Civil Appeal Nos 30 and 31 of 1963
Appeals by special leave from the judgment and order dated August 31 1962 of the Rajasthan High Court in D B Civil Writ Petitions Nos 376 and 377 of 1962  M C Setalvad G section Pathak N P Nathwani H J Thacker and G C Mathur for the appellant in CA No 30 of 1963
GS Pathak N P Nathwani H J Thackar and G C Mathur for the appellant in CA No 31 of 1963
section C Agarwala R K Garg D P Singh and M K Ramamurthi for respondent No 2 in C A No 30 of 1963
RK Garg for respondent No 2 in C A No 31 of 1963
VK Krishna Menon and Janardan Sharma for the Intervener
575 1963
May 7
The judgment of the Court was delivered by section K DAS J
These two appeals have been heard together as they raise some common questions of law and fact and this judgment will govern them both
The appellant before us Murarka Radhey Shyam Ram Kumar was elected to the House of the People at the third general elections held in the month of February 1962
He was elected from a constituency known as the jhunjhunu Parliamentary Constituency in Rajasthan
Two election petitions were filed for setting aside the election of the appellant
One of these was filed by one Ridmal Singh who stated that he was an elector in the said constituency
Another application was filed by one Balji who was also an elector in the said Parliamentary Constituency and whose nomination paper was rejected by the returning officer
We are not concerned in the present appeals with the grounds on which the two election petitions 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 576 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 obtained such leave has preferred the present appeals
We may now state briefly the grounds on which the appellant contends that the two election petitions were not maintainable and should have been dismissed by the Election Tribunal With regard to Election Petition No 269 of 1962 the grounds urged before us on behalf of  the appellant are three in number Firstly it is contended that there was noncompliance with the mandatory provisions of section 82 of the Act
We shall presently read that section
The contention of the appellant is that Ballu or Balji whose nomination paper was rejected and who was not a contesting candidate was improperly impleaded as respondent No 7 to the election petition though section 82 requires that in cases where in addition to the relief o declaring the election of the returned candidate to be void a further declaration is claimed that the petitioner himself or some other candidate has been duly elected all the contesting candidates must be made parties to the election petition
Ballu or Balji was not a contesting candidate and was therefore impleaded to the election petition in contravention of the provisions of section 82
Secondly it is urged that there was non compliance with the provisions of section 81 3 of the Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission nor war it properly attested to be a true copy under the signature of the petitioner who filed the election petition
Thirdly it is urged that there was non compliance with the provisions of section 83 of the Act inasmuch as the affidavit in respect of corrupt 577 practices which accompanied the election petition was neither properly made nor in the prescribed form
With regard to Petition No 295 of 1962 the grounds alleged are these Firstly it is stated that at the time of its presentation to the Election Commission the petition was not accompanied by true copies of the petition as required by section 81 3 of the Act because there was a reference to four enclosures at the foot of the schedule of the original petition but in the copy served on the appellant the enclosures were not reproduced
Secondly it is urged that the election petition was not duly verified inasmuch as the date and place of verification were not stated at the foot of the verification clause Thirdly it is urged that a copy of the treasury receipt showing the deposit of a sum of Rs 2000 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
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 section 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
section 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
section 81 states in effect that an election petition calling in question any election may be presented on one or 578 more of the grounds specified in sub section
1 of section 100 and section 101 to the Election Commission by any candidate at such election or any elector within forty five says from the date of election of the returned candidate Sub section
3 of section 81 which sub section is important for our purpose reads as follows  Every election petition shall be accompanied by as many copies thereof as there are respon dents mentioned in the petition and one more copy for the use of the Election Commission and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition 82 states who shall be parties to the petition
It leads  A petitioner shall join as respondents to his petition awhere the petitioner in addition to clai ming a declaration that the election of all or any of the returned candidates 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 and where no such further declaration is claimed all the returned candidates and bany other candidate against whom alle gations of any corrupt practice are made in the petition S83 lays down what shall be the contents of the petition
We are concerned in the present case with the provisos to sub section
1 of section 83
That proviso says Provided that where the petitioner alleges any corrupt practice the petition shall also be 579 accompanied by an affidavit in the prescribed form in support of the allegation of such cor rupt practice and the particulars thereof  S85 states that if the provisions of section 81 or section 82 or s117 have not been complied with the Election Commission shall dismiss the petition
