http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SAHODRABAIRAI

       Vs.

RESPONDENT: RAM SINGH AHARWAR

DATE OF JUDGMENT: 02/02/1968

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1968 AIR 1079            1968 SCR  (3)  13  CITATOR INFO :  E          1973 SC2513  (8)  R          1978 SC 840  (5)  D          1983 SC 558  (6,27,32,33,35,38,39)  R          1984 SC 871  (4,11,13,14)  D          1990 SC 924  (23,24)  RF         1991 SC1557  (26,32)

ACT: Representation  of the People Act, 1951, s. 83--Annexure  to Election Petition--Necessity of service on respondent.

HEADNOTE: The appellant filed an election petition with a pamphlet  as annexure thereto.  A translation in English of the  pamphlet was  incorporated in the body of the election petition,  and it  was  stated in the petition that it formed part  of  the petition.   The first respondent raised an objection that  a copy of the pamphlet had not been annexed to the copy of the election petition served on him and therefore, the  election petition  was  liable  to be dismissed under s.  86  of  the Representation  of the People Act.  The High Court  accepted the  objection  and  dismissed the  election  petition.   In appeal, this Court, HELD : The order of the High Court must be set aside. The words used in s. 81(3) are only "the election petition". There  is  no  mention  of  any  document  accompanying  the election  petition.   Since  the  election  petition  itself reproduced  the  whole of the pamphlet in a  translation  in English, it could be said that the averments with regard  to the  pamphlet  were themselves a part of the  petition,  and therefore  the  pamphlet  was served  upon  the  respondents although in a translation and not in original. [19 E--H] Even if this be not the case, it is quit,.- clear that s. 83 (2)  has  reference not to a document which is  produced  as evidence  of the averments of the election petition  but  to averments of the election petition which are put, not in the election  petition  but  in the  accompanying  schedules  or annexures.   Details of averments too compendious for  being included  in  the election petition may be set  out  in  the schedules  or annexures to the election petition.   The  law then requires that even though they are outside the election

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

petition,  they must be signed and verified.  The  annexures or  schedules  are  then  treated  as  integrated  with  the election  petition and copies of them must be served on  the respondents if the requirement regarding service of election petition  is to be wholly complied with.  But this does  not apply to documents which are merely evidence In the case but for reasons of clarity and to lend force to the petition are not kept back but produced or filed with election petitions. They  are in no sense an integral part of the  averments  of the petition but are only evidence of those averments and in proof thereof. [19 H-20 D] The  pamphlet, therefore. must be treated as a document  and not  as  a  part  of the election  petition  in  so  far  as averments are concerned.  When the election petitioner  said that  it was to be treated as part of her election  petition she was merely indicating that it was not to be though  that she  had  .not  produced  the document  in  time.   She  was insisting  upon the document remaining with the petition  so that  it  could be available whenever the  question  of  the election petition or its contents arose. [20 D--E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1693 of 1967. 14 Appeal  under s. 116-A of the Representation of  the  People Act,  1951 from the judgment and order dated  September  21, 1967  of the Madhya Pradesh High Court in Election  Petition No. 10 of 1967. G.   N. Dikshit and R. N. Dikshit, for the appellant. C.   B. Agarwala Uma Mehta, S. K. Bagga and Shureshta Bagga, for respondent No. 1. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal against the, judgment  of the  High  Court  of  Madhya  Pradesh  at  Jabalpur,   dated September  21, 1967. dismissing the election petition  filed by  the  appellant on the preliminary ground that  a  proper copy  of  the  election petition was  not  served  upon  the answering parties.  The facts of the case are as follows The appellant was a candidate for election to the Sagar  Lok Sabha  Scheduled Castes constituency No. 24.   The  election took  place  on February 20, 1967.  There were  three  other contesting  candidates of whom the first respondent  secured the  largest number of votes and was declared elected.   The appellant  secured the second largest number of  votes,  her votes  being  less  by just under 300  than  the  successful candidate’s  votes.   An election  petition  was  thereafter filed by the appellant on April 5, 1967.  In this  ,election petition the appellant challenged the election of the  first respondent   on  four  grounds.   They  were  (a)   wrongful acceptance ..,of his nomination paper, (b) corrupt  practice inasmuch  as  .he appealed to religion  through  a  pamphlet marked  Annexure  (c) undue influence, and (d)  breaches  of the.  Act and Rules. The pamphlet to which reference is made was   styled  Bhayankar  Vajraghat  and  was  published   by Sarvadaliya Goraksha Mahabhiyan Samiti, Deori Kalan  Branch. It  charged the party of the appellant namely  the  Congress with  encouraging  cow-slaughter and ,offending.  the  Hindu Sentiment.   Details  were  given in it  of  the  number  of animals  slaughtered  every  day  in  Madhya  Pradesh   land elsewhere and blamed the Congress with being a party to  the practice.    In  the  body  of  the  election   petition   a translation   in   English  of  the   Hindi   pamphlet   was incorporated.   The  original pamphlet was attached  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

