# Nawab Kazim Ali Khan Election v. Mohd. Abdullah Azam Khan

- **Citation:** (2020) 1 ILRA 834
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-17
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nawab-kazim-ali-khan-election-v-mohd-abdullah-azam-khan-45288
- **Pages:** 19

## Headnote

A. Representation of People Act, 1951 -
Section 81 (3), 86(1) - Election Petition -
Procedure - Service of copy of Election
Petition - Effect of minor variation
bearing no substance - Mere absence of
copy of a page bearing seal and stamp of
the Stamp Vendor in the true copy of the
election petition cannot be construed to
be an omission or variation of vital nature
- Even if, it could be construed as a
defect, it was not a defect of vital nature
attracting the consequences of Section
86(1) - There was no failure on the part
of the election-petitioner to comply with
the last part of Section 81(3) of the Act -
Copy of the election petition served by
the
election
petitioner
upon
the
respondent is the true copy of the
election petition filed by the petitioner -
Held,
election
petition
cannot
be
dismissed on allegation of failure to
comply the provisions of Section 81 of the
Act. (Para 9 & 13)

B. Constitution of India - Article 173 -
Representation of People Act, 1951 -
Election Petition - Cause of Action -
Objection on the ground of lack of cause
of action - Sole ground of election
petition is that the respondent was less
than 25 years of age and was not
qualified to contest the election for
Member of the Legislative Assembly in
view of Article 173(b) - The concise
statement of material facts have been
stated in election petition - Respondent
has not disputed the correctness of the
834 INDIAN LAW REPORTS ALLAHABAD SERIES
roll no., his name, parents name and date
of birth - Prima facie, the respondent was
ineligible to contest the election in view
of Article 173(b) - Held, objection of the
respondent regarding cause of action
deserves to be rejected. (Para 14 & 15)
C. Representation of People Act, 1951 -
Section 81, 82, 83, 86, 100 and 101 -
Election Petition - Pleading - Concise
statement of material fact - Effect -
Section 81(1) provide that an election
petition calling in question any election
may be presented on one or more of the
grounds specified in Sub-Section (1) of
Section 100 and Section 101 - Section 83
(1) (a) provides for contents of the
election
petition
requiring
that
an
election petition shall contain a concise
statement of the material facts on which
the petitioner relies - Under Section
86(1),
an
election
petition
can
be
dismissed by the High Court, if it does not
comply with the provisions of Section 81
or 82 or 117 - Election petition filed on
sole ground that respondent was not
qualified as his age was below the
minimum prescribed age and in support
thereof copy of Secondary School Exam
Result,
2007
filed
-
Held,
Election
petition
contains
material
facts
and
particulars
and
therefore,
the
third
objection of the respondent deserves
rejection. (Para 19, 25 & 27)
D. Election Petition - Pleading - Material
facts and Particulars - Distinction - Facts
which
are
essential
to
disclose
a
complete cause of action are 'material
facts' and are essentially required to be
pleaded - Particulars are details of the
case set up by the party and are such
pleas which are necessary to amplify,
revise or explain material facts - Function
of 'particulars' is to present a full picture
of the cause of action to make the
opposite party understand the case that
has been set up against him which he has
required to meet. (Para 23)

Objection
to
the
Election
Petition
rejected. (E-1)

List of cases cited :-

## Text

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1 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
833
therefore, cannot be persuaded to have a
pre-trial before the actual trial begins. A
threadbare discussion of various facts and
circumstances, as they emerge from the
allegations made against the accused, is
being purposely avoided by the Court for
the reason, lest the same might cause any
prejudice to either side during trial. But it
shall suffice to observe that the perusal of
the complaint, the summoning order and
also all other the material available on
record makes out a prima facie case
against the accused at this stage and this
Court does not find any justifiable ground
to set aside the impugned order refusing
the discharge of the accused. This court
has not been able to persuade itself to hold
that no case against the accused has been
made out or to hold that the charge is
groundless.

24. The prayer for quashing or
setting aside the impugned order is refused
as I do not see any illegality, impropriety
and incorrectness in the impugned order or
the proceedings under challenge. There is
absolutely no abuse of court's process
perceptible in the same. The present matter
also does not fall in any of the categories
recognized by the Hon'ble Supreme Court
which might justify interference by this
Court in order to upset or quash them.

25. The present revision lacks merit
and is, accordingly, rejected.
----------
(2020)1ILR 834

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2019

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.

