# CHANDRAKANT UTTAM CHODANKAR v. SHRI DAY ANAND RA YU MANDRAKAR AND ORS

- **Citation:** [2004] Supp. 6 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 2004-12-15
- **Case number:** Civil Appeal No. 6622 of 2003
- **Bench:** N. Santosh Hegde, S.B. Sinha, Tarun Chatterjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandrakant-uttam-chodankar-v-shri-day-anand-ra-yu-mandrakar-and-ors-20299
- **Pages:** 38

## Headnote

Representation of the People Act, 1951 : Section 86
C
Section 81 and 83-Compliances of-Expiained
Interpretation of Statutes :
Mandatory provision-Strict construction-May not be called for,
D having regard to the text and context of the statute.
Words :
Shall-Use of-May not confer mandatory nature.
E
India Evidence Act, 1872 :
F
,
Section 114(e)-Official acts-Officer of the court-Endorsement made
by-Presumption of correctness-Challenge as to-Held, onus on the party
impeaching it.
Appellant filed election petitions challenging the election of the
returned candidates. Counsel for the respondents appeared before the
court and waived notice on their behalf. The election petitions were
dismiss~d by the High Court for non-compliance of the mandatory
provisions of the Section 81(3), 83(1)(a) and 83(l)(c), 83(2) of the RepG resentation of the People Act, 1951. Hence this appeal.
The respondent contended that the copies of the election petitions
served had defects viz. (1) there was no signature of the election petitioners at page 10 of the petitions after the prayer clause and verificaH tions. (2) the stamp in re~pect of the swearing of the affidavit was also
916
;
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR
917
absent on the copy of the election petitions and, (3) the affidavit accomA
panying the petition also does not bear the signature of the election
petitioners, The copies which were alleged to have been served or supplied to the Respondent No. 1 were not the true copies.
Allowing the appeals, the Court
B
HELD : Per Chatterjee, J. (for himself & for Hegde, J.)
1.1. Under section 116A of the Act Supreme Court is conferred with
power not only to decide an appeal filed under this section on a question
of law but it would also be open to the Supreme Court to decide the C
appeal as facts as well. [925-E]
2.1. Learned Council for the Respondent No. 1 had no authority to
collect copies of the Election Petitions from the Registry of the High
Court before 6th of September 2002 nor was it open to the Registry of the· D
High Court to supply copies of the election petitions to the Learned
Counsel for the Respondent No. 1 before the vakalatnamas were filed on
behalf of the respondent No. 1 i.e. not before 6th of September 2002. Such
being the admitted position, it is difficult to believe that such copies relied
on by the learned counsel for the respondent No. 1 were at all supplied by
the Registry of the High Court to the learned counsel for the respondent
No. 1. That apart, from the records, it does not appear that there was any
endorsement from the side of the learned counsel for the respondent No.
1 to show that he had received copies from the Registry on which they
made out the case for rejection of election petitions. Therefore, the High
Court was not justified in rejecting the election petitions relying on the
copies alleged to have beeri served or supplied to the learned counsel for
the Respondent No. 1 without there being any direction to file
vakalatnamas from the High Court. [927-E-H, 928-A)
E
F
2.2. It is no longer res integra that the onus to prove that a copy
of the election petition is not served on him, must be on the person who G
alleges such fact. Thus in presence of the endorsement of the Assistant
Registrar of the High Court dated 19th of July, 2002 that the election
petitions were in order which would raise a presumption, it would be
for the successful candidate/Respondent No. 1 to rebut such presumption and discharge his initial burden. In this case, the Respondent No. H
918
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
.·A 1 having failed to discharge such onus, it is not open for the Respondent
No. 1 to say that true copies of the election petitions were not filed at
the time of presentation of election petitions. [929-F, G]
2.3. Second part of st:ction 81(3) of the Act, requiring signature of
B the election petitioner is satisfied if the copy is attested by the election
petitioner to be true copies of the election petitions un

## Text

_Characters 0–39,831 of 87,822. This is a partial read: ask again with offset=39831 for what follows._

A
B
CHANDRAKANT UTTAM CHODANKAR
v.
SHRI DAY ANAND RA YU MANDRAKAR AND ORS.
DECEMBER 15, 2004
[N. SANTOSH HEGDE, S.B. SINHA AND
TARUN CHATTERJEE, JJ.]
Representation of the People Act, 1951 : Section 86
C
Section 81 and 83-Compliances of-Expiained
Interpretation of Statutes :
Mandatory provision-Strict construction-May not be called for,
D having regard to the text and context of the statute.
