ORDER
The Court
1. Petitioner's nomination from assembly constituency No. 43, Baramasagar, reserved for Scheduled Castes in the election for the Legislative Assembly of the State was rejected by the Returning Officer by his order dated 19-8-1999, on the ground that the petitioner does not belong to Scheduled Caste. Petitioner after the announcement of poll results, in this election petition, challenges the election of second respondent from No. 43, Baramasagara reserved constituency, on the ground,if not for improper rejection of his nomination papers by Returning Officer, he would have been successful candidate for the State Legislative Assembly.
2. Pursuant to the notification calling for applications for election to No. 43, Baramasagar reserved Assembly Constituency, petitioner had filed his nomination papers along with the copy of the caste certificate issued in Form No. 1 by the Tahsildar of the area, certifying that the petitioner belongs to 'Beda Jangama Caste', which is considered as Scheduled Caste under Presidential Order issued under Articles 341 and 342 of the Constitution. The second respondent had contested the elections from Janata Dal (U) party. Respondents 3 to 10 had also filed their nomination papers. On the date of scrutiny of the nomination papers, an objection was raised by one Sri Rahamathulla, the proposer of the 6th respondent before the Returning Officer, that the petitioner was disqualified for being chosen as a member of the Assembly, since he does not belong to Scheduled Caste. In support of his objection, the objector had produced the orders passed by the Tahsildar in case No. 12/95-96, dated 17-8-1999, wherein he has cancelled the earlier certificate issued by him certifying that the petitioner belongs to Scheduled Caste. The Returning Officer, by his order dated 19-8-1999, has upheld the objections of the objector and has rejected the nomination papers of the petitioner, on the ground he does not belong to Scheduled Caste and ineligible to contest the election from the reserved constituency. As per the calendar of events, the poll was held on 5th September, 1999, counting took place on 6th day of October, 1999 and the second respondent was declared duly elected on the same day, to fill the seat in the Legislative Assembly from No. 43, Baramasagar Assembly Constituency.
3. The case of the petitioner as set up in the election petition is that, his nomination papers for the election could not have been rejected by the Returning Officer based on an order made by the Tahsildar in case No. 12/95-96, dated 17-8-1999. In view of such improper rejection of his nomination papers, it has materially effected the result of the election. Petitioner, therefore, prays for setting aside the orders made by the Returning Officer dated 19-8-1999 and further, prays to declare the election of the returned candidate as void as envisaged under Section 100(1)(c) of the Representation of the People Act, 1951.
4. After entering appearance, the returned candidate has filed his written statement and also an application under Section 86(1) of the Representation of the People Act, 1951 (hereinafter, for the sake of brevity referred to as 'Act 1951'), for summary dismissal of the election petition for non-compliance with certain statutory provisions in the election petition, which are mandatory in nature, In the affidavit filed along with the application, it is stated on oath by the petitioner that he was only served with the translated and typed copies of annexures referred to as documents D-3 to D-16 along with the notice of the election petition issued by this Court. It is further stated that he was not served with the memorandum of election petition and the true copies of the annexures filed by the petitioner before this Court. It is also stated that after hisappearance before the Court, his learned Counsel has secured a copy of the election petition from the learned Counsel for petitioner and on perusal and comparison of the election petition and the documents annexed to the election petition, it was noticed that the copy of the election petition served is not the true copy of the election petition filed before this Court and the annexures do not tally with the annexures served on him. It is also stated that the copies of the documents served are not true copies and therefore, there is non-compliance of provisions of Sub-section (3) of Section 81 of the Act. In paragraph 7 of the affidavit, he elaborately states the discrepancy in the marking of the documents and states that the document produced and served on him do not tally with the original and therefore, there is non-compliance of statutory provisions. In paragraphs 9 and 10 of the affidavit, second respondent states:
'9. That it is submitted that the copy of the election petition should contain all particulars including the copy of the sworn affidavit by the petitioner to the election petition. That the copy of the affidavit supplied to the respondent should contain the date, name and designation of attesting authority. The absence of endorsement of the notary affirmed and signed before me, his designation in the copy of the respondent is an omission of vital nature and amounts to non-compliance of requirement of Section 81(3) of the above Act. The affidavit annexed to the election petition is an integral part of the election petition and the copy of the affidavit to be served on the respondents should conform to the requirement of Section 81(3) of the above Act. It is submitted that it is mandatory to supply attestation part of the affidavit to the respondent. Rule 94-A of the Rules 1961 provides that, to constitute an affidavit as required, besides the affidavit of the deponent, the endorsement regarding attestation of the affidavit is also necessary, in other words, such attestation is a sine qua non for a legal and valid affidavit. Non-supply of the attestation causes material prejudice to the respondents and omission and lapse on the part of the petitioner attracts the dismissal of the election petition in limine. In the present case, the petitioner served a xerox copy of the election petition on the second respondent on 5-7-2000. On perusal of the copy of the election petition, page 10 of the election petition pertains to affidavit and the petitioner has not served the attestation part of the election petition on the respondent herein. The non-supply of the attestation part is fatal and amounts to non-compliance of the mandatory requirement of Section 81(3) of the above Act and hence, the above election petition is liable to be set aside.
10. That the verification of the contents of the election petition annexed to the election petition is also defective and amounts to non-compliance of statutory requirement of Section 81(3) of the Act. At page 9 of the election petition, the petitioner has annexed verification and in the verification, the petitioner does not specify which are the contents/paragraphs/averments is based on his knowledge and which are the paragraphs/contents/averments arebased on information and belief. As the requirement of law compels that the verification should be specific and clear but, the verification annexed to the election petition is vague and as such the above election petition is liable to be rejected in the behest.
PRAYER
Wherefore, it is respectfully prayed that this Hon'ble Court be pleased to allow the accompanying application and dismiss the election petition, in the interest of justice and equity'.
5. Petitioner has filed his counter-affidavit denying the allegations and assertions made by the second respondent in his application filed for dismissal of the election petition for non-compliance of provisions of Section 81 of the Act. Firstly, it is stated that the application filed by the returned candidate is not maintainable and secondly, the election petition filed by him is strictly in accordance with the provisions of the Act and lastly, denies all the assertions made in the application and therefore, requests this Court to dismiss the application.
6. While this application was pending consideration, the parties to the lis, had filed several other applications. This Court by its orders made on several dates has disposed of those applications and it appears those orders have become final.
7. The objection raised by the returned candidate as to the maintainability of the election petition for non-compliance of mandatory provisions, requires to be considered and decided as a preliminary issue before directing the parties to go for trial, in view of the law declared by Apex Court in the case of Shipra and Ors. v. Shanti Lal Khoiwal and Ors. In the said decision, the Court has observed:
'12. The contention that the election petition cannot be dismissed under Section 86 at the threshold on account of the omission on the part of the Registry of the High Court to point out the same as per its procedure cannot be countenanced. Lapse on the part of the Registry is not an insurance to deny to the returned candidate the plea that the attestation of the affidavit and its certification to be a true copy is an integral part of the pleadings in the election petition. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 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 case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objections, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same'.
8. In re Manohar Joshi v. Nitin Bhaurao Patil and Anr., the Supreme Court was pleased to observe:
'20. Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination of the election petition as presented. Sub-section (1) of Section 81 requires the checking of limitation with reference to the admitted facts and Sub-section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented. Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition. Section 117 requires verification of the deposit of security in the High Court in accordance with Rules of the High Court, Thus, the compliance of Sections 81, 82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the R.P. Act, which is a judicial function. For this reason, the non-compliance of Section 83, is not specified as a ground for dismissal of the election petition under Section 86'.
9. The learned Counsel Sri Mahesh Uppin, for the applicant, firstly contends the non-service of election petition along with the notice issued by this Court on the election petition filed by the petitioner. The learned Counsel submits that what was served on the returned candidate along with the notice of this Court is only typed and translated copies of the annexures referred to as documents D-3 to D-16. He further states that the copy of the election petition was served only on 5-7-2000, after the returned candidate entered his appearance before this Court.
10. Sri Siddappa, learned Counsel for the petitioner contends that there is no truth in the submission of the learned Counsel for the applicant and further, states that the notice of the election petition would be ordered by this Court, if only the petitioner has complied with Rule 10 of the Election Petition Procedure Rules and since such a notice has been issued by this Court, it should be necessarily presumed by this Court that the applicant was served with the copy of the election petition along with the petition summons and therefore, petition did not suffer from 'lack of compliance' with the procedural requirement.
