Judgment

DWIVEDI, J. :- I agree with my brethren that the requisite copies of the election petition were not filed in Court within the period of limitation by the appellant. I am constrained also to agree that for this procedural fault his election petition is liable to be dismissed in view of the decision of the Court in jagat Kishore Prasad Narain Singh v. Rajindra Kumar Poddar (1971) 1 SCR 821. In that case Hegde J. said :

"The Law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore we have no doubt in our mind that, the election petition is liable to be dismised under Section 86 of the Act."

2. It makes me sad to read this requiem for this election petition. Over a century ago a slip in procedure by a litigant meant denial of justice to him. "(R)ight down the nineteenth century, the choice of the wrong writ involved the loss of the action even though all the merits were with the plaintiff." Holdsworth : A History of English Law, 9, 248. Gradually however, courts subordinated procedure to the claims of justice. In Ma Shew Mya v. Maung Ho Hnaung AIR 1922 PC 249 at p. 250 Lord Buckmaster said : "All rules of court are nothing but provisions intended to secure proper administration of justice. It is therefore essential that they should be made to serve and be subordinate to that purpose."

3. Speaking in the same vein, Justice Ameer Ali said : "Rules of procedure are not made for the purpose of hindering justice." (See (Raja) Indrajit Pratap Bahadur Sahai v. Amar Singh AIR 1923 PC 128 at p. 135).

4. Our decision restores the primacy of procedure over justice. it makes Section 86 (1) a tyrannical master. The rigidity of the rule of precedent ties me to its chains. My only hope now is that Parliament would make a just choice between the social interest in the supply of copies by the election petitioner along with his election petition and the social interest in the purity of election by excluding Section 81 (3) from the purview of Section 86 (1) of the Act.

GOSWAMI, J. :- (on behalf of himself and P. Jaganmohan Reddy, J.)

5. This appeal under Section 116A of the Representation of the People Act, 1951 (briefly the Act) is directed against the judgment and order passed by the High Court of Punjab and Haryana in election petition No. 2 of 1972 dismissing it on the preliminary ground that the appellant had filed to comply with the mandatory requirement of section 81(3) of the Act inasmuch as the requisite number of spare copies of the petition for the respondents were not filed along with the petition in the High Court. It was further held by the High Court. It was further held by the High Court that the said defect could not be cured subsequently even within the period of limitation prescribed for filing the election. The High Court further held that the spare copies were actually filed beyond the period of limitation.

6. The facts may be briefly stated. In the general election to the Haryana Legislative Assembly held on March 11, 1972, the appellant and the four respondents were the contesting candidates for the Safidon Assembly constituency No. 30; two candidates having already withdrawn from the contest. The counting of votes took place on March 12, 1972, and on the following day. The counting disclosed that the first respondent obtained 19570 votes as against 19462 votes secured by the appellant. The first respondent was, therefore, declared elected on March 13, 1972. The appellant filed an election petition in the High Court challenging the election of the first respondent on several grounds of corrupt practice within the meaning of Section 123 of the Act. It is not necessary for the purpose of this case even to detail these. The election petition was presented by Mr. R. S. Mittal, Advocate incharge, to the Deputy Registrar (Judicial) of the High Court on April 18, 1972. The same was ordered to be put up for scrutiny