M KAMALAM Vs. V A SYED MUHAMMED

JUDGEMENT

(1.) This is a petition filed under S.80 to 84 read with S.117 of the Representation of the People Act, 1951 (briefly the 'Act') challenging the election of the respondent to the Lok Sabha from the Kozhikode Lok Sabha constituency in the election held on 19-3-1977. The main ground upon which the election held is sought to be avoided is the commission of certain corrupt practices alleged in the petition. The petition was duly signed and verified by the petitioner and it was also accompanied by the requisite affidavit. On acceptance of summons the respondent entered appearance and raised a preliminary objection regarding the maintainability of the petition on the ground that there is non compliance with sub-s.(3) of S.81 of the Act.

(2.) The respondent was served with two copies of the petition, one of which was produced along with the written statement. The contention raised by the respondent is that both the copies served on him do not contain the signature of the petitioner as enjoined by S.81(3) of the Act. On a perusal of both the copies it is seen that the copies of the petition served on the respondent do not contain the signatures of the petitioner. The copy of the accompanying affidavit, however, is seen signed by the petitioner. The question is whether the omission to sign the two copies of the petition is fatal. Sub-s.(3) of S.81 leads as follows: --

(3.) I may refer to certain decisions brought to ray notice by the petitioner to substantiate her contention that a substantial compliance with S.81(3) is sufficient. S.81(3) of the Act came up for consideration of the Supreme Court in Ch. Subbarao v. Member, Election Tribunal ( AIR 1964 SC 1027 ). In that case the copies were signed by the petitioner, but there was no attestation in the sense that the words 'true copies' were omitted above the signature of the petitioner. The court held that as the signature was therein the copy that was sufficient to indicate that the copy was attested as a true copy eventhough the words 'true copy' were not written above the signatures in the copy. The court held that there was substantial compliance with S.81(3) of the Act, and the petition should not be dismissed under S.90(3). Almost a similar case was considered by the Supreme Court in Dr. Anup Singh v. Abdul Ghani ( AIR 1965 SC 815 ). In that case also the necessary number of copies were filed and the copies bore the signature of the petitioner concerned. The defect was that the attestation required by S.81(3) was not there specifically on the copies. The court held on the basis of Ch. Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027), that there was substantial compliance with S.81(3) of the Act. It should be noted that in both those cases there was the signature of the petitioner in the copies served. Here, it is a case of total absence of signature, and so the petitioner cannot claim that her position is similar to that of the petitioners in the two cases decided by the Supreme Court and referred to above. The next decision pressed into service is Smt. Shodrabai Rai v. Ram Singh Aharwar and others ( AIR 1968 SC 1079 ). There it was a case where in the copies served, the annexures were not signed by the petitioner. The court held that the annexures do not form part of the petition, and hence it was held that the omission was not fatal. That apparently is not the situation here. As referred to earlier, the affidavit, though it is part of the petition, is not an affidavit to the entire petition so that the mere signing of the copy of the affidavit does not amount to the signing and attestation of the main petition. Jagat Kishore v. Rajendra Kumar AIR 1971 SC 342 ) was a case where there was discrepancy between copy of the petition submitted by the opposite party and the actual petition presented to the court. It was held that there was non compliance with S.81(3) and the petition is liable to be dismissed under S.86(1). I do not know how this decision is of any assistance to the petitioner. Satya Narain v. Dhuja Ram ( AIR 1974 SC 1185 ) dealt with a case where the requisite copies of the election petition were not filed in court within the period of limitation. The court held that the petition is liable to be dismissed for non compliance with S.81(3) of the Act. It was held as follows: