Shipra Vs. Shri Shanti Lal Khoiwal  INSC 361 (3 March 1996)
Paripoornan Paripoornan, J.
CIVIL APPEAL NOS. 8080 OF 1994 & 6635 OF 1995 AND CIVIL APPEAL NO. 200 OF
1993 Jhammak Lal V. Laxminarayan Pande & Ors.
agree with my learned Brethren that the appeals should be dismissed.
relevant facts in the appeals are stated in the judgment of my learned Brother Ramaswamy,
j. In view of the importance of the question, I would add the following:
81, 83 and 86 of the Representation of People Act (hereinafter referred to as
'the Act'), call for interpretation in this batch of appeals. The said
statutory provisions may be usefully quoted.
Presentation of petitions.—
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 no earlier than, the date of election of the returned
candidate, or if there are more than one returned candidate at the election or
different, the later of those two dates.
Explanation.--- In this sub- section,
"elector" mean a person who was entitled to vote at the election to
which the election petition relates, whether he has voted at such election or
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." (emphasis supplied) Section 83.
Contents of petition.—
contain a concise statement of the material facts on which the petitioner relies;
shall set fourth 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
be signed by the petitioner and verified in the manner laid down in the Code of
Civil Procedure 1908, for the verification of pleadings:
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.
Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition.
supplied) Section - 86 (1)
Trial of election petition---
The High Court shall dismiss an election petition which does not comply with
the provisions of section 81 of section 82 or section 117." There are
innumerable decisions of this Court which have construed the above statutory
provisions. It is hardly necessary to refer to all of them One of the latest
decisions is F.A. Spa & Ors. V. Singora & Ors. (1991 (3) SCC 375). A
mere look of the proviso to Section 83(1) along with Section 83(2) will show
that the affidavit referred to in the proviso to Section 83(1) also forms part
of the election petition. The election petitions is in truth and reality one
document, consisting of two part-- one being the election petition proper and
the other being the affidavit referred to in proviso to section 83(1) of the
Act. So, the copy of the election petition required to be file under Section
83(3) read along with Section 83 will include a copy of the affidavit. See: M. Kamalam
v. Dr. V.A. Syed Mohammed. [AIR 1978 SC 840 (844)] Qazi, j. In Purushottam v.
Returning Officer, Mravati and Ors. (AIR 1992 Bombay 227) has, after referring
to the above decision of this Court along with the other decision and an
unreported decision of the Bombay High Court in Election petition petition No.
2 or 1990, held that the absence of the endorsement of the Notary on the copy
of the affidavit accompanying the election petition renders the copy as not
conforming to Section is liable to be dismissed for the said omission.
opinion, the above decision lays dow the law correctly and is squarely
applicable herein. In particular, the following observations in the unreported
decision of the Bombay High Court in Election petition No. 2 or 1990 quoted in
paragraph No. 12 of the judgment of Qazi, j. are instructive and furnish
sufficient basis to reach the said conclusion. The observations are to the
That, however, leaves one question to be considered and it is whether the copy
of the endorsement "Affirmed and signed before me" by the Notary,
designation of the Notary and the stamped endorsement regarding the affirmation
which he made at the time of the making of the affidavit, were necessary and
essential parts of the document and if these are omitted from the copy
furnished, that would render the copy, which is furnished, incomplete, and the
defect would be so glaring as to negative the inference that the copy was
furnished. When Form No. 25 prescribes a particular form and the copy of the
affidavit is to be furnished, it seems to me that the endorsement the authority
before whom the affirmation was made, together with his official designation
and the stamped endorsement, are also essential and without them the copy
cannot be regarded as true copy. It is not merely the contents of the affidavit
which brings sanctity to the document by the affirmation that has been made,
and without the affirmation, it can be no affidavit at all. I am not impressed
by the submission of Shri Bobde that these endorsements were merely formal,
because what is required under the proviso to sub-section(1) of S. 83 is an
affidavit, and it should be possible for the respondent to ascertain whether, infact,
the contents were sworn, affirmed and signed before the Magistrate or the
Notary or the person in whose presence the affirmation was made, had authority
to administer oath.
respondent will no be in position to point out that the person, who is said to
have administered the oath, was not in existence or had no authority to
administer the oath or that the signature and the endorsement on the document
purported to have been made by the alleged authority were fake. If the copies
of the affidavit are no faithful and do not include these endorsements, a
valuable right of the respondent is taken away and considering the purpose
which the copy of the endorsement would serve, it cannot be said that this
portion would not be integral part of the affidavit.
these details form an integral part of the affidavit, furnishing a copy without
that portion would not be furnishing a complete copy, and in that event, merely
because the returned candidate made and endorsement that it was a true copy, it
cannot be regarded as a true copy.
the purpose that is to be served, I do not think that the lapse can be regarded
as inconsequential." (emphasis supplied) With respect, I would adopt the
said observations as may own. The appeals deserve to be dismissed.