6 S.C.R.

SUPREME COURT REPORTS 213

addresed to the High Court on this point; and ( 4) there had been no mutation in the revenue records when this sale was effected and Pir Baksh who was examined as a witness admitted this fact.

These circumstances are certainly capable of explanation, but they show that the claim of the plaintiffs cannot be accepted by us straightaway and a decree passed in their favour.

In these circumstances, we consider that the proper order to pass would be to remit the matter to the trial Court for recording a finding as regards the reality of the sale on the evidence already on the record and to pass an appropriate decree in the suit, that is, if the sale under Ex. 12(i) were held to be real, the plaintiffs would be entitled in addition to the 8 pies share decreed to them by the High Court, to a further 2 as 13 gondas odd share belonging to Ashfaq which they obtained under Ex. 12 ( c) through Pir Baksh, and in the event of the sale not being held to be real to no more than what the High Court has decreed.

With this modification, the appeal is dismissed with

COlill.

Appeal dismissed.

CH. SUBBARAO

MEMBER, ELECTION TRIBUNAL, HYDERABAD

(B. P. SINHA, C.J., K. SUBBA RAO, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLl:AR JJ.)

R1pre1tntation of th• P•ople Act, 1951 (43 of 1951), 11. 80, 31 (3),

90(3),-.f'ttction Petition-No attutation in the copit1 oj thl petition that they •re true copit1-Whlth1r lhtr1 hod bt1n 1ub11turl comp/U.nct.

The third respondent was declared elected to the Lesislalive •11 of Andhra Pradesh in the general election held in 1962. Tho appo- ••t, a •oter of tbo constituency ftlcd an election petitioa challeqina

Swa/

R•IM Ihirani

•• Atamabiul

Tta Co.

AYY•Tllfll". I.

1•nW"'"J, IJ

1964 the election of the third respondent on several grounds inclµding corrupt C& Subbarao practices.

The petition was acCompanied by the requisite nwnber of y.. copies which wre true copies and each of them bore the signature of &limber. Election the petitioner. But there was no attestation at the foot of the coPies that frllnutal Hyderathey were true copies.

The third respondent raised various preliminary ktl objections and the Election Tribunal rejected all of them.

Thereupon he filed writ petition in the High Court praying for the issue of a writ quashing the Tribunal's order.

His main contention was that since the copies of the petition did not contain an attestation stating that the copies were true copies there has been a violation of the mandatory provision of s. 80(3) of the Representaion of the People Act, 1951. Tho High Court accepted the contention and issued a writ as prayed for.

The present appeal was filed with special leave granted by this Court.

HELD:

(i) If there is a total or complete non compliance with the provisions of s. 81(3) the election petition might not be ••aa election petition presented in accordance with the provisions of the part" within

1. 80 of the Act.

(ii) By the expression ''copy" ins. 81(3) it was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original.

Murarka v. Roop Singh [1964] 3 S.C.R. 573, referred lo

Noseworthy v. Overseers Buckland etc., L.R. 9 C. P. 233 ancl

Spic~ v. Bacon, L.R. 2 Ex. D. 463, distinguished.

(iii) In the present case the signatures on the copies cannot be held to have been merely intended to be a copy of those on the original, since a signature in original was not needed on the copy and writing or copying out the name of the signatory would suffice. The absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy.

The facts and circumstance of the case show that there has been a substantial compliance with the requirement of s. 81(3). The wider question whether s. 81(3) or as part thereof is mandatory or directory is left open.

The appeal is allowed.


Xunjer Thevar, [1959] S.C.R. 583. followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 971 of 1963.

Appeal by special leave from the judgment and order dated April 15, 1963 of the Andhra Pradesh High Court in Writ Petition No. 1096 of 1962.

P. A. Choudhury and T. V. R. TaJaclwi, for the appellant.

H. N. Sanyal, Solicitor-General and P. Ram Reddy, for respondent No. 3.

Ch.

Sub,,_ ...

January 13, 1964. The Judgment of the Court was MT bmber

1 •. E!~ • _ t1 una 'llJ~ delivered bybad

AYYANGAR J.-This is an appeal by special leave Ayyangar /. against a judgment of the High Court of Andhra Pradesh by which a Writ Petition filed by the 3rd Respondent-K.

