Sahodrabairai Vs. Ram Singh Aharwar
 INSC 25 (2 February 1968)
02/02/1968 HIDAYATULLAH, M.
CITATION: 1968 AIR 1079 1968 SCR (3) 13
E 1973 SC2513 (8) R 1978 SC 840 (5) D 1983 SC
558 (6,27,32,33,35,38,39) R 1984 SC 871 (4,11,13,14) D 1990 SC 924 (23,24) RF
1991 SC1557 (26,32)
Representation of the People Act, 1951, s.
83--Annexure to Election Petition--Necessity of service on respondent.
The appellant filed an election petition with
a pamphlet as annexure thereto. A translation in English of the pamphlet was
incorporated in the body of the election petition, and it was stated in the
petition that it formed part of the petition. The first respondent raised an
objection that a copy of the pamphlet had not been annexed to the copy of the
election petition served on him and therefore, the election petition was liable
to be dismissed under s. 86 of the Representation of the People Act. The High
Court accepted the objection and dismissed the election petition. In appeal,
this Court, HELD : The order of the High Court must be set aside.
The words used in s. 81(3) are only "the
There is no mention of any document
accompanying the election petition. Since the election petition itself
reproduced the whole of the pamphlet in a translation in English, it could be
said that the averments with regard to the pamphlet were themselves a part of
the petition, and therefore the pamphlet was served upon the respondents although
in a translation and not in original. [19 E--H] Even if this be not the case,
it is quit,.- clear that s. 83 (2) has reference not to a document which is
produced as evidence of the averments of the election petition but to averments
of the election petition which are put, not in the election petition but in the
accompanying schedules or annexures. Details of averments too compendious for
being included in the election petition may be set out in the schedules or
annexures to the election petition. The law then requires that even though they
are outside the election petition, they must be signed and verified. The
annexures or schedules are then treated as integrated with the election
petition and copies of them must be served on the respondents if the requirement
regarding service of election petition is to be wholly complied with. But this
does not apply to documents which are merely evidence In the case but for
reasons of clarity and to lend force to the petition are not kept back but
produced or filed with election petitions.
They are in no sense an integral part of the
averments of the petition but are only evidence of those averments and in proof
thereof. [19 H-20 D] The pamphlet, therefore. must be treated as a document and
not as a part of the election petition in so far as averments are concerned.
When the election petitioner said that it was to be treated as part of her
election petition she was merely indicating that it was not to be though that
she had .not produced the document in time. She was insisting upon the document
remaining with the petition so that it could be available whenever the question
of the election petition or its contents arose. [20 D--E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1693 of 1967.
14 Appeal under s. 116-A of the
Representation of the People Act, 1951 from the judgment and order dated
September 21, 1967 of the Madhya Pradesh High Court in Election Petition No. 10
G. N. Dikshit and R. N. Dikshit, for the
C. B. Agarwala Uma Mehta, S. K. Bagga and
Shureshta Bagga, for respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal against the, judgment of the High Court of
Madhya Pradesh at Jabalpur, dated September 21, 1967. dismissing the election
petition filed by the appellant on the preliminary ground that a proper copy of
the election petition was not served upon the answering parties. The facts of
the case are as follows The appellant was a candidate for election to the Sagar
Lok Sabha Scheduled Castes constituency No. 24. The election took place on
February 20, 1967. There were three other contesting candidates of whom the
first respondent secured the largest number of votes and was declared elected.
The appellant secured the second largest number of votes, her votes being less
by just under 300 than the successful candidate's votes. An election petition
was thereafter filed by the appellant on April 5, 1967. In this ,election
petition the appellant challenged the election of the first respondent on four
grounds. They were (a) wrongful acceptance ..,of his nomination paper, (b)
corrupt practice inasmuch as .he appealed to religion through a pamphlet marked
Annexure (c) undue influence, and (d) breaches of the. Act and Rules. The
pamphlet to which reference is made was styled Bhayankar Vajraghat and was
published by Sarvadaliya Goraksha Mahabhiyan Samiti, Deori Kalan Branch.
