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Allahabad High Court
Saleem Masood Son Of Sri Maqsood ... vs Rasheed Masood Son Of Qazi Masood on 25 May, 2007
Author: S Mehrotra
Bench: S Mehrotra

JUDGMENT

S.P. Mehrotra, J.

1. The aforementioned Application (Paper No. A-7) has been filed on behalf of Rasheed Masood (Respondent in the Election Petition), interalia, praying that the aforementioned Election Petition No. 10 of 2004 be dismissed under Section 80 (1) of the Representation of the People Act, 1951 (hereinafter also referred to as "the R.P. Act, 1951") for non-compliance of Section 81(3) of the said Act.

2. The aforementioned Election Petition being Election Petition No. 10 of 2004 has been filed by Saleem Masood (Petitioner) under Sections 80 and 81 of the Representation of the People Act, 1951.

3. It is, interalia, prayed in the said Election Petition that the election of Rasheed Masood (Respondent) to the Lok Sabha from 80 Saharanpur Parliamentary Constituency be declared as null and void.

4. In paragraph 1 of the Election Petition, it is stated that the Petition is an Elector whose name is recorded in the Electoral Roll of 399, Nagal Assembly Constituency forming part of 80 Saharanpur Parliamentary Constituency.

5. In paragraph 2 of the Election Petition, it is stated that by a Notification dated 16.4.2004, issued under Section 14 of the Representation of the People Act, 1951, the Electors of 80 Saharanpur Parliamentary Constituency were called upon to elect their Member of Lok Sabha for constituting new Lok Sabha in the Elections, 2004.

6. Paragraph 3 of the Election Petition gives the Election Schedule for election to the aforesaid Constituency.

7. In paragraph 4 of the Election Petition, it is stated that "a total number of 15 persons filed their nomination papers for the said Parliamentary Constituency. Out these 15 persons nomination paper of Sri Vishwanath son or Hari Chand, Resident of Mohalla Deena Nath Bazar, Patwo Ka Kuwan, City and District Saharanpur was improperly rejected".

8. It is stated in paragraph 5 of the Election Petition that the elections were held it as scheduled and the result of the ejection was declared by the Returning Officer on 13.5.2004 declaring Rasheed Masood (Respondent) to have been elected from 80 Saharanpur Parliamentary Constituency.

9. Paragraph 6 of the Election Petition deals with the grounds on- which the Election Petition has been filed. The said paragraph 6 of the Election Petition follows:

6- That the Petitioner is calling in question, the election of Sri Rasheed Masood, the Returned Candidate as the same is void and is liable to be declared void on the following amongst other:

Grounds

(A) Because the nomination of Sri Vishwanath was improperly rejected.

10. Paragraph 7 of the Election Petition states that "the concise statement material facts in support of Ground No. (A) regarding improper rejection nomination of Sri Vishwanath is as under".

11. Paragraph 8 of the Election Petition deals with the filing of nomination paper by Vishwanath as an Independent Candidate. The said paragraph 8 of the Election Petition is as follows:

8. That Sri Vishwanath filed his nomination paper on 23-4-2004 as an Independent Candidate from 80, Saharanpur Parliamentary Constituent nomination of Sri Vishwanath was proposed by 10 Electors whose names and details regarding Assembly segment number, Part Number and Serial Number Electrol Roll were mentioned in the prescribed Proforma. Sri Vishwanath had also filed required declaration in Part 3-A regarding his criminal antecedents.

12. In paragraph 9 of the Election Petition, it is stated as under:

9. That the nomination of Sri Vishwanath was valid in all respects and this fact was ascertained by the Returning Officer, while receiving the nomination paper. In terms of Section 33(4) of the of the Act, the Returning Officer had checked and satisfied himself that the names Electrol Roll number of the candidate, his proposer as entered in the nomination paper are after the same as those entered in the Electrol Roll. The Returning Officer after verifying and satisfying himself that the nomination paper of Sri Vishmwanath was valid In all respects, issued a receipt of nomination paper having been duly filed and validly presented by Sri Vishwanath.

13. Paragraph 10 of the Election Petition deals with the rejection of the nomination paper of the said Vishwanath. The said paragraph 10 of the Election Petition is reproduced below:

10- That on the date of scrutiny i.e. 24-4-2004 the nomination of Sri Vishwanath has been improperly rejected on the ground that the names of the proposers of Sri Vishwanath namely Sri Sanjay, Sri Vishal and Sri Satya Pal at Serial Nos. 1, 2 and 3 are not entered in the Electoral Roll.

A photocopy of the Nomination Paper of Sri Vishwanath containing the name of his Proposers, the Receipt issued by the Returning Officer and the Rejection Order dated 24-4-2004 is filed as ANNEXURE No. 1 to this Petition.

14. In paragraph 11 of the Election Petition, if is stated as follows:

11- That as a matter of fact the names of Proposers of Sri Vishwanath namely Sri Sanjay (at Serial No. 1), Sri Vishal(at Serial No. 2) and Sri Satya Pal (at (at Serial No. 3) find place, in the Electoral Roll at Part No. 45 on the same serial as mentioned in the nomination papers. This Electoral Roll of Part No. 45 was very much more before the Returning Officer at the time of scrutiny and the same was pointed out to him by the candidates present at the time of scrutiny.

15. Paragraph 12 of the Election Petition, interalia, states that "no objection was raised by any of the Candidate, and no enquiry was held by the Returning Officer as provided under law. The Returning Officer suo motto improperly rejected the nomination papers of Sri Vishwanath."

16. In paragraph 13 of the Election Petition, it is stated that improper rejection of nomination of Vishwanath has rendered the election of Rasheed Masood Candidate, as void and the Petitioner is entitled to a declaration that the re Returned Candidate is void.

17. In paragraph 14 of the Election Petition, it is stated that the Petitioner has deposited a sum of Rs. 2000.00 (Rupees two thousand) only towards security for costs of the Election Petition as provided under Section 117 of the Representation the People Act, 1951.

18. Paragraph 15 of the Election Petition deals with filing of copies of the Election Petition alongwith election Petition. The said paragraph 15 of the Election Petition reproduced below: 15- That the Petitioner is filing 3 copies of the Election Petition this Petition ,Each such copy has been attested by the Petitioner under its own signatures to be true copy of the Election Petition.

19. Paragraph 16 of the Election Petition states that "the result of the Election was declared on 13.5.2004 and this Petition is being filed within 45 days therefrom and as such it is within time".

20. After paragraph 16 of the Election Petition, there is Prayer Clause the prayer made in the Election Petition.

21. The Prayer Clause is followed by the Verification Clause of the Petition.

22. As the Verification Clause of the Election Petition was been referred to during the course of arguments, the same is being reproduced below:

VERIFICATION:

I, Saleem Masood, the Petitioner, hereby verify that the contents of paragraphs Nos. 1,5,7,14,15 and 16 of this Election Petition ore true to my personal knowledge, those of contents of paragraph Nos. 11(p) and 12 of the Petition are based on information received which the Petitioner believes to be true those of contents of paragraph Nos. 2,3,4,8,9,10,11(p) of this Election Petition, are based on records, those of contents of paragraph Nos. 6 and 13 of this Election Petition are based on legal advice, which all I believe to be true.

Verified on this 28th June, 2004 at Allahabad.

(SALEEM MASOOD)

Petitioner

23. The aforementioned Application (Paper No. A-7), as noted above, has been filed under Section 86(1) of the Representation of the People Ac 1951, interalia, praying that the aforementioned Election Petition being Election Petition No. 10 of 2004 be dismissed under Section 86(1) of the Representation of the People Act, 1951 for non-compliance of Section 81(3) of the said Act.

24. The Application is supported by an Affidavit, sworn by Rasheed Masood (Respondent) on 9.11.2004.

25. It is stated in paragraph 6 of the said Affidavit that the said documents Petitioner has referred to certain documents which contain. material facts the allegations made therein.

26. In paragraph 7 of the said Affidavit, it is, interalia, stated that the said documents contain material facts regarding the allegations made in the Election Petition.

27. It is, interalia, further stated in paragraph 7 of the said Affidavit that the said documents have been incorporated in the Election Petition by way of reference and they are the basis of allegation, and therefore, they are an integral part of the Election Petition but the copies of those documents have not been supplied to the Respondent (Rasheed Masood) alongwith the Election Petition.

28. Referring to paragraph 9 of the Election Petition, has stated in paragraph 8 of the said affidavit as under:

8. That in paragraph No. 9 of the election petition the petitioner has referred We receipt issued by the Returning Officer to Sri Vishwanath and the receipt has been made the sole basis of allegations but neither the contents of the document has been quoted nor the document itself has been filed alongwith the election petition.

29. Referring to paragraph 11 of the Election Petition, it is stated in paragraph 9 of the said affidavit as follows:

9. That again in paragraph 11 of the election petition the petitioner. has referred Part No. 45 of the electoral roll and the same has been made the sole-basis of allegations but neither the contents of the document has been quoted in the petition nor the document has been filed alongwith the election petition.

30. In paragraph 10 of the said affidavit, it is, interalia, stated that the said documents contain material facts about the allegations made by the petition and have been incorporated in the Election Petition by way of reference; and that as the documents became integrated part of the Election Petition by virtue of their being referred in the Election Petition then the copy or Election Petition should have contained such documents without which the copy of Election Petition would not the a complete and true copy.

31. In paragraph 11 of the said Affidavit, it is, interalia, stated that the allegations have been made on the basis of those documents but neither the content of the documents have been quoted in the Election Petition nor their copies has been supplied to the Respondent (Rasheed Masood) alongwith the Election Petition.

32. In paragraph 12 of the said Affidavit, It is, interalia. stated that the copy of the Election Petition supplied to the Respondent (Rasheed Masood) without the documents which are integral part of Election Petition is not a true copy of the Election Petition, as such, there is non-compliance of provisions of Section 81(3) of the Representation of the People Act, 1951.

33. In paragraph 13 of the said Affidavit, it is, interalia, stated that since the Petitioner has not compiled with the provisions of Section 81(3) of the Representation of the People Act, 1951, the Election Petition is liable to be dismissed without trial under Section 86 (1) of the Representation of the People Act, 1951.

34. In reply to the aforementioned Application (Paper No. A-7) and its supporting Affidavit, the Petitioner has filed Civil Misc. Application No. 9838 of 2005 Paper No. A-9) alongwith his counter affidavit, sworn on 4.1.2005.

35. It is, interalia, stated in paragraph 3 of the said counter affidavit that in compliance of the mandate of Section 81(3) of the R.P. Act, 1951, the Petitioner has supplied the required copies and every copy has been attested by the Petitioner under his own signature to be a true copy of the Election Petition and that the provisions or" Section 81(3) of the R.P. Act, 1951 have been fully complied with.

36. In paragraph 4 of the said counter affidavit, it is, interalia, stated that under Section 86(1) of the R.P. Act, 1951, an Election Petition is liable to be dismissed at the threshold if it does not comply with the provisions of Sections 81, 82 or 117 of the R.P. Act, 1951; and that there has been no non-compliance of Section 81 of the R.P. R.P. Act, 1951 in as much as the required copies of the Election Petition have been furnished and every such copy has been attested by the Petitioner under his own signature to be a true copy of the Election Petition.

37. Replying to paragraph 6 of the Affidavit accompanying the Application (Paper No. A-7), it is submitted in paragraph 5 of the counter affidavit that "the Petitioner has stated all the material facts in the Election Petition. The petitioner has also filed copy of the nomination papers of Sri Vishwunath and the order dated 24.4.2004 which the nomination of Sri Vishwanath has been improperly rejected. This the Petitioner has filed material documents which is the basis of challenging the election of the Respondent Non Filing of certain other documents which have been referred the Election Petition is neither fatal nor is required."

38. Replying to paragraph 7 of the affidavit accompanying the aforementioned Application (Paper No. A-7), it is stated in paragraph 6 of the counter affidavit as follows: 6- That as to the contents of paragraph No. 7 or the Affidavit contains concise statement of material facts on which the Petitioner relies. It is wrong and denied that any document has been incorporated in the Election Petition by way of reference or that they are an integral part of the Election Petition. There is no requirement of law that the copies of such documents ought to have been supplied alongwith Election Petition. The contention is wholly misconceived.

39. Replying to paragraph 8 of the affidavit accompanying the aforementioned Application (Paper No. A-7), it is stated in paragraph 7 of the counter affidavit as follows:

7. That the contents of paragraph No. 8 of the Affidavit are wrong and denied. The Petitioner has filed the entire set of nomination paper which contains the endorsement dated 23-4-2004 of the Nomination Papers having been received and entered in the Register at Serial No. 11. There has been full compliance of the provisions Sections 81 and 83 of the Act.

40. Replying to paragraph 9 of the affidavit accompanying the aforementioned Application (Paper No. A-7), it is stated in paragraph 8 of the counter affidavit as follows:

8. That the contents of paragraph No. 9 of the Affidavit are not admitted as stated. In para 11, the Petitioner has referred to the name of the proposers of Vishwanath namely Sri Sanjay at Serial No. 1 and Sri Vishal at Serial No. 2 and Sri Satpal at Serial No. 3. The Petitioner has stated that their names Finds place in the Electoral Roll at Part No. 45 on the same serials as mentioned in the nomination papers. In compliance of the provisions of law, the Petitioner has furnished material facts namely the Serial Number and the Part Number at which the name of the Proposers are to be found. The Petitioner has also stated that the Electoral roll of Part No. 45 of 399, Nagal Assembly Constituency was before the Returning Officer at the time of scrutiny and the same pointed out to him by the candidates present at the time of scrutiny, and even though no objection was raised by any of the candidate, without holding an enquiry, the Returning Officer has improperly rejected the nomination paper of Sri Vishwanath. Filing of the documents is neither necessary nor required under law. As the pleadings of the Petitioner made out a case of improper rejection of the nomination paper of Sri Vishwanath. The Petitioner has filed the nomination papers of Sri Vishwanath and the rejection order.

41. Replying to paragraph 10 of the affidavit accompanying the aforementioned Application (Paper No. A-7), it is, interalia, stated in paragraph 9 of the counter affidavit that it is wholly misconceived to contend that the documents referred to in paragraph No. 11 of the Election Petition are an integral part of the Election Petition: and that it is also wrong and denied that without such document the copy of the Election Petition would not be complete and true copy; and that there is a distinction in law between a complete copy and a true copy; and that mandate of Section 81 of the Act is only with regard to supply of true copy of the Election Petition; and that "there is no dispute that the true copy of the Election Petition has not been supplied."

42. Replying to paragraph 11 of the affidavit accompanying the aforementioned 4 Application (Paper No. A-7), it is, interalia, stated in paragraph 10 of the counter affidavit that the Petitioner has given all the material facts inasmuch as, he has quoted the Serial Number and Part Numbers of the Electoral Roll where the names of the Proposers of the said Vishwanath are entered.

43. Replying to paragraph 12 of the affidavit accompanying the aforementioned Application (Paper No. A-7), it is, interalia, stated in paragraph 11 of the counter affidavit that there has been no violation of Section 81(3) or the R.P. Act, 1951 inasmuch as the Petitioner has supplied true copies of the Election Petition.

44. In paragraph 12 of the counter affidavit, it is, interalia, stated that there has been no non-compliance of Section 81(3) of the R.P. Act, 1951 and hence the Election Petition is not liable to be dismissed under Section 85(1) of the said Act.

45. In paragraph 13 of the counter affidavit, it is, interalia, stated that since there has been full and complete compliance of Section 81(3) of the R.P. Act, is Election Petition is not liable to be dismissed for non-compliance of the provisions of Section 81(3) of the said Act.

46. In reply to the aforesaid counter affidavit (Paper No. A-9), the Respondent filed a rejoinder affidavit, sworn on 8.4.2005 (Paper No. A-10).

47. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the said rejoinder affidavit wherein replies to various paragraphs of the aforesaid counter affidavit have given, are reproduced below:

4. That the contents of Paragraph No. 3 of the counter affidavit are not admitted and denied. In its reply, it is submitted that the petitioner has not supplied the true copy of the Election Petition as required under Section 81(3) of the Act. The petitioner has made allegations on the basis of the documents referred in the Election Petition and the documents so referred arc the sole basis of the allegations but neither the contents of the documents have been quoted in the Election Petition nor the copies of the same have been filed and served to the respondent alongwith the copy of the Election Petition. The documents so referred, contains material facts and thus, the copy without annexing the aforesaid document is not a true copy of the Election Petition. Therefore, there is non-compliance of the provisions of Section 81(3) of the Act.

5. That the contents of Paragraph No. 4 of the counter affidavit are not admitted and denied. In its reply, it is submitted that the copy of the Election Petition served upon the respondent is not a true copy of the Election Petition and there is non-compliance of Section 81(3) of the Act and as such the Election Petition is liable to be dismissed under Section 86(1) of the Act.

6. That the contents of Paragraph No. 5 of the counter affidavit are not admitted and denied and in reply it is submitted that if a document contains the material fact and the same has been incorporated in the Election Petition by way of reference, then the same becomes an integral part of the Election Petition Therefore, a copy of the same must be supplied to the respondent alongwith the copy of the Election Petitions Admittedly, the documents referred in the Election Petition contain the material facts, as the said documents are the sole basis of the allegations made in the Election Petition. The petitioner has not complied with the provisions of Section 81(3) of the Act. Non-filing of a document, which is the integral part of the Election Petition is fatal and the Election Petition is liable to be dismissed on this ground alone.

7. That the contents of Paragraph No. 6 of the Counter affidavit are not admitted and denied. In its reply, it is submitted that the petitioner has incorporated the documents by way of reference but neither the contents of the documents have been incorporated in the body of the Election Petition nor its copy has been filed and supplied to the respondent, could not be a true copy of the Election Petition. It is well settled law that the copies of the documents which are Incorporated by way of reference in the Election Petition has to be supplied alongwith the copy of the Election Petition to the respondent and the non-supply of the same is fatal and the Election Petition is liable to be dismissed on this ground alone.

8. That the contents of Paragraph No. 7 of the counter affidavit are not admitted and denied. In its reply, it Is submitted that in paragraph No. 9. of the Election Petition, the petitioner has referred about the receipt of the nomination papers having been duly filed and validly presented by Sri Vishwanath. The allegations are that a receipt was issued to Sri Vishwanath by the Returning Officer, the allegations have been made on the basis of perusal of records. The entire allegation is based on the receipt of the nomination paper but the same has not been filed alongwith the Election Petition. The petitioner has not replied anything about the receipt issued to Sri Vishwanath about the nomination paper on the basis of which the allegations have been made in the Election Petition.

9. That the contents of Paragraph No. 8 of the counter affidavit are not admitted and denied. In its reply, it is submitted that in paragraph No. 11 of the Election Petition the petitioner has made the entire allegations on the basis of the entries made in the electrol roll in Part No. 45. In fact, the entire allegations of the Election Petition are based on the aforesaid electrol roll but the copy of the same has not been supplied to the respondent alongwith the copy of the Election Petition as such the copy of me Election Petition supplied to the deponent is not a true copy and there is non-compliance of Section 81(3) of the Act.

10. That the contents of Paragraph No. 9 of the counter affidavit are not admitted and denied. In its reply, it is submitted that in his application under Section 86(1) of the Act, the deponent has clearly stated that the copy supplied to the respondent is not a true copy of the Election Petition as such there is non-compliance of the provisions of Section 81(3) of the Act. The documents mentioned above have been incorporated by the petitioner himself in the Election Petition by way of reference. The copies of the documents so referred were necessarily be supplied to the respondent but the same has not been done by the petitioner. Admittedly, the petitioner has not supplied the aforesaid documents so mentioned in the application of the respondent.

