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CASE NO.: Appeal (civil)  6622 of 2003

PETITIONER: Chandrakant Uttam Chodankar

RESPONDENT: Shri Dayanand Rayu Mandrakar & Ors.

DATE OF JUDGMENT: 15/12/2004

BENCH: N. SANTOSH HEGDE & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

[With Civil Appeal No.6750 of 2003]

TARUN CHATTERJEE, J.

               The appellants in CA No.6622 of 2003 and CA No.6750 of  2003 are aggrieved by the dismissal of their Election Petition Nos. 1 and 2 of  2002 by the Bench of the High Court of Bombay  on preliminary issues  without any trial and have filed these two statutory appeals under section  116A of the Representation of the People Act, 1951 (in short "the Act" )  against two separate judgments of the same Bench of Bombay High Court.    Since common questions of law and facts arose in both the appeals,   they  were heard together and are being disposed of by this common judgment.                 Facts of the two appeals  being  practically similar in nature are  briefly stated:-.                 In the Election Petition being Election Petition No.1 of 2002  of  Chandrakant Uttam Chodankar  out of  which C.A. No. 6622/2003 arises,   the appellant challenged the validity of the Assembly election of Siolim  Constituency, Goa under section 86 of the Act in which he contested but the  respondent No.1 was declared elected.  The election of the returned  candidate was questioned inter alia on the ground that the returned candidate  ( Respondent No.1 ) on the date of nomination and the date of election of the  constituency in question was disqualified as he was the Chairman of Goa  Khadi and Village Industries Board which is a statutory authority and, as  such he was holding an office of profit under the Government of Goa .                 So far as the facts of  the Election Petition No.2 of 2002 filed  by the other appellant Jose Philips Domingo D’Souza which has given rise  to filing of C.A. No. 6750 of 2003 are concerned, only distinguishing factor  was that in that petition, the constituency and the parties were different and  in addition to the grounds taken in Election Petition No.1 of 2002 an  additional  ground for setting aside the Election Petition was also taken.                 Both the election petitions were filed on 16th of July 2002.  The  High Court issued notice to the parties on 2nd of August, 2002.   However,  on the date of preliminary hearing, Mr. Thali, learned counsel along with his  junior appeared on behalf of the respondent No.1 in both the Election  Petitions and waived notice on their behalf.  For requisition of  both the  election petitions, it was alleged that the learned counsel for the Respondent  No.1 had collected the election petitions on 2nd of August 2002 from the  Registry of the High Court.   On the basis of such copies of the Election  Petitions filed applications under Order VII  Rule 11 of the Code of Civil  Procedure on 8th of September 2002  for their rejection on the ground that  the election petitioners had failed to comply with the mandatory provisions  of section 81(3),83(1)(a)(c) and section 83 (2) of the Act.                 However, after the pleadings were complete, the following  questions were framed: 1)Whether the returned candidates proved that the election petitions  were liable to be rejected under section 81(1) read with section  86 of the Act by reason of it being barred by limitation?

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2)Whether the returned candidates proved that the election petitions  were liable to be rejected in limine under section 86 of the Act  by reason of its non-compliance of  sections 81(3), 83(1)(a)(c)  and 83(2) of the Act? 3)Whether the respondent No.1 proved that the election petition was  liable to be rejected under Order VII Rule 11 of the Code of  Civil Procedure read with section 86 of the Act by reason of  non-disclosure of any cause of action?

       However, out of the aforesaid three questions, the High Court  held the question Nos.1 and 3 in favour of the election petitioners.  Since no  cross objection/Appeal has been filed by the respondent No.1 in both the  appeals nor  any argument was advanced by the Learned Counsel for  Respondent No.1  challenging the findings of the High Court relating to  question Nos. 1 and 3, we do not feel it necessary to examine the findings of  the High Court relating to question Nos. 1 and 3.  Therefore we restrict  ourselves only in relation to Question No.2.         The High Court in its judgment however divided the Question  No.2 into three parts which are as follows: (i)Whether the copies of the election petitions supplied by the  appellants and alleged to have been served upon the  learned counsel for the respondent No.1 by the  Registry of the High Court were true copies of the  election petitions? (ii)Whether the appellants had served copies of the election  petitions to the number of respondents mentioned in  the petitions in compliance with section 81 (3) of the  Act or not ? (iii)Whether the verification of the election petitions and  document was made by the appellant or not ?