It charged the party of the appellant namely
the Congress with encouraging cow-slaughter and ,offending. the Hindu
Sentiment. Details were given in it of the number of animals slaughtered every
day in Madhya Pradesh land elsewhere and blamed the Congress with being a party
to the practice. In the body of the election petition a translation in English
of the Hindi pamphlet was incorporated. The original pamphlet was attached to
the election petition and was marked Annexure 'A'. The election petitioner
proceeded to say in her petition "it forms part of the petition".
When parties appeared the first respondent
filed his written statement in great. detail. He dealt with this pamphlet and
answered the allegations of the election petitioner in relation thereto
paragraph by paragraph. As a result of these pleas a number of issues were
raised on July 18, 1967.
No issue was raised in 15 regard to the
service of a defective copy of the election petition upon the respondents in
general and the first respondent in particular. However, on August 3, 1967, a
special objection was made by the first respondent claiming that the copy of
the pamphlet had not been annexed to the copy of the election petition served
upon him and therefore the election petition was liable to be dismissed in
accordance with the provisions of s. 86 of the Representation of the People
Act. A detailed reply to this objection was given by the election petitioner.
She stated that this was an after-thought inasmuch as the translation of the
pamphlet was incorporated in the election petition and the allegations
regarding the pamphlet had been answered in detail by the answering respondent.
The Court thereupon framed an additional issue on August 4, 1967. The issue ran
as follows- "Whether the election petition is liable to be dismissed for
contravention of S. 81 (3) of the Representation of the People Act, 1951 as
copy of Annexure A to the petition was not given along with the petition for
being served on the respondents".
Parties first filed a number of affidavits
pro and con.
Later the Court ordered attendance of the
deponents for cross examination. In this way the appellant and her counsel who
had filed affidavits earlier were examined. There. case was that the copies of
the election petition had been properly, put together including in each copy an
original pamphlet for service on the respondents. On the other side the first
respondent and two others filed affidavits stating that when the copy of the
election petition was received it was not accompanied by the pamphlet. In their
examination in Court all maintained the same position, and were cross-
examined. The learned Judge trying the case also ordered the attendance of the
Reader of the Deputy Registrar of the High Court who had dealt with the
election, petition and he' was examined as Court witness No. 1. He stated that-
the copies of the petition were complete except that the pamphlet was not
annexed to each copy. He stated that he had noted at the time this fact but had
treated the pamphlet as a document and not as an Annexure to the election
The learned Judge, on an appraisal of this
material held that the copies of the election petition served upon the
respondents were not accompanied by the pamphlet which was an Annexure to the
election petition. After examining the law on the subject the learned Judge
came to the conclusion that the election petition should be dismissed under s.
86 of the Representation of the People Act and he accordingly dismissed it with
costs. No other 16 issue which was struck between the parties was gone into
because the election petition failed at the very threshold.
In this appeal it is contended that the
learned Judge was in error in thinking that the pamphlet ought to have
accompanied the copies of the election petition or that the law required that
it should have been annexed to the copy of the election petition served on the
respondents. In this connection our attention was drawn to the provisions of
the Representation of the People Act to which we shall refer presently. On the
other side it was contended that whatever the meaning of the expressions
"the election petition", "annexures" or "schedules"
in the Act, the election petitioner by her own conduct had made this document a
part Of the election petition and therefore it was incumbent upon her to have
served the whole of the election petition and not only a part of it as she did
and therefore the order now appealed against was correct. Before we come to
these rival contentions we find it necessary to refer first to the relevant
provisions on the subject Section 81 of the Representation of the People Act
occurs in Chapter 11 which is headed "Presentation of Election Petitions
to Election Commission". It provides as follows:
"Presentation of Petitions (1) An
election petition calling in question any election may be presented on one or
more of the ,-rounds specified in sub-section (1) of section 100 and section
101 to the High Court by any candidate at such election or any elector within
forty-five days from, but not earlier than, the date of election of the
returned candidate, or if there are more than one returned candidate at the
election and the dates of their election are different, the later of those two
Explanation :-In this subsection, 'elector'
means a person who was entitled to vote at the election to which the election
petition relates, whether he has voted at such election or not.