Brahmananda Reddy-was allowed and an Election Petition filed by the appellant was directed to be dismissed.

The facts giving rise to, the proceedings with which the appeal is concerned are briefly as follows: At the Genl!ral Elections held in the month of February 1962 for the 'Legislative Assembly-Constituency of Phirangipuram in Guntur District in Andhra Pradesh-the third respondent Brahamananda Reddy and one Chandramouli, the 2nd respondent before us, were the contesting candidates.

The polling at the Election took place on the 26th 'February 1962 and the Returning Officer declared Brahmananda Reddy, elected as

having obtained the majority of valid votes.

Thereafter, ihe appellant who is a voter on the rolls of the said Constituency filed an Election Petition before the Election Commission on April 11, 1962 under s. 81 of the Representation of the Peoples Act, 1951, which we shall refer to as the Act.

There was no formal defect in the petition, it was accompanied by the requisite number of copies provided for by the Act and also by the treasury receipt evidencing the deposit of the requisite sum for security as provided by a. 117 of the Act.

The grounds on which the election was sought to be set aside were various and included inter alia allegations of corrupt practices against the returned candidate as well as his election agent, as also several irregularities in the polling by having the votes of dead voters recorded as well as by double voting. The petition was tcteived by the Commission, who after satisfying itself that it was in conformity with the Act had a copy of the petition published in the Official Gazette on May 17, 1962 as provided by s.

86 of the Act.

Jn due course, an Election Tribunal was constituted and the petition was referred to the Tribunal for trial.

The returned candidate-Brahmananda Reddy-filed

191~ his Written Statement on September 15, 1962 in which the Ch.

Suhhara• allegations of fact made in the petition were denied. Be- •• b Y.EI 1. sides what might be termed the merits of the allegations in -•m tt, • ec ion h l . . .

B .

Tribunal Hydtta t e e ectlon petll!on, rahmanda Reddy raised by his Wntba ten Statement several technical objections pointing out //4yyani• J. certain defects in the petition. This appeal is not concerned either with these technical defects in the election petition or with the defence raised on the merits to the charges that were formulated in it.

The merits have yet to be tried, and as regards the technical objections to the petition raised in the Written Statement dated Se; itember 15, 1962, they have been disposed of by the High Court and the same are not before us.

A few days later on September 24, 1962, Brahmananda Reddy filed a further Statement of objections to the petition raising mostly objections of a technical nature and of these the only objections which is the subject matter of the present appeal is that contained in paragraph 2 which reads, and we quote the material words:

"It is further submitted on behalf of the 1st respondent that the above petition filed u/s 81 of the Act is not an Election Petition ...........• As the requirements of s. 81 (3) of the Act are not com;>lied with, the petition is, therefore, liable to be dismissed u/s 90(3) of the Act as it does not comply with the provisions of sec. lt 1 of the Act. ............. "

This second statement contained a prayer that in view of the technical objections, the maintainability of the petition might be decided as a preliminary issue as the objections went into the root of the matter.

Paragraph (2) extracted earlier is somewhat vague but in the arguments before the Tribunal it was explained as

indicating an objection alleging non-compliance with s. 11(3) of the Act which runs:

"Every election petition shall be accompained by as

many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission,

Ch.

Subbtno

and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petitioa. • Member, B,..,,,_.

Tribunal ll)'U..

We shall refer later to the precise defect which was relied bad on in support of the case that there was a non-compliance A.yyangor 1. with this provision.

The Tribunal acceded to this request and by its order dated November 7, 1962, it decided the preliminary objections including the one just now mentioned in favour of the election ipetitioner and fixed a date for the trial of the petition on the merits.

Brahmananda Reddy thereupon moved the High Court under Article 226 of the Constitution and prayed for the issue of the Writ quashing this decision of the Tribunal and sought the dismissal of the election petition for non-compliance with the provisions of the Act.

The learned Judges of the High Court disallowed the other technical objections raised, but held that the petition did not comply with the requirements of s. 81 ( 3) of the Act and for this reason they directed the dismissal of the Election Petition.

