Himachal Pradesh High Court
Ramesh Chand .....Non vs Mahender Singh ... on 25 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA EMP No. 9 of 2018 in Election .
Petition No. 1 of 2018 Reserved on: 17.04.2019 Date of decision: 25.04.2019.
Ramesh Chand .....Non-applicant/petitioner Versus Mahender Singh .....Applicant/Respondent.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes For the Petitioner/: Mr. Shrawan Dogra, Sr. Advocate, with Non-applicant Mr. Deven Khanna and Mr. Bharat Thakur, Advocates.
For the Respondent/: Mr. Satya Pal Jain and Mr. R. K.
Applicant Sharma, Sr. Advocates, with
Mr. V. B. Verma and Mr. Arun
Kumar, Advocates, for
respondent No. 1.
Tarlok Singh Chauhan, Judge
Two prayers have been made in this application filed under Order 7 Rule 11 of the Code of Civil Procedure (for short the 'Code'), for rejection of the Election Petition.
(i) The petition be rejected on the ground that there is a violation of statutory provisions, more particularly, the provisions contained in the 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 2 Representation of the People Act, 1951 (for short the 'Act');
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(ii) the petition does not disclose any cause of action.
Arguments on first point were heard on 17.04.2019 and thereafter the judgment was reserved.
2. It is averred in the application that the petitioner has violated Section 82 of the Representation of the People Act, 1951, as such the petition is liable to be dismissed under Section 86 of the Act.
3. It is averred that the copy supplied to respondent No. 1 is not true copy of the original petition, which has been filed before this Court and pages 49 to 242 of the election petition and pages pages 51 to 59 of the Index Form B have not been supplied to the replying respondent and, therefore, the petition deserves to be rejected as these documents are integral part of the election petition. The election petition is in violation of Sections 81 and 82 of the Act and is, therefore, liable to be rejected under Section 86 of the Act.
4. The petitioner non-applicant has filed reply to the application, wherein preliminary submission has been made with regard to the application being not maintainable in view of the law laid down by the Hon'ble Supreme Court in Kuldeep Singh Pathania vs. Bikram Singh Jaryal (2017) 5 SCC 345 wherein it ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 3 was held that the technical deficiencies, if any, are curable and thus cannot be made a ground for the rejection of the petition.
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5. At the outset, it needs to be observed that even though one of the objections taken in the application was with regard to non-supply of page 40(41) to respondent No. 1, however, after verifying the record, the learned counsel for the applicant conceded that the aforesaid page(s) have, in fact, been supplied to him. At this stage, it is also to be noted that none of the defeated candidates has filed the election petition and the present petition has been filed on behalf of a voter.
6. Before proceedings further certain provisions of the Act need to be noticed.
"80.Election Petitions - No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
81(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.
83(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 petition.-(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.::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 4
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 security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation - for the purpose 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 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 adjournemnt of the trial ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 5 beyond the following day to be necessary for reasons to be recorded.
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(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.
7. It is the admitted case of the parties that the documents at pages 51 to 59 and documents at pages 49 to 242 have not been supplied to the applicant. It is in this background that S/Shri Satya Pal Jain and R. K. Sharma, Senior Advocates, duly assisted by S/Shri V. B. verma and Arun Kumar, Advocates, would contend that since all these documents are integral part of the election petition, therefore, the election petition deserves to be rejected at the threshold. In support of such contention, the learned counsels for the applicant have drawn attention of this Court to paragraphs 9 to 21 of the election petition, which read thus:-
"9. That after the respondent No. 1 filed his nomination form alongwith affidavit in Form 26 as required under rules for the 2017 Assembly elections, the petitioner strongly contradicted the statement/declaration made by respondent-Mahender Singh in his affidavit in Form 26 in relation to his educational qualification and other statements declared in said affidavit. This fact was brought to the notice of Returning Officer of 32-Dharampur constituency, respondent No. 2, by the petitioner by filing written objections dated 21.10.2017 (received in office of respondent No. 2 on 23.10.2017 consisting of 16 pages, including ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 6 affidavit of the petitioner, which also contained attached therewith Annexures A to L. .
10. That the gravamen of his objections was that respondent-Mahender Singh has failed to file proper affidavit prescribed under the rules and filing of incomplete affidavit and giving false or evasive statements in such affidavit by him at the time of submission of nomination paper renders his nomination paper materially defective and hence liable to be rejected under Section 36(2)(b) of the Representation of People Act, 1951.
11. That the date of scrutiny of nomination forms was fixed as 24.10.2017 as pointed out above. The petitioner also submitted written arguments dated 24.10.2017 to the Returning Officer, respondent No. 2, which was duly received in his office on the same date. Alongwith these written arguments the petitioner had also annexed relevant extract of "RO Handbook" and a copy of decision passed by Hon'ble Supreme Court of India in Civil Appeal No. 2649 of 2016 titled 'Sri Mairembam Prithviraj @ Prithviraj Singh versus Shri Pukherem Sharatchandra Singh'.
