http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15

CASE NO.:

Appeal (civil) 14555 of 1996

PETITIONER:

T.M. JACOB

RESPONDENT:

C. POULOSE & ORS.

DATE OF JUDGMENT: 15/04/1999

BENCH:

A.S.ANAND CJI & S.B.MAJMUDAR & V.MANOHAR SUJATA & K.VENKATASWAMI & V.N.KHARE

JUDGMENT:

JUDGMENT

DELIVERED BY:

DR. A.S. ANAND, CJI

DR. A.S. ANAND, CJI.

This appeal by special leave is directed against an

order dated 18th September, 1996 passed by a learned Single

Judge of the High Court of Kerala rejecting the application

made by the appellant herein seeking dismissal of Election

Petition No.8 of 1996 on various grounds. The brief facts

are : The appellant (returned candidate) was elected to the

Kerala State Legislative Assembly from Priavom Constituency

No.79. While the appellant had secured 51873 votes,

respondent No.1 (election petitioner) had received 44165

votes. After the result of the election was declared, the

first respondent filed Election Petition No.8 of 1996

challenging the election of the appellant alleging that the

election of the appellant stood vitiated by commission of

various corrupt practices, as detailed in the Election

Petition. The Election Petition was resisted by the

appellant and on 29.7.1996 the appellant filed his written

objections. Various objections were raised but for the

purpose of this appeal we are concerned with the objection

raised in paragraph 39 of the written objections to the

effect that Annexure XV supplied to the appellant was not a

true copy of Annexure XV filed with the Election Petition

and the election petition was liable to be dismissed on that

score alone for non-compliance with the requirements of

Section 81(3) of the Representation of People Act, 1951

(hereinafter the Act). Respondent No.4 to the Election

Petition also raised a preliminary objection on 30th of

July, 1996. That objection however, has no relevance for

the present appeal. Respondent No.1 filed his reply to the

written objections on 6.8.1996 in which, inter alia, he

asserted in paragraph 15 that copy of Annexure XV served on

the appellant was a true copy of Annexure XV filed with

the Election Petition and that there was no failure on his

part to comply with Section 81(3) of the Act. On 6.8.1996,

the appellant filed a petition, C.M.P. No.2903 of 1996,

praying that the Election Petition be dismissed for

non-compliance with the provisions of section 81(3) of the

Act. The main objection raised in this petition also

centered around Annexure XV, report in the newspaper

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15

Rashtra Deepika. Paragraphs 4 and 5 of C.M.P. No.2903 of

1996 read thus : 4. I have filed my written statement of

objections to the Election Petition on 29.7.1996. I have

raised a preliminary objection to the maintainability of the

petition under section 81(3) of the Representation of the

People Act. Section 83 clauses (a) and (b) contemplate that

an election petition shall contain a concise statement of

the materials and also set forth full particulars of any

corrupt practice. So whenever there is an allegation of

corrupt practice may be contained in a document and the

election petitioner may refer to such document. But when

such document should be supplied to the opposite party. It

forms an integral part of the election Petition.

5. In this case, the petitioner has produced Annexure

XV a daily newspaper Rashtra Deepika to prove one of the

corrupt practices. Though a report is mentioned in

paragraph 36 of the Election Petition a copy of the report

was not served on me. Hence I verified the original

petition and found out that the averments in paragraph 36 of

the Original Petition and the report in Annexure XV are

entirely different. Non supply of the report to me is fatal

to the maintainability of the Election Petition as Section

81 (3) of the Representation of the People Act provides for

giving a true copy of the Election Petition to the

respondent mandatorily. The copy served on this respondent

does not tally with the original Election Petition submitted

in the court. Even the contents of para 36 of the Election

Petition do not tally with the statements made in the

newspaper report in Rashtra Deepika filed by the petitioner

with the Election Petition as filed in court. As a

consequence there is a non-compliance of the requirements

provided in section 81(3) of the R.P. Act which entails

dismissal of the Election Petition as mandated by section 86

of the R.P. Act.

While C.M.P. No.2903 of 1996 was pending

consideration, on 19.8.1996, the appellant filed yet another

memo of objection through his Advocate, stating that the

copy of the Election Petition served on him was defective.

That Memo reads thus : MEMO SUBMITTED BY S. NARAYANAN

POTI, ADVOCATE, FOR THE IST RESPONDENT IN THE ABOVE CASE.

I am herewith submitting the copy of the Election

Petition No.8 of 1996 served on the 1st respondent for

information of the Honble Court, especially copy of the

affidavit in form 25 as per Rule 94( ) of the conduct of

Election Rules 1961 in order to show that the verification

of the Notary Public is not contained therein and therefore

the copy is defective. Both the copies served on the 1st

respondent are identical.