11. That the contents of Paragraph No. 10 of the counter affidavit are not admitted and denied. In its reply, ft is submitted that the documents so referred in the Election Petition, containing the material facts, must be supplied to the respondent alongwith the copy of the Election Petition. A document which is the sole basis of the allegation contains the material facts, it was incumbent upon the petitioner to supply a copy of the document, which is the integral part of the Election Petition but the petitioner failed to do so. The entire contents of the documents have also not been quoted by the petitioner in the Election Petition. It cannot be said by any stretch of Imagination that the provisions of Section 81(3) of the Act has been compiled with by the petitioner. Since, the is non-compliance of Section 81(3) of the Act, as such the Election Petition is liable to be dismissed under Section 86(1) of the Act.

12. That the contents of Paragraph Nos. 11 & 12 of the counter affidavit are not admitted and dented and in reply, it is submitted that the copy of the Election Petition supplied to the respondent without the documents which are integral part of the Election Petition, is not a true copy of the Election Petition, as such there is non-compliance Provisions of Section 81(3) of the Act, and as such the Election Petition is liable to be dismissed under Section 86(1) of the Act.

13. That the contents of Paragraph No. 13 of the counter affidavit are not a, admitted and denied. In its reply, it is submitted that admittedly, the petitioner has neither quoted the entire contents of the documents in the Election Petition now has supplied the copy of the documents referred in the Election Petition, which are its integral part, and thus, there is non-compliance of the provisions of Section 81(3) of the Act and the Election Petition is liable to be dismissed under Section 86(1) of the Act. The petitioner has filed an application alongwith the Counter Affidavit for dismissing the application of the respondent, filed under Section 86(1) of the Act, is also liable to be dismissed alongwith the Election Petition.

48. In view of the above, the following question arises for consideration:

Whether the Election Petition is liable to be dismissed under Section 86(1) 86(1) of the Representation of the People Act, 1951 on the ground of non-compliance with the requirements of Section 81(3) of the said Act?

49. I have heard Shri K.R. Singh, learned Counsel for the Respondent in support of the aforementioned Application (Paper No. A-7), and Shri Ravi Kiran Jain learned Senior Counsel assisted by S/Shri M, Islam and R.K. Awasthi, learned Counsel for the Petitioner in opposition to the aforementioned Application (Paper No. A-7.) and persued the record.

50. In order to appreciate the submissions made by the learned Counsel for the parties, it is necessary to first notice the RELEVANT STATUTORY PROVISIONS.

51. Part V of the R.P. Act, 1951 deals with "Conduct of Elections".

52. Chapter I of Part V consisting of Sections 30 to 39A of the R.P. Act, 1951 deals with "Nomination of Candidates".

53. Relevant Sections of the said Chapter I, are noted below:

Section 30 of the R.P. Act 1951 deals with appointment of dates for nominations etc. by the Election Commission. The said Season 30 is as follows:

[30. Appointment of dates for nominations, etc.- As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-

(a) the last date for making nominations, which shall be the [seventh day] after the date of publication of the first mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) the date for the scrutiny of nominations, which shall be. [the day immediately following] the last date for making nominations or, if that day is public holiday the next succeeding day which is not a public holiday;

(c) the last date for, the withdrawal of candidatures, which shall be [the second day] after the date for the scrutiny of nominations or; if that day is a public holiday, the next succeeding day which is not a public holiday;

(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the [fourteenth day] after the last date for the withdrawal of candidatures; and

(e) the date before which the election shall be completed.

[Explanation omitted by Act 47 of 1966, Section 27(w.e.f. 14.12.1966)].

Section 31 of the R.P. Act, 1951 makes provision for giving public notice of the intended election by the Returning Officer. The said Section 31 is as follows:

31. Public notice of election,- On the issue of a notification under Section 30, the returning officer [***] shall give public notice of the intended election in such form and manner as may be prescribed, inviting nominations or candidates for such election and specifying the place at which the nomination papers are to be delivered.

Section 32 of the R.P. Act, 1951 deals with nomination of candidate election. The said Section 32 lays down as under:

32. Nomination or candidates for election.- Any person may be nominated as a candidate for election to fill a seat if he is qualified to be a chosen to fill that seat under the provisions of the Constitution and this Act [or under the Provisions of the Government of Union Territories Act, 1963, as the case may be].

Section 33 of the R.P. Act, 1951 makes provisions for, presentation of nomination paper and requirements for a valid nomination. The said Section 33 lays down as under:

[33. Presentation of nomination paper and requirements for a valid nomination.- (1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as prosper:

[Provided that a candidate not set up by a recognized political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:

Provided also that in the case a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten percent of the electors of the constituency or ten such electors, whichever is less, as proposers].

[(1-A) Notwithstanding anything contained in Sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under We Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed.

Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and:

(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;

(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.

(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which 'he is a member and the area In relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in [Section 9], has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty of the State.

(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls;

[Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electrol roll numbers of any such person in the electoral roll or the nomination paper shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer Inaccurate description, clerical, technical or printing error in the electoral roll or in toe nomination paper shall be overlooked.]

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed alongwith the nomination paper, be produced before the returning officer at the time of scrutiny.

(6) Nothing in this section shall prevent any candidate from being nomination by more than one nomination paper:

Provided that not more than four nomination papers shall be presenter by or on behalf of any candidate or accepted by the returning officer for ejection in the same constituency.]

(7) Notwithstanding anything contained in Sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,:

(a) in the case of a general election, to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;

(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;

(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;

(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;

(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;

(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;

(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;

(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.

Explanation. - For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under Sections 147,149,150 or, as the case may be, 151 on the same date.]"

Section 35 of the R.P. Act, 1951 deals with notice of nominations and the time and place for their scrutiny. The said Section 35 lays down as under:

35. Notice of nominations and the time and place for their scrutiny.- The returning officer shall, on receiving the nomination paper [under Sub-section (1) or, as the case maybe, Sub-section (1-A)] of Section 33, inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the c nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of [the proposer].

Section 36 of the R.P. Act. 1951 makes provision regarding scrutiny of nominations. The said Section 36 provides as follows:

36. Scrutiny of nominations.- (1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and In the manner laid down in Section 33.

(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, If any, as he thinks necessary; [reject] any nomination on any of the following grounds:

[(a) [that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:

Articles 84,102,173 and 191,

[Part II of this Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.]

(3) Nothing contained in [Clause (b) or Clause (c) of Sub-section (2) shall be deemed to authorise the [rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nomination by means of another nomination paper in respect of which no irregularity has been committed.

(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings arc interrupted or obstructed by riot or open violence or by causes beyond his control:

Provided that in case [an objection is raised by the returning officer or is made by any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceed in is have been adjourned.

(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

[(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless It is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination papers have been scrutinize and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.]

54. Part VI of the R.P. Act, 1951 deals with "Disputes retarding Election".

55. Chapter I of Part VI of the R.K Act, 1951 consisting of Section 79 of the R.P. Act, 1951 deals with various definitions.

56. Chapter II of Part VI of the R.P. Act, 1951 consisting of Sections 80 to 34 [-Section 85 having been repealed by the Representation of the People (Amendment) Act, 1966 (Act No. 47 of 1966) with effect from 14.12.1966] deals with "Presentation of Election Petitions."

Section 80 of the R.P. Act, 1951 lays down that "no election shall be called in question except by an election petition presented in accordance with the provisions of this part" (i.e., part VI).

Section 80-A of the R.P. Act, 1951 gives jurisdiction to High Court to try an Election Petition.

Section 81 of the R.P. Act, 1951 deals with presentation of the Election Petitions. The said Section 81 of the R.P. Act, 1951 is as under:

81. Presentation of petitions.- (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 candidate at the election and the dates of their election arc different, the later of those two dates.]

Explanation.- In this sub-section, "elector" means a person 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.]

Section 82 of the R.P. Act, 1951 deals with parties of the Election Petition and lays down as under:

82. Parties of the petition.- A petitioner shall join as respondents to his petition-

(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.]

Section 83 of the R.P. Act, 1951 makes provisions regarding contents of an Election Petition. The said Section 83 runs as under:

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 or 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 and place 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.]

Section 84 of the R.P. Act, 1951 makes provision regarding relief that may be claimed by the Petitioner in Election Petition. The said Section 84 is as follows: [84. Relief that may be claimed by the petitioner.- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any candidate has been duly elected.]

57. Chapter III of Part VI of the R.P. Act, 1951 consisting of Sections 86 to 107 deals with "Trial of Election Petitions".

58. Relevant Sections of Chapter III are quoted below:

Sections 86 of the R.P. Act, 1951 makes provisions regarding trial of Election Petitions, and provides as under:

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) of Section 98.

(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under Sub-section (2) of section 80-A.

(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or referred for more groups.

(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.

Explanation. For the purposes of this sub-section and of Sub-section 97 the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.

(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

(6) The trial of an election petition shall, so far as is practicable consistency with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the beyond the following day to be necessary for reasons to be recorded.

(7) Every election petition shall be tried as expeditiously as positive and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.

Section 87 of the R.P. Act, 1951 makes provisions regarding procedure to be followed in the trial of Election Petitions before the High Court. The said Section 87 is as follows:

87. Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder every election petition shall be tried by the High Court, as neatly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall be subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.

Section 93 of the R.P Act, 1951 deals with documentary evidence, and lays down as follows:

93. Documentary evidence.- Notwithstanding anything to any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered."

Section 100 of the R.P. Act, 1951 deals with the grounds for declaring an election to be void. The said Section 100 is as under:

100. Grounds for declaring election to be void.- [(1) Subject to the provisions of Sub-section (2), if [the High Court] is of opinion-

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [of the Government of Union Territories Act, 1963]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, insofar as it concerns a returned candidate has been materially affected-

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed In the interests of the returned candidate [by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

[the High Court] shall declare the election of the returned candidate to be void.]

[(2)] If in the opinion of [the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice [***] but [the High Court] is satisfied-

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders and [without the consent], of the candidate or his election agent;

(b) [Clause omitted by Act 58 of 1958, Section 30]

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt [***] practices at the election; and

(d) that in all other respects the election was free from any corrupt [***] practice on the part of the candidate or any of his agents,

then [the High Court] may decide that the election of the returnee candidates not void.

Section 101 of the R.P. Act, 1951 deals with the grounds for which a candidate other than the returned candidate may be declared to have been elected. The said Section 101 is as under:

101. Grounds for which candidate other than the returned candidate may be declared to have been elected.- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and [the High Court] is of opinion-

(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) that but for the votes obtained by the returned candidate by corrupt [***) practices the petitioner or such other candidate would have obtained a majority of the valid votes,

[the High Court] shall, after declaring the election of the returned contained to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.

59. Chapter V of Part VI of the R.P. Act, 1951 consisting of Sections 117 to 122 deals with "Costs and Security for Costs".

Section 117 of the R.P. Act, 1951 makes provision regarding security for costs of an Election Petition, and lays down as follow:

117. Security for costs.- (1) At the time or presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of two thousand rupees as security for the costs of the petition.

(2) During the course of the trial of an election petition, the High Court may, at anytime call upon the petitioner to give such further security for costs as it may direct"

Rule 4 of the Conduct of Elections Rules, 1961 deals with the nomination paper. The said Rule is as under:

4. Nomination Paper.- Every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate:

Provided that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not be deemed to be a defect of a substantial character within the meaning of Sub-section (4) of Section 36.

60. As the present Election Petition pertains to election to the House of the People (Lok Sabha), Form 2A of the Conduct of Elections Rules, 1961 is relevant in the present context. Part II of the said Form 2A is to be used by candidate NOT setup by recognized political party. The said Part II of Form 2A is quoted below:

Part II

(To be used by candidate NOT set-up by recognized political party)

We hereby nominate as a candidate for election to the House of the people from the.... Parliamentary Constituency.

Candidate's name.... Father's/mother's/husband's name.... His postal address....

His name is entered at S. No. ...in Part No. ...of the electoral roll for.... (Assembly constituency comprised within).... Parliamentary constituency.

We declare that we are electors of the above parliamentary constituency and our names are entered in the electoral roll for that Parliamentary constituency as indicated below and we append our signatures below in token of subscribing to this nomination: Particulars of the proposers and their signatures

--------------------------------------------------------------------------------

Sl. Name of Component Electrol Roll No. of proposer Full Signature Date

No. Assembly Pan No. Sl. No. Name

Constituency of in that

Electoral

Roll Part

--------------------------------------------------------------------------------

1 2 3 4 5 6 7

--------------------------------------------------------------------------------

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

--------------------------------------------------------------------------------

N.B.: There should be ten electors of the constituency as proposers.

--------------------------------------------------------------------------------

61. Part VI of Form 2A deals with "Receipt for Nomination Paper end Notice of Scrutiny". The said Part VI of Form 2A is reproduced below:

Part VI

Receipt for Nomination Paper and Notice of Scrutiny

(To be handed over to the person presenting the Nomination Paper)

Serial No. of Nomination paper....

The nomination paper of...a candidate for election from the.... Parliamentary constituency was delivered to me at my office at...(hour) on...(date) by the * Candidate/proposer. All nomination papers will be taken up for scrutiny at... (hour) on...(date) at...(Place). Date .... Returning Officer

"* Score out the word not applicable.

62. Certain relevant provisions of the Code of Civil Procedure, 1908 may also be referred to.

63. Order VI, Rule 16 of the Code of Civil Procedure, 1908 lays down as under:

[16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading.

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) why may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the Court.].

64. Order VII, Rule 11 of the Code of Civil Procedure, 1908 provides as follow:

11. Rejection of plaint.- The plaint shall be rejected in the following cases:

(a) where it does not disclose cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court by the court to correct the valuation within a time to be fixed by the Court, falls to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

[(e) where it is not filed in duplicate];

[(f) where the plaintiff fails to comply with the provisions of Rule 9].

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff].

65. Order VII, Rule 14 of the Code of Civil Procedure, 1908, as it stood prior to the amendments made by the Code of Civil Procedure (Amendment) Act, 1999 (Act No. No. 46 of 1999) and the Code of Civil Procedure (Amendment) Act 2002 (Act No. 22 of 2002) read as follows:

14. Production of document on which plaintiff sues- (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) List of other documents- Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

66. Rule 14 of Order VII of the Code of Civil Procedure, as it stands after the amendments made by the Code of Civil Procedure (Amendment) Act, 1999 (Act No. 46 of 1999) and the Code of Civil Procedure (Amendment) Act, 2002 (Act No. 22 of 2002) lays down as under:

14. Production of document on which plaintiff sues or relies.- (1) upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the point is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, whether possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or, entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.

67. Relevant provisions of the Allahabad High Court Rules in regard to the Election Petitions may also be referred to:

68. Chapter XV-A of the Allahabad High Court Rules makes special provision relating to the trial of Election Petitions. Rules 3 and 5 of Chapter XV-A of the Allahabad High Court Rules provide as under:

3. Presentation of election petition.- Every election presented shall be presented to the Registrar.

The petition shall bear an office report on Court-fee and no compliance, in addition to other matters, with Sections 81, 82, 83 and 117 of the Act.

The petitioner shall file with the petition a list of all documents whether in his possession or power or not, on which he relies as evidence in support of his claim.

5. Issue of notice to respondent.- The election petition shall be laid before the Bench so constituted without delay, and unless it is dismissed under Sub-section (1) of Section 86 of the Act or for being otherwise defective, the Bench may direct issue of notice to the respondent to appear and answer the claim on a date to be specified therein. Such notice shall also direct that if he wishes to put up defence he shall file his written statement together with a list of all documents whether in his possession or power or not, upon which he intends to rely as evidence in support of his defence on or before the date fixed; and further, that in default of appearance being entered on or before the date fixed in the notice the election petition may be heard and determined in his absence. The notice shall be in Form No. 34-A.

LET US NOW NOTICE THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE PARTIES.

69. Learned counsel for the Respondent has made the following submissions:

(I) Section 81(3) of the R.P. Act, 1951 lays down that 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 Petition under his own signature to be a true copy of the Petition. Therefore, Section 81(3) of the R.P. Act, 1951 makes it mandatory for the. Petitioner to supply to each Respondent copy of the Election Petition attested by the Petitioner under his own signature to be a true copy of the Petition.

(II) Section 86(1) of the R.P. Act, 1951 provides that the High Court shall dismiss an Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act, 1951.

Therefore, in case, there is non-compliance with the requirements of Section 81(3) of the R.P. Act, 1951, the Election Petition is bound to be dismissed under Section 86(1) of the R.P. Act, 1951.

(III) Section 83(1)(a) of the R.P. Act, 1951 provides that an Election Petition shall contain a concise statement of the material facts on which the Petitioner relies.

Therefore, according to Section 83(1)(a) of the R.P. Act, 1951, the material facts on which the Petitioner relies, must be stated in the Election Petition.

(IV) In various decisions, meaning of 'material facts' has been explained. Accordingly, all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are material facts. Material facts vary from case to case.

(V) In view of the requirements of Section 83(1)(a) of the R.P. Act 1951, the material facts must be stated in the Election Petition whether the Election Petition is based on the ground of corrupt practice or otherwise.

(VI) There may be circumstances, as in the present case, that material facts may be contained in a document, and without pleading those material facts, a reference of that document may be made in the Election Petition.

In such a case, following situations may arise:

(i) After making reference of the document in the Election Petition, the contents of the document may have been quoted in the body of the Election Petition, or the document itself or copy thereof may have been attached with the Election Petition.

(ii) The document has been referred to in the paragraphs of the Election Petition (i.e., in the pleadings), but neither the entire contents of the document have been reproduced in the Election Petition, nor has the document or copy thereof been annexed alongwith the Election Petition.

The present case is similar to situation (ii) above, where the documents have been referred to in the paragraphs of the Election Petition, but neither the contents the documents have been quoted in the Election Petition, nor have the documents or couples thereof been annexed to the Election Petition.

There are judicial decisions which show that in the situation (ii) above, where the neither the contents of the document (containing material facts) have been quoted in the Election Petition, nor has the document or copy thereof been annexed to the Election Petition, but the document is referred to in the body of the Election Petition then such a document (containing material facts) becomes an integral part or the Election Petition, and copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition. Mere supply of copy of the Election Petition without copy of such document (containing material facts) will amount to non-compliance of Section 81(3) of the R.P. Act, 1951 (i.e., copy of the Election Petition will not be a true copy), and as such, the Election Petition will be liable to be dismissed under Section 86(1) of the R.P. Act, 1951.

In other words, if the material facts are contained in a document then the petitioner, while referring to the document in the Election Petition, may either quote the contents of the document in the Election Petition, or file the document or copy thereof alongwith the Election Petition. However, if a document containing mater all facts is referred to in the Election Petition, but its contents are not reproduced in the Election Petition nor is the document or copy thereof filed alongwith the Election Petition, then such a document becomes an integral part of the Election Petition and if copy of such a document is not supplied to the Respondent alongwith copy of the Election Petition then it would amount to non-compliance with the requirements of Section 81(3) of the R.P. Act, 1951 resulting in the dismissed of the Election Petition under Section 86(1) of the R.P. Act, 1951.