12. The decision by the Apex Court specifically dealt with the present proposition wherein the returned candidate's nomination was improperly accepted by the Returning Officer despite objections. It would be most relevant to extract following observations from the said decision (Civil Appeal No. 2649 of 2016) which are most relevant of the present controversy:-
"15. ....... One of the five aspect pertains to the educational qualification of the candidates. An order was issued by Election Commission of India on 28.06.2002 directing that full and complete information relating to the five aspects was to be treated as a defect of substantial character by the Returning Officers.
16. In Resurgence India v. Election Commission of India and Anr. (supra) this court held that every candidate is obligated to file an affidavit with relevant information with ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 7 their criminal antecedents, assets and liabilities and educational qualification. The fundamental right under Article .
19(1)(a) of the voter was reiterated in the said judgment and it was held that filing of affidavit with blank particulars would render the affidavit as nugatory. In Kishan Shakar Kathore v. Arun Dattatray Sawant reported in 2014 (14) SCC page 162 this court considered the question as to whether it was incumbent upon the appellant to have disclosed the information sought for in the nomination form and whether the non-disclosure thereof render the nomination invalid and void. It was held that non-furnishing of the required information would amount to suppression/non-disclosure.
17. It is clear from the law laid down by this Court as stated above that every voter has a fundamental right to know about the educational qualification of a candidate. It is also clear from the provisions of the Act, Rules and Form 26 that there is a duty cast on the candidates to give correct information about their educational qualifications.
18. .... The false declaration relating to his educational qualification cannot be stated to be not of a substantial character. It is no more res intergra that every candidate has to disclose his educational qualification to subserve the right to information of the voter. Having made a false declaration relating to his educational qualification, the appellant cannot be permitted to contend that the declaration is not of a substantial character. For the reasons stated supra, we uphold the findings recorded by the High Court that the false declaration relating to the educational qualification made by the Appellant is substantial in nature."
13. That on 24.10.2017 at the time of scrutiny, the Returning Officer, respondent No. 2, refused to entertain the petitioner as objector as according to the Returning Officer only contesting candidates or their representatives could be present before him for the purpose of scrutiny of nomination forms. The situation was created in such a manner that one of the contesting candidate Digvijay Singh represented to the ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 8 Returning Officer, respondent No. 2, to treat objections raised by the present petitioner as his objections and allow presence .
of the petitioner there as his representative which was permissible under rules.
14. That thereafter, on 24.10.2017, the respondent No. 2 treated the objections raised by the petitioner as objections of Digvijay Singh and rejected the same by holding that such objections were required to be challenged before competent court as the Returning Officer is not authorised to decide the same and consequently, the nomination was accepted.
15. That the petitioner submitted representation to the respondent No. 2 on 24.10.2017 itself asking for reasons of acceptance of nomination of the respondent No. 1 despite objections filed by petitioner delivered in the office of respondent No. 2 on 23.10.2017 (objections dated 21.10.2017).
16. That the petitioner submitted representation dated 26.10.2017 at 2:35 pm through email (complaints@ eci.gov.in) to the Election commission of India, respondent No. 3 wherein the wrong action on the part of the Returning Officer was highlighted. Request was made to re-scrutinize the nomination papers of the respondent No. 1 by the respondent No. 2.
17. That on 26.10.2017 the petitioner submitted another representation to respondent No. 2 to supply him reasons for acceptance of nomination paper of respondent no. 1 so that the petitioner is able to challenge the same before Hon'ble High Court.
18. That on 26.10.2017 the respondent No. 2 supplied to the petitioner attested copy of the order passed on nomination paper of respondent No. 1 on 24.10.2017 wherein reference was made to the objections of Digvijay Singh.
19. That on 26.10.2017 the petitioner again wrote to the respondent No. 2 to supply to the petitioner copy of any ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 9 response filed by respondent No. 1 to the objections filed by the petitioner before respondent No. 2.
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20. That on 28.10.2017 the respondent No. 2 gave reply to the petitioner that respondent No. 1 had not filed any reply/counter affidavit against the allegations levelled by the petitioner.
21. That the petitioner received yet another reply from respondent No. 2 wherein it was pointed out that the objections filed by the petitioner were uploaded on the Genesys website and respondent No. 1 was informed about the objections filed by the petitioner. For the action taken, the respondent No. 2 referred to Para 6.10 of the 'Grounds for Rejection of Nomination Paper' in RO Handbook 2014.
8. It is averred that the documents mentioned in aforesaid paras have specifically been relied upon by the petitioner but have not been supplied and even the same are not extracted in the pleadings, therefore, the petition merits rejection at the threshold. In support of such submissions, reliance is placed on the following judgments:-
1. M. Karunanidhi vs. H. V. Handa, 1983 AIR (SC) 558
2. U. S. Sasidharan vs. K. Karunakaran and Anr., 1990 AIR (SC) 924.
3. Mithilesh Kumar Pandey vs. Baidyanath Yadav and others, 1984 AIR (SC) 305.
9. On the other hand, Shri Shrawan Dogra, learned Senior Advocate, duly assisted by S/Shri Deven Khanna and Bharat Thakur, Advocates, would contend that the provisions of Order 7, Rule 11 of the Code can only be invoked in case the ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 10 petition does not disclose any cause of action. It is further argued that the stage for deciding this application has yet not arrived, .
as even the issues have not been framed and it is only when an issue is framed as a preliminary issue, that all these question can be gone into. The merits of the application are to be determined by the provisions of the Act and the High Court Rules and Orders in terms whereof only the pleadings and the annexures thereto appended therewith are required to be supplied to the opposite party. It is further argued that the petition is not different from the index and all the objections as raised by the applicant only pertain to the stage when the election petition is under scrutiny.