               However, the High Court rejected both the election petitions of  the appellants on question No.1 and 2 and rejected election petition NO.2 of  2002 also out of which CA No.6623 of 2003 has arisen, on an additional  ground for  non-compliance of section 83(1)(c) of the Act.                 Before we take up the aforesaid three questions for our  decision, we feel it appropriate at this stage to refer to some of the relevant  provisions of the Act.                                                                       

               Chapter II of the Act deals with Election Petitions to High  Court.                                   Section 80 of the Act says that no election shall be called in  question except by an election petition presented in accordance with the  provisions of  part VI of the Act..                                           Section 80A of the Act confers power on the High Court to try  election petitions.  Section 81 of the Act deals with presentation of election  petition which reads as under:- "81. Presentation of petitions - (1) An election petition  calling in question any election may be presented on one or  more of the grounds specified in [sub-section(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 or if there  are more than one returned candidate at the election and  dates of their election are different, the later of those two  dates].

2[(3) Every election petition shall be accompanied by as  many copies thereof as there are respondents mentioned in  the petition, and every such copy shall be attested by the  petitioner under his own signature to be a true copy of the

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petition.]"

               Section 82 deals with parties to the election petition.  Since this  provision is not relevant for our purpose, we do not think it necessary to deal  with this section in this judgment.  Then comes section 83 of the Act which  deals with the contents of the Election Petitions.  Section 83 is as follows:-                                  "83 Contents of petition \026 (1) An election petition \026 (a)shall contain a concise statement of the material facts on which the  petitioner relies; (b)shall set forth full particulars of any corrupt practice that the  petitioner alleges including as full a statement as possible of the  names of the parties alleged to have committed such corrupt  practice and the date and place of the commission of each such  practice; and (c)shall be signed by the petitioner and verified in the manner laid  down in the Code of Civil Procedure, 1908 (5 of 1908) for the  verification of pleadings:

[Provided that where the petitioner alleges any corrupt 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.] (2) Any schedule or annexure to the petition shall also be signed by  the petitioner and verified in the same manner as the petition.]"                              Section 86 confers power on the High Court to dismiss an  election petition which does not comply with the provisions of section 81 or  82 or section 117 of the Act.  There is yet another section which may  also  be relevant for our purpose.  This is section 116A of the Act which deals  with appeals to Supreme Court.  Section 116A of the act reads as under:- "116A.  Appeals to Supreme Court \026 (1) Notwithstanding  anything contained in any other law for the time being in  force, an appeal shall lie to the Supreme Court on any  question (whether of law or fact) from every order made by a  High Court under section 98 or section 99." (Emphasis  supplied )                              A bare perusal of section 116A of the Act, it is clear that an appeal  shall lie from an order made by the High Court to the Supreme Court on any  question of law and fact.    Therefore, under section 116A of the Act  the  Supreme Court is conferred with power not only to decide an appeal filed  under this section on a question of law but it would also be open to the  Supreme Court to decide the appeal on facts  as well.                   Keeping the power conferred on this Court under section 116A  of the Act that is to say this Court is also conferred with power to decide an  appeal on facts,  let us first examine whether the High Court was justified in  relying on the copies of the election petitions which were alleged to have  been served on the Learned Counsel for the Respondent No.1 in dealing with  the questions in hand.                                      In support of the prayer for dismissal of the election petitions,  the Respondent No.1  examined one witness who was the junior of the  Learned Counsel for Respondent No.1.  In her affidavit \026 evidence  she had  stated that the election petitions were  listed on 2nd of August, 2002 and her  senior Sri Vilas Thali on that date i.e. on 2nd of August, 2002   filed  vakalatnamas  on behalf of Respondent No.1.  She also stated that the copies  of the election petitions were served on the learned counsel for the  respondent No.1 by the Registry of the High Court in her presence.  She  admitted that on 19th of August, 2002 the bailiff of the Court also served  two copies of the election petitions  and a notice of the High Court on the  Learned  Counsel for Respondent No.1.  She further stated in her deposition  that one copy of the election petitions was returned  to the Assistant  Registrar of the High Court while retaining the notice issued by the Court  which accompanied a copy of the election petition.  In cross-examination,

