Case: Kamalam (M) Vs. Dr. V. A. Syed Mohamad

The election was held on 19th March, 1977 and the respondent having secured the majority of votes was declared elected to the, Lok Sabha on 20th March, 1977. The appellant, who was a rival candidate, filed an election petition in the High Court of Kerala challenging the election of the respondent on various grounds., one of which was commission of certain corrupt practices set out in the election petition. The election petition was duly signed and verified by the appellant and it was accompanied by the requisite affidavit in support of the allegations of corrupt practice and their particulars. The election petition and the affidavit were tied together as one document and two copies of this document were filed for service on the respondent. The signature of the appellant by way of authentication appeared at the foot of the copy of the affidavit, but there was no such signature separately appended at the foot of the copy of the election petition. The respondent. therefore, on filing his appearance, raised a, preliminary objection against the maintainability of the election, petitionand contended that since the copy of the election petition was not attested by the appellant under her own signature to be a true copy, there wasnoncompliance withsection 81, subsection (3) and hence the election petition was liable to be dismissed under section 86,subsection (1)of the Act. This preliminary objection was tried first, since if it was well founded, the High Court was bound to dismiss the election petition and could not proceed to hear it on merits. The High Court delivered its judgment on this preliminary issue on 6th July, 1977, and held that whatsection 81,subsection(3) requires is attestation of the copy of the election petition under the signature:of the petitioner and since in the present case, signature by way of attestation was on the copy of the affidavit and not on the copy of the election petition, there wasnoncompliance withsection 81,subsection(3) and the election petition was liable to be dismissed in limine undersubsection(1) of section 86. The appellant being aggrieved by the dismissal of the election petition, preferred the present appeal under S. 116A of the Act.The controversy between the parties in this appeal lies in a narrow compass.

Reasoning:
It was in compliance with the proviso to section 83, sub-section (1) that along with the election petition an affidavit in the prescribed form was filed by the appellant in support of the allegations of corrupt practice set out in the petition and the particulars of such corrupt practice. The two copies of the election petition filed by the appellant also carried copies of this affidavit attached to them and the signature of the appellant appeared at the foot of each of the copies of the affidavit. Section 84 is not material and we may omit reference to itThere were two copies of the election petition filed by the appellant and to each of these two copies was attached a copy of the affidavit. Both these copies were identical and hence we may look at either of ment of the last part of sub- section (3) of s. 81. What that part requires is that every copy of the election petition filed by the petitioner " shall be attested by the petitioner under his own signature to be a true copy of the petition."Now, one thing is clear as a result of the decision of this court in Ch. Subbarao v. Member, Election Tribunal, Hyderabad([1964] 6 S.C.R. 213.) that it is not necessary that there should be a statement in so many terms in the copy of the election petition that the signature of the petitioner has been put by way of authenticating it to be a true copy and it is enough that the copy of the election petition bears the signature of the petitioner, because when the petitioner has put his original signature on the copy of the election petition, it can only be for the purpose of attesting it as a true copy. But here in the present case the signature of the appellant appeared only at the foot of the copy of the affidavit and there was no signature of the appellant at anyplace in the copy of the election petition and there was thus, according to the respondent,noncompliance withthe last part of sub-section (3) of section 81. The appellant, however, submitted that the affidavit was a part of the election petition and the copy of the election petition, therefore, consisted of two parts, one being copy of the election petition proper, if we may so call it, and the other being copy of the affidavit. The signature of the appellant at the foot of the copy of the affidavit was, therefore, said the appellant, referable not only to the copy of the affidavit but also to the copy of the election petition proper and hence the requirement of the last part of sub-section (3) of section 81 was complied with by the appellant. These rival contentions raise an interesting question of law depending on the interpretation ofsection 81,sub-section (3)in the light of section 83 and section 86, sub-section (1).Now, the first question which arises is as to what constitute an election petition for the purpose ofsection 81,sub-section(3). Is it confined only to election petition proper or does it also include a schedule or annexure contemplated insub-section(2) of section 83 or a supporting affidavit referred to in the proviso to section 83,sub-section(1) ? To answer this question, we must turn to section 83 which deals with contents of an election petition. Sub-section (1) of that section sets out what an election petition shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in theCode of Civil Procedure 1908 for the verification of pleadings. The proviso requires that where the petitioner alleges any corrupt practice, prescribed form in support of the allegation of such corrupt practice the election petition shall also be accompanied by an affidavit in the and the particulars thereof. The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an election petition nor figured as a proviso to asubsectionwhich lays down what shall be the contents of an election petition. Sub-section (2) also by analogy supports this inference. It provides that any schedule or annexure to an election petition shall be signed by the petitioner and verified in the same manner as an election petition. It is now established by the decision of this Court in Sahodrabaj Rai v. Ram.Singh Aharwar([1968] 3 S.C.R. 13.) thatsub-section(2) applies only to a schedule or annexure which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it. The scope and ambit ofsub-section(2) was explained in the following words by Hidayatullah, J speaking on behalf o f the Court in Sahodarbais case (supra) at pages" We are quite clear thatsub-section(2) of section 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is, to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of these averments and in proof thereof."It would, therefore, be seen that if a schedule or annexure is an integra part of the election petition, it must be signed by the petitioner an verified. since it forms part of the election petition. The subject-mattersub-section(2) is thus a schedule or annexure forming part of the election petition and hence it is placed in section 83 which deals wit contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83,sub-section(1) also forms part of the elect ion petition. The election petition is in truth and reality one document consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to section 83,sub-section(1). The copy of the election petition required to be filed under the first part ofsub-section(3) of section81,would, therefore, on a fair read in of that provision along with section 83, include a copy of the affidavit. That is why the appellant attac hed a copy of the affidavit to the copy of the election petition proper and filed the two as one single document along with the election petition. Now, it is true that no signature was appended by the appellant on the copy of the election peti tion proper and the signature was placed only at the foot of the copy of the affidavit, but that, in our opinion, was sufficient compliance with the requirement of the last part of sub- section(3) of section81. The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit, it was tantamount to appending signature on the copy of the election petition. The l aw does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao case ( supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition. Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition. In fact, the copy of the affidavit const ituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a: true copy. We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition. The requirement of the last part ofsub-section(3) of section81 was complied with by the appellant inasmuch as the copy of the election petition. was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which formed part of the copy of the election petition. The High Court was clearly in error dismissing the election petition under sub-s. (1) of sec. 86.