10. In addition thereto, the learned counsel for the non-
applicant, in support of aforesaid submissions, would place reliance on the following judgments of the Hon'ble Supreme Court:-
1. Kuldeep Singh Pathania vs. Bikram Singh Jaryal, 2017 (5) SCC 345
2. Abdulrasakh vs. K. P. Mohammed, 2018 (5) SCC 598
11. In rebuttal, Shri Satya Pal Jain, learned Senior Advocate, would argue that since there is non-compliance of Section 81 (3) of the Act, therefore, the petition is liable to be dismissed under Section 86 of the Act.
::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 1112. In addition thereto, he would argue that Rule 12(g) of the Rules of Procedure and Guidance in the matter of Trial of .
Election Petitions under Part VI of the Representation of the People Act, 1951 (for short the 'Rule') clearly mentioned that the petition alongwith annexure and Schedule is required to be supplied to the opposite party and obviously non-compliance of such provisions would entail the rejection of the petition. In support of such contention, reliance is placed upon the judgment of the Hon'ble Supreme Court in R. K. Roja vs. U. S. Rayudu and another, AIR 2016 SC 3283.
13. It is further argued that an application under Order 7, Rule 11 CPC has to be disposed of at the threshold as held by the Ho'ble supreme Court in Dhartipakar Madan Lal Agarwal vs. Shri Rajiv Gandhi, AIR 1987 SC 1577 . It is further argued that Schedule and annexure appended with the petition have not been verified and have only been attested and, therefore, also the petition is liable to be rejected.
I have heard learned counsel for the parties and have gone through the records of the case.
14. Adverting to the submissions made by learned Senior counsel for the applicant that the Schedules and other documents which form an integral part of the petition (as extracted above) should have been served on the returned ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 12 candidate and in absence of such compliance the petition was liable to be dismissed in liminie under Section 86 of the Act.
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15. I find no merit in this contention, as a bare perusal of the pleadings (as extracted above) it would be noticed that the documents as referred to therein are not an integral part of the petition, being merely evidence in the case and, therefore, the copies of such documents were not required to be served on the applicant as there is no requirement that the documents or the Schedule should should have been served on the applicant because if they were filed in the Court it is/was always open to the applicant to inspect them and find out the allegations made in the petition.
16. In taking this view, I am fortified by the judgment of three Judges Bench of the Hon'ble Supreme Court in A. Madan Mohan vs. K. Chandrasekhara, AIR 1984 SC 871, wherein the Hon'ble Supreme Court while affirming the decision of the High Court held that there was no requirement that the documents or the schedules should also have been served on the petitioner because if they were filed in the Court, it was always open to the petitioner to inspect them and find out the allegations made in the petition. Opining that the documents or the schedules were in no sense an integral part of the petition, being merely ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 13 evidence in the case, the Court held that copies of such annexures were not required to be served on the respondent.
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17. Earlier to that an identical question came up for consideration before this Court in Sahodrabai's case (AIR 1968 SC 1079) (supra) where while repelling a similar argument the following observations were made (para 12) :
"The only provision to which our attention has been drawn is sub-s. (3) of S. 81, and sub-s. (2) of S. 83. The first provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the r petition and that every such copy shall be an authenticated true copy. The words used here are only "the election petition". There is no mention of any document accompanying the election petition ...............Assistance is however taken from the provisions of sub-s. (2) of. S. 83 which, provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of S. 86 (1) is made out. In our opinion, this is too strict a reading of the provisions. We have already pointed out that S.81(3) speaks only of the election petition......... Even if this be not the case, we are quite clear that sub-s. (2) of S. 83 has reference not to a document which is produced, as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures."
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::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 14But what we have said here does not apply to documents which are merely evidence in the case but which for reasons .
of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof.
The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments are concerned .................It would be stretching the words of sub-
s. (2) of S. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper."
18. It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they, must be literally and strictly construed so as to promote the object of the Act. As per the statutory provisions extracted above, this Court is clearly of the view that in case the arguments of the appellant were to be accepted, it would be stretching and straining the language of Sections 81 and 82.
Moreover, the decision in M. Karunanidhi v. H. V. Hande (1983) 2 SCC 473 : (AIR 1983 SC 558), on which heavy reliance is placed by the applicant, no way departs from the ratio laid down by the Sahodrabai's case (supra). The aforesaid case, rests on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 15 therefore, manifest that the facts of the instant case are clearly distinguishable from the facts of the present case.
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19. The case of Mithilesh Kumar Pandey (supra), contained a large number of mistakes in respect of the names of the persons through whom corrupt practices were alleged to have been practiced during the election. Therefore, this case clearly has no bearing to the facts of the present case just for
20.
r to technical defects in the copies furnished to the returned candidate.
In U. S. Sasidharan vs. K. Karunakaran and another, 1990 AIR (SC) 924, the Hon'ble Supreme Court was dealing with the video cassette which forms an integral part of the Election Petition. Copy whereof had not been furnished to the respondent alongwith Election Petition In the present case, the same is not the fact obtaining situation in the present case.
