Judgment:
K.G. Shah, J.
1. This Chamber Summons has been taken out by the Respondent in the Main Election Petition viz Returned Candidate who has been declared elected as a Member of the Parliament from Constituency No. 3 Kulaba, Parliamentary Constituency, District Raigad. The election petitioner has challenged the election of the respondent on the grounds contemplated by Sections 100(d)(iii) and (iv) of the Representation of the People Act, 1951 (for short 'the Act').
2. On the Election Petition being filed, summons was ordered to be served to the Respondent, and was accordingly served. Along with the summons, a copy of the election petition has been served to the respondent. The respondent by this chamber summons prays for the rejection of the Election Petition, contending that the copy of the Election Petition, which has been served to him, is not a true copy of the original election petition, and therefore, there is infringement of Section 81(3) of the Act, the consequences of which should be the rejection of the election Petition under Section 86(1) of the Act.
3. It was not in dispute before the court that in the petition the election petitioner has not alleged any corrupt practice, within the meaning of that expression, as used in Section 123 of the Act, against the Respondent or his Election Agent or any other person, who acted with the consent of the Respondent or his Election Agent, Mr. Manohar, the learned Counsel for the Respondent, who argued the Chamber Summons at length, fairly conceded that in view of the aforesaid fact, it was not strictly necessary for the Election Petitioner to have filed, along with the Election Petition, an affidavit contemplated by the proviso appearing at the end of Sub-section 1 of Section 83 of the Act. However, Mr. Manohar very strenuously contended that, as a matter of fact, in the present Election Petition, the Election Petitioner has filed an affidavit, and therefore, even though the Petitioner was not required to file such an affidavit. Once, such affidavit has been filed, it would form the integral part of the election petition, and as the copy of that affidavit which has been served to the respondent, along with the copy of the election petition, is not a true copy of the original affidavit, the Petition suffers from the infringement of Section 81(3) of the Act, and is liable to be dismissed under Section 86(1) of the Act, Apart from this, it was also contended on behalf of the Respondent that, even otherwise, the copy of the Election Petition, which has been served to the Respondent is not a true copy of the original Election Petition, and therefore, also the election Petition is liable to be dismissed under Section 86(1) of the Act for the infringement of Section 81(3) of the Act.
4. It was also contended by Mr. Manohar, the learned Counsel for the Respondent that under Section 83 of the Act, the election Petition is required to contain a concise statement of material facts on which the election petitioner relies. According to Mr. Manohar, therefore, the concise statement of material facts which has been annexed to the election petition would become the integral part of the election petition, and that concise statement is, also, under Clause (C) of Section 83 of the Act, required to be signed by the election petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of the pleadings. In the present case, submitted Mr. Manohar, the concise statement of material facts, on which the Petitioner relies, has been filed at pages 70 to 75 of the election petition. However, that concise statement, though it purports to have been signed by the election petitioner, has not been verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of the pleadings, and therefore, the copy of the election petition, which has been served to the respondent and which includes a copy of the concise statement of material facts, is not the copy of the concise statement of material facts which is in conformity with the provisions of Section 83(c) of the Act, and therefore, also the election petition is liable to be rejected in limine.
5. On behalf of the Election Petitioner, the Chamber Summons has been opposed.
6. I have heard the learned Counsel for the parties to this Chamber Summons.
7. The election petition proper (without the annexures, etc.) in the present case consists of pages 1 to 20 of the compilation of the Petition. At page 20 of the compilation of the election petition, the election petitioner has verified the election petition as per the requirements of Section 83(c) of the Act. Rule 15 of Order VI of the Code of Civil Procedure, deals with the verification of pleadings, as follows:
15. Verification of pleadings :-(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
8. To the aforesaid Rule 15, by way of Bombay High Court Amendment, at the end of Sub-rule (1), the following proviso has been added with effect from October 1, 1983.
Provided that in respect of pleadings to be filed in the Bombay City Civil Court such verification shall, within the local jurisdiction of the Court, be made before one of the officers of the said Court empowered to administer oath, and elsewhere, before any officer mentioned in Section 139 Code of Civil Procedure, 1908.