The appellant thereafter has filed this appeal after obtaining special leave from this Court.

The subject of controversy in this appeal lies in a very narrow compass.

But before we deal with it, it will be convenient to specify the precise defect which the learned Judges have held to be fatal to the maintainability of the Election Petition.

As stated earlier, the Election Petition filed was accompanied by the number of copies required to accompany the petition under s. 8 l (3).

The Election Petition was type-written and the CQ?ies which accompanied the petition were carbon copies of the type-script, so there was no question of the copies being other than 'true' copies.

The copies bore two signature in original of the Election Petitioner authenticating both the contents of the petition as well as the verification thereof.

The Petitioner did not however insert the words 'true copy' before or above his signa tures.

The learned Judges of the High Court considered that this rendered the petition one not in accordance with s.

11 ( 3) of the Act and it is on this ground that the Election•

1964 Petition filed by the ap;:iellant has been dismissed and it is Ci.

Subb11No the correctness of this decision that is convassed in the appeal llart11n."· J:•ction before us.

l'illlldtal 6ad 1~•ra In view of the arguments addressed to us it would be necessary to set out a few of the relevant provisions of the A.7yttngar 1 Act which bear upon ihe points urged, but before doing so we shall refer to Art. 329 of the Constitution which pro Vides:

329(b) no election to either House of Parliament or I

to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the ap; iropriate Leplature."

In accordance with this. we have the provisions of the Act and particularly those contained in Part 'VI commencing with s. 79.

Section 80 repeats the provision in the Constitution already extracted and enacts :

"No election shall be called in question except by an election petition presented in accordance with the provisions of this Part."

:Section 81 deals with the presenta.tion of petitions. It runs:

"81. I'rosntation cf peli ions. ( 1) An election petition ca!ling in question any election may be presented on one or more of the grounds specified in sub-section (i) of seetion 100 and section 10 I to the Election Commission by any candidate at such eleetion or any elector within forty-five days from, but not earlier tlwn, the date of election of the returned cam!idate, or if there are more than one returned candidate at the election and the dates of their election

are different, the later of those two dates.

Explanation.-In this sub-section, 'elector' means a

JJU person who was entitled to vote at the election Ch.

Subb•r•o to which the election petiion relates, whether Member,•· Electio" he has voted at such elec!ion or not.

Tribulllll Hyder ...

( 2) An election petition shall be deemed to have been presented to the Election Commission:-

( a) when it is delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission in this behalf-

( i) by the person making the petition, or

(ii) by a person authorised in writing in this behalf by the person making the petition; or

(b) when it is sent by registered post and is delivered to the Secretary to the Commissi"~ or the officer so appointed.

( 3) Every election petition shall be accompanied by as many copies thereof as there are respondents 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."

Before proceeding further it is necessary to advert to the history of the provision in sub-section (3) for learned counsel for the respondents laid some store by the object with which the provision was introduced.

As enacted in 1951, s. 81 contained only two sub-sections, the first dealing with the time within which a petition had to be filed and the second with the person or authority and the manner in which the petition had to be presented in order to constitute the presentation one to the Election Commission. At that date the Election Commission, after scrutinizing the petitions to ascertain whether there were any formal defects, had itself to make copies for being served on the respon- _dents.

To avoid this trouble and inconvenience to the Commission and the delay which the making of such copies

bti4

AyyallfOr /.

19H necessarily involved, sub-section ( 3) which we have set out Ch.

Subbarao earlier was introduced into s. 81 by an amendment affected Member, v. Election by Act XL of 1961.

The point made, based on this fea- Tribunal Hyd.rature, we shall reserve for later discussion.

bad

Section 82 deals with the parties who are to be impleaded in the petition and s. 83 with the contents of the petition.

Section 8 3 (1 )( c) enacts:

"An election petition shall be signed .by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings."

Sub-section ( 2) requires a similar signature and verification of ichedules or annexures to the petition.

Section 85 empowers the Election Commission to dismiss a petition in certain contingencies.

It reads:

"85. If the provisions of section 81 or section 82 or section 117 have not been complied with, the Election Commission shall dismiss the petition:

Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard."