Election Petition No. 8 OF 2017
Nawab Kazim Ali Khan ...Election Petitioner
Versus
Mohd. Abdullah Azam Khan ...Respondent

Counsel for the Petitioner:
Sri Sayed Fahim Ahmad, Sri Anurag
Asthana, Sri N.K. Ali Khan (In Person), Sri
Rahul Agarwal, Ms. Kalpana Sinha, Sri
Navin Sinha

Counsel for the Respondent:
Sri N.K. Pandey, Nazia Rafiq Khan, Sri
Safdar Ali Kazmi

A. Representation of People Act, 1951 -
Section 81 (3), 86(1) - Election Petition -
Procedure - Service of copy of Election
Petition - Effect of minor variation
bearing no substance - Mere absence of
copy of a page bearing seal and stamp of
the Stamp Vendor in the true copy of the
election petition cannot be construed to
be an omission or variation of vital nature
- Even if, it could be construed as a
defect, it was not a defect of vital nature
attracting the consequences of Section
86(1) - There was no failure on the part
of the election-petitioner to comply with
the last part of Section 81(3) of the Act -
Copy of the election petition served by
the
election
petitioner
upon
the
respondent is the true copy of the
election petition filed by the petitioner -
Held,
election
petition
cannot
be
dismissed on allegation of failure to
comply the provisions of Section 81 of the
Act. (Para 9 & 13)

B. Constitution of India - Article 173 -
Representation of People Act, 1951 -
Election Petition - Cause of Action -
Objection on the ground of lack of cause
of action - Sole ground of election
petition is that the respondent was less
than 25 years of age and was not
qualified to contest the election for
Member of the Legislative Assembly in
view of Article 173(b) - The concise
statement of material facts have been
stated in election petition - Respondent
has not disputed the correctness of the
834 INDIAN LAW REPORTS ALLAHABAD SERIES
roll no., his name, parents name and date
of birth - Prima facie, the respondent was
ineligible to contest the election in view
of Article 173(b) - Held, objection of the
respondent regarding cause of action
deserves to be rejected. (Para 14 & 15)
C. Representation of People Act, 1951 -
Section 81, 82, 83, 86, 100 and 101 -
Election Petition - Pleading - Concise
statement of material fact - Effect -
Section 81(1) provide that an election
petition calling in question any election
may be presented on one or more of the
grounds specified in Sub-Section (1) of
Section 100 and Section 101 - Section 83
(1) (a) provides for contents of the
election
petition
requiring
that
an
election petition shall contain a concise
statement of the material facts on which
the petitioner relies - Under Section
86(1),
an
election
petition
can
be
dismissed by the High Court, if it does not
comply with the provisions of Section 81
or 82 or 117 - Election petition filed on
sole ground that respondent was not
qualified as his age was below the
minimum prescribed age and in support
thereof copy of Secondary School Exam
Result,
2007
filed
-
Held,
Election
petition
contains
material
facts
and
particulars
and
therefore,
the
third
objection of the respondent deserves
rejection. (Para 19, 25 & 27)
D. Election Petition - Pleading - Material
facts and Particulars - Distinction - Facts
which
are
essential
to
disclose
a
complete cause of action are 'material
facts' and are essentially required to be
pleaded - Particulars are details of the
case set up by the party and are such
pleas which are necessary to amplify,
revise or explain material facts - Function
of 'particulars' is to present a full picture
of the cause of action to make the
opposite party understand the case that
has been set up against him which he has
required to meet. (Para 23)

Objection
to
the
Election
Petition
rejected. (E-1)

List of cases cited :-
1. Murarka Radhey Shyam Ram Kumar v. Roop
Singh Rathore, AIR 1964 SC 1545

2. Ch. Subbarao v. Member, Election Tribunal,
Hyderabad, AIR 1964 SC 1027

3. T. M. Jacob v. C. Poulose and others (1999)
4 SCC 274 and it held as under:-

4. Sahodrabai Rai v. Ram Singh Aharwar and
others (1968) 3 SCR 13 : AIR 1968 SC 1079

5.
A.
Madan
Mohan
v.
Kalavakunta
Chandrasekhara, (1984) 2 SCC 288

6. U. S. Sasidharan v. K. Karunakaran and
another, AIR 1990 SC 924

7. Mahendra Pal v. Ram Dass Malanger and
others, (2000) 1 SCC 261

8. Anil Vasudev Salgaonkar (2009) 9 SCC 310

9. Mulayam Singh Yadav v. Dharampal Yadav
and others, 2001(5) SC 242

10. Jyoti Basu and others vs. Debi Ghosal and
others, AIR 1982 SC 983(1)

11. M. Karunanidhi v. H. V. Handa and others,
AIR 1983 SC 558

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri N. K. Pandey along with
S. A. Kazmi, learned counsel for the
respondent-objector and Sri Navin Sinha,
learned Senior Advocate assisted by Ms.
Kalpana Sinha, learned counsel for the
Election-petitioner
on
the
following
applications:-

(i) Paper No. A-11 being
application no. 3 of 2018 under Section
151 C.P.C. praying to dismiss the election
petition as not maintainable under Section
86(1) of the Representation of People Act,
1951.
1 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
835

(ii) Paper No. A-10 being
application no. 3 of 2018 under order VI
Rule 16 read with Order 7 Rule 11(a) of
the Code of Civil Procedure praying to
struck off paragraph nos. 7 to 28 of the
election petition and to dismiss the
election petition for want of cause of
action under the provision of order 7 Rule
11(a) C.P.C.