(3) Every election petition shall be
accompanied by as many copies thereto 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." 17 The first respondent
draws pointed attention to the third sub-section which says that every election
petition shall be accompanied by as many copies thereof as there are
respondents mentioned in the petition and every such copy shall be attested by
the petitioner under his own signature to be a true copy of the petition. The
dispute therefore is whether the pamphlet could be described in this case as, a
part of the election petition. The answering respondent says that it is so and
was considered to be so by the election petitioner herself when she stated that
it was to be read as a part of the election petition.
The matter, in our opinion, is not to be
resolved on how the election petitioner viewed the matter but from the point of
view of the requirement of the law on the subject. For this purpose we have to
turn to s. 83 of- the Representation of the People Act which provides what the
contents of the election petition shall be. It reads as follows (1) An election
petition- (a) shall contain a concise statement of the material facts on which the
(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges, including as full a statement as
possible of the names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in
the Code of Civil Procedure, 1908 (5 of 1908), for the verification of
Provided that where the petitioner alleges
any corrupt practice, the petition shall also be accompanied by an affidavit in
the prescribed form in support of the allegation of such corrupt practice and
the particulars thereof.
(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and verified in the same manner as the
answering respondent herein again draws pointed attention to the fact that the
schedules and the annexures to the petition are mentioned and they have to be
signed and verified in the same manner as the petition meaning thereby that as
the election petitioner had-made the pamphlet a part of the election petition
she was required to sign and verify the pamphlet and also to serve a 18 copy of
it as required by sub-s. (3) of S. 81 when the election petition was served.
'He then relies upon S. 86 which provides that the High Court shall dismiss an
election petition which does not comply with the provisions of S. 81, S. 82 or
An argument was raised in this case as to
whether s. 86(1) is mandatory or merely directory. We need not go into this
aspect of the case. In our opinion the present matter can be resolved on an
examination of the relevant facts and the contents of the election petition as
detailed in s. 83 reproduced above. It may be pointed out here that the trial
of election petition has to follow as. far as may be ,the provisions of the
Code of Civil Procedure.. We are therefore of opinion that it is permissible to
look into the Code of Civil Procedure to see what exactly would have been the
case if this was a suit and not a trial of an election petition.
Under the Code of Civil Procedure, a suit is
commenced by a plaint. This is provided by O.IV, r. 1 which says that every
suit shall be instituted by presenting a plaint to the Court. After the plaint,
is received O.V provides the summoning of the defendants in the case and r. 2
of that order says that every summons shall be accompanied by a copy of the
plaint, and if so permitted, by a concise. statement.
We then turn to the provisions of O.VII
Which. deals with the contents of a plaint. The first rule mentions the
particulars which must be in a plaint. It is not necessary to refer to them'.
The plaint has to be signed and verified. Rule 9 then provides that the plaintiff
shall endorse on the plaint and annex thereto a list of documents, if any,
which he has produced along with it and, if the plaint is- admitted, shall
present as many .copies on plain paper of the plaint as there are defendants
unless the Court by reason of the length of the plaint or the number of
defendants, or for any other sufficient reason, permits him to present a like
number of concise statements of the nature of the claims made,. etc. It will be
noticed here that what is required to be provided are copies of the plaint
itself or the concise statement according to the number of defendants. There is
no mention here of any, other documents of which a copy is needed to be
presented to the Court for service to the defendants. Then we come to r. 14 which
states that where a plaintiff sues upon a document in his possession or power
he shall produce it in court when the plaint is presented and shall at the same
time deliver the document or a copy thereof to. be filed with the plaint.