Consequently, if a document contains material facts, and such a document is incorporated in the Election Petition by reference without reproducing the contents thereof in the Election Petition or filing the document or copy thereof with the Election Petition, then such a document becomes an integral part of the Election Petition, and it is the duty of the Petitioner to supply copy of such a document to the Respondent alongwith copy of the Election Petition. In case, the Petitioner fails to supply copy of such a document to the Respondent alongwith copy of the Election Petition then it would amount to non-compliance with the requirements of Section 81(3) of the R.P. Act, 1951 resulting in dismissal of the Election Petition under Section 86(1) of the R.P. Act, 1951.

(VII)(1) The present Election Petition has been filed on the ground that the nomination paper of Vishwanath, an independent candidate, was improperly rejected.

(2) As per the averments made in the Election Petition, the Petitioner was an elector. There is no averment in the Election Petition that the petitioner was Agent of any candidate, or that he was present at the time of filing of nomination paper by Vishwanath, or that he was present when the scrutiny of nomination paper was done.

As the Petitioner was only an elector, and he did not participate in the filling of the nomination papers or in the scrutiny of the nomination papers, he could not have any personal knowledge regarding the allegations made in the present Election Petition. The allegations are based on the documents obtained by him. Therefore, either the contents of the documents ought to nave reproduced in the Election Petition, or the documents or copies thereof ought to have been annexed with the Election Petition.

(3) The Case of the Petitioner, as per the averments made in the Election Petition, is that the Petitioner is an elector; and that Vishwanath filed his nomination paper as an independent candidate; and that the nomination paper of Vishwanath was accepted by the Returning Officer, and the receipt was issued to Vishwanath; and that subsequently, at the time of scrutiny, the Returning Officer while scrutinizing the nomination paper of Vishwanath, found that the names of three proposers did not find place in the Electoral Roll, as mentioned in the nomination paper of Vishwanath, and, therefore, the nomination paper of Vishwanath was rejected.

It is further the case of the Petitioner that the names of the three Proposers find place in the Electoral Roll of Part No. 45; and that the Electoral Roll of Part No. 45 was very much before the Returning Officer at the time or scrutiny; and that, therefore, the Returning Officer could have verified the said fact from the Electoral Roll Part No. 45.

(4)(A) Para 9 of the Election Petition refers to the alleged receipt issued to Vishwanath, while para 11 of the Election Petition refers to the Electoral Roll.

These two documents have been incorporated in the Election Petition by reference, and the said documents are integral part of the Election Petition.

The sole basis of the allegations made in paragraphs 9 and 11 of the Election Petition, are contained in these documents.

Since these documents are integral part of the Election Petition, therefore copies of these documents must have been supplied to the Respondent along with copy of the Election Petition.

Since this has not been done, there is non-compliance of Section 81(3) of the R.P. Act, 1951.

For non-compliance of Section 81(3) of the R.P. Act, 195, the Election Petition is liable to be dismissed under Section 86(1) of the R.P. Act, 1951.

(B) Verification clause of the Election Petition shows that paragraph 9 of the Election Petition has been verified on the basis of record. Similarly, paragraph 11(part) has been verified, on the basis of record, and paragraph 11(part) has been verified on the basis of information. Therefore, the allegations have been made in paragraph 9 and in paragraph 11 (part) of the Election Petition on the basis of perusal of records.

This means that the Petitioner was in possession of the above two documents, mentioned in the said paragraphs of the Election Petition, and or the basis of perusal of the said documents, allegations were made in paragraphs 9 and 11 of the Election Petition.

(C) Elaborating the submissions in regard to the documents referred to in paragraphs 9 and 11 of the Election Petition, it is submitted that there is no allegation in the entire Election Petition that the Petitioner was either related to or associated with Vishwanath at any point of time in any of the processes of his election including the process of filing of his nomination paper.

The Petitioner has also not alleged that he was present either at the time of filing of nomination paper or on the date when the nomination paper of Vishwanath was scrutinized.

There is also no allegation that the Petitioner was either agent or worker or supporter of Vishwanath.

Therefore, the Petitioner has no personal knowledge of any of the facts, and he is totally unknown about the fact of filing of nomination paper of Vishwanath as well as regarding the scrutiny of nomination paper of Vishwanath.

Once the Petitioner is wholly unknown about the facts, then the only source could be the relevant records, and this is what has happened in the present case.

Further, since the Petitioner was himself not contesting the election, he had no agent, worker or supporter from whom information could be gathered.

(D)(i) Further elaborating the submissions in regard to the receipt referred to in paragraph 9 of the Election Petition, reference is made to the averments made in paragraphs 8 and 9 of the Election Petition.

(ii) In paragraph 8 of the Election Petition, it is, interalia, stated that Vishwanth filed his nomination paper on 23.4.2004 as an Independent Candidate, and that the nomination of Vishwanath was proposed by 10 Electors whose name and other details regarding Assembly segment number, Part Number and Serial Number of the Electrol Roll were mentioned in the Prescribed Proforma; and that Vishwanath had also filed required declaration in Part 3-A regarding his criminal antecedents.

In paragraph 9 of the Election Petition, it is, interalia, stated that the nomination of Vishwanath was valid in all respects and this fact was ascertained by the Returning Officer while receiving the nomination paper; and that in terms of Section 33(4) of the R.P. Act, 1951, the Returning Officer had checked and satisfied himself that the names and Electoral Roll number of the candidate, his Proposer, as entered in the nomination paper are the same as those entered in the Electoral Roll; and that the Returning Officer after verifying and satisfying himself that the nomination paper of Vishwanath was valid in all respects, issued a receipt of nomination paper having been duly filed and validly presented by Vishwanath.

Therefore, paragraphs 8 and 9 of the Election Petition interalia, deal with the filing of nomination paper by Vishwanath, verification and satisfaction by the Returning Officer regarding validity of the nomination paper in terms of Section 33(4) of the R.P. Act, 1951, and issuance of receipt of nomination paper by the Returning Officer. These paragraphs 8 and 9 of the Election Petition have been verified on the basis of records and not on personal knowledge. The Petitioner thus has no personal knowledge of the facts stated in paragraphs 8 and 9 of the Election Petition.

Paragraphs 8 and 9 of the Election Petition indicate that the endeavour of the Petitioner is to show that nomination paper was filed by Vishwanath, and it was checked and found proper by the Returning Officer for which purpose a receipt was issued by the Returning Officer.

In paragraph 9 of the Election Petition, it is, interalia, stated "....The Returning Officer after verifying and satisfying himself that the nomination paper of Sri Vishwanath was valid in all respects, issued a receipt of nomination paper having been duly filed and validly presented by Shri Vishwanath".

This allegation made in paragraph 9 of the Election Petition could not have been made by the Petitioner unless and until the Petitioner had perused the receipt issued by the Returning Officer to Vishwanath, and he (Petitioner) was in possession of the same. This is because, after filing of nomination paper by a person, only receipt is issued to that person.

Evidently, therefore, the receipt issued to Vishwanath by the Returning Officer must have been in possession of the Petitioner, and after perusing the same, the Petitioner made allegations in paragraph 9 of the Election Petition. It is reiterated that paragraph 9 of the Election Petition has been verified on the basis of records.

The said receipt issued to Vishwanath, contains material facts, such as whether nomination paper in respect of Vishwanath was filed, whether nomination paper was presented by the candidate himself (i.e., Vishwanath) or his proposer, whether nomination paper of Vishwanath was valid, etc.

As per the own allegations of the Petitioner made in paragraph 9 of the Election Petition, the receipt issued to Vishwanath shows that nomination paper was duly filed and validly presented. Duly filing of nomination paper and valid presentation of nomination paper are material facts, as the same would be relied upon by the Petitioner to contend that the nomination paper was improperly rejected by the Returning Officer. If the receipt shows the duly filing of nomination paper and the valid presentation of nomination paper as per the own allegations of the Petitioner in paragraph 9 of the Election Petition, the receipt contains material facts.

The said receipt issued to Vishwanath has been referred to in the Election Petition. However, the contents of the receipt have not been reproduced in the Election Petition. Therefore, the receipt has been incorporated in the Election Petition by reference, and is an integral part of the Election Petition. As such, the receipt issued to Vishwanath ought to have been filed with the Election Petition and its copy ought to have been supplied to the Petitioner.

Since this has not been done, there is non-compliance of the requirements of Section 81(3) of the R.P. Act, 1951, and the Election Petition is liable to be dismissed under Section 86(1) of the said Act.

(iii) Making further submissions in regard to the receipt referred to in paragraph 9 of the Election Petition, reference is made to the allegations made in paragraph 10 of the Election Petition. In paragraph 10 of the Election Petition, as noted above it is, interalia, stated "that on the date of scrutiny i.e. 24-4-2004 the nomination of Sri Vishwanath has been improperly rejected on the ground that the names of the Proposers of Sri Vishwanath namely Sri Sanjay, Sri Vishal and Sri Satya Pal at Serial Numbers 1, 2, and 3 are not entered in the Electoral Roll. A photostat copy of the Nomination Paper of Sri Vishwanath containing the name of his Proposers, the Receipt issued by the Returning Officer and the Rejection Order dated 24-4-2004 is filed as Annexure No. 1 to this Petition."

A perusal of Annexure-1 to the Ejection Petition, referred to in paragraph 10 of the Election Petition, shows that the same purports to be a photostat copy of a certified copy of the nomination paper in Form 2-A in respect of Vishwanth. The said certified copy purports, to-have been issued by the Assistant District Election Officer, Saharanpur. The said Form 2-A contains form of nomination paper or election to the House of the People (i.e., Lok Sabha). The said Form 2-A is provided for in Rule 4 of the Conduct of Elections Rules, 196l. Part II of Form 2-A is to be used by candidate not set-up by any recognized political party, and the said Part-II is relevant in the present case as Vishwanath filed nomination paper as an independent candidate.

Part-VI of Form 2-A provides for receipt for nomination paper and notice of scrutiny.

A perusal of Annexure-1 to the Election Petition shows that the same contains a photostat copy of receipt of nomination paper in Part -VI. The said photostat copy of receipt, as contained in Annexure-1 to the Election Petition, is, evidently, not a photostat copy of the receipt, which was actually issued to Vishwanath when he filed the nomination paper. What has been filed as Annexure-1 to the Election Petition purports to be a photostat copy of a certified copy of the nomination paper of Vishwanath in Form 2-A contained in the records maintained in the Office of the District Election Officer, Saharanpur. Photostat copy of receipt, as contained in Annexure-1 to the Election Petition, thus, purports to be photostat copy of a certified copy of the receipt contained in the records maintained in the Office of the District Election Officer, Saharanpur. It is not photostat copy of the same receipt which was issued to Vishwanath.

Since the same receipt which was issued to Vishwanath, has not been filed with the Election Petition, nor has the copy thereof been supplied to the; Respondent alongwith copy of the Election Petition, there has been non-compliance with the requirements of Section 81(3) to the R.P. Act, 1951, therefore, the Election Petition is liable to be dismissed under Section 86(1) of the said Act.

(E) Further elaborating the submissions in regard to the Electoral Roll referred to in paragraph 11 of the Election Petition, reference is made to the averments made in paragraph 10 of the Election Petition.

In paragraph 10 of the Election Petition, as noted above, it is stated as follows:

10- That on the date of scrutiny i.e. 24-4-2004 the nomination of Sri Vishwanath has been improperly rejected on the ground that the names of the proposers of Sri Vishwanath namely Sri Sanjay, Sri Vishal and Sri Satya Pal at Serial Nos. 1, 2 and 3 are not entered in the Electoral Roll.

Explaining the averments made in paragraph 10 of the Election Petition, it is submitted that since Vishwanath was an Independent Candidate, therefore, there was requirement that his nomination would be proposed by ten Electors of the constituency in view of the First Proviso to Section 33 (1) of the R.P. Act, 1951.

So far as the Proposers at Sl. Nos. 1, 2 and 3 in the nomination paper of Vishwanath were concerned, Part Number of the Electoral Roll was mentioned as 23.

When at the time of scrutiny, nomination paper of Vishwanath was scrutinized, and the details of Proposers were tallied with the Electoral Roll of Part No. 23, as mentioned by the Proposers themselves in the nomination paper, then it was found that the names of the Proposers at Sl. Nos. 1, 2 and 3 did not find place in the Electoral Roll of Part No. 23, as mentioned in the nomination paper by the Proposers themselves.

In the circumstances, the nomination paper of Vishwanath was rejected.

Now the case of the Petitioner, as contained in paragraph 11 of the Election Petition, is:

That as a matter of fact the names of Proposers of Sri Vishwanath namely Sri Sanjay (at Serial No. 1) Sri Vishal (at Serial No. 2 and Sri Satya Pal (at Serial No. 3) find place in the Electoral Roll at Part No. 45 on the same serials as mentioned in the nomination papers. This Electoral Roll of Part No. 45 was very much before the Returning Officer at the time of scrutiny and the same was pointed out to him by the candidates present at the time of scrutiny.

This paragraph 11 of the Election Petition is verified partly on the basis of records and partly on the basis of information.

Analyzing the contents of paragraph 11 of the Election Petition, it is submitted that there are two parts in paragraph 11 of the Election Petition:

FIRST PART: "That as a matter of fact the names of Proposers of Sri Vishwanath namely Sri Sanjay (at Serial No. 1), Sri Vishal (at Serial No. 2) and Sri Satya Pal (at Serial No. 3) find place in the Electoral Roll at Part No. 45 on the same semi serials as mentioned in the nomination papers".

SECOND PART: "This Electoral Roll of Part No. 45 was very much before the Returning Officer at the time of scrutiny and the same was pointed out to him by the candidates present at the time of scrutiny.

Now Second Part of paragraph 11 of the Election Petition, as mentioned above, could not be sworn on the basis of records.

Therefore, what remains is First Part of paragraph 11 of the Election Petition, as mentioned above, which could be sworn on the basis of records.

Therefore, First Part of paragraph 11 of the Election Petition, as mentioned above, is verified on the basis of records, and Second Part of paragraph 11 of the Election Petition, as mentioned above, is verified on the basis of information.

Thus, First Part of paragraph 11 of the Election Petition, as mentioned above, is based on the records. This shows that the Petitioner was in possession of the Electrol Roll, Part No. 45, and he had perused the same, and after perusal, he made the averments in First Part of paragraph 11 of the Election Petition.

Therefore, the Petitioner was in possession of the said document, otherwise First Part of paragraph 11 of the Election Petition could not be sworn on the basis of records.

The Petitioner has made statement of fact because paragraph 11 of the Election Petition starts with the words "as a matter of fact".

The fact whether the names of the above three Proposers find place in Part No. 45 of the Electoral Roll or not, is a primary fact- a material fact- which must be proved by the Petitioner.

The sole basis of the allegations made in First Part of paragraph 11 of the Election Petition is the Electoral Roll of Part No. 45. But this document has not been filed with the Election Petition.

As the Electoral Roll, Part No. 45 has been incorporated in the Election Petition by reference without reproducing its contents, therefore, it becomes an Integral part of the Election Petition. As such, the document ought to have been filed with the Election Petition, and its copy ought to have been supplied to the Respondent with the copy of the Election Petition.

Since the document which contains the material fact, which is the sole basis of the allegations and which is an integral part of the Election Petition, namely, Electoral Roll of Part No. 45, has not been filed by the Petitioner, and its copy has not been supplied to the Respondent, therefore, there is non-compliance of the requirements of Section 81(3) of the R.P. Act, 1951, and consequently, the Election Petition is liable to be dismissed under Section 86(1) of the said Act.

(VIII) There is one more aspect of the matter. Order VII, Rule 14 of the Code of Civil Procedure, as amended, requires filing of the list of documents, as well as the documents or copies thereof at the time of the presentation of the plaint.

Sub-rule (1) of Rule 14 requires that the document on the basis of which the Suit is filed, as well as the documents relied upon by the plaintiff and in the possession or power of the plaintiff, should be filed with the Plaint.

Therefore, under Sub-rule (1), the document relied upon by the plaintiff, if in his possession or power, should be filed with the Plaint.

If such document is not in the possession or power of the plaintiff then Sub-rule (2) requires that it should be stated as to in whose possession or power the document is.

In the entire Election Petition, the Petitioner has not averred anywhere that the documents referred to by him in the Election Petition were not in his possession or power but were in the possession or power of some other person.

The allegations have been made in paragraph 9 and paragraph 11 (First Part) of the Election Petition on the basis of records, meaning thereby that the documents were in his possession, but he has not filed the same as required under Sub-rule (1) of Rule 14 of Order VII Code of Civil Procedure. Even if it be assumed that the documents were not in his possession or power, the Petitioner was required to state as to in whose possession or power those documents were in view of Sub-rule (2) of Rule 14 of Order VII Code of Civil Procedure.

(IX) Reliance has been placed on the following decisions:

1. Udhav Singh v. Madhav Rao Scindia (paragraphs 37, 38 and 40)

2. Jitendra Bahadur Singh v. Krishna Behan and Ors. .

3. Azhar Hussain v. Rajiv Gandhi .

4. Alisinghani Bhagwan Singh Mahadeo Singh v. Sri Rajiv Gandhi and Ors. 1985 AWC 515 (paragraphs 7, 8, 9 and 10).

5. Jaipal Singh v. Sumitra Mahajan (Smt.) and Anr. .

6. Ram Autar Shastri v. Khurshid Alam Khan and Anr. .

7. Ramji Pandey v. Vikramaditya and Ors. .

8. Ram Singh v. Kazi Mohiuddin and Ors. .

9. U.S. Sasidharan v. K. Karunakaran and Anr. .

10. Jagram Singh v. Pritam Singh and Ors. 1992 ALJ 502 (paragraphs 16 to 19).

11. Decision of this Court In Election Petition No. 8 of 2002 (Ajay Kumar Poeia v. Shyam and Ors.) decided on 10.3.2003.

12. Ajay Kumar Poeia v. Shyam and Ors. wherein the above decision of this Court in Election Petition No. 8 of 2002 was affirmed by the Supreme Court.

70. In reply, the learned Counsel for the Petitioner, have made the following submissions:

(I) Sub-section (1) of Section 86 of the R.P. Act, 1951 provides that the High Court shall dismiss an Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act.

Sub-section (1) of Section 81 of the R.P. Act, 1951 makes provisions regarding

(i) on what grounds an Election Petition may be filed?

(ii) who may present an Election Petition?

(ii) what is the limitation for an Election Petition?

Sub-section (2) of Section 81 of the R.P. Act, 1951 was omitted by Act No. 47 of 1966 with effect from 14.12.1966.

Sub-section (3) of Section 81 of the R.P. Act, 1951 makes provisions for supplying copy of the Election Petition for each Respondent, and for attestation of such copy as true copy by the Petitioner under his own signature.

Section 82 of the R.P. Act, 1951 deals with parties of an Election Petition.

Section 117 of the R.P. Act, 1951 makes provisions regarding security for the costs of an Election Petition.

(II) Section 86(1) of the R.P. Act, 1951 imposes extreme penalty, namely, dismissal of an Election Petition at the threshold, if there is non-compliance with the requirements of Section 81 or Section 82 or Section 117 of the said Act.

Section 86(1) of the R.P. Act, 1951 is thus a penal provision. Therefore, it must be construed literally and strictly.

(III) Section 86(1) of the R.P. Act, 1951 mentions only Sections 81, 82 and 117 of the said Act. Section 83 of the said Act is not included in Section 86(1) of the said Act.

Therefore, an Election Petition cannot be dismissed under Section 86(1) of the R.P. Act, 1951 on the ground of non-compliance of Section 83 of the said Act.

