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PETITIONER: KAMALAM (M)

       Vs.

RESPONDENT: DR. V. A. SYED MOHAMAD

DATE OF JUDGMENT08/03/1978

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. SINGH, JASWANT

CITATION:  1978 AIR  840            1978 SCR  (3) 446  1978 SCC  (2) 659  CITATOR INFO :  R          1980 SC 303  (16)  RF         1983 SC 558  (38)  D          1991 SC1557  (21,26,31)

ACT: Representation  of  the People Act, 1951, Ss, 81(3)  83  and 86(i)-Election Petition and affidavit were tied together  as one  document and two copies thereof filed for  services  on the   respondent-Signature  of  the  appellant  by  way   of authentication  appearing  at the foot of the  copy  of  the affidavit,  but not separately appended at the foot  of  the copy  of  the  election  petition-Whether  there  was   non- compliance  with S. 81(3) and the election, petition  liable to  be dismised u/s 86(1)-Interpretation of S. 81(3) in  the light of Ss. 83 and 86(1).

HEADNOTE: Sub  section (3) of Section 81 of the Representation of  the People Act, 1951 requires that 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.  Where the  petition alleges any corrupt practice, the proviso to S.   83(1)   of the   Act  requires  that  "the  petition  shall   also   be accompanied by an   affidavit  in  the  prescribed  form  in support  of the allegation of such corrupt practice and  the particulars thereof." The appellant, a rival candidate, challenged the election of the respondent to the Lok Sabha in the elections held on 19- 3-1977 from Kozhikode constituency under the  Representation of  the  People Act, 1951 alleging  corrupt  practice.   The election  petition  was  duly signed  and  verified  by  the appellant and it was accompanied by the requisite  affidavit in support of the allegations of corrupt practice and  their particulars. : The election petition and the affidavit  were tied  together  as  one  document.   The  signature  of  the appellant by way tit authentication appeared at the foot  of the  copy of the affidavit, but there was no such  signature separately appended at the foot of the copy of the  election petition.   The  respondent raised a  preliminary  objection against  the maintain. ability of the election petition  and

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contended  that since the copy of the election petition  was not attested by the appellant under,her own signature to  be a  true copy, there was non-compliance with section 81,  sub section  (3)  and  hence the petitioner  was  liable  to  be dismissed vide Section 86, sub section (1).  The High  Court accepted the contention and dismissed the petition. Allowing the appeal under section 116A of the Representation of the People Act. 1951, the Court. HELD : (1) The election petition is in truth and reality one document  consisting  of two parts, one being  the  election petition  proper and the other being the affidavit  referred to  in  the  proviso to section 83,  sub-section  (1).   The context  in Which the proviso occurs clearly  suggests  that the  affidavit  is intended to be regarded as  part  of  the election   petition  Otherwise  fit  need  not   have   been introduced in a section dealing with contents of an election petition nor figured as a proviso to a subsection which lays down  what  shall be the contents of in  election  petition. The copy of the election petition required to be filed under the  first  part of sub section (3) of  Section  81,  would, therefore,,  on a fair reading of that provision along  with section  83, include a copy of the affidavit [450 H, 451  A, H, 452 Al Sahodrabai  Rai  v.  Ram Singh Aharwar,  [1968]  3  SCR  13, applied. (2)  The  law  does  not  require  that  the  authenticating signature  must be made by the petitioner at any  particular place  in the copy of the election petition.  It may  be  at the  top  of the copy or in the middle or at the  end.   The place of signature is immaterial so long as it appears  that it  is  intended to authenticate the  copy.   When  original signature is made by the petitioner on the 447 copy  of  the election petition, it can safely  be  presumed that  the  signature  is made by the petitioner  by  way  of authenticating  the copy to be a true copy of  the  election petition.   In the instant case the requirement of the  last part  of sub-section (3) of section 81 was complied with  by the  appellant  in  as  much as the  copy  of  the  election petition  was  authenticated  to  be  a  true  copy  by  the appellant  by placing her signature at the foot of the  copy of  the  affidavit  which formed part of  the  copy  of  the election petition. [452 C-F] Ch.   Subba  Rao v. Member,  Election  Tribunal,  Hyderabad, [1964] 6 S.C.R. 213; followed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1963  of 1977. (Appeal from the Judgment and Order dated the 6th July, 1977 of  the  Kerala  High Court in-Election Petition  No.  6  of 1.977) V.  M.  Tarkunde,  A.  S. Nambiar  &  P.  Nambiar,  for  the Appellant. S.  T. Desai, S. K. Mehta, K. R. Nagaraja & P. N. Puri,  for the Respondent. The Judgment of the Court was delivered by BHAGWATI, J. This appeal arises out of an election  petition filed  by  the  appellant  in  the  High  Court  of   Kerala challenging the election of the respondent to the Lok  Sabha from Kozhikode constituency under the Representation of the, People  Act,  1951 (hereinafter referred to, as,  the  Act). The election was held on 19th March, 1977 and the respondent

