Holding

Substantial compliance with Sections 81(3) and 83(1)(c) of the Representation of the People Act suffices; the copies served were deemed true copies, the burden of disproving the presumption lies on the respondent, and the High Court’s dismissal was erroneous.

Summary

Chandrakant Uttam Chodankar and Jose Philips Domingo D'Souza filed election petitions challenging the election of respondents who were alleged to hold offices of profit. The Bombay High Court dismissed the petitions on preliminary grounds, holding that the copies of the petitions served on the respondents were not true copies and that the petitioners had not complied with the mandatory requirements of Sections 81(3) and 83(1)(c) of the Representation of the People Act, 1951. The Supreme Court examined whether the copies served were true copies, whether the requisite number of copies had been filed, and whether the verification and affidavit defects were fatal. Relying on the presumption of correctness of official acts under Section 114(e) of the Evidence Act and the doctrine of substantial compliance, the Court held that the defects were curable and did not warrant dismissal. Consequently, the High Court’s orders were set aside and the appeals were allowed, with the matters remitted to the High Court for disposal on merits.

Issues considered

Whether the copies of the election petitions served on the respondent were true copies within the meaning of Section 81(3).
Whether the petitioners complied with the requirement of filing as many copies as there were respondents under Section 81(3).
Whether the verification of the election petition and accompanying affidavit complied with Section 83(1)(c).
Whether the High Court could dismiss the election petitions on the alleged non‑compliance of the above provisions.
Who bears the burden of proving the absence of a true copy and the effect of the presumption under Section 114(e) of the Evidence Act.

Legislation cited

Indian Evidence Act, 1872s. 114(e)
Representation of the People Act, 1951s. 116A, s. 81(3), s. 83(1)(a), s. 83(1)(c), s. 83(2), s. 86

Subjects

election petitionRepresentation of the People ActSection 81(3)Section 83(1)(c)true copysubstantial compliancemandatory provisionburden of proofpresumption of correctnessstatutory interpretation

Judgment

A CHANDRAKANT UTTAM CHODANKAR
v.
SHRI DAY ANAND RAYU MANDRAKAR AND ORS.

DECEMBER 15, 2004
B
[N. SANTOSH HEGDE, S.B. SINHA AND
TARUN CHATTERJEE, JJ.]

Representation of the People Act, 1951 : Section 86

C Section 81 and 83-Compliances of-Expiained

Interpretation of Statutes :

Mandatory provision-Strict construction-May not be called for,
D having regard to the text and context of the statute.

Words :

Shall-Use of-May not confer mandatory nature.

E India Evidence Act, 1872 :
,
Section 114(e)-Official acts-Officer of the court-Endorsement made
by-Presumption of correctness-Challenge as to-Held, onus on the party
;
impeaching it.
F
Appellant filed election petitions challenging the election of the
returned candidates. Counsel for the respondents appeared before the
court and waived notice on their behalf. The election petitions were
dismiss~d by the High Court for non-compliance of the mandatory
provisions of the Section 81(3), 83(1)(a) and 83(l)(c), 83(2) of the Rep-
G resentation of the People Act, 1951. Hence this appeal.

The respondent contended that the copies of the election petitions
served had defects viz. (1) there was no signature of the election peti-
tioners at page 10 of the petitions after the prayer clause and verifica-
H tions. (2) the stamp in re~pect of the swearing of the affidavit was also
916
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR 917

absent on the copy of the election petitions and, (3) the affidavit accom- A
panying the petition also does not bear the signature of the election
petitioners, The copies which were alleged to have been served or sup-
plied to the Respondent No. 1 were not the true copies.

Allowing the appeals, the Court B
HELD : Per Chatterjee, J. (for himself & for Hegde, J.)

1.1. Under section 116A of the Act 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 C
appeal as facts as well. [925-E]

2.1. Learned Council 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· D
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 E
No. 1. That apart, from the records, it does not appear 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. Therefore, the High
Court was not justified in rejecting the election petitions relying on the F
copies alleged to have beeri served or supplied to the learned counsel for
the Respondent No. 1 without there being any direction to file
vakalatnamas from the High Court. [927-E-H, 928-A)

2.2. 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 G
alleges such fact. Thus 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 presump-
tion and discharge his initial burden. In this case, the Respondent No. H
918 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

.·A 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. [929-F, G]

2.3. Second part of st:ction 81(3) of the Act, requiring signature of --
B the election petitioner is satisfied if the copy is attested by the election
petitioner to be true copies of the election petitions under their own
signature. The defects as noted above cannot lead as to hold 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). [931-C, D]
c
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR
(1964) SC 1545; Anil R. Deshmukh v. Onkar N. Wagh, [1999] 2 SCC 205
and Ram Prasad Sharma v. Mani Kumar Subba, [2003) 1SCC289, relied
on.
D
2.4. The defects alleged v.z (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 elec-
E tion petitioners, cannot 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, mere omission to
sign by the election petitions in the affidavit accompanyirig the petition
would not also be material. High Court ought not to have rejected the
F 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. [931-G, H, 932-A, E, 934-A, B]

G Dr. Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal & Ors., [1996) 5 SCC
181; T.M. Jacob v. C. Poulose and Others, [1999) 4 SCC 274 and T.
Phunyzatha v. H.K. & Ors., [2001) 8 SCC 358, reforred to.

2.5. The onus to prove that a true copy is not served on the person,
H will be on the person alleging such a fact. In presence of a certificate
<:\
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR 919

of the Registry of the High Court that there was no defect in the writ A
petition which would certainly raise a presumption, it would be for the
respondent to rebut that presumption and discharge his initial burden.
In view of the note of the Registry that requisite number of copies had
been duly filed and the election petition was in order. That being the
position, the onus was on the election petitioners to prove that true B
copies of the election petitions were duly filed by him. Moreover, the side
provision is not mandatory in nature. That is to say, the verification i"
the election petition although was defective but that cannot be said to
be fatal to the maintainability of the petition. There was no reason for
the High Court to reject the election petitions at the preliminary stage
on such a technical ground. Mere defect in the verification was not fatal. C
[935-F-H, 937-B, Cj

In F.A. Sopa & Ors. v. Singora & Ors., [1991) 3 SCC 375, relied on.

