# No. 31 of 1963) v. K. Krishna Menon and Janardan Sharma

- **Citation:** [1964] 3 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1962-07-06
- **Case number:** Civil Appeal Nos. 30 and 31 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/no-31-of-1963-v-k-krishna-menon-and-janardan-sharma-3007
- **Pages:** 18

## Headnote

3 S.C.R.
SUPREME COURT REPORTS
573
MURARKA RADHEY SHYAM RAM KUMAR
ROOP SINGH RATHORE & OTHERS
(and connected appeal)
(B. P. SINHA c. J., s. K. DAS, RAGHUBAR DAYAL,
N.
AYYANGAR and
J. R. MunHOLKAR JJ.)
Election Di•putt-Joi111ler of parties-Joinder of eandi·
date who did not contest-If invalidates electinn
p<lition-
"0opy", meaning of-De/eels in verification and ajfidallit-Main·
tainability of petition-Represintation of the People Act, 1951
(43 of 19r.J), .a. 81,82,83,90. ·
'
The validity of the election of the appellant to the House
of the People at the third gen-.l"ll elections held in the month
of February, 1962, was challeng'd by two of the electors of the
constituency from which the appellant was elected, by filing
election petitions for s.tting
the election. The nomination paper of B, one of the two electors aforesaid, had been
by the returning officer. The appellant who was one
of the respondents to the two election petitions raised prdiminary obj,ctions to the maintainability of the petitions and
pleaded that they should be dismissrd on the ground•, inter
alia, (!} that B whose nomination paper was rejected and who
was not a contesting candidate was improperly impleaded as
a respondent to the election petition in contravention of the
provisioni of s. 82 of the Representation of the People Act,
1951, (2l that there was non-compliance with the provisions of
s. 81 (3} of the Act because the copy of the election petiiion
served on the appellant was not a true copv of the original
filed before the Election Commission, and (3) that there was
non-compliance with the provisions of s. 83 of the Act inasmuch
as (a} the election petition W'\S not verifierl in the manner laid
down in s. 83, and (b) the affidavit in respect of corrupt prac•
tices which accompanied the petition was neither properly
made nor in the prescribed from.
Bela (I) that where all the parties whom it was necessary to join under the provisions of s: 82 of the Representation
of. the People Act,' 1951, were joined as respondents to the
JIJ6S
Ma:1 7.
. 1963
Rat!h1y
Shjaffl ·Ram x·umar
••
Roop Singh Ratlwre
574
SUPREME COURT REPORTS [1964] VOL .
petition, the circumstance that a person who was not a necesary party had also been impleaded did not amount to a contravention of s. 82 of the Act;
(2) the word "copy" in s. 81 (3) of the Act did not mean
an absolutely exact copy but a copy so true that nobody could
by any possibility misunderstand it, and that the test whether
a copy \Vas a true one was whether any variation from the ori·
ginal was calCulated to mislead an ordinary person;
lnre Hewer,
Kahan, (1882) 21 Ch. D 871,
relied on.
(3) that a defect in the verification of an election petition
as required bys. 83 (I) (c) of the Act did not attracts. 90 .(3)
and so was not fatal to the mintainability of the petition; and,
(4) that a defect in the affidavit was not a sufficient
· ground for dismissal of the petition.

