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PETITIONER: T.M. JACOB

       Vs.

RESPONDENT: C. POULOSE & ORS.

DATE OF JUDGMENT:       15/04/1999

BENCH: S.B.Majmudar, Sujata V. Manohar, K.Venkataswami, V.N.Khare

JUDGMENT:

DR. A.S. ANAND, CJI.

     This  appeal  by special leave is directed against  an order  dated 18th September, 1996 passed by a learned Single Judge  of the High Court of Kerala rejecting the application made  by the appellant herein seeking dismissal of  Election Petition  No.8 of 1996 on various grounds.  The brief  facts are :  The appellant (returned candidate) was elected to the Kerala  State Legislative Assembly from Priavom Constituency No.79.   While  the  appellant   had  secured  51873  votes, respondent  No.1  (election petitioner) had  received  44165 votes.   After the result of the election was declared,  the first  respondent  filed  Election  Petition  No.8  of  1996 challenging  the election of the appellant alleging that the election  of  the appellant stood vitiated by commission  of various  corrupt  practices,  as detailed  in  the  Election Petition.   The  Election  Petition   was  resisted  by  the appellant  and on 29.7.1996 the appellant filed his  written objections.   Various  objections  were raised but  for  the purpose  of this appeal we are concerned with the  objection raised  in  paragraph  39 of the written objections  to  the effect  that Annexure XV supplied to the appellant was not a true  copy  of Annexure XV filed with the Election  Petition and the election petition was liable to be dismissed on that score  alone  for  non-compliance with the  requirements  of Section  81(3)  of  the Representation of People  Act,  1951 (hereinafter  the  Act).  Respondent No.4 to the  Election Petition  also  raised  a preliminary objection on  30th  of July,  1996.   That objection however, has no relevance  for the  present appeal.  Respondent No.1 filed his reply to the written  objections  on  6.8.1996 in which, inter  alia,  he asserted  in paragraph 15 that copy of Annexure XV served on the  appellant  was a true copy of Annexure XV filed  with the  Election Petition and that there was no failure on  his part  to comply with Section 81(3) of the Act.  On 6.8.1996, the  appellant  filed a petition, C.M.P.  No.2903  of  1996, praying   that  the  Election   Petition  be  dismissed  for non-compliance  with the provisions of section 81(3) of  the Act.   The  main  objection  raised in  this  petition  also centered  around  Annexure  XV,   report  in  the  newspaper Rashtra Deepika.  Paragraphs 4 and 5 of C.M.P.  No.2903 of 1996  read thus :  4.  I have filed my written statement of objections  to  the Election Petition on 29.7.1996.  I  have raised a preliminary objection to the maintainability of the petition  under  section 81(3) of the Representation of  the

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People Act.  Section 83 clauses (a) and (b) contemplate that an  election  petition shall contain a concise statement  of the  materials  and also set forth full particulars  of  any corrupt  practice.   So whenever there is an  allegation  of corrupt  practice  may  be contained in a document  and  the election  petitioner  may refer to such document.  But  when such  document should be supplied to the opposite party.  It forms an integral part of the election Petition.

     5.  In this case, the petitioner has produced Annexure XV  a daily newspaper Rashtra Deepika to prove one of the corrupt   practices.   Though  a   report  is  mentioned  in paragraph  36 of the Election Petition a copy of the  report was  not  served  on  me.  Hence  I  verified  the  original petition and found out that the averments in paragraph 36 of the  Original  Petition  and the report in Annexure  XV  are entirely different.  Non supply of the report to me is fatal to  the maintainability of the Election Petition as  Section 81  (3) of the Representation of the People Act provides for giving  a  true  copy  of   the  Election  Petition  to  the respondent  mandatorily.  The copy served on this respondent does not tally with the original Election Petition submitted in  the court.  Even the contents of para 36 of the Election Petition  do  not  tally  with the statements  made  in  the newspaper  report in Rashtra Deepika filed by the petitioner with  the  Election  Petition  as  filed  in  court.   As  a consequence  there  is a non-compliance of the  requirements provided  in  section 81(3) of the R.P.  Act  which  entails dismissal of the Election Petition as mandated by section 86 of the R.P.  Act.

     While   C.M.P.    No.2903   of    1996   was   pending consideration, on 19.8.1996, the appellant filed yet another memo  of  objection through his Advocate, stating  that  the copy  of the Election Petition served on him was  defective. That  Memo  reads thus :  MEMO SUBMITTED BY  S.   NARAYANAN POTI, ADVOCATE, FOR THE IST RESPONDENT IN THE ABOVE CASE.

