1. The petitioner in Election Petition No.l of 1999 was a candidate for No.9-Tezpur Parliamentary Constituency in the elections heldin September-October, 1999. In the said election the respondent No. 1 was declared elected on 7.10.1999 from the said Parliamentary Constituency. The petitioner has alleged in the Election Petition that the respondent No. 1, his agents and his people have resorted to large-scale rigging and booth capturing in different polling stations and have therefore adopted corrupt practice in the aforesaid election. Prayers have been made in the Election Petition to declare the election of the respondent No. 1 to be void, and to declare the petitioner to have been duly elected. A prayer has also been made in the Election Petition for re-counting of votes. On 4.1.2000, notices were issued to the respondents. After receiving notice, the respondent No.l has filed Misc. Case No. 28 of 2K with a prayer to dismiss the Election Petition under section 86 of the Representation of People Act, 1951, (for short, 'RP Act, 1951'). The said Misc. case was heard on 20.6.2000.
2. At the hearing of the Misc. case, Mr. N. Dutta, learned senior counsel appearing for the respondent No. 1 submitted that section 86(1) of the RP Act, 1951, provided that the High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the said Act, 1951. Section 81(1) of the RP Act, 1951, provided that an election petition has to be filed within forty-five days from the date of election of the returned candidate. In the instant rase, the date of election of the respondent No.l was 7.10.1999 and forty-five days from the date of said election expired on 21.11.1999, but copy of the election petition served on the respondent No. 1 shows that the verification was signed by the petitioner on 28.11.1999. According to Mr. Dutta, therefore, the Election Petition does not comply with the provisions of section 81(1) of the RP Act, 1951 and is liable to be dismissed under section 86 of the said Act. 1951. It was next submitted by Mr. Dutta that section 82 of the RP Act, 1951, provided that the petitioner shall join as respondents to the election petition all the contesting candidates other than the petitioner where he claims a further declaration that he himself or any other candidate has been duly elected. One of the contesting candidates in the election petition to the No. 9-Tezpur Parliamentary Constituency held in September-October, 1999 was Sri Abul Khaycr, but said Sri Abul Khayer has not been made a respondent to the election petition and in his place one Sri Abdul Khyer has been impleaded as respondent No. 11. in this context, he argued that on account of such wrong description of the contesting candidate, Abul Khayer, noticed on respondent No. 11 has not been served as yet though sent by Registered pos! with A/D/.According to Mr Dutta, therefore, there is non-compliance with the provisions of section 82 of the RP Act, 1951 and the election petition is liable to be dismissed under section 86 of the said Act, 1951. Finally. Mr Dutta, learned counsel appearing for the respondent No.l, submitted that on a reading of the election petition, it would be clear that the petitioner has alleged corrupt practice on the part of respondent No. 1 and on this ground has prayed for a declaration that the election of respondent No.l is void, and in support of the said allegation of corrupt practice has filed an affidavit sworn before the Commissioner of Oath. But the endorsements made by the Commissioner of Oath have not been copied out in the copy of the affidavit served along with the copy of the election petition on the respondent No. 1. Mr Dutta argued that under section 81(3) of the RP Act, 1951, every election petition to be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy has to be attested by the petitioner under his own signature to be a true copy of the petition. In the present case, the copy of the election petition along with the affidavit which has been filed for the purpose of respondent No.l under section 81(3) insofar as it does not contain the endorsements of the Commissioner of Oath, is not a true copy of the election petition. Hence, section 81(3) of the RP Act, 1951. has not been complied with and the election petition is liable to be dismissed under section 86 of the said Act, 1951. In support of this contention. Mr. Dutta relied on the decisions of the Supreme Court in Dr. Shipra (Smt.) v. Shanti Lal Khoiwal, (1996} 5 SCC 181, Harcharan Singh Joshi v. Hari Kishan. (1997] 10 SCC 294, TM Jacob v. C. Poulose, (1998) 2 SCC 31and TM Jacob v. C. Poulose. (1999) 4 SCC 272.