11. The applicant, except making a bald assertion, has not produced any other material before this Court in support of such assertion and allegation. The applicant does not even choose to produce the postal cover and its contents that were served on him along with his application. He does not even file an affidavit of the postman, who had served the notice of this Court on the applicant. Except an assertion, there isnothing else on record in support of that assertion. Per contra, the check slip and the endorsements issued, by this Court supports the case of the petitioner and therefore, the only inference that can be drawn is that the applicant/returned candidate was served with the copy of the election petition filed before this Court. In a more or less similar situation, the Apex Court while considering the similar contention canvassed for the appellant in the case of Jugal Kishore Patnaik v. Ratnakar Mohanty, has observed as under:
'8. There are, in our opinion, some broad facts of the case which lend support to the finding of the High Court on issue No. (1) that the election petition was accompanied by an attested copy signed by the respondent. Endorsement dated April 15, 1974, made by an officer of the High Court shows that a copy of the election petition had been filed. We find no cogent reason as to why an officer of the High Court should make a false endorsement on the petition if, in fact, no such copy had been filed. As regards the factum of the attestation of the copy by the respondent under his own signature, we find that the appellant cannot in the very nature of things assert positively that the copy had not been attested by the respondent as, according to him, he did not see that copy. The copy was also not available on the record, as the same had been affixed at the residence of the appellant when he, according to the report of the process-server, declined to accept the summons. Before summons was issued to the appellant, the following endorsement was made by an officer of the High Court in respect of the election petition filed by the respondent:
'Defect: Nil'.
We see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the procedural requirement'.
12. The learned Counsel for the applicant secondly contends that the copies of the election petition supplied to other respondents, in particular to third respondent is not attested by the petitioner under his own signature to be true copy of the election petition, which is a mandatory requirement and the non-compliance of that requirement should result in the dismissal of the petition as required under Section 86 of the Act. In support of this submission, the learned Counsel relies upon the observations made by Supreme Court in the case of Satya Narain v. Dhuja Ram and Ors., Sharifud-Din v. Abdul Gani Lone, and the observation made by Delhi High Court in the case of Mukhtiar Singh v. The Chief Election Officer and Dharam Dev Solanki.
13. Per contra, Sri Siddappa, learned Counsel for the petitioner submits that the copies of the election petition supplied to the respondents is attested and verified by the petitioner himself and merely because, petitioner has not stated and attested the copies as 'true copy' of the petition, it cannot be said the election petition is either defective or suffers from non-compliance of mandatory provisions. The learned Counsel states that there is substantial compliance of the statutory provisions, and therefore, the petition need not be dismissed in limine on this ground. In aid of this submission, the learned Counsel relies upon the observations made by Apex Court in the case of Subbarao v. Member, Election Tribunal, Hyderabad and Ors., Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors., Anup Singh v. Abdul Ghani, Sahodrabai Rai v. Ram Singh Aharwar, F.A. Sapa v. Singora, and the latest view of the Supreme Court in the case of T.M. Jacob v. C. Poulose.
14. The submission of the learned Counsel for the applicant is infraction of Sub-section (3) of Section 81 of the Act. This issue has to be resolved from the point of view of the requirement of the law on the subject. Section 86 of the Act provides for dismissal of the election petition in limine for non-compliance of provisions of Sections 81, 82 and 117 of the Act. In the present application, the applicant primarily alleges the non-compliance of Section 81(3) of the Act. To answer the issue, provisions of Section 81(3) of the Act requires to be noticed and therefore, the same is extracted:
'Section 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'.
15. An analysis of this sub-section would indicate that election petition filed before the Court should contain as many copies as there are respondents and second part of this sub-section would reveal that every copy should be attested by the election petitioner under his own signature as true copy of the petition. The purpose and object of second part of Sub-section (3) of Section 81 of the Act is explained by Apex Court in Sharifud-Din's case, supra. In the said decision, the Court was pleased to state:
'The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be true copy of the petition appears to be that the petitioner should have full responsibility for its contents and that the respondent or respondents should have in their possession, a copy of the petitionduly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the petition after it is filed in the Court'.
The Court was further pleased to observe:
'A respondent would not have the same degree of assurance, if a copy is served on him is one attested by any person other than the petitioner himself. The attestation by the Advocate for the petitioner cannot be treated as equivalent of attestation by the petitioner under his own signature. If the requirement of the second part of Section 89(3) that copy of the petition should contain the signature of the petitioner himself is not one of substance, there was no need to enact it as the first part of Sub-section (3) of Section 89 of the Act would have been sufficient for it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the word 'copies' mentioned therein can only mean 'true copies'. The importance of the provision contained in Section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is established that Section 89 of the Act had not been complied with also cannot be overlooked in this context.