election petition and was marked Annexure ’A’.  The election petitioner  proceeded to say in her petition "it forms  part of the petition". When parties appeared the first respondent filed his written statement in great. detail.  He dealt with this pamphlet and answered  the  allegations  of the  election  petitioner  in relation  thereto  paragraph by paragraph.  As a  result  of these pleas a number of issues were raised on July 18, 1967. No issue was raised in 15 regard  to the service of a defective copy of  the  election petition  upon  the  respondents in general  and  the  first respondent  in  particular.  However, on August 3,  1967,  a special objection was made by the first respondent  claiming that  the copy of the pamphlet had not been annexed  to  the copy of the election petition served upon him and  therefore the  election  petition  was  liable  to  be  dismissed   in accordance   with   the   provisions  of  s.   86   of   the Representation of the People Act.  A detailed reply to  this objection was given by the election petitioner.  She  stated that  this was an after-thought inasmuch as the  translation of  the pamphlet was incorporated in the  election  petition and the allegations regarding the pamphlet had been answered in detail by the answering respondent.  The Court  thereupon framed an additional issue on August 4, 1967.  The issue ran as follows-               "Whether the election petition is liable to be               dismissed  for contravention of S. 81  (3)  of               the Representation of the People Act, 1951  as               copy  of  Annexure A to the petition  was  not               given along with the petition for being served               on the respondents". Parties  first  filed a number of affidavits  pro  and  con. Later  the  Court ordered attendance of  the  deponents  for crossexamination.  In this way the appellant and her counsel who had filed affidavits earlier were examined.  Their. case was  that  the  copies of the  election  petition  had  been properly,  put together including in each copy  an  original pamphlet for service on the respondents.  On the other  side the first respondent and two others filed affidavits stating that when the copy of the election petition was received  it was  not accompanied by the pamphlet.  In their  examination in  Court all maintained the same position, and were  cross- examined.   The learned Judge trying the case  also  ordered the attendance of the Reader of the Deputy Registrar of  the High Court who had dealt with the election, petition and he’ was  examined  as Court witness No. 1. He stated  that-  the copies  of  the  petition  were  complete  except  that  the pamphlet  was not annexed to each copy.  He stated  that  he had noted at the time this fact but had treated the pamphlet as  a  document  and  not as an  Annexure  to  the  election petition. The  learned  Judge, on an appraisal of this  material  held that  the  copies of the election petition served  upon  the respondents  were not accompanied by the pamphlet which  was an  Annexure to the election petition.  After examining  the law on the subject the learned Judge came to the  conclusion that  the election petition should be dismissed under s.  86 of  the Representation of the People Act and he  accordingly dismissed it with costs.  No other 16 issue  which  was struck between the parties was  gone  into because the election petition failed at the very threshold. In this appeal it is contended that the learned Judge was in error   in  thinking  that  the  pamphlet  ought   to   have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

