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Allahabad High Court · body

2023 DIGILAW 250 (ALL)

Sarvesh Kumar Gupta v. Neeraj Bora

2023-01-25

RAJESH SINGH CHAUHAN

body2023
JUDGMENT : (i) C.M. Application (IA) No.01 of 2022; the objection against the letter dated 07.05.2022 issued by the Hon'ble Registrar dated 07.05.222 in compliance of order dated 27.04.2022 demanding the petitioner to deposit the amount of Rs.94500/-regarding publication of notice of the Election Petition perferred by the petitioner. (ii) C.M. Application (IA) No.02 of 2022; Application for taking Vakalatnama on record filed by Dr. Shailendra Sharma, learned counsel for the opposite party. (iii) C.M. Application (IA) No.03 of 2022; Application/preliminary objection for rejection/dismissal of Election Petition No.09 of 2022 on behalf of respondent under Section 86 (1) read with Section 87 (1) of the Representation of the People Act, 1951 along with Order VII Rule 11 (a) of the Code of Civil Procedure, 1908 (5 of 1908) against the maintainability of the Election Petition. (iv) C.M. Application (IA) No.04 of 2022; Application for taking of reply of objection filed by the Respondent. 1. Heard Ms. Shraddha Tripathi, learned counsel for the petitioner and Dr. Shailendra Sharma, learned counsel for the sole respondent/ opposite party. 2. By means of the present election petition, the petitioner has prayed that the election of Assembly Constituency 172 Lucknow, North of returned candidate Dr. Neeraj Bora, the opposite party, which was declared on 10.03.2022 may be declared as void and set aside. Consequential order may also be passed in the interest of justice. 3. On the first date of admission, on 27.04.2022 this Court has passed the following order:- "Heard Ms. Shraddha Tripathi, learned counsel for the election petitioner. Issue notice to respondent in terms of Chapter XV-A Rule 5 & 6 of Allahabd High Court Rules. Steps be taken to serve respondent within seven working days. List after service of notice." 4. Chapter-XV-A of Allahabad High Court Rules, 1952 (here-in-after referred to as the "Rules, 1952") defines special provisions relating to the trial of election petition. Since the notice is issued to the opposite party in terms of Rules 5 & 6 of the Rules,1952, therefore, for convenience, Rules 5 & 6 are being reproduced here-in-below:- "5. Chapter-XV-A of Allahabad High Court Rules, 1952 (here-in-after referred to as the "Rules, 1952") defines special provisions relating to the trial of election petition. Since the notice is issued to the opposite party in terms of Rules 5 & 6 of the Rules,1952, therefore, for convenience, Rules 5 & 6 are being reproduced here-in-below:- "5. Issue of notice to respondent.-The election petition shall be laid before the Bench so constituted without delay, and unless it is dismissed under subsection (1) of Section 86 of the Act or for being otherwise defective, the Bench may direct issue of notice to the respondent to appear and answer the claim on a date to be specified therein. Such notice shall also direct that if he wishes of put up a defence he shall file his written statement together with a list of all documents, whether in his possession or power or not, upon which he indents to rely as evidence in support of his defence on or before the date fixed; and further, that in default of appearance being entered on or before the date fixed in the notice the election petition may be heard and determined in his absence. The notice shall be in Form No.34-A. 6. Process fee and charges.-(a) Notice for the respondent shall issued by ordinary process and simultaneously by registered post. (b) Notice of the election petition shall also be simultaneously published in a newspaper selected by the Registrar. (c) Notices, process fee, charges and [a sum of Rs.250] as an initial deposit on account of the cost of publication in a newspaper shall be supplied by the petitioner within seven days of the order directing notice to issue. In default, the election petition shall be laid before the Bench for orders. The Bench may reject the election petition unless for sufficient cause if grants further time. (d) Where the cost of publication in a newspaper exceeds Rs.50 the Registrar shall call upon the petitioner to deposit the excess amount in Court within the time to be fixed by him. On failure of the petitioner to deposit such costs, the petition shall be laid before the Bench for such orders as the Bench may think fit. In case the cost of publication is less than Rs.50 the petitioner shall be entitled to a refund of the amount in excess." 5. On failure of the petitioner to deposit such costs, the petition shall be laid before the Bench for such orders as the Bench may think fit. In case the cost of publication is less than Rs.50 the petitioner shall be entitled to a refund of the amount in excess." 5. For publication in the newspaper in terms of Rule 6 (c) of the Rules, 1952, the Senior Registrar has indicated in its order dated 05.06.2022 that "let a notice be published in Dainik Jagran, Lucknow Edition a Hindi Daily Newspaper in accordance with rules." 6. By means of an objection bearing No.01 of 2022 filed in the Election Petition No.09 of 2022, the petitioner filed an objection on 13.05.2022 making request that the petitioner may be exempted from requirement of publication in terms of Rule 6 (c) of the Rules, 1952 stating therein that the petitioner is incapable of making such a huge payment i.e. Rs.94,450/-in the name of publication in the newspaper because he is a man of humble background and the payment of such amount is beyond his control and means, as recital to this effect has been given in para-11 of such objection. 7. Learned counsel for the petitioner has referred the mandate of Section 6 of the Representation of People Act, 1951 (here-in-after referred to as the "Act, 1951") to contents that the publication in the newspaper has not been indicated in such Act, 1951, therefore, the petitioner may not be compelled to deposit such a huge amount for publication. She has further stated that Rule 6 of the Rules, 1952 is contrary to the provisions of Code of Civil Procedure (in short C.P.C.) which is applicable in the election petition under Section 87 of the Act, 1951. She has also stated that since the sole respondent has put in appearance through counsel, therefore, there is no purpose for publication and if the petitioner is compelled to deposit an amount in terms of Rule 6 (c) of the Rules, 1952, that would be meaningless and would be a mockery of law as recital to this effect has been given in para-10 of the objection as well as in para-10 of her written statement. In support of her submissions she has cited the judgment of Apex Court in Re: Dr. In support of her submissions she has cited the judgment of Apex Court in Re: Dr. Vijay Laxmi Sadho vs. Jagdish reported in AIR 2001 SC 600 referring relevant portions of paras-16-A, 20, 21 & 22, which read as under:- "16-A. Rule framed by the High Court relating to trial of election petitions are only procedural in nature and do not constitute "substantive law". Those Rules have to be read along with other statutory provisions to appreciate the consequence of non-compliance with the High Court Rules. Article 329 (b) mandates that no election to either House of Parliament or to either House of the State Legislature can be called in question except through an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature. Section 81 of the Act deals with the presentation of an election petition while Section 82 deals with parties to the election petition and Section 83 with contents of such a petition. 