We are, therefore, of the view that the requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non-compliance with that requirement should result in the dismissal of the petition as provided in Section 94 of the Act. The High Court, was therefore, right in dismissing the petition on the above ground'.
16. The Apex Court in the aforesaid decision, while considering the provisions of Section 89(3) of the Jammu and Kashmir Representation of the People Act, which corresponds to Section 81(3) of the Central Act, 1951, has observed that the attestation of the copy of the election petition is mandatory and the attestation by the Advocate of the petitioner cannot be treated as equivalent to the attestation by the petitioner, and non-compliance with that requirement should result in the dismissal of the election petition.
17. The Supreme Court in Manohar Joshi's case, supra, while considering the second part of Section 81(3) of the Act, was pleased to observe:
'The object of the provision is clearly to ensure that each respondent to the election petition gets an identical copy of the election petition as presented in the Court to acquaint the respondent with the actual and full contents of the election petition as it is presented in the Court. On the basis of the identical copy, the respondent can prepare his defence and also take the plea of deficiency, if any, in the contents of the election petition with reference to Section 83 of the Representation of thePeople Act, in order to apply in the Court for action being taken under Order 7, Rule 11 or Order 6, Rule 16 of the CPC as the case may be'.
18. The expression 'copy' in Section 81(3) of the Act is now explained by Apex Court in T.M. Jacob's case, supra. The Court was pleased to observe:
'41. 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'.
19. Keeping in view the law on the point, let me notice the contention of the learned Counsel for the applicant. The learned Counsel says, in the copies supplied to some of the respondents, the petitioner has not attested the copy under his own signature as a true copy of the petition. Firstly, what is required to be considered and decided is whether the applicant can raise this objection, since his case in the application is that he was not served with the copies of the election petition, secondly, since the other respondents have not filed their objections, taking up this specific objection whether the petition requires to be dismissed in limine for non-compliance of Section c of the Act. Before I advert to these aspects, let me verify the copy of the election petition served on the third respondent, which the applicant's learned Counsel has produced before this Court at the time of hearing in support of his case and also the extra copies of the election petition, which are available in the records. The copies contain at the end of each page, the signature of the petitioner and the verification part of the petition is also signed by the petitioner himself. The affidavit filed along with the copy of the election contains the signature of the petitioner above the column 'deponent'. However, there is an omission to mention the name and particulars of the notary and stamp seal of the notary in the copy of the affidavit served on the third respondent and also the copies available in the records, and further these copies of election petition are not attested by the petitioner to be true copy of the petition.
20. The purpose of attestation to be true copy of the petition by the election petitioner under his own signature as explained by the Apex Court is that the petitioner should take full responsibility for its contents and to prevent any unauthorised attestation or tampering of the contents of the original petition after it is filed into the Court and further, to assure the respondents that the copy served on him is as that of the original petition filed in the Court and lastly, on the basis of the identical copy, the respondent can take up his defence and also take up the plea of deficiency, if any, in the contents of the election petition. Inthe instant case, as I have already stated, that the copies which are available in the records and the copy of the election petition served on the respondent 3 contains verification signed by the petitioner himself. Since the object of attestation as a true copy by the petitioner is to fix responsibility for allegations and assertions made in the petition on the person, who has verified the original petition filed in the Court, in my opinion, the same is satisfied fully, when the petitioner himself has signed the copy of the petition and also in the verification column. Therefore, merely because the petitioner has not stated at the end of the copy of the petition as 'true copy', the petition cannot be dismissed in limine, since the petitioner has filed copies of the petition verified by him and that in my opinion, is the substantial compliance of statutory provisions.
21. Now coming to the affidavit served on the respondent 3 and the copies of the petition found in the records contains that the statement made in the petition are true and correct and the documents produced in the election petition are true copies of the originals. The affidavit is once again signed by the petitioner himself. However, in the copy of the affidavit, the name and address of the notary, as well as the stamp and seal of the notary, before whom the affidavit had been affirmed and the name of the notary, who has attested the affidavit is missing. The defect pointed out by the learned Counsel for the applicant is identical to the defect that was pointed by the Apex Court in the case of Anil R. Deshmukh v. Onkar N. Wagh. While considering the same, the Apex Court was pleased to observe:
'17. It is to be noticed that the reference is only with regard to the applicability of Dr. (Smt.) Shipra in cases like the one which arose before the said Bench. 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.) Shipra's 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. Insofar as the present case is concerned, there is a distinguishing factor which makes the ruling in Dr. (Smt.) Shipra's 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. Unfortunately, this aspect of the matter has been completely ignored by the High Court. Hence, the order of the High Court dismissing the election petition in limine is unsustainable'.
