S.MURTAZA FAZAL ALI - (1.) BY our Order dated Nov. 29, 1983 we had, allowed the appeal. We now proceed, to give the reasons for the said Order.
(2.) THIS election appeal is directed against an interlocutory Order dated 7/01/1983 passed by the Patna High Court overruling a preliminary objection taken by the appellant (elected candidate) that the election petition of the respondent (election petitioner) should be dismissed straightway under the provisions of Section 9.6 of the Representation of the People Act, 1951 - as amended up-to-date - (hereinafter referred to as the 'Act'). The appellant's case is that in the general election held in June 1990 he fought as a Congress (1) candidate from, Harlakhi Assembly constituency in Bihar in which, he was declared elected, defeating the respondent who filed the election petition in the High Court. He further submitted that the copy of the election petition served on him contained a large number of mistakes in respect of persons through whom corrupt practices were alleged to have been practised by the appellant during the election. He contended that in view of the very large number of mistakes, which were of a very vital character, the mandatory provisions of Section, 81 (3) of the Act were not complied with at all, which, infirmity by itself would, be sufficient to dismiss the election petition in limine without going into the merits of the case. The stand taken by the respondent was that the mistakes were undoubtedly there but they were of a minor and insignificant nature and did not affect his case on merit.
(3.) THE learned Judge of the High Court found as a. fact that a large number of mistakes were there in the copy of the election petition supplied to the appellant but as they were of a superficial and insignificant nature bordering (a clerical or typing mistakes, on the whole there was a substantial compliance of the provisions of Section 81 (3) of the Act. THE learned Judge has entered into a detailed discussion of' the various decisions of this. Court and also of High Courts and has correctly held that the provisions of Section 81 (3) are mandatory and if the court finds that they have not been complied with it has no alternative but to dismiss the election petition straightway. Unfortunately, however, in the process of applying the principles laid down by this Court he has completely glossed over the nature of the mistakes by describing them as merely clerical or typing ones. On a perusal of the aforesaid mistakes (listed at pp. 64-65 of the Paperbook) they do not appear to be so. Section 81 (3) of the Act runs thus : "81. Presentation of petitions (3) Every election petition shall be accompanied by as many copies thereof as. there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." The consequence of non-compliance of this section has been mentioned in Section 86 (1) which may be extracted thus : "86. Trial of election petitions (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117." ;