Murarka Radhey Shyam Ram Kumar Vs.
Roop Singh Rathore & Ors [1963] INSC 136 (7 May 1963)
07/05/1963 DAS, S.K.
DAS, S.K.
SINHA, BHUVNESHWAR P.(CJ) DAYAL, RAGHUBAR
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1964 AIR 1545 1964 SCR (3) 573
CITATOR INFO:
R 1970 SC 765 (9) R 1971 SC 342 (6) RF 1974
SC1185 (16) F 1984 SC 305 (9,21) R 1991 SC1557 (20,22)
ACT:
Election Dispute-Joinder of -parties-Joinder
of candidate who did not contest-If invalidates eletion petition"Copy",
meaning of-Defects in verification and affidavitMaintainability of
petition-Representation of the People Act, 1951 (43 of 1951), ss. 81,82,83,90.
HEADNOTE:
The validity of the election of the appellant
to the House of the People at the third general elections held in the month of
February, 1962, was challenged by two of the electors of the constituency from
which the appellant was elected, by filing election petitions for setting aside
the election. The nomination paper of B, one of the two electors aforesaid, had
been rejected by the returning officer. The appellant who was one of the
respondents to the two election petitions raised preliminary objections to the
maintainability of the petitions and pleaded that they should be dismissed on
the grounds, inter alia, (1) that B whose nomination paper was rejected and who
was not a contesting candidate was improperly impleaded as a respondent to the
election petition in contravention of the provisions of s. 82 of the
Representation of the People Act, 1951, (2) that there was non-compliance with
the provisions of s. 81 (3) of the Act because the copy of the election
petition served on the appellant was not a true copy of the original filed
before the Election Commission, and (3) that there was non-compliance with the
provisions of s. 83 of the Act inasmuch as (a) the election petition was not
verified in the manner laid down in s. 83, and (b) the affidavit in respect of
corrupt practices which accompanied the petition was neither properly made nor
in the prescribed from.
Held (1) that where all the parties whom it
was necessary to join under the provisions of s. 82 of the Representation of
the People Act, 1951, were joined as respondents to the 574 petition, the
circumstance that a person who was not a necessary party had also been impleaded
did not amount to a contravention of s. 82 of the Act;
(2) the word "copy" in s. 81 (3) of
the Act did 'not mean an absolutely exact copy but a copy so true that nobody
could by any possibility misunderstand it, and that the test whether a copy was
a true one was whether any variation from the original was calculated to
mislead an ordinary person;
In re Hewer, Ex parte Kahan, (I 882) 21 Ch.
D. 87 1, relied on.
(3)that a defect in the verification of an
election petition as required by s. 83 (1) (c) of the Act did not attract s. 90
(3) and so was not fatal to the maintainability of the petition; and, (4)that a
defect in the affidavit was not a sufficient around for dismissal of the
petition.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 30 and 31 of 1963.
Appeals by special leave from the judgment
and order dated August 31, 1962, of the Rajasthan High Court in D. B Civil Writ
Petitions Nos. 376 and 377 of 1962.' M. C. Setalvad, G. S. Pathak, N. P.
Nathwani, H. J. Thacker and G. C. Mathur for the appellant (in C.A. No. 30 of
1963).
G.S. Pathak, N. P. Nathwani, H. J. Thackar
and G. C.
Mathur, for the appellant (in C.A. No 31 of
1963).
S. C. Agarwala, R. K. Garg, D. P. Singh and
M. K.
Ramamurthi, for respondent No. 2 (in C. A.
No. 30 of 1963).
R.K. Garg, for respondent No. 2 (in C. A. No.
31 of 1963).
V.K. Krishna Menon and Janardan Sharma for
the Intervener.
575 1963. May 7. The judgment of the Court
was delivered by S. K. DAS J.-These two appeals have been heard together as
they raise some common questions of law and fact, and this judgment will govern
them both.
The appellant before us, Murarka Radhey Shyam
Ram Kumar was elected to the House of the People at the third general elections
held in the month of February, 1962. He was elected from a constituency known
as the jhunjhunu Parliamentary Constituency in Rajasthan. Two election
petitions were filed for setting aside the election of the appellant. One of
these was filed by one Ridmal Singh who stated that he was an elector in the
said constituency.
