Singh v. Pritam Singh and others). Submission of the Election Petitioner. 4. Sri Navin Sinha, learned Senior Advocate appearing for the election petitioner submits as under:- (i) The election petition contains all material facts and particulars. The election petition has been filed solely on the ground that the respondent was not qualified to contest the election for Member of Legislative Assembly, in view of the provision of Article 173(b) of the Constitution of India, inasmuch as the respondent was less than 25 years of age when he had filed nomination and contested from 34, Suar, District Rampur Constituency. In support of the ground of challenge taken by the election petitioner, material facts have been stated in paragarph no. 25 of the Election Petition and along with the Election Petition, the copy of Class X result, bearing Roll No. 5260139 has been filed in which the date of birth of the respondent is clearly mentioned as 01.01.1993. The aforesaid copy of mark-sheet of the Class X result has been downloaded from the official website of CBSE Board. The respondent-objector has not said even a word in his entire preliminary objection or the application under Order VI Rule 16 read with Order VII Rule 11(a) C.P.C. disputing the genuineness of the aforesaid copy of the mark-sheet. (ii) The relevant facts have been stated in the election petition which clearly discloses a cause of action to file the election petition. The application under Order VI, Rule 16 read with Order VII Rule 11(a) C.P.C. filed by the respondent is wholly without merit and, therefore, deserves to be dismissed. The preliminary objections are completely merit less and, therefore, it also deserves to be rejected. (iii) The provision of Section 86(1) of the Representation of People Act, 1951, does not refer to Section 83 of the Act. Therefore, application under Section 86 (1) of the Act cannot be entertained with respect to the contents provided in Section 83 of the Act. Its scope is confined with reference to the provisions of Sections 81, 82 or Section 117 of the Act. 5. Therefore, application under Section 86 (1) of the Act cannot be entertained with respect to the contents provided in Section 83 of the Act. Its scope is confined with reference to the provisions of Sections 81, 82 or Section 117 of the Act. 5. In support of his submissions Sri Sinha has relied upon the judgments of Hon'ble Supreme Court in Mahendra Pal v. Ram Dass Malanger and others, (2000) 1 SCC 261 (para 4, 7 and 32), Anil Vasudev Salgaaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 (para 39, 40 to 43, 50 to 58 and 61), Sahodrabai Rai v. Ram Singh Aharwar and others, (1968) AIR SC 1079 (paras 1, 2, 10, 11 and 12), A. Madan Mohan v. Kalavakunta Chandrasekhara, (1984) 2 SCC 288 (paras 2, 3, 10 to 15) and T. M. Jacob v. C. Poulose and others, (1999) 4 SCC 274 (paras 38, 39 and 40). Discussion and findings. 6. The submissions of learned counsels for the parties as afore-noted gives rise to the following questions which are being formulated with the consent of learned counsels for the parties for determination in this appeal. Question No. A Whether copy of election petition served by the election-petitioner upon the respondent is the true copy of the election petition filed by him? Question No. B Whether no cause of action arose to the election-petitioner to file the election petition? Question No. C Whether the election petition has not been filed with copies of material documents and whether it does not contain material facts and particulars? Question No. 'A': 7. The only contention of the respondent-objector to allege that the copy of election petition served upon him is not the true copy of the election petition filed by the election-petitioner, is that Page No. 37 has not been annexed in the copy of the election petition served upon him. This allegation has been denied by the election Petitioner. 8. Page No. 37 is the back side of the Stamp paper of Rs. 10/- bearing stamp and seal of the Stamp Vendor put by him while selling the stamp paper to the respondent. Copy of the front page of the aforesaid stamp paper of Rs. 10/- filed as Page 36 of the Election Petition bears declaration of annexing affidavit in Form-26 along with Nomination Form. It bears signature of the respondent and stamp and seal of the Notary. Copy of the front page of the aforesaid stamp paper of Rs. 10/- filed as Page 36 of the Election Petition bears declaration of annexing affidavit in Form-26 along with Nomination Form. It bears signature of the respondent and stamp and seal of the Notary. That, apart the submission of the election-petitioner is that the copy of Form 26 filed by the respondent under Rule 4 which forms part of his nomination has been filed as Annexure-1 to the election petition. 9. Mere absence of copy of a page bearing seal and stamp of the Stamp Vendor in the true copy of the election petition supplied by the petitioner to the respondent can not be construed to be an omission or variation of vital nature. Therefore even if, it could be construed as a defect, it was not a defect of vital nature attracting the consequences of Section 86(1) of the Representation of People Act, 1951 (hereinafter referred to as the 'Act'). Therefore, I hold that there was no failure on the part of the election-petitioner to comply with the last part of Sub-Section 3 of Section 81 of the Act. Consequently, Section 86(1) of the Act is not attracted and the election petition cannot be dismissed on allegation of failure to comply the provisions of Section 81 of the Act. It is not that every minor variation in form but it is only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. 