20. The question whether an election petition drawn up in Hindi language is maintainable or not came up for consideration before a learned Single Judge of the High Court of Madhya Pradesh in Election Petition No. 9 of 1980 titled Devilal s/o. Shriram Khada vs. Kinkar Narmada Prasad and others. While rejecting the challenge to the maintainability of the election petition drawn up in Hindi language, it was said : "Now it is true that Rule 2(b) of the aforesaid Rules does provide that every election petition shall be written in the English language. But in the absence of any provision in the Act or the Rules made thereunder, non compliance with Rule 2(b) of the a oresaid Rules cannot be a ground for dismissal of the petition under Section 86 of the Act." 21. A contrary view was, however, expressed by another Single Judge of that High Court in Jai Bhansingh Pawaiya vs. Shri Madhavrao Scindia. In this case it was held that an election petition filed in Hindi language being violative of Rule 2(b) of the Rules, relating to filing of election petitions, was not maintainable and was liable to be dismissed under Section 86 of the Act. The learned Single Judge opined (para-25 of AIR): 22. In this case it was held that an election petition filed in Hindi language being violative of Rule 2(b) of the Rules, relating to filing of election petitions, was not maintainable and was liable to be dismissed under Section 86 of the Act. The learned Single Judge opined (para-25 of AIR): 22. The interpretation placed on rule 2 of the High Court Rules, giving it almost primacy over Article 348 (2) of the Constitution, in Jai Bhansingh's case to our mind is fallacious. The learned single Judge appears to have lost sight of the position that Rules framed by the High Court in exercise of powers under Article 225 of the Constitution of India are only rules of procedure and do not constitute substantive law and those rules cannot effect the import of constitutional provisions contained in Article 348(2) of the Constitution. The high pedestal on which Rule 2(b) of the High Court Rules has been placed in Jai Bhansingh's case, not only violates clear constitutional provisions but also introduces a clause in Section 86 of the Act which does not exist. The entire approach to consideration of the effect of the notification issued under Article 348 (2) appears to be erroneous. That apart, the defect of not fling an election petition in accordance with Rule 2(b) of the Rules is not one of the defects which falls either under Section 81, 82 of 117 of the Act so as to attract the rigour of Section 86 of the Act as rightly held in Devilal's case (supra). (emphasis supplied) She has submitted that in view of the aforesaid judgment of the Apex Court, the election petition may not be rejected on technical reasons. 8. Admittedly, by means of her objection she has not prayed for any alternative newspaper. In the wake of the aforesaid objection of the petitioner he has not deposited the amount which was required for publication of notice. Thereafter, the Joint Registrar (J) (N) submitted its report dated 29.06.202, which reads as under :- "ELEP No.09 of 2022 As per office report dated 27.06.2022, undelivered cover of registered post AD notice issued to opposite party vide dispatch No.3613 dated 04.05.2022 booked on 05.05.2022 has not been received back nor any Vakalatnama has been filed. Thereafter, the Joint Registrar (J) (N) submitted its report dated 29.06.202, which reads as under :- "ELEP No.09 of 2022 As per office report dated 27.06.2022, undelivered cover of registered post AD notice issued to opposite party vide dispatch No.3613 dated 04.05.2022 booked on 05.05.2022 has not been received back nor any Vakalatnama has been filed. Besides, this notice was also sent through District Judge, Lucknow which was received back with remark of process server that notice is served in office of opposite party to Himanshu Patni, Computer Operator. On the basis of report of process server and registered post AD service of notice is sufficient upon opposite party. Further, office has submitted that the petitioner has not deposited the required publication charges according to Rule 5 & 6 of Chapter XV-A of High Court Rules, 1952, hence, notice could not be published in daily newspaper as per Rule 6 (b) of Chapter XV-A of High Court Rules-1952. Lay before the Hon'ble Court. Joint Registrar (J) (N) 29.06.2022" 9. By means of C.M. Application (IA) No.02 of 2022, Dr. Shailendra Sharma has filed Vakalatnama on 28.07.2022. Vide C.M. Application (IA) No.03 of 2022 Dr. Sharma has filed a preliminary objection for rejection/ dismissal of election petition on the ground of maintainability. 10. Per contra, Dr. Shailendra Sharma, learned counsel for the respondent has stated that election petition does not confer the mandatory and statutory conditions, therefore, the same deserves to be dismissed. He has stated that he has filed objection seeking prayer that after disposal of those objections, if need be, he may be given time to file written submissions/ reply of the election petition. Dr. Sharma has stated that the averments made in para1 of the election petition cannot be admitted to the effect that the petitioner has not contested the election of 172 Lucknow North Assembly Constituency in the name of Sri Sarvesh Kumar Gupta as such name has been mentioned in the list of electoral nominated candidates available on the official Website of the Election Commission of India. Further, Rule 3 of the Rules 1952 provides that every election petition shall be presented to the Registrar. Rules 5 & 6 deals with the process of fees and charges. Further, Rule 3 of the Rules 1952 provides that every election petition shall be presented to the Registrar. Rules 5 & 6 deals with the process of fees and charges. In the light of the aforesaid rules, if the petitioner has not taken steps for publication in the newspaper which is mandatory requirement, such election petition may be treated as defective election petition and cannot be proceeded on merits. 11. Dr. Sharma has further submitted that Section 83 (1) (c) of the Act, 1951 provides that election petition shall be signed by the petitioner and verified in the manner laid down in the C.P.C. Section 83 (2) of the Act, 1951 further provides that every annexure to the petition shall also be signed by the petitioner and verified in the same manner as prescribed. Order VI, Rule 15 of the C.P.C. explains for verification of pleadings. As per Dr. Sharma, the aforesaid mandatory exercise is missing in the election petition inasmuch as the election petition along with its all annexures, supplementary affidavit has not been signed and verified by the petitioner in the manner provided by Section 83 (1) (c) and 83 (2) of the Act, 1951 read with Order VI Rule 15 of the C.P.C. 12. Dr. Sharma has stated that the main copy of election petition defers from the additional copy appended with the election petition and the copy provided to the learned counsel for the respondent inasmuch as in the main copy of election petition there is no page number after running page no.14, however, in the additional copy the page number is there as page No.15. Further, in original copy the name of returned candidate has been typed as Dr. Neeraj Bora whereas in the additional copy the name of returned candidate has been mentioned by cutting the name of earlier person writing the name through pen. As per Dr. Sharma, the additional copy and the copy provided to learned counsel for the respondent should be same and identical with the main copy. Further, the aforesaid anomalies may be considered as fraud. If the petitioner wants to change any averment or material of election petition, the same may be done with the prior leave of the court. 13. Sharma, the additional copy and the copy provided to learned counsel for the respondent should be same and identical with the main copy. Further, the aforesaid anomalies may be considered as fraud. If the petitioner wants to change any averment or material of election petition, the same may be done with the prior leave of the court. 13. Replying to the aforesaid submission of the respondent, learned counsel for the petitioner has stated that the defect of pagination is a minor defect not of a vital nature and does not shed the nature of true copy as required by Section 81 (3) of the Act, 1951. Therefore, it does not attract the effect of Section 86 (1) of the Act, 1951. The absence of the page number does not mislead the respondent. 14. As per Dr. Sharma, if the relevant pages are perused then the relief claimed in election petition appears entirely different from relief claimed in mandatory additional copy annexed with the original election petition as the relevant pages indicate some deletion and modification which was never notarized. 15. Replying to the aforesaid contention, learned counsel for the petitioner has submitted that this is a curable defect and has placed reliance upon the case in re: Saritha S. Nair vs. Hibi Eden. SLP (Civil) No.10678 of 2020 and T.M. Jacob vs.C. Poulose & Ors in Appeal (Civil) No.1455 of 1996. Further reliance has been placed upon the case in re: Murarka Radhey Shyam Kumar vs. Roop Singh Rathore & Others reported in AIR 1964 1545 to submit that a copy in sub Section 3 of Section 81 of the Act, 1951 does not mean an absolutely exact copy but means that the true copy shall be so true that nobody can by any possibility misunderstand it. 16. Dr. Sharma has further submitted that the averments made by the petitioner in Paragraphs 11 and 13 of the election petition and annexure no. 16. Dr. Sharma has further submitted that the averments made by the petitioner in Paragraphs 11 and 13 of the election petition and annexure no. 7 to the petition are contrary to each other and as such the same is against the settled legal proposition of the electoral law which clearly mandates that an election petition must contain a concise statement of material facts capable of giving rise to a triable issue and omission of a single material fact would lead to an incomplete cause of action and an election petition without material fact is not an election petition at all under the provisions of the Act and in such a situation the instant election petition has failed to meet out the aforesaid mandatory requisitions of Section 83 (1). The very basis of the election petition is the objection dated 04.02.2022 (Annexure No.3) is highly misconceived to the extent that it has wrongly illustrated and quoted Article 173 of the Constitution of India and, as such, the alleged objection dated 04.02.2022 is not an objection since it is defective in nature. 17. Dr. Sharma has also submitted that moreover the issue raised by the election petitioner in the instant petition cannot be a subject matter for adjudication by this Hon'ble Court, as the alleged cause of action with regard to recognition of political parties was existing much prior to the notification of the Assembly Election of 2022 in the State of Uttar Pradesh as the same is evident from the perusal of the letter dated 02.04.2022 (Annexed at page 28), therefore, the election petition being misconceived, is liable to be rejected. 18. Dr. Sharma has drawn attention of this Court towards the judgment of this Court dated 25.10.2021 delivered in Election Petition No.01 of 2019; Lal Bahadur vs. Ritesh Pandey reported in (2021) ILR 10 All 653 by submitting that almost identical controversy has been considered by this Court and this Court has rejected the application whereby the exemption from publication was sought and dismissed such election petition treating the same as not maintainable. In the aforesaid judgment, the relevant case laws of the Hon'ble Supreme Court as well as Hon'ble High Court have been considered from both the sides. Therefore, the relevant portion of judgment and order dated 25.10.2021 is reproduced here-in-below:- "8. I have considered the submissions made by the parties. In the aforesaid judgment, the relevant case laws of the Hon'ble Supreme Court as well as Hon'ble High Court have been considered from both the sides. Therefore, the relevant portion of judgment and order dated 25.10.2021 is reproduced here-in-below:- "8. I have considered the submissions made by the parties. In the judgment dated 17.07.2015 delivered in the case of (Dr. Mohammad Ismail Faruqui vs. Shri Rajnath Singh: Election Petition No.5 of 2014) also, the Court directed for service of notice by other modes as well as by publication in a newspaper. The petitioner in the said case took steps for service through ordinary post as well as by registered post. He was informed the cost of publication in chosen newspaper to be Rs. 9024/-. The petitioner moved an application dated 8.4.2015, supported by an affidavit, with the prayer that publication of notice in the news paper may be dispensed with, on the ground that it was not possible for him to arrange such huge amount of money. In the said case also a ground was taken that the respondent otherwise also stands served with the notice sent by registered post AD and, thus, there is no necessity of publication. This Court after considering the submissions and the earlier settled law held: "The submissions advanced by the petitioner and learned counsel for the contesting respondent have been considered by the Court. The first submission of the petitioner that as the dispute is between the petitioner and the sole respondent, the Court should dispense with the publication of the notice in the newspaper since the respondent is represented by a counsel cannot be accepted. As noticed above, Rule 3 contained in Chapter XV-A of the Rules provides that every election petition shall be presented to the Registrar. Rule 5 provides that the Bench may direct issue of notice to the respondent. Such notice shall also direct that if the respondent wishes to put up a defence he shall file his written statement together with a list of all documents, whether in his possession or power or not, upon which he intends to rely as evidence in support of his defence on or before the date fixed; and further, that in default of appearance being entered on or before the date fixed in the notice the election petition may be heard and determined in his absence. Sub-rule (a) of Rule 6 provides that notice for the respondent shall be issued by ordinary process and simultaneously by registered post. Sub-rule (b) of Rule 6, however, provides that the notice of the election petition shall also be simultaneously published in a newspaper selected by the Registrar. The Registrar had selected a newspaper and the petitioner was duly informed of this fact and the amount that he was required to deposit for publication of the notice. It is at that stage that the petitioner moved an application for dispensation of the publication of the notice in the newspaper. Dispute in an election petition is not restricted to the petitioner and the respondent alone but involves the entire constituency and every interested person should have notice of the presentation of the election petition. This is what was observed by the Supreme Court in Inamati Mallappa Basappa vs. Desai Basavaraj Ayyappa and others, AIR 1958 SC 698 (supra). The Supreme Court considered this issue in the light of the unamended provisions where the election petition was required to be presented before the Election Commission. The Supreme Court, after placing reliance upon its earlier decisions, observed that by publication of notice in the official gazette not only the respondents to the petition get notice but the entire constituency as a whole receives such a notice so that each and every voter of the constituency and all parties interested become duly aware of the presentation of the election petition. The whole constituency is thus alive to the fact that the result of the election duly declared has been questioned on various grounds with the likely result that the election of all or any of the returned candidates may be declared void and the petitioner or any other candidate declared duly elected in place of the returned candidate. The constituency, therefore, has a vital interest in the proceedings before the Tribunal which have a characteristic of their own different from the ordinary civil proceedings. Paragraphs 10 and 11 of the judgment are reproduced below: "10. It is necessary at the outset, therefore, to understand the nature and scope of an Election Petition. The constituency, therefore, has a vital interest in the proceedings before the Tribunal which have a characteristic of their own different from the ordinary civil proceedings. Paragraphs 10 and 11 of the judgment are reproduced below: "10. It is necessary at the outset, therefore, to understand the nature and scope of an Election Petition. As has been observed by us in the judgment just delivered in Kamaraja Thevar v. Kunju Thevar, Civil Appeals No.763 & 764 of 1957 and Civil Appeal No.48 of 1958 : (A.I.R. 1958 S.C. 687) (A):- "An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power." ...................... "An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process." ........................ "An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested." ......................... 11. An Election Petition presented to the Election Commission is scrutinised by it and if the Election Commission does not dismiss it for want of compliance with the provisions of Section 81, Section 82 or Section 117 of the Act, it accepts the same and causes a copy thereof to be published in the official gazette and a copy thereof to be served by post on each respondent. The respondents to the petition not only get notice of the same but the constituency as a whole receives such notice by publication thereof in the official gazette so that each and every voter of the constituency and all parties interested become duly aware of the fact of such Election Petition having been presented. A copy of the Election Petition published in the official gazette would also show to all of them that the petitioner in a particular Election Petition, in addition to claiming a declaration that the election of all or any of the returned candidates is void, has also claimed a further declaration that he himself or any other candidate has been duly elected. The whole constituency is thus alive to the fact that the result of the election duly declared is questioned on various grounds permitted by law with the likely result that the election of all or any of the returned candidates may be declared void and the petitioner or any other candidate may be declared duly elected, in place and stead of the returned candidate. The constituency may have an interest in either maintaining the status quo or if perchance the election of the returned candidate is set aside, in seeing that some other deserving candidate is declared elected in his place and stead and not necessarily the petitioner or any other candidate sponsored by him whose election could be challenged on any of the grounds mentioned in Section100 (1). It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunals with a characteristic of their own and differentiates them from ordinary civil proceedings. ................." (emphasis supplied) This view was reiterated by the Supreme Court in Dr. P. Nalla Thampy Thera vs. B.L. Shanker and others, AIR 1958 SC 135 (supra) and the contention that the view taken by the Supreme Court in Inamati Mallappa Basappa (supra) that the election dispute involves the entire constituency was not correct was not accepted. The relevant paragraph 22 of the decision in Dr. P. Nalla (supra) is reproduced below: "22. The ratio of this decision as also the observations in Basappa's case ( AIR 1958 SC 698 ), the appellant contends are, wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded. We do not think the appellant's