Case: M. Karunanidhi Vs. Dr. H. V. Hande &amp; Others

allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18 (b), it is unnecessary for us to deal with the submission based on Order 7, Rule 14 of the Code of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai case at SCR page 18 of the report. The Court observed that under Order 7, Rule 14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them, and that it would be too strict a reading of the provisions of sub-section (3) of Section 81 and sub-section (2) of Section 83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai case was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of sub-section (3) of Section 81 and sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. 40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-Ud-Din v. Abdul Gani Lone but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads : Every election petition would 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 true copy of the petition. In that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate. The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case 17. The Court held the second part also to be mandatory and observed : [SCC p. 410, para 18] It is true that Section 89 (3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly. 41. It is obvious that the photograph was a part of the averment contained in paragraph 18 (b). In the absence of the photograph the averment contained in paragraph 18 (b) would be incomplete. The photograph referred to in paragraph 18 (b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao case 15, the Court held that if there is a total complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan. 42. The conclusion is irresistible that the words copies thereofin sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexure thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph; h 18 (b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]33. The High Court rests its conclusion on the decision of this Court in Sahodrabai case 1, but that decision, in our opinion, is inapplicable to the facts and circumstances of the present case. In Sahodrabai case 1, an election petition was filed together with a pamphlet as annexure thereto. A translation in English of the pamphlet was incorporated in the body of the election petition and it was stated that it formed part of the petition. A preliminary objection was raised that a copy of the pamphlet had not been annexed to the copy of the petition served on the returned candidate and therefore the election petition was liable to be dismissed under sub-section (1) of Section 86 of the Act. The Madhya Pradesh High Court sustained the preliminary objection and dismissed the election petition. On appeal, this Court held that the words used in sub-section (1) of Section 81 are only the election petition and there was no mention of documents accompanying the election petition. Since the election petition itself reproduced the whole of the pamphlet in translation in English, it could not be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet had in fact been served on the returned candidate although in a translation and not in the original. The Court then stated that even if it were not so, sub-section (2) of Section 83 of the Act has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition, but in the accompanying schedules or annexures39. The test to be applied in determining whether the photograph referred to in paragraph 18 (b) is an integral part of the election petition or was merely a piece of evidence in proof of the allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18 (b), it is unnecessary for us to deal with the submission based on Order 7, Rule 14 of theCode of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai case at SCR page 18 of the report. The Court observed that under Order 7, Rule 14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them, and that it would be too strict a reading of the provisions of sub-section (3) of Section 81 and sub-section (2) of Section 83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai case was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of sub-section (3) of Section 81 and sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-Ud-Din v. Abdul Gani Lone but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads :Every election petition would 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 true copy of the petitionIn that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate. The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case 17. The Court held the second part also to be mandatory and observed : [SCC p. 410, para 18]It is true that Section 89 (3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly41. It is obvious that the photograph was a part of the averment contained in paragraph 18 (b). In the absence of the photograph the averment contained in paragraph 18 (b) would be incomplete. The photograph referred to in paragraph 18 (b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao case 15, the Court held that if there is a total complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan42. The conclusion is irresistible that the words copies thereofin sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexure thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph; h 18 (b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act.