Important point
Substantial compliance of Sections 81(3) and 83(1) is sufficient to maintain an election petition; where but for the absence of the notarial endorsement, the copy of affidavit served on the opposite party was a true copy of the original as it was a xerox copy, dismissal of election petition on ground provisions of Section 81(3) was unjusti­fied.

Judgment

Srinivasan, J.-The appellant is aggrieved by the dismissal of his election petition No. 3/95 by the Bench at Aurangabad of the High Court of Bombay on preliminary issues without trial.

2. The first respondent was declared elected at the election to the Maharashtra Legislative Assembly held on 9.2.95 for 96 Pachora Con­stituency. The appellant filed the petition for declaring the elec­tion to be void and illegal and for declaring him as duly elected. In view of the limited scope of this appeal, it is unnecessary to refer to the allegations made in the said petition. Suffice it to mention that the petition contained allegations of certain corrupt practices as against the first respondent. An affidavit was filed along with the petition as required by the proviso to Section 83(1)(c) of the Repre­sentation of the People Act (for short, the Act). The affidavit was attested and the endorsement of attestation contained the particulars as required by law.

3. When the copies of the petition, documents and the affidavit were served on the respondents, the copy of the affidavit did not bear the endorsement of attestation found on the original or the seal or stamp of the attesting officer. The appellant signed below the rubber stamp endorsement “Attested as true copy”. But for the absence of the no­tarial endorsement, it was a true copy of the original as it was a xerox copy. The first respondent and the tenth respondent raised objections that the election petition should be dismissed in limine as the provisions of Section 83(1) of the Act were not complied with. Besides the contention that the copies of the affidavit served on them were not true copies, the tenth res­pondent contended that a true copy of the petition was not supplied to him as required by Section 81(3). The first respondent filed a separate application for dismissing the election petition for non-compliance with Section 81(3) of the Act.

4. Issues 8 and 9 based on the said objections were as follows :

Issue No. 8 :

“Where the affidavit filed by the petitioner under provisions of the Proviso to Section 83(1) of the Representation of People Act,1951 read with Rule 94-A of the Conduct of Election Rules, 1961 is not in con­formity with the provisions and it yes, what is its effect?”

Issue No. 9 :

“Whether the true copy of the petition is properly served on the respondent in compliance with the rules?”

5. The two issues were treated as preliminary issues and the High Court heard arguments on the same before the commencement of the trial. The Court found against the contention that true copy of the petition was not supplied. But the objection that the copy of the affidavit supplied was not a true copy in as much as it did not con­tain the endorsement of attestation was upheld. The High Court held that the defect was fatal to the election petition and dismissed the same for non-compliance of Section 83(1) read with Section 81 of the Act. For coming to the said conclusion the High Court relied on a previous judgment of that Court in Purushottam v. Returning Officer, Amravati1 which was approved by this Court in Dr. (Smt.) Shipra v. Shanti Lal 2.

6. The appellant has contended that the endorsement of verification and stamp and seal of the attesting officer on the copy of the affida­vit supplied to the first respondent do not form part of the election petition and the absence of such endorsement etc. will not make the copy any the less true copy of the election petition. Consequently, according to him the provisions of Section 81(3) were fully complied with and at any rate there was substantial compliance of the said provisions. It is further contended that long before 21.9.1996 when the preliminary objection was heard by the Court, true copies of the affidavit containing the endorsement of verification etc. was served on the first respondent as well as his counsel on 24.7.1996. The covering letters accompanying the said copies are found on the file of the High Court at pages 74 a