contention can be accepted. The earlier decisions of this Court do not in any way militate against the view taken in Dhoom Singh's case (supra) and the observations made in Basappas's case (supra). Those decisions were not concerned with the question as to whether an election petition can be dismissed for default. The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code wold be applicable. Those decisions were not concerned with the question as to whether an election petition can be dismissed for default. The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code wold be applicable. About eight years back this Court had occasion to point out that if the intention of the legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act. We find that even earlier in Sheodhan Singh v. Mohan Lal Gautam, (1969) 3 SCR 417 at p. 421: ( AIR 1969 SC 1024 at p. 1026), this Court had stated: "From the above provisions it is seen that in an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds" (emphasis supplied) In view of the aforesaid observations made by the Supreme Court in Inamati Mallappa Basappa (supra) and Dr. P. Nalla (supra) that dispute in an election petition is not centered around merely between the petitioner and the respondents but the entire constituency, the publication of the notice in the newspaper is necessary. The contention of the petitioner that the publication of the notice in the newspaper should be dispensed with since the respondent has been served cannot, therefore, be accepted. The second contention of the petitioner is that since the petitioner does not have the means to pay the cost for publication in the newspaper selected by the Registrar of the Court, the Court can order for deferred payment as was done in Election Petition No.4 of 2014. It is not possible to accept this contention of the petitioner. Rule 6(b), clearly requires notices of the election petition to be simultaneously published in the newspaper selected by the Registrar. It is not possible to accept this contention of the petitioner. Rule 6(b), clearly requires notices of the election petition to be simultaneously published in the newspaper selected by the Registrar. Rule 6(c) also requires that notices, process fee, charges and a sum of Rs.250/-as an initial deposit on account of cost of publication in the newspaper shall be supplied by the petitioner within seven days of the order directing notice to issue. Even this amount was not deposited by the petitioner. Rule 6(d) also requires that where the cost of publication in the newspaper exceeds Rs.50/-, the Registrar shall call upon the petitioner to deposit the excess amount in the Court within the time fixed by him. The Registrar had called upon the petitioner to deposit Rs.9024/-. As noticed above, while dealing with the first contention of the petitioner, it has been found that publication in the newspaper is to ensure that the entire constituency is made aware of the pendency of the election petition. In this view of the matter deferred payment would not serve any purpose. The submission of the petitioner that even the amount of Rs.250/-which is required to be deposited in terms of Rule 6(c) is on higher side, cannot also be accepted as this is certainly less than the amount that is actually required for publication of the notice. This election petition was presented before the Registrar of the Court on 27 June 2014. Notice was issued on 6 February 2015. The Court has to be satisfied that the grounds mentioned by the petitioner in the application filed for dispensing the publication of the notice in the newspaper are bona fide grounds and the intention behind moving of the application is not to merely avoid the deposit of the amount for publication in the newspaper. Rule 6(c) provides that notices, process fee, charges and a sum of Rs.250/-as an initial deposit on account of the cost of publication in a newspaper shall be supplied by the petitioner within seven days of the order directing notice to issue. Rule 6(c) further provides that in default, the election petition shall be laid before the Bench for orders and the Bench may reject the election petition unless for sufficient cause it grants further time. Rule 6(c) further provides that in default, the election petition shall be laid before the Bench for orders and the Bench may reject the election petition unless for sufficient cause it grants further time. The Court is of the opinion that sufficient cause has neither been placed nor does it exist for dispensing with the publication of the notice in the newspaper and that by filing the application, the petitioner is merely avoiding the deposit of amount for publication in the newspaper. The application filed by the petitioner for dispensation with the publication of the notice in the newspaper is, therefore, without any substance and deserves to be rejected. Thus, for all the reasons stated above, Civil Misc. Application No.32181 of 2015 filed by the petitioner for dispensing with the publication of the notice in the newspaper is rejected. As a result of the rejection of the application, the election petition stands dismissed." 9. The aforesaid case squarely covers the present case. The necessity of publication is duly considered by the Supreme Court and is reiterated by this Court. The failure in publication goes to the root of the matter. 10. In the present case, the petitioner has failed to take steps for publication of notice. The first ground taken by the petitioner for seeking exemption from publication of notice is that the respondent stands served. The said aspect is fully covered by the judgment in the case of Dr. Mohammad Ismail Faruqui (supra), as discussed above. 11. So far as the next submission of the petitioner, that, the Senior Registrar had taken the quotation from Dainik Jagran, Lucknow office instead of Dainik Jagran, Ambedkar Nagar office, is concerned, in case the petitioner had any such objection, he ought to have raised the same at appropriate time before the Senior Registrar or moved an appropriate application before the Court. He failed to take any such steps. Even now, when it was pointed out by the respondent, the petitioner has only moved an application for exemption from publication. There is no prayer made by the petitioner that he is ready and willing to deposit the money for publication. Even during the course of arguments, the petitioner, submitting his case in person, did not reply to the query of the Court, whether he is now willing to deposit the money for publication of notice. There is no prayer made by the petitioner that he is ready and willing to deposit the money for publication. Even during the course of arguments, the petitioner, submitting his case in person, did not reply to the query of the Court, whether he is now willing to deposit the money for publication of notice. His only reply has been that now there is no need for publication of notice. 