section 86 lays down that if the petition is not dismissed under section 85 the Election Commission shall cause a copy of the petition to be published in the Official Gazette and a copy to be served by post on each respondent and shall then refer the petition to an Election Tribunal for trial
We may skip over sections 87 88 and 89 which deal with matters with which we are not directly concerned
We then come to section 90 which lays down the procedure to be followed before the Election Tribunal
Sub section
1 of section 90 says that subject to the provisions of the Act and of any rules made thereunder every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 to the trial of suits
Sub section
3 of section 90states   The Tribunal shall dismiss an election peti tion 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 subsection shall be deemed to be an order made under clause a of section 98
 Sub s 4 of section 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 section 119 be entitled to be joined as a 580 respondent
Sub section
6 states that every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within 6 months from the date of publication of the copy of the petition in the Official Gazette under subs
1 of section 86
Let us now examine the preliminary objections which have been urged before us on behalf of the appellant in the light of the provisions to which we have just now referred
We take first the objection based on the joinder of Ballu or Balji to Election petition No 2691962
The argument on this part of the case is the following Learned counsel for the appellant has contended that the provisions of section 82 of the Act are mandatory provisions and any failure to comply with those provisions is fatal in the sense that it is obligatory on the Tribunal to dismiss an election petition which does not comply with the Provisions of section 82
He has relied for this purpose on sub section
3 of section 90
He has further contended that in view of the aforesaid provisions of the Act namely the provisions in section 82 and sub section
3 of section 90 it is not open to an Election Tribunal to apply the Principles of the Code of Civil Procedure and treat a non joinder or mis joinder as not fatal to the maintainability of the petition
The foundation of the argument is that there has been a non compliance with the provisions of section 82
If that foundation is absent then the whole argument disappears
Now it is admitted that Ballu or Balji was not a contesting candidate within the meaning of section 82 because his nomination paper had been rejected
The admitted position further is that all the contesting candidates were joined to the petition as required by section 82
Therefore what happened was this All the parties whom it was necessary to join under the provisions of section 82 were joined as respondents to the petition  but Ballu 581 or Balji was joined in excess of the requirements of section 82
The question before us is does this amount to non compliance with or contravention of the provisions of section 82 Learned counsel for the appellant wishes us to read section 82 as though it said that the persons named therein and no others shall be joined as respondents to the petition
He wants us to add the words and no others in the section
We find no warrant for such a reading of section 82
We agree with the High Court that if all the necessary parties have been joined to the election petition the circumstance that a person who is not a necessary party has also been impleaded does not amount to a breach of the provisions of section 82 and no question of dismissing the petition under sub so 3 of section 90 arises
It is open to the Election Tribunal to strike out the name of the party who is not a necessary party within the meaning of section 82 of the Act
The position will be different if a person who is required to be joined as a necessary party under section 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 section 82
It is perhaps necessary to add that learned counsel for the respondents relied on the decision of this court in Jagan Nath vs Jaswant Singh 1 where it was held that section 82 of the Act as it then stood was not mandatory
section 82 then provided as follows A petitioner shall join as respondents to his petition all the candidates who were duly No minated at the election other than himself if he was so nominated
 Sub section
4 of section 90 then provided that notwithstanding anything contained in section 85 the tribunal may 1  582 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 decision
section 82 has been re cast and sub section
3 of section 90 now states that 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
Therefore we do not think that the decision in Jagan Nath vs Jaswant Singh 1 is determinative of the problem before us
We need not however pursue this question any further because we have held that in the present cases there was no contravention of the provisions of section 82
We now go to the second point
But before we do so it may perhaps be stated that certain defects in the verification of Election Petition No 269 of 1962 have been brought to our notice as they were brought to the notice of the Election Tribunal
One of these defects was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on the basis of advice and information received by the petitioner from legal and other sources the petitioner did not state in so many words that the advice and information received was believed by him to be true
The Election Tribunal took the view that this defect in verification was a matter which came within cl
c of sub section
1 of section 83 and the defect could be removed in accordance With the principles of the Code of Civil Procedure 1908
The Election Tribunal further held that such a defect did not attract sub section
3 of section 90 inasmuch as that sub section does not refer to non compliance with the provisions of section 83 as a ground for dismissing an election petition
We agree with the view expressed by the Election Tribunal
We have pointed out that sub section
4 of 1  583 section 90 originally referred to three sections namely is 81 83 and 117