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she admitted that she had personal knowledge that her senior Mr.Thali had  filed his vakalatnama on 2nd of August, 2002 on behalf of Respondent No.1  in both the Election Petitions.   However, it appears from the record that the  vakalatnamas  were signed by the Respondent No.1 on 4th of August, 2002   and  the signed vakalatnamas were received by the Registry of the High  Court on 6th of September, 2002.  She also admitted that her senior  Mr.Thali, did not make any endorsement of having received  copies  of the  election petitions on behalf of Respondent No.1 in the ordersheet of the  election petitions.  The High Court,  relying on these copies in its judgment  inter alia held that the election petitions were liable to be rejected on the  ground that the copies which were served on the learned counsel for the  Respondent No.1 were not  true copies of the election petitions.   Keeping  these facts in mind,  let us  now examine whether the  copies which were  alleged to have been supplied by the Registry of the High Court to the  learned counsel for the Respondent No.1  could at all be relied on by the  High Court.    The copies   of the election petitions which  were   alleged to  have been supplied  by the Registry of the High Court on the Learned  Counsel for  the Respondent No.1 were  exhibited.                                For the reasons mentioned hereinafter, we are of the view that  no reliance could be placed by the High Court on the copies of the Election  Petitions alleged to have been supplied by the Registry of the High Court to  the learned counsel for the respondent No.1.                                              

               As said hereinabove, it is  not in dispute that two true copies  of  the election petitions were duly served upon the Learned Counsel for  Respondent No.1 by the bailiff of the High Court after the period of  limitation for filing an election petition under section 86 of the Act was over.   We have carefully examined the copies  of the election petitions alleged to  have been supplied to the learned counsel for the Respondent No.1.   From  the facts  stated  hereinearlier, it would be difficult for us to hold that  reliance could at all be placed by the High Court on such  copies.                               The first reason is that the High Court ought to have drawn an  adverse inference against the respondent No.1 for not filing the applications  under Order VII Rule 11 of the Code of Civil Procedure immediately after  receiving those copies from the Registry of the High Court as, according to  us,  the Respondent No.1 ought not to have waited for more than a month to  file the applications under Order VII Rule 11 of the Code of Civil Procedure  for rejection of election petitions when true copies were already served on  the Respondent No.1.   That apart, a perusal of the copies alleged to have  been served on the Respondent No.1 indicates that copies of the election  petitions which the petitioners did not submit for service were  produced by  the Respondent No.1 as having been served on the Respondent No.1

               Even otherwise, from the facts narrated earlier, it is clear that  on 2nd of August, 2002 the Learned Counsel for Respondent No.1 in both  the election petitions had appeared before the High Court on behalf of  Respondent No.1 without filing any vakalatnama.   As said hereinearlier,  from the records, it also appears that the vakalatnamas were signed by the  Respondent No.1 on 4th of August, 2002 and  received by the Registry on  6th of September, 2002.  On 19th of August, 2002, Court Bailiff served two  true copies of election petitions on the Learned Counsel for the Respondent  No.1.    From the above, it is therefore clear that the Learned Counsel for the  Respondent No.1 had no authority to collect copies  of the Election Petitions  from the Registry of the High Court before 6th of September 2002 nor was it  open to the Registry of the High Court to supply  copies  of the election  petitions  to the Learned Counsel for the Respondent No.1 before the  vakalatnamas were filed on behalf of the respondent No.1 i.e. not before 6th  of September 2002.  Such being the admitted position, it is difficult to  believe that such copies relied on by the learned counsel for the respondent  No.1 were at all supplied by the Registry of the High Court to the learned  counsel for the respondent No.1.   For the reasons aforesaid, we are unable  to hold that in fact the copies alleged to have been served or supplied to the  learned counsel for the respondent No.1 were at all served or supplied by the  Registry of the High Court.   That apart, from the records, it does not appear

