Failure to supply a copy of the annexure to the election petition to the respondent was a fatal defect and the petition was liable to be dismissed.

( 1 ) THIS case comes up today for arguments on the preliminary objections filed by the respondent No. 1 Harlal on 6-12-1977 to the effect that the petition is liable to be dismissed on the ground of non-compliance with the provisions of section 81 (3) read with Section 86 (1) of the Representation of the People Act, 1951.

( 2 ) THE short facts necessary for disposal of the objections may be stated as follows:--The respondent No. 1' Harlal was declared elected as a member of the Madhya pradesh Legislative Assembly from Sadora Constituency in the elections held on 15th June 1977. The petitioner Kushalchand was one of the candidates and since he was defeated in the elections, he filed the election petition on 29-71977, inter alia, on the ground of corrupt practices alleged to have been committed by the respondent No. 1. The relevant paragraph in the election petition dealing with the corrupt practices in para. 19 reads as under :--

"appeal in the name of caste and religion. That the respondent No. 1 distributed pamphlet with the heading "musalman Kisi Bhi Kimath Par congress Ko Vote Na Den," from 8-6-1977 to 12-6-1977 in the length and breadth of the constituency himself and by his workers. This pamphlet was got printed and published in the Janata Printing Press by the respondent No. 1 through his agents or Janata Party in which he appealed to the Musalmans as a community not to vote to the 'jalim', meaning thereby the petitioner, and in this appeal the respondent No. 1 has made a statement of fact against the personal character and conduct of the petitioner which is false and which he believed to be false or did not believe to be true. In this statement by innuendo, the petitioner is said to be 'jalim'. This was an appeal in the name of caste also. The word 'jalim' means 'hardened criminal in the area. The pamphlet is appended herewith as Annexure 'a'. "

( 3 ) ONE printed leaflet marked Annexure 1' was submitted along with the original petition. Mr. A. B. Mishra, learned counsel for the petitioner, has stated before me that it was inadvertently marked Annexure 1' but this is the pamphlet referred to in the petition as 'annexure A',

( 4 ) NOTICE of the election petition was served on the respondent No, 1 Harlal on 11-10-1977 but copy of the election petition was not served upon him along with it. His counsel Shri Rameshwar Bhargava obtained the copy of the election petition from the office on 24-10-1977 and made the following endorsement in the margin of the order sheet of that date:--"recd. copy of the petition without Annexure A, sd/- Rameshwar Bhargava 24-10-1977. "

( 5 ) NOW, the preliminary objection raised by the respondent No. 1 is that the petitioner did not supply copy of the leaflet (Annexure A) alone with the copy of the election petition to be served on the respondent No, 1 and, therefore, the copy of the election petition served on him is incomplete and, consequently, the petition is liable to be dismissed for non- compliance of Section 81 (3) of the representation of the People Act, 1'951 (which will hereinafter be called the act ). Shri A, B, Mishra, learned counsel for the petitioner, took time on 6-121977 to file a reply to the preliminary objection. Accordingly, he filed the reply on 12-12-1977 in which it was pleaded that there was no procedure for submission of preliminary objections and that the provisions of Section 81 (3)of the Act' are directory and can be complied with later on by suitable amendment. Since the objection raised by the respondent No, 1 was a mixed objection of fact and law I directed his counsel to file an affidavit in support of it. As I also felt that the reply filed by the petitioner to the preliminary objections was not complete. I directed that the petitioner may file a complete reply to the preliminary objections by an affidavit (vide my order dated 12th december 1977 ). In compliance of the aforesaid order the respondent No. 1 filed an affidavit by Shri Rameshwar Bhargav