Respondent No.1 filed his reply both to the above memo

as also to C.M.P. No.2903 of 1996 on 2nd of September,

1996. Apart from stating that objection regarding alleged

defect in the supply of true copy of the petition had been

raised after issues had been framed, it was maintained that

the objection contained in the memo filed on 19.8.1996

appears to have been influenced by the observations made by

this Court in Dr. (Smt.) Shipra & others v. Shanti Lal

Khoiwal & others, (1996) 5 SCC 181 and had no validity.

Respondent No. 1 stated in paragraph 3 of his reply :

Admittedly in the copy returned by the first respondent the

attestation part is conspicuously present. The petitioner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15

has signed the same and the Advocate has also attested the

same. Above the word Notary it has been shown as signed.

Therefore the petitioner is advised to submit that the first

respondent is not entitled to draw comfort from the Supreme

Court decision as the affidavit in that case did not contain

the attestation part at all. It is also understood that in

that case the attestation in the original was done by the

Notary by-hand (in manuscript) and therefore understandably

the copies did not contain the solemnisation and attestation

by Notary. The present affidavit does not suffer from the

grave lapse which was the subject matter of scrutiny before

the Supreme Court.

It was further asserted that the petitioner had

complied with Rule 94 A as well as form 25 of the Conduct of

Election Rules, 1961 (for short the Rules) while filing

the affidavit in support of the allegations of corrupt

practice and that there had been no breach of section 81(3)

of the Act. In paragraph 7 respondent No.1 stated : The

petitioner submits that no prejudice has been caused to the

first respondent. If he felt any difficulty in the copies

supplied to him he would not have ventured into filing a

detailed written statement of objections. The petitioner is

advised to submit that the first respondent ought to have

raised this objection before he filed his written statement

of objections it should be presumed that every allegations

contained in the E.P. including those pertaining to the

allegation of the corrupt practices by the first respondent

has been answered by him to his satisfaction in his written

statement of objection. Therefore, it has to be understood

that the first respondent has taken the copy of the E.P.

served on him as an absolutely true copy as he has acted

upon it in that manner. After that the first respondent is

not entitled to turn back and erase the effect on the

efforts he has already made to defend this case by going

back in time and raising preliminary objections on

maintainability at this stage of the proceeding.

In the circumstances the petitioner most humbly prays

that this Honble Court may be pleased to reject the first

respondents Memo dated 19-8-1996 on these and other grounds

to be urged at the time of hearing duly allowing the

continuation of the trial of the E.P.

On 13th August, 1996 at the suggestion of learned

counsel for the parties, following additional issue was

raised as issue No.1 Whether the Election Petition is

liable to be dismissed for the reasons mentioned in C.M.P.

2903 of 1996 ?

In the High Court, in support of issue No.1, learned

counsel for the appellant relied upon the judgment of this

Court in Dr. Shipras case (supra). It was submitted that

the vice which had been noted in Dr. Shipras case (supra)

in the copy of the affidavit served on the returned

candidate along with the copy of election petition in that

case was also present in the present case inasmuch as the

verification of the affidavit, on the copy of the affidavit,

supplied to the appellant did not tally with the

verification of the affidavit filed along with the election

petition. It was pointed out that neither the name of the

Notary, nor the stamp and seal of the Notary, had been fixed

below the attestation of the verification on the copy of the

affidavit, supplied to the appellant, though in the

affidavit filed along with the election petition, the name,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15

stamp and seal of the notary, after the attestation of

verification by him were very much present and because of

non-supply of true copy of the affidavit, the election

petition suffered from the defect covered by section 81(3)

of the Act. The High Court, however, did not agree and

found that the vice which had been noticed in Dr. Shipras

case was not present in the present case inasmuch as the

omissions pointed out in the copy of the affidavit served

on the appellant did not render that copy as not a true

copy, and there had been substantial compliance with the

provisions of Section 81(3) besides the alleged variation

could not cause any prejudice to the appellant in

formulating his defence. The second objection raised in the

High Court, was about the alleged non-supply of true copy of

Annexure XV to the appellant. Insofar as this second

objection is concerned, the learned single Judge of the High

Court compared the copy of Annexure XV served on the

appellant with the copy of Annexure XV as filed along with

the Election Petition and found that the two were identical

and that there was no variation between the two. The High

Court, therefore, held that the Election Petition was not

defective on that score either. The High Court accordingly

rejected the preliminary objection and deciding issue No. 1

held that election petition was not liable to be dismissed

on the grounds raised by the appellant. The order of the

High Court has been put in issue by the appellant in this

appeal by special leave. After leave was granted by this

Court, the following order was made on 18.12.1997 : The

main point urged by the learned counsel for the appellant is

that a copy of the affidavit supplied to the appellant

together with the notice of the Election Petition is not a

true copy inasmuch as it does not indicate the name and

designation of the Notary nor does it bear the seal and

stamp of the Notary. On this basis, it is contended that

there is non- compliance of Section 81(3) because of which

the Election Petition is liable to be dismissed at the

threshold under Section 86(1) of the Representation of

People Act. Sh. Sorabjee, learned counsel for the

appellant places reliance on the decision in Dr. Shipra v.