(IV) (1) In the present case, Section 8l(1) of the R.P. Act, 1951 has been complied with:

(i) The Election Petition in the present case is based on the ground mentioned in Section 100(1)(c) of the R.P. Act, 1951.

(ii) The Election Petition has been presented by an Elector.

(iii) The Election Petition has been presented within 45 days from the date of election of the returned candidate.

(2) Again, parties have been joined in the present Election Petition according to Section 82 of the R.P. Act 1951. Therefore, Section 82 of the said Act has also been complied with in the present case.

(3) Section 117 of the R.P. Act, 1951 has also been complied with in the present case. Security of Rs. 2000/- has been deposited.

(4) In view of the above, only question which remains is regarding compliance with the requirements of Section 81(3) of the R.P. Act, 1951.

It is submitted that Section 81(3) of the R.P. Act, 1951 has also been complied with as:

(i) The petitioner has filed as many copies of the Election Petition as there are Respondents.

In fact, there is only one Respondent in the present Election Petition.

(ii) Copy of the Election Petition is duly attested by the Petitioner as true copy under his own signature.

(V) If a true copy of the Election Petition is supplied to the Respondent, then the provisions of Section 81(3) of the R.P. Act, 1951 are complied with.

Hence, for the purposes of Section 81(3) of the R.P. Act, 1951, there is a distinction between a case where document is filed with the Election Petition, and a case where document is not filed with the Election Petition.

If a document is filed with the Election Petition, then the question as to whether its copy has been supplied to the Respondent or not, is relevant.

However, if a document is not filed with the Election Petition, then there is no occasion to supply its copy to the Respondent. Section 81(3) of the R.P. Act, 1951 is not attracted to such a case.

(VI) Explaining the doctrine of integral part, as the learned Counsel for the petitioner call it, it is submitted:

(A)(i) If a document contains material facts (i.e., cause of action is based on what is contained in the said document),

and (ii) such a document is only referred to in the pleadings (i.e., in the Election Petition), without reproducing its contents and materials, then such a document becomes an integral part of the pleadings (i.e., the Election Petition), and it must be filed with the pleadings (i.e., the Election Petition), and its copy must be supplied to the other side (i.e., Respondent) alongwith copy of the Election Petition.

(B) (i) If a document contains material facts

and (ii) the contents and materials of such a document are narrated in the pleadings (i.e., in the Election Petition),

then such a document does not become part of the pleadings (i.e., the Election Petition), and it need not be filed with the pleadings (i.e., the Election Petition), and even if filed, its copy need not be supplied to the other side (i.e., Respondent) alongwith copy of the Election Petition.

(C) Elaborating submissions made under Head (B) above, it is submitted that if material facts are pleaded so as to constitute cause of action in respect of the ground of challenge to election of the returned candidate, then the doctrine of integral part in respect of certain document referred to in the pleadings (i.e., in the Election Petition) will not apply. In other words, if the pleadings are complete regarding material facts constituting cause of action, then even if a document is referred to in the pleadings and contains material facts, still that document need not be filed with the pleadings (i.e., the Election Petition). Such a document is not an integral part of the Election Petition, but is merely evidence of what has already been stated in the pleadings.

Therefore, even if such a document is filed with the Election Petition, its copy need not be supplied to the other side (i.e., Respondent) alongwith copy of the Election Petition.

(D)(i) In cases falling under Head (A) above, the question of supplying copy of a document to the Respondent alongwith copy of the Election Petition, will arise if such a document is filed with the Election Petition. If the document is not filed with the Election Petition, then there is no question of supplying copy of the document to the Respondent alongwith copy of the Election Petition.

(ii) Therefore, if a document, as is referred to in Head (A) above, is filed with the Election Petition, then copy of such a document must be supplied to the other side (i.e. Respondent). In case, there is failure to supply copy of such a document to the Respondent, then it amounts to non-compliance with the provisions of Section 81(3) of the R.P. Act, 1951 resulting in dismissal of the Election Petition under Section 86(1) of the said Act.

(iii) However, if a document, as is referred to in Head (A) above, is not filed with the Election Petition, then copy of such a document is not required to be supplied to the other side (i.e. Respondent). In case, there is failure to supply copy of such a document to the Respondent, then it does not amount to non-compliance with the provisions of Section 81(3) of the R.P. Act, 1951, and there can be no dismissal of the Election Petition under Section 86(1) or the said Act.

In other words, the submission proceeds, the doctrine of integral part applies if a document (as is referred to in Head (A) above) is filed with the Election Petition. This is because, the question of a document being an Integral part of an Election Petition will arise if the document is filed with the Election Petition. If a document is not filed with the Election: Petition, then there is no question of the document being an integral part of the Election Petition.

It is pointed out that if a document, as is referred to Head (A) above, is not filed with the Election Petition, then it may be non-compliance of Section 83(1) of the R.P. Act, 1951. But the Election Petition cannot be dismissed under Section 86(1) of the said Act on the ground of non-compliance of Section 83(1) of the said Act.

(E) The doctrine of integral part has been developed to dilute the rigours of Section 81(3) of the R.P. Act, 1951. If a case falls under Heads (B) and (C) above, and the document has been filed with the Election Petition, still copy of such a document need not be supplied to the Respondent. Section 81(3) of the R.P. Act, 1951 has no application to such a case.

(VII)(1) In paragraphs 9 and 11 of the Election Petition, the documents have been referred to as evidence because the contents of the documents have been pleaded in the Election Petition. Therefore, the Petitioner was not required to file the said documents with the Election Petition, nor was he required to supply copies of the said documents to the Respondent alongwith copy of the Election Petition.

(2)(a) Elaborating the submissions in regard to receipt referred to in paragraph 9 of the Election Petition, reference is made to paragraphs 8 and 9 of the affidavit accompanying the aforesaid Application (Paper No. A-7), which contain objections of the Respondent regarding the receipt. It is submitted that the said objections are unsustainable.

(b) The receipt does not contain material facts so far as the cause of action of the present Election Petition is concerned. Therefore, the receipt is not an integral part of the Election Petition. As such, even though referred to in paragraph 9 of the Election Petition, the receipt was not required to be filed, nor was copy of the receipt required to be served on the Respondent alongwith copy of the Election Petition.

(c) Even if the receipt, which has been referred to in paragraph 9 of the Election Petition, contains material facts, the same have been pleaded in the Election Petition. The said receipt has been referred to only by way of evidence of such material facts. Therefore, the receipt is not an integral part of the Election Petition. As such, the receipt was not required to be filed with the Election Petition, nor was copy of the receipt required to be supplied to the Respondent alongwith copy of the Election Petition.

(d) In the present case, the material facts constituting cause of action in respect of the ground (namely, improper rejection of nomination paper) are pleaded in the Election Petition. Even though the receipt is referred to in the pleading, the same has been referred to merely as evidence, and the same is not an integral part of the Election Petition. The doctrine of integral part is not applicable to the present case. Therefore, the receipt was not required to be filed with the Election Petition, nor was copy of the receipt required to be supplied to the Respondent alongwith copy of the Election Petition.

(e) The purpose and contents of the receipt have been pleaded in the Election Petition.

Receipt is merely a ministerial act regarding filing of nomination paper. It is only an evidence of filing of nomination paper (and notice of scrutiny). Receipt may establish what is stated in paragraph 9 of the Election Petition. Its purpose and contents are disclosed in the Election Petition.

Therefore, even if the receipt contains material facts, its purpose and contents have been stated in the Election Petition, and, therefore, it was not necessary to file the receipt with the Election Petition, nor was copy of the receipt required to be supplied to the Respondent alongwith copy of the Election Petition.

(f) In any case, receipt- namely, photostat copy of a certified copy of the receipt- has been filed with the Election Petition as Annexure-1 to the Election Petition, and copy thereof has been supplied to the Respondent alongwith copy of the Election Petition.

A perusal of Annexure-1 to the Election Petition shows that Part VI thereof is a copy of the duplicate of the receipt issued to Vishwanath. The said duplicate of the receipt is evidently maintained in the District Electoral Office. The said duplicate of the receipt has been signed by Vishwanath in token of having received the receipt, as is evident from a perusal of Annexure-1 to the Election Petition.

The contention of the learned Counsel for the Respondent that Part VI of Annexure-1 to the Election Petition is not the actual receipt, which was issued to Vishwanath, is of no consequence because copy of the duplicate of the same receipt has been filed as part of Annexure-1 to the Election Petition.

(g) As regards the contention of the learned Counsel for the Respondent that the receipt contains material facts regarding filing of nomination paper and regarding the person (candidate or his proposer) who filed the nomination paper, it is submitted that in paragraphs 8 and 9 of the Election Petition, it is pleaded that Vishwanath had filed the nomination paper.

Now, the receipt is merely an evidence of what is pleaded in paragraphs 8 and 9 of the Election Petition regarding filing of nomination paper by Vishwa lath. Therefore, even if the receipt is referred to in the pleading, was not required to be filed.

Moreover, in the present case, copy of the duplicate of the receipt issued to Vishwanath has been filed as part of Annexure-1 to the Election Petition. The said duplicate of the receipt has been signed by Vishwanath, as is evident from a perusal of Annexure-1 to the Election Petition.

Part VI of Form A bears the heading:

"Receipt for Nomination Paper and Notice of Scrutiny"

"(To be handed over to the person presenting the Nomination Paper)

As the duplicate of the receipt bears the signature of Vishwanath with the endorsement jlhn izkIr dh the receipt was evidently handed over to Vishwanath. Since the receipt was handed over to the person presenting the nomination paper, it is, prima-facie, evident that Vishwanath had filed the nomination paper.

(h) As regards the contention of the learned Counsel for the Respondent that the receipt contains material facts as to whether the nomination paper of Vishwanath was valid (as per the provisions of Sub-section (4) of Section 33), it is submitted that receipt is only an evidence of filing of nomination paper (and notice of scrutiny). Receipt does not go any further to show that the requirements of Sub-section (4) of Section 33 are fulfilled.

Therefore, receipt is merely a ministerial act regarding filing of nomination paper.

(3)(a) Further elaborating the submissions in regard to the Electoral Roll referred to in paragraph 11 of the Election Petition, it is submitted that if a document is filed with the Election Petition, then the question as to whether copy of the document has been supplied to the Respondent along with copy of the Election Petition, is relevant.

If the document is not filed with the Election Petition, then there is no occasion to supply copy of such a document to the Respondent along with copy of the Election Petition.

In the present case, the Electoral Roll, though referred to in paragraph 11 of the Election Petition, has not been filed with the Election Petition, therefore, there is no question of supplying its copy to the Respondent alongwith copy of the Election Petition.

3(b) Referring to paragraph 11 of the Election Petition, it is submitted that the said paragraph has two parts, as submitted by the learned Counsel for the Respondent namely:

FIRST PART" That as a matter of fact the names of Proposers of Shri Vishwanath namely Shri Sanjay (at Serial No. 1), Shri Vishal (at Serial No. 2) and Shri Satya Pal (at Serial No. 3) find place in the Electoral Roll at Part No. 45 on the same serials as mentioned in the nomination papers."

SECOND PART: "This Electoral Roll of Part No. 45 was very much before the Returning Officer at the time of scrutiny and the same was pointed out to him by the candidates present at the time of scrutiny.

Therefore, in the First Part of paragraph 11 of the Election Petition, it is pleaded that the names of three Proposers are entered in Part 45 of the Electoral Roll at the same serials as mentioned in the nomination paper.

Therefore, the contents of Part 45 of the Electoral Roll are that the names of three Proposers are entered in this Part at the same Serial Numbers as mentioned in the nomination paper.

Hence, the contents of Part 45 of the Electoral Roll are reproduced in the Election Petition.

Since the contents of Part 45 of the Electoral Roll, which constitute material facts, are pleaded in the Election Petition, so there was no necessity for filing Part 45 of the Electoral Roll with the Election Petition, nor was it necessary to serve copy of Part 45 on the Respondent alongwith copy of the Election Petition. In such a case, Part 45 of the Electoral Roll is merely an evidence and will be filed at the trial.

Had the contents of Part 45 of the Electoral Roll been not pleaded (namely, it contains names at same Serial Numbers as in the nomination paper), and had only a reference been made to Part 45 of the Electoral Roll (without elaboration) in the Election Petition, then it would have been necessary to file Part 45 with the Election Petition, and to serve copy thereof on the Respondent alongwith copy of the Election Petition.

As regards the Second Part of paragraph 11 of the Election Petition, the same will be established by evidence.

3(c) It is not necessary that the contents of a document (containing material facts) should be quoted/reproduced verbatim in the Election Petition. What is required is substantial reproduction of the contents of the document in the Election Petition.

(VIII) As regards the question as to whether photostat copy of certified copy of the receipt, filed as Annexure-1 to the Election Petition, is admissible, it is submitted as follows:

(a) Section 87 of the R.P. Act, 1951 provides as follows:

87. Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as newly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.

A perusal of Sub-section (1) of Section 87 of the R.P. Act, 1951, therefore, shows that the Code of Civil Procedure is to be applied to the trial of an Election Petition "as nearly as may be". As such, the Code of Civil Procedure does not apply with all its rigidity to the trial of an Election Petition.

Moreover, Sub-section (1) of Section 87 of the R.P. Act, 1951 is "subject to the provisions of this Act and of any Rules made thereunder"

Hence, the applicability of the Code of Civil Procedure is subject to the High Court Rules.

Chapter XV-A of the Allahabad High Court Rules deals with the Election 'Petition. Para 3 of Rule 3 of Chapter XV-A of the Allahabad High Court Rules provides that alongwith the Election Petition, a list of documents on which the Petitioner relies as evidence, will be filed. In the present case, this list has been filed with the Election Petition (at page 20 of the Paper Book of the Election Petition). Receipt is only an evidence. It is not an integral part of the pleadings. Therefore, filing of list of documents is sufficient.

As such, the question of admissibility of photostat copy of certified copy of the receipt is not relevant.

Sub-section (2) of Section 87 of the R.P. Act, 1951 provides that "the provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an Election Petition."

(b) Photostat copy of certified copy of the receipt can be filed as Annexure in view of Section 83(2) of the R.P. Act, 1951. Section 83(2) provides that "any Schedule or Annexure to the Petition shall also be signed by the Petitioner and verified in the same manner as the Petition."

Therefore, it is not, required that certified copy of a document must be filed. Photostat copy of certified copy of a document may be filed as Annexure provided it is signed and verified as per the requirements of Sub-section (2) of Section 83 of the R.P. Act, 1951.

In the present case, photostat copy of certified copy of the receipt has been signed and verified (as is evident from a perusal of page 19 of the Paper Book of the Election Petition). Therefore, photostat copy of certified copy of the receipt is admissible being Annexure to the Election Petition in view of Sub-section (2) of Section 83 of the R.P. Act, 1951.

(c) Question of admissibility or otherwise of documentary evidence will be seen at the stage of trial when witnesses will be examined.

This is clear from Section 93 of the R.P. Act, 1951, which provide that "notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an Election Petition on the ground that is not duly stamped or registered".

Therefore, admissibility of a document will be seen at the stage of trial.

(d) Summarizing the submissions, it is submitted that in the present case, photostat copy of certified copy of the receipt (Annexure-1 to the Election Petition) is part of pleading. Pleading and proof are entirely different.

In the present case, photostat copy of certified copy of the receipt, annexed as Annexure-1 to the Election Petition, has been filed as part of pleading as provided under Section 83(2) of the R.P. Act, 1951.

Stage of proof has not come as yet.

At the stage of proof, this objection regarding admissibility of photostat copy of certified copy of the receipt may be raised if there is no certified copy of the receipt on record.

Since the Petitioner has mentioned in the list of documents that the Petitioner proposes to rely on certified copy of the receipt (-See Item No. 3 of the List of Documents at page 21 of the Paper Book of the Election Petition), so it will be given in evidence at the trial.

Admissibility or otherwise of a document will be seen at the stage of trial.

At present, the document (photostat copy of certified copy of the receipt) (Annexure-1 to the Election Petition) has been filed as Annexure to the pleading. Thus, the said document is part of the pleading. It is signed and verified; so this document can be looked into.

Section 83(2) of the R.P. Act, 1951 lays down that any Schedule or Annexure to the Petition shall also be signed by the Petitioner and verified in the same manner as the Petition.

Therefore, Annexure-1 to the Election Petition is part of pleading. At present, we are not concerned with proof of pleading.

(IX) As regards Order VII, Rule 14 Code of Civil Procedure, as amended, it is submitted as under:

(a) Section 87 (1) of the R.P. Act, 1951, interalia, lays down that "subject to the provisions of this Act and of any Rules made thereunder, every Election Petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of Suits".

Therefore, the Code of Civil Procedure applies "as nearly as may be" to the trial of an Election Petition. It means that strict compliance of the Code of Civil Procedure is not required in case of trial of an Election Petition.

(b) Section 87(1) of the R.P. Act, 1951 lays down that the provisions of the Code of Civil Procedure will be applicable subject to the provisions of the R.P. Act, 1951 and the Rules made thereunder.

As regards Rules, Section 169 of the R.P. Act, 1951 gives power to the Central Government to make Rules after consulting the Election Commission.

High Court Rules are made under Article 225 of the Constitution of India. Article 225 of the Constitution of India saves power of High Court to frame Rules of Court.

Trial of an Election Petition is done by the High Court in exercise of "Original Civil Jurisdiction" of the High Court.

Section 129 of the Code of Civil Procedure gives power to a High Court "to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit."

Since a High Court tries an Election Petition in exercise of its original civil jurisdiction, it may regulate its own procedure. However, the procedure should not be inconsistent with the Letters Patent or order or other law establishing the High Court.

Now, Chapter XV-A of the Allahabad High Court Rules contains "Special Provisions relating to the Trial of Election Petitions".

These Rules have been made "by the High Court of Judicature at Allahabad in exercise of the powers conferred by Article 225 of the Constitution of India and all other powers enabling it in that behalf (such as, Section 129 of the Code of Civil Procedure).

Rule 3 of Chapter XV-A of the Allahabad High Court Rules, interalia, provides that "the Petitioner shall file with the Petition a list of all documents whether in his possession or power or not, on which he relies as evidence in support of his claim."

Hence, Rule 3 of Chapter XV-A of the Allahabad High Court Rules requires filing of list of Documents. This was in consonance with Order VII, Rule 14 of the Code of Civil Procedure, as it existed prior to amendment.

Prior to amendment, Order VII, Rule 14 of the Code of Civil Procedure required that the document, which was the basis of the suit, ought to have been filed with the plaint. As regards the documents relied upon by the plaintiff, only List of Documents was required to be filed.

Now after amendment, Order VII, Rule 14 of the Code of Civil Procedure requires that besides filing of list of Documents, the documents and copies thereof be also filed.

In the present case, the requirement of Rule 3 of Chapter XV-A of the Allahabad High Court Rules regarding filing of List of Documents, has been complied with. The documents relied upon by the Petitioner have been mentioned in the List of Documents appended to the Election Petition, and thus, the Petitioner has fulfilled the provisions of the Allahabad High Court Rules.

There is no document which is the basis of the Election Petition, as contemplated in Order VII, Rule 14 of the Code of Civil Procedure prior to its amendment.

Now, an additional requirement of Order VII, Rule 14 of the Code of Civil Procedure, as amended, regarding filing of documents, has not been complied with. But on this ground, neither the Election Petition of the Petitioner can be rejected at the threshold nor is there any defect whatsoever in the Election Petition in this regard.