     I  am  herewith  submitting the copy of  the  Election Petition  No.8  of  1996 served on the  1st  respondent  for information  of  the Honble Court, especially copy  of  the affidavit  in  form 25 as per Rule 94( ) of the  conduct  of Election  Rules 1961 in order to show that the  verification of  the Notary Public is not contained therein and therefore the  copy  is defective.  Both the copies served on the  1st respondent are identical.

     Respondent No.1 filed his reply both to the above memo as  also  to  C.M.P.  No.2903 of 1996 on 2nd  of  September, 1996.   Apart from stating that objection regarding  alleged defect  in the supply of true copy of the petition had  been raised  after issues had been framed, it was maintained that the  objection  contained  in the memo  filed  on  19.8.1996 appears  to have been influenced by the observations made by this  Court  in Dr.  (Smt.) Shipra & others v.   Shanti  Lal Khoiwal  &  others,  (1996) 5 SCC 181 and had  no  validity. Respondent  No.   1  stated in paragraph 3 of  his  reply  : Admittedly in the copy returned by the first respondent the attestation  part is conspicuously present.  The  petitioner has  signed the same and the Advocate has also attested  the same.   Above the word Notary it has been shown as signed. Therefore the petitioner is advised to submit that the first respondent  is not entitled to draw comfort from the Supreme Court decision as the affidavit in that case did not contain

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the  attestation part at all.  It is also understood that in that  case  the attestation in the original was done by  the Notary  by-hand (in manuscript) and therefore understandably the copies did not contain the solemnisation and attestation by  Notary.  The present affidavit does not suffer from  the grave  lapse which was the subject matter of scrutiny before the Supreme Court.

     It  was  further  asserted  that  the  petitioner  had complied with Rule 94 A as well as form 25 of the Conduct of Election  Rules,  1961 (for short the Rules) while  filing the  affidavit  in  support of the  allegations  of  corrupt practice  and that there had been no breach of section 81(3) of  the Act.  In paragraph 7 respondent No.1 stated :   The petitioner  submits that no prejudice has been caused to the first  respondent.  If he felt any difficulty in the  copies supplied  to  him he would not have ventured into  filing  a detailed written statement of objections.  The petitioner is advised  to  submit that the first respondent ought to  have raised  this objection before he filed his written statement of  objections it should be presumed that every  allegations contained  in  the E.P.  including those pertaining  to  the allegation  of the corrupt practices by the first respondent has  been answered by him to his satisfaction in his written statement  of objection.  Therefore, it has to be understood that  the  first respondent has taken the copy of  the  E.P. served  on  him as an absolutely true copy as he  has  acted upon  it in that manner.  After that the first respondent is not  entitled  to  turn  back and erase the  effect  on  the efforts  he  has already made to defend this case  by  going back   in  time  and   raising  preliminary  objections   on maintainability at this stage of the proceeding.

     In  the circumstances the petitioner most humbly prays that  this Honble Court may be pleased to reject the  first respondents Memo dated 19-8-1996 on these and other grounds to  be  urged  at  the time of  hearing  duly  allowing  the continuation of the trial of the E.P.

     On  13th  August,  1996 at the suggestion  of  learned counsel  for  the  parties, following additional  issue  was raised  as  issue  No.1 Whether the  Election  Petition  is liable  to be dismissed for the reasons mentioned in  C.M.P. 2903 of 1996 ?

     In  the High Court, in support of issue No.1,  learned counsel  for the appellant relied upon the judgment of  this Court  in Dr.  Shipras case (supra).  It was submitted that the  vice which had been noted in Dr.  Shipras case (supra) in  the  copy  of  the  affidavit  served  on  the  returned candidate  along with the copy of election petition in  that case  was  also present in the present case inasmuch as  the verification of the affidavit, on the copy of the affidavit, supplied   to  the  appellant  did   not  tally   with   the verification  of the affidavit filed along with the election petition.   It was pointed out that neither the name of  the Notary, nor the stamp and seal of the Notary, had been fixed below the attestation of the verification on the copy of the affidavit,   supplied  to  the   appellant,  though  in  the affidavit  filed along with the election petition, the name, stamp  and  seal  of the notary, after  the  attestation  of verification  by  him were very much present and because  of non-supply  of  true copy of the affidavit,  the  election petition  suffered from the defect covered by section  81(3) of  the  Act.   The High Court, however, did not  agree  and