The succeeding sections deal with the trial of Election Petitions, after making provision for the 8(?pointment of an Election Tribunal by s. 86 but what is relevant in the present context is s. 90 and it is enough to quote the material wordi:

"(1) Subject to the provisions of this 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 iUits:

Svb-scction ( 3 ) reads:

''The Tribunal shall dismiss an election petition which docs not comply with the provision1 of

section 81, notwithstanding that it has not been dismissed by the Election Commission under s. 85."

Ch.

Subbarao

Member, Electitnl The reasoning on which the learned Judges have based Tribunaiod Hyd.,.. their decision shortly stated is this.

It is the requirement of s. 81 (3) of the Act that an election petition should be A.yyangar 1 accompanied by the number of copies specified there, and equally so that the copies so accompanying "shall be attest ed by the petitioner under his own signature to be a true copy of the petition".

There was, of course, the signature of the petitioner on tl!ie copies, but there was no attestation by him that "it was a true copy".

This constituted a noncompliance with the requirements of s. 81 which brought into play the terms df s. 90 (3) of the Act which required the Tribunal to dismiss a petition which did not com?IY with the provisions of s. 81.

Though the learned counsel for the appellant made several submissions, we propose to deal with only one, as the same is sufficient for the disposal of this appeal.

This was that in the circumstances of the case there had been a substantial compliance with the requirements of s. 81(3).

Before, however, dealing with it, it will be convenient tn refer to some of the submissions made to us by the learned Solicitor-General appearing for the contesting :es;>ondent!.

He submitted to us certain propositions which however we consider really unexceptionable.

He said that an election petition was not to be equated to an action at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the courts possessed and could exercise no dispensing power to waive non-compliance.

We consider these i;:iropositions are sound and it is in the light of these basic positions that we shall proceed to consider whether the omission to add the words "true copy" in the copies which were idmittedly exact copies of the petition, constituted a non-compliance with s. 81 (3) as to render the petition liable to be rejected under s. 90 ( 3) of the Act.

Learned counsel for the appellant urged that the jurisdiction of the Tribunal under s. 90(3) to dismiss 'an elec-

19M. tion petition which does not comply with the <;>rovisions of Clo.

Su6baroo s. 81' was attracted only if there was a defect in the petilf•mb.,,.. Election ion itself ~~ that a defect merely in the copy accompany- Tilbunar ll1d11amg the petition would not be a case of a "petition not """ complying with the provisions of s. 81" so as to require A1Jon1ar 1. or even permit the Tribunal to dismiss the petition. In support of this submission, the difference in the language employed in s. 85 and s. 90(3) of the Act in !he matter of making rference to the requirements of s. 81 w.a5 adverted to.

Besides, it was pointed out that both s. 90(3) and before it s. 90 ( 4) were in their present form making reference to s. 81 when the latter section did not contain the third sub-section relating to copies accompanying the petition, and that the content of s. 90 ( 3) should not be held enlarged because in 1961 sub-section ( 3) was added to s. 81 particularly because the language of s. 90(3) was not altered to reflect the change.

We are not impressed by this argument.

When s. 81 ( 3) requires an election petition to be accompanied by the requisite number of copies, it became a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition. If that is a requirement of s. 81, no distinction can be drawn between the requirements of sub-sections (1) and (2) and of sub-section (3).

We might add that if there is a total and complete non-compliance with the provisions of s. 81 ( 3), the election petition might not be "an election petition presented in accordance with the provisions of this Part" within s, 80 of the Act.

We are therefore inclined to consider that if there had been such a non-com; iliance with the requirement of sub-section (3) not merely the Election Commission under s. 85 but the Election Tribunal under s. 90 ( 3) would prima facie not merely be justified but would be required to dismiss the election petition.

This takes us to the point as to whether the requirement of s. 81 ( 3) has been complied with or not.