9. Thus, by Sub-rule (1) of Rule 15, pleadings are required to be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. By virtue of the High Court Amendment, insofar as is relevant, it is further provided that in respect of the pleadings to be filed in any court other than the Bombay City Civil Court, the verification contemplated by Sub-rule (1) of Rule 15 is required to be made before any officer mentioned under Section 139 of the Code of Civil Procedure, 1908. Sub-rule (2) of Rule 15 provides that the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and, what he verifies upon information received and believed to be true. Sub-rule (3) of Rule 15 postulates that the verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
Section 139 of the Code of Civil Procedure enumerates the authorities and the officers who may administer the oath to the deponent who wants to swear an affidavit under the Code of Civil Procedure
Thus, it becomes clear that by virtue of Section 83 of the Act, an election petition is required to be signed by the election petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. Section 83 of the Act also provides that an election petition shall contain a concise statement of material facts on which the Petitioner relies. In the present case, the election petitioner has filed such a concise statement which is to be found at pages 70 to 75 of the compilation of the election petition. At the foot of that, concise statement, there appears the signature of the Election Petitioner. It appears that the concise statement was originally signed by the petitioner on June 21, 1996. However, that date has subsequently been changed to June 24, 1996. By the side of the signature of the Petitioner at page 75 of the compilation of the election petition, the following endorsement appears.
Solemnly affirmed at Mumbai this 24th day of June 1996.
Below that endorsement, appears the signature of Mr. Joshi, the learned Advocate for the Petitioner, On the right hand side, below that, appears the following endorsement.
Before me,
M.R. Bangale 22/6/96
Associate,
High Court, O.S.,
Bombay.
10. So far as the election petition proper is concerned, at page 19 of the compilation of the election petition, appears the signature of the election petitioner and the signature of the learned Advocate Mr. Joshi. On page 20 of the compilation of the election petition, as said above, there is the verification made by the Petitioner as required to be done under Section 83(c) of the Act read with the provisions of Rule 15 of the Order VI of the Code of Civil Procedure. Below that verification On one side, there is an endorsement4which reads as follows:
Solemnly declared at Mumbai)
this 21st day of June 1996.)
By the side of the endorsement, there appears the signature of the Petitioner. The endorsement and signature are below the verification as referred to above. Below the aforesaid endorsement, there is a signature of Mr. Joshi, the learned Advocate for the Petitioner, Slightly below on the right hand side of the signature of Mr. Joshi, there is a following endorsement.
Before me
M.R. Bangale 21/6/96
Associate. O.S., High Court, Bombay.
11. Now, if we compare the verification at the foot of the election petition proper i.e. at page 20 of the compilation of the election petition with what appears at the foot of the concise statement on page 75, we find a marked difference, inasmuch as, that, while at page 20, we find the verification as required to be made under Section 83(c) of the Act read with Rule 15 of Order VI of the Code of Civil Procedure, no such verification is to be found at the foot of or below the concise statement of material facts which starts at page 70 and ends at page 75 of the compilation of the election Petition.
12. Based on this essential difference, and the omission of the verification as per the requirements of Section 83(c) of the Act read with Rule 15 of Order VI of the Code of Civil Procedure, Mr. Manohar, the learned Counsel for Respondent No. 1 submitted that as the concise statement is an integral part of the election petition, it is required to be verified in the manner provided for the verification in pleadings in the Code of Civil Procedure. The same, in the present case, has not been verified by the election petitioner, and, therefore, the copy thereof, which has been served to the Respondent, along with the other papers of the election petition, cannot be said to be a copy of the concise statement which has to be in conformity with Section 83 of the Act, and therefore, the Election Petition is liable to be rejected in limine.