22. The view expressed in Anil R. Deshmukhs case, supra, has been affirmed by the Constitution Bench in T.M. Jacob's case, supra. In the said decision, the Apex Court was pleased to observe:
'42. 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 to 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/- Notary. There, however, was an omission to mention the name and 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 before the signatures of respondent 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 consequences would not follow from non-compliance with Section 83 of the Act'.
23. Before I go to the next issue, let me answer whether the applicant, who asserts that the copy of the election petition itself is not served on him can seek for dismissal of the election petition on the ground that the copies served on the other respondents is not in accordance with the second part of Sub-section (3) of Section 81 of the Act.
24. Section 86(1) of the Act mandates that the Court or the Tribunal is bound to dismiss the election petition, whenever it is brought to its notice that the petition originally filed does not comply with the provisions of Section 81, 82 or 117 of the Act. The provisions of the Act contemplates that the Court before issuing notices to the respondent, toverify whether petition suffers from any of the defects envisaged under Section 81, 82 or 117 of the Act. Even if the Court omits to notice any such defects at that stage, it is bound to dismiss the election petition under Section 86(1) of the Act, whenever the defect is brought to its notice. In the instant case, this Court had issued notice to the respondents and one of the respondents after receipt of the Court notice, brings to the notice of this Court, which according to him is a defect in the copies of election petition. In my opinion, in view of the provisions of the Act, this Court can definitely look into the defects pointed out in the election petition even at the instance of the returned candidate, who asserts copies served on the respondents does not comply with statutory requirements. To arrive at this conclusion, I derive support from the observations made by Rajasthan High Court in the case of Mohan Raj v. Surendra Kumar Taparia.
25. The applicant in his affidavit at paragraphs 7 and 8 gives out details of the defects while marking the documents in the copy of the election petition with that of the petition filed before this Court. In paragraphs 7 and 8, the applicant has stated:
'7. The allegations are superfluous. In the office copy maintained by my Advocate was not corrected after filing of the election petition and that copy was xeroxed by the second respondent's Advocate and on the basis of said copy, the second respondent made this application and not on the basis copy served through Court. It can be understand that the copy furnished at the time of filing the election petition was defective and not in compliance of above said provisions. In fact, the allegations made in the petition and the documents are tallied, but only the number does not tally, because in the office copy of my Advocate, number was not corrected. Taking advantage of this fact, the respondent filed this application that too after lapse of one and half months from the date of filing the statement of objection. It is pertinent to mention here that in para 3 of the election petition, it is mentioned that Forms 21-C, 21-E and 7-A are marked as documents 1, 2 and 3. As Form 21-E has been produced subsequently and there afterwards it was corrected in the main petition as well as in the copies furnished to the office of this Hon'ble Court. But, the same was not corrected in the office copy of my Advocate, the same was xeroxed by the Advocate of the second respondent. Therefore, there is difference of one number. In fact, the allegation in para 6 of the election petition that the order passed by the first respondent is produced and marked as document 3 it is earlier to the correction. It can be understood that if the document itself was not produced, then it can be understood that there is variation. With regard to caste certificate also in view of production of Form 21-E number given to caste certificates corrected as documents 5 to 12. In fact, all the documents have been furnished to the second respondent. In the office copy of my Advocateinstead of 5 to 12, it is mentioned as 4 to 11. Similarly, Form 10 in respect of Kolar Parliamentary Reserved Constituency which is corrected as document 13. In fact, the same was corrected both in the main petition and in the copies furnished to the Court office. Similarly, document 14 mentioned, as 13 was not corrected in the office copy of my Advocate. Likewise, the numbers are being changed. But, the documents were produced along with the petition and tallies with the allegations made in the election petition.
8. The allegations that the copies were served on the second respondent is incorrect, as the question of service of copies and election petition does not arise at all, because after service of notice along with the petition and documents, only the second respondent appeared more over it is presumption under law that the said election petition along with the documents served on the second respondent. It is false case created by the second respondent for the purpose of filing this false application. If really interested, he could have asked the Court and thereby get an order from the Court of service of copies. Mere on the request of the Advocate of the second respondent and getting xeroxed the office copies of my Advocate do not empower the second respondent to file this application. Actually, my Advocate by courtesy has given extra copy. No misleading statements whatsoever made in this context'.