accompanied the copies of the election petition or that  the law required that it should have been annexed to the copy of the  election petition served on the respondents.   In  this connection our attention was drawn to the provisions of  the Representation  of  the People Act to which we  shall  refer presently.  On the other side it was contended that whatever the  meaning  of the expressions  "the  election  petition", "annexures"   or  "schedules"  in  the  Act,  the   election petitioner by her own conduct had made this document a  part Of the election petition and therefore it was incumbent upon her  to have served the whole of the election  petition  and not only a part of it as she did and therefore the order now appealed against was correct.  Before we come to these rival contentions  we  find  it necessary to refer  first  to  the relevant provisions on the subject Section 81 of the Representation of the People Act occurs in Chapter  11  which  is  headed  "Presentation  of   Election Petitions to Election Commission".  It provides as follows:               "Presentation of Petitions               (1)  An election petition calling in  question               any  election may be presented on one or  more               of  the ,-rounds specified in sub-section  (1)               of  section  100 and section 101 to  the  High               Court by any candidate at such election or any               elector  within forty-five days from, but  not               earlier  than,  the date of  election  of  the               returned candidate, or if there are more  than               one returned candidate at the election and the               dates  of  their election are  different,  the               later of those two dates.               Explanation  :-In this  subsection,  ’elector’               means a person who was entitled to vote at the               election   to  which  the  election   petition               relates, whether he has voted at such election               or not.               (3)   Every   election   petition   shall   be               accompanied by as many copies thereto 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." 17 The  first respondent draws pointed attention to  the  third sub-section which says that every election petition shall be accompanied   by  as  many  copies  thereof  as  there   are respondents  mentioned in the petition and every  such  copy shall be attested by the petitioner under his own  signature to be a true copy of the petition.  The dispute therefore is whether  the pamphlet could be described in this case as,  a part  of  the election petition.  The  answering  respondent says  that  it  is so and was considered to  be  so  by  the election  petitioner herself when she stated that it was  to be read as a part of the election petition. The matter, in our opinion, is not to be resolved on how the election petitioner viewed the matter but from the point  of view of the requirement of the law on the subject.  For this purpose  we have to turn to s. 83 of- the Representation  of the  People  Act  which provides what the  contents  of  the election petition shall be.  It reads as follows               (1)   An election petition-               (a)  shall contain a concise statement of  the               material facts on which,the petitioner relies;               (b)  shall set forth full particulars  of  any               corrupt practice that the petitioner  alleges,               including  as full a statement as possible  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             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 The   answering  respondent  herein  again   draws   pointed attention  to the fact that the schedules and the  annexures to the petition are mentioned and they have to be signed and verified in the same manner as the petition meaning  thereby that as the election petitioner had-made the pamphlet a part of the election petition she was required to sign and verify the pamphlet and also to serve a 18 copy  of  it  as required by sub-s. (3) of S.  81  when  the election  petition was served.  ’He then relies upon  S.  86 which provides that the High Court shall dismiss an election petition which does not comply with the provisions of S. 81, S. 82 or S. 117. An  argument was raised in this case as to whether s.  86(1) is mandatory or merely directory.  We need not go into  this aspect of the  case.  In our opinion the present matter  can be resolved on an examination of the relevant facts and  the contents  of  the  election petition as detailed  in  s.  83 reproduced above.  It may be pointed out here that the trial of  election petition has to follow as. far as may  be  ,the provisions of the Code of Civil Procedure.. We are therefore of  opinion that it is permissible to look into the Code  of Civil Procedure to see what exactly would have been the case if this was a suit and not a trial of an election petition. Under the Code of Civil Procedure, a suit is commenced by  a plaint.   This  is provided by O.IV, r. 1  which  says  that every suit shall be instituted by presenting a plaint to the Court.   After  the  plaint, is received  O.V  provides  the summoning  of  the defendants in the case and r. 2  of  that order says that every summons shall be accompanied by a copy of the plaint, and if so permitted, by a concise. statement. We  then turn to the provisions of O.VII Which.  deals  with the  contents  of  a plaint.  The first  rule  mentions  the particulars which must be in a plaint.  It is not  necessary to  refer  to  them’.   The plaint  has  to  be  signed  and verified.   Rule  9 then provides that the  plaintiff  shall endorse on the plaint and annex thereto a list of documents, if  any,  which he has produced along with it  and,  if  the plaint is- admitted, shall present as many .copies on  plain paper of the plaint as there are defendants unless the Court by  reason  of  the length of the plaint or  the  number  of defendants, or for any other sufficient reason, permits  him to present a like number of concise statements of the nature of the claims made,. etc.  It will be noticed here that what is  required to be provided are copies of the plaint  itself or  the  concise  statement  according  to  the  number   of defendants.   There  is  no  mention  here  of  any,   other documents  of which a copy is needed to be presented to  the Court for service to the defendants.  Then we come to r.  14