13. It was also the contention of Mr. Manohar that the copy of the election petition served to the respondent is not a true copy of the original election petition which has been filed in the Court, inasmuch as at three places i.e. pages 20, 75 and 77, though, in the original election petition, as now the respondent finds, there is an endorsement purportedly made by the Associate, High Court O.S., Bombay in token of the petitioner having signed those pages in her presence and, and though these endorsements have also been purported to have been dated by the Associate, O.S., High Court, Bombay, in the copy of the election petition served to the respondent, neither the signature nor the name of the Associate has been mentioned nor has been mentioned the date on which the Associate purported to have made those endorsements, therefore, submitted Mr. Manohar, the copy of the election petition which has been served to the respondent is not a true copy of the original election petition, and therefore, there is an infringement of Section 83(1) of the Act which would entail the dismissal of the election petition at the threshold under Section 86(1) of the Act.
14. It is seen on a bare perusal of the election petition that on all three pages i.e. 20, 75 and 77, there is an almost identical endorsement which reads as follows:
Before me,
M.R. Bangale,
21/6/96
Associate,
O.S. High Court, Bombay.
except that at page 75 the date is 24.6.96 instead of 21.6.96.
15. It appears that, as required by the rules, the respondent has been served with two copies of the election petition. One seems to have been served personally through the Court machinery, and the Second through the registered post A.D. Both those copies have been produced by the respondent before this Court. One has been produced by him along with his affidavit in support of the Chamber Summons, and the other has been produced along with the affidavit of Mr. I.C. Patel which has been subsequently filed in the Court. It is not in dispute that these are the copies of the election petition which have been served upon the respondent. It is not also in dispute that these are the copies a the election petition supplied by the election Petitioner for being served to the respondent. Insofar as the omissions, deficiencies and mistakes which are sought to be highlighted by the respondent if requesting that the election petition should be rejected under the provisions of Section 86(1) of the Act, both the copies are identical. I would, therefore, only refer one of them viz. the one produced by respondent along with his affidavit in support of the chamber summons. In that copy at page 20, though all other parts have been copied probably by means of a xerox machine the last endorsement in the original purporting to have been made by the Associate is not the exact copy of that endorsement, so far as the copy of the election petition is concerned. At all relevant pages i.e. pages 20, 75 and 77, the position is identical. It is upon the copy of this endorsement of the Associate that Mr. Manohar, the learned Counsel for the Respondent very heavily relied and submitted that so far as the copy of the election petition is concerned, it does not reflect, the endorsement purported to have been made by the Associate on the original correctly and exactly, and therefore, there is an infringement of Section 81(3) of the Act. So far as the copy of the election petition is concerned, that endorsement appears at all three relevant places i.e. pages 20, 75, and 77, as follows:
Before me,
Sd/-
Associate.
O.S., High Court, Bombay.
16. Mr. Manohar, the learned Counsel for the Respondent submitted that on all these relevant pages in the copy of the election petition served to the Respondent, we do not find reflection of the signature of the Associate, and we also do not find the date, on which the Associate purported to have made that endorsement in the original, though in the original, the date has been mentioned. Mr. Manohar therefore argued that the respondent would not be in a position to ascertain whether, as a matter of fact, these endorsements had been signed by the Associate, O.S., High Court Bombay, and if they were so signed, on what date. According to Mr. Manohar, the respondent would not also be in a position to ascertain whether the person, who purported to sign this endorsement really, was the very person having the authority to administer an oath to the deponent. Therefore, in the submission of Mr. Manohar, not only that the copy of the election petition served to the respondent is not a true copy but also the fact that it is not a true copy has misled the respondent or has caused prejudice to the respondent, and therefore, the doctrine of substantial compliance which is sought to be invoked by the Petitioner can have no application, At pages 76 and 77 of the compilation of the election petition is the affidavit of the petitioner, That affidavit is .captioned thus:
'AFFIDAVIT (FORM 25, SEE Rule 94-A)' Mr. Manohar, the learned Counsel for the respondent submitted that though in the present case, it was not strictly necessary for the Petitioner to have filed an affidavit like the one which has been filed at pages 76 and 77 of the compilation of the election petition, for the reason that no corrupt practices within that expression, as used under Section 123 of the Act, has been alleged to have been committed either by the respondent or by his election agent or by any other person with the consent of the respondent or his election agent. However, as a matter of fact, the affidavit has been filed by the Petitioner, and that affidavit is stated to have been filed in the Form 25 read with Rule 94-A of the Rules, therefore, the same would become the integral part of the election petition, and the Petitioner was required to supply to the respondent a true copy of that affidavit. As the endorsement at the foot of that affidavit in the copy of the election petition is not a complete endorsement, the copy of the election petition served to the respondent is not a true copy of the original election petition, and therefore, also the election Petition should be dismissed under Section 86(1) of the Act.