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found  that the vice which had been noticed in Dr.  Shipras case  was  not present in the present case inasmuch  as  the omissions  pointed out in the copy of the affidavit served on  the  appellant did not render that copy as not  a  true copy,  and  there had been substantial compliance with  the provisions  of  Section 81(3) besides the alleged  variation could   not  cause  any  prejudice   to  the  appellant   in formulating his defence.  The second objection raised in the High Court, was about the alleged non-supply of true copy of Annexure  XV  to  the  appellant.  Insofar  as  this  second objection is concerned, the learned single Judge of the High Court  compared  the  copy  of Annexure  XV  served  on  the appellant  with the copy of Annexure XV as filed along  with the  Election Petition and found that the two were identical and  that there was no variation between the two.  The  High Court,  therefore,  held that the Election Petition was  not defective  on that score either.  The High Court accordingly rejected the preliminary objection and deciding issue No.  1 held  that election petition was not liable to be  dismissed on  the  grounds raised by the appellant.  The order of  the High  Court  has been put in issue by the appellant in  this appeal  by  special leave.  After leave was granted by  this Court,  the  following order was made on 18.12.1997 :   The main point urged by the learned counsel for the appellant is that  a  copy  of the affidavit supplied  to  the  appellant together  with the notice of the Election Petition is not  a true  copy  inasmuch  as it does not indicate the  name  and designation  of  the  Notary nor does it bear the  seal  and stamp  of  the Notary.  On this basis, it is contended  that there  is non- compliance of Section 81(3) because of  which the  Election  Petition  is liable to be  dismissed  at  the threshold  under  Section  86(1) of  the  Representation  of People   Act.   Sh.   Sorabjee,   learned  counsel  for  the appellant  places reliance on the decision in Dr.  Shipra v. Shanti  Lal  Khoiwal  (1996)  5 SCC  181,  particularly  the opinion  of  Justice Paripoornan therein read with  that  of Justice  K.   Ramaswamy.   Sh.  Sorabjee submits  that  even though  from the supplementary opinion of Justice  Bharucha, contained  in para 17 of the report, identity on this  point may  not  be explicit but there being no reservation in  the opinion  of Justice Bharucha on this point, this view is  to be  construed  as the unanimous decision of the  three-Judge Bench.

     Having  heard Sh.  Sorabjee, we are not too sure  that the  principle  indicated in the said decision can apply  to the facts of the present case but certain wide observations, in  the  opinion  of  Justice  Paripoornan  and  Justice  K. Ramaswamy,  may support the appellants contentions.  In our opinion,    the    matter     would,   therefore,    require re-consideration by a larger Bench to decide whether even in a  case like the present one, the decision in Dr.  Shipra v. Shanti Lal Khoiwal (1996) 5 SCC 181 can apply.

     The  papers  be  laid  before the  Chief  Justice  for constitution of a larger Bench.

     That  is, how, this appeal has been placed before  the Constitution  Bench.   We  have  heard  Mr.   Harish  Salve, learned  senior counsel appearing for the appellant and  Dr. Rajeev   Dhavan,  learned  senior   counsel  appearing   for respondent  No.1 and examined the record.  From a perusal of the  order  of  reference it is seen that the scope  of  the reference  is rather limited to consider whether in a  case like  the  present one the decision in Dr.   Shipras  case

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(supra)   can   apply   keeping  in   view   certain   wide observations  made in the opinions of Justice K.  Ramaswamy and  Justice Paripoornan in that case.  It would, therefore, be  desirable,  at  this stage, to first consider  the  fact situation  as  existing in Dr.  Shipras case :  A batch  of appeals came to be dealt with in Dr.  Shipras case.  In all the  appeals, the only question that arose for consideration was whether the copy of the election petition accompanied by supporting  affidavit in Form 25 prescribed under Rule  94-A of  the  Conduct  of Elections Rules, 1961,  served  on  the respective  respondents but not containing the  verification of  attestation made by the District  Magistrate/Notary/Oath Commissioner,  could be said to be a true and correct copy of  the  election petition as envisaged by section 81(3)  of the Act ?  K.  Ramaswamy, J.  who authored the lead judgment referred  to  various provisions of the Act and a number  of judgments  dealing with the scope of Section 81(3) read with Section  86(1)  of  the Act and approving the  view  of  the Bombay  High Court in Purushottam v.  Returning Officer, AIR 1992 Bombay 227, observed :