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that there was any endorsement from the side of the learned counsel for the  respondent No.1 to show that he had received copies from the Registry on  which they made out the case for rejection of election petitions.   For the  reasons aforesaid, we are therefore of the view that the High Court was not  justified in rejecting the election petitions relying on the copies alleged to  have been served or supplied to the learned counsel for the Respondent No.1  without there being any direction to file vakalatnamas from the High Court.                    It is an admitted position that true copies of the election  petitions were served upon the Respondent No.1 by the Court Bailiff.  In the  absence of any material to show that the true copies of the election petitions  were not filed with the election petitions at the time of their presentation and  in view of our discussions herein earlier that no reliance could be placed on  the copies relied on by the High Court, we are unable to sustain the orders of  the High Court.  We are also unable to agree with Mr.Thali that no reliance  could be placed on the true copies served by the Court Bailiff because they  were served after the expiry of the period of limitation.  It is difficult to  understand that the period of limitation shall start from the date of serving  the copies and not from the filing of copies of the election petitions.  From  the records it does not appear that such copies were filed after the period of  limitation.                 For the reasons aforesaid, we may safely conclude that the  election petitions were not liable to be rejected relying on the copies of the  election petitions alleged to have been served upon the Respondent No.1  especially when true copies of the same were duly supplied to the  Respondent No.1.  However, when two questions were framed by the High  Court and answered in favour of the Respondent No.1, we feel it appropriate  to decide the appeals also on question Nos. 1 and 2.          Let us now turn to question No.1 first.  In our view, the question  No.1 needs to be decided in favour of the appellants for the reasons  mentioned hereinbelow.  As noted herein earlier, record shows that the  election petitions as well as the question forms and answers were examined  by the Registry of the High Court.  Exhibit RW7 was the Examination Form  which was duly filled in by the appellants.  In this Examination Form  Question No.3 was as follows: -  "Q.3 Whether copies of the Petition and accompanying papers  are also supplied for being made available to the Respondents  and, if the sets of these copies are duly attested by the Petitioner  under his own signature as true copy?"                                  The answer to this question No.3 from the appellants was  ’Yes’.  In the Examination Form (RW7), the Assistant Registrar at the end  made an endorsement on 19th of July, 2002 to the following effect:-         "The petition is in order.  We may direct the petition to be          registered as election petition." (Emphasis supplied).

                       From the aforesaid endorsement of the Assistant Registrar and  in view of the answer given to question No.3 of the Examination Form  which was duly examined by the Registry of the High Court and after such  examination the note was appended saying that since election petitions were  in order and therefore the Registry be directed to register the election  petitions and further in view of the fact that from the order of the High Court  dated 2nd August, 2002, it is evident,  when the election petitions were taken  up for preliminary hearing, the High Court noted appearance of the Learned  Counsel for Respondent No.1 who appeared and waived service on behalf of  Respondent No.1 in both the election petitions but did  not say that  vakalatnamas were filed nor from the said order it would be evident that any  direction was made to file vakalatnamas, we are unable to hold that at the  time of presentation of election petitions, true copies of the same were not  filed which were subsequently served upon the Respondent No.1 by the  Bailiff of the High Court.  The High Court in its judgment held that the onus  to prove supply of the copies was on the election petitioners and had drawn  an adverse inference against the appellants for not examining the Assistant  Registrar of the High Court.  We are unable to accept this view of the High  Court.  It is no longer res integra that the onus to prove that  a copy of the  election petition is not served on him, must be on the    person who alleges

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such fact.    We are therefore of the view that in presence of the endorsement  of the Assistant Registrar of the High Court dated 19th of July, 2002 that the  election petitions were in order which would raise a presumption, it would  be for the successful candidate/Respondent No.1 to rebut such presumption  and discharge his initial burden.  In this case, the Respondent No.1 having  failed to discharge such onus, it is not open for the Respondent No.1 to say  that true copies of the election petitions were not filed at the time of  presentation of election petitions.  It is not in dispute that true copies of the  election petitions were duly served upon the Learned Counsel for the  Respondent No.1 before the preliminary hearing of the Election Petitions.   According to Mr.Thali, that could not cure the defect in supplying to the  Respondent No.1 a true copy of the election petition as such petitions were  served on the Respondent No.1 at a time when the elections petitions  became barred.                 In view of our discussion made above and in the absence of any  material to show that true copies of the election petitions were also not filed  at the presentation of election petitions, we are unable to  hold that there was  non compliance of Section 81(3) of the Act inasmuch as the copies alleged  to have been supplied to the returned candidate were not true copies of the  petitions.                                                               Even if the copies of the election petitions which were alleged  to have been served on the Respondent No.1 could be accepted and relied  upon then also, in our view,  the High Court had committed an error in  holding that the election petitions must be  rejected for non-compliance of  Section 81(3) of the Act on the ground that "true copies" of the Election  Petitions were not served upon the respondent No.1.  As noted herein earlier,   the successful candidates/respondent No.1 in both the Election Petitions   sought rejection of the election petitions inter alia on the following grounds:             (1) Internal page 10 of Exhibit RW-1 which is the copy of the  election petition after the prayer clause and verification  there is no signature of the election petitioner. (2)The stamp in respect of the swearing of the affidavit was  also absent on the copy of the election petition. (3)The affidavit accompanying the petition also does not bear  the signature of the election petitioners.