17. On behalf of the Petitioner, Mr. Chinai, the learned Counsel, firstly submitted that when Section 81(3) of the Act speaks of 'a true copy' what is required to be supplied by the Petitioner is a copy which is substantially in conformity with the original and it is not necessary that the Petitioner should supply, for being served to the respondent, a copy which is exact like a photocopy of the original. According to Mr. Chinai, in the present case, the copy of the election petition, insofar as the material parts thereof are concerned, has been supplied to the Respondent, and that copy is substantially a true copy of the original election petition, and therefore, the grievance now made by the respondent is ill founded, Mr. Chinai submitted that by the omissions in the endorsement of the Associate in the copy of the election petition, which are sought to be relied upon by the Respondent, no prejudice has been caused to the respondent nor has the respondent been in any manner misled, and therefore, also the Chamber Summons should fail. It was also submitted by Mr. Chinai so far as the concise statement at pages 70 to 75 of the compilation of the election petition is concerned, that though, there may not be verification at the foot thereof in conformity with Rule 15 of order VI of the Code of Civil Procedure, as that concise statement forms part of the election petition, and as at the foot of the election petition at page 20, there is a verification made by the Petitioner, the absence of specific verification below the concise statement cannot prove fatal to the election petition.
18. I have heard the learned Counsel for the parties. Several authorities were relied upon by the learned Counsel for the Respondent.
19. Mr. Manohar, the learned Counsel for the Respondent firstly relied upon to decision in the case of M.Kamalam v. D.V.A. Syed Mohammed, reported in : [1978]3SCR446 . Relying upon this judgment, Mr. Manohar submitted that an affidavit, which is filed along with the election petition, becomes the integral part of the election petition, and therefore once such an affidavit is filed, whether it was required to be filed or not, the Petition would be under an obligation to furnish for being supplied to the respondent an exact true copy of that affidavit, and if the petitioner commits default in this respect as he had done in the present case, the election petition would be liable to be dismissed under Section 86 of the Act for not complying with the requirements of Section 81(3) of the Act, This judgment of M.kamalam's case in clear terms posits that an affidavit, which is spoken of by the proviso at the end of Sub-section 1 of Section 83 of the Act, is an integral part of the election petition. In the present case, the election petitioner, though he was not technically required to file the affidavit had filed the affidavit. The affidavit is stated to have been filed in conformity with Rule 94A of the Rules and in Form No. 25. Thus on the Petitioner's own showing, that is a affidavit which has been filed by him as per the requirements of the proviso appearing at the end of Sub-section 1 of Section 83 of the Act. That affidavit therefore stands on the same footing as the other pages of the election petition on which Mr. Manohar relied viz. page 20 which is the last page of the petition proper and page 75 which is the last page of the concise statement.
