MURARKA RADHEY SHYAM RAM KUMAR v. D•s I

We may now state briefly the grounds on which the appellant contends that the two election petitions were not maintainable and should have been dis- missed bv the Election Tribunal. With regard to Election Petition No. 269of1962 the grounds urged before us on behalf of the appellant are three in number. Firstly, it is contended that there was non- compliance with the mandatory provisions of s .. 82 of the Act. We shall presently rear!. 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 though s. 82 requires that in cases where in addition to the relief of declaring the election of the returned candi- date 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 there- fore impleaded to the election petition in contraven- tion of the provisions of s. 82. Secondly, it is urged that there was non-compliance with the provisions of s. 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 was 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 s. 83 of the Act inasmuch as the affidavit in respect of corrupt • 1963 Murarka R•d/Jty Shyam RMn Ks.mar v. R"'p Sin1h R e11tm n.s J. 3 S.C.R. SUPREME COURT REPORTS 577 practices which accompanied the election petition was •either properly made nor in the prescribed form. With regard to Petition No. 295 of 1962 the 1rounds alleged are these. Firstly, it is stated that at the time of its presentation to the Election Commi- ssion, the petition was not accompanied by true copies of the petition as required by s. 81 (3) of the Act because there wa, a rererence to four enclosures at the foot of the schedule or the original petition, but in the copy served on the appellant the enclo- sures were not reproduced. Secondlv. 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 re- ceipt showing the deposit or a sum of Rs. 2,000/- in ravour 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 the nomination paper of the petitioner,_ rejected 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 s. 79 (b) the expression "candi- date" in parts VI, VII and VIII or 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. S. 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. S. 81 states in effect that an election petition calling in question any election may be presented on one or 578 SUPREME COURT REPORTS [1964] VOL. 196J Mura, ka Raf/Aly S,\,rarn Ram Kumar y, Sirith RtJl!i4r1 DuJ, more of the grounds specified in sub-s. (1) of s. 100 ands. 101 to the Election Commission by anv candi- date at such election or any elector within forty-five days from the date of election of the returned candi- date. Sub-s. (3) of s. important for our purpose, reads as follows : .. which 11ub-section "Every election petition shall be accompanied by as many copies thereof as there are respon- dentl 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 ·aignature to be a true copy of the petition." S.' 82 states . who shall be parties to the petition. reads: It "A petitioner shall join as respondents to his petition- (a) where 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 claimed, all the returned candidates; and further declaration, is · ' (b) any other candidate against whom alle- gations of any corrupt practice are made in the petition." S. 83 lays down what shall be the contents of the petition. We are concerned in the present cases with the provisos to 1ub-1. (1) or s. 83. That proviso aay1, "Provided that where the petitioner alleges any corrupt practice, the petition shall also be Mururka Rc.J/wy Sh:J""' R1J111 K' •ar .. Roop Sintli R•lltor1 D., /. 3 S.C.R. SUPREME COURT REPORTS 579 accompanied by an affidavit in the prescribed form in support of the allegation of such cor- rupt practice and the particulars thereof." S. 85 states that if the provisions of s. 81 or s. 82 or 1. 117 have not been complied with, the Election Commission shall dismiss the petition. S. 86 lays down that if the petition is not dismissed under s. 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 ss. 87, 88 and 89 which deal with matters with which we are not directly concerned. We then come to s. 90 which lays down the procedure to be followed before the Election Tribunal. Sub-s. ( 1) of s. 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-s. (3) or s. 90 states : "The Tribunal shall dismiss an election peti- tion which does not comply with the provisions of section 81, or section 82 notwith.standing 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 sub- section shall be deemed to be an order made under clause (a) of section 98." ( 4) of s. 90 states that any candidate not Sub-s 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 s. 119, be entitled to be joined as a 1919 M•mka RatituJ SAJn1 R"m Xum• •• Rath"' &op hJ. ISSO SUPRED COURT REPORTS [1964] VOL. respondent. Sub-s. (6) states that every election pe- tition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of publication of the copy of the petition in tl, le Official Gazette under 1ub- 1. (1) of s. 