Words :
Shall-Use of-May not confer mandatory nature.
E
India Evidence Act, 1872 :
F
,
Section 114(e)-Official acts-Officer of the court-Endorsement made
by-Presumption of correctness-Challenge as to-Held, onus on the party
impeaching it.
Appellant filed election petitions challenging the election of the
returned candidates. Counsel for the respondents appeared before the
court and waived notice on their behalf. The election petitions were
dismiss~d by the High Court for non-compliance of the mandatory
provisions of the Section 81(3), 83(1)(a) and 83(l)(c), 83(2) of the RepG resentation of the People Act, 1951. Hence this appeal.
The respondent contended that the copies of the election petitions
served had defects viz. (1) there was no signature of the election petitioners at page 10 of the petitions after the prayer clause and verificaH tions. (2) the stamp in re~pect of the swearing of the affidavit was also
916
;
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR
917
absent on the copy of the election petitions and, (3) the affidavit accomA
panying the petition also does not bear the signature of the election
petitioners, The copies which were alleged to have been served or supplied to the Respondent No. 1 were not the true copies.
Allowing the appeals, the Court
B
HELD : Per Chatterjee, J. (for himself & for Hegde, J.)
1.1. Under section 116A of the Act Supreme Court is conferred with
power not only to decide an appeal filed under this section on a question
of law but it would also be open to the Supreme Court to decide the C
appeal as facts as well. [925-E]
2.1. Learned Council for the Respondent No. 1 had no authority to
collect copies of the Election Petitions from the Registry of the High
Court before 6th of September 2002 nor was it open to the Registry of the· D
High Court to supply copies of the election petitions to the Learned
Counsel for the Respondent No. 1 before the vakalatnamas were filed on
behalf of the respondent No. 1 i.e. not before 6th of September 2002. Such
being the admitted position, it is difficult to believe that such copies relied
on by the learned counsel for the respondent No. 1 were at all supplied by
the Registry of the High Court to the learned counsel for the respondent
No. 1. That apart, from the records, it does not appear that there was any
endorsement from the side of the learned counsel for the respondent No.
1 to show that he had received copies from the Registry on which they
made out the case for rejection of election petitions. Therefore, the High
Court was not justified in rejecting the election petitions relying on the
copies alleged to have beeri served or supplied to the learned counsel for
the Respondent No. 1 without there being any direction to file
vakalatnamas from the High Court. [927-E-H, 928-A)
E
F
2.2. It is no longer res integra that the onus to prove that a copy
of the election petition is not served on him, must be on the person who G
alleges such fact. Thus in presence of the endorsement of the Assistant
Registrar of the High Court dated 19th of July, 2002 that the election
petitions were in order which would raise a presumption, it would be
for the successful candidate/Respondent No. 1 to rebut such presumption and discharge his initial burden. In this case, the Respondent No. H
918
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
.·A 1 having failed to discharge such onus, it is not open for the Respondent
No. 1 to say that true copies of the election petitions were not filed at
the time of presentation of election petitions. [929-F, G]
2.3. Second part of st:ction 81(3) of the Act, requiring signature of
B the election petitioner is satisfied if the copy is attested by the election
petitioner to be true copies of the election petitions under their own
signature. The defects as noted above cannot lead as to hold that election
petitions should be rejected for non-compliance of section 81(3) of the
Act as copies served on the respondent No. 1 cannot be treated to be "true
copies" within the meaning of the second part of section 81(3). [931-C, D]
c
D
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR
(1964) SC 1545; Anil R. Deshmukh v. Onkar N. Wagh, [1999] 2 SCC 205
and Ram Prasad Sharma v. Mani Kumar Subba, [2003) 1SCC289, relied
on.
2.4. The defects alleged v.z (1) there was no signature of the election
petitioners at page 10 of the petitions after the prayer clause and
verifications. (2) the stamp in respect of the swearing of the affidavit
was also absent on the copy of the election petitions and, (3) the affidavit
accompanying the petition also does not bear the signature of the elecE tion petitioners, cannot be held to be vital in nature and thereby did not·
entail the High Court to dismiss the election petitions at the preliminary
stage for non-compliance of section 81(3) of the Act, mere omission to
sign by the election petitions in the affidavit accompanyirig the petition
would not also be material. High Court ought not to have rejected the
F election petitions for non-compliance of the provisions of Section 81(3)
of the Act as the defects shown by the Respondent No. 1 cannot be said
to be fatal and the copies which were alleged to have been served or
supplied to the Respondent No. 1 were wholly and substantially the same
as the original. [931-G, H, 932-A, E, 934-A, B]
G
Dr. Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal & Ors., [1996) 5 SCC
181; T.M. Jacob v. C. Poulose and Others, [1999) 4 SCC 274 and T.