20. Mr. Manohar very heavily relied upon the decision in the case of Dr. Smt. Shipra v. Shanti Lal Khoiwal AIR 1996 SC 1691. That was a case wherein four matters were decided together. The main was the case of Dr. (Smt.) Shipra which arose from Rajasthan High Court. The judgment of the learned Single Judge of the Rajasthan High Court from which the matter went to the Supreme Court has been reported in . In that case, the election of the Returned Candidate was challenged, inter alia, on the ground of corrupt practice. An affidavit, as required to be filed, under the proviso in Section 83 of the Act was filed. A copy of the election petition along with the copy of the affidavit had been served to the Returned Candidate. Before, the High Court, on behalf of the Returned Candidate, inter alia, it was contended that the copy of the election petition served on the respondent along with the summons did not bear the attestation/affirmations part, i.e. an endorsement by the Officer/Oath Commissioner administering the oath/affirmation to the petitioner. The place and date of administering the oath were, also, missing, Omission to supply the endorsement part in the affidavit, which is an essential part of the affidavit, which, in turn, is integral part of the election petition according to the respondent, in that case, constituted the non compliance of Section 81(3) of the Act and rendered the election petition liable to be dismissed under Section 86(1) of the Act. The contention found favour with the High Court and also with their lordships of the Honourable Supreme Court. Before the Supreme Court, the matter came before a Three Judge Bench. All three Judges, rendered separate but concurring opinions and all the three endorsed and approved the view that was expressed by the learned Single Judge at the Rajasthan High Court.
21. In paragraph 6 of the Judgment rendered by the Hon'ble Supreme Court, His Lordship Mr. Justice K. Ramaswamy has posed the question for determination as follows:
Thus in all the appeals, the only question that arises for consideration is : whether the copy of the election petition accompanied by supporting affidavit served on the respective respondent along with Form 25 prescribed under Rule 94-A of the Conduct of Elections Rules. 1961 without attestation part duly verified by the District Magistrate/Notary/Oath Commissioner can be said to be 'true and correct copy' of the election petition as envisaged in Section 81(3) of the Act?
22. Their Lordship of the Supreme Court have analysed various relevant provisions of the Act and the Rules. They have also considered the meaning of expression 'true copy'. In paragraph 8 of the report, this is what is stated : 'It would thus be clear that a true copy is a transcript identical or substitute to the original but not absolutely exact copy. But nobody can by any possibility, misunderstand it to be not a true copy. It is seen that the test, as stated earlier, is whether by any variation from the original is calculated to mislead an ordinary person. When a petitioner is enjoined to file an election petition accompanied by an affidavit duly sworn by the applicant duly verifying diverse allegations of corrupt practices imputed to the returned candidate and attested by the prescribed authority it would be obvious that the statute intended that it shall be performed in the same manner as prescribed in Form 25 read with Rule 94A of the Rules. The attestation of the affidavit by the prescribed authority, therefore, is an integral part of the election petition. The question, therefore, is whether copy of the affidavit supplied to the respondent without the attestation portion contained in it (though contained in the original affidavit) can be considered to be a true copy?'
23. Then the Court has considered the five propositions as have been laid down in the earlier judgment in the case of Mithilesh Kumar Pandey v. Baidyanath Yadav : [1984]2SCR278 . The third proposition enunciated in the judgment in the case of Mithilesh Pandey is as follows:
Where the copy contains important omissions or discrepancies of a vital nature which are likely to cause prejudice to the defence of the returned candidate, it cannot he said that there has been a substantial compliance of the provisions of Section 81(3) of the Act.
The fourth proposition in that judgment read as follows:
Prima facie, the statute uses the word 'true copy' and the concept of substantial compliance cannot be extended too far to include 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 within the meaning of Section 81(3) of the Act.
24. Their Lordships of the Supreme Court then referred to the decision in the case of Purushottam v. Returning Officer, Amaravati : AIR1992Bom227 , which is the judgment rendered by the learned Single Judge (Qazi, J) of this Court. Both, K. Ramaswamy, J and K.S. Paripoornan, J. in separate but concurring opinions have approved the judgment of the learned Single Judge of this High Court in the case of Purushottam, and Paripoornan, J. after extensively quoting from the judgment in the Purushottam's case while adopting the observations and reasonings of the learned Single Judge of this High Court has, in paragraph 22 of the Judgment, said that His Lordship would adopt the same observations as his own. Thus, the judgment, in the case of Purushottam rendered by the learned Single Judge of this High Court, has met with whole hearted approval from the Supreme Court. Purushottam's case was also a case where a copy of the affidavit accompanied with the copy of the election petition which was served to the Respondent was found not to be a true copy, inasmuch as, that copy did not bear the name and designation of the Notary as also it did not contain the endorsement made under the signature of the Notary which of course found place in the original affidavit. The learned Single Judge of this High Court in Purushottam's case found that the copy of the affidavit, which was served to the Respondent in that case, along with the copy of the election petition in that case, could not be said to be a true copy of the affidavit, and therefore, it was not a true copy of the document which formed the integral part of the election petition, and therefore, there was non compliance of Section 81(3) of the Act which required dismissal of the election petition under Section 86 of the Act. That view of the learned Single Judge of this High Court, as said above, has found whole, hearted approval from the Supreme Court in the decision in the case of Dr. (Smt.) Shipra v. Shanti Lal (Supra)'.