Satya Narain v. Dhuja Ram & Ors., [1974] 3 SCC 20 and J.P. Goyal
v. Raj Narain & Ors., [1984) 3 sec 339, distinguished on facts. D
Per S.B. Sinha, J. (concurring)

1.1. The defects alleged viz (1) there was no signature of the election
petitioners at part 10 of the petitions after the prayer clause and verifi-
cations. (2) the stamp in respect of the swearing of the affidavit was al:m E
absent on the copy of the election petitions and, (3) the affidavit accom-
panying the petition also does not bear the signature of the election
petitioners would not entail dismissal of the election petition at the
threshold. The defects pointed are curable and only when despite oppor-
tunities granted, the defects are not cured, the election petition may be
dismissed. Moreover, correctness or otherwise of a statement made in
F
the election petition would not entail rejection at the thereshold. A
defective affidavit would not entail dismissal of the election petition.
[942-E-G, 946-G-H, 947-A, CJ

Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR G
(1964) SC 1545; Ch. Subbarao v. Member, Election Tribunal, Hyderabad
and Others, AIR (1964) SC 1027; T.M Jacob v. C. Poulose and Others,
[1999) 4 SCC 274 and Ram Prasad Sarma v. Mani Kumar Subba, [2003)
1 sec 289, relied upon.

Dr. Vijay Laxmi Sabha v. Jagdish, AIR (2001) SC 600; G. H
920 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Mallikarjunappa and Another v. Shamanur Shivashankarappa and Others,
(2001) 4 SCC 428; Kamalnath v. Sudesh Verma, (2002) 2 SCC 410; Regu
Mahesh alias Reegu Maheshwar Rao v. Rajendra Pratap Bhanj Dev and
Another, (2004] l SCC 410; Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal
& Ors., (1996] 5 SCC 181; Satya Narain v. Dhuja Ram & Ors., (1974) 3
B SCC 20; Rajendra Singh Etc. v. Smt. Usha Rani and Others Etc., (1984]
3 SCC 339; Anil R. Deshmukh v. Onkar N. Wagh, (1999] 2 SCC 205; Dr.
Shipra (Smt.) & Ors. v. Shanti Lal Khoiwal & Ors., [1996] 5 SCC 181 and
T. Phungzathang v. Hangkhanlian and Others, (2001) 8 SCC 358, referred
to.

C 1.2. Statutory requirements of Sections 81 and 83 is met in
substantial compliance thereof. (945-E]

2.1. Even where the expression 'shall' is used, the same may not
be held to be mandatory. (947-F]
D
UP. State Electricity Board v. Shiv Mohan Singh and Anr., (2004) 8
SCALE 475, relied upon.

3.1. Even a mandatory provision having regard to the text and
context of the statute may not call for strict construction. (947-F)
E
Statutory Construction by Crawford, referred to.

Nasiruddin and Others v. Sita Ram Agarwal, [2003) 2 SCC 577, relied
upon.
F
4.1. Officer of the court are required to perform administrative
functions which would draw a presumption of having performed in
ordinary course of business in terms of Section 114(e) of the Indian
Evidence Act. A presumption of correctness is attached and the burden
of proof is on the person impeaching it. [952-C; 953-C)
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6622 of
2003.

From the Judgment and Order dated 18.7.2003 of the Bombay High
H Court at Goa in E.P. No. 1 .of 2002.
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.] 921

\VITH /\.

Civil Appeal No. 6750 of 2003.

Ranjit Kumar, J.E.C. Peraria and Ms. Binu Tamta for the Appellant.

V.P. Thali, Mohit Chaudhary, Ms. Shalini Gupta for the Mis. K.L.
B
Mehta & Co. for the Respondent No. 1.

M.N. Krishnamani, Bhavanishankar V. Gadnis, Mrs. B. Sunita Rao,
Nitin Popli, Pani and Sushi! K. Pathak for the Respondent No. 2.

The Judgments of the Court was delivered by
c
T ARUN CHATTERJEE, J. : The appellants in CA No. 6622 of2003
and CA No. 6750 of 2003 are aggrieved by the dismissal of their Election
Petition Nos. I 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 D
appeals under section I I 6A 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.
E
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 F
appellant challenged the validity of the Assembly election of Siolim Con-
stituency, Goa under section 86 of the Act in which he contested but the
respondent No. 1 was declared elected. The election of the returned candi-
date was questioned inter alia on the ground that the returned candidate
(Respondent No. I) on the date of nomination and the date of election of
·the constituency in question was disqualified as he was the Chairman of Goa G
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 H
922 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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 of2002 an additional
ground for setting aside the Election Petition was also .taken.

B 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
peti!ions, it was alleged that the learned counsel for the Respondent No. 1
C 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 peti-
tioners had failed to comply with the mandatory provisions of section 81(3),
D 83(l)(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
E 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?

2) Whether the returned candidates proved that the election
F 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(l)(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
G 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. l and 3 in favour of the election petitioners. Since no cross
H objection/ Appeal has been filed by the respondent No. 1 in both the appeals
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.] 923

nor any argument was advanced by the Learned Counsel for Respondent No. A
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.
B
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 C
Court were true copies of the election petitions?

(ii) Whether the appellants had served copies of,1he election
petitions to the number of respondents mentioned in
the petitions in compliance with section 81 (3) of the Act or D
not?

(iii) Whether the verification of the election petitions and docu-
ment was made by the appellant or not ?

However, the High Court rejected both the e_lection petitions of E
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(l)(c) of the Act.