Phunyzatha v. H.K. & Ors., [2001) 8 SCC 358, reforred to.
2.5. The onus to prove that a true copy is not served on the person,
H will be on the person alleging such a fact. In presence of a certificate
--
<:
\
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR
919
of the Registry of the High Court that there was no defect in the writ A
petition which would certainly raise a presumption, it would be for the
respondent to rebut that presumption and discharge his initial burden.
In view of the note of the Registry that requisite number of copies had
been duly filed and the election petition was in order. That being the
position, the onus was on the election petitioners to prove that true B
copies of the election petitions were duly filed by him. Moreover, the side
provision is not mandatory in nature. That is to say, the verification i"
the election petition although was defective but that cannot be said to
be fatal to the maintainability of the petition. There was no reason for
the High Court to reject the election petitions at the preliminary stage
on such a technical ground. Mere defect in the verification was not fatal. C
[935-F-H, 937-B, Cj
In F.A. Sopa & Ors. v. Singora & Ors., [1991) 3 SCC 375, relied on.
Satya Narain v. Dhuja Ram & Ors., [1974] 3 SCC 20 and J.P. Goyal
v. Raj Narain & Ors., [1984) 3 sec 339, distinguished on facts.
D
Per S.B. Sinha, J. (concurring)
1.1. The defects alleged viz (1) there was no signature of the election
petitioners at part 10 of the petitions after the prayer clause and verifications. (2) the stamp in respect of the swearing of the affidavit was al:m
absent on the copy of the election petitions and, (3) the affidavit accompanying the petition also does not bear the signature of the election
petitioners would not entail dismissal of the election petition at the
threshold. The defects pointed are curable and only when despite opportunities granted, the defects are not cured, the election petition may be
dismissed. Moreover, correctness or otherwise of a statement made in
the election petition would not entail rejection at the thereshold. A
defective affidavit would not entail dismissal of the election petition.
[942-E-G, 946-G-H, 947-A, CJ
E
F
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR G
(1964) SC 1545; Ch. Subbarao v. Member, Election Tribunal, Hyderabad
and Others, AIR (1964) SC 1027; T.M Jacob v. C. Poulose and Others,
[1999) 4 SCC 274 and Ram Prasad Sarma v. Mani Kumar Subba, [2003)
1 sec 289, relied upon.
Dr. Vijay Laxmi Sabha v. Jagdish, AIR (2001) SC 600; G. H
920
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
Mallikarjunappa and Another v. Shamanur Shivashankarappa and Others,
(2001) 4 SCC 428; Kamalnath v. Sudesh Verma, (2002) 2 SCC 410; Regu
Mahesh alias Reegu Maheshwar Rao v. Rajendra Pratap Bhanj Dev and
Another, (2004] l SCC 410; Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal
& Ors., (1996] 5 SCC 181; Satya Narain v. Dhuja Ram & Ors., (1974) 3
B SCC 20; Rajendra Singh Etc. v. Smt. Usha Rani and Others Etc., (1984]
3 SCC 339; Anil R. Deshmukh v. Onkar N. Wagh, (1999] 2 SCC 205; Dr.
Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal & Ors., [1996] 5 SCC 181 and
T. Phungzathang v. Hangkhanlian and Others, (2001) 8 SCC 358, referred
to.
C
1.2.
Statutory requirements of Sections 81 and 83 is met in
D
E
F
G
substantial compliance thereof. (945-E]
2.1. Even where the expression 'shall' is used, the same may not
be held to be mandatory. (947-F]
UP. State Electricity Board v. Shiv Mohan Singh and Anr., (2004) 8
SCALE 475, relied upon.
3.1. Even a mandatory provision having regard to the text and
context of the statute may not call for strict construction. (947-F)
Statutory Construction by Crawford, referred to.
Nasiruddin and Others v. Sita Ram Agarwal, [2003) 2 SCC 577, relied
upon.
4.1. Officer of the court are required to perform administrative
functions which would draw a presumption of having performed in
ordinary course of business in terms of Section 114(e) of the Indian
Evidence Act. A presumption of correctness is attached and the burden
of proof is on the person impeaching it. [952-C; 953-C)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6622 of
2003.
From the Judgment and Order dated 18.7.2003 of the Bombay High
H
Court at Goa in E.P. No. 1 .of 2002.
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.]
921
\VITH
/\.
Civil Appeal No. 6750 of 2003.