Another application was filed by one Balji
who was also an elector in the said Parliamentary Constituency and whose
nomination paper was rejected by the returning officer. We are not concerned in
the present appeals with the grounds on which the two election petitions, one
by Ridmal Singh and numbered as 269 of 1962 and the other by Balji and numbered
as 295 of 1962, were based, because the election petitions have not yet been
tried on merits By two applications dated July 6, 1962, the appellant who was
one of the respondents to the two election petitions raised certain preliminary
objections to the maintainability of the two election petitions. The Election
Tribunal dealt with these preliminary objections by its orders dated August 13,
1962.
It dismissed the preliminary objections.
Thereupon the appellant filed two writ petitions in the High Court of Rajasthan
by which he prayed that the orders of the Election Tribunal dated August 13,
1962, and certain consequential orders passed on August 14, 1962, be quashed
and that an order or direction be issued to the Election Tribunal to dismiss
the two election petitions on the main ground that they do 576 not comply with
certain mandatory provisions of the Representation of the People Act, 1951, hereinafter
referred to as the Act. These two writ petitions were dismissed by the High
Court by its order dated August 31, 1962. The appellant then applied for
special leave to this court and having obtained such leave, has preferred the
present appeals.
We may now state briefly the grounds on which
the appellant contends that the two election petitions were not maintainable
and should have been dismissed by the Election Tribunal With regard to Election
Petition No. 269 of 1962 the grounds urged before us on behalf of' the
appellant are three in number Firstly, it is contended that there was
noncompliance with the mandatory provisions of s. 82 of the Act. We shall
presently read that section. The contention of the appellant is that Ballu or
Balji whose nomination paper was rejected and who was not a contesting
candidate was improperly impleaded as respondent No. 7 to the election
petition, though s. 82 requires that in cases where in addition to the relief o
declaring the election of the returned candidate to be void, a further
declaration is claimed that the petitioner himself or some other candidate has
been duly elected, all the contesting candidates must be made parties to the
election petition. Ballu or Balji was not a contesting candidate and was
therefore impleaded to the election petition in contravention of the provisions
of s. 82. Secondly, it is urged that there was non-compliance with the
provisions of s. 81 (3) of the Act because the copy of the election petition
served on the appellant was not a true copy of the original filed before the
Election Commission nor war, it properly attested to be a true copy under the
signature of the petitioner who filed the election petition. Thirdly, it is
urged that there was none compliance with the provisions of s. 83 of the Act
inasmuch as the affidavit in respect of corrupt 577 practices which accompanied
the election petition was neither properly made nor in the prescribed form.
With regard to Petition No. 295 of 1962 the
grounds alleged are these Firstly, it is stated that at the time of its
presentation to the Election Commission, the petition was not accompanied by
true copies of the petition as required by s. 81 (3) of the Act because there
was a reference to four enclosures at the foot of the schedule of the original
petition, but in the copy served on the appellant the enclosures were not
reproduced. Secondly it is urged that the election petition was not duly
verified inasmuch as the date and place of verification were not stated at the
foot of the verification clause Thirdly, it is urged that a copy of the
treasury receipt showing the deposit of a sum of Rs. 2,000/in favour of the
Election Commission was not enclosed with the copy of the petition which was
served on the appellant, nor was the copy of the order dated january 22, 1962,
by which the returning officer rejected the nomination paper of the petitioner,
signed or verified by the, petitioner.
We may here refer to some of the provisions
of the Act (as they stood 'at the relevant time) which have a bearing on the
preliminary objections urged before us Under s. 79 (b) the expression
"candidate" in parts VI, VII and VIII of the Act means, unless the
context otherwise requires, a person who has been or claims to have been duly
nominated as a candidate at any election, and any such person shall be deemed
to have been a candidate as from the time when, with the election in prospect,
he began to hold himself out as a prospective candidate. S. 80 of the Act
states that no election shall be called in question except by an election
petition presented in accordance with the provisions of Part VI. S. 81 states
in effect that an election petition calling in question any election may be
presented on one or 578 more of the grounds specified in sub-s. (1) of s. 100 and
s. 101 to the Election Commission by any candidate at such election or any
elector within forty-five says from the date of election of the returned
candidate Sub-s. (3) of s. 81 which sub-section is important for our purpose,
reads as follows :
"Every election petition shall be
accompanied by as many copies thereof as there are respondents mentioned in the
petition and one more copy for the use of the Election Commission, and every
such copy shall be attested by the petitioner under his own signature to be a
true copy of the petition." 82 states who shall be parties to the
petition. It leads :
"A petitioner shall join as respondents
to his petition (a)where the petitioner, in addition to claiming a 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." S.83 lays down what shall be the contents of the petition.