With the consent of learned
counsels
for
the
parties
both
the
applications are being heard together for
disposal.

Submission
of
the
applicant/respondent-objector:-

2.
Learned
counsel
for
the
applicant/respondent-objector submits as
under:

(i) Copy of news item dated
28.01.2017 as referred by the election
petitioner in the representation dated
28.01.2017 filed before the Returning
Officer has not been filed along with the
election petition. Page No. 37 of the
original election petition, which is the
reverse page of the stamp paper bearing
seal of the Stamp Vendor, has not been
annexed with the copy of the election
petition served upon the respondentobjector. Therefore, the copy of the
election
petition
served
upon
the
respondent-objector can not be said to be
true
copy
of
the
election
petition.
Therefore, the election petition deserves to
be dismissed as per the provisions of
Section 86(1) of the Representation of
People Act, 1951.

(ii) The election petitioner has
stated in Paragraph 25 (iii) and (iv) of the
election petition that the respondentobjector has filled-up the examination
form and admission form while appearing
in Class X examination conducted by
CBSE Board, 2007. He has sworn the said
paragraph
on
the
basis
of
record.
Therefore, he must have filed copies of the
examination form and the application form
along with the election petition which has
not been done. Thus, the election petition
has been filed without annexing material
documents and in the absence thereof, the
election petition cannot be said to be true
copy of the election petition in view of the
law laid down by the Hon'ble Supreme
Court in U. S. Sasidharan v. K.
Karunakaran and another, AIR 1990 SC
924 (para 15, 16 and 17).

(iii) No cause of action arose to
the election petitioner to file the election
petition, since the date of birth of the
respondent is 30.09.1990 and at the time
of filing of the nomination form, he had
attained the age of 25 years in terms of the
provisions contained in Article 173(b) of
the Constitution of India. Thus, in absence
of any cause of action, the election petition
deserves to be dismissed under Order VII,
Rule 11(a) C.P.C. and the pleadings made
by the election petitioner deserves to be
struck off under Order VI, Rule 16 C.P.C.

3. In support of his submissions Sri
Pandey has relied upon the judgments of
Hon'ble Supeme Court in Rajendra Singh
v. Usha Rani, 1984 (3) SCC 339,
Mithilesh Kumar Pandey v. Baidyanath
Yadav and others, (1984) 2 SCC 1 (para
9, 15 and 17), M. Karunanidhi v. H. V.
Handa and others, AIR 1983 SC 558
(para 13, 27 and 38 to 42), Jyoti Basu
and others vs. Debi Ghosal and others,
AIR 1982 SC 983(1) (para 7 and 8),
Mulayam Singh Yadav v. Dharampal
Yadav and others, 2001(5) SC 242 (paras
7, 11, 12 and 13) and a judgment of this
Court passed by learned Single Judge,
dated 10.02.1992 in Election Petition no. 6
836 INDIAN LAW REPORTS ALLAHABAD SERIES
of 1991( Jagram Singh v. Pritam Singh
and others).

Submission
of
the
Election
Petitioner.

4. Sri Navin Sinha, learned Senior
Advocate appearing for the election
petitioner submits as under:-

(i) The election petition contains
all material facts and particulars. The
election petition has been filed solely on
the ground that the respondent was not
qualified to contest the election for
Member of Legislative Assembly, in
view of the provision of Article 173(b) of
the Constitution of India, inasmuch as
the respondent was less than 25 years of
age when he had filed nomination and
contested
from
34,
Suar,
District
Rampur Constituency. In support of the
ground of challenge taken by the election
petitioner, material facts have been stated
in paragarph no. 25 of the Election Petition
and along with the Election Petition, the
copy of Class X result, bearing Roll No.
5260139 has been filed in which the date
of birth of the respondent is clearly
mentioned as 01.01.1993. The aforesaid
copy of mark-sheet of the Class X result
has been downloaded from the official
website of CBSE Board. The respondentobjector has not said even a word in his
entire
preliminary
objection
or
the
application under Order VI Rule 16 read
with Order VII Rule 11(a) C.P.C.
disputing the genuineness of the aforesaid
copy of the mark-sheet.