21. The issue in question is otherwise no longer res integra, in view of the decision of Hon'ble Supreme Court in Ajay Maken vs. Adesh Kumar Gupta 2013(3) SCC 489, wherein the Hon'ble Supreme Court held as under:-
" While the failure to comply with the requirements of Section 81 obligates the High Court to dismiss the election petition, the failure to comply with the requirements of Section 83 is not expressly declared to be fatal to the election petition. The said distinction is explained by this Court in Manohar Joshi vs. Nitin Bhaurao Patil and another, 1996 (1) SCC 169 paras 20 and 21T."::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 16
22. The High Court of Himachal Pradesh has framed .
Rules called as Rules of Procedure and Guidance in the matter of Trial of Election Petitions under Part VI of the Representation of the People Act, 1951, as amended. The relevant provisions having bearing on the present petition are extracted below:-
"11. Contents of Petition-(i) A petition may be presented either in person or through an Advocate incharge for calling in question any petition on one or more of the grounds specified in sub-Section (1) of Section 100 and Section 101 of the Act by any candidate at such election or any elector, and
(a) shall contain a concise statement of the material facts on which the petitioner relied, arranged so far as possible in strictly chronological order;
(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 and verified by the petitioner in the manner laid down in Order VI, Rule 15 of the Code of Civil Procedure, for the verification of pleadings.
(ii) The petition will be presented to the Registrar within office hours on any working day and his receipt showing the date and time of filing of the petition shall be obtained. The receipt shall, also indicate, the date on which the petitioner or his Advocate, if any, must appear before the Registrar for removal of formal defects, if any. The said receipt shall be in Form 'A' appended to these rules.
(iii) Any document order than the election petition itself, but connected with the petition which is not filed with the election petition may be filed either with the Registrar or ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 17 in the Election Branch with an endorsement in Form 'E', appended to these rules, of the date of filing the same made .
on the first page of such document under the dated signature of the party filing the documents or his Advocate.
(iv) An inward diary or a receipt register shall be maintained in the election Branch in which receipt of all petitions, applications, documents and papers connected with election petitions shall be entered on the very day on which those are received in the Branch. The register shall be put up to the Registrar at 4:00 pm on every working day and shall be signed by him by mentioning the time and date of his signature so as to close the entries of that particular day. The serial number in the receipt register and the date of filing the document in question in the election Branch shall be endorsed on the document in the relevant column of a square rubber stamp of the prescribed type. The endorsement on the document shall be signed by the receipt Clerk or Diarist or the Dealing Assistant in the election Branch, as the case may be.
12(b) Schedules or annexures to the petition referred to in the body of the petition - Such schedules or annexures shall also be signed by the petitioner and verified in the same manner as the petition.
13. General requirements regarding petitions-(a) All petitions shall be clearly typed or cyclostyled or printed on only one side of foolscap Government (Judicial) paper or water mark bond paper in double space with at least a quarter margin.
(b) All copies of the petition shall be similarly prepared, but on ordinary paper.
(c) All copies of the petition shall conform to the original, page by page and line by line.
(d) The petition and the copies shall be page marked legibly and the Annexures and Schedules, if any, attached to the petition, shall be consecutively page-marked in the same manner.
::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 18(e) A cleanly typed cyclostyled or printed index will be put at the top of the petition showing the serial number of .
the document, its date, particulars and the page or pages on which is occurs in the papers filed by the petitioner or the Advocate in charge and shall be signed and dated by the Petitioner or such Advocate.
(f) The petitions and their annexures and schedules shall be in the English language. Any original document or any copy of a document,which is not in the said language shall be accompanied by its translation into English, duly certified by the petitioner or the Advocate in-charge to be a correct translation of the original or of the copy as the case may be.
r (g) The petitioner or the Advocate in-charge shall ensure that the petition does not suffer from unnecessary prolixity and does not contain any scandalous or vexatious allegations which are not necessary to be made for deciding the matters really in issue.
14. Scrutiny of papers - (a) The Registrar shall cause the petition and its accompanying documents to be scrutinised under his personal supervision. On the conclusion of such scrutiny the Registrar shall make an endorsement on the back of the last page of the index to the effect that the papers have been scrutinised and if the same have been found to be in order or not, if the Registrar finds that the papers are not complete or do not, otherwise, comply with the requirements of these rules or the provisions of Part-VI of the Act, an endorsement to that effect would be made specifying the defaults or the omissions which require rectification. The endorsement would also show separately if the security for costs referred to above has been deposited by the petitioner before the filing of the petition, and, if the petition has filed within limitation.
(b) On such scrutiny if it is found that the petition does not comply with the requirements of Section 81 or ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 19 Section 82 or Section 117 of the Act, the Registrar shall make a specific endorsement to that effect.