     In  Purushottam  v.   Returning Officer  the  present question  had  directly  arisen.   In  that  case  the  copy contained omission of vital nature, viz., the attestation by the  prescribed authority.  The High Court had held that the concept  of  substantial  compliance cannot be  extended  to overlook  serious or vital mistakes which shed the character of  a  true copy so that the copy furnished to the  returned candidate  cannot be said to be a true copy.  We approve  of the  above  view.   Verification by a Notary  or  any  other prescribed  authority is a vital act which assures that  the election  petitioner  had  affirmed before the  Notary  etc. that   the  statement  containing   imputation  of   corrupt practices  was  duly  and solemnly verified  to  be  correct statement  to  the best of his knowledge or  information  as specified  in the election petition and the affidavit  filed in  support thereof;  that reinforces the assertions.   Thus affirmation before the prescribed authority in the affidavit and  the  supply of its true copy should also  contain  such affirmation  so  that  the returned candidate would  not  be misled  in  his  understanding that  imputation  of  corrupt practices  was solemnly affirmed or duly verified before the prescribed  authority.   For that purpose, Form 25  mandates verification  before  the prescribed authority.  The  object appears to be that the returned candidate is not misled that it  was  not  duly  verified.  The  concept  of  substantial compliance of filing the original with the election petition and  the  omission  thereof  in the  copy  supplied  to  the returned  candidate  as  true copy cannot be said  to  be  a curable  irregularity.  Allegations of corrupt practices are very  serious  imputations  which, if proved,  would  entail civil  consequences of declaring that he became disqualified for election for a maximum period of six years under Section 8-A, apart from conviction under Section 136(2).  Therefore, compliance  of the statutory requirement is an integral part of  the  election  petition and true copy  supplied  to  the returned  candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified  to  be  true copy by the election  petitioner  in his/her  own  signature.   The   principle  of   substantial compliance  cannot  be  accepted   in  the  fact-situation. (Emphasis ours)

     Paripoornan, J.  in his supplementing view, while also agreeing with the view of Bombay High Court in Purushottams

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case opined :

     In  my opinion, the above decision lays down the  law correctly and is squarely applicable herein.  In particular, the following observations in the unreported decision of the Bombay  High Court in Election Petition No.2 of 1990  quoted in  para 12 of the judgment of Qazi, J.  are instructive and furnish  sufficient basis to reach the said conclusion.  The observations are to the following effect:

     That,  however,  leaves one question to be  considered and  it is whether the copy of the endorsement Affirmed and signed  before me by the Notary, designation of the  Notary and  the stamped endorsement regarding the affirmation which he  made  at the time of the making of the  affidavit,  were necessary  and essential parts of the document and if  these are  omitted from the copy furnished, that would render  the copy,  which is furnished, incomplete, and the defect  would be so glaring as to negative the inference that the copy was furnished.  When Form No.25 prescribes a particular form and the  copy of that affidavit is to be furnished, it seems  to me  that  the endorsement of the authority before  whom  the affirmation was made, together with his official designation and  the stamped endorsement, are also essential and without them  the  copy cannot be regarded as true copy.  It is  not merely  the contents of the affidavit which brings  sanctity to  the document but the affirmation that has been made, and without  the  affirmation, it can be no affidavit  at  all. (Emphasis ours)

     It  is,  however, not possible to ascertain  from  the opinions  of K.  Ramaswamy, J.  or Paripoornan, J.   whether the  original  affidavit  filed   along  with  the  election petition  in Dr.  Shipras case was attested and verified in accordance  with  law and whether the defect in the copy  of the affidavit supplied to returned candidate was only of the absence  of  notarial  endorsement  in  the  copy  of  the affidavit  supplied  to  the  respondents  in  the  Election Petition  or there was complete absence of the  verification of  the  affidavit by the election petitioner as well as  of attestation  by the notary showing thereby that copy of  the affidavit  supplied  to the respondent therein  was  neither verified  by  the  election petitioner nor affirmed  by  him before  the  notary  nor attested by the  notary.   However, Justice  Bharucha,  in  his   supplementing  opinion   while expressing  agreement with Justice Ramaswamy pointed out the defect in that case in the following words :