(ii) The relevant facts have been
stated in the election petition which clearly
discloses a cause of action to file the
election petition. The application under
Order VI, Rule 16 read with Order VII
Rule 11(a) C.P.C. filed by the respondent
is wholly without merit and, therefore,
deserves to be dismissed. The preliminary
objections are completely merit less and,
therefore, it also deserves to be rejected.

(iii) The provision of Section
86(1) of the Representation of People Act,
1951, does not refer to Section 83 of the
Act. Therefore, application under Section
86 (1) of the Act cannot be entertained
with respect to the contents provided in
Section 83 of the Act. Its scope is confined
with reference to the provisions of
Sections 81, 82 or Section 117 of the Act.

5. In support of his submissions Sri
Sinha has relied upon the judgments of
Hon'ble Supreme Court in Mahendra Pal v.
Ram Dass Malanger and others, (2000) 1
SCC 261( para 4, 7 and 32), Anil Vasudev
Salgaaonkar v. Naresh Kushali Shigaonkar,
(2009) 9 SCC 310 (para 39, 40 to 43, 50 to
58 and 61), Sahodrabai Rai v. Ram Singh
Aharwar and others, AIR 1968 SC 1079
(paras 1, 2, 10, 11 and 12), A. Madan
Mohan v. Kalavakunta Chandrasekhara,
(1984) 2 SCC 288 (paras 2, 3, 10 to 15) and
T. M. Jacob v. C. Poulose and others, (1999)
4 SCC 274 (paras 38, 39 and 40).

Discussion and findings.

6. The submissions of learned
counsels for the parties as afore-noted
gives rise to the following questions which
are being formulated with the consent of
learned counsels for the parties for
determination in this appeal.

Question No. A Whether copy
of election petition served by the electionpetitioner upon the respondent is the true
copy of the election petition filed by him?

Question No. B Whether no
cause of action arose to the electionpetitioner to file the election petition?
1 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
837

Question No. C Whether the
election petition has not been filed with
copies of material documents and whether
it does not contain material facts and
particulars?

Question No. 'A':

7. The only contention of the
respondent-objector to allege that the copy
of election petition served upon him is not
the true copy of the election petition filed
by the election-petitioner, is that Page No.
37 has not been annexed in the copy of the
election petition served upon him. This
allegation has been denied by the election
Petitioner.

8. Page No. 37 is the back side of the
Stamp paper of Rs. 10/- bearing stamp and
seal of the Stamp Vendor put by him while
selling the stamp paper to the respondent.
Copy of the front page of the aforesaid
stamp paper of Rs. 10/- filed as Page 36 of
the Election Petition bears declaration of
annexing affidavit in Form-26 along with
Nomination Form. It bears signature of the
respondent and stamp and seal of the
Notary. That, apart the submission of the
election-petitioner is that the copy of Form
26 filed by the respondent under Rule 4
which forms part of his nomination has
been filed as Annexure-1 to the election
petition.

9. Mere absence of copy of a page
bearing seal and stamp of the Stamp
Vendor in the true copy of the election
petition supplied by the petitioner to the
respondent can not be construed to be an
omission or variation of vital nature.
Therefore even if, it could be construed as
a defect, it was not a defect of vital nature
attracting the consequences of Section
86(1) of the Representation of People Act,
1951 (hereinafter referred to as the 'Act').
Therefore, I hold that there was no failure
on the part of the election-petitioner to
comply with the last part of Sub-Section 3
of Section 81 of the Act. Consequently,
Section 86(1) of the Act is not attracted
and the election petition cannot be
dismissed on allegation of failure to
comply the provisions of Section 81 of the
Act. It is not that every minor variation
in form but it is only a vital defect in
substance which can lead to a finding of
non-compliance with the provisions of
Section 81(3) of the Act with the
consequences under Section 86(1) to
follow.

10. In Murarka Radhey Shyam Ram
Kumar v. Roop Singh Rathore, AIR 1964
SC 1545, a Constitutional Bench of
Hon'ble Supreme Court elaborately dealt
with the question that the word "copy"
occurring in Section 81(3) of the Act mean
an absolutely exact copy or does it mean a
copy so true that nobody could by any
possibility
misunderstand
it.
After
referring to catena of authorities, the
Constitution Bench held that the test to
determine whether a copy was a true one
or not was to find out whether any
variation from the original was calculated
to mislead a reasonable persons. The
Constitution Bench opined :-

"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
838 INDIAN LAW REPORTS ALLAHABAD SERIES
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-section (3) of
section 81. In that view of the matter subsection (3) of Section 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 Section 81."