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(c) If some other defect is detected in the petition or it is found that it does not comply with any other rule, the petition will be returned with such endorsement as hereinbefore specified to the petitioner or the Advocate incharge on the date specified in the receipt under rule 11(ii). The said endorsement shall specify the time within which the defect or defects mentioned therein shall be removed and the said time shall not exceed seven days in any case. The rectified petition shall be refiled by the petitioner or the Advocate in-charge within the time so specified.
r (cc) It shall be the duty of the petitioner or the Advocate in-charge to bring to the notice of the Registrar the fact of the removal of the defects or any one more of the defects pointed out by the office on the very day on which the defect or defects are removed. The fact of removal of defect or defects having been brought to the notice of the Registrar shall be endorsed on the petition by the Registrar in his own hand writing under his dated signatures specifying with reference to the serial number of the defects or otherwise the particular defects which have been removed.
(d) A list of all the petitions, which are not in conformity with the mandatory provisions of Sections 81, 82 or 117 of the Act, shall be put on a special notice board meant for notices relating to election petitions and a copy of such list shall be sent to the Secretary of the High Court Bar Association before 3:30 pm on the day preceding the date for which these petitions are directed to be placed before any one of the designate judge before. The list shall specify the date on which and the name of the designated Judge before whom the petition will be placed for necessary directions or orders in respect of non-compliance with the rules. Such date of hearing shall also be communicated to ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 20 the petitioner or the Advocate incharge on the date specified in the receipt under rule 11(ii).
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16. Issue of process - In all cases covered by rule 15(d) and where the petition is on scrutiny found by the Registrar to be in order, the Registry shall issue notices of the petition on Form 'C' appended to these rules, accompanied by a copy of the petition, together with copies of the schedules and annexures, any, to each of the respondents named in the petition under Registered (Acknowledgement) postal covers filed by the petitioner as also in the ordinary manner through the administrative Subordinate Judge or the Senior Subordinate Judges or any other Civil Court of the district or place within whose jurisdiction the respective respondent stated to reside or carry on business. The endorsement on the notice requiring such subordinate Judge or Civil Court to effect service on the respondent shall specify that the aforesaid Subordinate Judge or Court shall make every effort to have service effected immediately and in any event to submit a detailed report of service well within time so as to reach the Registry or this Court before the date of scrutiny. The notices shall be for the settlement of issues and shall be issued for an actual date which shall not be more than four weeks ahead of the date on which the notices are despatched. The notices shall be in Form 'B' appended to these rules and shall specify, inter alia-
(a) the date on which the respondents are required to appear in person or by an advocate;
(b) the date of scrutiny on which the case will be put up before one of the designated Judges with a full and complete report of the office about service of notices; and
(c) a direction to the effect that the case would be heard ex parte if the respondent does not put in appearance in the Registry of the Court and serve notice of having done so on the petitioner or the Advocate incharge before the date of hearing.
::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 2118. Appearance - Any appearance, application or act required or authorised by the Act or these Rules to be made .
or done by a party may be made or done by the party in person or by his recognised agent or by an Advocate, appearing, applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the High Court so directs, be made by the party in person:
Provided further that, unless the context otherwise requires, the recognised agent of a party shall be deemed to be the petitioner or the respondent, as the case may be, for the purpose of these rules.
20. Appearance of respondents-(a) As soon as possible after the receipt of notice of the petition each respondent shall enter before the Registrar appearance in writing. The appearance may be entered through an Advocate or in person. In either event the full, complete and detailed address of the respondent shall be entered on the memorandum of appearance. Thereafter, service of any notice or order of the Court or of the Registry shall be deemed to be sufficient if it is either communicated to the Advocate, or in case where the respondent is not so represented sent by ordinary post to such address of the respondent as has been furnished by him.
(b) Immediately after entering appearance, the respondent or his Advocate, as the case may be shall serve on the Advocate incharge of the case or on the petitioner, if he is not represented by counsel, a notice of having entered appearance.
(c) Any respondent, who does not admit the correctness of the allegations or of the claim made in the petition shall file a written statement in the Registry of the Court at least two days before the date of hearing, replying to the petition and the allegations of the petitioner para- wise.
::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 22(d) The written statement shall be typed-written or encyclostyled or printed in double space on one side of .
foolscap judicial paper and shall be signed and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings.
(e) A spare copy of the written-statement shall be filed in Registry which shall be attested by the respondent concerned, or by his Advocate to be true copy of the original written-statement.
(f) The written statement shall be in English and any documents attached to it or filed by the respondent subsequently shall be either in English or be accompanied by their respective translations into English which should be certified by the respondent concerned or by his Advocate to be true and correct translation of the original documents, in question.
(g) The written-statement shall be accompanied by all documents in the possession or power of the respondent on which he basis his defence. Where he rely on other documents in support of his defence, he shall enter such documents in a list to be added or annexured to the written statement. A document which ought to be entered in the list referred to above but which has not been so entered shall not, without the leave of the High Court, be received in evidence on the respondent's behalf at the hearing of the petition.
The documents produced shall be accompanied by a list in Form 'B' appended to these rules.
(h) The written-statement shall also be accompanied by a cloth-lined strong envelope which shall not be smaller in size than 10"x15", for keeping documents.
(I) The respondent shall serve on the Advocate- incharge or on the petitioner himself if he is not represented by an Advocate, an exact copy of the written-statement and its enclosures, if any, at least two days before the date of hearing.