(c) In Kailash v. Nanhku and Ors. their Lordships of the Supreme Court held as under:

(i) If there is conflict between the Rules framed under Article 225 of the Constitution of India and the Rules of Procedure contained in the Code of Civil Procedure, then the former will prevail (Head Note B; paragraph 45).

(ii) The Code of Civil Procedure does not apply with all its rigidity to Election Petition (Head Note A; paragraph 45).

Thus, the Supreme Court has defined and delineated the scope of applicability of the Code of Civil Procedure to the trial of an Election petition vis-a-vis the provisions of the R.P. Act, 1951, the Rules framed thereunder, and the Rules filmed by the High Court.

Keeping in view the decision of the Supreme, Court, it is submitted that even though Order, VII, Rule 14 of the Code of Civil Procedure may apply to an Election Petition, still its strict compliance is not required. Once the Petitioner, in the present case, complied with the requirements of the Allahabad High Court Rules (Chapter XV-A, Rule 3), which was in consonance with Order-VII, Rule 14 of the Code of Civil Procedure (as it existed prior to amendment), then the Election Petition cannot be thrown out on the ground that the additional requirement of Order VII, Rule 14 of the Code of Civil Procedure, as introduced documents and copies thereof with the Election Petition has not been compelled with.

This is because, firstly, such additional requirement in Order VII, Rule 14 of the Code of Civil Procedure (as amended) runs counter to the requirement laid down in Rule 3 of Chapter XV-A of the Allahabad High Court Rules, framed under Article 225 of the Constitution of India, and secondly, in any case, strict/rigid compliance of Order VII, Rule 14 of the Code of Civil Procedure (as amended) is not to be insisted upon in case of an Election Petition.

(d) Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure (as amended) provides that if there is failure to comply with Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure (as amended), then too this can be cured with permission of Court.

Therefore, even if a document is not filed with the plaint, still it can be filed subsequently with leave of the Court. Non-filing of a document with the plaint, thus, will not entail dismissal of the suit.

Similarly, in the present case, even if a document has not been filed with the Election Petition, still the Court has ample power under Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure (as amended) to grant leave for filing the document subsequently.

(X) Besides the decision of the Supreme Court in Kailash v. Nanhku and Ors. (supra), the learned Counsel for the Petitioner have placed reliance on the following decisions:

1. Manohar Joshi v. Nitin Bhaurao Patil and Anr.

2. Smt. Sahodrabai Rai v. Ram Singh Aharwar and Ors. .

3. A. Madan Mohan v. Kalavakunta Chandrasekhara .

4. M. Karunanidhi v. Dr. H.V. Hande and Ors. .

5. U.S. Sasidharan v. K. Karunakaran and Anr. .

6. Prem Pal Singh v. Avnish Kumar Singh and Ors. 1996 All. L.J. 33 (paragraphs 3 to 15).

71. In rejoinder, the learned Counsel for the Respondent has submitted as under:

(I) The contention of the learned Counsel for the Petitioner is that the documents referred to in various cases of the Supreme Court and the High Courts, were the documents containing particulars of corrupt practice. These were not the documents dealing with the material facts.

Therefore, the learned Counsel for the Petitioner contend that the doctrine of integral part is applicable only in respect of the documents, which contain particulars of corrupt practice, and not the documents, which contain material facts.

The contention of the learned Counsel for the Petitioner is not correct. The doctrine of integral part does not make any difference as to the document which contains material facts, and the document which contains particulars of corrupt practice. The doctrine of integral part applies to all cases, and is not confined to cases of corrupt practice only. In other words, the doctrine of integral part applies to all cases whether the Election Petition is based on the ground of corrupt practice or on any other ground.

This was the ratio in U.S. Shashidharan case (supra), and also in Manohar Joshi case (supra).

In Manohar Joshi case (supra) (paragraph 23 of the said J.T.), the Supreme Court has quoted the decision in U.S. Sasidharan case (supra) as under:

In U.S. Sasidharan (supra), this distinction is clearly brought out as under:

...The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document....

Therefore, a document may contain:

(a) material facts, or

(b) particulars of corrupt practice.

There is no difference in the principle in either of the two cases.

Therefore, the learned Counsel for the Petitioner are not correct in contending that the rulings deal only with the documents containing particulars of corrupt practice.

(II) Section 83(1)(a) of the R.P. Act, 1951 requires that the material facts on which the Petitioner relies, must be pleaded in the Election Petition.

All the primary facts, which must be proved at the trial by a party to establish the existence of cause of action or his defence, are "material facts" [See Udhav Singh v. Madhav Rao Scindia ].

Therefore, all the facts which have to be proved by the Petitioner to establish his case and to get a judgment in his favour, are material facts, and these must be pleaded in the Election Petition.

Now, the material facts may be contained in a document.

It would depend on the nature of the allegations/grounds on the basis of which an Election Petition has been filed [as contemplated in Section 81(1) read with Section 100(1) and 101 of the R.P. Act 1951], and the nature of the document in question, whether such document contains material facts pertaining to the said allegations/grounds, so as to make the document an integral part of the Election Petition.

In U.S. Sasidharan case (supra) [quoted in Manohar Joshi case (supra) (paragraph 23 of the J.T.)] lays down that if a document contains material facts, and the document is referred to in the Election Petition, without pleading the contents of the document in the Election Petition, then the document is incorporated in the Election Petition by reference. In other words, it forms an integral part of the Election Petition.

Section 81(3) of the R.P. Act, 1951 provides for giving a true copy of the Election Petition.

When a document forms an integral part of the Election Petition and copy of such a document is not furnished to the Respondent alongwith copy of the Election Petition, then the copy of the Election Petition will not be a true copy within the meaning of Section 81(3) of the R.P. Act, 1951, and as such, the Court will have to dismiss the Election Petition under Section 86(1) of the R.P. Act, 1951 for non-compliance with Section 81(3) of the R.P. Act 1951.

(III)(A) The contention of the learned Counsel for the Petitioner that the occasion for applying the doctrine of integral part arises only when the document is annexed with the Election Petition, is not correct.

The doctrine of integral part applies if the document contains material facts, and the document is referred to in the Election Petition, without pleading the contents of the document in the Election Petition. There is no further requirement the document should be filed with the Election Petition.

The applicability of the doctrine of integral part is not dependent on the filing of the document with the Election Petition. The applicability of the doctrine cannot be made dependent on the sweet-will of the Petitioner.

Elaborating further, it is submitted that If the contents of a document (containing material facts) are pleaded/reproduced in the Election Petition, then such a document is not an integral part of the Election Petition. Therefore, copy of the document need not be supplied to the Respondent alongwith copy of the Election Petition.

However, if a document (containing material facts) is incorporated in the Election petition by reference in the Election Petition (without reproducing its contents), then copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition. Requirement for supplying copy of such a document is not dependent on the fact of filing of the document with the Election Petition.

This is because, the object of the doctrine of integral part is that the Respondent must come to know of the contents of the document. This object cannot be trusted by the Petitioner by choosing not to file the document with the Election Petition.

If a document (containing material facts) is referred to in the Election Petition without reproducing its contents, then the document is incorporated by reference in the Election Petition irrespective of whether the document is filed with the Election Petition or not.

Once the document is incorporated by reference in the Election Petition, ;hen the document becomes an integral part of the Election Petition itself.

Since the document is incorporated by reference in the Election Petition itself, and is an integral part of the Election Petition itself, therefore, copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition. Annexing of the document with the Election Petition or not, is irrelevant.

Test is as to whether the document is an integral part of the Election Petition (and NOT, as to whether the document has been filed with the Election Petition).

Once the document is an integral part, its copy must be supplied, irrespective of filing of the document with the Election Petition or not.

Whatever (document) is an integral part of the Election Petition - whatever (document) has been incorporated in the Election Petition by reference, copy thereof must be supplied to the Respondent alongwith copy of the Election Petition, notwithstanding whether that (document) is filed with the Election Petition or not.

(B) (i) Referring to the decisions of the Supreme Court in U.S. Sasidharan case (supra) and in Manohar Joshi case (supra), it is submitted that in these decisions, the emphasis of the Supreme Court is on service of copy of the document on the Respondent, and NOT on the filing of the document with the Election Petition.

(ii) If a document contains material facts, and it is incorporated in the Election Petition by reference, then it becomes an integral part of the Election Petition and its copy must be supplied.

The Petitioner may file such a document with the Election Petition or not - it is for him to decide;- whatever consequences may be there, those will fellow. However, copy of such a document must be supplied to the Respondent.

Once a document is an integral part of the Election Petition, its copy must be supplied to the Respondent.

On the other hand, if a document contains material facts, and the content of the document are reproduced/quoted in the Election Petition, then it does not become an integral part of the Election Petition, and its copy need not be supplied.

(iii) Summarizing the submissions, it is. submitted that filing of the document alongwith the Election Petition is not a pre-condition to attract the provisions of Section 81(3) of the R.P. Act, 1951.

What is required is the incorporation of the document by reference in the Election Petition as a...integral part of the Election Petition.

Once it is held that the document has been incorporated in the Election Petition by way of reference as an integral part of the Election Petition, hen irrespective of the fact whether the document is filed with the Election Petition or not, the provisions of' Section 81(3) of the R.P. Act, 1951 are attracted, and copy of the document must be supplied to the Respondent.

(IV) The contention of the learned Counsel for the Petitioner is that exact or verbatim reproduction of a document (containing material facts) in the Election Petition, is not required; only substantial reproduction of the document is required.

This contention of the learned Counsel for the Petitioner is not correct.

In U.S. Sasidharan case (supra) (paragraph 15 of the said AIR), the Supreme Court laid down that if the document contains material facts, and the document is referred to in the Election Petition, "without pleading" the contents of the document in the Election Petition, then the document is incorporated in the Election Petition by reference. In other words, it forms an integral part of the Election Petition.

In Manohar Joshi case (supra)(paragraph 23 of the said J.T.), the Supreme Court held that "where the document is incorporated in the Election Petition without reproducing its contents in the body of the Election Petition, it forms an integral part of the Petition and if a copy of that document is not furnished to the Respondent with a copy of the Election Petition, the defect is fatal attracting dismissal of the Election Petition under Section 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the Election Petition and the document also is filed with the Election Petition, not furnishing a copy of the document with a copy of the Election Petition in which the contents of the document ore already incorporated, does not amount to non-compliance of Section 81(3) to attract Section 86(1) of the R.P. Act, 1951.

The words "without pleading its contents in the Election Petition" as used in U.S. Sasidharan case (supra) (paragraph 15 of the said AIR), and the words "without reproducing its contents" and "fully incorporated" as used in Manohar Joshi case (supra) (paragraph 23 of the said J.T.) show that exact or verbatim reproduction/ quotation of the contents of the document is required. Mere substantial reproduction is not sufficient.

This is because the object of the doctrine of integral part is that the contents of the document should be known to the Respondent. Therefore, two courses are open:

EITHER (i) The entire document, as it is, should be reproduced/ quoted in the Election Petition;

OR (ii) The document should be referred to in the Election Petition, and the same should be filed with the Election Petition, and its copy should be supplied to the Respondent (-Doctrine of integral part).

It is only when one of the two courses mentioned above is adopted, that the contents of the document will be known to the Respondent.

In fact, in case (i) mentioned above, copy of the document need not be supplied to the Respondent.

(V)(A) The contention of the learned Counsel for the Petitioner is that the receipt, which has been mentioned in paragraph 9 of the Election Petition, has beer. filed with the Election Petition, and a copy of the receipt has been served upon the respondent.

It was also argued by the learned Counsel for the Petitioner that the receipt is for the purpose that the nomination paper has been duly filed and validly presented by Vishwanath.

It was also argued by the learned Counsel for the Petitioner that the receipt is only a token of the filing of the nomination paper, and the entire material facts have been stated in the Election Petition itself.

Now, the above submissions of the learned Counsel (or the Petitioner are not correct.

(B) The Election Petition, in the present case, has been filed on the ground of improper rejection of the nomination paper.

For the said ground, due filing and valid presentation of the nomination paper is a pre-condition.

This is because, unless and until it can be said that the nomination paper was duly filed and validly presented by Vishwanath, there could not be any improper rejection of the nomination paper.

Therefore, the fact that the nomination paper was duly filed and validly presented was the primary fact to be proved by the Petitioner in order to succeed in the Election Petition.

Therefore, this fact whether the nomination paper was duly filed and validly presented, is a material fact.

The Petitioner was neither a candidate nor an agent of any of the candidates, but he is an elector as averred in the Election Petition.

Even though he has made this averment in the Election Petition that the nomination paper was duly filed and validly presented by Vishwanath, he does not say either he was present at the time of filing of the nomination paper, or he has got any personal knowledge of it.

He has made the averment on the basis of the receipt mentioned in paragraph 9 of the Election Petition.

The averment has been made on the basis of perusal of the record.

Therefore, it is evident that he was in possession of that document, i.e., the receipt; and after perusing the same, he has made the averment in the Election Petition.

(C) According to the Petitioner, the receipt mentioned in paragraph 9 of the Election Petition, has been filed at page 18 of the Paper Book of the Election Petition.

Paragraph 10 of the Election Petition shows that Annexure-1 is photostat copy of the nomination paper. At page 18 of the Paper Book of the Election Petition is photostat copy of Part VI of the nomination paper.

The Petitioner has asserted that Part VI appearing at page 18 of the Paper Book is the receipt referred to in paragraphs 9 and 10 of the Election Petition.

The above stand of the Petitioner is not correct for two reasons:

Firstly, Annexure-1 to the Election Petition is photostat copy of certified copy of the nomination paper, taken from the record maintained in the Office of the District Election Officer, Saharanpur. Therefore, Part VI of Annexure-1 could not be that receipt, which was issued to Vishwanath and which has been referred to in paragraph 9 of the Election Petition.

Secondly, while paragraph 9 of the Election Petition asserts "....The Returning Officer after verifying and satisfying himself that the nomination paper of Shri Vishwanath was valid in all respects, issued a receipt of nomination paper having been duly filed and validly presented by Shri Vishwanath", Part VI appearing at page 18 of the Paper book of the Election Petition does not show anywhere that the nomination paper was duly filed and validly presented.

This Part VI does not even clarify as to who presented the nomination paper because none of the words "candidate/proposer" has been scored-out.

Evidently, therefore, Part VI appearing at page 18 of the Paper Book of the Election Petition is not the receipt referred to in paragraph 9 of the Election Petition.

Therefore, the Petitioner has referred to some other receipt which is made the basis of the allegations in paragraph 9 of the Election Petition; and since the Petitioner has not filed that receipt, therefore, we cannot presume as to what was contained in that receipt.

Thus, this receipt is the sole basis of the allegations, and contains material facts, and since copy of that receipt has not been served on the Respondent, therefore, there has been non-compliance of Section 81(3) of the R.P. Act, 1951.

Copy of the Election Petition served on the Respondent cannot be said to be true and complete copy of the Election Petition in terms of the Judgments of the Supreme Court.

(D) If the assertion of the Petitioner that the receipt is issued in token of due filing and valid presentation of the nomination paper, were to be accepted, then Section 36 (2) (b), R.P. Act, 1951 would be rendered redundant.

(VI) As regards the other document, namely, Part No. 45 of the Electoral Roll, as mentioned in paragraph 11 of the Election Petition, the submissions of the learned Counsel for the Petitioner are not correct.

Part V appearing at page 18 of the Paper Book of the Election Petition contains the reason for the rejection of the nomination paper of Vishwanath. Reason was: The names of Proposers mentioned at SI. Nos. 1,2 and 3 did not find place in the Electoral Roll as mentioned in the nomination paper itself.

At page 15 of the Paper Book of the Election Petition appear the details of the Proposers contained in the nomination paper of Vishwanath.

All the seven columns appearing at page 15 (namely, Serial Number; Assembly Constituency in which the name of the proposer entered; Part Number of Electoral Roll; Serial Number of Elector; Details; Signature; Date) have to be filled up before filing the nomination paper (and to be signed by the proposers) so that the Returning Officer may ascertain that the names of the proposers, as mentioned in the nomination paper, are the same as mentioned in the respective Electoral Rolls.

That is why, the name of the Assembly Constituency; Part Number of the Electoral Roll, and the Serial Number of the person concerned (i.e., the proposer) have to be mentioned so that the Returning Officer may immediately pull-out that Electoral Roll and verify whether the details are correct or not.

Proposers at Sl. Nos. 1, 2 and 3 (- page 15 of the Paper Book of the Election Petition -) have mentioned Part No. 23, meaning thereby that their names find place in Part No. 23 of the Electoral Roll of the Assembly Constituency Nagar at Sl. Nos. 796, 807 and 217, respectively.

But according to the averments made in paragraph 11 of the Election Petition, the names of the Proposers at Sl. Nos. 1,2 and 3 did not find place in Part No. 23 of the Electoral Roll, but these find place in Part No. 45 of the Electoral Roll.

This fact as to whether the names of the above three Proposers find place in Part No. 23 or in part No. 45, is the primary and basic fact to be proved by the Petitioner because this is the sole ground for rejection of the nomination paper.

Therefore, Part No. 45 of the Electoral Roll contains the sole basis of the allegation as well as the material facts regarding the allegation.

Paragraph 11 of the Election Petition has been sworn on the basis of record and information. It has not been sworn on personal knowledge.

Therefore, the averments have been made in paragraph 11 of the Election Petition on the basis of Part No. 45 of the Electoral Roll.

However, copy of Part No. 45 of the Electoral Roll has not been served upon the Respondent.

(VII) Both the documents, namely, the receipt and the Electoral Roll, have been referred to by the Petitioner in the Election Petition, and have been incorporated in the Election Petition by reference, and have been made integral part of the Election Petition.

But copies of the said documents have not been served upon the Respondent.

Therefore, there is non-compliance of Section 81(3) of the R.P. Act, 195:, and the Petition is liable to be dismissed under Section 86(1) of the R.P. Act, 1951.

(VIII) As regards Order VII, Rule 14, Code of Civil Procedure (as amended), it is submitted that Order VII, Rule 14 (as amended) requires that documents trust be filed with the Plaint. If any document is not filed with the Plaint, then there must be an explanation as to why it is not filed with the Plaint - either it is in possession of someone else [Sub-rule (2)] or any other reason.

However, it is true that Suit cannot be dismissed on the ground of non-tiling of documents with the Plaint. It is also true that under Sub-rule (3) of Order VII, Rule 14 (as amended), the Court can permit filing of documents at subsequent stage.

After the conclusion of arguments of the learned Counsel for the Respondent, in rejoinder, the learned Counsel for the Petitioner sought permission to make further submissions to clarify certain points. The permission was accordingly granted to the learned Counsel for the Petitioner.

72. Thereupon, the learned Counsel for the Petitioner made the following further submissions:

(I) It is only when a document (containing material facts) is integral part of the Election Petition that its copy must be served on the Respondent.

(II) The document must be filed with the Election Petition, then only it can be integral part of the Election Petition. If the document is not filed with the Election Petition, then there is no question of the document being an integral part of the Election Petition.

(III) The question of integral part or otherwise arises if the document is filed with the Election Petition ; and not otherwise.

If the document is not filed with the Election Petition, then no question of the document being an integral part of the Election Petition arises.

Hence, the doctrine of integral part applies only when the document is filed with the Election Petition, and its copy is not served on the Respondent.