Shanti Lal Khoiwal (1996) 5 SCC 181, particularly the

opinion of Justice Paripoornan therein read with that of

Justice K. Ramaswamy. Sh. Sorabjee submits that even

though from the supplementary opinion of Justice Bharucha,

contained in para 17 of the report, identity on this point

may not be explicit but there being no reservation in the

opinion of Justice Bharucha on this point, this view is to

be construed as the unanimous decision of the three-Judge

Bench.

Having heard Sh. Sorabjee, we are not too sure that

the principle indicated in the said decision can apply to

the facts of the present case but certain wide observations,

in the opinion of Justice Paripoornan and Justice K.

Ramaswamy, may support the appellants contentions. In our

opinion, the matter would, therefore, require

re-consideration by a larger Bench to decide whether even in

a case like the present one, the decision in Dr. Shipra v.

Shanti Lal Khoiwal (1996) 5 SCC 181 can apply.

The papers be laid before the Chief Justice for

constitution of a larger Bench.

That is, how, this appeal has been placed before the

Constitution Bench. We have heard Mr. Harish Salve,

learned senior counsel appearing for the appellant and Dr.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15

Rajeev Dhavan, learned senior counsel appearing for

respondent No.1 and examined the record. From a perusal of

the order of reference it is seen that the scope of the

reference is rather limited to consider whether in a case

like the present one the decision in Dr. Shipras case

(supra) can apply keeping in view certain wide

observations made in the opinions of Justice K. Ramaswamy

and Justice Paripoornan in that case. It would, therefore,

be desirable, at this stage, to first consider the fact

situation as existing in Dr. Shipras case : A batch of

appeals came to be dealt with in Dr. Shipras case. In all

the appeals, the only question that arose for consideration

was whether the copy of the election petition accompanied by

supporting affidavit in Form 25 prescribed under Rule 94-A

of the Conduct of Elections Rules, 1961, served on the

respective respondents but not containing the verification

of attestation made by the District Magistrate/Notary/Oath

Commissioner, could be said to be a true and correct copy

of the election petition as envisaged by section 81(3) of

the Act ? K. Ramaswamy, J. who authored the lead judgment

referred to various provisions of the Act and a number of

judgments dealing with the scope of Section 81(3) read with

Section 86(1) of the Act and approving the view of the

Bombay High Court in Purushottam v. Returning Officer, AIR

1992 Bombay 227, observed :

In Purushottam v. Returning Officer the present

question had directly arisen. In that case the copy

contained omission of vital nature, viz., the attestation by

the prescribed authority. The High Court had held that the

concept of substantial compliance cannot be extended to

overlook serious or vital mistakes which shed the character

of a true copy so that the copy furnished to the returned

candidate cannot be said to be a true copy. We approve of

the above view. Verification by a Notary or any other

prescribed authority is a vital act which assures that the

election petitioner had affirmed before the Notary etc.

that the statement containing imputation of corrupt

practices was duly and solemnly verified to be correct

statement to the best of his knowledge or information as

specified in the election petition and the affidavit filed

in support thereof; that reinforces the assertions. Thus

affirmation before the prescribed authority in the affidavit

and the supply of its true copy should also contain such

affirmation so that the returned candidate would not be

misled in his understanding that imputation of corrupt

practices was solemnly affirmed or duly verified before the

prescribed authority. For that purpose, Form 25 mandates

verification before the prescribed authority. The object

appears to be that the returned candidate is not misled that

it was not duly verified. The concept of substantial

compliance of filing the original with the election petition

and the omission thereof in the copy supplied to the

returned candidate as true copy cannot be said to be a

curable irregularity. Allegations of corrupt practices are

very serious imputations which, if proved, would entail

civil consequences of declaring that he became disqualified

for election for a maximum period of six years under Section

8-A, apart from conviction under Section 136(2). Therefore,

compliance of the statutory requirement is an integral part

of the election petition and true copy supplied to the

returned candidate should as a sine qua non contain the due

verification and attestation by the prescribed authority and

certified to be true copy by the election petitioner in

his/her own signature. The principle of substantial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15

compliance cannot be accepted in the fact-situation.