The principal submission of the learned Solicitor-General was based on the language employed in s. 81(3) of the Act read in

the light of the direction contained in s. 90(3) which cast

J!M4 on the Tribunal the duty to dismiss an election petition Ch. Si4'6which did not conform to the requirements of the former. M b "· E'..- In particular, he laid stress on the use of the imperative r,1:::,:1. H~

'shall' in s. 81 (3) when denoting the requirement of "attes- """ tation" "under the petitioner's signature" of the copy bearing Ayyangqr 1. the signature being a "true co;:>y''. It was in this connection that he pointed out that the provision for properly attested copies of the petition accompanying the petition was introduced by the amendment effected in 1961, and the object of Parliament was two-fold; first to save the time and inconvenience which the previous procedure cast on the Election Commission, of itself having to make copies for service on the respondents, and secondly by this means to exq>edite the conclusion of the trial of an election petition.

He submitted that the attainment of these objects would be entirely frustrated if the respondents on whom these copies were served had still to make enquiries to satisfy themselves whether the oopies were true copies, without the same being asserted to be so on their face.

In support he referred us to the decisions in Noseworthy v. Overseers of Buckland etc.(') and in Spice v. Bacon( 2 ) as illustrating the degree of strictness and literal compliance which was insisted on by courts in regard to provisions of like character.

The first of these cases was a registration appeal and the Act provided that a iperson who objected to a voter's qualification might be heard in support of his objection if he had given notice to the voter and the manner of giving notice was by sending it by post addressed to his place of abode "as described".

It was held that a notice by post addressed correctly but not to the address "as described" was not a compliance with the requirement and that in consequence the objector could not be heard.

We do not consider that this dec.ision lays down any hard and fast rule or principle of construction which is attracted to every case where a statute calls for interpretation.

In ultimate analysis the question is one of the construction of the relevant provision of the particular statutes which iproceeds on the basis

of the words used understood in the context of the statute.

(1) L.R. 9 C. P. 233. (') L.R. 2 Bx. D. 463.

1964 The second case raised a question as to the meaning Ch.

Subbarao of the word "true copy" in the Inn-keepers' Liability Act .!M•mhtr v.Election 1863, which required that in order to obtain the benefit of

Iribu11ai Hyderathe limitation of liability conferred by the Act, a "copy" of

bad the Act had to be exhibited at the Inn.

The copy which Ayyangar J. was exhibited omitted some material words of the section which was required to be exhibited.

The Court held that when a claim was made on the inn-keeper for loss sustained by a guest, he could not claim the benefit of the statute. We are unable to appreciate the relevance of this decision. It turned on what was meant by the word 'copy' in the Act and the portion which was omitted in the copy exhibited was a material portion.

There is no doubt that such a 'copy' which differs in material particular from the original is not a 'copy' within the Act. In this connection we might make a reference to the decision of this Court in Murarka v. Roop Singh ( 1) where the question as to what is a "copy" is elaborately discussed and some of the English decisions touching this matter have been set out.

We shall have occasion to refer to Murarka's case later, but for the present we need only add that the decision relied on by the Solicitor-General is not at variance with what this Court has laid down in Murarka's case.

The next matter to be considered stems from the submission as regards the object of Parliament in enacting subsection ( 3) of s. 81 and that expeditious dispClsal of election petitions which was the object would be frustrated if substantial compliance with the provision was held sufficient.

We are not im; iressed with this argument.

While we are conscious of the need for expeditious disposal of election petitions, and for the strict enforcement of provisions designed to achieve this purpose, we cannot be oblivious to the circumstance that to read every requirement literally might equally defeat the purpose for which Part VI is intended, viz., that elections are conducted in accordance with the relevant statutory provisions framed to ensure purity and orderliness and that the candidate who has not obtained a majority of valid votes or has obtained it in flagrant

(t) [1964]3 S.C.R. 573

breach of the statutory provisions in not held entitled to 1964 represent the constituency.

Ch.

SubbllNIO

The Conrt had to deal with a similar question of inter- Memb.,, Electio• Tribunal Hydm1r pretation of words which appeared mandatory in Kamara; bad

Nadar~• .• Kunju Thevar(1). One of the points which arose Ayyaniar 1• for consideration was whether the requirement of s. 117 of the Act which then required the petitioner to enclose with the petition a Government treasury receipt of Rs. 100 in favour of the Secretary to the Election Commission had been complied with by the election petitioner and s. 90( 4) of the Act which corresponded substantially to the present s. 90(3) required the Election Tribunal to dismiss a petition which did not comply with the provision, inter alia, of s. 117.