                   The High Court found that after the prayer clause at internal  page 10 of the election petition above the petitioner and beneath the  verification there was no signature of the election petitioner above the word  "petitioner" and held   that the copy of the election petition would show that  the election petition was neither signed and verified nor was it attested  before any authority.  The High Court also found that there was no  endorsement of the officer before whom the election petitioner had signed.   It was also found that there was absence of signature of the Advocate who  had identified the election petition.   The High Court further found that  although an affidavit was filed by the appellants but the copy of the election  petition however did not show that the affidavit was affirmed by the election  petitioner and, there was also no signature of the election petitioner above  the word "deponent".   Accordingly the High Court held that the copies of  the election petitions on which reliance was placed by the Respondent No.1  were found to be not true copies of the election petitions that were filed.  In  our view, the defects as shown above would not entail the High Court to  dismiss the election petition under section 86 of the Act.  Section 81(3) has  two parts -   The first part relates to filing of as many as copies of the  election petitions as that of number of respondents in the same.   The second  part is that copy shall be attested by the petitioner under his own signature to  be a true copy of the petition.   In our view, the second part of section 81(3)  of the Act requires that every such copy should be attested by the election  petitioners under their own signature to be true copies.   Second part of  section 81(3) of the Act, in our view, is satisfied if the copy is attested by the  election petitioner to be true copies of the election petitions under their own  signature.   In our view,  the defects as noted above cannot lead us to hold

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that election petitions should be rejected for non-compliance of section 81(3)  of the Act as copies served on the respondent No.1 cannot be treated to be  "true copies" within the meaning of the second part of section 81(3).                  The High Court held that the election petitions were liable to be  rejected on a finding that the above noted  defects were vital in nature and  therefore there was total non-compliance of section 81(3) of the Act.  In our  view, even the defects alleged as aforesaid  in the election petitions could  not be held to be  vital in nature and thereby did not entail the High Court to  dismiss the election petitions at the preliminary stage for non-compliance of  section 81(3) of the Act.   Let us now examine whether election petitions  were liable to be rejected for the defects shown above.                   As noted hereinearlier, Section 81(3) postulates that every copy  of the election petition shall be attested by the election petitioner under his  own signature to be a true copy of the petition.   From a bare perusal of the  defects which have been referred to hereinearlier, we can safely conclude  that such defects cannot be said to be of vital nature.  According to  Respondent No.1, (1) there was no signature of the election petitioners at  page 10 of the petitions after the prayer clause and verifications. (2)  the  stamp in respect of the swearing of the affidavit was also absent on the copy  of the election petitions and, (3) the affidavit accompanying the petition also  does not bear the signature of the election petitioners.            The Supreme Court in Murarka Radhey Shyam Ram Kumar  Vs. Roop Singh Rathore  [AIR 1964 SC 1545] held as follows:- "When every page of the copy served on the appellant  was attested to be a true copy under the signature of the  petitioner, a fresh signature below the word "petitioner"  was not necessary".

                 The principles laid down as aforesaid were also followed in  Anil R.Deshmukh Vs. Onkar Nath Singh [1999 (2) SCC 205].  So far as  the 2nd defect namely the stamp in respect of the swearing of the affidavit  was absent on the copy of the petition is concerned, we are of the  view that  mere omission to stamp in respect of the swearing of the affidavit would not  at all be material; when each and every copy of the petition was attested by  the election petitioners.  Reliance in this connection may be placed on the  decision of this Court in the case of Ram Prasad Sarma Vs. Mani Kumar  Subba [2003 (1) SCC 289].  Similar is the position in respect of defect  No.3.  From the record it appears that on each and every page a handwritten  attestation in ink under the signature of the election petitioner was made by  the election petitioners.  Therefore, mere omission to sign by the election  petitioners in the affidavit accompanying the petition would not also be  material.  From the above, we can only conclude that such defects in the  copies of the election petitions cannot lead us to reject the election petitions.                 Even otherwise, the election petitions ought not to have been  rejected by the High Court for non compliance of section 81(3) of the Act.   What should be the meaning of ’true copy’ in section 81(3) of the Act was   considered by this Court in Dr.Shipra (Smt.) & Ors. Vs. Shanti Lal  Khoiwal & Ors. [1996 (5) SCC 181] in which it was held that the defects of  the aforesaid nature were not curable, and therefore, the election petition was  liable to be dismissed on that ground.  This decision of the Supreme Court,  namely, Dr.Shipra’s case was doubted in a latter decision in the case of  T.M.Jacob Vs. C.Poulose and Others [1999 (4) SCC 274] and the matter  was referred to the Constitution Bench of this Court.  The Constitution  Bench  in T.M. Jacob’s case held-

"it is not every minor variation in form but only a vital defect  in 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 defect which

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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 case 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."