It will be noticed that he is required to
file only one copy of the document and not as many copies as there are
defendants in the case. It would therefore follow that a copy of the document
is not expected to be delivered with the copy of the plaint to the answering
defendants when summons is served on them. In the schedules to the Code of
Civil Procedure we have got Appendix B which 19 prescribes the forms for
summons to the defendants. There is only one form of summons in Appendix B,
(Form No. 4) in which the copy of the negotiable instrument is to accompany the
copy of The plaint. That is so, because of the special law applying to the
negotiable instruments and the time limit within which pleas to that document
have to be raised and this is only in summary suits No other form makes any
mention of any document accompanying the summons with the, copy. of the plaint.
We need not go into more details,. It is clear that the documents which are
filed with the plaint have to be accompanied by one copy of those documents.
This is because the copy is compared with the original and the copy is endorsed
by the clerk of court and the document is sometimes returned to the party to be
produced into Court later. 'the copy takes the place of the document concerned
and is not to be sent out to the parties with the plaint.
We may now see whether the election law
provides anything different. The only provision to which our attention has been
drawn is sub-s. (3) of s. 81 and sub-s. (2) of s. 83.
The first .provides that every election
petition shall be accompanied by as many copies thereof as there are
respondents mentioned in the ;petition and that every such copy shall be an
authenticated true copy. The words. used here are only "the election
petition". There is no mention of any document accompanying the election
petition. If the matter stood with only this sub-section there would ;be no
doubt that what was intended to be served is only a copy of the election
petition proper. Assistance is however taken from the provisions of sub-s. (2)
of s. 83 which provides that. any schedule or any annexure to the petition
shall also be signed by the petitioner and verified in the same manner as the
petition it is contended that since the pamphlet was an annexure to the
petition it was not only necessary to sign and verify it, but that it should
have been treated as a part of the election petition itself and a copy served
upon the- respondents. in this way, non- compliance with the provisions of s.
86(1) is made Out. In our opinion, this is too strict a reading of the
We have already pointed. out that s. 81(3)
speaks only of the election petition. Pausing here, we would say that since the
election petition itself reproduced the whole of the pamphlet in a translation
in English, it could be said that the averments with regard to the pamphlet
were themselves a part of the petition and therefore the pamphlet was served
upon the respondents although in a translation and not in original. Even if
this be not the case, we are quite clear that subs. (2) of s. 83 has reference
not to. a document which is produced as evidence of the averments of the
election petition but to averments of the election petition which are put, not
in the election petition but in he accompanying schedules or annexures. We can
20 give quite a number of examples from which it would be apparent that many of
the averments of the election petition are capable of being put as schedules or
annexures. For example, the details of the corrupt practice there in the former
days used to be set out separately in the schedules and which may, in some
cases, be so done even after the amendment of the present law. Similarly,
details of the averments too compendious for being included in the election
petition may be set. out in the schedules or annexures to the election
petition. The law then requires that even though they are outside the election
petition, they must be signed and verified, but such annexures or schedules are
then treated as integrated with the election petition and copies of them must
be served on the respondent if the requirement regarding service of the
election petition is to be wholly complied with. But what we have said here
does not apply to documents which are merely evidence in the case but which for
reasons of clarity ,and to lend force to the petition are not kept back but
produced or filed with the election petitions. They are in no, sense an
integral part of the averments of the petition but are only evidence of those
averments and in proof thereof. The pamphlet there for must be treated as a
document and not as a part of the election petition in so far as averments are
When ,the election petitioner said that it
was to be treated as part of her election petition she was merely indicating
that it was not to be thought that she had not produced the document in time.
She was insisting upon the document remaining with the petition so that it
could be available whenever the question of the election petition or its
contents arose. It would be stretching the words of sub-s.
(2) of s. 83 too far to think that every
document produced as evidence in the election petition becomes a part of the
election petition proper. In this particular case we do not think that the
pamphlet could be so treated. We are, therefore, of the opinion that whether or
not s. 86(1) is mandatory or directory there was no breach of the provisions of
the Representation of the People Act in regard to the filing of the election or
the service of the copies thereof and the order under appeal was therefore erroneous.
We accordingly set aside the order and remand
the case for trial from this stage. The costs of the appellant will be costs in
the cause. The respondent will bear his own costs.
Y. P. Appeal allowed and case remanded.