Before we take up the aforesaid three questions for our decision, we p
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 G
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 H
924 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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(l)] of section 100 and section
101 to the [High Court] by any candidate at such election or any
B
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 ifthere are more than one returned candidate
at the election and dates of their election are different, the later of
those two dates].
c
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 petition.]"
D
Section 82 deals with parties to the election petition. Since this pro-
vision 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:-

E "83 Contents of petition - ( 1) An election petition-

(a) shall contain a concise statement of the material facts on
which the petitioner relies;
•
F (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

G (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 prac-
H tice, the petition shall also be accompanied by an affidavit in the
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.] 925

prescribed form in support of the allegation of sue.~ corrupt practice A
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.]"
B
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 l l 7 of the Act. There is yet another section which may also be
relevant for our purpose. This is section l 16A of the Act which deals with
appeals to Supreme Court. Section l 16A of the act reads as under:-
c
"I l 6A. Appeals to Supreme Court- ( 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." D
(Emphasis supplied)

A bare perusal of section l l 6A 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 l 16A of
the Act the Supreme Court is conferred with power not only to E
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 I l 6A of the
Act that is to say this Court is also conferred with power to decide an appeal F
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 G
Respondent No. 1 examined one witness who was the junior of the Learned
Counsel for· Respondent No. 1. In her affidavit - 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. I. She also stated that the copies of the election H
926 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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 Re-
spondent No. 1. She further stated in her deposition that one copy of the
B 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, 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
C signed by the Respondent No. I 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
D 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. I 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
E No. I could at all be relied on by the High Court. The copies of the election
petitions which were alleged to have been supplie.d by the Registry of the
High Court on the Learned Counsel for the Respondent No. 1 were exhib-
ited.

F 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. I.

As said hereinabove, it is not in dispute that two true copies of the
G election petitions were duly served upon the l:earned Counsel for Respond-
ent 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
H stated hereinearlier, it would be difficult for us to hold that reliance could
C.U. CHODANKAR v. SHRI D:R. MANDRAKAR [CHATTERJEE, J.) 927

at all be placed by the High Court on such copies. A

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 receiv-
ing those copies from the Registry of the High Court as, according to us, B
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. I. That apart, a perusal of the copies alleged to have
been served on the Respondent No. I indicates that copies of the election
petitions which the petitioners did not submit for service were produced by C
the Respondent No. 1 as having been served on the Respondent No. l.

Even otherwise, from the facts narrated earlier, it is clear that on 2nd
of August, 2002 the Learned Counsel for Respondent No. I in both the
election petitions had appeared before the High Court on behalf of Respond- D
ent No. 1 without filing any vakalatnama. As said hereinearlier, from the
re<'.ords, 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 "f-
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 b~fore the
vakalatnamas were filed on behalf of the respondent No. l i.e. not before p
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. I were at all supplied by the Registry of the High Court to the learned
-counsel for the respondent No. l. 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 G
by the Registry of the High Court. That apart, from the records, it does not
appear 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 H
928 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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.

B It is an admitted position that true copies of the election petitions were
served upon the Respondent No. I 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
C 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
D 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. I especially
E when true copies of the same were duly supplied to the Respondent No. I.
However, when two questions were framed by the High Court and answered
in favour of the Respondent No. I, we feel it appropriate to decide the
appeals also on question Nos. I and 2.

p Let us now !urn to question No. I first. In our view, the question No.
1 needs to be decided in favour of the appellants for the reasons mentioned
herein below. 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
G 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
H own signature as true copy?"
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.] 929

The answer to this question No. 3 from the appellants was 'Yes'. In A
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." B
(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 c
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 D
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 s2me 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 E
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 F
alleges 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 presump-
tion, it would be for the successful candidate/Respondent No. l to rebut such
presumption and discharge his initial burden. In this case, the Respondent
No. l having failed to discharge such onus, it is not open for the Respondent G
No. I 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 H
930 SUPREME COURT REPORTS (2004) SUPP. 6 S.C.R.

A Respondent No. I a true copy of the election petition as such petitions were
served on the Respondent No. I at a time when the elections petitions
became barred.

In view of our discussion made above and in the absence of any
B 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) ofthe Act inasmuch as the copies alleged
to have been supplied to the returned candidate were not true copies of the
petitions.

C Even ifthe 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
D 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
E 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.

F (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 I 0
of the election petition above the petitioner and beneath the verification
there was no signature of the election petitioner above the word "petitioner"
G 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
H election petition. The High Court further found that although an affidavit
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.) 931

was filed by the appellants but the copy of the election petition however did A
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 B
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 C
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 ifthe 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 !ead us to hold that election petitions D
should be rejected for non-compliance of section 81 (3) of the Act as copies
served on the respondent No. l 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 E
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 dia
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 F
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 G
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 IO 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 H
932 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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 v. Roop
Singh Rathore, AIR (1964) SC 1545 held as follows:-

B "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
C R.Deshmukh v. Onkar Nath Singh, [1999 (2) SCC 205]. So far as the 2nd
defect namely the stamp in respect of th.e swearing of the affidavit was
absent on the copy of the petition is concerned, we are of the view that mere
omission to stan.p 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
D decision of this Court in the case of Ram Prasad Sarma v. 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
E 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
F should be the meaning of 'true copy' in section 81(3) of the Act was
considered by this Court in Dr. Shipra (Smt.) & Ors. v. 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,
G namely, Dr.Shipra's case was doubted in a latter decision in the case ofT.M
Jacob v. 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
H substance which can lead to a finding of non-compliance with the
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.] 933

provisions of Section 81(3) of the Act with the consequences under A
Section 86(1) to follow. The weight of authority clearly indicates
that a certain amount of flexibility is envisaged. While an imper-
missible 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 B
is, however, neither d~sirable nor possible to catalogue t.he defect
. which may be classified as of a vital nature or those which are not
so. It would depend upon the facts and circumstances of eac~ case
and no hard and fast formula can be prescribed. The tests sug~ested
in Murarka Radhey Shyam case are sound tests and are now well
settled. We agree with the same and need not repeat those tests. C
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 D
of Section 81(3) of the Act in supplying "true copy" of the affidavit
I
to the appellant by the respondent." !
I