25. In paragraph 11 of the judgment of the Supreme Court, in the case of Dr. (Smt.) Shipra (Supra), His Lordship K. Ramaswamy, J has observed as follows:
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.
26. The above referred judgments make it amply clear that the copy of the election petition, which is required to be served upon the respondent, has to be a true copy, meaning thereby, it has to be a copy which is substantially the reproduction of the original. Of course, insignificant omissions in the copy may have to be ignored, but, if there is omission of the vital nature in the copy, as compared to the original election petition, such omission cannot be ignored, and if there is such an omission, it has got to be said that the copy of the election petition served upon the respondent is not a true copy of the original.
27. The question, in each case, would be whether the omissions or mistakes or discrepancies of a vital nature sought to be highlighted by the respondent are the omission/mistakes/discrepancies of substantial nature or not. The judgments referred to above clearly show that if in the copy of the election petition served upon the respondent there is an omission as regards the endorsement by the 'prescribed authority before whom the election Petition is verified, such an omission is a vital omission and would entail the dismissal of the election petition under Section 86(1) of the Act.
28. Here, in the case before me, three different pages of the original election petition are required to be compared with the corresponding three pages of the copy of the election petition served to the respondent. So far as all these three pages are concerned (pages 20, 75 and 77), the omission which is sought to be highlighted on behalf of the respondent is the same. The first omission consists of there being no signature or name of the officer before whom the election petitioner is said to have made a verification or affirmation. The other omission which is highlighted by the respondent is that on all these three pages in the original election petition, there appears the date of endorsement, put by the Associate but in the copy of the election petition under the endorsement at the corresponding three places, on the relevant three pages, no date is found.
29. The question is whether these omissions are vital? My answer to it, is in the affirmative, for the simple reason that though in the endorsement in the original election petition, Mrs. Bengale, the Associate of this Court has put her signature, on the copy at the corresponding pages, there is only Sd/- written, and no date is to be found on the corresponding pages in the copy of the election petition. The endorsements made by the Associate have importance inasmuch as the law requires the election petition to be verified in the manner prescribed for verification of pleadings in the Code of Civil Procedure. As indicated hereinabove, so far as this Court is concerned, the pleadings have to be verified before the officer mentioned in Section 139 of the Code of Civil Procedure. Of course, Mr. Manohar, the learned Counsel for the respondent submitted that the Associate of this High Court is not a Oath Commissioner for administering the Oath, and therefore, she would not have authority to administer an oath to the deponent. I think, that submission cannot, be allowed to prevail for it has been in no uncertain terms held by the learned Single Judge of this High Court in the decision in the case of Prataprao Ganpatrao Bangar v. Ashok Anandrao Deshmukh and Ors. in Election Petition No. 3 of 1992, decided on February 10, 1992 that an officer of this Court who has been authorised by this High Court to administer oath is an Oath Commissioner under the Indian Oaths Act. Therefore, Mrs. Bangale would be an Oath Commissioner who would have authority to administer the oath to the deponent and the verification/affirmation made by the election petitioner before her could not be faulted because Mrs. Bangale had an authority to administer the oath. However, in the copy of the election petition, no name of the officer who administered the oath to the election petitioner or before whom the election petitioner verified the election petition or made affirmation is mentioned. The fact that the Petition is required to be verified, or the documents required the affirmation before the prescribed authority cannot be disputed. Once that is a legal position, the respondent could be entitled to know whether, as a matter of fact, the Petitioner had verified the contents of the election petition before the authorised officer. The respondent would also be entitled to know as to whether the officer, before whom the election petitioner purported to have verified the election petition or affirmed the documents, was authorised to