(IV) An analysis of various decisions cited at the Bar, particularly U.S. Sasidharan case (supra) and Manohar Joshi case (supra), shows that precondition for the applicability of the doctrine of integral part is that the document must be filed with the Election Petition.

It is only when the above pre-condition is fulfilled that the question arises as to whether the document is an integral part of the Election Petition or not.

If a document has not been filed with the Election Petition, then such a document cannot be an integral part of the Election Petition.

(V) There is a distinction between a document forming an integral part of the Election Petition and a document being produced merely as evidence of an averment made in the Election Petition. This is clear from the decision of the Supreme Court in U.S. Sasidharan case (supra).

(VI) When a document does not form an integral part of the Election Petition, but has been either referred to in the Petition or filed in the proceedings as evidence of any fact, then a copy of such a document need not be served on the Respondent alongwith copy of the Election Petition. This is clear from the decision in U.S. Sasidharan case (supra).

(VII) The gist of all the decisions, as summarized by the Supreme Court in Manohar Joshi case (supra), is as under:

(a) When the contents of a document (containing material facts) are fully incorporated in the Election Petition, then its copy need not be served on the Respondent alongwith copy of the Election Petition. Copy of the Election Petition without copy of the document (though annexed with the Election Petition), will be true copy of the Election Petition under Section 81(3) of the R.P. Act, 1951.

(b) When a document is filed alongwith the Election Petition, and there is only reference of the document in the body of the Election Petition, and the document is such which contains material facts constituting part of cause of auction, there copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition.

In both the above cases, the pre-requisite is that the document should annexed with the Election Petition.

(VIII) What is required under Section 81(3), R.P. Act, 1951 is substantial compliance with the said provision.

The word "copy" occurring in Section 81(3) of the R.P. Act, 1951 does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it.

This doctrine of substantial compliance under Section 81(3) of the R.P. Act, 1951 has been laid down in T.M. Jacob v. C. Poulose and Ors. , wherein reliance has been placed on Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. .

(IX) Referring to Manohar Joshi case (supra), it is submitted that the following propositions may be derived from the said decision:

(A) Question of a document being an integral part of the Election Petition will arise if the document is filed with the Election Petition.

If the document has not been filed with the Election Petition, then no question of the document being an integral part of the Election Petition arises.

This is because, the word "part" itself denotes that it is part of some full thing.

(B) If various decisions of the Supreme Court from the year 1968, noted in Manohar Joshi case (supra), are read in the context of the facts of the respective cases, then the ratio of these decisions is:

If a document is filed with the Election Petition, and it is incorporated in the Election Petition by reference, then copy of the document must be served or the Respondent alongwith copy of the Election Petition in view of Section 81(3) of the R.P. Act, 1951.

But if the document is not filed with the Election Petition, then no question of the document being an integral part of the Election Petition arises. Therefore, copy of such a document need not be served on the Respondent alongwith copy of the Election Petition.

(C) There is a distinction between a document forming an integral part of the Election Petition, and a document being produced merely as evidence of an averment made in the Election Petition.

If a document is an integral part of the Election Petition, and its copy is not served on the Respondent alongwith copy of the Election Petition, then this is fatal in view of Section 81(3) read with Section 86(1) of the R.P. Act, 1951.

However, if a document is filed as evidence of the averments (e.g., where the contents of the document are reproduced in the Election Petition), then non-supply of copy of such a document will not be fatal.

(D) We cannot read Section 83 of the R.P. Act, 1951 while considering Section 86(1) of the R.P. Act, 1951.

Section 86(1) of the R.P. Act, 1951 refers to only Sections 81,82 an:! :?, R.P. Act, 1951.

If there is non-compliance of Section 83(1) of the R.P. Act, 195.1, then consequence under Order VII, Rule 11 of the Code of Civil Procedure or under Order VI, Rule 16 of the Code of Civil Procedure may follow, but there is no non-compliance of Section 81(3) of the R.P. Act, 1951.

In other words, non-compliance of Section 83(1) of the R.P. Act, 1951 is not visited with the consequence of dismissal of the Election Petition at the threshold under Section 86(1) of the R.P. Act, 1951. Therefore, non-compliance of Section 81(3) of the R.P. Act, 1951, which attracts Section 86(1) of the R.P. Act, 1951, is to be seen without reference to Section 83(1) of the R.P. Act, 1951.

(X) Sub-section (3) of Section 81 of the R.P. Act, 1951 provides that the Election Petition, as presented in the High Court, shall be accompanied by as many copies thereof as there are respondents mentioned in the Petition. Every copy snail be attested by the Petitioner under his own signature to be a true copy of the Petition.

Thus, there is no requirement that the documents, filed with the Election Petition as evidence, be supplied to the Respondent alongwith copy of the Election Petition.

(XI) Concluding the further arguments, it is submitted that for determining the ratio of a judgment, the entire judgment be read as a whole in the context of the question involved in the case, to find out the principle laid down. Words or sentences divorced from context must not be picked up to support the reasonings.

In the present case, in view of the provisions of Section 81(3) of the R.P. Act, 1951, and the Supreme Court cases cited at the Bar, the ratio is that copy of the Election Petition, as filed in the High Court, must be served on the Respondent. This is the only scope of Section 81(3) of the R.P. Act, 1951 read with the decisions of the Supreme Court cited at the Bar.

Rather the decisions in 1968, 1983 and 1990 have lessened the rigours of Section 81(3) of the R.P. Act, 1951. If a document has been filed with the Election Petition, and its copy has not bee served on the Respondent, and the contents of the document are reproduced in the Election Petition, then the Supreme Court held that even if copy of the document is not served on the Respondent, still there is no non-compliance of Section 81(3) of the R.P. Act, 1951 so as to attract Section 86(1) of the said Act.

It is not the ratio of any case decided by the Supreme Court that a document not filed with the Election Petition should be served on the Respondent because a reference has been made to it in the Election Petition.

The decision of the Supreme Court in Manohar Joshi case (supra) is complete answer to the submissions made by the learned Counsel for the Respondent. This is a decision of a Bench consisting of three Hon'ble Judges of the Supreme Court, and is a later decision than U.S. Sasidharan case (supra).

Therefore, Manohar Joshi case (supra) will have to be followed.

Even in U.S. Sasidharan case (supra), it has not been, held that ever in a document is not filed with the Election Petition, still its copy should be served because it is incorporated by reference in the Election Petition.

In the present case, whatever has been filed with the election Petition, copy thereof has been served on the Respondent.

There is no complaint of the Respondent that whatever is filed with the Election Petition, its copy has not been served on the Respondent. In fact the objections of the Respondent are two fold:

(A) The receipt issued to the candidate whose nomination paper was rejected, has not been filed, and copy thereof has not been served on the Respondent.

This is not correct. Photostat copy of certified copy of the receipt has been filed, and copy thereof has been supplied to the Respondent.

(B) Other objection is regarding the Electoral Roll in which the names of the three Proposers were mentioned;- the said Electoral Roll has not been filed, nor has its copy been served on the Respondent.

Now, this objection is misconceived.

As the Electoral Roll was not filed with the Election Petition, it; copy was not required to be served on the Respondent.

Moreover, what the Electoral Roll contains, that has been stated in the Election Petition (paragraph 11). Therefore, the Respondent has not been misled.

There is no allegation in the Written Statement that the Respondent has been misled.

Therefore, the Application (Paper No. A-7) filed on behalf of the Respondent is misconceived.

73. In reply to the further arguments of the learned Counsel for the Petitioner, Shri K.R. Singh, learned Counsel for the Respondent, submits as follows:

(I)(A) It has been argued by the learned Counsel for the Petitioner that for a document to be incorporated in the Election Petition, the document must have been filed with the Election Petition.

It has been submitted by the learned Counsel for the Petitioner that since, in the present case, the document was not filed with the Election Petition, therefore, the provisions of Section 81(3) of the R.P. Act, 1951 will not apply.

Reliance has been mainly placed by the learned Counsel for the Petitioner upon the following two decisions:

(i) U.S. Sasidharan case (supra)

(ii) Manohar Joshi case (supra).

Now, the submissions of the learned Counsel for the Petitioner are misconceived.

In both the above cases, the document which was considered ,was not filed with the Election Petition, and copy of the document was not furnished to the Respondent alongwith the copy of the Election Petition.

Since we are at the stage of Section 81(3) of the R.P. Act, 1951 which deals with supply of copy of the Election Petition to the Respondent, so we have to see what was furnished with the copy of the Election Petition, to the Respondent.

What was filed by the Petitioner with the Election Petition, that would be immaterial for the provisions of Section 81(3) of the R.P. Act, 1951.

In both the above cases, the cases have been decided upon the principle and theory that if a document is incorporated by way of reference in the Election Petition then it becomes an integral part of the Election Petition, and in that situation, copy of that document must be supplied to the Respondent alongwith copy of the Election Petition.

In both the cases, there are findings that the documents where were considered, were not filed alongwith the Election Petition.

In U.S. Sasidharan case (supra), it was found that the document was referred to and was incorporated by way of reference as an integral part of the Election Petition, and therefore, it was held that there was non-compliance of Section 81(3) of the R.P. Act, 1951.

In Manohar Joshi case (supra), the theory of incorporation by way of reference was accepted, and having accepted that theory, it was held that since there was mere mention of the document and it was not referred to or incorporated by way of reference as an integral part of the Election Petition, therefore, non-supply of that document was not treated to be non-compliance of Section 81(3) of the R.P. Act, 1951.

(B) There may be two ways of incorporating a document in the Election Petition, as held by the Supreme Court in various cases:

(i) One may be incorporation of a document by filing the document alongwith the Election Petition.

(ii) Other may be incorporation of a document by way of reference, meaning thereby, when a document is referred to in the Election Petition, then it may become a part of the Election Petition if that document contains material facts or material particulars.

(C)(i) Elaborating his submissions in regard to U.S. Sasidharan case (supra), the learned Counsel for the Respondent refers to paragraphs 5 and 18 of the Judgment, as repotted in AIR, and points out that the Video Cassette was not filed with the Election Petition as Schedule or as Annexure or as part of the Election Petition. In fact, the Video Cassette was submitted in a sealed cover with an Application. It was prayed in the Application that the Video Cassette be kept in a sealed cover till the stage of examination of witnesses.

Thus, the Video Cassette was not filed with the Election Petition, but was submitted in a sealed cover alongwith a separate Application with the prayer that the Video Cassette be kept in sealed cover till the stage of examination of witnesses.

It is, thus, evident that "not only the copy of the Video Cassette was not served on the first Respondent, but also the appellant had no intention of serving a copy of the same on the first Respondent"

(ii) Two things are important in U.S. Sasidharan case (supra):

(a) Video Cassette was not filed alongwith the Election Petition, but it was submitted in a sealed cover with an Application.

(b) Main thrust of the Supreme Court was upon the service of copy of the document upon the Respondent, and not upon as to whether the document was filed with the Election Petition or not.

In all the cases, it has been seen as to whether copy of the document was served upon the Respondent or not, because this is the basic requirement of Section 81(3) of the R.P. Act, 1951.

Therefore, the main thrust is upon the service of copy of the document upon the Respondent.

While deciding this issue whether copy of the document was required to be served or not, the question comes up as to whether the document was an integral part of the Election Petition or not. This depends on the facts of the case.

If the document was an integral part, then copy of the document was required to be served on the Respondent.

If it was not an integral part of the Election Petition, then its copy was not required to be served on the Respondent.

While deciding the issue as to whether the document was an integral part of the Election Petition or not - at this stage, we have to see the nature of the document.

In this entire chain- namely, deciding as to whether a document is an integral part of the Election Petition or not; and as to whether copy of the document has been supplied to the Respondent or not -, filing of the document with the Election Petition is not a pre-condition.

If a document has been incorporated in the Election Petition by way of reference, then it becomes integral part of the Election Petition, even though it is not filed with the Election Petition.

(iii) In U.S. Sasidharan case (supra), the theory of integral part has been accepted, and the Supreme Court has proceeded upon that theory itself.

(iv) Referring to paragraph 21 of the Judgment in U.S. Sasidharan case (supra) (as reported in AIR), it is submitted that this case has not been decided on the basis as to whether the Video Cassette was filed with the Election Petition or not. The case has been decided on the basis as to whether the Video Cassette was an integral part of the Election Petition or not.

This case has been decided upon the fact that the Video Cassette, having been incorporated in paragraph 5(xi) of the Election Petition by reference, was an integral part of the Election Petition, but copy of the Video Cassette was not served upon the Respondent.

This conclusion is also supported by perusing paragraphs 22,27, etc. of the Judgment, as reported in AIR.

(D)(i) Elaborating his submissions in regard to Manohar Joshi case (supra) the learned Counsel for the Respondent submits that in this case, the document was not neither filed, nor submitted, nor incorporated in the Election Petition by reference as an integral part.

On the other hand, there was mere mention of that document (Video Cassette) in two paragraphs of the Election Petition.

Therefore, after discussing the entire law and accepting the theory of integral part, as laid down in U.S. Sasidharan case (supra), the Supreme Court has laid down its conclusion in paragraph 25 of the Judgment (as reported in Judgement Today).

This case was, thus, decided on the basis that as the document was not incorporated by reference in the Election Petition, therefore, it was not an integral part of the Election Petition, and as such, it was not necessary to serve copy of the Cassette on the Respondent.

It was not decided merely on the fact that since the document was not filed with the Election Petition, therefore, it was not required to be served on the Respondent, and thus, there was no non-compliance of Section 81(3) of the R.P. Act, 1951.

(ii) A perusal of paragraph 25 of the Judgment in Manohar Joshi case (supra) (as reported in Judgment Today) shows that this case was decided on the basis of the theory of integral part.

If it was simply to be considered: whether the document was filed with the Election Petition, and whether copy of the document was supplied to the Respondent or not-, then there was no question of reference to the theory of integral part because Video Cassettes were not filed with the Election Petition and copy was not supplied - that would have been the end of the matter.

But the Supreme Court considered as to whether the documents (Cassettes) were integral part of the Election Petition or not.

(II)(A) As regards the doctrine of substantial compliance, as laid down in Murarka Radhey Shyam case AIR 1964 SC 1547 (supra) and in T.M. Jacob case (supra), it is submitted that the said cases were in a different context.

Earlier in Dr. (Smt.) Shipra v. Shanti Lal Khoiwal , the Supreme Court held that if the affidavit in the original Election Petition bore the seal and signature of the Oath Commissioner, then of the Election Petition supplied to the other side must bear the same, otherwise it would not be a true copy.

In T.M. Jacob case (supra), the Supreme Court in its order dated 18.12.1997 felt that the matter required reconsideration, arid, therefore, reference was made to a Larger Bench.

The Larger Bench decided the case as reported in T.M. Jacob case, (supra). Reference in this regard is made to paragraph 10 of the said AIR.

(B) In Murarka Radhey Shyam case AIR 1964 SC 1547 (supra), the question was regarding signature of the Petitioner on the copy of the Election Petition. There were two views:

(i) Certain cases held that each page of copy of the Election Petition must bear the endorsement of "true copy" and signature of the Petitioner, otherwise, it would be non-compliance of Section 81(3) of the R.P. Act, 1951, and the Election Petition would be dismissed on the said ground.

(ii) Other cases held that if on each page of copy of the Election Petition, the Petitioner put his signature at the foot of the page, then it was substantial compliance of Section 81(3) of the R.P. Act, 1951, and the Election Petition would not be dismissed.

The Supreme Court in Murarka Radhey Shyam case (supra) agreed with the view (ii) above.

Thus, the said decision is not applicable to the present case where the question involved is regarding non-supply of copy of a document incorporated in the Election Petition as an integral part by reference.

(C) In T.M. Jacob case (supra), the theory of incorporation by reference was not considered. Therefore, this decision is not applicable to the present case.

I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE PARTIES, AND PERUSED THE RECORD.

74. Before proceeding to consider the respective submissions made by the learned Counsel for the parties, it will be appropriate to first consider the LEGAL POSITION, as emerges from the STATUTORY PROVISIONS and the JUDICIAL DECISIONS relevant in the present context.

75. Sub-section (1) of Section 81 of the R.P. Act, 1951 lays down that 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 of the R.P. Act, 1951.

76. The said Sub-section (1) of Section 81 of the R.P. Act, 1951 further provides that the Election Petition may be presented to the High Court by any Candidate at such election or any elector.

77. The said Sub-section (1) of Section 81 further lays down that the Election Petition is to be presented within 45 days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election, and dates of their election are different, the later of those two dates.

78. Explanation to Sub-section (1) of Section 81 of the R.P. Act, 1951 lays down that "elector" means a person who was entitled to vote at the election to which the Election Petition relates, whether he has voted at such election or not.

79. In the present case, the Election Petition is based on the ground mentioned in Section 100(1)(c) of the R.P. Act, 1951, namely, "that any nomination has been Improperly rejected".

80. Further, the present Election Petition is stated to have been presented by an elector.

81. Again, the Election Petition has been presented within 45 days from the date of election of the returned candidate. Reference in this regard may be made to the noting of the Registrar General on the Election Petition.

82. Sub-section (2) of Section 81 of the R.P. Act, 1951 was omitted by Act No. 47 of 1966 with effect from 14.12.1966.

83. Sub-section (3) of Section 81 of the R.P. Act, 1951 provides that "every Election Petition shall be accompanied by as many copies thereof as then 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."

84. As noted earlier, the aforementioned Application (Paper No. A-7) has been filed on the ground of non-compliance with the requirements of Section 81(3) of the R.P. Act, 1951. This question will be considered in detail at the appropriate place in the present Order.

85. Section 82 of the R.P. Act, 1951 deals with parties to be joined in an Election Petition. In the present case, the Petitioner has joined Rasheed Masood, the returned candidate as the Respondent.

86. Section 117 of the R.P. Act, 1951 makes provisions regarding security for the costs of an Election Petition. Sub-section (1) of Section 117 of the R.P. Act, 1951 lays down that at the time of presenting an Election Petition, the Petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of Two Thousand Rupees as security for the costs of the Election Petition.

87. In the present case, security of Rs. 2000/- has been deposited, as per the noting of the Registrar General on the Election Petition.

88. Sub-section (1) of Section 86 of the R.P. Act, 1951 lays down that the High Court shall dismiss an Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act.

89. Therefore, Sub-section (1) of Section 86 of the R.P. Act, 1951 makes it mandatory for the High Court to dismiss an Election Petition, which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act.

90. The aforementioned Application (Paper No. A-7), as noted above, has been filed on the ground of non-compliance with the requirements of Section 81(3) of the R.P. Act, 1951. It is, interalia, prayed that the Election Petition be dismissed under Section 86(1) of the R.P. Act, 1951 for non-compliance of Section 81(3) of the said Act.

91. Section 83(1)(a) of the R.P. Act, 1951 provides that an Election Petition shall contain a concise statement of the material facts on which the Petitioner relies.

92. As mentioned above, Sub-section (1) of Section 81 of the R.P. Act, 1)5 requires presentation of an Election Petition on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 of the said Act.

93. Clause (a) of Sub-section (1) of Section 83 of the R.P. Act, 1951 makes it mandatory that a concise statement of the material facts on which the Petitions relies in respect of the ground/grounds on which the Election Petition has been presented must be contained in the Election Petition. It is, therefore, obligatory on the part of the Petitioner to give in the Election Petition a concise statement of the material facts on which he relies in respect of the ground/grounds taken by him in the Election Petition.