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. 269/1962. The argument on this part of the case is the following. Learned counsel for the appellant has contended that the provisions of s. 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 s. 82. He has relied for this purpose on sub-s. (3) of s. 90. He has further contended that in view of the aforesaid provisions of the Act, na- mely, the provisions in s. 82 and sub-s. (3) of s. 90, it is not open to an Election Tribunal to apply the principles of the Code of Civil Proced11re and treat a non-joinder or mis-joinder as not fatal to maintainability of the petition. is admitted . The foundation of the argument is that there has been a non-compliance with the provisions of s. 82. If that foundation is absent, then the whole argument disappears. Now, it Ballu or Balji was not a contesting candidate within the meaning of s. 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 s. 82. Therefore, what happened Wa!! this. All the partie1, whom it Wa!! necessary to join under the provisions of 1. 82 were joined as respondents to the petition ; but Ballu 3 $.C.R. SUPREME COURT REPORTS 581 /9fJ RMl•:J .s•,.,.; a .. ,..,. ... •• llHI Sin1h 1111!""' D•1 /. or Balji wa1 joined in excess o( the requirement• of s. 82. The question before us is, does this amount to non-compliance with, or contravention of, provisions of s. 82? Learned counsel for the appel· lant wishes us to read s. 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 s. 82. We agree with the High Court that if all the necessary parties have been joined to the election petition, the circum- stance that a person who is not a necessary party has also been impleaded does not amount to a breach of the provisions of s. 82 and no question of dismis- sing the petition under sub-s. (3) of s. 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 s. 82 of the Act. The posi- tion will be different if a person who is required to be joined as a necessary party under s. 82 is not impleaded as a party to the petition. That however ia 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 1. 82. It is perhaps necessary to add that learned counsel for the respondents relied on the decision of this court in Jagan Nath v. Jaswant Singh('), where it was he Id that s. 82 of the Act as it then stood wu not mandatory. S. 82 then provided as follows: "A petitioner shall join as respondents to hil petition all the candidates who were duly no- minated at the election other than himself if he was ao nominated." Sub-s. (4) of s. 90 then provided that notwithstand- ing anything contained in s. 85, the tribunal may 111 111u1s.o.a.89Z, /96J Mwr.,ka R•dh1)1 H.11m Kumar •• 8."'' linzli R2th1r1 J;J., 1. . 582 SUPREME COURT REPO.K.TS [1964] VOL. ' dismiss an election petit, ion which docs not comply with the provisions of ss. 81, 83 or 117. There has been a change of law since that decision. S. 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 dismis- sed by the Election Commission under s. 85. There- fore we do not think that the decision in Jagan Nath v. Jaswant Singh('), is determinative 'of the problem before us. We need not however pursue this ques- tion any further, because we have held that in the present cases there was no contravention of the pro- visions of s. 82. We now go to the second point. But before we do so, it may perhaps be stated that certain defect! 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 some of the stated that the averments made in to the personal paragraphs of the petition were true 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-s. (1) of s. 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-s. (3) of s. 90 inasmuch as that sub-section does not refer to non-compliance with the provision• of s. 83 as a ground for dismissing an election petition. We agree with the view expressed by the Election Tribunal. We have pointed out that aub-1. (4) of (II (19M-J s.c.R. Bi! 1'61 .. M•,.t• Sh.J• R•m KuMa1 &.J Sin1A !I.th.,, DuJ. 3 S.C.R. SUPREME COURT REPORTS 183 s. 90 originally referred to three sections, namely, ss. Sl, S3 and 117. It said that nothwithstanding anything contained in s. S5 the Tribunal might dismiss an election petition which "did not comply with the provisions of s. S l, s. S3 or s. 117. S. 90 was amended by Act 27 of 1956. Sub-s. (3) then said that the Tribunal shall dismiss an election petition which does not comply with "the provisions of s. Sl, s. S2 or s. 117 notwithstanding that it has not been dismissed by the Election Commission under s. S5. There was a further amendment by Act 40 of 1961 and sub-s. (3) ofs. 90 as it now · stands has already been quoted by us in an earlier It seems clear to us that part of this judgment. 