SHARIF-UD-DIN Vs. AB GANI LONE

JUDGEMENT

(1.) ELECTION of the respondent, who has been returned from the Handwara Assembly Constituency during the 1977 Assembly General Elections, has been challenged by the petitioner a defeated candidate at the polls, on the grounds of corrupt practice and non -compliance with the provisions of Jammu and Kashmir Representation of People Act, 1957 (hereinafter to be referred to as the State Act) and Rules made thereunder. The respondent, has set up a bar at the threshold for the maintainability of the election petition, by contending that provisions of section 89 of the State Act have been violated, and urged, that the petition may be dismissed, without trial on merits, under section 94 of the State Act. This controversy has given rise to the following two preliminary issues: 1. Has not the petition been presented in accordance with Sec. 89 of the Representation of Peoples Act, 1957? 0. P. D.

(2.) HAS not the copy of the petition served upon the respondent, signed and attested by the petitioner in his own signatures to be a true copy of the petition? If so, what is its effect on the petition? O. P. D. On the day, the issues were framed, counsel for the parties, expressed their desire to merely address arguments on these issues, but subsequently they realised that issue No. 1 being a mixed issue of law and fact required evidence for its proof. A request was accordingly made by the counsel for the petitioner, which was granted. Whereas, the respondent has examined one witness, namely, Abdul Majid Dar besides appearing as his own witness, the petitioner, has recorded only his statement as his own witness. 2. RW Abdul Majid Dar stated, that on October, 1, 1977 he was employed as a process server in Saddar Court Srinagar. He was handed over a summon, accompanied by some more papers to be served upon the respondent. He effected service handed over the papers accompanying it to the respondent, after obtaining the letters signatures on it, and made his own report on the summons accordingly. He has identified the summons, which has exhibited as EXDW 1/1, and has also proved his own report as well as the signatures of the respondent on it, which too have been exhibited as EXDW 1/2 and EXDW 1/3 respectively.

(3.) THE respondent has stated that summons EXDW 1 was served upon him on October 9, 1977. He has identified his signatures EXDW 1/3 on it. He has further stated that copy of the petition, as well as, affidavit in support of it, was also handed over to him, It comprised of eleven leaves in all. He has identified the copy, which has been exhibited as EXDW 2/1 and has further gone to identify the signatures of the petitioners counsel Mr. P. L. Handoo advocate on it.