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TMI Blog1991 (1) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition at this stage, since the present petition has to be disposed of in view of the preliminary objection raised by the returned candidate. 2. The returned candidate filed an application dated 19-11-1990 for dismissal of the petition under O. VII, R. 11 and O. VI, R. 16 of the Civil P. C. read with Ss. 83 and 86 of the Representation of the People Act (hereinafter referred to as 'the Act'). The material portion of the said application reads as under: "That, the affidavit filed by the petitioner under Rule 94-A of the Conduct of Election Rules, 1961 is not in conformity with Form No. 25 and the mandate of Rule 94-A of the Conduct of Election Rules. The affidavit is vague and incomplete... *** *** *** That, this respondent is entitled to receive a true copy of the petition which includes the affidavit sworn by the petitioner under Rule 94-A of the Rules. The copy of the affidavit furnished to this respondent does not bear the name and designation of the Notary as also it does not contain the endorsement made under the signature of the Notary which finds place in the original affidavit. The copy of the affidavit served on this respondent does not contain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2 of 1990 dated 10-11-1990 (cited supra). However, relying on the Division Bench decision of the Madhya Pradesh High Court reported in AIR 1987 MP 208, Gangaram Bendil v. Rashmi Parihar, he has addressed the Court at some length and submitted that the view taken by this Court in Election Petition No. 2 of 1990 needs reconsideration. According to Mr. Deshpande, the affidavit accompanying the petition cannot be said to be an integral part of the petition. He has submitted that subsection (3) of S. 81 merely requires that the election petitioner to supply as many copies of the election petition as there are respondents and every such copy has to be attested by the petitioner under his own signature to be a true copy of the petition. Thus, the petitioner fully complied with the requirements of sub-section (3) of S. 81 of the Act, he contended. According to him, the petition has to be accompanied by an affidavit only in the event of allegations of corrupt practice as per S. 83. Therefore, any defect in the copy of the affidavit cannot be taken into consideration in order to find out whether the requirements of sub-section (3) of S. 81 are complied with or not. If it is so done, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t mere absence of the words "true copy" before or above the signature of the election petitioner would not detract the copy being a 'true copy'. Hence it was found that there was substantial compliance with the requirement of S. 81(3) of the Act. The order of the High Court was, therefore, quashed and the petition was directed to be disposed of according to law. 6. Mr. Deshpande also relied on the decision reported in [1964]3SCR573 , Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore. In this decision, it was contended by the respondents that there was a defect in the affidavit and, therefore, there was failure on the part of the election petitioner to comply with the provisions of S. 83 of the Act. The affidavit was sworn before the Oaths Commissioner, who instead of writing the words "verified before me" wrote the words "verified by me". The Election Tribunal observed that the mistake appeared to have been committed due to inexperience of the Oaths Commissioner. This view was affirmed by the High Court as well as the Supreme Court. The Supreme Court observed that a proper affidavit could be allowed to be filed at a later stage and the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for non-compliance with the provisions of S. 81(3) of the. Act. Negativing the challenge of the respondents, the Supreme Court observed that since the election petition itself reproduced the whole of the pamphlet, it could be said that the averments with regard to pamphlet were themselves a part of the petition and, therefore, the pamphlet was served upon the respondents. The Supreme Court further observed that the documents which were merely evidence in the case were in no sense an integral part of the averments of the petition but were only evidence of those averments and in proof thereof. The pamphlet, therefore, must be treated as a document and not as a part of the election petition insofar as the averments were concerned, the Supreme Court observed. In regard to sub-section (2) of S. 83, the Supreme Court observed that it would amount to stretching the words of the said provision too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. Mr. Deshpande also referred to the decision reported in [1972]3SCR955 , Virendrakumar Saklecha v. Jagjivan. It is not relevant to the point involved in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inct and separate. He has advanced this argument relying on the provisions of Ss. 81 and 83 of the Act. According to him, the affidavit is required to be filed under Sec. 83 of the Act when there are allegations of corrupt practices. Filing of an affidavit is not required under S. 81, he contended. According to him, the plain wording of sub-section (3) of S. 81 shows that every copy has to be attested by the petitioner to be a 'true copy' and, therefore, while interpreting sub-section (3) of S. 81, S. 83 cannot be imported. There is no substance in this contention. The Supreme Court in [1978]3SCR446 , M. Kamalam v. Dr. V. A. Syed Mohammed, has observed as under (at page 844 of AIR) : "It would, therefore, be seen that if a schedule or annexure is an integral part of the election petition, it must be signed by the petitioner and verified, since it forms part of the election petition. The subject-matter of sub-section (2) is thus a schedule or annexure forming part of the election petition and hence it is placed in S. 83 which deals with contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to S. 83, sub-section( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to find out whether the copy supplied to him was a correct one or not. In the present case, in the absence of the endorsement of the Notary on the copy supplied to the returned candidate, it was not possible for him to know whether the affidavit was really sworn and if so, before whom it was sworn and on what date. Thus it is not possible to hold that the copy supplied to the returned candidate really conforms the requirement of S. 81(3) of the Act. 12. In the identical circumstances, this Court in Election Petition No. 2 of 1990dated 10/11th October, 1990 has held that the absence of the endorsement of the Notary on the copy of the affidavit renders the copy as not conforming the requirements of S. 81(3) of the Act. The following observations of the said judgment apply to the present case with full force : "50. That, however, leaves one question to be considered and it is whether the copy of the endorsement "Affirmed and signed before me" by the Notary, designation of the Notary and the stamped endorsement regarding the affirmation which he made at the time of the making of the affidavit, were necessary and essential parts of the document and if these a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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