12. In the given facts and circumstances of the case, I find that the petitioner has failed to comply with the orders dated 18.7.2019 and 23.9.2019 of this Court for publication of notice. He has not sought any condonation of delay in complying with the said orders of the court or shown willingness to make publication even now. Rather he has only sought an exemption from publication of notice. The said exemption cannot be granted by this Court as is already settled by this Court in the case of Dr. Mohammad Ismail Faruqui (supra) and judgments of the Supreme Court referred to in the said case. 27. I have considered the submissions of the parties. The Supreme Court has repeatedly considered the law with regard to curable and incurable defects of an election petition. Lastly, in the case of Saritha S. Nair vs. Hibi Eden, 2020 SCC Online SC 1006 (SLP (Civil) No.10678 of 2020 dated 9.12.2020), a three Judges Bench of the Supreme Court, referring to its earlier pronouncements, again considered the said issue. Relevant paragraphs for our purposes read: "21. Chapter-II, Part-VI of the Representation of the People Act, 1951, contains provisions for "Presentation of election petitions to High Court" and Chapter III contains provisions for "Trial of election petitions". Section 86(1), with which Chapter-III begins, obliges the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. The dismissal of an election petition under Section 86(1) is deemed by the Explanation under Section 86(1) to be a decision under Section 98(a). Section 98 speaks about 3 types of orders that could be passed at the conclusion of the trial of an election petition. The dismissal of an election petition under Section 86(1) is deemed by the Explanation under Section 86(1) to be a decision under Section 98(a). Section 98 speaks about 3 types of orders that could be passed at the conclusion of the trial of an election petition. They are:- (i) The dismissal of the election petition; or (ii) A declaration that the election of the returned candidate is void; or (iii) A declaration not only that the election of the returned candidate is void, but also that the petitioner or any other candidate was duly elected. 22. It is important to note that the above 3 different types of decisions under Section 98, can be rendered by the High Court only at the conclusion of the trial. But the dismissal under Section 86(1) is an exception. The reference in the Explanation under Section 86(1) to Section 98(a), makes it clear that the power of the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, is available at the pre-trial stage." 28. It is relevant to note that the Act keeps in two separate compartments-- (i) the presentation of election petitions; and (ii) the trial of election petitions. The presentation of election petitions is covered by Sections 80 to 84 falling in Chapter-II. The trial of election petitions is covered by Sections 86 to 107 and they are contained in Chapter-III. 29. This compartmentalization, may be of significance, as seen from 2 facts namely:-- (i) That under Section 80 no election shall be called in question except by an election petition presented in accordance with the provisions of "this part"; and (ii) That a limited reference is made to the provisions of the Code of Civil Procedure, 1908 in Chapter-II, only in places where signature and verification are referred to. 35. Section 86(1) empowers the High Court to dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117 and it does not include Section 83 within its ambit. Therefore, the question whether or not an election petition which does not satisfy the requirements of Section 83, can be dismissed at the pre-trial stage under section 86(1), has come up repeatedly for consideration before this Court. Therefore, the question whether or not an election petition which does not satisfy the requirements of Section 83, can be dismissed at the pre-trial stage under section 86(1), has come up repeatedly for consideration before this Court. We are concerned in this case particularly with the requirement of Clause (c) of Subsection (1) of Section 83 and the consequence of failure to comply with the same. 36. In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR (1964) SC 1545, a preliminary objection to the maintainability of the election petition was raised on the ground that the verification was defective. The verification stated that the averments made in some paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal and other sources. There was no statement that the advice and information received by the election petitioner were believed by him to be true. Since this case arose before the amendment of the Act under Act 47 of 1966, the election petition was dealt with by the Tribunal. The Tribunal held the defect in the verification to be a curable defect. The view of the Tribunal was upheld by this Court in Murarka Radhey Shyam Ram Kumar (supra). This Court held that "it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure for the verification of pleadings as required by Clause (c) of Sub-section (1) of Section 83 is fatal to the maintainability of the petition". 37. The ratio laid down in Muraraka was reiterated by a three member Bench of this Court in F.A. Sapa v. Singora (1991) 3 SCC 375 holding that "the mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground". It was also held in F.A. Sapa that "since Section 83 is not one of the three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Section 81". 38. In F.A. Sapa (supra) this Court framed two questions in paragraph 20 of the Report, as arising for consideration. 38. In F.A. Sapa (supra) this Court framed two questions in paragraph 20 of the Report, as arising for consideration. The first question was as to what is the consequence of a defective or incomplete verification. While answering the said question, this Court formulated the following principles:-- (i) A defect in the verification, if any, can be cured (ii) It is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true (iii) If the respondent desires better particulars in regard to such averments or allegations, he may call for the same, in which case the petitioner may be required to supply the same and (iv) The defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under section 81(3) as indicated earlier." 39. It was also held in F.A. Sapa (supra) that though an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial, the defective verification of a defective affidavit may not be fatal. This Court held that the High Court should ensure its compliance before the parties go to trial. This decision was followed by another three-member Bench in R.P. Moidutty v. P.T. Kunju Mohammad (2000) 1 SCC 481 . 