3. In reply, Mr. BK Das, learned senior counsel appearing for the election petitioner, submitted that the Misc. case petition should not be entertained by this court as the same has riot been signed by the respondent No.l. He contended that the respondent No.l has not put his name in the Misc. Case petition and has only made a'mark which does not indicate his name. Such a mark made in the Misc. Case petition, according to Mr. Das, 'cannot be held to be the signature of the respondent No. 1. Mr. Das cited a decision of the Supreme Court in Hindustan Construction Co. v. Union of India, AIR 1967 SC 526, for his submission that to write one's name is signature. Mr. Das further submitted that assuming that the Misc. Case petition can be entertained by the court, this is not a case in which the election petition is liable to be dismissed under section 86 of the RP Act. 1951. He pointed out that the electionpetition has been filed on 20.11.1999 within forty-five days of the date of election of the respondent No. 1 on 7.10.1999 and, therefore, there is compliance with the provisions of section 81(1) of the RP Act. 1951. The fact that in the copy of the election petition served on respondent No.l, the verification appears to have been signed on 28.11.1999 instead of 20.11.1999 cannot be a ground for dismissal of the election petition. Mr. Das cited a decision of the Supreme Court in RP Moidutty v. FT Kunju Mohammad, (2000} 1 SCC 481, for his submission that a defect in the verification is curable and not fatal to the election petition. Regarding the contention of Mr. Dutta, learned counsel for the respondent No. 1, that Abul khayer, a contesting candidate, has not been impleaded as a respondent to the election petition, he submitted that in fact Mr. Abul khayer has been impleaded as respondent No. 11, but his name has been incorrectly spelt in the election petition. Thus, there is compliance with the provisions of section 82 of the RP Act, 1951, inasmuch as all the contesting candidates including Abul Khayer have been impleaded as respondents in the election petition. In reply to the contention of Mr. Dutta that the endorsements made by the Commissioner of Oath in the original election petition have not been copied out in the copy of the election petition served on respondent No. 1. Mr. Das submitted that an affidavit in which the said endorsements have been made by the Commissioner of Oath is only required in support of the allegations of corrupt practice made in an election petition, but the main thrust in the present election petition is with regard to re-counting of votes and not with regard to corrupt practice. According to Mr. Das. therefore, the election petition cannot be dismissed under section 86 of the RP Act, 1951, at the threshold for non-compliance with the provisions of section 81(3) of the said Act, 1951, and the election petition should be tried after the respondents file their written statements.
4. In view of the aforesaid contentions raised b the learned counsel for the parties, the first question that needs to be decided is whether the Misc. Case petition for dismissing the election petition should he rejected on the ground that the Misc. Case petition has not been signed by the respondent No.l. This question is relevant because under Order 6, rule 14 of the Code of Civil Procedure, 1908, every pleading is to he signed by the party and his pleader (if any). The proviso to Order 6, rule 14, however, states that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. In Hindustan Construction Co. v. Union of India, (supra),cited by Mr. Das, learned counsel for the election petitioner, the Supreme Court had the occasion to consider the meaning of the word 'sign', and in paragraph-6 of the said judgment as reported in AIR 1967 SC 526, held:
This brings us to the meaning of the word 'sign' as used in the expression 'signed copy'. In Webster's New World Dictionary the word 'sign' means 'to write one's name on, as in acknowledging authorship, authorising action, etc.'. To write one's name is signature. Section 3(56) of the General Clauses Act No. 10 of 1897, has not defined the word 'sign' but has extended its meaning with reference to a person who is unable to write his name to include 'mark' with its grammatical variations and cognate expressions. This provision indicates that signing means writing one's name on some document or paper. In Mohesh Lal v. Busunt Kumaree, (1881) ILR 6 Cal. 340, a question arose as to what 'signature' meant in connection with S. 20 of the Limitation Act. No. IX of 1871. It was observed that 'where a party to a contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature'. It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs.'
In the aforesaid judgment, therefore, the Supreme Court has held that all the signature must show is that the person signing is the author of it. On the first page of the Misc. Case petition, it appears that just below the purported signature of the respondent No. 1, the name of the respondent No. 1 has been stated. The verification appended to Misc. Case petition also indicates that the respondent No.l has himself signed the verification. The aforesaid purported signatures on the first page of the Misc. Case petition and at the foot of the verification appended to the Misc. case petition tally with the signature of the respondent No. 1 in the Vakalatnama filed in Election Petition No. 1 of 1999. The respondent No. 1 is, therefore, the author of the purported signature on the Misc. Case petition and it is difficult to accept the contention of Mr. Das, learned counsel for the election petitioner, that the respondent No. 1 has not signed the Misc. Case petition. The Misc. Case petition for dismissal of the election petition under section 86(1) of the RP Act, 1951, on the ground that it does not comply with the provisions of sections 81 and 82 of the said act, 1951, cannot be rejected on the ground that it has not been signed by the respondent No.l.