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, 190S, for the verification of pleadings as required by cl. ( c) of aub-s. (1) of s. 83 is fatal to the. maintainability of the petition. On behalr or 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 sub- s. (J) of s. 81 of the Act. The argument is that a failure to comply with the provisions of sub-s. (3) of s. SL attracts sub-s. (3) of s. 90 and it is obligatory on the Tribunal to dismiss an election petition which does not comply with the requirements of sub-s. (3) of s. Sl. On the basis of the decision of this court in Brt Babu Ram v. Bhrimati Prasanni ('), it is that the principle in such cases is that contended 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. (IJ [lt!BJ 8.0.ll. ltol. . , ' ; ' 584 SUPREME COURT REPORTS (1U64] VOL. , •J96J Afu,.Q,k• R..dJr1y S".J•Tn R.rn T.lllTJcf A.o} Sint'- RotliOY1 .. D .. J. , _ _ It is argued . that no question of.- substantial- com- pliance · arises in such ·cases,.· and the mandatory requirement must be strictly complied with. _ -. - ' - · fi; d. · L h in the _ et us rst see w at· are the de ects oun copy of the petition served on - the appellant. • It is admitted that the first part of_ sub-s. (3) ·of s. 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 Elec- . tion 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 -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 cbntained 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 · petitioq. : With to the second . defect ·the Election Tribunal regard . 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 non- compliance with the provisions of aub-s. (3) of s. 81. 1'61 Mu.rttrk• aMluy Sh1•m lt"11 /Cam•r •• R•oJ Sinth lt•llt,,e Dtts J. 3 S.C.R. SUPREME COURT REPORTS 585 .We agree with the High Court and 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·s. (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-s. (3) of s. 81. On behalf of the appellant the argument is that sub-s. (3) of s. 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 is that the original. Alternatively, the argument the last part of sub-s. (:l) dealing with a copy is merely directive, and for this reliance is placed on the decision of this court in Kamaraja N arlar v. K unju Thevar ('). We are of the view that the word "copy" in sub-s. (3) of s. 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, thid edition, volume 4, page 3098). In this view of the matter it is to go ioto the further question whether any part of sub-s. (3) of s. 81 is directory. Several English decisions were cited at the Bar. The earliest decision cited to m is the decision in Pocock v. Mason ('), where it was that the omission of the words "the" and "by" 10 the copy of the writ of oapias 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, (I) [1959] S.C,V.. 583. l21 131E.R;1111. 686 SUPREME COURT REPORTS [1964] VOL. Jffl Mar«l2 Radltey Slt7• lt•m l\,,,.,.c, •• Roo; Sinth lta1har1 Des J. supposes an exertion of intellect which it may to require at the hands of be inconvenient those who serve the . copy. It was to obviate legislature has this jnconvenience, given a form, and required that .it should be pursued. Nothing but ordinary care is neces- sary for taking the copy." that the it was In Morris v. Smith ('), In a later decision Putton v. Mary and Burge1& (1 ), the copy of the writ served on the defendant omitted It was held that the letter "s" in the word "she". the omission was immaterial as it could not mislead · anybody. there was a motion to set aside. the service of the writ of sum- mons for irregularity, on the ground that the defen· dant 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 s. l 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 In another case in the same volume Cooke v. valid. Vaughan ('), held that where a writ of r,apias 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, 1. 