10. In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) AIR SC 1545, a Constitutional Bench of Hon'ble Supreme Court elaborately dealt with the question that the word “copy” occurring in Section 81(3) of the Act mean an absolutely exact copy or does it mean a copy so true that nobody could by any possibility misunderstand it. After referring to catena of authorities, the Constitution Bench held that the test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable persons. The Constitution Bench opined :- “Having regard to the provisions of Part VI of the Act, we are of the view that the word 'copy' does not mean an absolutely exact copy. The Constitution Bench opined :- “Having regard to the provisions of Part VI of the Act, we are of the view that the word 'copy' does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No.269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of sub-section (3) of section 81. In that view of the matter sub-section (3) of Section 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure to comply with the provisions of Section 81.” The Bench also opined : “When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word 'petitioner' was not necessary. Sub-section (3) of Section 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word 'copy' occurring in sub-section (3) of Section 81. On behalf of the appellant the argument is that sub-section (3) of Section 81 being mandatory in nature all the requirements of the sub-section must be strictly complied with and the word 'copy' must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the word 'copy' means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of sub-section (3) dealing with a copy is merely directive, and for the reliance is placed on the decision of this Court in Kamaraja Nadar v. Kunju Thevar, (1958) AIR SC 687. Alternatively, the argument is that the last part of sub-section (3) dealing with a copy is merely directive, and for the reliance is placed on the decision of this Court in Kamaraja Nadar v. Kunju Thevar, (1958) AIR SC 687. We are of the view that the word 'copy' in sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud's Judicial Dictionary, Third Edn., Vol. 4, p. 3098). In this view of the matter it is unnecessary to go into the further question whether any part of sub-section (3) of section 81 is merely directory.” (Emphasis supplied by me.) 11. Similar view was taken by another Constitution Bench in Ch. Subbarao v. Member, Election Tribunal, Hyderabad, (1964) AIR SC 1027, wherein it was held that the expression 'copy' occurring in Section 81(3) of the Act did not mean an exact copy but only one so true that no reasonable person could by any possibility misunderstand it as not being the same as the original. 12. This question was again considered by another Constitutional Bench of Hon'ble Supreme Court in T. M. Jacob v. C. Poulose and others, (1999) 4 SCC 274 and it held as under:- 35. The object of serving a “true copy” of an election petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form. 36.The expression “copy” in section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation. 39.Applying the test as laid down in Murarka Radhey Shyam Ram Kumars case (supra), to the fact situation of the present case, we come to the conclusion that the defects complained of in the present case were not such as could have misled the appellant at all. The non-mention of the name of the Notary or the absence of the stamp and seal of the Notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature and, thus, the defect, if at all it could be construed as a defect, was not a defect of any vital nature attracting the consequences of Section 86(1) of the Act. Under the circumstances, it must be held that there was no failure on the part of the election petitioner to comply with the last part of sub-section (3) of Section 81 of the Act and, under the circumstances, Section 86(1) of the Act was not attracted and the election petition could not have been dismissed by reason of the alleged failure to comply with the provisions of Section 81 of the Act. In this connection, it is also relevant to note that the appellant, neither in the memo of objections nor in the written objections or in C.M.P.No.2903 of 1996 has alleged that he had been misled by the absence of the name, rubber stamp and seal of the Notary on the copy of the affidavit supplied to him or that he had been prejudiced to formulate his defence. Even during the arguments, learned counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him. 40. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. 40. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam case (supra) are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86 (1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying “true copy” of the affidavit to the appellant by the respondent. (Emphasis supplied by me.) 13. Thus, absence of Page No. 37 in the copy of the election petition served upon the respondent which merely copy of back page of the stamp paper containing stamp and seal of the Stamp Vendor, cannot be said to be a variation in the copy of the election petition from the original calculated to mislead a reasonable person. It is not a defect of vital nature or a substantial variation. Therefore, the copy of the election petition served by the election petitioner upon the respondent is the true copy of the election petition filed by the petitioner. Consequently, objection in this regard by the respondent is rejected. Question No. 'A' is answered accordingly. Question No. 'B' - “Whether no cause of action arose to the election-petitioner to file the election petition?” 14. Consequently, objection in this regard by the respondent is rejected. Question No. 