94. Clause (b) of Sub-section (1) of Section 83 of the R.P. Act, 1951 lays down that an Election Petition 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 and place of the commission of each such practice.

95. It will, thus, be noticed that Clause (b) of Sub-section (1) of Section 83 of the R.P. Act, 1951 deals with an Election Petition presented on the ground of corrupt practice as specified in Sub-section (1) of Section 100 and Section 101 of the said Act. Section 123 of the R.P. Act, 1951 lays down as to what shall be deemed to be corrupt practices for the purposes of the said Act.

96. Clause (c) of Sub-section (1) of Section 83 provides that an Election Petition shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings.

97. Proviso to Sub-section (1) of Section 83 of the R.P. Act, 1951 lays down that where the Petitioner alleges any corrupt practice, the Election 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.

98. Sub-section (2) of Section 83 of the R.P. Act, 1951 lays down that any Schedule or Annexure to the Election Petition shall also be signed by the Petitioner and verified in the same manner as the Election Petition.

99. Sub-section (1) of Section 87 of the R.P. Act, 1951 lays down that every Election Petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 190S to the trial of Suits. This provision is, however, subject to the provisions of the R.P. Act, 1951 and of any Rules made thereunder.

100. Sub-section (2) of Section 87 of the R.P. Act, 1951 lays down that the provisions of the Indian Evidence Act, 1872, shall be deemed to apply in all respects to the trial of an Election Petition. This provision is, however, subject to the provisions of the R.P. Act, 1951.

101. Reverting again to Section 83 of the R.P. Act, 1951, Clause (a) of Sub-section (1) of the said Section requires a concise statement of the material facts to be contained in the Election Petition, and Clause (b) of Sub-section (1) of the said Section requires full particulars of any alleged corrupt practice to be set forth in the Election Petition.

102. Questions as to what is the meaning of the "material facts" and the "material particulars'', and what is the effect of not stating the material facts and what is the effect of not giving material particulars, have been the subject matter of various judicial decisions. It will be useful to notice some of the JUDICIAL DECISIONS dealing with the said questions.

103. In Udhav Singh v. Madhav Rao Scindia (supra), Udhav Singh, an elector of the Constituency, filed an Election Petition challenging the election of the Respondent on two main grounds, namely, (i) expenditure beyond the prescribed limit, and (ii) threats given to and intimidation of the electors by the workers of the Respondent.

104. Explaining the meaning of the "material facts" and the "material particulars', and the distinction between the two, their Lordships of the Supreme Court opined as under (paragraphs 37,38, 39 and 40 of the said AIR):

37. Like the Code of Civil Procedure, this section also envisages a distinction between " material facts" and " material,partlculars" Clause (a) of Sub-section (1) corresponds to Order 6, Rule 2, while Clause (b) is analogous to Order 6, Rule 4 and 6 of the Code. The distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.

38. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).

39. "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of Clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of Clause (a). 'Particulars' serve the purpose of finishing touches, to the basic contours of a picture already drawn, to make it full, more detailed and more informative.

40. The distinction between 'material facts' and 'material particulars has pointed out by this Court in several cases, three of which have been cited at the bar. It is not necessary to refer to all of them. It will be sufficient to close the discussion by extracting what A. N. Ray, J.(as he then was) said on this point in Hardwari Lal's case AIR 1972 SC 515 (supra): It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute, which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words "any assistance" were full statement of material fact. The submission is fallacious for the simple reason that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts ate facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the court have given a verdict in favour of the election petitioner? The answer is in the negative because the allegations in the petition, did not disclose any cause of action.

105. Thus, this decision, interalia, lays down the following propositions:

(1) All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In other words, all those facts which are essential to clothe the Petitioner with a complete cause of action, are " material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the R.P. Act, 1951. (See paragraph 38 of the said AIR).

(2) Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck-off under Order VI, Rule 16 of the Code of Civil Procedure. If the Election Petition is based solely on those allegations which suffer from lack of material facts, the Election Petition is liable to be summarily rejected for want of a cause of action. (See paragraph 37 of the said AIR).

106. In Jitendra Bahadur Singh v. Krishna Behari and Ors. (supra), an elector challenged the validity of the election of the appellant to Lok Sabha. By the order dated May 21, 1968, the High Court permitted the Election Petitioner to inspect the packets of Ballot Papers containing the accepted as well as the rejected votes of the candidates. The said order passed by the High Court was impugned before the Supreme Court.

107. Their Lordships of the Supreme Court held as under (paragraphs 7 and 8 of the said AIR):

7. The importance of maintaining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases. In particular we may refer to the decisions of this Court in Ram Sewak Yadav v. Hussain Kamil Kidwai and Dr. Jagjit Singh v. Giani Kartar Singh AIR 1965 SC 773. These and other decisions of this Court and of the High Courts have laid down certain base requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. They arc : (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.

8. The trial court was of the opinion that if an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts. In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which the arrived at those Figures. His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis, He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated arc those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paragraphs 13 and 14 of the election petition and in Schedule 'E' are mere allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state to the petition the material facts was referring to a point of substance and not of mere form. Unfortunately the trial court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.

108. Following propositions, amongst others, have, thus, been laid down in this decision:

1. The material facts required to be stated in the Election Petition are those facts which can be considered as materials supporting the allegations made if the Election Petition. In other words, they must be such facts as to afford a basis for the allegations made in the Election Petition.(See paragraph 8 of the said AIR).

2. Besides making the allegations in the Election Petition, the material facts supporting those allegations must be stated in the Election Petition. (See paragraph 8 of the said AIR).

3. The material facts disclosed by the Petitioner must afford an adequate bass for the allegations made. (See paragraphs 7 and 8 of the said AIR).

109. In Azhar Hussain v. Rajiv Gandhi (supra), the appellant, an elector from the Amethi Constituency, challenged the election of the Respondent as a Member of the Lok Sabha from the said Constituency on the ground of alleged corrupt practices as defined by the R.P. Act, 1951. The High Court dismissed the Election Petition on the ground that it did not comply with the mandatory requirement to furnish material facts and particulars enjoined by Section 83 of the R.P. Act, 1951 and that it did not disclose a cause of action.

110. It was argued before the Supreme Court that inasmuch as Section 83(1) of the R.P. Act, 1951 was not adverted to in Section 86 of the said Act in the context of the provisions, non-compliance with which entailed dismissal of the Election Petition. it followed that non-compliance with the requirements of Section 83(1), even though mandatory, did not have lethal consequence of dismissal.

111. Rejecting the said argument, their Lordships of the Supreme Court held as under (paragraphs 8,9,10 and 11 of the said AIR):

8....Now it is not disputed that the Code of Civil Procedure (CPC) applies to the trial of an election petition by virtue of section 87 of the Ad: Since CPC is applicable the court trying the election petition can act in exercise 7 the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11 (a) which read thus:

Order 6, Rule 16 : "Striking out pleadings. - The Court may at any stage of the proceedings order to be struck out or amend any matter in any pleading

a) which may be unnecessary, scandalous, frivolous or vexatious, or

b) which may tend to prejudice, embarrass or delay the fair trial of the suit or

c) which is otherwise an abuse of the process of the Court.

Order 7, Rule 11 : "Rejection of plaint--The plaint shall be rejected in the following cases:

a) where it docs not disclose a cause of action:

XXX XXX XXX

9. The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised.

10. There is thus no substance in this point which is already concluded against the appellant in Hardwari Lal v. Kanwal Singh this Court has in terms negatived this very plea in the context of the situation that material facts and particulars relating to the corrupt practice alleged by the election petitioner were not incorporated in the election petition as will be evident from the following passage extracted from the judgment of A.N. Ray. J. who spoke for the three- judge Bench:

The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to which kind or form of assistance was obtained or procured or attempted to obtain or procure it is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.

Counsel on behalf of the respondent submitted that an election petition which did not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. was emphasized that Section 83 did not find place in Section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 to the trial of the suits. A suit which does not furnish cause of action can be dismissed.

11. in view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the electron petition are not complied with. This Court in Samant's case has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh's case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore cm be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.

112. Thus, this decision, interalia, lays down the following propositions:

1. The appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the R.P. Act, 1951 to incorporate the material facts in the Election Petition are not complied with. The fact that Section 83 of the R.P. Act, 1951 does not find a place in Section 86 of the said Act does not mean that powers under the Code of Civil Procedure cannot be exercised. (See paragraphs 9 and 10 of the said AIR).

2. All the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. (See paragraph 11 of the said AIR).

3. Whether in an Election Petition a particular fact is material or not and as seen required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. (See paragraph 11 of the said AIR).

4. All the facts which are essential to clothe the Petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the R.P. Act, 1951. An Election Petition, therefore, can be and must be dismissed if it suiters from any such vice. (Sec paragraph 11 of the said AIR).

113. In Alisinghani Bhagwan Singh Mahadeo Singh v. Rajiv Gandhi and Ors. 1985 AWC 515 (supra), the Petitioner challenged the election of the Respondent No. 1, interalia, on the ground of corrupt practice. This Court dismissal the Election Petition on the ground that the Election Petition did not disclose a cause of action within the meaning of Order VII, Rule 11, Code or Civil Procedure. It was laid down by this Court as under (paragraphs 7,8,9 and 10 of the said AWC):

7. The expression "material facts" has been interpreted to mean facts which are necessary for formulating a complete cause of action and it has been held that if any one material statement is omitted from the pleading, the statement of the claim is bad vide Roop Lal Sethi v. Nachchattar Singh (1983) 3 Supreme Court Cases 487 and Samant M. Bal Krishna v. George Fernandes 1969 Supreme Court 1201.

8. In the commentary of Mulla on the Code of Civil Procedure (1981 Edition) Volume I at page 206 the expressions "cause of action" has been described to mean every fact which it traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It does not comprise evidence necessary to prove such facts, but every fact necessary for, the plaintiff to prove in order to enable him to obtain a decree. In other words, a cause of action is a bundle of facts which is necessary for the plaintiff to prove in order to second in a suit. The various grounds on which an election may be challenged as void and invalid, are set out in Section 100 of the Act and the ingredients of every ground arc included in the various clauses of that section. In respect of the ground of corrupt practice set out in Section 100(1)(b) of the Act, the statutory elements are to be found in Section 123 of the Act. The various sub-sections of Section 123 falling with bribery under influence, appeal on ground of religion, promotion of enmity or hatred between different classes of citizens, publication of false facts regarding personal character and conduct of a candidate and other corrupt practices, section their elements. In order to establish any of the grounds contained in Section 100 simplicitor or read with Section 123 every fact requisite for satisfying the elements would be a "material fact" and must be set out in the election petition. The omission to set out even a single element of such "material facts", would result in a failure to establish the particular ground which would constitute a failure of the cause of action.

9. As against these requirements of the law as to what ought to be contained in an election petition, there are the provisions of Order VI Rule 16 CPC which would indicate what the election petition could not contain.

Order VI Rule 16 CPC runs as follows:

16. Striking out pleadings- The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the Court

10. The expression 'frivolous' has been described in Webster's 'Third New International Dictionary (1971 Edition) Volume I page 913 as something "of little weight or importance, having no basis in law or facts." The expression 'embarrassing' has been stated to mean, in the same Dictionary at page 739 of Volume I "to place in doubt, perplexity or difficulty. "In the case of Davy v. Garret (1878) 7 Ch. D.473, it has been stated at page 483 that nothing is more embarrassing to a defendant than a number of statements which may be irrelevant and which the defendant therefore, does not know what to do. It has further been held that each party is entitled, ex devide sections, to have his case against him prescribed in an intelligible form so that he may not be embarrassed in meeting it. Under order VI Rule 16 such of the pleadings as suffer from the vice of being frivolous, vexatious, or embarrassing may be struck out.

114. Thus, this decision, interalia, lays down the following propositions:

1. The expression "material facts" means facts which are necessary for formulating a complete cause of action. If any one material statement is omitted from the pleading, the statement of the claim is bad. (See paragraph 7 of the said AWC).

2. In order to establish any of the grounds contained in Section 100 of the R.P. Act, 1951 simplicitor or read with Section 123 of the said Act, every fact requisite or specifying the elements/ingredients of such ground would be a "material fact' and must be set out in the Election Petition. The omission to set out even a single element of such "material facts", would result in a failure to establish the particular ground which would constitute a failure of the cause of action. (See paragraph 8 of the said AWC).

115. In Jaipal Singh v. Smt. Sumitra Mahajan and Anr. (supra), the nomination papers of the appellant were rejected by the Returning Officer. The appellant filed the Election Petition in the High Court on the ground his nomination papers had been wrongly rejected by the Returning Officer. The High Court dismissed the Election Petition on the ground of failure to aver and plead certain material facts, as per the requirements of Section 83(1)(a) of the R.P. Act, 1951.

116. Thereupon, the Appeal was filed before the Supreme Court.

117. Dismissing the Appeal, their Lordships of the Supreme Court held as under (paragraphs 2,3,4,7, and 9 of the said SCC):

2. The appellant was a member of the Indian Administrative Service having 40 years' service to his credit and who was 59 1/2 years old. By letter dated 13.3.2002, he sought voluntary retirement under Rule 16(2) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as "the 1958 Rules") with immediate effect. The appellant was registered as an elector at 535, Halqa No. 62, Mujeggar Plot No. 9-A, Sector 6, Faridabad in the State of Haryana and eligible to content election to the Rajya Sabha, in which two vacancies had occurred which were be filled them the State of Haryana. A notification was issued to fill up the two vacancies under which the last date of filing the nomination papers was 14.3.2002, the dale of scrutiny was 15.3.2002, last date of withdrawal was 18.3.2002 and the date of polling was 27.3.2002. The appellant sought voluntary retirement from service as he wanted to contest the election to the Rajya Sabha. On 15.3.2002, the Returning Officer rejected the nomination papers of the appellant on the ground that Rule 16 of the 1958 Rules warranted giving three months' previous notice to the appointing authority and since the said period had not elapsed on the date of scrutiny the appellant was holding the office of profit on that day and, therefore, stood disqualified under Article 102(1)(c) of the Constitution. On 18.3.2002, election results were announced, since there was no contest after rejection of the nomination papers submitted by the appellant. Aggrieved, the appellant filed Election Petition No. 27 of 2002 in the High Court on the ground that his nomination papers had been wrongly rejected by the Returning Officer. In the election petition, he stated that on completion of 40 years of service and on attaining the age of 59 1/2 years, he was eligible to seek voluntary retirement under the 1958 Rules; that he had applied for the same through proper channel on 13.3.2002; that he had also made a request to the appointing authority to wave notice period of three months for seeking voluntary retirement; that he had relinquished the charge on 13.3.2002; and consequently, he was not holding office of profit with the Government on that day and, therefore, he was eligible to seek election to the Rajya Sabha. In the election petition, the appellant further pleaded that his request was duly received by the Government of India, Ministry of Personnel, appointing authority and also by the Government of Haryana at Chandigarh. He further averred that he sought voluntary retirement on account of illness of his wife and after resigning voluntarily from his post, he had filed nomination papers. He further averred that on the date or the scrutiny, he was present when he brought to the notice of the Returning Officer the factum or his voluntary retirement but the Returning Officer disregarded the provisions of the 1958 Rules as also the provisions of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 (hereinafter referred to as "the 1960 Rules") as also the Fundamental Rules, 1922. In the election petition, the appellant had alleged that the action of the Returning Officer in rejecting his nomination papers was not justified as the appointing authority has the power under the 1960 Rules to relax the condition and to waive the notice period of three months in the case of an employee who seeks voluntary retirement He further stated that since his nomination papers were rejected, there was no contest and results were declared on 18.3.2002 when the respondents were declared as members of the Rajya Sabha from the State of Haryana. In the light of the above allegations, the appellant challenged the elections of the respondents on the ground of improper rejection of his nomination papers. The election petition was scrutinized by the Registry of the High Court, which was found to have been filed within the period of limitation, and accordingly it was numbered and notices were issued to the respondents who appeared before the High Court on 31.7.2002 through their counsel. A joint written statement was tiled by the respondents controverting the averments made by the appellant. A preliminary objection was raised to the effect that the averments contained in the election petition were vague and lacked material facts and particulars, as such, the said petition was liable to be dismissed. In the written statement, the respondent submitted that the petition was liable to be dismissed as the appellant had not disclosed a material fact as to on which date he had received communication regarding acceptance of his application for voluntary retirement. On merits also the respondents denied various averments made by the appellant.

3. On the above pleadings, a preliminary issue was framed by the High Court - as to whether the petition lacked in material facts and did not disclose cause of action. By the impugned judgment, the High Court held that Section 83(1)(a) of the said Act mandates that an election petition shall contain a concise statement of material facts on which the petitioner relies; that in the present case, the appellant had failed to aver and plead two material facts viz. that his application for voluntary retirement was accepted by the appointing authority before the date of scrutiny and that his request for waiver of the notice period of three month was actually accepted. In the absence of disclosure of the above facts, the High Court dismissed he election petition.

4. Dr. Rajiv Dhavan, learned Senior Counsel appearing on behalf of the appellant submitted that in service jurisprudence, the effect of "resignation" and "voluntary retirement" is the same and there was no difference between the two. Learned Counsel for the appellant urged that in this case the Court was not concerned with the merits of the matter or the effect of the letter of voluntary retirement dated 13.3.2002. In this connection, learned Counsel submitted that the appellant had disclosed all the material facts concerning the present case viz. that he had voluntarily retired from the service; that he had relinquished the charge w.e.f. 13.3.2002 and that he had made a request to the appointing authority to waive the notice period and that his request was duly received by the appointing authority on 13.3.2002. In the circumstances, it was submitted that all material facts have been stated in the election petition. It was urged that acceptance by the Government of the application of the appellant seeking permission to retire and requesting for waiver of notice were hot material facts specifically required to be stated in the election petition and that they were circumstances which could have been examined by the Court at the time of trial. In this connection, it was further submitted that the retirement was complete, as far as the appellant was concerned, on 13.3.2002 and, therefore, the waiver of notice period did not affect the voluntary retirement submitted by the appellant. It was urged that granting of waiver or consequences of waiver were questions of law which were not required to be pleaded in the petition and which were to be proved at the time of the trial. It was also urged that similarly relinquishment of the post was a disputed fact which ought to have been decided at the stage of trial. For the above reasons, it was submitted that not the High Court had erred in holding that the appellant had failed to aver material facts in terms of Section 83(1)(a) of the said Act.

7. Section 83 deals with contents of petition. It states that an election petition shall contain a concise statement of material facts, on which the petitioner relies and shall state full particulars of any corrupt practices which the petitioner alleges and which shall be signed by him and verified in the manner laid down in the Code of Civil Procedure. In the case of Sopan Sukhdao Sable v. Asstt. Charity Commissioner , it has been held that Order 6 Rule 2(1) CPC deals with basic rule of pleadings and declares that the pleading has to state material facts and not the evidence; that there is a distinction between "material facts" and "particulars" and the words "material facts" show that th? facts necessary to formulate a complete cause of action must be stated. Omission of single material fact leads to an incomplete cause of action and consequently the plaint becomes bad. The distinction between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 : (1936) 1 All ER 287 (CA) in the following passage : All ER p. 294 The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology and in the new is liable to be 'struck out' under RSC Order 25 Rule 4 [see Philipps v. Philipps (1878) 4 QBD 127: 48 LJQB 135 : 39 LT 556 (CA)]; or 'a further and better statement of claim may be ordered under Rule 7.