It said that nothwithstanding anything contained in section 85 the Tribunal might dismiss an election petition which did not comply with the provisions of section 81 section 83 or section 117
section 90 was amended by Act 27 of 1956
Sub section
3 then said that the Tribunal shall dismiss an election petition which does not comply with the provisions of section 81 section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85
There was a further amendment by Act 40 of 1961 and sub section
3 of section 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 cl
c of sub section
1 of section 83 is fatal to the maintainability of the petition
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 subs
3 of section 81 of the Act
The argument is that a failure to comply with the provisions of sub section
3 of section 81 attracts sub section
3 of section 90 and it is obligatory on the Tribunal to dismiss an election petition which does not comply with the requirements of sub section
3 of section 81
On the basis of the decision of this court in Sri Babu Ran vs Shrimati Prasanni 1 it is contended that the principle in such cases is that whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence 1 584 It is argued that no question of substantial compliance arises in such cases and the mandatory requirement must be strictly complied with
Let us first see what are the defects found in the copy of the petition served on the appellant
It is admitted that the first part of sub section
3 of section 81 has been complied with and the election petition was accompanied by as many copies thereof as there were respondents mentioned in the petition
It is also admitted that one more copy for the use of the Election Commission was also given with the petition
The  last part of the sub section says that  every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
 The grievance of the appellant is that this part of the sub section was not complied with inasmuch as 1 the copy which was served on the appellant did not contain the signature of the petitioner at the foot of the petition though the original contained such signature and 2 the verification in the copy served on the appellant omitted to mention paragraph 14 g ii in that part of the verification which related to averments stated to be true to the personal know ledge of the petitioner
As to the first of these defects the Election Tribunal pointed out that every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner and furthermore it was not necessary to append a fresh signature to the copy of the petition
With regard to the second defect the Election Tribunal apparently took the view though it did not say so in so many words that the omission of a reference to
paragraph 14 g ii in the verification in the copy served on the appellant was a case of mere oversight which did not mislead anybody because in the body of the petition full details of the averments were made
The High Court took the view that the defect was not of such a nature as to amount to noncompliance with the provisions of sub section
3 of section 81
585 We agree with the High Court and the Election Tribunal that the first defect is not a defect at all
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 scope 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 this reliance is placed on the decision of this court in Kamaraja Nadar vs Kunju Thevar 1
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
Several English decisions were cited at the Bar The earliest decision cited to us is the decision in Pocock vs Mason 2 where it was held that the omission of the words the and by in the copy of the writ of capias prescribed by the schedule 2 W 4 c 39 did not invalidate an arrest
The reason given was thus expressed  To ascertain whether or not an unfaithful copy produces any alteration in the meaning 1  2  586 supposes an exertion of intellect which it may be inconvenient to require at the hands of those who serve the copy
It was to obviate this inconvenience that the legislature hasgiven a form and required that it should be pursued
Nothing but ordinary care is neccs sary for taking the copy
 In a later decision Sutton vs Mary and Burgess the copy of the writ served on the defendant omitted the letter s in the word she It was held that the omission was immaterial as it could not mislead anybody
In Morris vs Smith 2 there was a motion to set aside the service of the writ of summons for irregularity on the ground that the defendant being an attorney he was only described as of Paper Buildings in the Inner Temple London and the addition of gentleman was not given
It was held that the form in the statute 2 Will 4 c 39 section I did not require the addition of the defendant to be inserted in the writ and it was sufficient to state his residence
The writ of summons was therefore valid
In another case in the same volume Cooke vs Vaughan 2 it was held that where a writ of capias described the defendant by the addition of gentleman but that addition was omitted in the copy served the copy was not a copy of the writ in compliance with the stat
2 Will 4 c 39 section 4 On behalf of the respondents a number of decision under the Bills of Sale Act 1878 and the Amend ment Act 1882 45 and  46 Vict c 43 were cited The question in those cases was whether the bill was in accordance with the form in the schedule to this Act annexed as required by section 9 of the Bills of Sale Act 1878 and Amendment Act 1882
In re Hewer Ex parte Kahen 4 it was held that a true copy of a bill of sale within the Bills of Sale Act 1878 section 10 sub section 2 must not necessarily be an exact copy so long as any errors or omissions in the copy file are merely clerical and of such a nature that no on 1  2  3  4 587 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 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
This disposes of the second preliminary objection raised before us
We now turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the corrupt practices alleged against the appellant