(Emphasis ours)

Paripoornan, J. in his supplementing view, while also

agreeing with the view of Bombay High Court in Purushottams

case opined :

In my opinion, the above decision lays down 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 of 1990 quoted

in para 12 of the judgment of Qazi, J. are instructive and

furnish sufficient basis to reach the said conclusion. The

observations are to the following effect:

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 that affidavit is to be furnished, it seems to

me that the endorsement of 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 but the affirmation that has been made, and

without the affirmation, it can be no affidavit at all.

(Emphasis ours)

It is, however, not possible to ascertain from the

opinions of K. Ramaswamy, J. or Paripoornan, J. whether

the original affidavit filed along with the election

petition in Dr. Shipras case was attested and verified in

accordance with law and whether the defect in the copy of

the affidavit supplied to returned candidate was only of the

absence of notarial endorsement in the copy of the

affidavit supplied to the respondents in the Election

Petition or there was complete absence of the verification

of the affidavit by the election petitioner as well as of

attestation by the notary showing thereby that copy of the

affidavit supplied to the respondent therein was neither

verified by the election petitioner nor affirmed by him

before the notary nor attested by the notary. However,

Justice Bharucha, in his supplementing opinion while

expressing agreement with Justice Ramaswamy pointed out the

defect in that case in the following words :

The question that must be posed, as indicated by this

Courts previous decisions, is : Does the document

purporting to be a true copy of the election petition

mislead in a material particular? The true copy of the

election petition furnished by the appellant (election

petitioner) to the respondent (the successful candidate) did

not show that the appellants affidavit supporting his

allegations of corrupt practice had been duly sworn or

affirmed. Where corrupt practice is alleged, the election

petitioner must support the allegation by making an

affidavit in the format prescribed. An affidavit must be

sworn or affirmed in the manner required by law, or it is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15

not an affidavit. The document purporting to be a true copy

of the election petition furnished by the appellant to the

respondent gave the impression that the appellants

affidavit supporting his allegations of corrupt practice had

not been sworn or affirmed and was, therefore, no affidavit

at all; it misled in a material particular and its supply

was, as the High Court held, fatal to the election

petition.

(Emphasis ours)

Thus, from the facts noted by Bharucha, J., it

transpires that in Dr. Shipras case the true copy of the

Election Petition furnished to the respondent gave an

impression that the election petitioners affidavit

supporting his allegations of corrupt practice had not been

duly sworn and verified by the election petitioner before

the Notary, who also had not attested the same thereby

rendering that document as no affidavit at all in the eye

of law. The defect found in the true copy of the

affidavit, was thus, not merely the absence of the name of

the Notary or his seal and stamp but a complete absence of

notarial endorsement of the verification as well as

absence of an affirmation or oath by the election

petitioner. It was in that context that the Bench had found

in Dr. Shipras case that the returned candidate would have

got the impression, on a perusal of the true copy of the

affidavit, that there was no duly sworn and verified

affidavit filed in support of the allegations of corrupt

practice by the election petitioner. It was precisely on

account of this fatal defect that K. Ramaswamy, J.

opined that the principle of substantial compliance cannot

be accepted in the fact situation. In Anil R. Deshmukh v.

Onkar N. Wagh & Ors, JT 1999 (1) SC 135, the appellant had

filed an election petition for declaring the election of the

first respondent in that case as void and illegal and for

declaring him as duly elected. The petition contained

allegations of corrupt practice against the first

respondent. An affidavit had been filed along with the

election petition as required by the proviso to Section

83(1)(c) of the Act in support of the allegations of corrupt

practice. The affidavit was duly affirmed by the election

petitioner before the notary who had also attested the same

and the notarial endorsement of attestation contained all

the particulars required by law. However, when the copies

of the election petition along with various documents and

the affidavit were served on the first respondent, it was

found that the copy of the affidavit did not bear the seal

or stamp of the attesting officer, below the notarial

endorsement after the verification of the affidavit. The

appellant had, however, signed the copy of the affidavit

below a rubber stamp endorsement to the effect attested as

true copy. On account of the above omission, the first

respondent and the tenth respondent therein contended before

the High Court that the copies of the affidavit served on

them were not true copies of the affidavit as required by

Section 81(3) of the Act. The issue was tried as a

preliminary issue. The High Court found that the copy of

the affidavit supplied to the first respondent was not a

true copy inasmuch as it did not contain the particulars

of the notary below the endorsement made by the notary. The

High Court following its previous judgment in Purshottam v.