## Text

3 S.C.R.
SUPREME COURT REPORTS
573
MURARKA RADHEY SHYAM RAM KUMAR
ROOP SINGH RATHORE & OTHERS
(and connected appeal)
(B. P. SINHA c. J., s. K. DAS, RAGHUBAR DAYAL,
N.
AYYANGAR and
J. R. MunHOLKAR JJ.)
Election Di•putt-Joi111ler of parties-Joinder of eandi·
date who did not contest-If invalidates electinn
p<lition-
"0opy", meaning of-De/eels in verification and ajfidallit-Main·
tainability of petition-Represintation of the People Act, 1951
(43 of 19r.J), .a. 81,82,83,90. ·
'
The validity of the election of the appellant to the House
of the People at the third gen-.l"ll elections held in the month
of February, 1962, was challeng'd by two of the electors of the
constituency from which the appellant was elected, by filing
election petitions for s.tting
the election. The nomination paper of B, one of the two electors aforesaid, had been
by the returning officer. The appellant who was one
of the respondents to the two election petitions raised prdiminary obj,ctions to the maintainability of the petitions and
pleaded that they should be dismissrd on the ground•, inter
alia, (!} that B whose nomination paper was rejected and who
was not a contesting candidate was improperly impleaded as
a respondent to the election petition in contravention of the
provisioni of s. 82 of the Representation of the People Act,
1951, (2l that there was non-compliance with the provisions of
s. 81 (3} of the Act because the copy of the election petiiion
served on the appellant was not a true copv of the original
filed before the Election Commission, and (3) that there was
non-compliance with the provisions of s. 83 of the Act inasmuch
as (a} the election petition W'\S not verifierl in the manner laid
down in s. 83, and (b) the affidavit in respect of corrupt prac•
tices which accompanied the petition was neither properly
made nor in the prescribed from.
Bela (I) that where all the parties whom it was necessary to join under the provisions of s: 82 of the Representation
of. the People Act,' 1951, were joined as respondents to the
JIJ6S
Ma:1 7.
. 1963
Rat!h1y
Shjaffl ·Ram x·umar
••
Roop Singh Ratlwre
574
SUPREME COURT REPORTS [1964] VOL .
petition, the circumstance that a person who was not a necesary party had also been impleaded did not amount to a contravention of s. 82 of the Act;
(2) the word "copy" in s. 81 (3) of the Act did not mean
an absolutely exact copy but a copy so true that nobody could
by any possibility misunderstand it, and that the test whether
a copy \Vas a true one was whether any variation from the ori·
ginal was calCulated to mislead an ordinary person;
lnre Hewer,
Kahan, (1882) 21 Ch. D 871,
relied on.
(3) that a defect in the verification of an election petition
as required bys. 83 (I) (c) of the Act did not attracts. 90 .(3)
and so was not fatal to the mintainability of the petition; and,
(4) that a defect in the affidavit was not a sufficient
· ground for dismissal of the petition.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 30 and 31 of 1963.
Appeals by special leave from the judgment
and order dated \\ugust 31, 1962, of the Rajasthan
High Court in D. B .. Civil Writ Petitions Nos. 37ti
and 377 of 1962.
M. O. Setalvad, G. S. Pathak, N. P. Nathwani,
H. J .. Thacker and G. 0. Mathur for the appellant
(in C.A. Nb. 30 of 1963).
G. S. Pathak, N. P. Nathwani, H. J. Thac/mr
and G. O. Mathur, for the appellant (in C.A. No .31
of 1963).
S. 0. Agarwa/11, R. K. Garg, D. P. Singh and
M. K. Ramamurthi, for respondent No. 2 (in C. A.
No. 30 of 1963).
R. K. Garg, for respondent No. 2 (in C. A.
No. 31 of 1963).
V. K. Krishna Menon and Janardan Sharma,
for the Intervener.
3 S.C.R.
SUPRE:mB COURT REPORTS
fS75
1963. May 7.
The judgment of the Court was
delivered by
S. K. DAS J.-These two appeals have been
heard together as they raise some common questions
of law and fact, and this judgment will govern them
both.
The appellant before us, Murarka Radhey
Shyam Ram Kumar, was elected to the House of the
People at the third general elections held in the
month of February, 196t. He was elected from a
constituency known as the Jhunjhunu Parliamentary
Constituency in Rajasthan.
lwo election petitions
were filed for setting aside the election of the appelOne of these was filed by one Ridmal Singh
who stated that he was an elector in the said constituency.
Another application was filed by one Balji
who was also an elector in the said P'lrliamentary
Constituency and whose nomination paper was rejected by the returning officer. We are not concerned
in the present appeals with the grounds on which
the two election petitions, one by Ridmal Singh and
numbered as 269 of 1962 and the other by Balji and
numbered as 295 of 1962, were based, because the
election petitions have not yet been tried on merits.
By two applications dated July 6, 1962, the appellant
who was one of the respondents to the two election
petitions raised certain preliminary objections to the
maintainability of the two election petitions. The
Election Tribunal dealt with these preliminary objections by its orders dated August 13, 1962. It dismissed the preliminary objections.
Thereupon the
appellant filed two writ petitions in the High Court
of Rajasthan by which he prayed that the orders of
the Election Tribunal dated August 13, 1962, and
certain consequential orders passed on August 14,
1962, be quashed and that an order or direction be
issued to the Election Tribunal to dismiss the two
election petitions on the main ground that they do
196'
-.
Murork1 lla4lu:1
Sliyam Rt1.m Jrumar
••
Roop Si•gh Rathore ·
.--
Das I.
•
196J
Mar11r1k1 Rarlhey
ShjtJlli Ram Ku.mar
..
v.
11..p Sing.\ RotAor1
D•s I.
.576
COURT REPORTS [1964]VOL •
• \
. '
"
'
.
l
not comply with certain mandatory provisions of the
Representation of the People Act, 1951, hereinafter
referred to as the Act. These two writ petitions were
dismis;ed by the High Court by its order dated
August 31,
The appellant then applied for
special leave to this court and having obtained such
leave, has preferred the present appeals.
We may now state briefly the grounds on which
the appellant contends that the two election petitions
were not maintainable and should have been dismissed 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 noncompliance 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 candidate 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 therefore impleaded to the election petition in contravention 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 noncompliance with the provisions of s. 83 of the Act
inasmuch as the affidavit in respect of corrupt
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 Commission, 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 enclosures 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 receipt 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
rejected the nomination paper of the petitioner,_
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 "candidate" 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
• 1963
Murarka R•d/Jty
Shyam RMn Ks.mar
v.
R"'p Sin1h R e11tm
n.s J.
196J
Mura,ka Raf/Aly
S,\,rarn Ram Kumar
y,
Sirith RtJl!i4r1
DuJ,
578 SUPREME COURT REPORTS [1964] VOL.
more of the grounds specified in sub-s. (1) of s. 100