Ranjit Kumar, J.E.C. Peraria and Ms. Binu Tamta for the Appellant.
V.P. Thali, Mohit Chaudhary, Ms. Shalini Gupta for the Mis. K.L.
Mehta & Co. for the Respondent No. 1.
M.N. Krishnamani, Bhavanishankar V. Gadnis, Mrs. B. Sunita Rao,
Nitin Popli, Pani and Sushi! K. Pathak for the Respondent No. 2.
The Judgments of the Court was delivered by
T ARUN CHATTERJEE, J. : The appellants in CA No. 6622 of2003
and CA No. 6750 of 2003 are aggrieved by the dismissal of their Election
Petition Nos. I and 2 of 2002 by the Bench of the High Court of Bombay
B
c
on preliminary issues without any trial and have filed these two statutory D
appeals under section I I 6A of the Representation of the People Act, 1951
(in short "the Act") against two separate judgments of the same Bench of
Bombay High Court. Since common questions of law and facts arose in both
the appeals, they were heard together and are being disposed of by this
common judgment.
Facts of the two appeals being practically similar in nature are briefly
stated:-.
E
In the Election Petition being Election Petition No. 1 of 2002 of
Chandrakant Uttam Chodankar out of which C.A. No. 6622/2003 arises, the F
appellant challenged the validity of the Assembly election of Siolim Constituency, Goa under section 86 of the Act in which he contested but the
respondent No. 1 was declared elected. The election of the returned candidate was questioned inter alia on the ground that the returned candidate
(Respondent No. I) on the date of nomination and the date of election of
·the constituency in question was disqualified as he was the Chairman of Goa G
Khadi and Village Industries Board which is a statutory authority and, as
such he was holding an office of profit under the Government of Goa.
So far as the facts of the Election Petition No. 2 of 2002 filed by the
other appellant Jose Philips Domingo D' Souza which has given rise to filing H
922
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A of C.A. No. 6750 of 2003 are concerned, only distinguishing factor was
that in that petition, the constituency and the parties were different and in
addition to the grounds taken in Election Petition No. 1 of2002 an additional
ground for setting aside the Election Petition was also .taken.
B
Both the election petitions were filed on 16th of July 2002. The High
Court issued notice to the parties on 2nd of August, 2002. However, on the
date of preliminary hearing, Mr. Thali, learned counsel along with his junior
appeared on behalf of the respondent No. 1 in both the Election Petitions
and waived notice on their behalf. For requisition of both the election
peti!ions, it was alleged that the learned counsel for the Respondent No. 1
C had collected the election petitions on 2nd of August 2002 from the Registry
of the High Court. On the basis of such copies of the Election Petitions filed
applications under Order VII Rule 11 of the Code of Civil Procedure on 8th
of September 2002 for their rejection on the ground that the election petitioners had failed to comply with the mandatory provisions of section 81(3),
D 83(l)(a)(c) and section 83 (2) of the Act.
E
F
G
However, after the pleadings were complete, the following questions
were framed:
1)
Whether the returned candidates proved that the election
petitions were liable to be rejected under section 81 (1) read
with section 86 of the Act by reason of it being barred by
limitation?
2)
Whether the returned candidates proved that the election
petitions were liable to be rejected in limine under section 86
of the Act by reason of its non-compliance of sections 81(3),
83(l)(a)(c) and 83(2) of the Act?
3)
Whether the respondent No. 1 proved that the election petition
was liable to be rejected under Order VII Rule 11 of the Code
of Civil Procedure read with section 86 of the Act by reason
of non-disclosure of any cause of action?
However, out of the aforesaid three questions, the High Court held the
question Nos. l and 3 in favour of the election petitioners. Since no cross
H objection/ Appeal has been filed by the respondent No. 1 in both the appeals
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.]
923
nor any argument was advanced by the Learned Counsel for Respondent No. A
1 challenging the findings of the High Court relating to question Nos. 1 and
3, we do not feel it necessary to examine the findings of the High Court
relating to question Nos. 1 and 3. Therefore we restrict ourselves only in
relation to Question No. 2.
The High Court in its judgment however divided the Question No. 2
into three parts which are as follows:
B
(i)
Whether the copies of the election petitions supplied by the
appellants and alleged to have been served upon the learned
counsel for the respondent No. 1 by the Registry of the High C
Court were true copies of the election petitions?
(ii) Whether the appellants had served copies of,1he election
petitions to the number of respondents mentioned in
the petitions in compliance with section 81 (3) of the Act or D
not?
(iii) Whether the verification of the election petitions and document was made by the appellant or not ?