::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 2321. Commencement of trial-(a) The trial of a petition shall be deemed to commence on the date fixed for the .
respondents to appear before the High Court and to answer the claim or claims made in the petition.
(b) At the commencement of the trial or on such adjourned date for which all the respondents have been served or are deemed to have been served, the High Court shall scrutinise the pleadings of the parties and may, within such time as it may deem fit, permit the petitioner to file a replication in reply generally to any written statement or direct him to file a better statement or better particulars in respect of any matter brought out in any written statement.
(c) At the hearing of the petition, after pleadings have been filed, the High Court shall proceed to frame issues arising out of the pleadings of the parties which are necessary for the determination of the matters in controversy between the parties and postpone further hearing of the petition, but shall fix a day for the production of such evidence as the case requires. The Court shall also fix an intermediary date to watch the return of the summons of the witnesses. The parties or their counsel shall appear before the Registrar on the said date and obtain necessary orders with regard to re-summoning or otherwise the witnesses who might not have been served by the said date.
(d) Within 5 days of the framing of the issues, the parties shall file any other or additional documents which are in their possession or power, and, also file within the same period a list of all the documents which are not in such possession or power for the respective parties but on which they propose to rely at the trial of the case indicating therein the person in whose possession, power or custody such documents may be available, and the relevancy of such documents.
(e) Within ten days of the date on which the issues are framed, the parties shall admit or deny the respective documents filed by the other side in the Registry of the Court ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 24 by making an endorsement on each document under the signatures of party concerned or his Advocate whether the .
document is admitted or denied or how much of a document is admitted or denied.
(f) The preceding sub-rule shall not derogate from the right of the parties to serve on the counsel for the other side notice of admission or denial of documents or of admission or denial of facts.
(g) Parties may also, with the leave of the Court, serve interrogatories on the counsel for any other party for being replied to in accordance with law.
24. Procedure-(a) Subject to the provisions of the Act and of these rules, every petition shall be tried, as nearly as may be, in accordance with the procedure applicable under the code of Civil Procedure, 1908, to the trial of suits.
(b) The High Court shall have the discretion to refuse for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(c) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of the Act and these rules, be deemed to apply in all respects to the trial of an election petition.
(d) No document shall however be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered.
(e) No witness or other person shall be required to state for whom he has voted at an election.
(f) No witness shall be excused from answering any question as to any matter relevant to the points in issue in the trial of a petition upon the ground that the answer to such question may dominate or may tend to dominate him, ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 25 or that may expose or may tend to expose him to any penalty or forfeiture.
.
Provided that -
(1)(a) a witness, who answer truly all questions which he is required to answer shall be entitled to receive a certificate of indemnity from the High Court; and
(b) an answer given by a witness to a question put by or before the High Court shall not except in the case of any criminal proceeding for perjury in respect of the evidence, be admissible in evidence against him in any civil or criminal proceedings.
(2) When a certificate of indemnity has been granted to any witness, it may be pleaded by him in any court and shall be a full and complete defence to or upon any charge under Chapter IX-A of the Indian Penal Code (45 of 1860), or Part VII of the Act, arising out of the matter to which such certificate relates, but it shall not be deemed to relieve him from any disqualification in connection with an election imposed by the Act or any other law.
(3) The reasonable expenses incurred by any person in attending to give evidence may be allowed by the High Court to such person, and shall, unless the High Court otherwise directs, be deemed to be part of the costs.
26. Miscellaneous -(a) The trial of an election petition shall, so far as is practicable consistently with the interest 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.
(b) Every objection 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.
(c) The High Court give such other orders or directions in the course of a trial of the petition as may appear to it to be necessary in the interests of justice or for expediting the ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 26 trial and disposal of the case or to prevent abuse or process of Court.
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23. Rule 11 provides for contents of petition while Rule 12 specifies the papers accompanying the petition. Rule 13 provides for general requirement regarding petition whereas under Rule 14 the Registry of this Court is required to scrutinise the Election Petition. As per the aforesaid Rules, election Petition alongwith necessary copies may be presented at any time during the court hours and in case any objections are found then the process as contemplated under Rules 14 and 15 are to be followed. Under Rule 14, the Registrar is required to thoroughly examine the petition with a view to see whether it is in conformity with the requirement of law and the Rules applicable to the same. The Rules also provide that the petition is not in conformity with the law and the Rules framed by the High Court, the Registry is required to raise objection which can be removed by a party or Advocate. Under Rule 15, preliminary hearing of defective petitions is required to be undertaken by the designated judge after the matter is placed before him. The petition is required to be scrutinised under Rule 19 on which date it shall be the duty of the petitioner or an Advocate in-charge to appear before the Court on the date of scrutiny and to comply ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 27 with the order or directions that may be given by the designated judge at the time of scrutiny.
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24. Under Rule 15(d), if the High Court finds that Sections 81, 82 and 117 of the Act have duly been complied with and that there has been substantial compliance with the other Rules and it is not necessary to have any other rectification or amendment made in the petition or other paper, the High Court
25.
r to shall order notice of the petition to be issued to the respondent or respondents, as the case may be.
The commencement of trial is provided under Section 21. The trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and to answer the claim or claims made in the petition.