ands. 101 to the Election Commission by anv candidate at such election or any elector within forty-five
days from the date of election of the returned candidate.
Sub-s. (3) of s.
.. which 11ub-section is
important for our purpose, reads as follows :
"Every election petition shall be accompanied
by as many copies thereof as there are respondentl 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. It
reads:
"A petitioner shall join as respondents to his
petition-
(a) where the petitioner, in addition to claiming 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 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."
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
3 S.C.R.
SUPREME COURT REPORTS
579
accompanied by an affidavit in the prescribed
form in support of the allegation of such corrupt 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 petition 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 subsection shall be deemed to be an order made
under clause (a) of section 98."
Sub-s ( 4) of s. 90 states that any candidate not
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
Mururka Rc.J/wy
Sh:J""' R1J111 K' •ar
..
Roop Sintli R•lltor1
D., /.
1919
M•mka RatituJ
SAJn1 R"m Xum•
••
&op
Rath"'
hJ.
ISSO
SUPRED COURT REPORTS [1964] VOL.
respondent. Sub-s. (6) states that 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 of publication of the copy
of the petition in tl,le Official Gazette under 1ub1. (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, namely, 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 the
maintainability of the petition.
. 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 is admitted that
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
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, the
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 circumstance 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 dismissing 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 position 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 nominated at the election other than himself if
he was ao nominated."
Sub-s. (4) of s. 90 then provided that notwithstanding anything contained in s. 85, the tribunal may
111 111u1s.o.a.89Z,
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••
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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 dismissed by the Election Commission under s. 85. Therefore 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 question any further, because we have held that in the
present cases there was no contravention of the provisions 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
stated that the averments made in some of the
paragraphs of the petition were true to the personal
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!
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
part of this judgment. It seems clear to us that
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 subs. (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
contended that the principle in such cases is that
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.
1'61
M•,.t•
Sh.J• R•m KuMa1
..
&.J Sin1A !I.th.,,
DuJ.
. ,
'; '
584 SUPREME COURT REPORTS (1U64] VOL.
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Afu,.Q,k• R..dJr1y
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It is argued . that no question of.- substantial- compliance · arises in such ·cases,.· and the mandatory
requirement must be strictly complied with.
-
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et us rst see w at· are the de ects oun in the _
D .. J.
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 knowledge 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
regard to the second . defect ·the Election Tribunal
. 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 noncompliance with the provisions of aub-s. (3) of s. 81.
,
3 S.C.R.
SUPREME COURT REPORTS
585
.We agree with the High Court and the
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
the original. Alternatively, the argument is that
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.
1'61
Mu.rttrk• aMluy
Sh1•m lt"11 /Cam•r
••
R•oJ Sinth lt•llt,,e
Dtts J.
Jffl
Mar«l2 Radltey
Slt7• lt•m l\,,,.,.c,
••
Roo; Sinth lta1har1
Des J.
686
SUPREME COURT REPORTS [1964] VOL.
supposes an exertion of intellect which it may
be inconvenient to require at the hands of
those who serve the . copy. It was to obviate
this jnconvenience, that the legislature has
given a form, and required that .it should be
pursued. Nothing but ordinary care is necessary for taking the copy."
In a later decision Putton v. Mary and Burge1& (1),
the copy of the writ served on the defendant omitted
the letter "s" in the word "she". It was held that
the omission was immaterial as it could not mislead ·
anybody. In Morris v. Smith ('), there was a
motion to set aside. the service of the writ of summons 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
valid. In another case in the same volume Cooke v.
Vaughan ('), it was
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
Act 1878, and Amendment Act 1882. In re Hewt,r,
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.
(2)
150 l!.R. 51.
(11 150 £.R. 13ff.
1tJ (1882) 21 Ch. O, 871,
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
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 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 required 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
.1111
M•rMka RllllA1J
il}'Q171 Rt11ft Xum•'
••
Sitttti
D•s J.
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 petitioner is apparently not in the pre1cribed form
but reading as a whole the verification carries
the same sense as intended by the word1
mentioned
in the prescribed
form. The
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
think that the defect in the verification due to
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 verification 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
Civil Procedure relating to the verification of
pleadings. As to the four enclosures which were
not re-produced in the copy served on the appellant,
the position was this. In the original petition there
was an endorsement to the following effect :
"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 nomination 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 the
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.
of
s. 81 nor was it necessary to make a further endorsement 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.
The only
made is that the endorsement
"two copies" was not repated in the enclosure
· portion of the copy served on the appellant. We
Mllf'a1ka Rotih1J
Shyam Ram Emar
Y.
R.,; Sin1h R1t"'11
Dos J,
196J.
Murar!ra
Shyam ,Ram Eum:ir
••
ll.Hp Sinth Rathor1
DIU J.
1911
May 7.
590 SUPREME COURT REPORTS [1964] VOL.
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 appellant 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.
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""ulment 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. 37Bengal 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