The Bench also opined :

"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. Subsection (3) of Section 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-section
(3) of Section 81. On behalf of the
appellant the argument is that sub-section
(3) of Section 81 being mandatory in
nature all the requirements of the subsection 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 the original. Alternatively, the
argument is that the last part of subsection (3) dealing with a copy is merely
directive, and for the reliance is placed on
the decision of this Court in Kamaraja
Nadar v. Kunju Thevar (AIR 1958 SC
687). We are of the view that the word
'copy' in sub-section (3) of Section 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, Third Edn., Vol. 4, p. 3098). In
this view of the matter it is unnecessary to
go into the further question whether any
part of sub-section (3) of section 81 is
merely directory."
(Emphasis supplied by me)

11. Similar view was taken by
another
Constitution
Bench
in
Ch.
Subbarao v. Member, Election Tribunal,
Hyderabad, AIR 1964 SC 1027, wherein
it was held that the expression 'copy'
occurring in Section 81(3) of the Act did
not mean an exact copy but only one so
true that no reasonable person could by
any possibility misunderstand it as not
being the same as the original.

12. This question was again
considered
by
another
Constitutional
Bench of Hon'ble Supreme Court in T. M.
Jacob v. C. Poulose and others (1999) 4
SCC 274 and it held as under:-

35.The object of serving a "true
copy" of an election petition and the
affidavit
filed
in
support
of
the
allegations of corrupt practice on the
respondent in election petition is to
enable the respondent to understand the
charge against him so that he can
effectively meet the same in the written
statement and prepare his defence. The
requirement is, thus, of substance and
not of form.

36.The expression "copy" in
section 81(3) of the Act, in our opinion,
means a copy which is substantially so
and which does not contain any material
or substantial variation of a vital nature
as could possibly mislead a reasonable
person to understand and meet the
charges/allegations made against him in
the election petition. Indeed a copy which
differs in material particulars from the
1 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
839
original cannot be treated as a true copy of
the original within the meaning of section
81(3) of the Act and the vital defect cannot
be permitted to be cured after the expiry of
the period of limitation.

39.Applying the test as laid down
in Murarka Radhey Shyam Ram Kumars
case (supra), to the fact situation of the
present case, we come to the conclusion
that the defects complained of in the
present case were not such as could have
misled the appellant at all. The nonmention of the name of the Notary or the
absence of the stamp and seal of the
Notary in the otherwise true copy
supplied to the appellant could not be
construed to be omission or variation of a
vital nature and, thus, the defect, if at all
it could be construed as a defect, was not
a defect of any vital nature attracting the
consequences of Section 86(1) of the Act.
Under the circumstances, it must be held
that there was no failure on the part of the
election petitioner to comply with the last
part of sub-section (3) of Section 81 of the
Act and, under the circumstances, Section
86(1) of the Act was not attracted and the
election petition could not have been
dismissed by reason of the alleged failure
to comply with the provisions of Section 81
of the Act. In this connection, it is also
relevant to note that the appellant,
neither in the memo of objections nor in
the
written
objections
or
in
C.M.P.No.2903 of 1996 has alleged that
he had been misled by the absence of the
name, rubber stamp and seal of the
Notary on the copy of the affidavit
supplied to him or that he had been
prejudiced to formulate his defence. Even
during the arguments, learned counsel for
the appellant was not able to point out as
to how the appellant could have been
prejudiced by the alleged omissions on the
copy of the affidavit served on him.

40. In our opinion it is not every
minor variation in form but only a vital
defect in substance which can lead to a
finding of non-compliance with the
provisions of Section 81(3) of the Act
with the consequences under Section
86(1) to follow. The weight of authority
clearly indicates that a certain amount of
flexibility
is
envisaged.
While
an
impermissible deviation from the original
may entail the dismissal of an election
petition under Section 86(1) of the Act, an
insignificant variation in the true copy
cannot be construed as a fatal defect. It
is, however, neither desirable nor possible
to catalogue the defects which may be
classified as of a vital nature or those
which are not so. It would depend upon
the facts and circumstances of each case
and no hard and fast formula can be
prescribed.
The
tests
suggested
in
Murarka Radhey Shyam case (supra) are
sound tests and are now well settled. We
agree with the same and need not repeat
those tests. Considered in this background,
we are of the opinion that the alleged
defect in the true copy of the affidavit in
the present case did not attract the
provisions of Section 86 (1) of the Act for
alleged non-compliance with the last part
of Section 81(3) of the Act and that there
had been substantial compliance with the
requirements of Section 81(3) of the Act in
supplying "true copy" of the affidavit to
the appellant by the respondent.
(Emphasis supplied by me.)