However, the High Court rejected both the e_lection petitions of E
the appellants on question No. 1 and 2 and rejected election petition
No. 2 of 2002 also out of which CA No. 6623 of 2003 has arisen, on an
additional ground for non-compliance of section 83(l)(c) of the Act.
Before we take up the aforesaid three questions for our decision, we p
feel it appropriate at this stage to refer to some of the relevant provisions
of the Act.
Chapter II of the Act deals with Election Petitions to High Court.
Section 80 of the Act says that no election shall be called in question G
except by an election petition presented in accordance with the provisions
of part VI of the Act..
Section 80A of the Act confers power on the High Court to try election
petitions. Section 81 of the Act deals with presentation of election petition H
924
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A which reads as under:-
B
c
D
"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 [sub-section(l)] of section 100 and section
101 to the [High Court] by any candidate at such election or any
elector [within forty-five days from, but not earlier than the date
of election of the returned candidate or if there are more than one
returned candidate or ifthere are more than one returned candidate
at the election and dates of their election are different, the later of
those two dates].
2[(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.]"
Section 82 deals with parties to the election petition. Since this provision is not relevant for our purpose, we do not think it necessary to· deal
with this section in this judgment. Then comes section 83 of the Act which
deals with the contents of the Election Petitions. Section 83 is as follows:-
E
"83 Contents of petition -
( 1) An election petitionF
G
(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 pracH
tice, the petition shall also be accompanied by an affidavit in the
•
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.]
925
prescribed form in support of the allegation of sue.~ corrupt practice A
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.]"
Section 86 confers power on the High Court to dismiss an election
petition which does not comply with the provisions of section 81 or 82 or
section l l 7 of the Act. There is yet another section which may also be
relevant for our purpose. This is section l 16A of the Act which deals with
appeals to Supreme Court. Section l 16A of the act reads as under:-
"I l 6A. Appeals to Supreme Court- ( 1) Notwithstanding anything
contained in any other law for the time being in force, an appeal
shall lie to the Supreme Court on any question (whether of law or
fact) from every order made by a High Court under section 98 or
section 99."
(Emphasis supplied)
B
c
D
A bare perusal of section l l 6A of the Act, it is clear that an appeal
shall lie from an order made by the High Court to the Supreme Court on
any question of law and fact. Therefore, under section l 16A of
the Act the Supreme Court is conferred with power not only to E
decide an appeal filed under this section on a question of law but it would
also be open to the Supreme Court to decide the appeal on facts as well.
Keeping the power conferred on this Court under section I l 6A of the
Act that is to say this Court is also conferred with power to decide an appeal
on facts, let us first examine whether the High Court was justified in relying
on the copies of the election petitions which were alleged to have been
served on the Learned Counsel for the Respondent No. 1 in dealing with
the questions in hand.
In support of the prayer for dismissal of the election petitions, the
Respondent No. 1 examined one witness who was the junior of the Learned
Counsel for· Respondent No. 1. In her affidavit - evidence she had stated
that the election petitions were listed on 2nd of August, 2002 and her senior .
Sri Vilas Thali on that date i.e. on 2nd of August, 2002 filed vakalatnamas
F
G
on behalf of Respondent No. I. She also stated that the copies of the election H
926
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A petitions were served on the learned counsel for the respondent No. 1 by
the Registry of the High Court in her presence. She admitted that on 19th
of August, 2002 the bailiff of the Court also served two copies of the election
petitions and a notice of the High Court on the Learned Counsel for Respondent No. 1. She further stated in her deposition that one copy of the
B election petitions was returned to the Assistant Registrar of the High Court
while retaining the notice issued by the Court which accompanied a copy
of the election petition. In cross-examination, she admitted that she had
personal knowledge that her senior Mr. Thali had filed his vakalatnama on
2nd of August, 2002 on behalf of Respondent No. 1 in both the Election
Petitions. However, it appears from the record that the vakalatnamas were
C signed by the Respondent No. I on 4th of August, 2002 and the signed
vakalatnamas were received by the Registry of the High Court on 6th of
September, 2002. She also admitted that her senior Mr.Thali, did not make
any endorsement of having received copies of the election petitions on
behalf of Respondent No. 1 in the ordersheet of the election petitions. The
D High Court, relying on these copies in its judgment inter alia held that the
election petitions were liable to be rejected on the ground that the copies
which were served on the learned counsel for the Respondent No. I were
not true copies of the election petitions. Keeping these facts in mind, let us
now examine whether the copies which were alleged to have been supplied
by the Registry of the High Court to the learned counsel for the Respondent
E No. I could at all be relied on by the High Court. The copies of the election
petitions which were alleged to have been supplie.d by the Registry of the
High Court on the Learned Counsel for the Respondent No. 1 were exhibited.