26. Thus, it is evidently clear from the aforesaid Rules that it is after thorough scrutiny and after recording satisfaction that the petition has been filed strictly in accordance with the provisions of the Act and Rules, the same is placed before the designated judge. Once it is so then the petition cannot be dismissed at the threshold on the ground of any technical lacuna or defects so as to abort or frustrate the endeavour of the non-
applicant / petitioner to bring to trial the issue relating to the grounds set out in the election.
::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 2827. The reason for this is obvious. After all, this is a country governed by the Rule of Law where a concerted effort by .
all concerned has to be made to ensure that there is free, fair and fearless election and the same cannot be sacrificed at the altar of the superficial technicalities.
28. In case of Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, 2005 (2) SCC 188, appeals were filed before the Supreme Court against the order passed by the Bombay High Court dismissing the Election Petitions on the preliminary objections raised by the returned candidate. The question raised before the Supreme Court was, whether the Election Petitions could have been dismissed in limine under section 86 by reason of non-compliance of Sections 81(3), 83(1)
(a), (c) and 83(2) of the Act. The Hon'ble Three-Judges Bench following the decisions of the Constitution Bench in case of Muraka Radhey Shyam Ram Kumar and Ch. Subbrao's case (supra) and also considering various other judgments, observed in paragraph 81 thereof that the decisions in case of Satya Narain vs. Dhuja Ram reported in 1974 (4) SCC 237 and in case of Rajendra Singh vs. Usha Rani reported in 1984 (3) SCC 339 do not lay down good law and allowing the appeal the Hon'ble Supreme Court held that burden to prove that the election petition was not maintainable or the same should be dismissed ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 29 on the threshold lay on the respondents (applicant therein) and that the act of the officers of the High Court would draw a .
presumption in terms of Section 114(e) of the Evidence Act.
Hon'ble Justice S. B. Sinha, as His Lordship then was, in his concurring judgment observed as under:-
"85. Concededly, the officers of the High Court are required to perform administrative functions one of which is to scrutinise the election petition so as to ascertain as to whether the petitions filed before the Court are free from any defect. Such an official act would draw a presumption of having been performed in the ordinary course of business in terms of Section 114(e) of the Evidence Act.
86. In Jugal Kishore Patnaik vs. Ratnakar Mohanty Khanna, J., speaking for a three-Judge Bench raised a presumption of correctness as regards endorsement made by an officer of the court in respect of the election petition stating:
"We see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the procedural requirement."
29. As regards the contention of learned Senior Advocate for the petitioner, that the schedule and annexures have not been verified and have only been attested to be true which only needs to be reiterated that the verification contemplated under the Act is only that the copy supplied to the opposite party should be true copy of the original and it is not in dispute that ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 30 the copy so supplied to the applicant are not the true copy of the Election Petition.
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30. As held by the Constitution Bench of the Hon'ble Supreme Court in Muraka Radhey Shyam Ram Kumar vs. Roop Singh Ratore & others, 1964 (3) SCR 573, that the copy as contemplated in Part IV of the Act, 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.
31. Likewise another Constitution Bench of the Hon'ble Supreme Court in Ch. Subbarao vs. Member, Election tribunal, Hyderabad and Ors., 1964 AIR SC 1027, while considering the question whether the omission of the words true copy in the copies which were admittedly exact copies of the petition, constituted non-compliance of Section 81(3) so as to render the petition liable to be rejected. In this case also the petition was accompanied with the requisite number of copies specified in Section 81(3) but what was urged as regards certain defects in the copies filed. The Hon'ble Supreme Court observed:
"These defects fell into two types. First there were two matters which it was stated rendered the copies filed not true copies?. If the expressions copy or true copy were read as exact copies of the original, the copies filed did not satisfy that test. The two defendants were:::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 31
(1) The original petition contained the signature of the petitioner at the foot of the petition as required by Section .
83(1)(c) of the Act. In the copy filed there was no copy of this signature. To that extent therefore the copy was not an exact copy.
(2) The second matter under this head was that the verification in the copy served on the appellant did not exactly correspond to that in the original in that in the latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group. The other type of defect which was claimed to constitute non-compliance with Section 81(3) was that the words true copy with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed."
32. Similar issue was thereafter considered in detail by the Hon'ble Supreme Court in T. M. Jacob vs. C. Poulose, AIR 1999 SC 1359 and it was observed as under:-
"40. 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.
41. 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 original cannot be treated as a ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 32 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.
42. We have already referred to the defect which has been found in the copy of the affidavit served on the appellant in the present case. There is no dispute that the copy of the affidavit served on the appellant contained the endorsement to the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner before a Notary. Below the endorsement of attestation, it was also mentioned: Sd/-Notary. There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the Notary in the copy of the affidavit served on the appellant. There was no other defect pointed out either in the memo of objection or in C.M.P. No. 2903 of 1996 or even during the course of arguments in the High Court or before us. Could this omission be treated asan omission of a vital or material nature which could possibly mislead or prejudice the appellant in formulating his defence? In our opinion No. The omission was inconsequential. By no stretch of imagination can it be said that the appellant could have been misled by the absence of the name and seal or stamp of the Notary on the copy of the affidavit, when endorsement of attestation was present in the copy which showed that the same had been signed by the Notary. It is not denied that the copies of the Election Petition and the affidavit served on the appellant bore the signatures of respondent No. 1 on every page and the original affidavit filed in support of the Election Petition had been properly signed, verified and affirmed by the election petitioner and attested by the Notary. There has, thus, been a substantial compliance with the requirements of section 81(3) read with the proviso to section 83(1)(c) of the Act. Defects in the supply of true copy under section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 33 nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such .
cases would attract the provisions of section 81(3) read with section 86(1) of the Act. Same consequence would not follow from noncompliance with Section 83 of the Act.