The difference of opinion was settled by the Constitution Betch in
Jacob's case by enunciating the principles as noted hereinabove. W~ have
carefully examined the defects as noted hereinearlier and on a careful E
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 F
by the Constitution Bench and in which it already distinguished the ~ase 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 substamially the same as the original,
variation if any from the original should not be vital in nature or sho~ld not
be. such that can possibly mislead a reasonable person in meeting the G
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 v. H.K. & Ors., [2001] 8 SCC 358. In this decision also it
was held that the defects indicated in these cases for which dismissafofthe H
934 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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
B provisions of Section 81 (3) of the Act as the defects shown by the Respond-
ent 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
C learned counsel for the Respondent No. I before us was whether subsequent
supply of such true copies on the Respondent No. I could be treated to be
a sufficient compliance of Section 81 (3) of the Act. Apart from the conclu-
sions made hereinbefore, we are also of the view that in view of the decision
of this Court in Anil R. Deshmukh v. Onkar N. Wagh, [1999] 2 SCC 205 this
D 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 argu-
ments were heard on the preliminary objection by the High Court
E in this case, the true copies cf 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(J)(c) of
the Act even if it could be said that the copies served in the first
F 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 justified
G 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 presentC;d were not
accompanied with as many copies thereof as there were respondents men-
H tioned in the petition. On this score, the High Court in both the appeals held
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.] 935

.in favour of respondent No. I inter alia on the following findings: A

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 B
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. C
It is not in dispute that copies of the election petitions were duly served
on the learned counsel for the respondent No. I in both the appeals on 19th
August, 2002. As said hereinearlier, according to Mr. Thali, since the copies
were served on the respondent No. I after the period of limitation no reliance D
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 E
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 F
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 G
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. l, even subsequent to the filing of the
election petitions and in view of the decision of this Court in Anil R. H
936 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Deshmukh v. 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 ifthere be any, wer~ thus removed, the election petitions could
not be rejected on these grounds.

B 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. Accord-
ingly, the two common questions as framed herein earlier and decided by
C 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 v. Shri Dayanand Rayu
D Mandrakar & Ors., (Election Petition No. 1 of2002 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
E D'Souza (Election Petition No. 2 of 2003 which gave rise to Civil Appeal
No. 6750 of2003), this question was pressed before the High Court antl the
High Court answered this question in favour of the Respondent No. 1.
Although, in Election Petition No. 2 of2002 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.
F
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 of2002 was liable to be rejected
G 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(l)(c) of the Act, we at the risk of repetition refer to this
H section which is as follows:-
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [CHATTERJEE, J.) 937

"83(1)(c)-"Election petition shall be signed by the petitioner and A
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 B
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 C
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 D
the election petitioner. In the verification portion of this affidavit it was
stated that the petitioners solemnly affirmed and verified that paragraphs I
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 -E
on 16th July, 2002. A~cording 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. l, since election petition itself was filed on 16th July,
2002, Exhibit F could not come into possession of the Election Petitioners F
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 ilerein earlier was not fatal for which the High Court G
was justified in rejecting the election petitions for non-compliance of section
83(l)(c) of the Act. In F.A. Sapa & Ors. v. 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 foimd in favour of
Respondent No. l by the High Court must be answered in favour of the H
938 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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. l. Relying on the decision in the case of Satya Narain v.
B 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(l)(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
C dismissal of the election petitions under section 86 of the Act. Relying on
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
D 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
E 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. l also placed strong
F reliance was a decision of this Court in the case of J.P. Goyal v. Raj Narain
& Ors., [1984] 3 SCC 339. This decisicr: 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
G v. 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. l 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
H served true copies of the election petitions on the Learned counsel for the
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.) 939

Respondent No. 1, the High Court committed an error in rejecting the A
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 B
election petitions, namely Election Petition No. 1 and 2 of2002 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 C
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.
D
For the reasons aforesaid, the appeals are allowed to the extent indi-
cated above. There will be no order as to costs.

S.B. SINHA, J. : The Election Petitioners are the Appellants herein.

By reason of the impugned judgment and order dated 18. 7.2003, the E
High Court dismissed the election petitions at the threshotd. inter alia, on
the grounds that : (i) the copy of the Election Petition sup? lied to the First
Respondent was not the true copy of the original; (ii) enough number of true
copies were not filed with the election petition by the Election Petitioners.
F
For the purpose of proper appreciation of the question involved in these
appeals, we may notice the following facts :

The election petitions were filed on 16.07.2002. The main contentio;:i
raised therein by the Appellants herein was disqualification of the elected
candidate in terms of Article 191(l)(a) of the Constitution of India, as G
allegedly, in Civil Appeal No. 6622 of 2003, the First Respondent was the
· Chairman of the Goa Khadi and Village Industries Board, while in Civil
Appeal No. 6750 of 2003, the First Respondent was the Chairman of the
Goa State Schedule Caste and other Backward Classes Finance and Devel-
opment Corporation Limited, incorporated under the Companies Act, 1956, H
940 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A a statutory authority and a company respectively over which the State of Goa
has a complete control. A Form as contained in Form No. 7 was filled in
by the Office, question No. 3 whereof relates as to whether copies of the
Petition and accompanying papers are also supplied for being made avail-
able to the Respondents and, if the sets of these copies re duly attested by
B tpe Petitioner under his own signature as true copy? The Assistant Registrar
made in endorsement therein (evidently upon scrutinizing the records) that
there was 'no defect'. Question No. 19 to the effect "Any other objection
raised by the Officer" in the said Examination Form was also answered in
the negative.

C The Election Petition was placed before the High Court on 01.08.2002
on which date ·notice was directed to be issued. The elected candidate being
the First Respondent appeared and accepted the notice. Although, however,
no Vakalatnama was filed, allegedly a copy of the election petition in each
case was obtain from the Registry which is said to be not a true copy of the
D original. The Bailiff of the court served the notice on the Respondents on
19.07.2002. The Vakalatnama of the First Respondent is dated 04.08.2002.
The said Vakalatnama was however, filed in the High Court on 06.09.2002.
The First Respondent, however, instead of filing his reply to the said election
petition, moved an application purported to be under Order 7 Rule 11 of
the Code of Civil Procedure read with Section 86 of the Representation of
E the Peopl~ Act, 1951, contending that :

(a) there is no endorsement indicating the date of filing.

(b) there is no endorsement indicating that the petition was ac-
companied by as many copies as there are numbers of re-
F spondents.

(c) neither index nor the petition is signed by the petitioner.