F
For the reasons mentioned hereinafter, we are of the view that no
reliance could be placed by the High Court on the copies of the Election
Petitions alleged to have been supplied by the Registry of the High Court
to the learned counsel for the respondent No. I.
As said hereinabove, it is not in dispute that two true copies of the
G election petitions were duly served upon the l:earned Counsel for Respondent No. 1 by the bailiff of the High Court after the period of limitation for
filing an election petition under section 86 of the Act was over. We have
carefully examined the copies of the election petitions alleged to have been
supplied to the learned counsel for the Respondent No. 1. From the facts
H stated hereinearlier, it would be difficult for us to hold that reliance could
C.U. CHODANKAR v. SHRI D:R. MANDRAKAR [CHATTERJEE, J.)
927
at all be placed by the High Court on such copies.
A
The first reason is that the High Court ought to have drawn an adverse
inference against the respondent No. 1 for not filing the applications under
Order VII Rule 11 of the Code of Civil Procedure immediately after receiving those copies from the Registry of the High Court as, according to us, B
the Respondent No. 1 ought not to have waited for more than a month to
file the applications under Order VII Rule 11 of the Code of Civil Procedure
for rejection of election petitions when true copies were already served on
the Respondent No. I. That apart, a perusal of the copies alleged to have
been served on the Respondent No. I indicates that copies of the election
petitions which the petitioners did not submit for service were produced by C
the Respondent No. 1 as having been served on the Respondent No. l.
Even otherwise, from the facts narrated earlier, it is clear that on 2nd
of August, 2002 the Learned Counsel for Respondent No. I in both the
election petitions had appeared before the High Court on behalf of RespondD
ent No. 1 without filing any vakalatnama. As said hereinearlier, from the
re<'.ords, it also appears that the vakalatnamas were signed by the Respondent
No. 1 on 4th of August, 2002 and received by the Registry on 6th of
September, 2002. On 19th of August, 2002, Court Bailiff served two true
copies of election petitions on the Learned Counsel for the Respondent No.
1. From the above, it is therefore clear that the Learned Counsel for the "fRespondent No. 1 had no authority to collect copies of the Election Petitions
from the Registry of the High· Court before 6th of September 2002 nor was
it open to the Registry of the High Court to supply copies of the election
petitions to the Learned Counsel for the Respondent No. 1 b~fore the
vakalatnamas were filed on behalf of the respondent No. l i.e. not before p
6th of September 2002. Such being the admitted position, it is difficult to
believe that such copies relied on by the learned counsel for the respondent
No. I were at all supplied by the Registry of the High Court to the learned
-counsel for the respondent No. l. For the reasons aforesaid, we are unable
to hold that in fact the copies alleged to have been served or supplied to
the learned counsel for the respondent No. 1 were at all served or supplied G
by the Registry of the High Court. That apart, from the records, it does not
appear that there was any endorsement from the side of the learned counsel
for the respondent No. 1 to show that he had received copies from the
Registry on which they made out the case for rejection of election petitions.
For the reasons aforesaid, we are therefore of the view that the High Court H
928
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A was not justified in rejecting the election petitions relying on the copies
• alleged to have been served or supplied to the learned counsel for the
Respondent No. 1 without there being any direction to file vakalatnamas
from the High Court.
B
It is an admitted position that true copies of the election petitions were
served upon the Respondent No. I by the Court Bailiff. In the absence of
any material to show that the true copies of the election petitions were not
filed with the election petitions at the time of their presentation and in view
of our discussions herein earlier that no reliance could be placed on the
copies relied on by the High Court, we are unable to sustain the orders of
C the High Court. We are also unable to agree with Mr.Thali that no reliance
could be placed on the true copies served by the Court Bailiff because they
were served after the expiry of the period of limitation. It is difficult to
understand that the period of limitation shall start from the date of serving
the copies and not from the filing of copies of the election petitions. From
D the records it does not appear that such copies were filed after the period
of limitation.
E
For the reasons aforesaid, we may safely conclude that the election
petitions were not liable to be rejected relying on the copies of the election
petitions alleged to have been served upon the Respondent No. I especially
when true copies of the same were duly supplied to the Respondent No. I.
However, when two questions were framed by the High Court and answered
in favour of the Respondent No. I, we feel it appropriate to decide the
appeals also on question Nos. I and 2.
p
Let us now !urn to question No. I first. In our view, the question No.
