Bhagwati, J. - (1.) This appeal arises out of an election petition filed by the appellant in the High Court of Kerala challenging the election of the respondent to the Lok Sabha from Kozhikode constituency under the Representation of the People Act, 1951 (hereinafter referred to as the Act). The election was held on 19th March, 1977 and the respondent having secured the majority of votes was declared elected to the Lok Sabha on 20th March, 1977. The appellant, who was a rival candidate, filed an election petition in the High Court of Kerala challenging the election of the respondent on various grounds, one of which was commission of certain corrupt practices set out in the election petition. The election petition was duly signed and verified by the appellant and it was accompanied by the requisite affidavit in support of the allegations of corrupt practice and their particulars. The election petition and the affidavit were tied together as one document and two copies of this document were filed for service on the respondent. The signature of the appellant by way of authentication appeared at the foot of the copy of the affidavit, but there was no such signature separately appended at the foot of the copy of the election petition. The respondent, therefore, on filing his appearance, raised a preliminary objection against the maintainability of the election petition and contended that since the copy of the election petition was not attested by the appellant under her own signature to be a true copy, there was non-compliance with Section 81 sub-sec. (3) and hence the election petition was liable to be dismissed under section 86, sub-sec. (1) of the Act. This preliminary objection was tried first, since, if it was well founded, the High Court was bound to dismiss the election petition and could not proceed to hear it on merits. The High Court delivered its judgment on this preliminary issue on 6th July 1977, and held that what Section 81, sub-section (3) requires is attestation of the copy of the election petition under the signature of the petitioner and since in the present case, signature by way of attestation was on the copy of the affidavit and not on the copy of the election petition, there was non-compliance with Section 81 sub-section (3) and the election petition was liable to be dismissed in limine under sub-section (1) of Section 86. The appellant being aggrieved by the dismissal of the election petition, preferred the present appeal under S. 116A of the Act.
(2.) The controversy between the parties in this appeal lies in a narrow compass. But before we deal with it, it would be convenient at this stage to refer to the relevant provisions of the Act which have a bearing on the arguments urged before us. Part VI of the Act is headed "Disputes regarding Elections" and chapter II in that part deals with the presentation of election petitions to the High Court. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 80-A lays down the forum which shall have jurisdiction to try an election petition and the High Court is designated as such forum:Then comes Section 81 which is a little important. It reads:- "81. Presentation of petition:- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidates at the election and the dates of their election are different the later of those two dates. Explanation:- In this sub-section, "elector" means a persons who was entitled to vote at the election to which the election petition relates whether he has voted at such election or not." ********** (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 election petition here was accompanied by two copies thereof though there was only one respondent mentioned in the election petition. There was admittedly compliance with the first part of sub-section (3) of section 81. The dispute between the parties was only as regards fulfillment of the last part of section 81, sub-section (3) which requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the election petition. The argument of the respondent was, and that is the argument which found favour with the High Court, that neither of the two copies of the election petition filed by the appellant was attested by her under her own signature to be a true copy of the election petition. There was undoubtedly signature of the appellant at the foot of the copy of the affidavit which was filed along with the election petition, but there being no signature by way of attestation on the copy of the election petition, there was non-compliance with sub-sec. (3) of Section 81. We shall presently consider this argument, but in the meanwhile we may proceed with the summary of the relevant provisions of the Act. Section 82, which is the next section, lays down who shall be parties to an election petition. We need not refer to this section in detail since we are not concerned with it. Section 83 is, however, material and it provides what shall be the contents of an election petition. It reads:- "83. Contents of petition:- (1) An election petition:- (a) shall contain a concise statement of the material facts on which the petitioner relies ; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of-the names of the parties alleged to have committed such corrupt practice and the date of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings; Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." It was in compliance with the proviso to Section 83, sub-section (1) that along-with the election petition an affidavit in the prescribed form was filed by the appellant in support of the allegation of corrupt practice set out in the petition and the particulars of such corrupt practice. The two copies of the election petition filed by the appellant also carried copies of the affidavit attached to them and the signature of the appellant appeared at the foot of each of the copies of the affidavit. Section 84 is not material and we may omit reference to it.
(3.) The next chapter, which is Chapter III, deals with the trial of the election petition, but here we are concerned only with sub-section (1) of Section 86, since it is under this provision that the election petition of the appellant was dismissed by the High Court Section 86, sub-section (1) reads as follows:- "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 Explanation:- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) to Section 98." There can be no doubt that if the election petition of the appellant did not comply with the last part of sub-section (3) of Section 81, the High Court was justified in dismissing the election petition under Section 86, sub-section (1):in fact it had no other option but to do so. The question, therefore, is whether the appellant failed to comply with the requirement of the last part of sub-section (3) of Section 81.;