'A' is answered accordingly. Question No. 'B' - “Whether no cause of action arose to the election-petitioner to file the election petition?” 14. The present election petition has been filed solely on the ground that the respondent was not qualified to contest the election for Member of the Legislative Assembly in view of Article 173(b) of the Constitution of India, inasmuch as the respondent was less than 25 years of age when he filed his nomination paper and contested the election from 34, Suar, District Rampur constituency. The concise statement of material facts in support of the ground as aforesaid, have been stated by the election-petitioner in Sub paras (i) to (iv) of Paragraph No. 25 of the petition. In Sub para (iv) the election-petitioner has stated that the Central Board of Secondary Education has issued Secondary School Examination (Class X) result bearing the roll no., name, mother's name and father's name. Sub-paras (iv) and (v) of Para 25 of the Election Petition are reproduced below: “(iv) That the Central Board for Secondary Education has issued the Secondary School Examination (Class-X) result bearing the roll number, name, mother's name and father's name and date of birth of respondent Mohd. Abdullah Azam Khan. As per the certificate, the mother of respondent is Tazeen Fatima and his father is Mohd. Azam Khan. The date of birth as recorded in the certificate for Secondary School Examination (Class-X) results of the respondent Mohd. Abdullah Azam Khan is 01.01.1993. A copy of the certificate for Secondary School Examination (Class-X) results of respondent Mohd. Abdullah Azam Khan obtained from the Central Board for Secondary Education is enclosed and marked as Annexure - 4 to this petition. (v) That the respondent Mohd. Abdullah Azam Khan appeared in Intermediate examination in the year 2009 from St Paul's School, Rampur. The said papers and records are available with St. Paul's School, Rampur and the Central Board for Secondary Education (CBSE), Delhi.” 15. Respondent has not disputed before me the correctness of the roll no., his name, parents name and date of birth as mentioned in the web copy of Secondary School Exam Result, 2007 available on the website of Central Board of Secondary Education. Paul's School, Rampur and the Central Board for Secondary Education (CBSE), Delhi.” 15. Respondent has not disputed before me the correctness of the roll no., his name, parents name and date of birth as mentioned in the web copy of Secondary School Exam Result, 2007 available on the website of Central Board of Secondary Education. During the course of dictation of this order, learned counsel for the respondent interrupted and stated that the respondent has recently applied to the Central Board of Secondary Education for correcting his date of birth as 30.09.1990 in place of recorded date of birth i.e. 01.01.1993. Even this statement made by learned counsel for the respondent cannot take away the cause of action which arose to the election-petitioner to file the present election petition inasmuch as the date of birth of the respondent at the time of filing of the nomination paper and at the time of contesting the election in question was 01.01.1993, as per his Class X mark-sheet/certificate and, thus, prima facie, the respondent was ineligible to contest the election in view of the provisions of Article 173(b) of the Constitution of India. Thus, the objection of the respondent regarding cause of action, deserves to be rejected and is hereby rejected. Question No. 'B' is answered accordingly. Question No. 'C' - “Whether the election petition has not been filed with copies of material documents and whether it does not contain material facts and particulars?” 16. In the preceding Paragraph Nos. 14 and 15, I have briefly noted the facts with regard to cause of action which arose to the election-petitioner to file the present election petition. The election-petitioner has brought on record copy of the Secondary School Exam Result, 2007 of the respondent which prima facie indicates that the date of birth of the respondent is 01.01.1993. Along with the election petition the election-petitioner has also filed copy of nomination papers alongwith supporting affidavit filed by the respondent which indicates that respondent has mentioned his date of birth in the nomination paper as 30.09.1990 on the basis of a birth certificate dated 21.01.2015 registered by the Registrar (birth and death) on 21.01.2015. Along with the election petition the election-petitioner has also filed copy of nomination papers alongwith supporting affidavit filed by the respondent which indicates that respondent has mentioned his date of birth in the nomination paper as 30.09.1990 on the basis of a birth certificate dated 21.01.2015 registered by the Registrar (birth and death) on 21.01.2015. In Sub para (vi) of Paragraph No. 25 of the election petition, the election-petitioner had stated as under:- “(vi) That the petitioner has made best efforts to get the admission form, examination form as also documents pertaining to the Intermediate Examination of the respondent Mohd. Abdullah Azam Khan, but has not been able to get the same. The petitioner has only been able to get the certificate for Secondary School Examination (Class-X) results of the respondent from the Central Board of Secondary Education.” 17. The election-petitioner has filed a list of documents to be relied upon by him, as under:- “1. Complete set of nomination papers along with other documents of respondent - Mohd. Abdullah Azam Khan. 2. Certified copy of Affidavit in Form-26 filed by the respondent-Mohd. Abdullah Azam Khan. 3. Copy of the Secondary School Examination (Class X) Results of the respondent - Mohd. Abdullah Azam issued by the Central Board of Secondary Education. 