1 needs to be decided in favour of the appellants for the reasons mentioned
herein below. As noted herein earlier, record shows that the election petitions
as well as the question forms and answers were examined by the Registry
of the High Court. Exhibit RW7 was the Examination Form which was duly
filled in by the appellants. In this Examination Form Question No. 3 was
G as follows: -
H
"Q.3 Whether copies of the Petition and accompanying papers are
also supplied for being made available to the Respondents and, if
the sets of these copies are duly attested by the Petitioner under his
own signature as true copy?"
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.]
929
The answer to this question No. 3 from the appellants was 'Yes'. In A
the Examination Form (RW7), the Assistant Registrar at the end made an
endorsement on 19th of July, 2002 to the following effect:-
"The petition is in order. We may direct the petition to be registered
as election petition."
(Emphasis supplied).
From the aforesaid endorsement of the Assistant Registrar and in view
of the answer given to question No. 3 of the Examination Form which was
duly examined by the Registry of the High Court and after such examination
the note was appended saying that since election petitions were in order and
therefore the Registry be directed to register the election petitions and
further in view of the fact that from the order of the High Court dated 2nd
August, 2002, it is evident, when the election· petitions were taken up for
preliminary hearing, the High Court noted appearance of the Learned Counsel
B
c
for Respondent No. 1 who appeared and waived service on behalf of D
Respondent No. 1 in both the election petitions but did not say that
vakalatnamas were filed nor from the said order it would be evident that
any direction was made to file vakalatnamas, we are unable to hold that at
the time of presentation of election petitions, true copies of the s2me were
not filed which were subsequently served upon the Respondent No. 1 by
the Bailiff of the High Court. The High Court in its judgment held that the
onus to prove supply of the copies was on the election petitioners and had
drawn an adverse inference against the appellants for not examining the
Assistant Registrar of the High Court. We are unable to accept this view of
the High Court. It is no longer res integra that the onus to prove that a copy
of the election petition is not served on him, must be on the person who
alleges such fact. We are therefore of the view that in presence of the
endorsement of the Assistant Registrar of the High Court dated 19th of July,
2002 that the election petitions were in order which would raise a presumption, it would be for the successful candidate/Respondent No. l to rebut such
presumption and discharge his initial burden. In this case, the Respondent
No. l having failed to discharge such onus, it is not open for the Respondent
No. I to say that true copies of the election petitions were not filed at the
time of presentation of election petitions. It is not in dispute that true copies
of the election petitions were duly served upon the Learned Counsel for the
Respondent No. 1 before the preliminary hearing of the Election Petitions.
According to Mr. Thali, that could not cure the defect in supplying to the
E
F
G
H
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SUPREME COURT REPORTS (2004) SUPP. 6 S.C.R.
A
Respondent No. I a true copy of the election petition as such petitions were
served on the Respondent No. I at a time when the elections petitions
became barred.
In view of our discussion made above and in the absence of any
B material to show that true copies of the election petitions were also not filed
at the presentation of election petitions, we are unable to hold that there was
non compliance of Section 81(3) ofthe Act inasmuch as the copies alleged
to have been supplied to the returned candidate were not true copies of the
petitions.
C
Even ifthe copies of the election petitions which were alleged to have
been served on the Respondent No. 1 could be accepted and relied upon then
also, in our view, the High Court had committed an error in holding that
the election petitions must be rejected for non-compliance of Section 81(3)
of the Act on the ground that "true copies" of the Election Petitions were
D not served ·upon the respondent No. 1. As noted herein earlier, the successful
candidates/respondent No. 1 in both the Election Petitions sought rejection
of the election petitions inter alia on the following grounds:
E
F
(1)
(2)
Internal page 10 of Exhibit RW-1 which is the copy of the
·election petition after the prayer clause and verification there
is no signature of the election petitioner.
The stamp in respect of the swearing of the affidavit was also
absent on the copy of the election petition.
(3)
The affidavit accompanying the petition also does not bear the
signature of the election petitioners.
The High Court found that after the prayer clause at internal page I 0
of the election petition above the petitioner and beneath the verification
there was no signature of the election petitioner above the word "petitioner"
G and held that the copy of the election petition would show that the election
petition was neither signed and verified nor was it attested before any
authority. The High Court also found that there was no endorsement of the
officer before whom the election petitioner had signed. It was also found
that there was absence of signature of the Advocate who had identified the
H election petition. The High Court further found that although an affidavit
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.)
931
was filed by the appellants but the copy of the election petition however did A
not show that the affidavit was affirmed by the election petitioner and, there
was also no signature of the election petitioner above the word "deponent".
