TMI Blog1963 (5) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... itions, one by Ridmal Singh and numbered as 269 of 1962 and the other by Balji and numbered as 295 of 1962, were based, because the election petitions have not yet been tried on merits. By two applications dated July 6, 1962, the appellant who was one of the respondents to the two election petitions raised certain preliminary objections to the maintainability of the two election petitions. The Election Tribunal dealt with these preliminary objections by its orders dated August 13, 1962. It dismissed the preliminary objections. Thereupon the appellant filed two writ petitions in the High Court of Rajasthan by which he prayed that the orders of the Election Tribunal dated August 13, 1962, and certain consequential orders passed on August 14, 1962, be quashed and that an order or direction be issued to the Election Tribunal to dismiss the two election petitions on the main ground that they do not comply with certain mandatory provisions of the Representation of the People Act, 1951, hereinafter referred to as the Act. These two writ petitions were dismissed by the High Court by its order dated August 31, 1962. The appellant then applied for special leave to this court and having obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that a copy of the treasury receipt showing the deposit of a sum of ₹ 2,000/- in favour of the Election Commission was not enclosed with the copy of the petition which was served on the appellant, nor was the copy of the order dated January 22, 1962, by which the returning officer rejected the nomination paper of the petitioner, signed or verified by the petitioner. 5. We may here refer to some of the provisions of the Act (as they stood at the relevant time) which have a bearing on the preliminary objections urged before us. Under s. 79(b) the expression candidate in parts VI, VII and VIII of the Act means, unless the context otherwise requires, a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate. S. 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. S. 81 states in effect that an election petition calling in question any election may be presented on one or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial suits. Sub-s. (3) of s. 90 states : The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, or section 82 notwithstanding that it has not been dismissed by the Election Commission under section 85. Explanation - An order of the Tribunal dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98 . 9. Sub-s. (4) of s. 90 states that any candidate not already a respondent shall, upon application made to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of s. 119, be entitled to be joined as a respondent. Sub-s. (6) states that every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of publication of the copy of the petition in the Official Gazette under sub-s. (1) of s. 86. 10. Let us now examine the preliminary objections which have been urged before us on behalf of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the meaning of s. 82 of the Act. The position will be different if a person who is required to be joined as a necessary party under s. 82 is not impleaded as a party to the petition. That however is not the case here and we are of the view that the learned counsel for the appellant has failed to make out the very foundation on which his argument on this part of the case is based. In the view we have taken it is unnecessary to consider further the legal effect of a contravention of the provisions of s. 82. It is perhaps necessary to add that learned counsel for the respondents relied on the decision of this court in Jagan Nath v. Jaswant Singh [1954] 1 SCR 892, where it was held that s. 82 of the Act as it then stood was not mandatory. S. 82 then provided as follows : A petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated . 12. Sub-s. (4) s. 90 then provided that the notwithstanding anything contained in s. 85, the tribunal may dismiss an election petition which does not comply with the provisions of Sections 81, 83 or 117. There has been a change of law since that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 40 of 1961 and sub-s. (3) of s. 90 as it now stands has already been quoted by us in an earlier part of this judgment. It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by clause (c) of sub-s. (1) of s. 83 is fatal to the maintainability of the petition. 14. On behalf of the appellant it has been further contended that the copy of the petition which was served on the appellant was not a true copy within the meaning of the mandatory provisions of sub-s. (3) of s. 81 of the Act. The argument is that a failure to comply with the provisions of sub-s. (3) of s. 81 attracts sub-s. (3) of s. 90 and it is obligatory on the Tribunal to dismiss an election petition which does not comply with the requirements of sub-s. (3) of s. 81. On the basis of the decision of this court in Sri Babu Ram v. Shrimati Prasanni [1959] S.C.R. 1408., it is contended that the principle in such cases is that whenever the statute requires a particular act to be done in a partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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-s. (3) of s. 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word copy occurring in sub-s. (3) of s. 81. On behalf of the appellant the argument is that sub-s. (3) of s. 81 being mandatory in nature all the requirements of the sub-section must be strictly complied with and the word copy must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the word copy means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of sub-s. (3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this court in Kamaraja Nadar v. Kunju Thevar [1959] 1 SCR 583. We are of the view that the word copy in sub-s. (3) of s. 81 does not mean an absolutely exact copy, but means that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Act 1882. In re Hewer, Ex parte Kahen (1882) 21 Ch. D. 871., it was held that a true copy of a bill of sale within the Bills of Sale Act, 1878, s. 10, sub-s. 2, must not necessarily be an exact copy, so long as any errors or omissions in the copy filed are merely clerical and of such a nature that no one would be thereby misled. The same view was expressed in several other decisions and it is unnecessary to refer to them all. 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-s. (3) of s. 81. In that view of the matter sub-s. (3) of s. 90 was not attracted and there was no question of dismissing the election petition under that sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner is such a fatal defect as to require the dismissal of the election petition. 21. Turning now to Election Petition No. 295 of 1962, the defect as to the time and place of verification is, as we have said earlier, not a fatal defect. It is a matter which comes within clause (c) of sub-s. (1) of s. 83 and the defect can be remedied in accordance with the principles of the Code of Civil Procedure relating to the verification of pleadings. As to the four enclosures which were not re-produced in the copy served on the appellant, the position was this. In the original petition there was an endorsement to the following effect : Enclosed : 1. Two copies of the grounds of election petition. 2. Original treasury receipt of ₹ 2,000/- as security deposit. 3. Certified copy of the order of the Returning Officer rejecting the nomination dated 22-1-1962. 4. Vakalatnama duly stamped . 22. In the copy served on the appellant the original treasury receipt of ₹ 2,000/- deposited by way of security was not re-produced. A certified copy of the order of the returning officer rejecting the nomination of the petitioner was appended to the copy but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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