We are concerned in the present case,% with
the provisos to sub-s. (1) of s. 83. That proviso says, "Provided that
where the petitioner alleges any corrupt practice, the petition shall also be
579 accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars thereof " S.85
states that if the provisions of s. 81 or s. 82 or s.117 have not been complied
with, the Election Commission shall dismiss the petition. S. 86 lays down that
if the petition is not dismissed under s. 85, the Election Commission shall
cause a copy of the petition to be published in the Official Gazette and a copy
to be served by post on each respondent, and shall then refer the petition to
an Election Tribunal for trial. We may skip over ss. 87, 88 and 89 which deal
with matters with which we are not directly concerned. We then come to s. 90
which lays down the procedure to be followed before the Election Tribunal.
Sub-s. (1) of s. 90 says that subject to the
provisions of the Act and of any rules made there under, every election
petition shall be tried by the Tribunal as nearly as may be in accordance with
the procedure applicable under the Code of Civil Procedure, 1908, to the trial
of suits. Sub-s. (3) of s. 90states :
''The Tribunal shall dismiss an election petition
which does not comply with the provisions of section 81, or section 82
notwithstanding that it has not been dismissed by the Election Commission under
section 85.
Explanation-An order of the Tribunal
dismissing an election petition under this subsection shall be deemed to be an
order made under clause (a) of section 98." Sub-s (4) of s. 90 states that
any candidate not already a respondent shall, upon application made to the
Tribunal within fourteen days from the date of commencement of the trial and
subject to the provisions of s. 119, be entitled to be joined as a 580
respondent. Sub-s. (6) states that every election petition shall be tried as
expeditiously as possible and endeavour shall be made to conclude the trial
within 6 months from the date of publication of the copy of the petition in the
Official Gazette under subs. (1) of S. 86.
Let us now examine the preliminary objections
which have been urged before us on behalf of the appellant, in the light of the
provisions to which we have just now referred.
We take first the objection based on the
joinder of Ballu or Balji to Election petition No. 269/1962. The argument on
this part of the case is the following Learned counsel for the appellant has
contended that the provisions of s. 82 of the Act are mandatory provisions and
any failure to comply with those provisions is fatal in the sense that it is
obligatory on the Tribunal to dismiss an election petition which does not
comply with the Provisions of s. 82. He has relied for this purpose on sub-s.
(3) of s. 90. He has further contended that in view of the aforesaid provisions
of the Act, namely, the provisions in s. 82 and sub-s. (3) of s. 90, it is not
open to an Election Tribunal to apply the Principles of the Code of Civil
Procedure and treat a non-,joinder or mis-joinder as not fatal to the
maintainability of the petition.
The foundation of the argument is that there
has been a non-compliance with the provisions of s. 82. If that foundation is
absent, then the whole argument disappears.
Now, it is admitted that Ballu or Balji was
not a contesting candidate within the meaning of s. 82 because his nomination
paper had been rejected. The admitted position further is that all the
contesting candidates were joined to the petition as required by s. 82.
Therefore, what happened was this All 'the parties whom it was necessary to
join under the provisions of s. 82 were joined as respondents to the petition ;
but Ballu 581 or Balji was joined in excess of the requirements of s. 82. The
question before us is, does this amount to noncompliance with, or contravention
of, the provisions of s. 82? Learned counsel for the appellant wishes us to
read s. 82 as though it said that the persons named therein and no others shall
be joined as respondents to the petition. He wants us to add the words
"and no others" in the section.
We find no warrant for such a reading of s.
82. We agree with the High Court that if all the necessary parties have been
joined to the election petition, the circumstance that a person who is not a
necessary party has also been impleaded does not amount to a breach of the
provisions of s. 82 and no question of dismissing the petition under subso (3)
of s. 90 arises. It is open to the Election Tribunal to strike out the name of
the party who is not a necessary party within the meaning of s. 82 of the Act.