43. We are unable to agree with Mr. Salve that since proceedings in election petitions are purely statutory proceedings and not ?civil proceedings? As commonly understood, there is no room for invoking and importing the doctrine of substantial compliance i to section 86(1) read with section 81(3) of the Act. It is too late in the day to so urge. The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr. Salve. That apart, to our mind, the Legislate intent appears to be quite clear, since it divides violations into two classes those violations which would entail dismissal of the election petition under section 86(1) of the Act like noncompliance with section 81(3) and those violations which attract section 83(1) of the Act i.e. noncompliance with the provisions of section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam, 1964 AIR(SC) 1545 and Ch. Subbarao s cases, 1964 AIR(SC) 1027. The defect of the type provided in Section83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure.
44. ........
45. 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 ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 34 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's case, 1964 AIR(SC) 1545 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.
33. In T. Phungzathang vs. Hangkhanlian, 2001 (7) JT 439, the Hon'ble Supreme Court summed up the law laid down in T. M. Jacob's case (supra) as under:-
"(i) The object of serving a true copy of an election petition and the affidavit filed in support of the allegations of corrupt practices of the respondent in the 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 of substance and not of form.
(ii) 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 person.
(iii) The word 'copy' does not mean an absolutely exact copy.
It means a copy so true that nobody can by any possibility misunderstand it.
::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 35(iv) Substantial compliance with Section 81(3) was sufficient and the petition could not be dismissed, in limine, under .
Section 86(1) where there had been substantial compliance with the requirements of Section 81(3) of the Act.
(v) There is a distinction between non-compliance with the requirement of Section 81(3) and Section 83. A substantial compliance with the requirement of Section 81 (3) read with the proviso to Section 83(1) of the Act is enough. Defects in the supply of true copy under Section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provision of Section 81(3) read with Section 86(1) of the Act. The same consequence would not follow from non-compliance with Section 83 of the Act.
(vi) The argument that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into Section 86 (1) read with Section 81 (3) of the Act, cannot be accepted and has to be repelled.
(vii) It is only the violation of Section 81 which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam and Ch. Subbarao cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the code of Civil Procedure. This clearly emerges from the scheme of Section 83(1) and 86(5) of the Act.
(viii) 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 ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 36 as of a vital nature or these 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 test suggested in Murarka Radhey Shyam case are sound tests and are now well settled."
34. In case of Umesh Challiyill vs. K. P. Rajendran reported in 2008 (11) SCC 740, the Hon'ble Supreme Court while dealing with the preliminary objections that the affidavit in Form 25 was not affirmed, the affirmation was not duly certified, their verification of the election petition was defective, the source of information as regards the allegations of corrupt practices was vague and lacked pleadings as regards material particulars, considered the scope of Section 83 of the said Act and held inter alia that the election petition cannot be dismissed under Section 86(1) at the outset on the ground that technical or cosmetic defect, but the election petition can be dismissed on the ground of it being not properly constituted as required under the provisions of CPC. The relevant observations read as under:-
" Both the defects which have been pointed out by learned Single Judge were too innocuous to have resulted in dismissal of the election petition on the basis of the preliminay objection. The Courts have to view it whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart the election petition should not be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should contain material facts. Section 86 says that the High Court shall dismiss the election petition which does not comply with the ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 37 provisions of Section 81 or Section 82 or Section 117. But not of defect of the nature as pointed out by the respondent would entail dismissal of the election petition. These were .
the defects, even if the Court has construed them to be of serious nature, at least notice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset.
20. However, in fairness whenever such defects are pointed then the proper course for the Court is not to dismiss the petition at the threshold. IN order to maintain the sanctity of the election the Court should not take such a techical attitue and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/ cure the defects, it could result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as requried under the provisions of the CPC but in the present case we regret to record that the defects which have been pointed out in this election petition was purely cosmetic and it does not go to the root of the matter and secondly even if the Court found them of serious nature then at least the court should have given an opportunity to the petitioner to rectify such defects.
35. Apart from the above, it is significant to note that the applicant has nowhere alleged in the application that the omission or lacuna has mislead the applicant or has caused any prejudice to the applicant in preparing his defence while filling written statement.
36. In view of the aforesaid discussion, the application is bereft of any merit, insofar as that seeks rejection of the petition ::: Downloaded on - 26/04/2019 22:14:19 :::HCHP 38 on the ground that there is violation of statutory provisions, more particularly, the provisions of the Representation of the People .
Act, 1951 and to that extent the application is dismissed.
37. Now to come up on 10-06-19 for arguments on the other plea raised by the applicant to the effect that the petition does not disclose any cause of action.
25th April, 2019
(sanjeev) r to (Tarlok Singh Chauhan)
Judge
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