26. In view of the aforesaid statement in the affidavit, the learned Counsel Sri Mahesh Uppin for the applicant contends, since the copies of the election petition served on the respondents is not a true copy and that therefore, there is non-compliance of provisions of Section 81(3) of the Act and therefore, the election petition requires to be dismissed in limine as provided under Section 86(1) of the Act. Per contra, Sri Siddappa, learned Counsel for the petitioner contends that since the petitioner had to produce Form 21-E, in view of the objections raised by the office of this Court, there is some discrepancy in the marking of the documents, but that by itself cannot be said that there is non-compliance of provisions of Section 81(3) of the Act.
27. In T.M. Jacob's case, supra, the Constitution Bench has now, after considering all the earlier decisions has explained the meaning of the expression 'true copy', with reference to the provisions of Section 81(3) of the Act. The Court has observed as under:
'37. 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's case, supra, 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 ConstitutionBench found as untenable the contention that since copies of the petition 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 (at p. 1551 of AIR):
'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'.38. The Bench also opined (at p. 1550 of AIR):
'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 copy and effect of the word 'copy occurring in Sub-section (3) of Section 81. On behalf of the appellant the argument is that Sub-section (3) of Section 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 that reliance is placed on the decision of this Court in K. Kamaraja Nadar v. Kunju Thevar. 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 Stroud's Judicial Dictionary, Third Edition, Volume 4, page 3098). In this view of the matter it is unnecessary to go into the further question whether any part of Sub-section (3) of Section 81 is merely directory'.39. Similar view was reiterated by another Constitution Bench in Ch. Subbarao's case, supra, 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 Kumar's case, supra, the Constitution Bench in Ch. Subbarao's case, supra, 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 agreement with the view expressed by the Constitution Bench in Murarka Radhey Shyam Ram Kumar's case, supra, as well as in Ch. Subbarao's case, supra.
40. 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.
41. 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'.
28. The learned Counsel for the applicant further contends that there must be total and complete compliance with the provisions of Section 81(3) of the Act to avoid the dismissal of the election petition under Section 86 of the Act. However, learned Counsel Sri Siddappa, submits that in view of the law declared by Apex Court in Ch. Subbarao's case, supra, the substantial compliance with the provisions of Section 81(3) of the Act is sufficient to avoid the wrath of the provisions of Section 86 of the Act, The learned Counsel also invites my attention to the observations made by Apex Court in T.M. Jacob's case, supra, also. In the said decision, the Court was pleased to observe:
'44. Applying the test-as laid down in Murarka Radhey Shyam Ram Kumar's 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 orvariation 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. 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.
45. 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 Shyam Ram Kumar's 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'.
29. In the present petition, as I have already observed, since there is substantial compliance of statutory provisions by the petitioner while filing the election petition, and in view of the dicta of the Constitution Bench in T.M. Jacob's case, supra, it is difficult to accept the submission of the learned Counsel for applicant that since the petitioner has not complied with the mandatory provisions fully and totally, the election petition requires to be dismissed.
30. At the time of hearing of the application, the learned Counsel for the applicant contends that the petitioner without filing amendment application and without seeking the permission of the Court, has inserted Form 21-E, which is marked as document 2 and that insertion is made in the month of January 2000, and therefore, there is delay in filing the election petition and in view of that, the election petition requires to be dismissed. This assertion is denied by the learned Counsel for petitioner and further contends that there are no pleadings to that effect either in the written statement nor in the application filed for dismissal of the election petition under Section 86 of the Act and therefore, this issue need not be considered by the Court.
31. First and foremost, though the matter had been adjourned twice, the petitioner nor his learned Counsel did not avail the opportunity to make necessary application to raise the additional point. The Supreme Court in Ganesh Trading Company v. Moji Ram, was pleased to observe:
'2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take'.
32. Since there are no appropriate pleadings and since the petitioner though an opportunity was given has not filed any applications to bring it on record his specific case on this point, it may not be proper to permit him to urge this issue.
33. In the result, there is no merit in the application filed by the returned candidate under Section 86(1) of the Act. Therefore, it requires to be rejected.
34. In the result, application I.A. No. II is rejected. Ordered accordingly.