The argument on this part of the case is that the affidavit was neither in the prescribed form nor was it properly sworn as required by the rules in the Conduct of Election Rules 1961  therefore there was a failure to comply with the proviso to sub section
1 of section 83 of the Act
The argument further is that an election petition under section 81 must comply with the provisions of section 83 and unless it complies with those provisions it is not an election petition under section 81
We think that this contention hag been sufficiently disposed of by what has been stated by the Election Tribunal
The Election Tribunal has rightly pointed out that the affidavit was in the prescribed form but due to inexperience the oaths 588 Commissioner had made a mistake in the verification portion of the affidavit
The Tribunal said  It appears that due to inexperience of the Oaths Commissioner instead of verified before me words verified by me have been written
The signature of the deponent have been obtained in between the writing with respect to admission on oath of the contents of affidavit by the petitioner and the verification by the Oaths Commissioner
According to the prescribed form the verification should be  solemnly affirmed or sworn by such and such on such and such date before me
The verification of the affidavit of the petitioner is apparently not in the prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form
The mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioner s petition summarily as the provisions of section 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also
 This view of the Election Tribunal was affirmed by the High Court
We agree with the view expressed by the Election Tribunal and we do not think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition
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 cl
c of subs
1 of section 83 and the defect can be remedied in accordance with the principles of the Code of 589 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
Original treasury receipt of Rs 2000 as security deposit
Certified copy of the order of the Returning Officer rejecting the nomination dated 22 1 1962
Vakalatnama duly stamped  In the copy served on the appellant the original treasury receipt of Rs 2000 deposited byway_ 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 this certified copy was not further signed by the petitioner
As to the security deposit it was mentioned in the body of the petition paragraph 9 that such a deposit had been made
The certified copy of the rejection of the nomination paper was verified to be a true copy and we fail to see how any further signature of the petitioner was necessary thereon
It is obvious to us that a copy of the vakalatnama was not required under sub section
3 of section 81 nor was it necessary to make a further endorsement that two copies of the petition had been filed along with the petition
It is not disputed that copies as required by sub s3 of section 81 were filed
The only  grievance made is that the endorsement two copies was not repated in the enclosure portion of the copy served on the appellant
We 590 have already explained what is meant by the word  copy in sub section
3 of section 81 and we are of the view that the defects pointed out on behalf of the appellant are not of such a character as to invalidate the copy which was served on the appellant in the present case
In conclusion we have to point out that we allowed one Dr Z A Ahmed to intervene in these appeals on the grounds mentioned in his petition dated April 4 1963
The intervener supported the arguments advanced on behalf of the appellant
We have fully dealt with those arguments in this judgment and nothing further need be said about the intervener s petition
For the reasons given above we see no merit in these two appeals
The appeals are accordingly dismissed with costs
Appeals dismissed


Summary:
The validity of the election of the appellant to the House of the People at the third general elections held in the month of February 1962 was challenged by two of the electors of the constituency from which the appellant was elected by filing election petitions for setting aside the election
The nomination paper of B one of the two electors aforesaid had been rejected by the returning officer
The appellant who was one of the respondents to the two election petitions raised preliminary objections to the maintainability of the petitions and pleaded that they should be dismissed on the grounds inter alia 1 that B whose nomination paper was rejected and who was not a contesting candidate was improperly impleaded as a respondent to the election petition in contravention of the provisions of section 82 of the Representation of the People Act 1951 2 that there was non compliance with the provisions of section 81 3 of the Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission and 3 that there was non compliance with the provisions of section 83 of the Act inasmuch as a the election petition was not verified in the manner laid down in section 83 and b the affidavit in respect of corrupt practices which accompanied the petition was neither properly made nor in the prescribed from
Held 1 that where all the parties whom it was neces sary to join under the provisions of section 82 of the Representation of the People Act 1951 were joined as respondents to the 574 petition the circumstance that a person who was not a necesary party had also been impleaded did not amount to a contravention of section 82 of the Act 2 the word copy in section 81 3 of the Act did not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person In re Hewer Ex parte Kahan I 882 1 relied on
3that a defect in the verification of an election petition as required by section 83 1 c of the Act did not attract section 90 3 and so was not fatal to the mintainability of the petition and 4that a defect in the affidavit was not a sufficient around for dismissal of the petition