     The question that must be posed, as indicated by this Courts   previous  decisions,  is  :   Does  the   document purporting  to  be  a  true copy of  the  election  petition mislead  in  a material particular?  The true copy of  the election  petition  furnished  by  the  appellant  (election petitioner) to the respondent (the successful candidate) did not  show  that  the appellants  affidavit  supporting  his allegations  of  corrupt  practice had been  duly  sworn  or affirmed.   Where corrupt practice is alleged, the  election petitioner   must  support  the   allegation  by  making  an affidavit  in  the format prescribed.  An affidavit must  be sworn  or  affirmed in the manner required by law, or it  is not an affidavit.  The document purporting to be a true copy of  the election petition furnished by the appellant to  the respondent   gave  the  impression   that  the   appellants affidavit supporting his allegations of corrupt practice had not  been sworn or affirmed and was, therefore, no affidavit

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at  all;  it misled in a material particular and its  supply was,  as  the  High  Court   held,  fatal  to  the  election petition.

     (Emphasis ours)

     Thus,  from  the  facts noted by  Bharucha,  J.,  it transpires that in Dr.  Shipras case the true copy of the Election  Petition  furnished  to  the  respondent  gave  an impression   that   the   election  petitioners   affidavit supporting  his allegations of corrupt practice had not been duly  sworn  and verified by the election petitioner  before the  Notary,  who  also had not attested  the  same  thereby rendering  that document as no affidavit at all in the eye of  law.   The  defect  found  in the  true  copy  of  the affidavit,  was thus, not merely the absence of the name  of the  Notary or his seal and stamp but a complete absence  of notarial  endorsement  of  the  verification  as  well  as absence  of  an  affirmation  or oath  by  the  election petitioner.  It was in that context that the Bench had found in Dr.  Shipras case that the returned candidate would have got  the impression, on a perusal of the true copy of  the affidavit,  that  there  was  no  duly  sworn  and  verified affidavit  filed  in support of the allegations  of  corrupt practice  by  the election petitioner.  It was precisely  on account  of  this  fatal  defect that  K.   Ramaswamy,  J. opined  that the principle of substantial compliance cannot be accepted in the fact situation.  In Anil R.  Deshmukh v. Onkar  N.  Wagh & Ors, JT 1999 (1) SC 135, the appellant had filed an election petition for declaring the election of the first  respondent  in that case as void and illegal and  for declaring  him  as  duly elected.   The  petition  contained allegations   of   corrupt  practice   against   the   first respondent.   An  affidavit  had been filed along  with  the election  petition  as  required by the proviso  to  Section 83(1)(c) of the Act in support of the allegations of corrupt practice.   The affidavit was duly affirmed by the  election petitioner  before the notary who had also attested the same and  the  notarial endorsement of attestation contained  all the  particulars required by law.  However, when the  copies of  the  election petition along with various documents  and the  affidavit  were served on the first respondent, it  was found  that the copy of the affidavit did not bear the  seal or  stamp  of  the  attesting officer,  below  the  notarial endorsement  after  the verification of the affidavit.   The appellant  had,  however, signed the copy of  the  affidavit below  a rubber stamp endorsement to the effect attested as true  copy.   On account of the above omission,  the  first respondent and the tenth respondent therein contended before the  High  Court that the copies of the affidavit served  on them  were  not true copies of the affidavit as required  by Section  81(3)  of  the  Act.   The issue  was  tried  as  a preliminary  issue.   The High Court found that the copy  of the  affidavit  supplied to the first respondent was  not  a true  copy inasmuch as it did not contain the  particulars of the notary below the endorsement made by the notary.  The High  Court following its previous judgment in Purshottam v. Returning  Officer  (supra) which had been approved by  this Court in Dr.  Shipras case held that the defect of omission of  the  particulars  of  the  Notary on  the  copy  of  the affidavit  served on the answering respondent was fatal  and dismissed  the  election  petition for  non-compliance  with Section  81(3)  of  the  Act.  On an appeal  to  this  Court against  the  dismissal  of the election  petition,  without

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trial,  for  non-compliance with the provisions  of  Section 81(3)  read  with Section 83(1) of the Act, learned  counsel for the appellant submitted that the ruling in Dr.  Shipras case  had no application to the facts of that case and  that the  copy of the affidavit, served on the first  respondent, did  not  suffer  from  the  vice from  which  copy  of  the affidavit  served on the returned candidate suffered in  Dr. Shipra’s  case.  Agreeing with the appellant, Srinivasan, J, speaking  for  a three Judge Bench to which one of us  (CJI) was a party opined:

     In the light of the rulings of the Constitution Bench referred  to  earlier, we have our own reservations  on  the correctness  of  the view expressed in Dr.  (Smt.)  Shipras case  (supra)  but it is unnecessary in the present case  to dwell  on  the  same.   As   pointed  out  earlier,  Justice Ramaswamy has confined the ruling to the fact-situation in that  case.   In  so far as the present case  is  concerned, there  is a distinguishing factor which makes the ruling  in Dr.(Smt.)  Shipras  case  (supra)  inapplicable.   We  have already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case  the  true copies of the affidavits had been served  on the  first  respondent  and his counsel.  In the  facts  and circumstances  of this case, we have no doubt that there was sufficient  compliance  of the provisions of  Section  81(3) read  with  Section 83(1)(c) of the Act even if it could  be said  that  the copies served in the first instance  on  the first  respondent were not in conformity with the provisions of the Act. (Emphasis ours)

     The  appeal was allowed and the election petition  was directed to be tried on merits.  In Anil R.  Deshmukhs case (supra) Srinivasan, J.  has correctly distinguished the case of  Dr.   Shipra bringing out the difference in the type  of defects  found in the two cases.  Reverting now to the facts of the present case.  A perusal of the copy of the affidavit served on the appellant shows that the copy of the affidavit supplied to the appellant contained the endorsement that the affidavit  had  been duly affirmed, signed and  verified  by respondent  No.1 before a Notary.  Under the affirmation  by the  notary, the word, Sd/- Notary were also written.   What was, however, found missing in the copy of the affidavit was the  name and address of the Notary as well as the stamp and seal  of  the Notary, before whom the affidavit had been  so affirmed  and  who had attested the affidavit.   The  defect found  in the present case is almost identical to the defect which  had been found in the copy of the affidavit  supplied to the first respondent in Anil R.  Deshmukhs case (supra). The  defect is materially different from the defect found in Dr.   Shipras  case,  where the true copy of  the  election petition  furnished  by  the   election  petitioner  to  the successful  candidate did not show that the affidavit  filed in  support of the allegation of corrupt practices had  been duly  sworn  or  affirmed  and   verified  by  the  election petitioner before a notary, whose attestation was also found missing.   The  argument  of  the learned  counsel  for  the appellant,  both  in  the  High  Court  and  before  us,  is apparently  based on the following observations made in  the opinion  of  K.   Ramaswamy  and Paripoornan,  JJ.   in  Dr. Shipras  case  :  Thus affirmation before  the  prescribed authority  in the affidavit and the supply of its true  copy should  also  contain such affirmation so that the  returned candidate  would  not  be misled in his  understanding  that

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imputation  of  corrupt practices was solemnly  affirmed  or duly  verified  before the prescribed authority.   For  that purpose, Form 25 mandates verification before the prescribed authority.  (K.  Ramaswamy, J.)

     That,  however,  leaves one question to be  considered and  it is whether the copy of the endorsement Affirmed and signed  before me by the Notary, designation of the  Notary and  the stamped endorsement regarding the affirmation which he  made  at the time of the making of the  affidavit,  were necessary  and essential parts of the document and if  these are  omitted from the copy furnished, that would render  the copy,  which is furnished, incomplete, and the defect  would be so glaring as to negative the inference that the copy was furnished.  (Paripoornan,  J.) (Emphasis ours) Reliance  on the  above observations in Dr.  Shipras case divorced  from the  context  in which that judgment had been  rendered,  is neither  fair  nor  proper.  In our  opinion  the  principle indicated  in  Dr.   Shipras case has to be  considered  as confined  to  the  facts and circumstances of that  case  as opined by Ramaswamy, J.  himself, when His Lordship observed :

     The  principle  of substantial compliance  cannot  be accepted in the fact situation. (Emphasis ours)

     and  cannot be considered to be of general application divorced  from  the fact situation of a given case.  In  The Commissioner  of Income-tax v.  M/s.  Sun Engineering  Works (P) Ltd., JT 1992 (5) SC 543, a Bench of this Court to which one of us (Anand, J.) was a party, observed :

     It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court, divorced from  the  context of the question under  consideration  and treat  it  to be the complete law declared by this  Court. The  judgment  must be read as a whole and the  observations from  the judgment have to be considered in the light of the questions  which were before this Court.  A decision of this Court  takes  its colour from the questions involved in  the case in which it is rendered and while applying the decision to  a later case, the courts must carefully try to ascertain the  true principle laid down by the decision of this  court and  not  to pick out words or sentences from the  judgment, divorced   from   the  context  of   the   questions   under consideration by this Court, to support their reasonings.