(d) the petition is not signed by the petitioners advocate as required
by Section 83(1)(c) of the Representation of People Act, 1951.
G
(e) the annexure to the petition are not verified by the petitioner
in the same manner as the petition.

(f) Hence there is no proper presentation of the petition. as re-
;
quired under as mandate of Section 81(3), 83(1)(a)(c), 83(2)
H
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.] 941

and 117, entailing its summary dismissal under Section 86 of A
the Representation of People Act."

A reply to the said application was filed by the Appellants herein on
23.10.2002 denying and disputing the contentions raised therein. The High
Court having regard to the rival contentions of the parties framed three B
issues, which are as under :

"1. Whether the respondent No. 1 proves that the election petition
is liable to the rejected under Section 81 ( 1) read with Section
86 of the Act by reason of it being barred by limitation ?
c
2. .Whether the respondent No. 1 proves that the election petition
is liable to be rejected in limine under section 86 of the
Representation of the People Act, 195 l by reason of its non-
compliance with Section 81(3), 83(l)(a), 83(l)(c) and 83(2)
of the said Act ? D

3. Whether the respondent No. 1 proves that the election petition
is liable to be rejected under Order 7 Rule l l(a) of the CPC
read with Section 87 of the said Act by reason of' non-
disclosure of any clause of action ?" E

Issue No. 2 was sub-divided as Issue Nos. 2(A), 2(B) and 2(C), which
are as under :

2(A). Whether the copies of the Election Petitions supplied by the
appellants and alleged to have been served upon the learned F
counsel for the Respondent No. 1 by the Registry of the High
Court were true copies of the Elections Petitions ?

2(B) Whether the Appellants had served copies of the Election
Petitions. to the number of Respondents mentioned in the G
petitions in complaince with Section 81 (3) of the Act or
not?

2(.C) Whether the verification of the Election Petitions and docu-
ment was made by the Appellants ? fi
942 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A Issue Nos. 2(A) and 2(B) were decided against the Election Petitioner
and in favour of the First Respondent.

The High Court in its judgment noticed that Mr. Vilas Thali, the '
'
learned counsel appearing on behalf of the First Respondent admitted that
B his client had received subsequently two copies of the election petition
through the Bailiff out of which one copy was returned and that the copy
received by him subsequently is a true copy. The High Court further noticed
that RW-1 in her evidence stated that the Vakalatnama was not filed on
02.08.2002 but in fact was filed on 06.09.2002 and the same was dated
04.08.2002.
c
On Issue No. 2(A), the High Court opined that the said copy could not
have been prepared by the First Respondent, the returned candidate, in order
to secure the dismissal of the election petition. It was further opined that
although the returned candidate was subsequently supplied the true copy of
D the election petition but thereby the defect as regard breach of Section 81
of the Representation of the People Act could not have been cured.

The defects as contained in Ex. R.W.-1 (copy filed by the First Re-
spondent which was said to have been received from the Registry) as no~iced
by the High Court are in the following terms :
E
"A perusal of the copy of election petition at Exhibit R. W. 1
it is seen that it is signed by the election petitioner. However, after
the prayer clause at internal page 10 of the petition above the word
'petitioner' similarly, on the same page, beneath the verification,
F there is no signature of the election· petitioner above the word
'petitioner'. Thus, the copy at Exhibit R. W.-1 would indicate that
the election petition had neither signed, verified that the petitioner
nor was it attested before any authority. There is no endorsement
of attestation of the Officer before whom the petition was signed.
Similarly, there is absence of the signature of the Advocate, who
G had identified the election petitioner. An affidavit has been filed
by the election petitioner and the copy of the affidavit in Exhibit
R.W.-1 does not show that the affidavit has been affirmed by the
election petitioner. There is no signature of the election petitioner
above the word 'deponent'. There is no signature of the advocate,
H who has identified the election petitioner. Here is an absence of the
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.] 943

affirmation endorsement put by the authority, who has adminis- A
tered the oath including absence of signature and name of the
authority. For the aforesaid reason, therefore, the copy at Exhibit
R.W. I, which is supplied to the respondent no. I returned candi-
date, is not a true copy of the election petition that is filed. The
Judgments of the Supreme Court, on which reliance is placed by B
the learned counsel for the election petitioner, in may respectful
opinion in the facts of the present case, are, therefore clearly
distinguishable."

On Issue No. 2(B), it was held that despite the endorsement of the
Additional Registrar in the Examination Form (Ex. RW-7) dated 18.07.2002, C
and although Query No. 3 as regard filing the requisite number of copies
for service to the Respondents was answered in the affirmative, but the said
endorsement does not disclose that when the Election Petition was filed it
was accompanied by as many copies thereof as there were Respondents
mentioned in the petition. It was held that the order-sheet of the Additional D
Registrar, dated 16th July, 2002, also did not indicate that the Election
Petition was accompanied by as many copies thereof as there were Respond-
ents.

The office endorsement, however,\showed that the second set of copies
to be served by the registered post acknowledgement due was supplied by E
the advocate for the election petitioner on 12.08.2002.

It was further opined by the High Court that the additional correct
copies were filed subsequent to the expiry of the period of limitation and,
thus, the defect in the said petition could not be cured. Sub-issue 2(C), F.
however was answered in favour of the Election Petitioner.

The First Respondent examined an Advocate Ms. Gandhali N. Pednekar,
said to be junior of Mr. Vilas P. Thali as his witness being RW-1.

We have been taken through the evidence ofR.W. I. She accepted that G
on endorsement on the copy of the petition w_as made on behalf of the First
Respondent by Mr. Thali showing the receipt of the copy of the election
petition. She further accepted that she received the summons on 19 .08.2002,
which was marked as Ex.RW.-5 being the original of Ex.RW-2. The notice
and the petition were also produced before the court and marked as Ex. RW- H
944 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 2 and Ex.RW-1. She furthermore admitted that the Examination Form dated
18.07.2002 was signed by the Section Officer (Judicial). She contradicted
her stand as regard the date of the Vakalatnama being 02.08.2002, as
admittedly the said Vakalatnama bore the date of 04.08.2002. Despite such
admission based on the materials on records, she contended :
B
"That on 02.08.2002, my senior, Advocate Vilas Thali, filed the
vakalatnama on behalf of the Respondent No. l" is correct".