The position will be different if a person who is required to be joined as a
necessary party under s. 82 is not impleaded as a party to the petition. That
however is not the case here and we are of the view that the learned counsel for
the appellant has failed to make out the very foundation on which his argument
on this part of the case is based. In the view we have taken it is unnecessary
to consider further the legal effect of a contravention of the provisions of s.
82. It is perhaps necessary to add that learned counsel for the respondents
relied on the decision of this court in Jagan Nath v. Jaswant Singh (1), where
it was held that s. 82 of the Act as it then stood was not mandatory. S. 82
then provided as follows:
"A petitioner shall join as respondents
to his petition all the candidates who were duly no.
minated at the election other than himself if
he was so nominated." Sub-s. (4) of s. 90 then provided that
notwithstanding anything contained in s. 85, the tribunal may (1) [1954] S.C.R.
892.
582 dismiss an election petition which does
not comply with the provisions of ss. 81, 83 or 117. There has -been a change
of law since that decision. S. 82 has been re-cast and sub-s. (3 of s. 90 now
states that the tribunal shall dismiss an election petition which does not
comply with the provisions of s. 81 or s. 82 notwithstanding that it has not
been dismissed by the Election Commission under s. 85.
Therefore we do not think that the decision
in Jagan Nath v. Jaswant Singh (1), is determinative of the problem before us.
We need not however pursue this question any further, because we have held that
in the present cases there was no contravention of the provisions of s. 82.
We now go to the second point. But before we
do so, it may perhaps be stated that certain defects in the verification of
Election Petition No. 269 of 1962 have been brought to our notice, as they were
brought to the notice of the Election Tribunal. One of these defects was that
though the verification stated that the averments made in some of the
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 the basis of advice -and information received by the petitioner from legal
and other sources, the petitioner did not state in so many words that the
advice and information received was believed by him to be true. The Election
Tribunal took the view that this defect in verification was a matter which came
within cl.
(c) of sub-s. (1) of s. 83 and the defect
could be removed in accordance With the principles of the Code of Civil
Procedure, 1908. The Election Tribunal further held that such, a defect did not
attract sub-s. (3) of s. 90 inasmuch as that sub-section does not refer to
non-compliance with the provisions of s. 83 as a ground for dismissing an
election petition. We agree with the view expressed by the Election Tribunal.
We have pointed out that sub-s. (4) of (1) [1954] S.C.R. 892 583 s. 90
originally referred to three sections, namely, is 81, 83 and 117. It said that
noth withstanding anything contained in s. 85 the Tribunal might dismiss an
election petition which did not comply with the provisions of s. 81, s. 83 or
s. 117. S. 90 .was amended by Act 27 of 1956.
Sub-s. (3) then said that the Tribunal shall
dismiss an election petition which does not comply with the provisions of s.
81, s. 82 or s. 117 notwithstanding that it has not been dismissed by the
Election Commission under s. 85.
There was a further amendment by Act 40 of
1961 and sub-s.
(3) of s. 90 as it now stands has already
been quoted by us in an earlier part of this judgment. It seems clear to us
that reading the relevant sections in Part VI of the Act, 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, 1908, for the verification of
pleadings as required by cl. (c) of sub-s. (1) of s. 83 is fatal to the
maintainability of the petition.
On behalf of the appellant it has been
further contended that the copy of the petition which was served on the
appellant was not a true copy within the meaning of the mandatory provisions of
subs. (3) of s. 81 of the Act. The argument is that a failure to comply with
the provisions of sub-s. (3) of s. 81 attracts sub-s. (3) of s. 90 and it is
obligatory on the Tribunal to dismiss an election petition which does not
comply with the requirements of sub-s. (3) of s. 81. On the basis of the
decision of this court in Sri Babu Ran v. Shrimati Prasanni (1), it is
contended that the principle in such cases is that whenever the statute
requires a particular act to be done in a particular manner and also lays down
that failure to comply with the said requirement leads to a specific consequence,
it would be difficult to accept the argument that the failure to comply with
the said requirement should lead to any other consequence (1) [1959] S.C.R.
1408.
584 It is argued that no question of
substantial compliance arises in such cases, and the mandatory requirement must
be strictly complied with.