                        The difference of opinion was settled by the Constitution Bench  in Jacob’s case by enunciating the principles as noted hereinabove.   We  have carefully examined the defects as noted hereinearlier and on a careful  examination of the defects we cannot be persuaded to the view that the  defects in the present case also are material or it was vital in nature or the  absence of stamp of attestation could be treated to be a ground for rejection  of the Election Petitions under Section 81(3) of the Act.  It may be  mentioned herein that the decision of this Court in Anil R.Deshmukh case  was approved by the Constitution Bench and in which it already  distinguished the case of Dr.Shipra.  It must not be forgotten that in the  Constitution Bench decision of this Court, it was evident that "(a) the  expression ’copy’ in Section 81(3) of the Act means a copy which is  substantially the same as the original, variation if any from the original  should not be vital in nature or should not be such that can possibly mislead  a reasonable person in meeting the allegation; (b) if the copy differs in  material particulars from the original the same cannot be cured after the  period of limitation."  The same principle was enunciated following the Constitution  Bench decision of this Court in T.Phunyzatha Vs. H.K. & Ors. [2001 (8) SCC 358].   In this decision also it was held that the defects indicated in these cases for which  dismissal of the election petition was sought for did not attract Section 86(1) of the Act  for dismissal of the election petitions for non-compliance of Section 81(3) of the Act.   For the reasons aforesaid and applying the principles laid down in the aforesaid  decisions of this Court, we are of the view that the High Court ought not to have  rejected the election petitions for non-compliance of the provisions of Section 81(3) of  the Act as  the defects shown by the Respondent No.1 cannot be said to be fatal and  the copies which were alleged to have been served or supplied to the Respondent No.1  were wholly and substantially the same as the original.  That apart, it is an admitted  position, as noted hereinearlier, true copies of the election petitions were duly served or  supplied to the Respondent No.1.  The question that was raised by the learned  counsel for the Respondent No.1 before us was whether subsequent supply  of such true copies on the Respondent No.1 could be treated to be a  sufficient compliance of Section 81(3) of the Act.  Apart from the  conclusions made hereinbefore, we are also of the view that in view of the  decision of this Court in Anil R.Deshmukh Vs. Onkar N.Wagh [1999(2)  SCC 205] this question needs to be decided in favour of the appellant and  against the Respondent No.1.  In paragraph 17 of the aforesaid decision this  Court observed as follows:

       "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 with 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 supplied ).

               Such being the position, we hold that the High Court was not

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justified in rejecting the election petitions for non-compliance of Section  81(3) of the Act.                   Let us now take up the question No.2 raised before us which is  in respect of the fact that the election petitions when presented were not  accompanied with as many copies thereof as there were respondents  mentioned in the petition.   On this score,  the High Court in both the appeals  held in favour of respondent No.1 inter alia on the following findings: a)The Additional Registrar of the High Court in its note/order  did not disclose that when the election petitions were filed  they were accompanied by as many copies thereof as there  were respondents in the petition.   Although, it was  admitted that subsequently copies of the election petitions  were duly filed. b)There was nothing on record to show that the copies of the  petitions when filed were accompanied by requisite number  of copies.