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

which states that where a plaintiff sues upon a document  in his  possession or power he shall produce it in  court  when the  plaint is presented and shall at the same time  deliver the document or a copy thereof to. be filed with the plaint. It will be noticed that he is required to file only one copy of  the  document  and  not as  many  copies  as  there  are defendants  in the case.  It would therefore follow  that  a copy  of the document is not expected to be  delivered  with the  copy  of the plaint to the  answering  defendants  when summons is served on them.  In the schedules to the Code  of Civil Procedure we have got Appendix B which 19 prescribes  the forms for summons to the defendants.   There is  only one form of summons in Appendix B, (Form No. 4)  in which the copy of the negotiable instrument is to  accompany the copy of The plaint.  That is so, because of the  special law  applying  to the negotiable instruments  and  the  time limit within which pleas to that document have to be  raised and  this is only in summary suits.No other form  makes  any mention  of any document accompanying the summons with  the, copy. of the plaint.  We need not go into more details,.  It is clear that the documents which are filed with the  plaint have to be accompanied by one copy of those documents.  This is  because the copy is compared with the original  and  the copy  is endorsed by the clerk of court and the document  is sometimes  returned to the party to be produced  into  Court later.  ’the copy takes the place of the document  concerned and is not to be sent out to the parties with the plaint. We  may now see whether the election law  provides  anything different.   The only provision to which our  attention  has been  drawn is sub-s. (3) of s. 81 and sub-s. (2) of s.  83. The  first .provides that every election petition  shall  be accompanied   by  as  many  copies  thereof  as  there   are respondents  mentioned in the ;petition and that every  such copy  shall be an authenticated true copy.  The words.  used here are only "the election petition".  There is no  mention of any document accompanying the election petition.  If  the matter  stood with only this sub-section there would ;be  no doubt that what was intended to be served is only a copy  of the  election petition proper.  Assistance is however  taken from  the provisions of sub-s. (2) of s. 83  which  provides that.  any  schedule or any annexure to the  petition  shall also  be signed by the petitioner and verified in  the  same manner  as  the  petition it is  contended  that  since  the pamphlet  was  an annexure to the petition it was  not  only necessary  to  sign and verify it, but that it  should  have been treated as a part of the election petition itself and a copy  served  upon  the-  respondents.  in  this  way,  non- compliance with the provisions of s. 86(1) is made Out.   In our opinion, this is too strict a reading of the provisions. We  have already pointed. out that s. 81(3) speaks  only  of the  election  petition.  Pausing here, we  would  say  that since  the election petition itself reproduced the whole  of the  pamphlet in a translation in English, it could be  said that  the  averments  with  regard  to  the  pamphlet   were themselves a part of the petition and therefore the pamphlet was  served upon the respondents although in  a  translation and  not in original.  Even if this be not the case, we  are quite clear that subs. (2) of s. 83 has reference not to.  a document  which is produced as evidence of the averments  of the  election  petition  but to averments  of  the  election petition which are put, not in the election petition but  in he accompanying schedules or annexures.  We can 20 give  quite  a  number of examples from which  it  would  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

apparent that many of the averments of the election petition are  capable  of being put as schedules or  annexures.   For example,  the details of the corrupt practice there  in  the former  days used to be set out separately in the  schedules and  which  may, in some cases, be so done  even  after  the amendment  of  the present law.  Similarly, details  of  the averments too compendious for being included in the election petition  may be set. out in the schedules or  annexures  to the  election  petition.  The law then  requires  that  even though they are outside the election petition, they must  be signed  and  verified, but such annexures or  schedules  are then  treated as integrated with the election  petition  and copies  of  them  must be served on the  respondent  if  the requirement regarding service of the election petition is to be  wholly complied with.  But what we have said  here  does not apply to documents which are merely evidence in the case but  which for reasons of clarity ,and to lend force to  the petition  are not kept back but produced or filed  with  the election petitions.  They are in no, sense an integral  part of  the averments of the petition but are only  evidence  of those averments and in proof thereof.  The pamphlet therefor must  be  treated  as a document and not as a  part  of  the election  petition  in so far as  averments  are  concerned. When ,the election petitioner said that it was to be treated as  part of her election petition she was merely  indicating that it was not to be thought that she had not produced  the document  in  time.   She was insisting  upon  the  document remaining  with the petition so that it could  be  available whenever  the  question  of the  election  petition  or  its contents arose.  It would be stretching the words of  sub-s. (2)  of s. 83 too far to think that every document  produced as  evidence in the election petition becomes a part of  the election petition proper.  In this particular case we do not think  that  the  pamphlet could be  so  treated.   We  are, therefore,  of the opinion that whether or not s.  86(1)  is mandatory or directory there was no breach of the provisions of  the  Representation of the People Act in regard  to  the filing of the election or the service of the copies  thereof and the order under appeal was therefore erroneous. We  accordingly set aside the order and remand the case  for trial  from this stage.  The costs of the appellant will  be costs in the cause.  The respondent will bear his own costs. Y. P.            Appeal allowed and case remanded. 21