Let us first see what are the defects found
in the copy of the petition served on the appellant. It is admitted that the
first part of sub-s. (3) of s. 81 has been complied with and the election
petition was accompanied by as many copies thereof as there were respondents
mentioned in the petition. It is also admitted that one more copy for the use
of the Election Commission was also given with the petition. The' last part of
the sub-section says that "'every such copy shall be attested by the
petitioner under his own signature to be a true copy of the petition." The
grievance of the appellant is that this part of the subsection was not complied
with inasmuch as (1) the copy which was 'served on the appellant did not
contain the signature of the petitioner at the foot of the petition though the
original contained such signature, and (2) the verification in the copy served
on the appellant omitted to mention paragraph 14-g (ii) in that part of the
verification which related to averments stated to be true to the personal knowledge
of the petitioner. As to the first of these defects the Election Tribunal
pointed out that every page of the copy served on the appellant was attested to
be a true copy under the signature of the petitioner and furthermore it was not
necessary to append a fresh signature to the copy of the petition. With regard
to the second defect the Election Tribunal apparently took the view, though it
did not say so in so many words, that the omission of a reference to.
paragraph 14-g (ii) in the verification in
the copy served on the appellant was a case of mere oversight which did not
mislead anybody because in the body of the petition full details of the
averments were made. The High Court took the view that the defect was not of
such a nature as to amount to noncompliance with the provisions of sub-s. (3)
of s. 81.
585 We agree with the High Court and the
Election Tribunal that the first defect is not a defect at all. 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-s. (3) of s. 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-s.
(3) of s. 81. On behalf of the appellant the
argument is that sub-s. (3) of s. 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-s. (3) dealing with a copy is merely directive, and for this
reliance is placed on the decision of this court in Kamaraja Nadar v. Kunju
Thevar (1). We are of the view that the word ""copy" in sub-s.
(3) of s. 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 edition, volume 4, page 3098).
In this view of the matter it is unnecessary
to go into the further question whether any part of sub-s. (3) of s. 81 is
merely directory. Several English decisions were cited at the Bar The earliest
decision cited to us is the decision in Pocock v. Mason (2) where it was held
that the omission of the words "the" and "by" in the copy
of the writ of capias prescribed by the schedule 2 W. 4, c. 39 did not
invalidate an arrest. The reason given was thus expressed :
"To ascertain whether or not an
unfaithful copy produces any alteration in the meaning (1) [ 1959] S.C.R. 583.
(2) 131 E.R. 1111 586 supposes an exertion of intellect which it may be
inconvenient to require at the hands of those who serve the copy. It was to
obviate this inconvenience, that the legislature has. given a form, and
required that it should be pursued. Nothing but ordinary care is neccssary for
taking the copy." In a later decision Sutton v. Mary and Burgess the copy
of the writ served on the defendant omitted the letter "s" in the
word "she" It was held that the omission was immaterial as it could
not mislead anybody. In Morris v. Smith (2), there was a motion to set aside
the service of the writ of summons for irregularity, on the ground that the
defendant being an attorney, he was only described as of Paper Buildings in the
Inner Temple, London and the addition of "gentleman" was not given.
It was held that the form in the statute 2 Will 4, c. 39 s. I did not require the
addition of the defendant to be inserted in the writ and it was sufficient to
state his residence. The writ of summons was therefore valid. In another case
in the same volume Cooke v. Vaughan (2), it was held that where a writ of
capias described the defendant by the addition of "gentleman", but
that addition was omitted in the copy served, the copy was not a copy of the
writ, in compliance with the stat. 2 Will.
4, c. 39, s. 4 On behalf of the respondents a
number of decision under the Bills of Sale Act, 1878 and the Amend ment Act,
1882 (45 and' 46 Vict. c. 43) were cited The question in those cases was
whether the bill was ""in accordance with the form in the schedule to
this Act annexed" as required by s. 9 of the Bills of Sale Act 1878, and
Amendment Act 1882. In re Hewer Ex parte Kahen (4), it was held that a
"true copy" of a bill of sale within the Bills of Sale Act, 1878 s.
10, sub-s. 2, must not necessarily be an exact copy so long as any errors or
omissions in the copy file( are merely clerical and of such a nature that no
on, (1) 149 E.R. 1291. (2) 150 E.R. 51 (3) 150 E.R. 1346. (4) (1882) 21 CH D
871 587 would be thereby misled. The same view was expressed in several other
decisions and it is unnecessary to refer to them all. 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-s. (3) of s. 81. In that view of the matter sub-s.