       It is not in dispute that copies of the election petitions were duly  served on the learned counsel for the respondent No.1 in both the appeals on  19th August, 2002.   As said hereinearlier, according to Mr. Thali, since the  copies were served on the respondent No.1 after the period of  limitation no  reliance could be placed on such copies.    We have already held that the  copies of the election petitions alleged to have been served /supplied to the  learned counsel for the respondent No.1 on 2nd of August, 2002 could not  be relied on.   We have already seen earlier that in absence of any material to  show that the election petitions were not presented with the requisite number  of copies of the same and the admitted fact was that the Bailiff of the Court  had served true copies of the election petitions on the Respondent No.l in  our view,  the High Court had committed an error by placing the onus on the  election petitioners to prove that the requisite number of true copies were  filed.  As said herein earlier,  the onus to prove that a true copy is not served  on the person, will be on the person alleging such a fact.  In presence of a  certificate of the Registry of the High Court that there was no defect in the  writ petition which would certainly raise a presumption, it would be for the  respondent to rebut that presumption and discharge his initial burden.  In this  case admittedly note of the Registry of the High Court clearly says that  requisite number of copies had been duly filed and the election petition was  in order.  That being the position, we are unable to agree with Mr.Thali as  well as the High Court that the onus  was on the election petitioners to prove  that true copies of the election petitions were duly filed by him.   Furthermore, in view of our discussions herein earlier, the true copies have  been duly filed as admitted by the Respondent  No.1, even subsequent to the  filing of the election petitions and in view of the decision of this Court in  Anil R.Deshmukh Vs. Onkar N.Wagh, we are also of the view that since true  copies were duly filed before the preliminary hearing of the Election  Petitions the defects even if there be any,  were thus removed, the election  petitions could not be rejected on these grounds.                 For the reasons aforesaid, we are unable to sustain the judgment  of the High Court in rejecting the election petitions for non filing of requisite  number of copies thereof as well as the copies alleged to have been served  on the Learned counsel for the respondents were not true copies.   Accordingly, the two common questions as framed herein earlier and  decided by the High Court in favour of the Respondent No.1, are decided in  favour of the appellants.   Therefore, the election petitions were not liable to  be rejected on the reasons given hereinearlier.           Coming now to answer the question no.3 as posed herein  earlier, we find in the appeal of Chandrakant Uttam Chodankar Vs. Shri  Dayanand Rayu Mandrakar & Ors. (Election Petition No.1 of 2002  which gave rise to Civil Appeal No.6622 of 2003), the question no.3 was not  pressed before the High Court and the Learned counsel appearing for the  Respondent No.1 also did not advance any argument in support of such  finding before us.  However, in the other appeal, namely, in the appeal of  Jose Philips Domingo D’Souza (Election Petition No.2 of 2003 which gave  rise to Civil Appeal No.6750 of 2003), this question was pressed before the  High Court and the High Court answered this question in favour of the

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Respondent No.1.  Although, in Election Petition No.2 of 2002 which gave  rise to CA No.6750 of 2003 High Court found this question in favour of the  Respondent No.1, it may be kept on record that the learned counsel for the  Respondent No.1 did not also  advance any argument in support of the  aforesaid finding of the High Court before us in this appeal.  Since this  question  was decided in favour of Respondent No.1, we feel it appropriate  to take up and decide this question as well.  As noted herein earlier, the High  Court on question No.3 held that the Election Petition No.2 of 2002 was  liable to be rejected for non-compliance of section 83(1)(c) of the Act.  We  are however unable to sustain this finding arrived at by the High Court.   Before we take up the question, we may consider Section 83(1) of the Act.   Section 83 of the Act deals with the contents of the petition.  Since in this  case we are concerned with section 83(1)(c) of the Act, we at the risk of  repetition refer to this section which is as follows:-

"83(1)(c) -     "Election petition shall be signed by the  petitioner and verify in the manner laid down in the Code of  Civil Procedure, 1908 for the verification of the pleading."   