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having secured the majority of votes was declared elected to the, Lok Sabha on 20th March, 1977.  The appellant, who  was a  rival candidate, filed an election petition in  the  High Court  of Kerala challenging the election of the  respondent on various grounds., one of which was commission of  certain corrupt  practices  set out in the election  petition.   The election  petition  was  duly signed  and  verified  by  the appellant and it was accompanied by the requisite  affidavit in support of the allegations of corrupt practice and  their particulars.   The election petition and the affidavit  were tied  together  as  one  document and  two  copies  of  this document  were  filed for service on  the  respondent.   The signature of the appellant by way of authentication appeared at  the foot of the copy of the affidavit, but there was  no such signature separately .appended at the foot of the  copy of  the  election petition.  The respondent.  therefore,  on filing  his  appearance,  raised  a,  preliminary  objection against  the maintainability of the election, petition-  and contended  that since the copy of the election petition  was not attested by the appellant under her own signature to  be a true copy, there was non-compliance with section 81,  sub- section (3) and hence the election petition was liable to be dismissed  under  section 86, sub-section (1)  of  the  Act. This preliminary objection was tried first, since if it  was well  founded,  the  High Court was  bound  to  dismiss  the election  petition  and  could not proceed  to  hear  it  on merits.   The  High  Court delivered its  judgment  on  this preliminary  issue  on 6th July, 1977, and  held  that  what section  81, sub-section (3) requires is attestation of  the copy  of the election petition under the signature  :of  the petitioner and since in the present 448 case, signature by way of attestation was on the copy of the affidavit  and  not on the copy of  the  election  petition, there  was non-compliance with section 81,  sub-section  (3) and  the  election petition was liable to  be  dismissed  in limine  under sub-section (1) of section 86.  The  appellant being  aggrieved by the dismissal of the election  petition, preferred the present appeal under S. 116A of the Act. The controversy between the parties in this appeal lies in a narrow  compass.   But before we deal with it, it  would  be convenient at this stage to refer to the relevant provisions of  the  Act  which have a bearing on  the  arguments  urged before us.  Part VI of the Art is headed "Disputes Regarding Elections"  and  Chapter  II in that  part  deals  with  the presentation of election petitions to the High Court Section 80  provides  that no election shall be called  in  question except by an election petition presented in accordance  with the provisions of Part VI.  Section 80A lays down the  forum which  shall have jurisdiction to try an  election  petition and the High Court is designated as such forum.  Then  comes section 81 which is a little important.  It reads               "81.  Presentation of petition.-               (1)  An election petition calling in  question               any  election may be presented on one or  more               of the grounds specified in sub-section (1) of               section 100 and section 101 to the High  Court               by  any  candidate  at such  election  or  any               elector  within forty-five days from, but  not               earlier  than,  the date of  election  of  the               returned candidate, or if there are more  than               one returned candidate at the election and the               dates  of  their election are  different,  the               later of those two dates.               Explanation.-In  this  sub-section,   ’elector