     We  are  in  agreement  with   the  above  view.   We, therefore,  reject  the argument of learned counsel for  the appellant  regarding the applicability of the observations from Dr.  Shipras case to the fact situation in the present case.   Thus,  our  answer  to the  reference  is  that  the judgment  in  Dr.   Shipras case is confined to  the  fact situation  as existing in that case and has no  application to  the  established facts of the present case and the  wide observations  made  therein were made in the context of  the facts  of  that  case only.  The next question  which  still arises  for  our  consideration  is  whether  the   election petition  in  the present case was liable to be rejected  in limine  for  non-compliance  with section  81(3)  read  with section  86(1)  of the Act on account of the defect  in  the true  copy  supplied  to   the  respondent.   The  precise objection of Mr.  Harish Salve, learned senior counsel based on  section 81(3) of the Act as already noticed is that  the true  copy  of  the  affidavit   filed  in  support  of  the

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allegations of corrupt practice in form No.25 as required by Rule 94A had not been served on the appellant inasmuch as in the  copy  served  on  the appellant,  the  name  and  other particulars  of  the  Notary and the seal and stamp  of  the Notary,  which had been affixed on the affidavit filed along with  the  Election  Petition,  were  conspicuous  by  their absence.  According to Mr.  Salve, the variation between the affidavit filed by the election petitioner in support of the allegations  of corrupt practice and the copy served on  the appellant  had rendered the copy as not a true copy of the original  and  notwithstanding  the difference  between  Dr. Shipras  case  and the present one, the  election  petition ought to have been dismissed for non-compliance with Section 81(3)  of the Act.  For what follows we are not persuaded to agree.  Section 81 of the Act deals with the presentation of election  petitions.  Sub-section (1) of section 81 provides that  an Election Petition calling in question any  election may  be presented on one or more of the grounds specified in section  100(1)  and  section 101 to the High Court  by  any candidate  at  such  election  or   by  any  elector  within forty-five  days  from  the  date of  the  election  of  the returned  candidate.  Some of the relevant provisions of the Act  are  :   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.

     Section 83 deals with the contents of the petition and the proviso to sub-section (1) of section 83 lays down:

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

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

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

     Does the word copy occurring in section 81(3) of the Act  mean an absolutely exact copy or does it mean a copy so true  that nobody could by any possibility misunderstand it. This  matter  is no longer res integra.  In  Murarka  Radhey Shyam  Ram Kumar vs.  Roop Singh Rathore & Others, 1964  (3) SCR  573,  a  Constitution Bench of this  Court  elaborately dealt  with  this  question after referring to a  catena  of authorities.  It was held that the test to determine whether a  copy  was a true one or not was to find out  whether  any variation  from  the  original was calculated to  mislead  a reasonable   person.   The  Constitution   Bench  found   as untenable  the contention that since copies of the  petition served  on the returned candidate did not contain signatures of the petitioner below the word petitioner, on the copies of the petition served on the respondent, they had ceased to be  true  copies  of the original petition,  attracting  the consequences  of Section 86(1) of the Act.  The Bench opined

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:   Having regard to the provisions of Part VI of the  Act, we  are  of the view that the word copy does not  mean  an absolutely  exact copy.  It means a copy so true that nobody can  by any possibility misunderstand it.  The test  whether the  copy  is a true one is whether any variation  from  the original  is  calculated  to  mislead  an  ordinary  person. Applying  that test we have come to the conclusion that  the defects  complained  of  with regard  to  Election  Petition No.269  of  1962 were not such as to mislead the  appellant; therefore  there was no failure to comply with the last part of  sub-section  (3)  of section 81.  In that  view  of  the matter  sub-section (3) of Section 90 was not attracted  and there  was  no question of dismissing the election  petition under  that  sub-section by reason of any failure to  comply with the provisions of Section 81.