               On a careful reading of this provision, we are of the view that  the said provision is not mandatory in nature.  That is to say, the verification  in the election petition although was defective but that cannot be said to be  fatal to the maintainability of the petition.  In view of our discussions made  herein above to the extent that the election petitions were in order even if it  was not so at the time of presenting the election petitions, there was no  reason for the High Court to reject the election petitions at the preliminary  stage on such a technical ground.  The High Court held that Exhibit F which  was a document filed alongwith election petition must be taken to be an  integral part of the petition.  The affidavit which was filed alongwith the   election petition was sworn on 15th July, 2002 and the election petition was  filed on 16th July 2002 which was admittedly the last date for filing the  election petitions.   Exhibit F is a zerox copy of the affidavit which was  received by the election petitioner.  In the verification portion of this  affidavit it was stated that the petitioners solemnly affirmed and verified that  paragraphs 1 to 11 were true to their knowledge.  Due to this defect it was  held that the election petition was liable to be rejected for non compliance of  section 83(1)(c) of the Act.   From the record it appears that the election  petitioner applied for copy on 11th July, 2002 and the same was ready for  delivery on 16th July, 2002.  According to High Court, Exhibit F could not  be in possession of the election petitioner when the election petition was  signed and verified and affidavit affirmed.  According to Mr.Thali, learned  counsel for the Respondent No.1, since election petition itself was filed on  16th July, 2002, Exhibit F could not come into possession of the Election  Petitioners on 16th July, 2002.  We are unable to accept this submission of  Mr.Thali.   It is not impossible that when on 16th  July, 2002 the election  petition was filed, it could be filed alongwith Exhibit F which came into  possession of the election petitioner on the same day i.e. on 16th July, 2002.   That apart, assuming that the Exhibit F was defective, even then mere defect  in the verification as held herein earlier was not fatal for which the High  Court was justified in rejecting the election petitions for non-compliance of  section 83(1)(c) of the Act.  In F.A. Sapa & Ors.  Vs.  Singora & Ors.  [1991 (3) SCC 375] this Court expressed this view also.   For the reasons  aforesaid, we therefore hold that the question No.3 which was found in  favour of Respondent No.1 by the High Court must be answered in favour of  the appellants and against the Respondent No.1.                         Before parting with this judgment, we may recall the decisions  of this Court on which strong reliance was placed by the learned counsel for  the respondent No.1.  Relying on the decision in the case of Satya Narain   Vs.  Dhuja Ram & Ors. [1974 (3) SCC 20],  a 3-Judge Bench of this Court  held that when the period of limitation for filing an election petition was over,  it was not open for the appellant to file documents or other materials for  compliance of Sections 81 (3) and 83(1)(c)  of the Act.   In that decision, this  Court  was considering  whether first part of Section 81 (3) of the Act was a  pre-emptory  provision and for total non-compliance of it would entail  dismissal of the election petitions under section 86 of the Act.   Relying on

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this decision of this Court, Mr. Thali argued that the High Court was fully  justified in rejecting the election petitions on the ground that subsequent  compliance would not entail the High Court to dismiss the election petitions.    The Supreme Court held in the facts situation of the said decision that there  was non-compliance of section 81(3) of the Act by not filing as many copies  of the election petitions as there were respondents.   In that factual situation,  the Supreme Court has held that total non-compliance of the first part of  section 81(3) of the Act entails dismissal of the election petitions under  section 81(3) of the Act.   The present case, however, stands on a different  factual situation.   In this case, it is not in dispute that election petitions were  filed along with requisite number of copies thereof, but in the copies some  defects as mentioned hereinearlier, were alleged.   It is not a case of total non- compliance of  section 81 of the Act as the requisite number of  copies of   election petitions were filed along with election petitions.  The other decision  on which Mr.Thali appearing for Respondent No.1 also placed strong reliance  was a decision of this Court in the case of J.P.Goyal Vs. Raj Narain & Ors.  [1984 (3) SCC 339].  This decision is also distinguishable on facts.  We have  already held that the copies which were alleged to have been supplied to the  Learned Counsel for Respondent No.1 could not, at all, be relied on by the  High Court.  Therefore, in the facts and circumstances of this case, the  principles laid down by  this Court in the case of J.P.Goyal Vs. Raj Narain &  Ors., cannot, at all, be applied.  In view of our findings made hereinabove that  the copies of the election petitions, which were alleged to have been served  upon the Learned counsel for the Respondent No.1 by the Registry of the  High court, could not, at all, be relied on and in view of the admitted fact that  the Bailiff of the High Court had subsequently served true copies of the  election petitions on the Learned counsel for the Respondent No.1, the High  Court committed an error in rejecting the election petitions for non  compliance of the provisions of Sections 81(3) and 83(1) (c) of the Act.                                  Accordingly, the judgments  of the High Court  are  hereby set aside  and the matters are remitted back to the High Court for final disposal of the  two election petitions, namely Election Petition No.1 and 2 of 2002 at an early  date preferably within four months from the date of filing of a copy of this  order in the High Court.  The High Court shall dispose of the election petitions  without granting any unnecessary adjournment to the parties.  The learned  counsel for the Respondent No.1 prayed for some time to file written  statement in the aforesaid two election petitions.  Considering the facts and  circumstances of the case, they are permitted in both the Election Petitions to  file their written statement within a period of three weeks from the date of  receiving a copy of this judgment, and reply, if any, may be filed within a  week thereafter.                 For the reasons aforesaid, the appeals are allowed to the extent  indicated above.  There will be no order as to costs.