Case: Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore &amp; Others

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-section by reason of any failure to comply with the provisions of S. 81. This disposes of the second preliminary objection raised before us.16. 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-s. (1) of S. 83 of the Act. The argument further is that an election petition under S. 81 must comply with the provisions of S. 83 and unless it complies with those provisions, it is not an election petition under S. 81.17. We think that this contention has 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 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 has 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 petitioners petition summarily, as the provisions of S. 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."18. 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.19. 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 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 Rs. 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."20. In the copy served on the appellant the original treasury receipt of Rs. 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 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-s. (3) of S. 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-s. (3) of S. 81 were filed. The only grievance made is that the endorsement "two copies" was not repeated in the enclosure portion of the copy served on the appellant. We have already explained what is meant by the word "copy" in sub-s. (3) of S. 81 and we are of the view that the defect 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.21. In conclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the ground mentioned in his petition dated April 4, 1963. The intervener supported the argument advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and nothing further need be said about the interveners petition.22.

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

Explanation:
0[ds]Section 82 then provided aspetitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so(4) of S. 90 then provided that notwithstanding anything contained in S. 85, the tribunal may dismiss an election petition which does not comply with the provisions of Ss. 81, 83 or117. There has been a change of law since that decision. Section 82 has been re-cast and sub-s. (3) of S. 90 now states that the tribunal shall dismiss an election petition which does not comply with the provisions of S. 81 or S. 82 notwithstanding that it has not been dismissed by the Election Commission under S. 85. Therefore we do not think that the decision in 1954 SCR 892 : (AIR 1954 SC 210  ) is determinative of the problem before us. We need not however pursue this question any further, because we have held that in the present case there was no contravention of the provisions of S. 82.We agree with the view expressed by the Election Tribunal. We have pointed out that sub-s. (4) of Sec. 90 originally referred to three sections, namely, Ss. 81, 83 and 117. It said that notwithstanding anything contained in S. 85 the Tribunal might dismiss an election petition which did not comply with the provisions of S. 81, S. 83 or S. 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 S. 81, S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85. There was a further amendment by Act 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 section 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 theCode of Civil Procedure, 1908 for the verification of pleadings as required by cl. (c) of sub-s. (1) of S. 83 is fatal to the maintainability of the petition.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 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-sec. (3) of S. 81.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-section by reason of any failure to comply with the provisions of S. 81. This disposes of the second preliminary objection raised beforethe copy served on the appellant the original treasury receipt of Rs. 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 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-s. (3) of S. 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-s. (3) of S. 81 were filed. The only grievance made is that the endorsement "two copies" was not repeated in the enclosure portion of the copy served on the appellant. We have already explained what is meant by the word "copy" in sub-s. (3) of S. 81 and we are of the view that the defect 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 ground mentioned in his petition dated April 4, 1963. The intervener supported the argument advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and nothing further need be said about the interveners petition.