The petitioner in that case had made the deposit of the requisite amount i11 the institutions named in the section but the deposit was made in favour of the Election Commission and not in favour of the Secretary to the Commission as required by statute.

It was contended that the petition did not conform to the provisions of s. 117 and had therefore to be dismissed by the Tribunal. This Court rejected this submis>ion .and after adverting to the purpose of the provisions, held that this was fulfilled by the deposit made and that though the requirement as to deposit was mandatory, the same was complied with by the deposit made.

We consider that this reasoning is not irrelevant to the construction of s. 81(3) of the Act either.

In this connection we might refer to the decision of this Court in Murarka v. Roop Singh( 2 ) in which this Court had to consider a question closely related to that now under debate.

That case was also concerned with certain

defect~ similar to what we have in the appeal before us.

The defects which were there relied on by the returned candidate as justifying or requiring the dismissal of the Election Petition fell into several categories whiCh includ

ed non-compliance with the requirements of s. 81 (3 ).

There, as here, the petition was accompanied with the re-

(') (1959] S.C.R. 583.

134-159 SC-15

<'> [1964] 3 s.c.R. 573.

1964 quisite number of copies as specified in s. 81 (3) but what Ch.

Subharao was urged was as regards certain defects in the copies filed . ., b v.El .

These defects fell into two types.

First there were two mat- ... m .r, ect1on h' . ed ed . fil J'rlbunal Hyd.raters w 1ch 1t was stat render the copies ed not 'true bad copies'. If the exipressions 'copy' or 'true copy' wre read Ayyangar J. as exact copies of the original, the copies filed did not satisfy that test.

The two defects were: ( 1) The original petition contained the signature of the petitioner at the foot of the petition as required by s. 83(1)(c) of the Act. In the copy filed there was no copy of this signature.

To that extent therefore the copy was not an exact copy.

The second matter under this head was that the verification in the copy served on the appellant did not exactly correspond to that in the original in that in the latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group.

The other type of defect which was claimed to constitute non-compliance with s. 81 ( 3) was that the words 'true copy' with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies

of which were annexed to the copies of the petition filed.

The order of the Returning Officer rejecting the nomination paper of the petitioner was filed with the original petition as an annexure to it, and certified copies of that order were annexed to the copies of the petition.

But this certified copy did not contain an endorsement stating that it was a 'true copy' with the signature of the petitioner.

The High Court had held that so far as the defect in not reproducing the signature in the petition was concerned, it was cured by the fact that every page of the copy of the petition was attested to be a true copy and therefore it would not matter if the last page did not contain the signature. As rega•ds the second, the High Court held that the failure to include the paragraph in the verification was only a clerical defect which had crept in through oversight and as regards the other that it was no defect at all.

This decision was upheld by this Court holding that the word 'co;>y' in s. 81 ( 3) meant a copy which was substantially sc and which did not

contain any material or substantial variation.

By 'copy' 1964 in s. 81 ( 3) was meant not an exact copy but only one so Ch.

Sub/Hno true that nobody by any possibility misunderstand! it not M be ": Elecltoa being the same as the original.

Applying this test, this Trlb~ B1"1" Court came to the conclusion that there was no failure to ~.., comply with the last part of s. 81 ( 3), with the re1ult that AY1•n1• 1. s. 90 ( 3) of the Act was not attracted.

This Court besides left open the question as to whether any part of s. 81 ( 3) was directory or whether any portion of it was mandatory. In the present case also, we do not propose to deal with the larger question as to whether 1.

81(3) or any portion of it is merely directory. In view of the decis.ion of this Court it would be clear that if there ia

a substantial compliance with the requirement of s. S 1 ( 3), the election petition cannot be dismissed by the Tribunal under s. 90 ( 3). The question then is whether on the facts

above-stated, there is or is not a sufficient and substantial compliance with s. 81 (3).

We have already pointed out that the appellant has complied with the following requir&- ments:

( 1) The petition has been accompanied by the requilite number of copies.

(2) The copies that accompanied the petition were true copies. ·

( 3) Each of those copies bore the signatures of the petitioner.