13. Thus, absence of Page No. 37 in
the copy of the election petition served
upon the respondent which merely copy of
back page of the stamp paper containining
stamp and seal of the Stamp Vendor,
cannot be said to be a variation in the copy
of the election petition from the original
calculated to mislead a reasonable person.
840 INDIAN LAW REPORTS ALLAHABAD SERIES
It is not a defect of vital nature or a
substantial variation. Therefore, the copy
of the election petition served by the
election petitioner upon the respondent is
the true copy of the election petition filed
by the petitioner. Consequently, objection
in this regard by the respondent is rejected.
Question
No.
'A'
is
answered
accordingly.

Question No. 'B' - "Whether no
cause of action arose to the electionpetitioner to file the election petition?"

14. The present election petition has
been filed solely on the ground that the
respondent was not qualified to contest the
election for Member of the Legislative
Assembly in view of Article 173(b) of the
Constitution of India, inasmuch as the
respondent was less than 25 years of age
when he filed his nomination paper and
contested the election from 34, Suar,
District Rampur constituency. The concise
statement of material facts in support of
the ground as aforesaid, have been stated
by the election-petitioner in Sub paras (i)
to (iv) of Paragraph No. 25 of the petition.
In Sub para (iv) the election-petitioner has
stated that the Central Board of Secondary
Education has issued Secondary School
Examination (Class X) result bearing the
roll no., name, mother's name and father's
name. Sub-paras (iv) and (v) of Para 25 of
the Election Petition are reproduced
below:

"(iv) That the Central Board for
Secondary Education has issued the
Secondary School Examination (Class-X)
result bearing the roll number, name,
mother's name and father's name and date
of birth of respondent Mohd. Abdullah
Azam Khan. As per the certificate, the
mother of respondent is Tazeen Fatima
and his father is Mohd. Azam Khan. The
date of birth as recorded in the certificate
for Secondary School Examination (ClassX) results of the respondent Mohd.
Abdullah Azam Khan is 01.01.1993. A
copy of the certificate for Secondary
School Examination (Class-X) results of
respondent Mohd. Abdullah Azam Khan
obtained from the Central Board for
Secondary Education is enclosed and
marked as Annexure - 4 to this petition.

(v) That the respondent Mohd.
Abdullah
Azam
Khan
appeared
in
Intermediate examination in the year 2009
from St Paul's School, Rampur. The said
papers and records are available with St.
Paul's School, Rampur and the Central
Board for Secondary Education (CBSE),
Delhi."

15. Respondent has not disputed
before me the correctness of the roll no.,
his name, parents name and date of birth
as mentioned in the web copy of
Secondary School Exam Result, 2007
available on the website of Central Board
of Secondary Education. During the course
of dictation of this order, learned counsel
for the respondent interrupted and stated
that the respondent has recently applied to
the Central Board of Secondary Education
for correcting his date of birth as
30.09.1990 in place of recorded date of
birth i.e. 01.01.1993. Even this statement
made
by
learned
counsel
for
the
respondent cannot take away the cause of
action which arose to the electionpetitioner to file the present election
petition inasmuch as the date of birth of
the respondent at the time of filing of the
nomination paper and at the time of
contesting the election in question was
01.01.1993, as per his Class X mark-sheet/
certificate and, thus, prima facie, the
respondent was ineligible to contest the
1 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
841
election in view of the provisions of
Article 173(b) of the Constitution of India.
Thus, the objection of the respondent
regarding cause of action, deserves to be
rejected and is hereby rejected. Question
No. 'B' is answered accordingly.

Question No. 'C' - "Whether the
election petition has not been filed with
copies of material documents and
whether it does not contain material
facts and particulars?"

16. In the preceding Paragraph Nos.
14 and 15, I have briefly noted the facts
with regard to cause of action which arose
to the election-petitioner to file the present
election petition. The election-petitioner
has brought on record copy of the
Secondary School Exam Result, 2007 of
the respondent which prima facie indicates
that the date of birth of the respondent is
01.01.1993. Along with the election
petition the election-petitioner has also
filed copy of nomination papers alongwith
supporting
affidavit
filed
by
the
respondent which indicates that respondent
has mentioned his date of birth in the
nomination paper as 30.09.1990 on the
basis
of
a
birth
certificate
dated
21.01.2015 registered by the Registrar (
birth and death) on 21.01.2015. In Sub
para (vi) of Paragraph No. 25 of the
election petition, the election-petitioner
had stated as under:-

"(vi) That the petitioner has
made best efforts to get the admission
form, examination form as also documents
pertaining
to
the
Intermediate
Examination of the respondent Mohd.
Abdullah Azam Khan, but has not been
able to get the same. The petitioner has
only been able to get the certificate for
Secondary School Examination (Class-X)
results of the respondent from the Central
Board of Secondary Education."