administer the oath. All these facts, the respondent could know, only if the name of the officer before whom the election petitioner claims to have verified the documents is made known to him. The respondent is not supposed to go to the Court office to wade through the original records and find out whether, as a matter of fact, the officer or authority before whom the election petitioner purported to verify the petitioner affirm the documents had put his signature on the original document in token of those documents having been verified/affirmed/declared by the election petitioner before him. Secondly, in order to know the date on which such verification/affirmation/declaration was purported to have been made by the election petitioner, also the respondent was entitled to know that date, and therefore, the copy of the election petition served to him should have contained the date and the place where the Associate purported to have put her signature. In absence of that date, in the copy of the election petition, the respondent would be at a loss to find out as to on which date the election petitioner had either verified the election petition or affirmed or declared the documents before the Associate. In that event, there is clear prejudice caused to the respondent, and therefore, the omissions at three places (i.e. pages 20, 75 and 77), upon which the respondent relies, are substantial omissions which would make the copy of the election petition served to the respondent not a true copy, and that would entail the dismissal of the election petition under Section 86(1) of the Act.
30. It was submitted on behalf of the election petitioner by Mr. Chinai, that the affidavit which the election petitioner has filed is not an integral part of the election petition for the simple reason that as no corrupt practice has been alleged in the election petition, therefore filing of such an affidavit was not a mandatory requirement of law, and therefore, when the election petitioner has filed such an affidavit, that document should be treated to be surplusage. The argument cannot be accepted firstly for the reason that the election petitioner himself has purported to file that affidavit in Form No. 25 under the requirements of Rule 94-A of the Rules, therefore, whether it was incumbent upon the election petitioner to file such affidavit or not, the election petitioner, as a matter of fact, purported to file an affidavit in Form No. 25 of Rule 94-A of the Rules, and therefore, as rightly submitted by Mr. Manohar, the learned Counsel for the respondent, affidavit should be treated to be integral part of the election petition.
31 . Secondly, in a very recent judgment, in the case of Jagannath Shindu Rahane v. Smt. Manisha Manohar Nimkar, in Election Petition No. 20 of 1995 decided on April 18, 1996 (Now reported in 1996 (3) A MR 475 - ed.), a learned Single Judge (M.S. Rane, J) of this Court was concerned with a case where the election of the returned candidate was challenged, not on the ground of corrupt practice but on the ground that the returned candidate did not belong to Scheduled Tribe. Therefore, in that case, strictly speaking, the filing of the affidavit, as spoken of by the proviso to Sub-section 1 of Section 83, was not necessary, and still, the election petitioner in that case had filed such an affidavit. The learned Single Judge considered the matter from the standpoint of the question whether the copy of the affidavit served to the respondent in that case was a true copy. In that context, in paragraph 34 of the judgment, the learned Single Judge observed as follows:
The petitioner has filed the affidavit in support of the election petition which is at pages 33-34. True it is that in this petition the petitioner has not taken up the ground of corrupt practice questioning the election of the respondent. But it would be besides the point. In the matter herein the fact remains that the petitioner has in fact made an affidavit and has annexed the same to the petition. We are concerned mainly whether there is a compliance of Section 81 of the said Act in furnishing a true copy of the petition. The various flaws in the copy of the petition furnished to the respondent have been noted herein above in para 14 to which there is no dispute and in my view there cannot be also as the same are apparent on the face of it.
Towards the later part of that very paragraph 34 of the judgment, the learned Single Judge has observed as follows:
It is undisputed fact that the affidavit forms part of election petition and the copy furnished thereof does not indicate whether in fact the same was affirmed by the petitioner. Same also does not show the name and designation of the affirming authority. In my view, these are serious lacunas and omissions on the part of the petitioner.
