M KAMALAM Vs. V A SYED MOHAMMED

JUDGEMENT

(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:-

(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:-