2001 Supreme(SC) 1172

2001(6) Supreme 564
SUPREME COURT OF INDIA
(From Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and N. Santosh Hegde, JJ.
Sri T. Phunzathang -Appellant
versus
Shri Hangkhanlian & Ors. -Respondents
Civil Appeal No. 4605 of 2000
Decided on 28-8-2001
Counsel for the Parties :
For the Appellant : Amarendra Sharan, Senior Advocate, Ms. Poonam Kumari, Sapam Biswajit, Ms. Jayashree and Ashok Kumar Singh, Advocates.
For the Respondent No. 1 : T. Nanda Kumar Singh, Senior Advocate, Kh. Nobin Singh, Advocate.
For the Respondent Nos. 4-9 : Ms. S. Janani, Advocate.

IMPORTANT POINT
Copy of affidavit supplied to respondent 1 fulfilled the object (of Form 25 and Rule 94A of the Conduct of Election Rules, 1961). So High Court was in error to dismiss election petition u/s 86(1) of Representation of People Act, 1951 on ground of non-compliance of mandatory provisions of Sections 81(3) and 83(1) of the Act.

Headnote:Representation of People Act, 1951-Sections, 123, 81, 83 and 86-Election petition by appellant on grounds, inter alia, corrupt practice as stipulated u/s 123-Respondent 1 moving Civil Misc. (Election) Case No. 3/2000 contending non-compliance of mandatory requirements of Sections 81(3) and 83(1) r/w Form 25 and Rule 94A of the Conduct of Election Rules, 1961 before High Court-Appellant complied the requirement before CM (E) petition was taken for hearing-High Court, however, relying on Dr. Shipra s case, 1996(5) SCC 181 and Harcharan Josh s case 1997(10) SCC 264 dismissed the petition u/s 86(1) on ground of non-compliance of Sections 81(3) and 83(3) of the Act-Appeal against to Supreme Court-Whether High Court was right? (No)-Appeal allowed-Case remanded to High Court for trial and disposal of election petition on merits-Case law discussed.

       Per Santosh Hegde, J. and CJI :

       Held : From the above law laid down by the Constitution Bench in Jacob s case, it is crystal clear that the principle found in Dr. Shipra s case is not universal in its application, per contra, it is confined to the facts of that case only. (Para 9)

       From the above conclusion of this Court in Jacob s case, 1999(4) SCC 274 : 1999(4) Supreme 59, two principles can be deduced; (a) The expression "copy in Section 81(3) of the Act means a copy which is substantially the same as original, variation if any from the original should not be vital in nature or should not be such that can possibly mislead a reasonable person in meeting the allegation; (b) If the copy differs in material particulars from the original same cannot be cured after the period of limitation. Having laid down the law as stated above, the Court in Jacob s case proceeded to apply the same to the facts of that case, and came to the conclusion that 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 an omission or variation of a vital nature and the defect, if at all it could be construed as a defect, not attracting the consequences of Section 86(1) of the Act. It further held that 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, hence, Section 86(1) was not attracted entailing the dismissal of the election petition. (Paras 13 & 14)

       In the above declared legal position, if we examine the case in hand, we notice that the only lacunae pointed out by the contesting respondent in his application in Civil Miscellaneous (Election) Case No. 3/2000 is that the copy supplied to him did not contain the verification or affirmation made by the Oath Commissioner or the Prescribed Authority as required in Form 25 and Rule 94A of the Conduct of Election Rules, 1961. It is not the case of respondent No.1 that the original affidavit filed along with the election petition in Form 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 omission as pointed out by the respondent in his petition, ipso facto entail dismissal of the election petition under Section 86(1) of the Act? In view of the law laid down in Jacob s case (supra), the answer then should be no because by such omission the copy supplied will not cease to be a true copy and there is no possibility of any prudent person being in any manner misled in defending himself or being prejudiced in the defence of his case. Further, such omissions are only curable irregularities. In this appeal, it is also to be noted that on coming to know of the omission pointed out by the respondent, the appellant had on 6.6.2000 a few days before the starting of the arguments supplied fresh copies of the affidavit containing the verification as found in the original affidavit in its entirety, hence, as was laid down in the case of Deshmukh, 1999(2) SCC 205 : 1999(1) Supreme 153, it should be held that the defects pointed out in the petition being curable, have been cured. Having come to the conclusion that the facts of the present appeal are fully covered by the Constitution Bench judgment of this Court in Jacob s case and Deshmukh s case, we will now discuss the applicability of Harcharan Singh Josh s case 1997(10) SCC 294 to the facts of this case bearing, in mind that the High Court has relied on this case also to dismiss the election petition. It is true that in Josh s case, this Court extended the principle laid down in Dr. Shipra s case, 1996(5) SCC 181 : 1996(3) Supreme 694 but then this Court in Jacob s case in clear terms held that the application of the principle found in Dr. Shipra s case is confined only to the facts of that case; meaning thereby that it is applicable only in cases where the original affidavit filed before the High Court contained the omissions and not to copies of the affidavit supplied to the respondents. Therefore, it is clear that the application of the principle in Dr. Shipra s case to the facts of Josh s case is clearly impermissible. In that view of the matter, the decision in Josh s case being contrary to Jacob s case, the same cannot be construed as a good law any more. Therefore, the High Court in the instant case could not have relied on Josh s case to dismiss the election petition. Before we conclude, we must note that the appellant had in support of his argument raised an additional contention to the effect that assuming that irregularities pointed out by the respondent in the copy of the affidavit supplied to him is an incurable defect, even then the election petition could not have been dismissed in its entirety because it had raised other substantial grounds questioning the declaration of result in favour of respondent No.1. In our opinion, it is not necessary for us to express any opinion on this issue because of the view expressed on the main contention argued in this appeal. For the reasons stated above, this appeal succeeds and the same is allowed. The impugned judgment and order is set aside and the matter is remanded to the High Court for disposal of the election petition on merits. No costs. (Paras 17, 18, 19, 20 and 21)

       Per R.C. Lahoti, J. :

       Held : (Agreeing with above Majority opinion) : In the case before us, the copy of affidavit supplied to the respondent No. 1 fulfilled the object which the copy is intended to serve. There was no such variation from the original, as was calculated to mislead the respondent. There was no scope of misunderstanding for the respondent. The affidavit satisfied the test of substantial compliance, as propounded in Murarka Radhey Shayam and reaffirmed in T.M. Jacob. The respondent No. 1 was not prejudiced. This is clear from the fact that no objection in this regard was taken in the application dated 22.5.2000. In the next application dated 5.6.2000, objection in this regard was taken and immediately the election petitioner made available to the respondent another copy of affidavit without defect. Thus the defect, if any, stood cured as held in Anil R. Deshmukh s case. For the abovesaid additional reasons I agree with my learned brother that the judgment of the High Court has to be set aside and the case remanded to the High Court for trial and disposal of the election petition on merits. (Paras 28 and 29)