Returning Officer (supra) which had been approved by this

Court in Dr. Shipras case held that the defect of omission

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15

of the particulars of the Notary on the copy of the

affidavit served on the answering respondent was fatal and

dismissed the election petition for non-compliance with

Section 81(3) of the Act. On an appeal to this Court

against the dismissal of the election petition, without

trial, for non-compliance with the provisions of Section

81(3) read with Section 83(1) of the Act, learned counsel

for the appellant submitted that the ruling in Dr. Shipras

case had no application to the facts of that case and that

the copy of the affidavit, served on the first respondent,

did not suffer from the vice from which copy of the

affidavit served on the returned candidate suffered in Dr.

Shipra's case. Agreeing with the appellant, Srinivasan, J,

speaking for a three Judge Bench to which one of us (CJI)

was a party opined:

In the light of the rulings of the Constitution Bench

referred to earlier, we have our own reservations on the

correctness of the view expressed in Dr. (Smt.) Shipras

case (supra) but it is unnecessary in the present case to

dwell on the same. As pointed out earlier, Justice

Ramaswamy has confined the ruling to the fact-situation in

that case. In so far as the present case is concerned,

there is a distinguishing factor which makes the ruling in

Dr.(Smt.) Shipras case (supra) inapplicable. We have

already referred to the fact that even before arguments were

heard on the preliminary objection by the High Court in this

case the true copies of the affidavits had been served on

the first respondent and his counsel. In the facts and

circumstances of this case, we have no doubt that there was

sufficient compliance of the provisions of Section 81(3)

read with Section 83(1)(c) of the Act even if it could be

said that the copies served in the first instance on the

first respondent were not in conformity with the provisions

of the Act. (Emphasis ours)

The appeal was allowed and the election petition was

directed to be tried on merits. In Anil R. Deshmukhs case

(supra) Srinivasan, J. has correctly distinguished the case

of Dr. Shipra bringing out the difference in the type of

defects found in the two cases. Reverting now to the facts

of the present case. A perusal of the copy of the affidavit

served on the appellant shows that the copy of the affidavit

supplied to the appellant contained the endorsement that the

affidavit had been duly affirmed, signed and verified by

respondent No.1 before a Notary. Under the affirmation by

the notary, the word, Sd/- Notary were also written. What

was, however, found missing in the copy of the affidavit was

the name and address of the Notary as well as the stamp and

seal of the Notary, before whom the affidavit had been so

affirmed and who had attested the affidavit. The defect

found in the present case is almost identical to the defect

which had been found in the copy of the affidavit supplied

to the first respondent in Anil R. Deshmukhs case (supra).

The defect is materially different from the defect found in

Dr. Shipras case, where the true copy of the election

petition furnished by the election petitioner to the

successful candidate did not show that the affidavit filed

in support of the allegation of corrupt practices had been

duly sworn or affirmed and verified by the election

petitioner before a notary, whose attestation was also found

missing. The argument of the learned counsel for the

appellant, both in the High Court and before us, is

apparently based on the following observations made in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15

opinion of K. Ramaswamy and Paripoornan, JJ. in Dr.

Shipras case : Thus affirmation before the prescribed

authority in the affidavit and the supply of its true copy

should also contain such affirmation so that the returned

candidate would not be misled in his understanding that

imputation of corrupt practices was solemnly affirmed or

duly verified before the prescribed authority. For that

purpose, Form 25 mandates verification before the prescribed

authority. (K. Ramaswamy, J.)

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. (Paripoornan, J.) (Emphasis ours) Reliance on

the above observations in Dr. Shipras case divorced from

the context in which that judgment had been rendered, is

neither fair nor proper. In our opinion the principle

indicated in Dr. Shipras case has to be considered as

confined to the facts and circumstances of that case as

opined by Ramaswamy, J. himself, when His Lordship observed

:

The principle of substantial compliance cannot be

accepted in the fact situation. (Emphasis ours)

and cannot be considered to be of general application

divorced from the fact situation of a given case. In The

Commissioner of Income-tax v. M/s. Sun Engineering Works

(P) Ltd., JT 1992 (5) SC 543, a Bench of this Court to which

one of us (Anand, J.) was a party, observed :

It is neither desirable nor permissible to pick out a

word or a sentence from the judgment of this court, divorced

from the context of the question under consideration and

treat it to be the complete law declared by this Court.

The judgment must be read as a whole and the observations

from the judgment have to be considered in the light of the

questions which were before this Court. A decision of this

Court takes its colour from the questions involved in the

case in which it is rendered and while applying the decision

to a later case, the courts must carefully try to ascertain

the true principle laid down by the decision of this court

and not to pick out words or sentences from the judgment,

divorced from the context of the questions under

consideration by this Court, to support their reasonings.