     The  Bench also opined :  When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word  petitioner  was not necessary.  Sub-section  (3)  of Section  81 requires that the copy shall be attested by  the petitioner under his own signature and this was done.  As to the  second  defect  the question really turns on  the  true scope and effect of the word copy occurring in sub-section (3)  of Section 81.  On behalf of the appellant the argument is  that sub-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-section (3) dealing with a copy is merely directive, and for  the reliance is placed on the decision of this Court in Kamaraja  Nadar v.  Kunju Thevar (1959 SCR 583).  We are  of the  view that the word copy in sub-section (3) of Section 81  does  not mean an absolutely exact copy, but means  that the copy shall be so true that nobody can by any possibility misunderstand  it  (see Strouds Judicial Dictionary,  third edition,  volume 4, page 3098).  In this view of the  matter it  is  unnecessary to go into the further question  whether any  part  of  sub-section  (3)  of  section  81  is  merely directory.  (Emphasis ours)

     Similar  view  was reiterated by another  Constitution Bench  in  Ch.   Subbarao vs.   Member,  Election  Tribunal, Hyderabad,  1964(6)  SCR 213, wherein it was held  that  the expression  copy occurring in section 81(3) of the Act did not  mean  an  exact  copy  but only one  so  true  that  no reasonable  person could by any possibility misunderstand it as  not  being the same as the original.  Agreeing with  the view  of the Constitution Bench in Murarka Radhey Shyam  Ram Kumars   case  (supra),  the   Constitution  Bench  in  Ch. Subbaraos  case  ruled  that  substantial  compliance  with section  81(3) was sufficient and the petition could not  be dismissed  where there had been substantial compliance  with the  requirements  of Section 81(3) of the Act,  in  limine, under  section  81(1)  of  the Act.  We  are  in  respectful agreement  with the view expressed by the Constitution Bench in  Murarka Radhey Shyam Ram Kumars case as well as in  Ch. Subbaraos  case.  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

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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.   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 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.   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 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/=  .  There, however, was an omission to mention  the name  and Notary 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 as an 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 petition  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 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 non-compliance with Section 83 of the Act.

     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 into 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 Legislative intent appears to  be  quite clear,  since it divides violations into two classes  those violations  which  would  entail dismissal of  the  election

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petition  under section 86(1) of the Act like non compliance with  section  81(3)  and  those  violations  which  attract section  83(1)  of  the Act i.e.   non-compliance  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 and Ch.  Subbaraos 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 position clearly emerges from the provisions of Section 83(1) and 86(5) of the Act, which read :

     83.   Contents  of  petition.     (1)  An   election facts    (a)  shall  contain a  concise  statement  of  the material  facts  on which the petitioner relies;  (b)  shall set  forth full particulars of any corrupt practice that the petitioner  alleges,  including  as   full  a  statement  as possible  of  the  names  of the  parties  alleged  to  have committed  such  corrupt practice and the date and place  of the  commission  of  each such practice;  and (c)  shall  be signed  by  the petitioner and verified in the  manner  laid down  in  the Code of Civil Procedure, 1908 (5 of 1908)  for the verification of pleadings.

         86.  Trial of election 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.

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

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

     Insofar  as the alleged defect in the copy of Annexure XV  furnished  to the appellant is concerned, the  objection was   raised  in  written   objections  and  reiterated   in C.M.P.No.2903  of  1996.   However,  a  comparison  of   the original  Annexure  XV with the copy thereof served  on  the appellant,  by  the learned single Judge of the High  Court, indicated  that both the documents were identical in nature. The  objection,  thus, was not based on any factual  matrix. The  learned  Single  Judge  after  comparing  the  original Annexure  XV  with  the copy of Annexure XV  served  on  the appellant came

     to  the conclusion that there was no variation between the  two.  Our independent comparison of the two also  leads us  to  the  same result and we confirm the finding  of  the learned  Single  Judge in that behalf.  In fairness  to  Mr. Harish  Salve,  learned  senior counsel for  the  appellant, however,  we  must record that after examining the  original Annexure  XV  as filed along with the Election Petition  and comparing  it  with the copy of Annexure XV supplied to  the appellant,  he  did not press the challenge to  the  finding recorded  by  the  High  Court on that  aspect,  of  course, reserving liberty to the appellant to raise all other points concerning  Annexure  XV  at  the   trial  of  the  election petition.

     Thus,  we  find that the learned single Judge  of  the High  Court  was  justified  in  rejecting  the  preliminary objection  and  holding that the election petition  did  not suffer from any defect which could attract the provisions of Section  86(1) of the Act.  This appeal has no merits and is dismissed   as  such,  but,  in   the  peculiar  facts   and circumstances of the case without any order as to costs.

     We  request the High Court to expeditiously dispose of the election petition which is pending since 1996.

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