5. The next question to be decided is whether the Election Petitionis liable to be dismissed under section 86(1) of the RP Act, 1951, on the ground that it does not comply with section 81(1) of the said Act, 1951. The said section 81(1) providcs-that an election petition has to be presented within forty-five days from the date of election of the returned candidate. In the instant case, the returned candidate was elected on 7.10.1999 and the election petition has been presented in this court on 20.11.1999 as would appear from the date of filling stamped on the first page of the election petition. The affidavit and the verification appended to the election petition have also been signed by the election petitioner on 20.11.1999. Hence the election petition has been presented within forty-five days form the date of election of the returned candidate and the provisions of section 81(1) of the RP Act, 1951 have been complied with. It however appears from the copy of the election petition meant for respondent No. 1 that in the verification the date 28.11.1999 has been indicated as the date on which the verification has been signed. The said date has been corrected as 20.11.1999 in the verification appended to the original election petition presented in court but has not been corrected in the copy of the election petition meant for the respondent No. 1. Such inadvertent mistake in the verification appended to the copy of the election petition served on the respondent No. 1 does not amount to non-compliance with the provisions of section 81(1) of the RP Act, 1951. The contention of Mr. Dutta, learned counsel for the respondent No. 1 that the election petition is liable to be dismissed under section 86 of the RP Act, 1951 for non-compliance with the provisions of section 81(1) thus has no merit.
6. Coming now to the question as to whether the election petition is liable to be dismissed under section 86 of the RP Act, 1951, for non-compliance with the provisions of section 82 of the said Act, 1951, the said section 82 requires that where the petitioner, in addition to claiming declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner are to be joined as respondents to the election petition. In the present election petition, in addition to a declaration that the election of the respondent No. 1 is void, a further declaration has been sought that the petitioner has been duly elected. Thus, under section 82 of the RP Act, 1951, all the contesiing candidates other than the petitioner in respect of No. 9 Tezpur Parliamentary Constituency from which the respondent No. 1 has been declared elected had to be joined as respondents to the election petition. According to Mr. Dutta, learned counselappearing for the respondent No. 1, Sri Abul Khayer who was also a contesting candidate from the said Parliamentary Constituency, has not been joined as a respondent to the election petition, and in his place one Sri Abdul Khyer has been joined as respondent No. 11. Along with the election petition, a copy of the Return of Election in Form 21-E under rule 64 of the Conduct of Elections Rules, 1961, has been filed as Annexure-I, and on a comparison of the name of different candidates mentioned in the said Return of Election with the names of the respondents to the election petition, it appears that respondent Nos. 7 to 18 have been joined as respondents to the election petition as they had contested as candidates along with the petitioner and the respondent No.l in the election for No. 9-Tezpur Parliamentary Constituency held in September-October, 1999. Thus, it is clear that the election petitioner had intended to implead Sri Abul Khayer as respondent 'No. 11 to the election petition, but the name of Sri Abul Khayer has been wrongly spelt as Sri Abdul Khyer. In Norosingh Tripathy v. Gurubaru Majhi & Ors. ILR (1981) 1 Cuttack 39(43), the Orissa High Court has held that where the intention of the election petitioner certainly was to implead the respondent as a party to the election petition, the election petition cannot be dismissed under section 86(1) of the RP Act, 1951, merely on the ground of mistake, if any, in spelling the name of the respondent. I am, therefore, of the considered opinion that Sri Abul Khayer who had contested the aforesaid election has been sought to be impleaded as respondent No. 11 to the election petition and, therefore, the election petition cannot be dismissed under section 86(1) of the RP Act, 1951, on the ground of non-compliance with the provisions of section 82 which requires that all the contesting candidates other than the petitioner have to be joined as respondents to the election petition where a declaration is sought that the petitioner or any other contesting candidate has been duly elected.
7. The last question which has to be decided is whether the election petition is liable to be dismissed at the threshold under section 86 of the RP Act, 1951, for non-compliance with the provisions of section 81(3) of the said Act, 1951. As indicated above, Section 81(3) provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The case of the respondent No. 1 is that copy of the affidavit accompanying the election petition, in which the election of the respondent No. 1 has been challenged on the ground that the respondent No.l, hisagents or his people have adopted corrupt practice at the election, does not contain the affirmation or endorsements made by the Commissioner of Oath while the original election petition contains the said endorsements of the Commissioner of Oath.
8. In Dr. Shipra (Smt.) v. Shanti Lal Khoiwal. (supra) cited by Mr. Dutta, learned counsel for the respondent No. 1, the aforesaid question came up for consideration and K. Ramaswamy, J. held:
'....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.....'
'....Sections 81, 83(l)(c) and 86 read with Rule 94-A of the Rules and from 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 objection, the election petition would result in dismissal at the threshold, as the court is left with no option except to dismiss the same.'
Bharucha, J. and Paripoornan, J. agreed with the aforesaid judgment of K. Ramaswamy. J., but supplemented the judgment of K. Ramaswamy, J. with their own respective judgments. In the aforesaid judgment, therefore, the Supreme Court has held that the true copy of the affidavit supplied for the respondent under section 81 of the RP Act, 1951 should also contain the affirmation by the election petitioner before the Notary or the prescribed authority and where the copy of the affidavit of the election petition does not contain such affirmation, the election petition has to be dismissed at the threshold, and the court has no option but to dismiss the same.