When, however, her attention was drawn to the Vakalatnama, which
was dated 04.08.2002, she stated that the would not be able to say whether
C the First Respondent had not received any summons to appear before the
Court on 02.08.2002.
..
We may also notice the endorsement made by the Additional Registrar
stating :
D
"Petition is in order. We may admit the petition to the register as
Election Petition." · . ··

The findings of the High Court, as noticed hereinbefore, must, be
scrutinized keeping in view the aforementioned fact situation obtaining
E herein.

It is difficult to accept that although no Vakalatnama was filed by Mr.
Thali on. 02.08.2002, he would be supplied a copy of the petition by the
Registry and that too without making an endorsement in that behalf, par-
F ticularly when it is accepted that the bailiff served two copies upon the
elected candidate which were true copies of the original. How an incorrect
copy came in possession of the learned Advocate of the First Respondent
herein is not a matter which would fall for our determination but we can
record our satisfaction that sufficient number of true copies be presumed to
have been filed having regard to the endorsement made by the Assistant
G Registrar. So far as the finding of the High Court to the effect that the
additional copies were filed subsequent to the expiry of the period of
Limitation is concerned, there does not appear to be any material brought
on records in support thereof. The High Court, in our opinion, could not
have opined that it would not be correct to hold that the said R W-1 did not
H accompany the learned for the First Respondent to the Registry, or did not
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.] 945

receive the alleged incorrect copy of the petition from the Registry which A
was marked as Ex. R.W.-1, without taking into consideration the fact th~t
without filing memo of appearance vakalat, he neither could have asked
for nor could be supplied a copy of the election petition by the Registry.
Furthermore, had such copies been taken from the Registry, there was no
necessity for the Registry of the Court to serve two copies again on the First B
Respondent subsequently. Furthermore, had he received any copy from the
Registry, he would have made an endorsement on the body of the election
petition or acknowledge the same in the proceeding-sheet. In absence of any
such material in our opinion, the High Court was not correct in arriving at
a finding that Ex.RW-1 was supplied to Mr. Thali by the Registry of the
High Court. c
Furthermore, as the First Respondent herein received true copies of the
Election Petition much prior to his appearance before the Court, there was
no occasion for the Respondents to file applications purported to be under
Order 7 Rule 11 of the Code of Civil Procedure read with Section 86 of the D
Representation of the People Act, 1951.

In any event, the defects said to be contained in RW-1 would not-entail
dismissal of the election petition at the threshold. ·

It is now well-settled that the statutory requirements of Sections 81 and E
83 would be met if substantial compliance thereof is made.

A Constitution Bench of this Court in Murarka Radhey Shyam Ram
Kumar v. Roop Singh Rathore and Others., AIR (1964) SC 1545 interpret-
ing subs-section (3) of Sectoin 81 observed that the expression 'copy'
contained therein would not mean an absolutely exact copy, but would mean F
that the 'copy' shall be so true that nobody can by any possibility misun-
derstand it. It was further opined :

"The test whether the copy is a true one is whether any variation
from the original is calculated to mislead an ordinary person."
G
In Ch. Subbarao v. Member, Election Tribunal, Hyderabad and Oth-
ers, AIR (1964) SC 1027, the Constitution Bench accepted the submission
of the learned counsel appearing for the Appellant therein to the effect that
the election petition was not to be equated to an election at law or in equity,
but as the rights are purely creature of the statute, if the statute renders any H
946 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A particular requirement mandatory, the courts possess and can exercise no
dispensing power to waive non-compliance. The Constitution Bench follow-
ing Murarka Radhey Shyam case (supra), held :

" ..... We do not however consider that there is really need for so
much refinement when one has to look at whether there is a sub-
B stantial compliance with the requirement of this provision.
If the signatures now founa on the copies were intended to
authenticate the document to which it is appended, viz., the
copy, it would only mean that the copy did not reproduce
the signature in the original. There is no compelling necessity
c to hold that the signatures were merely intended to be a copy of
those on the original in order to spell out a non-compliance with
S.81(3), seeing that a dgnature in original was not needed on the
copy and a writing copying out the name of the signatory would
suffice."

D The question came up for consideration again before a Constitution
Bench in T.M Jacob v. C. Poulose and Others, [1999] 4 SCC 274, wherein
relying on or on the basis of the doctrine of 'substantial compliance' vis-
a-vis the doctrine of 'curability', it was held :

E "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( I) to follow. The weight of author-
ity clearly indicates that a certain amount of flexibility is envisaged.
While an impermissible deviation from the original may entail the
F
dismissal of an election petition under Section 86( I) of the Act, an
insignificant variation in the true copy cannot be construed as a
fatal defect.. .. "

The same view has been reiterated in Ram Prasad Sarma Etc. v. Mani
G Kumar Subba and Others, [2003] I SCC 289.

Sub-section (3) of the Section 81 or Section 3 8(1) of the Act although
may or may not be mandatory but it is not in dispute that the defects pointed
out therein, if any, would be curable. Only when despite opportunities
H granted such defects are not cured, as would appear from the discussions
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.] 947

made hereinafter, the election petition may be dismissed. Furthermore, A
correctness or otherwise of a statement made in the election petition would
not entail rejection thereof at the threshold or w9uld attract the provisions
of Section 86 of the Act.

Section 83 of the Act deals with contents of an election petition. Clause B
(a) of sub-section (I) of Section 83 provides that an election petition shall
contain a concise statement of the material facts, whereas clause (b) thereof
provides that in case of corrupt practice full particulars in relation thereto
are to be set out. Clause (c) of sub-section (I) of Section 83 provides that
an election petition shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 for the verification C
of the pleadings, i.e. Order 6 Rule 15 C.P.C. A defective affidavit would
not entail in limine dismissal of the election petition. (See Dr. Vijay Laxmi
Sadho v. Jagdish, AIR (2001) SC 600, G. Mallikarjunappa and Another v.
Shamanur Shivashankarappa and Others, [2001] 4 SCC 428 and Kamalnath
v. Sudesh Verma, [2002] 2 sec 410. D
In Regu Mahesh Alias Regu Maheswar Rao v. Rajendra Pratap Bhan)
Dev and Another, [2004] 1 SCC 46, this Court laid down the law in the
following terms.