4. Admission Form filled by respondent - Mohd. Abdullah Azam Khan in his own handwriting of St. Paul's School, Rampur. 5. Examination Form filled up by respondent - Mohd. Abdullah Azam Khan in his own handwriting for appearing in High School Examination conducted by the Central Board of Secondary Education. 6. Such order and further documents as may be necessary to prove the election petitioner's case.” 18. Sections 81, 82, 83 and 86 are relevant for the purposes of deciding on the facts of the present case, Question No. C which are reproduced below:- The Representation of the People Act, 1951. “81. Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates]. Explanation.--In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (2) [omitted] [(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.] 82. Parties to the petition.--A petitioner shall join as respondents to his petition-- (a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.] [83. Contents of petition.--(1) An election petition-- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: [Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.] 86. Trial of election petitions .--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation .--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. Trial of election petitions .--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation .--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation .--For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.” 19. Section 81(1) of the Act provide that an election petition calling in question any election may be presented on one or more of the grounds specified in Sub-Section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector. Undisputedly the election-petitioner was a candidate in the election in question. Clause (d) of of Sub section 1 of Section 100 of the Act are relevant for the purposes of the sole ground taken by the election-petitioner in the election petition to challenge the election of the respondent that he was not qualified to contest the election inasmuch as he has not attained the minimum age as prescribed in Article 173(b) of the Constitution of India. Section 83 of the Act provides for contents of the election petition. Clause (a) of Sub section 1 of Section 83 requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Perusal of sub paras of Para 25 of the election petition shows that the election petition contains a concise statement of material facts on which election-petitioner has relied. Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or 82 or 117 of the Act. Therefore under Section 86(1) of the Act, an election petition can be dismissed by the High Court only if it does not comply with the provisions of Section 81 or 82 or 117 of the Act. 20. In Sahodrabai Rai v. Ram Singh Aharwar and others, (1968) 3 SCR 13 : AIR 1968 SC 1079 , Hon'ble Supreme Court considered the provision of Section 81 read with Section 86(1) (Para 12) of the Act and held as under:- 10. 20. In Sahodrabai Rai v. Ram Singh Aharwar and others, (1968) 3 SCR 13 : AIR 1968 SC 1079 , Hon'ble Supreme Court considered the provision of Section 81 read with Section 86(1) (Para 12) of the Act and held as under:- 10. An argument was raised in this case as to whether Section 86(1) is mandatory or merely directory. We need not go into this aspect of the case. In our opinion, the present matter can be resolved on an examination of the relevant facts and the contents of the election petition as detailed in Section 83 produced above. It may be pointed out here that the trial of election petition has to follow as far as may be the provisions of the Code of Civil Procedure. We are therefore of opinion that it is permissible to look into the Code of Civil Procedure to see what exactly would have been the case if this was a suit and not a trial of an election petition. 11. Under the Code of Civil Procedure a suit is commenced by a plaint. This is provided by Order 4, Rule 1 which says that every suit shall be instituted by presenting a plaint to the Court. After the plaint is received O. V. provides the summoning of the defendants in the case and r. 2 of that order says that every summons shall be accompanied by a copy of the plaint, and if so permitted, by a concise statement. We then turn to the provisions of O. VII which deals with the contents of a plaint. The first rule mentions the particulars which must be in a plaint. It is not necessary to refer to them. The plaint has to be signed and verified. Rule 9 then provides that the plaintiff shall endorse on the plaint and annex thereto a list of documents, if any, which he has produced along with it and, if the plaint is admitted, shall present as many copies on plain paper of the plaint as there are defendants unless the Court by reason of the length of the plaint or the number of defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claims made etc. It will be noticed here that what is required to be provided are copies of the plaint itself or the concise statement according to the number of defendants. There is no mention here of any other documents of which a copy is needed to be presented to the Court for service to the defendants. Then we come to r. 14 which states that where a plaintiff sues upon a document in his possession or power he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. It will be noticed that he is required to file only one copy of the document and not as many copies as there are defendants in the case. It would therefore follow that a copy of the document is not expected to be delivered with the copy of the