If the signature of the petitioner whose name is set oqt in the body of the petition is appended at the end, surely it authenticates the contents of the document. Now in regard to this the learned Judges of the High Court themselves observed after referring to the terms of s. 81 ( 3) : ·

"No doubt, what is necessary is a substantial com{i-'

liance with the requirement of attestation.

For instance, if it is proved that" the eleetion petitioner has signed animo atttstendi, and omitted the words 'true copy' by mistake or inadvertently, there i5 a substantial requirement of the compliance of s. 81 (3).

The

Ch.

s., bbarao ...

II.ember, Election

same may be said if the relative positions of the words 'true copy' and of the signature one below the other are not correct."

Tribunal Hyd1ra- 1. h h Id h h d f h bad hey owever e t at as t ere was no cv1 ence o t e sig-

<4.yyangar J. nature having been appended animo attestendi, there was non-compliance with s. 81 (3). The learned Solicitor-General while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that the signature at the end of the copy was meant only as a ca:; iY of that in the original petition and could not satisfy the requirement as to attestation of the copy. He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy, even if the words 'true copy' were omitted to be put down. In that case, he said, one signature could be treated as representing the copy of the signature on the original and the other mii:ht be taken to have been made animo attestendi.

We do not however consider that there is really need for so much refinement when one has to look at whether there is a substantial compliance withs. 81(3), seeing that a signature in origisignatures now found on the copies were intended to authenticate the document to which it is appended, viz .. the copy, it would only mean that the copy did not reproduce the signature in the original.

There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a noncompliance with the requirement of this provision. If the nal was not needed on the copy and a writing copying out the name of the signatory would suffice.

The decision of this Court in Murarka's case(') is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy.

Jn the circumstances, we consider that there has been substantial compliance with the requirement d. s. 81 (3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal o! the petition.

The appeal is accordingly allowed and the order of the High Court dismissing the petition is set ru; ide.

As owing

(') [I964J 3 S.C.R. 573 -;

.;,.

10 the filing of the Writ Petition there has been a considerable delay in the trial of the Election Petition, we express the hope that the petition would be heard and disposed of at an early a date as is conveniently possible.

The appellant will be entitled to his costs here and in the High Court which will be paid by the contesting third respondent.

Appeal Allowed.

IN re: LILY ISABEL THOMAS

(B. P. SINHA, C.J., K. SUBBA RAo, RAGHUBAR DAYAL,

N. RAJAGOPALAN AYYANGAR

AND J. R. MUDHOLKAR, JJ.)

Supreme Court Rules-''Right to practise" if include! "right to act" -

Rule making power-If conflicts with legislative power of Parliament-Supreme Court Rules, 1950 (as amended in 1962). 0. IV. rr. 16, 17-Validity of-Constitution of .India, Art. 145-Advocates Act, 1961 (25 vf 1961) •s. 52, 58(3).

The petitioner was enrolled in the Madras High Court under the Indian Bar Councils Act, and later admitted to the rolls of this Court under the Supreme Court Rules.

In this petition, it was contended that under s. 58(3) of the Advocates Act, the petitioner was entitled "as of right to practise" in this Court. and the "right to practise" included not merely the right to plead hut also to act; that the rules mad~. N rr. 16 & 17 of the Supreme Court Rules are invalid; and that that by a rule made under Art. 145 (l)(a) this Court could neither entitle a person to practise nor impose qualifications as to tho right to practise, these matters being entirely within entry 77 and therefore exclusively for parliamentary legislation.

HELD: (i) The words "right to practise" would in itt normal conaotation take in not merely right to plead but the right to act as well and if no rules had been made by the Supreme Court restricting the right to act, the petitioner could undoutedly have had a right both to plead es well as to act

Ashwani Kumar Ghosh v. Arabinda Bose, [1953) S.C.R. 1, referred lo.

(ii) Under s. 58(3) of the Advocates Act, the right conferred on Advocates enrolled under the Bar Councils Act to practise in the Sup- Rme Court is made subject to any rules made by thia Oourt. SectiOD

Ch. Subbarao v.

Tribunal Hydera

Tribunal Hydera bad

Ayyanz"1' 1,

January, 14