"it is, therefore, a settled position in law that defect in veri- E
fication or an affidavit is curable. But further question is what
happens when the defect is not cured. There is a gulf of difference
between a curable defect and a defect continuing in the verification
affidavit without any effort being made no cure the defect."

In this case it is not necessary for us to go into the question as to F
whether Section 83 is imperative in character or not inasmuch it is a settled
law that even where the expression 'shall' is used, the same may not he held
to be mandatory. Even a mandatory' provision having regard to the text and
context of the statute may not call for strict construction.
G
In U.P. State Electricity Board v. Shiv Mohan Singh and Anr., (2004)
8 SCALE 475, this Court stated the law in the following
terms :

"Ordinarily, although the word "shall" is considered to be
imperative in nature but it has to be interpreted s directory if the H
948 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A context or the intention otherwise demands. (See Mis. Sainik Motors.
Jodhpur and Others. v. State of Rajasthan, AIR (1961) SC 1480,
para 12).

It is important to note that in Crawford ion Statutory Construc-
tion at page 539, it is stated :
B
"271. Miscellaneous Implied Exceptions from the Respond-
ents of Mandatory Statutes. In General-Even where a statute
is clearly mandatory or prohibitory, yet, in many instances,
the courts will regard certain conduct beyond the prohibition
c of the statute though the use of various devices or principles.
Most if not all of these devices find their jurisdiction in
considerations of justice. It is a well known fact that that often
to enforce the law to its letter produces manifest injustice, for
frequently equitable and humane considerations, and other
D considerations of a closely related nature, would seen to be
of a sufficient caliber to excuse or justify a technical violation
of the law."

In Nasiruddin and Others v. Sita Ram Agarwal, [2003] 2 SCC 577, it
is stated :
E
"37. The court's jurisdiction to interpret a statute can be invoked
when the same is ambiguous. It is well known that in a given case
the Court can iron out the fabric but it cannot change the texture
of the fabric. It cannot enlarge the scope of legislation or intention
F when the language of provision is plain and unambiguous. It cannot
add words to a statute or read something into it which are not there.
It cannot re-write or recast legislation. It is also necessary to
determine that there exists a presumption that the legislature has not
used any superfluous words. It is well-settled that the real intention
G of the legislation must be gathered from the language used. It may
be true that use of the expression 'shall or may' is not decisive for
arriving at a finding as to whether statute is directory or mandatory.
But the intention of the legislature must be found out from the
scheme of the Act. It is also equally well-settled that when negative
words are used the courts will presume that the intention of
H
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.] 949

the legislature was that the provisions should be mandatory in A
character."

.. Out attention, however, has been drawn to the two decisions of this
Court which were not considered in T.M Jacob (supra) being SatyaNarain
v. Dhuja Ram and Others, [1974] 3 SCR 20 201 and Rajendra Singh Etc. B
v. Smt. Usha Rani and Others Etc., [1984] 3 SCC 339.

In Satya Narain (supra), Goswami, J. speaking for himself and
P. Jaganmohan Reddy, J. opined that the very object of expeditious
trial will be defeated if the presentation of the election petition
should be casually and lightly, permitting all kinds of devices to delay the C
trial.

Although therein Ch. Subba Rao (supra) referred to but its attention
was not drawn to the following dicta.

"The next to be considered stems from the submission as D
regards the object of Parliament in enacting sub-sec. (3) of S. 81
and that expeditious disposal of election petitions which was the
object would be frustrated if substantial compliance with the pro-
visions was held sufficient.
E
We are not impressed with this argumel!t. While we are con-
scious of the need for expeditious disposal of election petitions. and
for the strict enforcement of provisions des'ignated to achieve this
purpose, we cannot be oblivious to the circumstan1=e that to read
every requirement literally might equally defeat the purpose for
which Part VI is intended viz., that elections are conducted in F
accordance with the relevant statutory provisions framed to ensure
purity and orderliness and that the candidate who has not obtained
a majority of valid votes or has Qbtained it in flagrant breach of the
statutory provisions is not held entitled to represerit the constitu-
ency."
G
In Rajendra Singh (supra) this Court following Satya Narain (supra)
opined :

. " ..... A persual of Sections 81(3) and 86 of the Act gives the
impression that they do not contemplate filing of incorrect copies H
950 SUPREME COURT REPORTS [2004] Sl,JPP. 6 S.C.R.

A at all and if a~ election-petitioner disregards the mandate contained
in Section 81 (3) by filing incorrect copies, he takes the risk of the
petition being dismissed in limine under Section 86. It is no part
of the duty of the respondent to wade through the entire record in
order to find out which is the correct copy. If out of the copies filed,
the respondent's copy is found to be an incorrect one, it amount
B
to non-compliance of the provisions of Section 81(3) which is
sufficient to entail a dismissal of the election petition at the behest.

9. Hence, the mandate contained in Section 81 (3) cannot be equated
with Section 537 of the Code of Criminal Procedure which makes
c certain omission as a curable irregularity. No such concept can be
imported into the el~ction law because the object of the law is that
the electoral process should not be set at naught and an elected
candidate should not be thrown out unless the grounds should
mentioned in the Act are clearly and fully proved. An election
D dispute concerns the entire constituency an in a parliamentary that
democracy it is of paramount importance that duly elected repre-
sentatives should be available to share the responsibility in the due
discharge of their duties. That is why the law provides time-bound
disposal of election disputes and holds out a mandate for procedural
compliance."
E
However, therein the binding decisions of the Constitution Bench in
Murarka Radhey Shyam (supra) and Ch. Subba Rao (supra) were not no-
ticed. Satya. Narain (supra) and Rajendra Singh (supra}, therefore, in our
opinion, do not lay down a good law.
F
A somewhat similar view appears to have been taken in Smt. Dr. Shipra
and Others v. Shanti Lal Khoiwal and Others., [1996] 2 SCC 181 but in
Anil R. Deshmukh v. Onkar N. Wagh and Others, [1992] 2 SCC 205 the court
doubted the correctness of law rendered therein and held that there was
sufficient compliance of the provisions of sub-section (3) of Section 81
G which would serve the legal requirements.