Thus on authority also, as has been held by the learned Single Judge, it is clear that even if the election petitioner was not required to file an affidavit, as spoken of by the proviso to Section 83(1) of the Act, he has filed such affidavit; the copy of that affidavit served to the respondent should be a true copy; and if that copy does not show the name and designation of the affirming authority, that document would not be a true copy, and to put in the words of the learned Single Judge, there would be serious lacunas and omissions on the part of the petitioner.
32. Therefore, the copy of the affidavit (page 77) in the present case would stand on the same footing as the copy of the other two pages i.e. Pages 20 and 75 of the election petition, even assuming for the sake of argument, that the flaw in the copy of the affidavit cannot be taken into account for the election petitioner was not obliged to file such an affidavit, the flaw of the omissions in the other two portions in the copy of the election petition viz. pages 20 and 75, would in my opinion, be sufficient to hold that the election petition is liable to be rejected under Section 86(1) of the Act.
33. There is one more aspect of the matter which is required to be noticed. As pointed out hereinabove, at page 75 of the original election petition, there is no verification done by the election petitioner. From pages 70 to 75 of the compilation of the election petition, the election petitioner has produced the concise statement of material facts. The narration of the concise statement of material facts is completed at page 75, and below that, we do not find any verification having been made by the election petitioner, as mandated by Clause (c) of Section 83 of the Act read with Rule 15 of Order VI of the Code of Civil Procedure, as pointed out hereinabove, inter alia, requires the person verifying a pleading to specify by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. It could not be disputed that the concise statement would be an integral part of the election petition. As a matter of fact, the first requirement of the election petition, under Section 83 of the Act, is that the election petition shall contain a concise statement of the material facts on which the petitioner relies. Thus, the concise statement is the first essential requirement of an election petition. It is, therefore, a integral part of the election petition. Being an integral part of the election petition, by virtue of Clause (c) of Section 83 of he Act, it is required to be verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. In the present case, we do not find any verification having been made by the election petitioner or any other person competent to verify, so far as the concise statement is concerned. The copy of the election petition served to the Respondent also does not bear out the fact that the concise statement has been verified by the election petitioner or somebody else on his behalf who is competent to verify, the going by the Supreme Court dictum, in the case of Dr. (Smt.) Shipra v. Shanti Lal (Supra) now it is clear that Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form No. 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In the Court does not uphold the same, the need to conduct trial would arise. If Court upholds the preliminary objections, election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same.
Thus, as laid down by the Supreme Court in paragraph 12 of the judgment the case of Dr. (Smt.) Shipra (Supra), it is now clear that Sections 83(1)(c) and 86 are required to be read with Rule 94-A the Rules and Form 25 conjointly as integral scheme. Therefore, though Section 86(1) of the Act does not refer to Section 83 of the Act, by virtue of this judgment, we have to read Section 86 of the Act conjointly with Sections 81 and 83(1)(c) of the Act. So read, it would lead to this that, if on the facts, the election petition does not conform to the minimum, it has got to be said that the copy of the election petition served to the respondent would not be the copy of the election petition which should conform to the requirement of Section 83(1)(c) of the Act, and in that view of the matter also, the election petition would be liable to be dismissed. In the present case, the concise statement has not been verified as required to be done under Section 83(1)(3) of the Act read with Rule 15 as amended by the Bombay High Court in Order VI of the Code of Civil Procedure.
34. As result of the foregoing discussion, I find that the copy of the election petition supplied to the respondent is not a true copy of the original election petition. Therefore, the election petition is liable to be dismissed under Section 86(1) of the Act. The Chamber Summons is made absolute in terms of prayer (a) and it is ordered that the election petition stands dismissed under Section 86(1) of the Act. A copy of the Judgment be sent to the Election Commission of India and the Speaker of the parliament as required under Section 103 of the Act.
35. There shall be no order as to costs. The amount deposited by the Election Petitioner in this Court shall be returned to the Election Petitioner.
36. Issuance of certified copy be expedited.