4. On behalf of the respondents a number of decisions under the Bills of Sale Act, 1878 and the Amend· ment Act, 1882 ( 45 and 46 Viet. c. 43) were cited. The question in those cases was whether the bill was "in accordance with the form in the schedule to thi1 Act annexed" as required by s. 9 of the Bills of Sale In re Hewt,r, Act 1878, and Amendment Act 1882. Ex parte Kahen ('), it was held that a "true copy" of a bill of sale within the Bills of Sale Act, 1878, s. 10, sub-s. 2, must not necessarily . be an exact copy, 10 long as any errors or omissions in the copy filed are merely clerical and of such a nature that no one t I\ 149 J!.R. 1291. (11 150 £.R. 13ff. (2) 150 l!.R. 51. 1tJ (1882) 21 Ch. O, 871, .1111 M•rMka RllllA1J il}'Q171 Rt11ft Xum•' •• Sitttti D•s J. 3 S.C.R. SUPREME COURT REPORTS 687 would be thereby misled. The same view was expres1ed in several other decisions and it is un · ncceasar}I 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 It means a copy so true that nobody exact copy. 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 peraon. Applying that test we have come to the condusion 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 1ub-s. (3) of s. 90 was not attracted and there was no question of dimissing 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. 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 aa re- quired 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. We think that this contention has been suffi· ciently 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 J96J Mumu Raihe7 Sh7.,. Rom Kama •• 11.••P Singh /J•s J. 588 SUPREME COURT REPORTS (1964] VOL. ' 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 "1uch and 1uch" on "such and such date" before me". The verification of the affidavit of the peti- tioner is apparently not in the pre1cribed form but reading as a whole the verification carries the word1 the same sense as intended by mentioned form. The the prescribed mistake of the Oaths Commissioner in verifying ·the affidavit cannot be a 1ufficient ground for dismissal of the petitioner's petition summarily, as the provhions of s. 83 are not nece11arily to be complied with in order to make a petition valid and 1uch 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 in the verification due to think that the defect 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 o( 1962, the defect as to the time and place of veri- fication is, as we have said earlier, not a fatal defect. It is a matter which comes within cl. ( c) o( sub-s. (I) of s. 83 and the defect' can be remedied in accordance with the principles of the Codeof 3 S.C.1,l. SUPREME COURT REPORTS 589 relating Civil Procedure the verification of pleadings. As to the four enclosures which were not re-produced in the copy served on the appellant, In the original petition there the position was this. was an endorsement to the following effect : Mllf'a1ka Rotih1J Shyam Ram Emar Y. R.,; Sin1h R1t"'11 Dos J, "Enclosed :

#1. Two copies of the gmunds 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 nomi- nation dated 22· 1-1962.

#4. Vakalatnama duly stamped." 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 returnin!{ officer rejecting 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 copv or the rejection of the nomination paper was verified to be a true copy and we fail to see how any further sig"nature of the petitioner was necessary thereon. It is obvious to us that a copy or the vakalatnama was not required under sub-s. s. 81 nor was it necessary to make a further endorse- ment that two copies of the petition had been filed along with the petition. It is not disputed that copies as required by sue b·s.(3) of s. 81 were filed. made is that the endorsement The only "two copies" was not repated in the enclosure · portion of the copy served on the appellant. We 590 SUPREME COURT REPORTS [1964] VOL. 196J. Murar!ra Shyam ,Ram Eum:ir •• ll.Hp Sinth Rathor1 DIU J. have already explained what is meant by the word "copy" in sub·s. (3) ofs. 81 and we are of the view t:1at the defects pointed out on behalf of the appel- lant are not of such a character as to invalidate the copy which was served on tlie 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 in these two appeals. dismissed with costs. given above; we see no merit The· appeals are accordingly A. ppeals diamisstd. 1911 May 7. SUBODH GOPAL BOSE ti, AJIT KUMAR HALDAR AND OTHERS (B. P. SINHA CJ., J.C. SHAH and N. RAJAGOPALA AYYANGAR JJ.) Reveftue Sale-Suit for rteovery of tJO"Mlion °". a""ul- ment nf eneumbranee-Exeeution of decre• during the pmdeney of appeal but before amendment of law-Abatemont of aui!- BeMgal Land Revenue Sales Act, 1859 (XI of 1859), 1. 37- Bengal Land Revenue Sales (West Be,.gal Ame11dmmt) Act, 1950 (W .B. VII of 1950), "· 4,7. The appellant purchased a Touzi at a revenue •ale help under the Bengal Land Revenue Sales Act, 1859, annuUep