We are in agreement with the above view. We,

therefore, reject the argument of learned counsel for the

appellant regarding the applicability of the observations

from Dr. Shipras case to the fact situation in the present

case. Thus, our answer to the reference is that the

judgment in Dr. Shipras case is confined to the fact

situation as existing in that case and has no application

to the established facts of the present case and the wide

observations made therein were made in the context of the

facts of that case only. The next question which still

arises for our consideration is whether the election

petition in the present case was liable to be rejected in

limine for non-compliance with section 81(3) read with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15

section 86(1) of the Act on account of the defect in the

true copy supplied to the respondent. The precise

objection of Mr. Harish Salve, learned senior counsel based

on section 81(3) of the Act as already noticed is that the

true copy of the affidavit filed in support of the

allegations of corrupt practice in form No.25 as required by

Rule 94A had not been served on the appellant inasmuch as in

the copy served on the appellant, the name and other

particulars of the Notary and the seal and stamp of the

Notary, which had been affixed on the affidavit filed along

with the Election Petition, were conspicuous by their

absence. According to Mr. Salve, the variation between the

affidavit filed by the election petitioner in support of the

allegations of corrupt practice and the copy served on the

appellant had rendered the copy as not a true copy of the

original and notwithstanding the difference between Dr.

Shipras case and the present one, the election petition

ought to have been dismissed for non-compliance with Section

81(3) of the Act. For what follows we are not persuaded to

agree. Section 81 of the Act deals with the presentation of

election petitions. Sub-section (1) of section 81 provides

that an Election Petition calling in question any election

may be presented on one or more of the grounds specified in

section 100(1) and section 101 to the High Court by any

candidate at such election or by any elector within

forty-five days from the date of the election of the

returned candidate. Some of the relevant provisions of the

Act are : 81(3) Every election petition shall be

accompanied by as many copies thereof as there are

respondents mentioned in the petition, and every such copy

shall be attested by the petitioner under his own signature

to be a true copy of the petition.

Section 83 deals with the contents of the petition and

the proviso to sub-section (1) of section 83 lays down:

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.

Section 86(1) provides : 86 (1). The High Court

shall dismiss an election petition which does not comply

with the provisions of section 81 or section 82 or section

117.

Explanation.- An order of the High Court dismissing an

election petition under this sub-section shall be deemed to

be an order made under clause (a) of section 98.

Does the word copy occurring in section 81(3) of the

Act mean an absolutely exact copy or does it mean a copy so

true that nobody could by any possibility misunderstand it.

This matter is no longer res integra. In Murarka Radhey

Shyam Ram Kumar vs. Roop Singh Rathore & Others, 1964 (3)

SCR 573, a Constitution Bench of this Court elaborately

dealt with this question after referring to a catena of

authorities. It was held that the test to determine whether

a copy was a true one or not was to find out whether any

variation from the original was calculated to mislead a

reasonable person. The Constitution Bench found as

untenable the contention that since copies of the petition

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15

served on the returned candidate did not contain signatures

of the petitioner below the word petitioner, on the copies

of the petition served on the respondent, they had ceased to

be true copies of the original petition, attracting the

consequences of Section 86(1) of the Act. The Bench opined

: Having regard to the provisions of Part VI of the Act,

we are of the view that the word copy does not mean an

absolutely exact copy. It means a copy so true that nobody

can by any possibility misunderstand it. The test whether

the copy is a true one is whether any variation from the

original is calculated to mislead an ordinary person.

Applying that test we have come to the conclusion that the

defects complained of with regard to Election Petition

No.269 of 1962 were not such as to mislead the appellant;

therefore there was no failure to comply with the last part

of sub-section (3) of section 81. In that view of the

matter sub-section (3) of Section 90 was not attracted and

there was no question of dismissing the election petition

under that sub-section by reason of any failure to comply

with the provisions of Section 81.

The Bench also opined : When every page of the copy

served on the appellant was attested to be a true copy under

the signature of the petitioner, a fresh signature below the

word petitioner was not necessary. Sub-section (3) of

Section 81 requires that the copy shall be attested by the

petitioner under his own signature and this was done. As to

the second defect the question really turns on the true

scope and effect of the word copy occurring in sub-section

(3) of Section 81. On behalf of the appellant the argument

is that sub-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-section (3) dealing with a copy is merely directive, and

for the reliance is placed on the decision of this Court in

Kamaraja Nadar v. Kunju Thevar (1959 SCR 583). We are of

the view that the word copy in sub-section (3) of Section

81 does not mean an absolutely exact copy, but means that

the copy shall be so true that nobody can by any possibility

misunderstand it (see Strouds 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-section (3) of section 81 is merely

directory. (Emphasis ours)

Similar view was reiterated by another Constitution

Bench in Ch. Subbarao vs. Member, Election Tribunal,

Hyderabad, 1964(6) SCR 213, wherein it was held that the

expression copy occurring in section 81(3) of the Act did

not mean an exact copy but only one so true that no

reasonable person could by any possibility misunderstand it

as not being the same as the original. Agreeing with the

view of the Constitution Bench in Murarka Radhey Shyam Ram

Kumars case (supra), the Constitution Bench in Ch.