plaint to the answering defendants when summons is served on them. In the schedules to the Code of Civil Procedure we have got Appendix B which prescribes the forms for summons to the defendants. There is only one form of summons in Appendix B, (Form No. 4) in which the copy of the negotiable instrument is to accompany the copy of the plaint. That is so, because of the special law applying to the negotiable instruments and the time limit within which pleas to that document have to be raised and this is only in summary suits. No other form makes any mention of any document accompanying the summons with the copy of the plaint. We need not go into more details. It is clear that the documents which are filed with the plaint have to be accompanied by one copy of those documents. This is because the copy is compared with the original and the copy is endorsed by the clerk of court and the document is sometimes returned to the party to be produced into Court later. The copy takes the place of the document concerned and is not to be sent out to the parties with the plaint. 12. We may now see whether the election law provides anything different. The only provision to which our attention has been drawn is sub-section (3) of Section 81 and sub-section (2) of section 83. The copy takes the place of the document concerned and is not to be sent out to the parties with the plaint. 12. We may now see whether the election law provides anything different. The only provision to which our attention has been drawn is sub-section (3) of Section 81 and sub-section (2) of section 83. The first provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and that every such copy shall be an authenticated true copy. The words used here are only “the election petition”. There is no mention of any document accompanying the election petition. If the matter stood with only this sub-section there would be no doubt that what was intended to be served is only a copy of the election petition proper. Assistance is however taken from the provisions of sub-section (2) of Section 83 which provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition it is contended that since the pamphlet was an annexure to the petition. it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of Section 86(1) is made out. In our opinion, this is too strict a reading of the provisions. We have already pointed out that Section 81(3) speaks only of the election petition. Pausing here, we would say that 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, we are quite clear that sub-section (2) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. Even if this be not the case, we are quite clear that sub-section (2) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For examples, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does 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 but produced or filed with the election petitions. 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. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments are concerned. When the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be thought that she had not produced the document in time. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. It would be stretching the words of sub-s. (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. In this particular case we do not think that the pamphlet could be so treated. We are, therefore, of the opinion that whether or not Section 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regard to the filing of the election or the service of the copies thereof and the order under appeal was therefore erroneous. (Emphasis supplied by me.) 21. In A. Madan Mohan v. Kalavakunta Chandrasekhara, (1984) 2 SCC 288 (Para 3, 11-15) Hon'ble Supreme Court followed the ratio of decision in the case of Sahodrabai Rai (supra). 22. In U. S. Sasidharan v. K. Karunakaran and another, (1990) AIR SC 924 (Para 15, 16 and 17), Hon'ble Supreme Court considered the provisions of Section 81(3) of the Act and held as under:- “15. We have already referred to Section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86(1) for non-compliance with Section 81(3). 16. On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition. 17. There may be another situation when a copy of the document need not be served on the respondent along with the election petition. When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent. What S. 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate. When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must be served on the respondents.” (Emphasis supplied by me.) 23. Copy of such document must be served on the respondents.” (Emphasis supplied by me.) 23. In Mahendra Pal v. Ram Dass Malanger and others, (2000) 1 SCC 261 , Hon'ble Supreme Court considered the provisions of Section 83(1)(a) of the Act and drawn the distinction between the words “material facts” and “particulars” and held that the facts which are essential to disclose a complete cause of action are “material facts” and are essentially required to be pleaded. On the other hand “particulars” are details of the case set up by the party and are such pleas which are necessary to amplify, revise or explain material facts. The function of “particulars” is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him which he has required to meet. In Paragraph No. 7 of the report in Mahendra Pal (supra), Hon'ble Supreme Court held as under:- Section 83(1) (a) of the Act mandates that in order to constitute a cause of action, all material facts, that is, the basic and preliminary facts which the petitioner is bound under the law to substantiate in order to succeed, have to be pleaded in an election petition. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. The distinction between 'material facts' and 'particulars' has been explained by this Court in a large number of cases and we need not refer to all those decided cases. Facts which are essential to disclose a complete cause of action are material facts and are essentially required to be pleaded. On the other hand “particulars” are details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. The function of particulars is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him and which he is required to meet. The distinction between 'material facts' and 'material particulars' is indeed important because different consequences follow from a deficiency of such facts or particulars in the pleadings. The distinction between 'material facts' and 'material particulars' is indeed important because different consequences follow from a deficiency of such facts or particulars in the pleadings. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. In the case of a petition suffering from deficiency of material particulars the Court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a party to furnish particulars even after the period of limitation for filling an election petition has expired, with permission of the Court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation.”. (Emphasis supplied by me.) 24. In Anil Vasudev Salgaonkar, (2009) 9 SCC 310 (Para 61) Hon'ble Supreme Court considered the provisions of Section 83(1)(a) of the Act regarding setting forth of the material facts of the alleged corrupt practice and held as under:- “58.There is no definition of “material facts” either in the Representation of Peoples Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this court has laid down that all facts necessary to formulate a complete cause of action should be termed as “material facts”. All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. “Material facts” in other words mean the entire bundle of facts which would constitute a complete cause of action. 64. This court in Harkirat Singh's case [Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511 ] tried to give various meanings of “material facts”. The relevant paragraph 48 of the said judgment is reproduced as under: (SCC pp. 526-27) “The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (3rd Edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (3rd Edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.” 59. In the context of a charge of corrupt practice, “material facts” would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if “material facts” are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. 60. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election-petitioner (respondent herein) and the election petition is liable to be summarily dismissed on that ground. 61. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are “material facts” which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act.” (Emphasis supplied by me.) 25. It is relevant to mention at the cost of repetition that the present election petition has been filed by election-petitioner on the ground that the respondent-returned candidate was not qualified as his age was below the minimum age prescribed in Article 173(b) of the Constitution of India. It is relevant to mention at the cost of repetition that the present election petition has been filed by election-petitioner on the ground that the respondent-returned candidate was not qualified as his age was below the minimum age prescribed in Article 173(b) of the Constitution of India. The present election petition has not been filed on the ground of corrupt practice committed by returned candidate as provided in Clause (b) of Sub-Section 1 of Section 100. The judgment in the case of Mulayam Singh Yadav v. Dharampal Yadav and others, (2001) 5 Supreme 242 (paras 7, 10, 12 and 13) relied by learned counsel for the respondent was on the facts and questions that Schedule 14 to the election petition and video cassette therein referred to is an integral part of the election petition and whether the failure to file the original in Court along with the election petition attracts Section 81 and, thereafter, Section 86(1) of the Act. On the said facts Hon'ble Supreme Court held that video cassette mentioned and verified in Schedule 14 is an integral part of the election petition and that it should have been filed in Court along with copies thereof, first serving it upon the respondent to the election petition. Such are not the facts involved in the present election petition. The present election petition has been filed solely on the ground that respondent returned candidate was not qualified as on the date of filing the nomination paper and on the date of contesting the election inasmuch as his age was below the minimum prescribed age in Article 173(b) of the Constitution of India and in support, copy of Secondary School Exam Result, 2007 containing the date of birth of the respondent-returned candidate, has also been filed along with the election petition. 