17. The election-petitioner has filed a
list of documents to be relied upon by him,
as under:-

"1. Complete set of nomination
papers along with other documents of
respondent - Mohd. Abdullah Azam Khan.

2. Certified copy of Affidavit in
Form-26 filed by the respondent- Mohd.
Abdullah Azam Khan.

3. Copy of the Secondary School
Examination (Class X) Results of the
respondent - Mohd. Abdullah Azam issued
by the Central Board of Secondary
Education.

4. Admission Form filled by
respondent - Mohd. Abdullah Azam Khan
in his own handwriting of St. Paul's
School, Rampur.

5. Examination Form filled up by
respondent - Mohd. Abdullah Azam Khan
in his own handwriting for appearing in
High School Examination conducted by
the
Central
Board
of
Secondary
Education.

6. Such order and further
documents as may be necessary to prove
the election petitioner's case."

18. Sections 81, 82, 83 and 86 are
relevant for the purposes of deciding on
the facts of the present case, Question No.
C which are reproduced below:-

The Representation of the People
Act, 1951.

"81. Presentation of petitions.--
(1) An election petition calling in question
any election may be presented on one or
more of the grounds specified in [subsection (1)] of section 100 and section 101
to the [High Court] by any candidate at
842 INDIAN LAW REPORTS ALLAHABAD SERIES
such election or any elector [within fortyfive days from, but not earlier than the
date of election of the returned candidate
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
subsection, "elector" means a person who was
entitled to vote at the election to which the
election petition relates, whether he has
voted at such election or not.

(2) [omitted]

[(3) Every election petition shall
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 a true copy of the petition.]

82. Parties to the petition.--A
petitioner shall join as respondents to his
petition--

(a) where the petitioner, in
addition to claiming 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 further
declaration is claimed, all the returned
candidates; and

(b) any other candidate against
whom allegations of any corrupt practice
are made in the petition.]

[ 83. Contents of petition.--(1)
An election petition--

(a) shall contain a concise
statement of the material facts on which
the petitioner relies;

(b) shall set forth full particulars
of any corrupt practice that the petitioner
alleges, including as full a statement as
possible of the names of the parties
alleged to have committed such corrupt
practice and the date and place of the
commission of each such practice; and

(c ) shall be signed by the
petitioner and verified in the manner laid
down in the Code of Civil Procedure, 1908
(5 of 1908) for the verification of
pleadings:

[Provided
that
where
the
petitioner alleges any corrupt practice, the
petition shall also be accompanied by an
affidavit in the prescribed form in support
of the allegation of such corrupt practice
and the particulars thereof.]

(2 ) Any schedule or annexure to
the petition shall also be signed by the
petitioner and verified in the same manner
as the petition.]

86. Trial of election petitions .--
(1 ) The High Court shall dismiss an
election petition which does not comply
with the provisions of section 81 or section
82 or section 117.

Explanation .--An order of the
High Court dismissing an election petition
under this sub-section shall be deemed to
be an order made under clause (a ) of
section 98.

(2 ) As soon as may be after an
election petition has been presented to the
High Court, it shall be referred to the
Judge or one of the Judges who has or
have been assigned by the Chief Justice
for the trial of election petitions under
sub-section (2 ) of section 80A.

(3
)
Where
more
election
petitions than one are presented to the
High Court in respect of the same election,
all of them shall be referred for trial to the
same Judge who may, in his discretion, try
them separately or in one or more groups.

(4 ) Any candidate not already a
respondent shall, upon application made
by him to the High Court within fourteen
days from the date of commencement of
the trial and subject to any order as to
1 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
843
security for costs which may be made by
the High Court, be entitled to be joined as
a respondent.

Explanation .--For the purposes
of this sub-section and of section 97, the
trial of a petition shall be deemed to
commence on the date fixed for the
respondents to appear before the High
Court and answer the claim or claims
made in the petition.

(5 ) The High Court may, upon
such terms as to costs and otherwise as it
may deem fit, allow the particulars of any
corrupt practice alleged in the petition to
be amended or amplified in such manner
as may in its opinion be necessary for
ensuring a fair and effective trial of the
petition,
but
shall
not
allow
any
amendment of the petition which will have
the effect of introducing particulars of a
corrupt practice not previously alleged in
the petition.