Subbaraos case ruled that substantial compliance with

section 81(3) was sufficient and the petition could not be

dismissed where there had been substantial compliance with

the requirements of Section 81(3) of the Act, in limine,

under section 81(1) of the Act. We are in respectful

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15

agreement with the view expressed by the Constitution Bench

in Murarka Radhey Shyam Ram Kumars case as well as in Ch.

Subbaraos case. The object of serving a true copy of an

Election Petition and the affidavit filed in support of the

allegations of corrupt practice on the respondent in

Election Petition is to enable the respondent to understand

the charge against him so that he can effectively meet the

same in the written statement and prepare his defence. The

requirement is, thus, of substance and not of form. The

expression copy in section 81(3) of the Act, in our

opinion, means a copy which is substantially so and which

does not contain any material or substantial variation of a

vital nature as could possibly mislead a reasonable person

to understand and meet the charges/allegations made against

him in the election petition. Indeed a copy which differs

in material particulars from the original cannot be treated

as a true copy of the original within the meaning of section

81(3) of the Act and the vital defect cannot be permitted to

be cured after the expiry of the period of limitation. We

have already referred to the defect which has been found in

the copy of the affidavit served on the appellant in the

present case. There is no dispute that the copy of the

affidavit served on the appellant contained the endorsement

the effect that the affidavit had been duly signed, verified

and affirmed by the election petitioner before a Notary.

Below the endorsement of attestation, it was also mentioned

: Sd/= . There, however, was an omission to mention the

name and Notary particulars of the Notary and the stamp and

seal of the Notary in the copy of the affidavit served on

the appellant. There was no other defect pointed out either

in the memo of objection or in C.M.P. No.2903 of 1996 or

even during the course of arguments in the High Court or

before us. Could this omission be treated as an omission of

a vital or material nature which could possibly mislead or

prejudice the appellant in formulating his defence? In our

opinion No. The omission was inconsequential. By no

stretch of imagination can it be said that the appellant

could have been misled by the absence of the name and seal

or stamp of the Notary on the copy of the affidavit, when

endorsement of attestation was present in the copy which

showed that the same had been signed by the Notary. It is

not denied that the copies of the Election Petition and the

affidavit served on the appellant bore the signatures of

respondent No.1 on every page and the original affidavit

filed in support of the Election Petition had been properly

signed, verified and affirmed by the election petition and

attested by the Notary. There has, thus, been a substantial

compliance with the requirements of section 81(3) read with

the proviso to section 83(1) (c) of the Act. Defects in the

supply of true copy under section 81 of the Act may be

considered to be fatal, where the party has been misled by

the copy on account of variation of a material nature in the

original and the copy supplied to the respondent. The

prejudice caused to the respondent in such cases would

attract the provisions of section 81(3) read with section

86(1) of the Act. Same consequence would not follow from

non-compliance with Section 83 of the Act.

We are unable to agree with Mr. Salve that since

proceedings in election petitions are purely statutory

proceedings and not civil proceedings as commonly

understood, there is no room for invoking and importing the

doctrine of substantial compliance into section 86(1) read

with section 81(3) of the Act. It is too late in the day to

so urge. The law as settled by the two Constitution Bench

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15

decisions of this Court referred to above is by itself

sufficient to repel the argument of Mr. Salve. That apart,

to our mind, the Legislative intent appears to be quite

clear, since it divides violations into two classes those

violations which would entail dismissal of the election

petition under section 86(1) of the Act like non compliance

with section 81(3) and those violations which attract

section 83(1) of the Act i.e. non-compliance with the

provisions of section 83. It is only the violation of

Section 81 of the Act which can attract the application of

the doctrine of substantial compliance as expounded in

Murarka Radhey Shyam and Ch. Subbaraos cases. The defect

of the type provided in Section 83 of the Act, on the other

hand, can be dealt with under the doctrine of curability, on

the principles contained in the Code of Civil Procedure.