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             means a person who was entitled to vote at the               election   to  which  the  election   petition               relates, whether he hag voted at such election               or not.               x              x               x               (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." The  election  petition here was accompanied by  two  copies thereof,  though there was only one respondent mentioned  in the election petition.  There was admittedly compliance with the  first  part  of sub-section (3)  of  section  81.   The dispute  between the parties was only as regards  fulfilment of  the  last  part of section  81,  sub-section  (3)  which requires  that  every  such copy shall be  attested  by  the petitioner under his own signature to be a true copy of  the election petition.  The argument of the respondent was,  and that is the argument which found favour with the High Court, that  neither  of the two copies of  the  election  petition filed  by  the appellant was attested by her under  her  own signature to be a true copy of the election petition.  There was  undoubtedly signature of the appellant at the  foot  of the  copy  of the affidavit which was filed along  with  the election petition, but there being no signature by 449 way  of  attestation on the copy of the  election  petition, there was noncompliance with sub-section (3) of section  81. We  shall  presently  consider this  argument,  but  in  the meanwhile  we may proceed with the summary of  the  relevant provisions  of  the  Act.  Section 82,  which  is  the  next section,  lays  down  who shall be parties  to  an  election petition.  We need not refer to this section in detail since we  are  not  concerned with it.  Section  83  is,  however, material  and it provides what shall be the contents, of  an election petition.  It reads               "83.  Contents of petition.-               (1)   An election petition-               (a)  shall contain a concise statement of  the               material facts on which the petitioner relies;               (b)  shall set forth full particulars  of  any               corrupt practice that the petitioner  alleges,               including  as full a statement as possible  of               the  names  of the parties  ,alleged  to  have               committed  such corrupt practice and the  date               of the commission of each such practice; and               (c)  shall  be signed by  the  petitioner  and               verified  in the manner laid down in the  Code               of  Civil Procedure, 1908 (5 of 1908) for  the               verification of pleadings :               Provided that where the petitioner alleges any               corrupt  practice, the petition shall also  be               accompanied by an affidavit in the  prescribed               form in support of the allegation of such cor-               rupt practice and the particulars thereof.               (2)  Any schedule or annexure to the  petition               shall  also  be signed by the  petitioner  and               verified in the same manner as the petition." It  was in compliance with the proviso to section  83,  sub- section  (1)  that  along  with  the  election  petition  an affidavit in the prescribed form was filed by the  appellant in support of the allegations of corrupt practice set out in

