1999 Supreme(SC) 503

1999(4) Supreme 59
Supreme Court of India
(From Kerala High Court)
Dr. A.S. Anand, CJI., S.B. Majmudar, Mrs. Sujata V. Manohar, K. Venka­taswami & V.N. Khare, JJ.
T.M. Jacob -Appellant
versus
C. Poulose & Ors. -Respondents
Civil Appeal No. 14555 of 1996
Decided on 15-4-1999
Counsel for the Parties :
For the Appellant : Harish N. Salve, Sr. Advo­cate, Nikhil Shakardande, Roy Abraham, Ms. Baby Krishnan, Advocates.
For the Respondents : Dr. Rajeev Dhawan, Sr. Advocate, V. Ramachan­dran, Ramesh Babu M.R., G. Prakash, Advocates.

Important Points
1. The object of serving a “true copy” of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.
2. The expression “copy” in Section 81(3) of the Representation of People Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition.
3. Defects in the supply of true copy under Section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of Section 81(3) read with Section 86(1) of the Act. Same consequence would not follow from non-compliance with Section 83 of the Representation of People Act.
4. Non-mention of the name of the notary or the absence of the stamp and seal of the notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature within meaning of Sections 81(3) and 86(1) of the Represen­tation of People Act.

Headnote:Representation of People Act, 1951-Section 86(1) read with Section 81(3)-Dismissal of election petition for non-compliance with require­ments of Section 81(3) -Election petition alleging corrupt practice-Affidavit supplied to returned candidate contained endorse­ment that affidavit had been duly affirmed, signed and verified before notary-Name and address of notary and stamp and seal of notary, however, missing-Plea that true copy of affidavit not served and election petition liable to be dismissed-Not tenable-‘Copy’ in Section 81(3) means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature-Defects in supply of true copy may be considered to be fatal, where party has been misled by copy on account of variation of material nature in original and copy supplied-Not every minor variation in form but only vital defect in substance which would lead to finding of non-compliance with provisions of Section 81(3) attract­ing consequence u/s 86(1)-In the instant case provisions of Section 81(3) substantially complied with-Defect in true copy of affidavit did not attract provisions of Section 86(1)-Princi­ples indicated in Dr. Smt. Shipra’s case (1996) 5 SCC 181 : 1996(3) Supreme 694 : 1996(2) CCC 147 (SC) has to be considered as confined to facts and circumstances of that case and cannot be consi­dered to be of general application divorced from fact situation of a given case.

       Held : Reverting now to the facts of the present case. A perusal of the copy of the affidavit served on the appellant shows that the copy of the affidavit supplied to the appellant contained the endorsement that the affidavit had been duly affirmed, signed and verified by respond­ent No. 1 before a Notary. Under the affirmation by the notary, the word Sd/- Notary were also written. What was, however, found missing in the copy of the affidavit was the name and address of the Notary as well as the stamp and seal of the Notary, before whom the affidavit had been so affirmed and who had attested the affidavit. The defect found in the present case is almost identical to the defect which had been found in the copy of the affidavit supplied to the first respondent in Anil R. Deshmukh v. Onkar N. Wagh & Ors., JT 1999(1) SC 135. The defect is materially different from the defect found in Dr. Shipra’s case, where the true copy of the election petition furnished by the election petitioner to the successful candidate did not show that the affidavit filed in support of the allegation of corrupt practices had been duly sworn or affirmed and verified by the election petitioner before a notary, whose attestation was also found missing. In our opinion the principle indicated in Dr. Shipra’s case has to be considered as confined to the facts and circumstances of that case as opined by Ramaswamy, J. himself, when His Lordship observed :

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

       and cannot be considered to be of general application divorced from the fact situation of a given case. The judgment in Dr. Shipra’s case is confined to the “fact situation” as existing in that case and has no application to the established facts of the present case and the wide observations made therein were made in the context of the facts of that case only. (Paras 19, 20, 21 & 24)

       The object of serving a “true copy” of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form. The expression “copy” in Section 81(3) of the Representation of People Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of Section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation. (Paras 30 & 31)

       We have already referred to the defect which has been found in the copy of the affidavit served on the appellant in the present case. There is no dispute that the copy of the affidavit served on the appellant contained the endorsement the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner before a Notary. Below the endorsement of attestation, it was also mentioned : Sd/- Notary. There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the Notary in the copy of the affidavit served on the appellant. There was no other defect pointed out either in the memo of objection or in C.M.P. No. 2903 of 1996 or even during the course of arguments in the High Court or before us. Could this omission be treated as an omission of a vital or material nature which could possibly mislead or preju­dice the appellant in formulating his defence? In our opinion No. The omission was inconsequential. By no stretch of imagination can it be said that the appellant could have been misled by the absence of the name and seal or stamp of the Notary on the copy of the affidavit, when endorsement of attestation was present in the copy which showed that the same had been signed by the Notary. It is not denied that the copies of the Election Petition and the affidavit served on the appel­lant bore the signatures of respondent No. 1 on every page and the original affidavit filed in support of the Election Petition had been properly signed, verified and affirmed by the election petition and attested by the Notary. There has, thus, been a substantial compliance with the requirements of Section 81(3) read with the proviso to Sec­tion 83(1)(c) of the Act. Defects in the supply of true copy under Section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of Section 81(3) read with Section 86(1) of the Act. Same consequence would not follow from non-compliance with Section 83 of the Representation of People Act. (Para 32)

       The Legislative intent appears to be quite clear, since it divides violations into two classes-those violations which would entail dismissal of the election petition under Section 86(1) of the Act like non compliance with Section 81(3) and those violations which attract Section 83(1) of the Act i.e. non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the applica­tion of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam and Ch. Subbarao’s cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. This position clearly emerges, from the provisions of Section 83(1) and 86(5). (Para 33)

       The defects complained of in the present case were not such as could have misled the appellant at all. The non-mention of the name of the notary or the absence of the stamp and seal of the notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature and, thus, the defect, if at all it could be construed as a defect was not a defect of any vital nature attracting consequences of Section 86(1) of the Act. Under the circumstances, it must be held that there was no failure on the part of the election petitioner to comply with the last part of sub-section (3) of Section 81 of the Act and, under the circumstances, Section 86(1) of the Act was not attracted and the election petition could not have been dismissed by reason of the alleged failure to comply with the provisions of Section 81 of the Act. In this connection, it is also relevant to note that the appel­lant, neither in the memo of objections nor in the written objections or in C.M.P. No. 2903 of 1996 has alleged that he had been misled by the absence of the name, rubber stamp and seal of the notary on the copy of the affidavit supplied to him or that he had been prejudiced to formulate his defence. Even during the arguments, learned counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him. (Para 34)

       In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to cata­logue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be pre­scribed. The tests suggested in Murarka Radhey Shyam v. Ram Kumar v. Roop Singh Rathore & Ors., 1964(3) SCR 573 are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the pro­visions of Section 86(1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the re­quirements of Section 81(3) of the Act in supplying ‘true copy’ of the affidavit to the appellant by the respondent. (Para 35)