(6 ) The trial of an election
petition shall, so far as is practicable
consistently with the interests of justice in
respect of the trial, be continued from day
to day until its conclusion, unless the High
Court finds the adjournment of the trial
beyond the following day to be necessary
for reasons to be recorded.

(7 ) Every election petition shall
be tried as expeditiously as possible and
endeavour shall be made to conclude the
trial within six months from the date on
which the election petition is presented to
the High Court for trial."

19. Section 81(1) of the Act provide
that an election petition calling in question
any election may be presented on one or
more of the grounds specified in SubSection (1) of Section 100 and Section 101
to the High Court by any candidate at such
election or any elector. Undisputedly the
election-petitioner was a candidate in the
election in question. Clause (d) of of Sub
section 1 of Section 100 of the Act are
relevant for the purposes of the sole
ground taken by the election-petitioner in
the election petition to challenge the
election of the respondent that he was not
qualified to contest the election inasmuch
as he has not attained the minimum age as
prescribed in Article 173(b) of the
Constitution of India. Section 83 of the
Act provides for contents of the election
petition. Clause (a) of Sub section 1 of
Section 83 requires that an election
petition shall contain a concise statement
of the material facts on which the
petitioner relies. Perusal of sub paras of
Para 25 of the election petition shows
that the election petition contains a
concise statement of material facts on
which election-petitioner has relied.
Section 86(1) of the Act provides that the
High Court shall dismiss an election
petition which does not comply with the
provisions of Section 81 or 82 or 117 of
the Act. Therefore under Section 86(1) of
the Act, an election petition can be
dismissed by the High Court only if it does
not comply with the provisions of Section
81 or 82 or 117 of the Act.

20. In Sahodrabai Rai v. Ram Singh
Aharwar and others (1968) 3 SCR 13 :
AIR 1968 SC 1079, Hon'ble Supreme
Court considered the provision of Section
81 read with Section 86(1) (Para 12) of the
Act and held as under:-

10. An argument was raised in
this case as to whether Section 86(1) is
mandatory or merely directory. We need
not go into this aspect of the case. In our
opinion, the present matter can be
resolved on an examination of the relevant
facts and the contents of the election
petition as detailed in Section 83 produced
844 INDIAN LAW REPORTS ALLAHABAD SERIES
above. It may be pointed out here that the
trial of election petition has to follow as
far as may be the provisions of the Code
of Civil Procedure. We are therefore of
opinion that it is permissible to look into
the Code of Civil Procedure to see what
exactly would have been the case if this
was a suit and not a trial of an election
petition.

11. Under the Code of Civil
Procedure a suit is commenced by a
plaint. This is provided by Order 4, Rule 1
which says that every suit shall be
instituted by presenting a plaint to the
Court. After the plaint is received O. V.
provides the summoning of the defendants
in the case and r. 2 of that order says that
every summons shall be accompanied by a
copy of the plaint, and if so permitted, by a
concise statement. We then turn to the
provisions of O. VII which deals with the
contents of a plaint. The first rule
mentions the particulars which must be in
a plaint. It is not necessary to refer to
them. The plaint has to be signed and
verified. Rule 9 then provides that the
plaintiff shall endorse on the plaint and
annex thereto a list of documents, if any,
which he has produced along with it and,
if the plaint is admitted, shall present as
many copies on plain paper of the plaint
as there are defendants unless the Court
by reason of the length of the plaint or the
number of defendants, or for any other
sufficient reason, permits him to present a
like number of concise statements of the
nature of the claims made etc. It will be
noticed here that what is required to be
provided are copies of the plaint itself or
the concise statement according to the
number of defendants. There is no mention
here of any other documents of which a
copy is needed to be presented to the
Court for service to the defendants. Then
we come to r. 14 which states that where a
plaintiff sues upon a document in his
possession or power he shall produce it in
court when the plaint is presented and
shall at the same time deliver the
document or a copy thereof to be filed with
the plaint. It will be noticed that he is
required to file only one copy of the
document and not as many copies as there
are defendants in the case. It would
therefore follow that a copy of the
document is not expected to be delivered
with the copy of the plaint to the
answering defendants when summons is
served on them. In the schedules to the
Code of Civil Procedure we have got
Appendix B which prescribes the forms for
summons to the defendants. There is only
one form of summons in Appendix B,
(Form No. 4) in which the copy of the
negotiable instrument is to accompany the
copy of the plaint. That is so, because of
the special law applying to the negotiable
instruments and the time limit within
which pleas to that document have to be
raised and this is only in summary suits.
No other form makes any mention of any
document accompanying the summons
with the copy of the plaint. We need not go
into more details. It is clear that the
documents which are filed with the plaint
have to be accompanied by one copy of
those documents.