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the  petition and the particulars of such corrupt  practice. The  two  copies  of  the election  petition  filed  by  the appellant also carried copies of this affidavit attached  to them and the signature of the appellant appeared at the foot of  each of the copies of the affidavit.  Section 84 is  not material and we may omit reference to it. The next chapter, which is Chapter III, deals with the trial of  the  election petition, but here we are  concerned  only with  sub-section (1) of section 86, since it is under  this provision  that the election petition of the  appellant  was dismissed  by’ the High Court.  Section 86,  subsection  (1) reads as follows :               "86.  Trial of election petitions.-               (1)  The High Court shall dismiss an  election               petition  which  does  not  comply  with   the               provisions  of  section 81 or  section  82  or               section 117.               Explanation.-An   order  of  the  High   Court               dismissing  an  election petition  under  this               sub-section  shall  be deemed to be  an  order               made under clause (a) to section 98." 450 There  can be no doubt that if the election petition of  the appellant  did not comply with the last part of  sub-section (3)  of  section  81,  the  High  Court  was  justified   in dismissing  the  election petition under  section  86,  sub- section  (1) : in fact it had no other option but to do  so. The question, therefore, is whether the appellant failed  to comply with the requirement of the last part of  sub-section (3) of section 81. There were two copies of the election petition filed by  the appellant  and  to each of these two copies was  attached  a copy of the affidavit.  Both these copies were identical and hence we may look at either of ment of the last part of sub- section (3) of s. 81.  What that part requires is that every copy  of  the election petition filed by  the  petitioner  " shall be attested by the petitioner under his own  signature to be a true copy of the petition." Now, one thing is clear as  a result of the decision of this court in Ch.   Subbarao v.  Member, Election Tribunal, Hyderabad(1) that it  is  not necessary that there should be a ’statement in so many terms in  the copy of the election petition that the signature  of the  petitioner has been put by way of authenticating it  to be  a  true  copy  and it is enough that  the  copy  of  the election  petition  bears the signature of  the  petitioner, because  when the petitioner has put his original  signature on the copy of the election petition, it can only be for the purpose  of  attesting it as a true copy.  But here  in  the present case.the signature of the appellant appeared only at the  foot  of  the copy of the affidavit and  there  was  no signature  of the appellant at anyplace in the copy  of  the election  petition  and  there was thus,  according  to  the respondent, noncompliance with the last part of  sub-section (3)  of section 81.  The appellant, however, submitted  that the  affidavit was a part of the election petition  and  the copy  of the election petition, therefore, consisted of  two parts, one being copy of the election petition proper, if we may  so call it, and the other being copy of the  affidavit. The  signature of the appellant at the foot of the  copy  of the affidavit was, therefore, said the appellant,  referable not  only to the copy of the affidavit but also to the  copy of the election petition proper and hence the requirement of the last part of sub-section (3) of section 81 was  complied with  by  the appellant.  These rival contentions  raise  an interesting question of law depending on the  interpretation

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of  section 81, sub-section (3) in the light of  section  83 and section 86, sub-section (1). Now,  the first  question  which  arises  is  as  to  what constitute  an election petition for the purpose of  section 81,  sub-section  (3).   Is it  confined  only  to  election petition  proper  or  does it also  include  a  schedule  or annexure contemplated in sub-section (2) of section 83 or  a supporting  affidavit referred to in the proviso to  section 83, sub-section (1) ? To answer this question, we must  turn to  section  83  which deals with contents  of  an  election petition.  Sub-section (1) of that section sets out what  an election  petition shall contain and provides that it  shall be signed by the petitioner and verified in the manner  laid down   in  the  Code  of  Civil  Procedure  1908   for   the verification of pleadings.  The proviso requires that  where the petitioner alleges any corrupt practice, (1) [1964] 6 S.C.R. 213. 451 prescribed form in support of the allegation of such corrupt practice the election petition shall also be accompanied  by an  affidavit  in  the and  the  particulars  thereof.   The context  in which the proviso occurs clearly  suggests  that the  affidavit  is intended to be regarded as  part  of  the election  petition.   Otherwise,  it  need  not  have   been introduced in a section dealing with contents of an election petition nor figured as a proviso to a subsection which lays down  what  shall be the contents of an  election  petition. Sub-section (2) also by analogy supports this inference.  It provides  that  any  schedule or  annexure  to  an  election petition  shall be signed by the petitioner and verified  in the  same  manner  as  an  election  petition.   It  is  now established by the decision of this Court in Sahodrabaj  Rai v. Ram.Singh Aharwar(1) that sub-section (2) applies only to a  schedule  or annexure which is an integral  part  of  the election petition and not to a schedule or annexure which is merely  evidence  in the case but which is  annexed  to  the election petition merely for the sake of adding strength  to it.  The scope and ambit of sub-section (2) was explained in the following words by Hidayatullah, J speaking on behalf of the Court in Sahodarbai’s case (supra) at pages 19-20 :               "  We are quite clear that sub-section (2)  of               section  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.  We can give quite  a               number  of  examples from which  it  would  be               apparent  that  many of the averments  of  the               election petition are capable of being put  as               schedules  or  annexures.   For  example,  the               details  of the corrupt practice there in  the               former  days used to be set out separately  in               the schedules and which may, in some cases, be               so  done  even  after  the  amendment  of  the               present   law.   Similarly,  details  of   the               averments  too compendious for being  included               in the election petition may be set out in the               schedules   or  annexures  to   the   election               petition.   The  law then requires  that  even               though they are outside the election petition,               they  must  be signed and verified,  but  such               annexures  or  schedules are then  treated  as               integrated  with  the  election  petition  and               copies   of  them  must  be  served   on   the