9. The aforesaid decision in the case of Dr. Shipra. (Smt) v. ShantiLal Khoiwal (supra) has been followed by the Supreme Court in Harcharan Singh Joshi v. Hari Kishan, (supra), and it has been held therein:
'It is not necessary for us to go into the grounds on which the election petition was dismissed by the High Court. Suffice It to state that the objections raised by the respondent regarding non-supply of the true copy of the affidavit is a formidable objection which merits acceptance in view of the recent judgment of this Court in Dr. Shipra (Smt.) v. Shanti Lal Khoiwal (supra). Therein the copy of the affidavit supplied to the respondent was not attested by the Oath Commissioner. This Court, after considering the entire case-law, held that affirmation before the prescribed authority in the affidavit and the supply of its true copy is mandatory so that the returned candidate would not be misled in his understanding that imputation of the corrupt practices were solemnly affirmed and duly verified before the prescribed authority. For that purpose. Form 25 prescribed by Section 83 requires verification before the prescribed authority. The concept of substantial compliance has no application in such a case. It is seen that the copy of the affidavit supplied to the respondent does not contain the affirmation by the Oath Commissioner. Under these circumstances, the defect is not a curable defect. Therefore, the dismissal of the election petition on this ground is sustainable in law.'
In the aforesaid decision in the case of Harcharan Singh Joshi v. Hari Kishan (supra), therefore, the Supreme Court held that where the copy of the affidavit supplied to the respondent did not contain the affiramtion by the Oath Commissioner, the election petition was liable to be dismissed.
10. In TM Jacob v. C. PouJose, (supra), a Bench of three Judges of the Supreme Court held that the decision of the Supreme Court in Dr. Shipra (Smt) (supra) required consideration by a larger Bench to decide whether the said decision would apply even to a case where the name and designation of the Notary and the Seal and Stamp of the Notary did not-appear in the copy of the affidavit supplied to the respondent. Thereafter, a larger Bench considered the same and held in its judgment reported in (1999) 4 SCC 293 that the judgment in the case of Dr. Shipra (Smt.) v. Shanti Lal Khoiwal (supra) was confined to the facts of that case and had no application to the fact of the case in TM Jacob v. C. Poulose [supra]. The larger Bench in the case of TM Jacob v. C. Poulose (supra), has not in any way over-ruled the decision in the case of Dr. Shipra (Smt.) v. Shanti Lal Khoiwal (supra).
11. Thus, applying the aforesaid decisions of the Supreme Court in Dr. Shipra (Smt.) v. Shanti Lal Khoiwal (supra) and Harcharan Singh Joshi v. Hari Kishan, (supra), the election petition in the present case is liable to be dismissed at the threshold on the ground that the copy of the affidavit supplied to the respondent No. 1 does not contain the affirmation by the petitioner before the Commissioner of Oath or the endorsements by the Commissioner of Oath. Mr. Das, learned counsel for the election petitioner, however, submitted that an affidavit is only required where the main thrust in the election petition is on corrupt practices having been adopted by the returned candidate or his agents or his people as would be clear from the proviso to section 83(1) of the RP Act, 1951, but in the present case the main thrust is not on such corrupt practices alleged to have been adopted by the respondent No. 1., his agents or his people but on re-counting of votes, I am unable to agree with the submission advanced by Mr Das. On a perusal of the entire election petition, it appears that the main thrust of the election petition is that the respondent No. 1, his agents and his people have resorted to booth capturing and rigging in different polling stations and therefore have adopted corrupt practices at the election. Moreover, it appears from the copy of the Return of Election in Form 21-E under rule 64 of the Conduct of Elections Rules, 1961 (Annexure-I to the election petition) that while the election petitioner has polled 2,05,178 votes, the respondent No. 1 has polled 2,30,884 votes, the difference in the votes polled by the election petitioner and the respondent No. 1 is therefore 25,706. With such difference in the number of votes polled by the petitioner and the respondent No. 1. no re-counting can he ordered unless corrupt practice by the respondent No.l, his agents or his people as alleged in the election petition is established before the court. The relief of re-counting is therefore fully dependent on the allegation of corrupt practice by the respondent No. 1, his agents or his people in the election petition and the relief of re-counting cannot be considered independent of the said allegations of corrupt practice in the election petition. The contention of Mr. Das that the main thrust of the election petition is on re-counting and not on corrupt practice by the respondent No.l, his agents or his people is mis-conceived.
12. For the reasons stated above. Civil Misc. Case No. 28 of 2000 is allowed, and the Election Petition No. 1 of 1999 is dismissed under section 86(1) of the RP Act. 1951, for non-compliance with the provisions of sub-section (3) of section 81 of the said Act, 1951. Considering the fact that the election petition has been dismissed at the threshold, I leave the parties to bear their respective costs.