This position clearly emerges from the provisions of Section

83(1) and 86(5) of the Act, which read :

83. Contents of petition. (1) An election

facts (a) shall contain a concise statement of the

material facts on which the petitioner relies; (b) shall

set forth full particulars of any corrupt practice that the

petitioner alleges, including as full a statement as

possible of the names of the parties alleged to have

committed such corrupt practice and the date and place of

the commission of each such practice; and (c) shall be

signed by the petitioner and verified in the manner laid

down in the Code of Civil Procedure, 1908 (5 of 1908) for

the verification of pleadings.

86. Trial of election petition. (5) The

High Court may, upon such terms as to costs and otherwise as

it may deem fit, allow the particulars of any corrupt

practice alleged in the petition to be amended or amplified

in such manner as may in its opinion be necessary for

ensuring a fair and effective trial of the petition, but

shall not allow any amendment of the petition which will

have the effect of introducing particulars of a corrupt

practice not previously alleged in the petition.

Applying the test as laid down in Murarka Radhey Shyam

Ram Kumars case (supra), to the fact situation of the

present case, we come to the conclusion that the defects

complained of in the present case were not such as could

have misled the appellant at all. The non-mention of the

name of the notary or the absence of the stamp and seal of

the notary in the otherwise true copy supplied to the

appellant could not be construed to be omission or variation

of a vital nature and, thus, the defect, if at all it could

be construed as a defect was not a defect of any vital

nature attracting consequences of Section 86(1) of the Act.

Under the circumstances, it must be held that there was no

failure on the part of the election petitioner to comply

with the last part of sub-section (3) of Section 81 of the

Act and, under the circumstances, Section 86(1) of the Act

was not attracted and the election petition could not have

been dismissed by reason of the alleged failure to comply

with the provisions of Section 81 of the Act. In this

connection, it is also relevant to note that the appellant,

neither in the memo of objections nor in the written

objections or in C.M.P.No.2903 of 1996 has alleged that he

had been misled by the absence of the name, rubber stamp and

seal of the notary on the copy of the affidavit supplied to

him or that he had been prejudiced to formulate his defence.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15

Even during the arguments, learned counsel for the appellant

was not able to point out as to how the appellant could have

been prejudiced by the alleged omissions on the copy of the

affidavit served on him.

In our opinion it is not every minor variation in form

but only a vital defect in substance which can lead to a

finding of non-compliance with the provisions of Section

81(3) of the Act with the consequences under Section 86(1)

to follow. The weight of authority clearly indicates that a

certain amount of flexibility is envisaged. While an

impermissible deviation from the original may entail the

dismissal of an election petition under Section 86(1) of the

Act, an insignificant variation in the true copy cannot be

construed as a fatal defect. It is, however, neither

desirable nor possible to catalogue the defects which may be

classified as of a vital nature or those which are not so.

It would depend upon the facts and circumstances of each

case and no hard and fast formula can be prescribed. The

tests suggested in Murarka Radhey Shyams case (supra) are

sound tests and are now well settled. We agree with the

same and need not repeat those tests. Considered in this

background, we are of the opinion that the alleged defect in

the true copy of the affidavit in the present case did not

attract the provisions of Section 86 (1) of the Act for

alleged non-compliance with the last part of Section 81(3)

of the Act and that there had been substantial compliance

with the requirements of Section 81(3) of the Act in

supplying true copy of the affidavit to the appellant by

the respondent.

Insofar as the alleged defect in the copy of Annexure

XV furnished to the appellant is concerned, the objection

was raised in written objections and reiterated in

C.M.P.No.2903 of 1996. However, a comparison of the

original Annexure XV with the copy thereof served on the

appellant, by the learned single Judge of the High Court,

indicated that both the documents were identical in nature.

The objection, thus, was not based on any factual matrix.

The learned Single Judge after comparing the original

Annexure XV with the copy of Annexure XV served on the

appellant came

to the conclusion that there was no variation between

the two. Our independent comparison of the two also leads

us to the same result and we confirm the finding of the

learned Single Judge in that behalf. In fairness to Mr.

Harish Salve, learned senior counsel for the appellant,

however, we must record that after examining the original

Annexure XV as filed along with the Election Petition and

comparing it with the copy of Annexure XV supplied to the

appellant, he did not press the challenge to the finding

recorded by the High Court on that aspect, of course,

reserving liberty to the appellant to raise all other points

concerning Annexure XV at the trial of the election

petition.

Thus, we find that the learned single Judge of the

High Court was justified in rejecting the preliminary

objection and holding that the election petition did not

suffer from any defect which could attract the provisions of

Section 86(1) of the Act. This appeal has no merits and is

dismissed as such, but, in the peculiar facts and

circumstances of the case without any order as to costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15

We request the High Court to expeditiously dispose of

the election petition which is pending since 1996.