Yet again in T. Phungzathang v. Hangkhanlian and Others, [2001] 8
SCC 358, a 3-Judge Bench of which one of us. (N. Santosh Hegde, J. was
a member) upon considering some of the decisions referred to hereinbefore.
H observed:
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.] 951

"17. In the above-declared legal position, if we examine the case A
in hand, we notice that the only lacuna pointed out by the contesting
respondent in his application in Civil Miscellaneous Election Case
No. 3 of 2000 is that the copy supplied to him did not contain the
verification or affinnation made by the Oath Commissioner or the
prescribed authority as required in Form 25 and Rule 94-A of the B
Conduct of Elections Rules, 1961. It is not the case of Respondent
l that the original affidavit filed along with the election petition in
Fonn 25 did not contain such verification or affirmation. On the
contrary, it is an admitted fact that such affirmation or verification
was made in the original affidavit filed before the High Court.
Therefore, the question arising in this appeal is : would this omis- C
sion as pointed out by the respondent in his petition ipso facto ential
dismissal of the election petition under Section 86( l) of the Act ?
In view of the law laid down in Jacob case (1999) 4 SCC 274 the
answer then should be "no" because by such omission the copy
suppiied will not cease to be a "true copy" and there is not pos- D
sibility of any prudent person being in any manner misled in
defending himself of being prejudiced in the defence of his case.
Further such omissions are only curable irregularities."

The matter was considered from another angle by Lahoti, J. (as the
learned Chief Justice then was) opining : .E

"There is another angle from which the point at issue may be
examined. In Muraraka Radhey Shyam case AIR (1964) SC 1545
: [1964] 3 SCR 573 the Constitution Bench has held that where an
affidavit is in the prescribed form but there is a mistake in the F
verification portion of the affidavit such mistaken verification of
the Oath Commissioner cannot be a sufficient ground for dismissal
of the election petition summarily as the provisions of Section 83
are not mandatorily to be complied with nor taken a petition invalid
and such affidavit can be allowed to be filed at a later stage also.
Obviously when the defect in the original affidavit is removed at G
a stage, copy of such affidavit would also be supplied to the
respondent only at such later stage. If the view of the High Court
in the order impugned before us is to be upheld, an elec,tion peti-
tioner having filed an affidavit fully satisfying the requirement of
Section 83(1) proviso and Rule 94-A in all respects but having H
952 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A :
made an omission in the copy of the affidavit delivered to the
respondent would be placed in a position worse than an election
petitioner whose original affidavit filed with the election petition
itself did not satisfy the requirement of Section 83(1) proviso read
with Rule 94-A. his could not have been the intendment of law.
Such an interpretation would, to say the least, make a mockery of
B
justice ... "

Concededly, the officers of the High Court are required to perform
administrative functions one of which is to scrutinize the election petition
so as ascertain as to whether the petitions filed before the Court are free from
c any defect. Such an official act would draw a presumption of having been
performed in ordinary course of business to terms of Section 114(e) of the
Indian Evidence Act.

In jugal Kishore Patnaik v. Ratnakar Mohanty, AIR (196) SC 2130
D Khanna, J. speaking for a 3-Judge Bench raised a presumption of correctness
as regard endorsement made by an Officer of the Court in respect of the
election petition stating :

"We see no cogent ground to question the correctness of this
endorsement which clearly lends support to the inference that the
E copy filed with the petition had been attested by the respondent and
that the petition did not suffer from lack of compliance with the
procedural requirement."

One ofus (N. Santosh Hegde, J.) in B.S.E. Brokers Forum Bomaby and
F Others v. Securities and Exchange Board of India and Others., AIR (2001)
SC 1010 laid down the law in the following terms·:

" .. .It is a well-established principle in law that so long as the
impugned power is traceable to the concerned statute, mere omis-
sion or error in reciting the correct provision oflaw does not denude
G the power of the authority of taking a statutory action so long as
its action is legitimately traceable to a statutory power governing
such action. In such cases, this Court will always rely upon Section
114(e) of the Evidence Act to draw a statutory presumption that the
official acts are regularly performed and if satisfied that the action
H in question is traceable to a statutory power, the courts will uphold
C.U. CHODANKAR v. SHRI D.R. MANDRAKAR [SINHA, J.] 953

such State action ... " A
The High Court not only failed to apply the correct legal principles in
this behalf but in fact committed a manifest error in trying to fault with the
endorsement made by the Additional Registrar in Form-7 (as noticed supra)
without there being any material on the records brought by the parties to B
the contrary. It was for the First Respondent to adduce evidence and bring
on records adequate material so as to enable the court to rebut the presump-
tion of correctness of official work having been done in regular course of
business. In any event, the court could not acted contrary to the said legal
principles by drawing presumption against an official act.
c
The burden to prove that the election petition was not maintainable or
the same should be dismissed at the threshold by on the First Respondent.
The said burden on the First Respondent became heavier having regard to
the fact that the Registry of the High Court categorically arrived at a finding
that the said election petition did not contain any defect. A wrong principle D
of law as regard burden of proof as also drawing a presumption which in
law could not have been raised and failure to raise a presumption in terms
of Section 114(e) of the Evidence Act, the High Court must be held to have
committed a manifesterror. It posed a wrong question and thus misdirected
itself in law.
E
Furthermore, there are materials ori records to show that one of the
copies supplied to the First Respondent being a true copy with reached his
hands before filing of the Vakalatnama and even before any written state-
ment was filed, the question of his being misled and thus becoming unable
meet the allegations contained in the election petition did not arise particu- F
larly having regard to the nature of allegations made in the Election Petition.
In any event, there has been substantial compliance of the requirements of
law.

For the supplemental reasons stated hereinbefore, I agree with the
opinion of Brother Chatterjee, J. that the Appeals should be allowed and the G
matter be remitted to the High Court for determining the dispute on merits.

B.K. Appeals allowed.