Accordingly the High Court held that the copies of the election petitions on
which reliance was placed by the Respondent No. 1 were found to be not
true copies of the election petitions that were filed. In our view, the defects B
as shown above would not entail the High Court to dismiss the election
petition under section 86 of the Act. Section 81 (3) has two parts - The first
part relates to filing of as many as copies of the election petitions as that
of number of respondents in the same. The second part is that copy shall
be attested by the petitioner under his own signature to be a true copy of
the petition. In our view, the second part of section 81 (3) of the Act requires C
that every such copy should be attested by the election petitioners under
their own signature to be true copies. Second part of section 81(3) of the
Act, in our view, is satisfied ifthe copy is attested by the election petitioner
to be true copies of the election petitions under their own signature. In our
view, the defects as noted above cannot !ead us to hold that election petitions D
should be rejected for non-compliance of section 81 (3) of the Act as copies
served on the respondent No. l cannot be treated to be "true copies" within
the meaning of the second part of section 81(3).
The High Court held that the election petitions were liable to be
rejected on a finding that the above noted defects were vital in nature
and therefore there was total non-compliance of section 81(3) of the Act.
In our view, even the defects alleged as aforesaid in the election
petitions could not be held to be vital in nature and thereby dia
not entail the High Court to dismiss the election petitions at the preliminary
stage for non-compliance of section 81(3) of the Act. Let us now examine
whether election petitions were liable to be rejected for the defects shown
above.
As noted hereinearlier, Section 81(3) postulates that every copy of the
election petition shall be attested by the election petitioner under his own
signature to be a true copy of the petition. From a bare perusal of the defects
which have been referred to hereinearlier, we can safely conclude that such
defects cannot be said to be of vital nature. According to Respondent No.
1, (1) there was no signature of the election petitioners at page IO of the
petitions after the prayer clause and verifications. (2) the stamp in respect
of the swearing of the affidavit was also absent on the copy of the election
E
F
G
H
932
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A petitions and, (3) the affidavit accompanying the petition also does not bear
the signature of the election petitioners.
B
The Supreme Court in Murarka Radhey Shyam Ram Kumar v. Roop
Singh Rathore, AIR (1964) SC 1545 held as follows:-
"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".
The principles laid down as aforesaid were also followed in Anil
C R.Deshmukh v. Onkar Nath Singh, [1999 (2) SCC 205]. So far as the 2nd
defect namely the stamp in respect of th.e swearing of the affidavit was
absent on the copy of the petition is concerned, we are of the view that mere
omission to stan.p in respect of the swearing of the affidavit would not at
all be material; when each and every copy of the petition was attested by
the election petitioners. Reliance in this connection may be placed on the
D decision of this Court in the case of Ram Prasad Sarma v. Mani Kumar
Subba, [2003] 1 SCC 289. Similar is the position in respect of defect No.
3. From the record it appears that on each and every page a handwritten
attestation in ink under the signature of the election petitioner was made by
the election petitioners. Therefore, mere omission to sign by the election
E petitioners in the affidavit accompanying the petition would not also be
material. From the above, we can only conclude that such defects in the
copies of the election petitions cannot lead us to reject the election petitions.
Even otherwise, the election petitions ought not to have been rejected
by the High Court for non compliance of section 81(3) of the Act. What
F should be the meaning of 'true copy' in section 81(3) of the Act was
considered by this Court in Dr. Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal
& Ors., [1996] 5 SCC 181 in which it was held that the defects of the
aforesaid nature were not curable, and therefore, the election petition was
liable to be dismissed on that ground. This decision of the Supreme Court,
G namely, Dr.Shipra's case was doubted in a latter decision in the case ofT.M
Jacob v. C.Poulose and Others, [1999] 4 SCC 274 and the matter was
referred to the Constitution Bench of this Court. The Constitution Bench in
T.M. Jacob's case held-
"it is not every minor variation in form but only a vital defect in
H
substance which can lead to a finding of non-compliance with the
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.]
933
provisions of Section 81(3) of the Act with the consequences under A
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 B
is, however, neither d~sirable nor possible to catalogue t.he defect
. which may be classified as of a vital nature or those which are not
so. It would depend upon the facts and circumstances of eac~ case
and no hard and fast formula can be prescribed. The tests sug~ested
in Murarka Radhey Shyam case are sound tests and are now well
settled. We agree with the same and need not repeat those tests. C
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 D
of Section 81(3) of the Act in supplying "true copy" of the affidavit
I
to the appellant by the respondent."
!
I
The difference of opinion was settled by the Constitution Betch in
Jacob's case by enunciating the principles as noted hereinabove.