40. In Sardar Harcharan Singh Brar v. Sukh Darshan Singh (2004) 11 SCC 196 , this Court held that though the proviso to Section 83(1) is couched in a mandatory form, requiring a petition alleging corrupt practice to be accompanied by an affidavit, the failure to comply with the requirement cannot be a ground for dismissal of an election petition in limine under Section 86(1). The Court reiterated that non-compliance with the provisions of Section 83 does not attract the consequences envisaged by Section 86(1) and that the defect in the verification and the affidavit is a curable defect. The following portion of the decision is of significance: "14. The Court reiterated that non-compliance with the provisions of Section 83 does not attract the consequences envisaged by Section 86(1) and that the defect in the verification and the affidavit is a curable defect. The following portion of the decision is of significance: "14. xxxx Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly "defective" affidavit, is required to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case." 41. In K.K. Ramachandran Master v. M.V. Sreyamakumar (2010) 7 SCC 428 , this Court followed F.A. Sapa (supra) and Sardar Harcharan Singh Brar (supra) to hold that defective verification is curable. The Court again reiterated that the consequences that may flow from a defective affidavit is required to be judged at the trial of an election petition and that such election petition cannot be dismissed under Section 86(1). 42. Though all the aforesaid decisions were taken note by a two-member Bench in P.A. Mohammed Riyas v. M.K. Raghavan (2012) 5 SCC 511 , the Court held in that case that the absence of proper verification may lead to the conclusion that the provisions of Section 81 had not been fulfilled and that the cause of action for the election petition would remain incomplete. Such a view does not appear to be in conformity with the series of decisions referred to in the previous paragraphs and hence P.A. Mohammed Riyas cannot be taken to lay down the law correctly. It appears from the penultimate paragraph of the decision in P.A. Mohammed Riyas (supra) that the Court was pushed to take such an extreme view in that case on account of the fact that the petitioner therein had an opportunity to cure the defect, but he failed to do so. Therefore, P.A. Mohammed Riyas (supra) appears to have turned on its peculiar facts. Therefore, P.A. Mohammed Riyas (supra) appears to have turned on its peculiar facts. In any case P.A. Mohammed Riyas was overruled in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776 on the question whether it is imperative for an election petitioner to file an affidavit in terms of Order VI Rule 15(4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1). As a matter of fact, even the filing of a defective affidavit, which is not in Form 25 as prescribed by the Rules, was held in G.M. Siddeshwar to be a curable defect and the petitioner was held entitled to an opportunity to cure the defect. 43. The upshot of the above discussion is that a defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective." 36. So far as the argument raised by learned counsel for the respondent that the original petition is not filed before the Court is concerned, the same is a defect which is covered under Section 81(3) of the RP Act which requires that "every election petition shall be accompanied by as many copies thereof ..................". Section 81(3) requires that there has to be an election petition and copies thereof are to accompany the same. Therefore, both are entirely distinct and separate things. The petitioner is required to file an election petition and also file its copies for service upon the respondent. 37. Admittedly, the petitioner herein has not filed before this Court the original election petition. The copy filed along with the Court fee is a ''true copy attested'. Such a declaration is made on each and every page of the election petition and its annexures. It is not a case where it can be said to be a bonafide mistake, as on one page or some of the pages, such a declaration is made. The entire election petition on each and every page bears a declaration that it is a ''true copy attested'. In view of this self declaration made by the petitioner, the same cannot be treated to be an original election petition. The entire election petition on each and every page bears a declaration that it is a ''true copy attested'. In view of this self declaration made by the petitioner, the same cannot be treated to be an original election petition. To submit that since Court fee is paid on the same and the Registry has also reported the same, therefore, it should be treated to be the original petition is a fallacy as it bears a declaration of the petitioner that it is ''true copy attested', same declaration as made on each copy accompanying the same. There is no difference between the two except payment of the Court fee. A copy cannot become an original petition only on the basis of the Court fees and its filing before the Court when it bears a declaration that it is a ''true copy attested'. 38. The Supreme Court in the case of Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and another (2006) 1 SCC 75 , has considered the impact of defects in signing of the appeals/petitions and Vakalatnama filed along with the same. After considering the law settled, it concludes in Para-15 which reads: "15. It is, thus, now well settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the memorandum of appeal or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, can subsequently be corrected. It is the duty of the office to verify whether the memorandum of appeal was signed by the appellant or his authorised agent or pleader holding appropriate Vakalatnama. If the office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorised by a vakalatnama executed by the appellant) is, no doubt, mandatory. The requirement that the appeal should be signed by the appellant or his pleader (duly authorised by a vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without giving an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the Vakalatnama. Thereafter, the Supreme Court prescribes exception to the aforesaid Rule and in Para-17 held as follows: "17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant." Therefore, in normal cases, the defects in the pleadings including the defects in signing the same are curable. Had the present case been one of the regular cases or the defects being a minor irregularity, this Court could have permitted the same to be corrected. Present is an election petition and Section 81(3) of the RP Act specifically provides for filing of an election petition along with copies attested by the petitioner. Section 86 of the RP Act provides that failure to comply with the requirement of Section 81 of the RP Act would result in rejection of the election petition at the initial stage only. Section 86 of the RP Act provides that failure to comply with the requirement of Section 81 of the RP Act would result in rejection of the election petition at the initial stage only. In view thereof, condition no.