26. Learned counsel for the respondent has also relied upon a judgment of Hon'ble Supreme Court in Jyoti Basu and others vs. Debi Ghosal and others, (1982) AIR SC 983 (1) (paras 7 and 8) which lays down the law that right to elect is neither a fundamental right nor a common law right but it is pure and simple a statutory right. The election petition is a statutory proceeding to which neither the common law nor the principles of equity apply but only applies to which the statute makes and applies. The election petition is a statutory proceeding to which neither the common law nor the principles of equity apply but only applies to which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore subject to statutory limitation. This judgment of Hon'ble Supreme Court also does not support the case of the respondent inasmuch as the election-petitioner has set forth in the election petition a concise statement of the material facts on which he relied as is evident from Paragraph No. 25 of the election petition. The next judgment in the case of M. Karunanidhi v. H. V. Handa and others, (1983) AIR SC 558 rendered by two Judges Bench and relied by learned counsel for the respondent was considered by a three Judges Bench of Hon'ble Supreme Court in the case of A. Madan Mohan (supra) and in Paragraph No. 14 and 15 of the report (SCC) the ratio of decision in three Judges Bench of Hon'ble Supreme Court in Sahodrabai Rai (supra) has been reiterated. 27. In view of the discussion made above, I find that material facts are not lacking in the election petition. Copies of material documents have also been filed along with the election petition. The election petition contains material facts and particulars. Therefore, the third objection of the respondent deserves rejection and is hereby rejected. The Question No. C is answered accordingly. Conclusion: 28. (I) Mere absence of copy of a page bearing seal and stamp of the Stamp Vendor in the true copy of the election petition supplied by the petitioner to the respondent can not be construed to be an omission or variation of vital nature. Therefore even if, it could be construed as a defect, it was not a defect of vital nature attracting the consequences of Section 86(1) of the Representation of People Act, 1951 (hereinafter referred to as the 'Act'). Therefore, I hold that there was no failure on the part of the election-petitioner to comply with the last part of Sub-Section 3 of Section 81 of the Act. Therefore, I hold that there was no failure on the part of the election-petitioner to comply with the last part of Sub-Section 3 of Section 81 of the Act. Consequently, Section 86(1) of the Act is not attracted and the election petition cannot be dismissed on allegation of failure to comply the provisions of Section 81 of the Act. It is not that every minor variation in form but it is only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. (ii) Thus, absence of Page No. 37 in the copy of the election petition served upon the respondent which merely copy of back page of the stamp paper containing stamp and seal of the Stamp Vendor, cannot be said to be a variation in the copy of the election petition from the original calculated to mislead a reasonable person. It is not a defect of vital nature or a substantial variation. Therefore, the copy of the election petition served by the election petitioner upon the respondent is the true copy of the election petition filed by the petitioner. Consequently, objection in this regard by the respondent is rejected. Question No. 'A' is answered accordingly. (iii) Respondent has not disputed before me the correctness of the roll no., his name, parents name and date of birth as mentioned in the web copy of Secondary School Exam Result, 2007 available on the website of Central Board of Secondary Education. During the course of dictation of this order, learned counsel for the respondent interrupted and stated that the respondent has recently applied to the Central Board of Secondary Education for correcting his date of birth as 30.09.1990 in place of recorded date of birth i.e. 01.01.1993. Even this statement made by learned counsel for the respondent cannot take away the cause of action which arose to the election-petitioner to file the present election petition inasmuch as the date of birth of the respondent at the time of filing of the nomination paper and at the time of contesting the election in question was 01.01.1993, as per his Class X mark-sheet/ certificate and, thus, prima facie, the respondent was ineligible to contest the election in view of the provisions of Article 173(b) of the Constitution of India. Thus, the objection of the respondent regarding cause of action, deserves to be rejected and is hereby rejected. Question No. 'B' is answered accordingly. (iv) When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must be served on the respondents. (v) The facts which are essential to disclose a complete cause of action are “material facts” and are essentially required to be pleaded. On the other hand “particulars” are details of the case set up by the party and are such pleas which are necessary to amplify, revise or explain material facts. The function of “particulars” is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him which he has required to meet. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. (vi) I find that material facts are not lacking in the election petition. Copies of material documents have also been filed along with the election petition. The election petition contains material facts and particulars. Therefore, the third objection of the respondent deserves rejection and is hereby rejected. The Question No. C is answered accordingly. 29. For all the reasons afore-stated I do not find any substance in Paper No. A-11 being application no. 3 of 2018 under Section 86(1) of the Act, 1951 and Paper No. A-10 being application no. 3 of 2018 under order VI Rule 16 read with Order 7 Rule 11(a) of the Code of Civil Procedure. Therefore, both the applications are rejected. 30. Written statement dated 11.11.2017 was filed by respondent on 14.11.2017 and the election-petitioner was granted three weeks' time to file reply to it. On 12.01.2018, the election-petitioner has filed the replication dated 10.01.2018. List on 08.02.2019 for framing of issues.