(3) of s. 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 s. 81. This disposes of
the second preliminary objection raised before us.
We now turn to the third preliminary
objection and this relates to the affidavit which accompanied the petition in
respect of the corrupt practices alleged against the appellant. The argument on
this part of the case is that the affidavit was neither in the prescribed form
nor was it properly sworn as required by the rules in the Conduct of Election
Rules, 1961 ; therefore there was a failure to comply with the proviso to
sub-s. (1) of s. 83 of the Act.
The argument further is that an election
petition under s. 81 must comply with the provisions of s. 83 and unless it
complies with those provisions, it is not an election petition under s. 81.
We think that this contention has been
sufficiently disposed of by what has been stated by the Election Tribunal. The
Election Tribunal has rightly pointed out that the affidavit was in the
prescribed form but due to inexperience the oaths 588 Commissioner had made a
mistake in the verification portion of the affidavit. The Tribunal said :
"It appears that due to inexperience of
the Oaths Commissioner instead of "verified before me" words,
"verified by me" have been written.
The signature of the deponent have been
obtained in between the writing with respect to admission on oath of the
contents of affidavit by the petitioner and the verification by the Oaths
Commissioner.
According to the prescribed form the
verification should be " solemnly affirmed or sworn by "such and
such" on "such and such date" before me". The verification
of the affidavit of the petitioner is apparently not in the prescribed form but
reading as a whole the verification carries the same sense as intended by the
words mentioned in the prescribed form. The mistake of the Oaths Commissioner
in verifying the affidavit cannot be a sufficient ground for dismissal of the
petitioner's petition summarily, as the provisions of s. 83 are not necessarily
to be complied with in order to make a petition valid and such affidavit can be
allowed to be filed at a later stage also." This view of the Election
Tribunal was affirmed by the High Court. We agree with the view expressed by
the Election Tribunal and we do not think that the defect in the verification
due to inexperience of the Oaths Commissioner is such a fatal defect as to
require the dismissal of the election petition.
Turning now to Election Petition No. 295 of
1962, the defect as to the time and place of verification is, as we have said
earlier, not a fatal defect. It is a matter which comes within cl. (c) of
sub.s. (1) of s. 83 and the defect can be remedied in accordance with the
principles of the Code of 589 Civil Procedure relating to the' verification of
pleadings.
As to the four enclosures which were not re-,
produced in the copy served on the appellant, the position was this. In the
original petition there was an endorsement to the following effect
"Enclosed :
1. Two copies of the grounds of election
petition.
2. Original treasury receipt of Rs. 2,000/as
security deposit.
3. Certified copy of the order of the
Returning Officer rejecting the nomination dated 22-1-1962.
4. Vakalatnama duly stamped."' In the
copy served on the appellant the original treasury receipt of Rs. 2,000/deposited
by way_ of security was not re-produced. A certified copy of the order of the
returning officer rejecting the nomination of the petitioner was appended to
the copy but this certified copy was not further signed by the petitioner. As
to the security deposit it was mentioned in the body of the petition (paragraph
9) that such a deposit had been made. The certified copy of the rejection of
the nomination paper was verified to be a true copy and we fail to see how any
further signature of the petitioner was necessary thereon. It is obvious to us
that a copy of the vakalatnama was not required under sub-s. (3) of s. 81 nor
was it necessary to make a further endorsement that two copies of the petition
had been filed along with the petition. It is not disputed that copies as required
by sub-s.(3) of s. 81 were filed. The only' grievance made is that the
endorsement "two copies" was not re pated in the enclosure portion of
the copy served on the appellant. We 590 have already explained what is meant
by the word " copy" in sub-s. (3) of s. 81 and we are of the view
that the defects pointed out on behalf of the appellant are not of such a
character as to invalidate the copy which was served on the appellant in the
present case.
In conclusion we have to point out that we
allowed one Dr. Z. A. Ahmed to intervene in these appeals on the grounds
mentioned in his petition dated April 4, 1963. The intervener supported the
arguments advanced on behalf of the appellant. We have fully dealt with those
arguments in this judgment and nothing further need be said about the
intervener's petition.
For the reasons given above, we see no merit
in these two appeals. The appeals are accordingly dismissed with costs.
Appeals dismissed.
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