(i) of Para-17 of Uday Shankar Triyar (supra) is applicable to the present case and thus, the consequences as prescribed under Section 86 of the RP Act are to follow, as is already settled in the case of Saritha S. Nair (supra). 39. In view of the discussions made hereinabove, C.M. Application No.118019 of 2021 under Order VII Rule 11 of C.P.C. is disposed of, holding that the election petition itself is not maintainable. 19. Heard learned counsel for the parties and perused the material available on the record. 20. Notably, the rules of the Court are made by the High Court in exercise of powers confer by Article 225 of the Constitution of India. Chapter XV-A provides a special provisions relating to election petition. The purpose of issuing notice to the respondent as per rule 5 and its publication under rule 6 (c) is loud and clear as has been considered by this Court in more or less identical matter in the case in re: Lal Bahadur (supra) referring the decisions of Apex Court and High Courts that the publication of election petition is necessary for the voters of the Constituency concerned to know that one election petition is pending consideration. The Apex Court in re: Inamati Mallappa Basappa vs. Desai Basavaraj Ayyappa and others reported in AIR 1958 SC 698 has observed in para-10 as under:- "10. It is necessary at the outset, therefore, to understand the nature and scope of an Election Petition. As has been observd by us in the judgment just delivered in Kamaraja Thevar vs. Kanju Thevar, Civil Appeals No.763 & 764 of 1957 and Civil Appeal No.48 of 1958: ( AIR 1958 SC 687 ) (A):- "An election contest is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in its and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process." .............. The public also are substantially interested in its and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process." .............. "An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested." The aforesaid decision in Kamaraja Thevar (supra) has been considered by the Apex Court in re: Dr. P. Nalla Thampy Thera vs.B.L. Shanker and others reported in AIR 1984 SC 135 . 21. In view of what has been considered by Apex Court in re: Inamati Mallappa Basappa (supra), Kamaraja Thevar (supra), Dr. P. Nalla Thampy Thera (supra) and Dr. Vijay Laxmi Sadho (supra) , I am of the considered opinion that the mandatory condition of Rule 6 (c) of the High Court Rules, 1952 regarding publication may not be avoided or ignored inasmuch as the purpose of the publication of election petition is loud and clear and meaningful. That mandatory condition may not be done away with in the pretext that the same is procedural in nature. The Rule/ Rules of the High Court, 1952 have to be read along with very purpose of the rule to appreciate the consequence of non-compliance of that rule. Therefore, the submission of learned counsel for the petitioner regarding compliance of Rule 6 (c) of the High Court Rules, 1952 as a 'mockery of law' is an irresponsible and unacceptable submission inasmuch as the aforesaid rule has its loudable purpose and its compliance is adhere to in all the election petitions. 22. In the present case, the petitioner has admittedly not followed the rule 6 (c) of the Rules, 1952 as he has not deposited the required amount for publication in the newspaper and the purpose of publication in the newspaper is loud and clear as has been considered by the Apex Court from the very beginning to the effect that an election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections but the public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is not a suit between two persons, but is a proceeding in which the constituency itself is the principal part interested. An election is not a suit between two persons, but is a proceeding in which the constituency itself is the principal part interested. Therefore, non-compliance of rule 6 (c) of the Rules, 1952 would vitiate the very purpose of filing election petition, hence, this election petition may be dismissed on the ground of aforesaid lapse alone i.e. non-compliance of rule 6 (c) of the Rules, 1952. 23. It is trite law that fraud vitiates every solemn act and if the fraud is committed on or before the Court, then the privy to it has committed an error which is unpardonable and has mislead the Court to gain favourable orders by deceit. In the above mentioned election petition, the petitioner has changed the page No.15, though page number not mentioned on that relevant page, captioned as prayer at the top of it, annexed after page No.14 and before page No.16 by fraudulent interpolation/ replacing of the page after filing of the election petition, that too without leave of this Court. The main copy of the prayer clause is typed whereas in the additional copy it appears to have done later on with blue ink. 24. The aspect of defect in memorandum of appeal etc. has been considered by the this Court in re: Lal Bahadur (supra) referring the dictums of Apex Court and also referring the various provisions of RP Act and C.P.C. On the basis of dictums of Apex Court, this Court in re: Lal Bahadur (supra) has held that in normal case the defect in pleadings including the defect in signing the same are curable. The present case is an election petition and Section 81 (3) of RP Act specifically provides for filing an election petition along with the copies attested by the petitioner. Section 86 of RP Act provides that failure to comply with the provisions of section 81 of RP Act would result in rejection of election petition at the initial stage and even learned counsel for the petitioner has not prayed to correct those defects. 25. Therefore, in view of the dictum of Apex Court in re: Uday Shanker Triyar (supra), the aforesaid defect may be the reason to dismiss the election petition at the initial stage. 26. 25. Therefore, in view of the dictum of Apex Court in re: Uday Shanker Triyar (supra), the aforesaid defect may be the reason to dismiss the election petition at the initial stage. 26. In view of the above, since the present petitioner has refused to deposit the amount required for publication of election petition and he may not be exempted from such publication, therefore, application for exemption from publication is rejected. Consequently, there is no publication made in the newspaper by the petitioner, which is a mandatory requirement in terms of rule 6 (c) of the Rules, 1952, therefore, the present election petition itself is not maintainable. 27. Accordingly, the instant election petition is dismissed. All the application are disposed of in terms of the aforesaid order. 28. No order as to costs.