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             respondent   if  the   requirement   regarding               service  of  the election petition is,  to  be               wholly  complied with.  But 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 these               averments and in proof therof." It would, therefore, be seen that if a schedule or  annexure is  an  integra part of the election petition,  it  must  be signed by the petitioner an verified. since it forms part of the  election petition.  The subject-matter sub-section  (2) is thus a schedule or annexure forming part of the  election petition  and hence it is placed in section 83  which  deals wit (1) [1968] 3 S.C.R. 13. 452 contents  of an election petition.  Similarly, and  for  the same  reasons, the affidavit referred to in the  proviso  to Section 83, sub-section (1) also forms part of the  election petition.  The election petition is in truth and reality one document  consisting  of two parts, one being  the  election petition  proper and the other being the affidavit  referred to in the proviso to section 83, sub-section (1).  The  copy of  the  election petition required to be  filed  under  the first  part  of  sub-section  (3)  of  section  81,   would, therefore,  on a fair read in of that provision  along  with section  83, include a copy of the affidavit.  That  is  why the  appellant attached a copy of the affidavit to the  copy of  the  election petition proper and filed the two  as  one single document along with the election petition. Now,  it  is  true that no signature  was  appended  by  the appellant  on the copy of the election petition  proper  and the signature was placed only at the foot of the copy of the affidavit,   but  that,  in  our  opinion,  was   sufficient compliance  with  the requirement of the last part  of  sub- section  (3) of section 81.  The copy of the affidavit  was, for  reasons  already  discussed, part of the  copy  of  the election  petition and when the appellant put his  signature at the foot of the copy of the affidavit, it was  tantamount to appending signature on the copy of the election petition. The  law does not require that the authenticating  signature must  be made by the petitioner at any particular  place  in the copy of the election petition.  It may be at the top  of the  copy or in the middle or at the end.  The place of  the signature  is immaterial so long as it’ appears that  it  is intended to authenticate the copy.  When original  signature is  made  by  the petitioner on the  copy  of  the  election petition, it can safely be presumed, as pointed out by  this Court  in Ch.  Subbarao case (supra), that the signature  is made by the petitioner by way of authenticating the document to  be a true copy of the election petition.  Now, here  the appellant  placed her signature in original at the  foot  of the copy of the affidavit and the copy of the affidavit  was part  of a composite document, namely, copy of the  election petition,  and hence the signature of the appellant must  be regarded as having been appended on the copy of the election petition.   In fact, the copy of the  affidavit  constituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the  affidavit  was,  therefore, clearly  referable  to  the entire  copy preceding it and it authenticated the whole  of

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the  copy of the election petition to be a: true  copy.   We cannot,  in the circumstances, accept the contention of  the respondent  that the copy of the election petition  was  not attested  by the appellant under her own signature to  be  a true copy of the petition.  The requirement of the last part of  sub-section (3) of section 81 was complied with  by  the appellant inasmuch as the copy of the election petition. was authenticated to be a true copy ’by the appellant by placing her signature at the foot of the copy of the affidavit which formed part of the copy of the election petition.  The  High Court was clearly in error dismissing the election  petition under sub-s. (1) of sec. 86. We accordingly allow the appeal, set aside the judgment  and order of the High Court and remand the election petition  to the  High Court with a direction to dispose it of on  merits in  accordance with law.  The respondent will pay the  costs of the appeal to the appellant. S.R.                          Appeal allowed. 453