The function of 'particulars' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiffs cause of action. The use of particular is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial.

9. As to what is the material fact has to be decided in the present case, in the context of the election petition under the said Act. An election petition is a matter of statutory right. In the petition, the key issue was whether the appellant held an office of profit on the date of scrutiny. For that purpose, the appellant ought to have stated that on 13.3.2002 he had requested for waiver of the notice period; that the appointing authority had received the notice on the specified date and that his request for waiver stood granted on the date of scrutiny and he ceased to be a government servant. These were the material facts which the appellant should a...pleaded so that the returned candidates would not be taken by surprise. They were material facts within his knowledge and ought to have been pleaded in the election petition. Lastly, even the letter of the appellant seeking the waiver of the notice period did not form part of the election petition. Hence, the High Court was right to dismissing the election petition for want of material facts.

118. Thus, the following propositions, amongst others, have been laid down in this decision:

1. There is a distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete case of action must be stated. Omission of single material fact leads to an incomplete cause of action, and consequently, the plaint becomes bad. (See paragraph 7 of the said SCC).

2. What is a material fact in a case is to be decided in the context of the Election Petition under the R.P. Act, 1951. (See paragraph 9 of the said SCC).

119. In Ramji Pandey v. Vikramaditya and Ors. (supra), the Petitioner filed an Election Petition challenging the election or the Respondent No. 1 to the State Legislative Assembly. One of the grounds for challenge was that there had been breach of the provisions of the R.P. Act, 1951/Conduct of Elections Rules, 1961, in the matter of counting of the Ballot Papers thereby affecting the result materially. The relief claimed was declaration that the election of the Respondent No. 1 was void and that the Petitioner was duly elected. The Petitioner also prayed for inspection, scrutiny and recounting of the entire set of used and rejected Ballot Papers and the counterfoils. This Court dismissed the Election Petition. It was held by this Court as follows (paragraphs 9,10, 26 and 27 of the said AWC):

9. Now, the law is not in doubt with respect to the essential requirements which the petitioner needs satisfy in order to secure inspection of the ballot papers or a recount thereof. The election of the returned candidate may be declared void if the Court is of opinion that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void (vide Section 100 (1)(d)(iii)) or by any non-compliance with the provisions of the Act or of any rules framed thereunder (vide Section 10D(1)(d)(iv)). The power of the Court trying an election petition to direct a recount or production of the ballot papers and permit their inspection by the parties flows from Sections 100(1)(d)(iii), 101, 102 of the Act and Rule 93 of the Conduct of Election Rules, 1961. The election petition which has for its basis these statutory provisions must contain, a concise statement of the material facts on which the petitioner relies and the petition must be signed by the petitioner and verified in the manner laid down for verification in the Civil P.C (vide Section 83(1)(a)/(c)). The word 'material' in this context denotes that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact, it has been held, leads to an incomplete cause of action and the statement of the claim becomes bad. The entire and complete cause of action must be in the petition in the shape of material facts: Samant N. Balakrishna v. George Fernandez . I am entirely leaving out of consideration for this purpose the particulars referred to in Section 83(1)(b) because that pertains to corrupt practice which is not in issue so far as the claim for inspection of the ballot papers or the recount thereof is concerned.

10. To justify an order for the inspection of ballot papers, one of the conditions essential to be fulfilled is "that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his cause."

"But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."

(Ram Sewak Yadav v. Hussain Kamil Kidwai ). In that case this Court had relied upon certain observations appearing in Bhim Sen v. Gopali (1961) 22 ELR 288 (SC). The Supreme Court distinguished Bhim Sen pointing out that that case does not lay down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection and seek to supply "the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at time of counting". It was added:

To support his claim for setting aside the election the petitioner has to the make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the fact of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers.

26. In my opinion, for the discussion made in the above, the averments thus made cannot be said to constitute an adequate statement of the material facts for purposes of Section 83(1 )(a) of the Act. Inspection or recount of the ballot papers cannot be directed by the Court on the mere expectation asserted in paragraph 41 of the petition that this will show "all the aforesaid error and irregularities committed during the counting of votes." That would be permuting the petitioner to indulge in a kind of fishing enquiry which the law does not permit. In the absence of requisite foundation laid for the claim, the petitioner may not have the recount or the inspection made because of there being a chance that he would thereby be in position to expose certain irregularities or errors in the process of counting.

27. For the discussion made in the above none of the two grounds raised in the election petition furnish the required cause of action to be proceeded with as contemplated under Order VII, Rule 11/Order VI, Rule 16, CM. P.C. read with Section 83(1)(a) of 'the Act and hence the petition is, in my view, liable to be dismissed.

120. This decision, thus, emphasizes that the word "material" in the context of Section 83(1)(a) of the R.P. Act, 1951 denotes that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of the claim becomes bad. The entire and complete cause of action must be in the Petition in the shape of material facts.

121. In Ram Autar Shastri v. Khurshid Alam Khan and Anr. (supra), the Petitioner challenged the election of the Respondent to the Lok Sabha, interalia, on the ground of corrupt practice. This Court dismissed the Election Petition keeping in view Order VII, Rule 11 of the Code of Civil Procedure read with Section 87 of the R.P. Act, 1951, It was held by this Court as under (paragraphs 4,5,6,7, and 33 of the said AIR):

4. It is well settled that to attract S.100(1)(b) the petitioner has necessarily to aver and prove in order to succeed that the corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. The element of consent is, however, dispensed with in Section 100(1)(d) which instead requires pleading and proof that the corrupt practice on question has materially affected' the result in relation to the returned candidate. Dealing with this aspect in Samant N. Balekrishna v. George Fernandes the Supreme Court thus explained the position at page 1210: The petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish what result of the election would have been without the corrupt practice. The expression "any other person" in this part will include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent. The low then is this: If the petitioner does not prove a corrupt practice by the candidate or his election agent or another person with the consent of the returned candidate or his election agent but relies on a corrupt practice committed by agent other than an election agent, he must additionally prove how the corrupt practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face this additional burden. The definition of agent in this context is to be taken from Section 123 (Explanation) where it is provided that an agent "includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate". In this explanation the mention of "an election agent" would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent on the part of the candidate.

5. Their Lordships in this case laid down moreover that Section 83 of the Act is mandatory. It requires first a concise statement of material facts and then requires the fullest possible particulars. The word 'Material' shows that the facts necessary to formulate a complete cause of action must be stated. "Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad". The material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. "In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. The power of amendment is given, it was observed, in respect of particulars but if a person has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice (vide Section 86(5)). One alleges the corrupt practice in the material facts and they must show a complete cause of action.

6. In view of the mandatory nature of Section 83(1)(b) where a concept practice is charged against the returned candidate (which is quasi-criminal in character) the election petitioner must set forth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is Manubhai Nandalal v. Popatlal Manilal . In Shri Udhav Singh v. Madhav Rao Scindia it was again emphasized that failure to plead even a single material fact leads to an incomplete cause of action, and incomplete allegation of such a charge are liable to be struck off under Order 6, Rule 16, CPC. If the petition is based solely on these allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action.

7. Upon the question arising recently in Azhar Hussain v. Rajiv Gandhi 1986 All LJ 625 (SC) it was reiterated that an election petition without the material facts relating to a corrupt practice is not an election petition at all. All the primary facts which must be proved by a party to establish a cause of action of his defence are material facts. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). The test propounded is "whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose he election petition on the basis of the facts pleaded in the petition."

33. In the result, for the discussion made above it follows that the petition does not disclose a cause of action such as may be pursued reasonably by the petitioner. The petition which was filed on the last date of limitation viz, Dec. 12, 1985, deserves thus to be dismissed keeping in view Order 7, Rule 11 of Civil P.C. read with Section 87 of the Representation of the People Act, 1951.

122. This decision, thus, emphasizes that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. All the facts which are essential to clothe the Petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the R.P. Act, 1951. The test is "whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the Election Petition on the basis of the facts pleaded in the Petition"

123. In Ram Singh v. Kazi Mohiuddin and Ors. AIR 1988 Allahabad 210 (supra), the Petitioner filed an Election Petition challenging the election of the Respondent No. 1 to the U.P. Legislative Assembly with the prayer that (1) the election of the Respondent No. 1 be declared void and be set aside; and (2) the Petitioner be declared elected from the constituency in question. The Election Petition was, interalia, based on the following grounds:

1. There was interchange of votes of the Petitioner from some other candidate.

2. Improper acceptance and rejection of Ballot Papers.

124. This Court dismissed the Election Petition. It was held as follows (paragraphs 11, 31, 38 and 39 of the said AIR):

11. The question is whether the material facts in respect of averment of interchange of votes have been disclosed. Let us see what are the material facts. Section 83(1) of the Act, 1951 states that an election petition shall contain a concise statement of material facts on which the petitioner relies. Sri K.N. Tripathi, learned Counsel for the petitioner submits' that this section is mandatory and that is the material facts are not stated, then the petition will have to be rejected for nondisclosure of cause of action. In Samant N. Balakrishna v. George Fernandes , the Supreme Court ruled that Section 83' is mandatory and requires the election petition to contain first concise statement if material facts and then requires the fullest possible particulars. The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. So the material facts are those which constitute a complete cause of action. It means that no petition can be said to have disclosed full cause of action, if it is bereft of the material facts. The material facts are necessary to present a composite picture of cause of action. The absence of material facts means the absence of cause of action and in the absence of cause of action, a petition, which is governed by the provisions of the Civil Procedure Code, is liable to be rejected under Order VII, Rule 11, C.P.C. By virtue of Section 87 of the Act, 1951, every election petition shall be tried by the High Court as nearly as may be, in accordance with the procedure, applicable under the Civil Procedure Code to the trial of suits. The Civil Procedure Code being applicable to the election petitions, they are liable to be dismissed if no cause of action is disclosed, under Order VII, Rule 11, C.P.C. It is from this point of view that disclosure of material facts i.e. the facts which are necessary to formulate a complete cause of action becomes necessary. In Jitendra Bahadur Singh v. Krishna Behari , it was held that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In ether words, they must be such facts as to afford a basis for the allegations, made in the petition. So the petition should not only contain the allegations, but complete facts supporting them and their basis must be stated.

31. The consensus of all the aforesaid decisions is that since an order for recount touches upon secrecy of the ballot, it should not be made lightly or as a matter of course. The petitioner must not only give the figures of the votes which according to him were improperly accepted or rejected, but the basis of the allegation must be disclosed, the serial number of ballot papers must be set our, names of the counting agent, number of counting tables, names of the counting supervisor, round number, details of objection, if any, made to the counting star, details of the notes, if any, kept by the counting agent, and the basis of information must be disclosed. All these constitute material facts and their disclosure is essential to give a composite picture of cause of action and if a material fact is missing there would be no adequate cause of action to maintain the petition and that would have to be rejected for want of cause of action under Order 7, Rule 11, C.P.C. besides other provisions. No such material facts have been disclosed in the instant case.

38. The result of the foregoing discussion is that the entire petition fails. inasmuch as, no cause of action has been disclosed within the meaning or Order 7, Rule 11 C.P.C.

39. Application of the respondent No. 1 made under Order 6, Rule 16, C.P.C. is, therefore, allowed and the election petition is dismissed under Order 7, Rule 11, C.P.C. read with Order 6, Rule 16, C.P.C. The respondent No. 1 shall get Rs. 500/- as costs from the petitioner. The balance of the security deposit shall be refunded to the petitioner on making a proper application.

125. This decision, thus, emphasizes that disclosure of all the material facts is essential to give a composite picture of cause of action and if a material fact is missing, there would be no adequate cause of action to maintain the Petition and that would have to be rejected for want of cause of action under Order VII, Rule 11, Code of Civil Procedure besides other provisions.

126. Thus, these decisions establish the mandatory nature of Section 83(1)(a) of the R.P. Act, 1951. Therefore, all the material facts on which the Petitioner relies in order to substantiate the allegations made i.e., the grounds taken by the Petitioner in the Election Petition, must be stated in the Election Petition. Pleading of the material facts is necessary to clothe the Petitioner with a complete cause of action. Failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the R.P. Act, 1951 and leads to an incomplete cause of action, and consequently, the statement of claim becomes bad, and the Election Petition will be dismissed in view of the provisions of Order VII, Rule 11 of the Code of Civil Procedure.

127. Now, suppose the material facts are contained in a document.

128. In such a case, question will arise as to how the material facts contained in the document will be made part of the concise statement of material facts in the Election Petition, as per the requirements of Section 83(1)(a) of the R.P. Act, 1951. Further questions will arise as to whether such a document should be filed with the Election Petition and as to whether copy of such document is required to be supplied to the Respondent alongwith copy of the Election Petition.

129. Connected with these questions is the doctrine/theory of integral part or the doctrine/theory of incorporation by reference.

130. Now, if the material facts are contained in a document then two courses may be adopted:

(1) The document is referred to in the Election Petition without reproducing its contents.

OR (2) The contents of the document are reproduced in the Election Petition itself.

131. Answers to various questions, noted above, will depend on as to which of the above two courses is adopted in a case.

132. In this connection, it will be relevant to refer to various JUDICIAL DECISIONS dealing with the questions mentioned above.

133. In Smt. Sahodrabai Rai v. Ram Singh Aharwar and Ors. (supra), the appellant challenged the election of the First Respondent to the Lok Sabha on various grounds.

134. The High Court of Madhya Pradesh at Jabalpur dismissed the Election Petition on the preliminary ground that a proper copy of the Election Petition was not served upon the answering parties.

135. The Supreme Court held that there was no breach of the provisions of the R.P. Act, 1951 in regard to the filing of the Election Petition or the service of the copies thereof, and accordingly, set aside the order of the High Court and remanded the case for trial.

136. In this case, one of the grounds taken by the appellant for challenging the election of the First Respondent was that the First Respondent indulged in the corrupt practice inasmuch as the First Respondent appealed to religion through a pamphlet marked Annexure 'A'.

137. The original pamphlet, which was in Hindi, was attached to the Election Petition and was marked Annexure TV. In the body of the Election Petition a translation in English of the Hindi pamphlet was incorporated.

138. Copy of the pamphlet was not annexed to the copy of the Election Petition served on the First Respondent. Therefore, the First Respondent raised an objection that the Election Petition was liable to be dismissed in accordance with the provisions of Section 86 of the R.P. Act, 1951.

139. The High Court held that the copies of the Election Petition served upon the Respondents were not accompanied by the pamphlet which was an Annexure to the Election Petition, therefore, the Election Petition was liable to be dismissed under section 86 of the R.P. Act, 1951, and the same was accordingly dismissed with costs.

140. Their Lordships of the Supreme Court observed thus (paragraph 12 of the said AIR)

12. We may now see whether the election law provides anything different. The only provision to which our attention has been drawn is Sub-section (3) of Section 81 and Sub-section (2) of Section 83. The First provides that every election petition shall be accompanied by as many copies thereof as there arc respondents mentioned in the petition and that every such copy shall be an authenticated true copy. The words used here are only "the election petition". There is no mention of any document accompanying the election petition. If the matter stood with only this sub-section there would be no doubt that what was intended to be served is only a copy of the election petition proper. Assistance is however taken from the provisions of Sub-section (2) of Section 83 which provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is con tented that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of Section 86(1) is made out In our opinion, that is too strict a reading of the provisions. We have already pointed out that Section 81(3) speaks only of the election petition. Pausing here, we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original. Even if this be not the case, we are quite clear that Sub-section (2) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and In proof thereof. The pamphlet therefore, must be treated as a document and not as a part of the election petition insofar as averments are concerned. When the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be thought that she had not produced the document in time. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. It would be stretching the words of Sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. In this particular case we do not think that the pamphlet could be so treated. We are, therefore, of the opinion that whether or not Section 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regard to the filing of the election petition or the service of the copies thereof and the order under appeal was therefore erroneous.

141. Following propositions, amongst others, have been laid down by the Supreme Court in this decision:

(1) Since the Election Petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the Petition and, therefore, the pamphlet was served upon the Respondents although in a translation and not in original.

Hence, if the contents of a document are reproduced in the Election Petition then contents of the document become a part of the Election Petition, and, therefore, service of the copy of the Election Petition amounts to service of copy of the document also on the Respondents. In such a case, copy of the document is not required to be served on the Respondents.

(2) Sub-section (2) of Section 83 of the R.P. Act, 1951 has reference not to a document which is produced as evidence of the averments of the Election Petition but to averments of the Election Petition which are put in not in the Election Petition but in the accompanying Schedules or Annexures. In such a case, the law requires that even though the Schedules or Annexures are outside the Election Petition, they must be signed and verified whereupon such Annexures or Schedules are treated as integrated with the Election Petition, and copies of these must be served on the Respondents if the requirement regarding service of the Election Petition is to be wholly complied with.

Hence, if the material facts are contained in a document and the contents of the document are not included in the Election Petition, and the document is filed as a Schedule or Annexure to the Election Petition, then such a Schedule or Annexure must be signed and verified, and copy thereof must be served on the Respondents so as to meet the requirements of Section 81(3) of the R.P. Act, 1951.

(3) As the contents of the pamphlet were reproduced in the Election Petition itself, though in translated form, pamphlet filed with the Election Petition, was merely as evidence of the averments made in the Election Petition. Therefore, copy of the pamphlet was not required to be supplied to the Respondents.

142. Hence, if a document is produced as evidence of the averments made in the Election Petition, then such a document is not required to be signed and verified as per the requirements of Sub-section (2) of Section 83 of the R.P. Act, 1951. Such a document is not an integral part of the averments made in the Election Petition but is only evidence of those averments. Copy of such a document is not required to be served on the Respondents alongwith copy of the Election Petition as per the requirements of Section 81(3) of the R.P. Act, 1951.

143. In Azhar Hussain v. Rajiv Gandhi (supra), the question involved was regarding a poster and newspaper cuttings. The alleged corrupt practice, as incorporated in the Election Petition, read as under (as quoted in paragraph 26 of the said AIR ):

In line with the respondent's speeches, his workers with the knowledge and consent of the respondent and other agents of the respondent entrusted with the task of conducting the election campaign caused a poster of Hindi and Urdu to be affixed in all prominent places throughout the constituency. The said poster was in fact a page of the Blitz newspaper of 30-6-84 called the Id Special. The Id that year was on 1st July 1984. The heading of the said poster which was underlined in red alleged conspiracy between the leader of the petitioner party and Bhindaranwate. Photographs of Mrs. Maneka Gandhi and Bhindaranwale appeared separately on left and right hand corners of the said advertisement. A literal English translation of the poster is given below:- A copy of the said poster will be filed as Exhibit B. The poster also purported to carry a fascimile copy of a letter dated the 10th September, 1983, purporting to be addressed by Shri Kalpnath Sonkar, a member of the Rashtriya Sanjay Manch, to Shri Bhindaranwale. The letter is a forgery and that it was forged was publicly stated by alleged author of the alleged letter and a criminal case is pending in the matter thereof. The letter was fabricated expressly for the express purpose of showing:

(a) that Mrs. Maneka Gandhi was in secret conspiracy with Bhindaranwale.

(b) that Mrs. Maneka Gandhi illegally supplied arms to Bhindaranwale and other secessionists and terrorists.

(c) that Maneka Gandhi was in sympathy with the creation of Khalistan and the division of the country and the use of violence to achieve that end.

The said allegations are totally false and fabricated. The respondent knew them to be false. He did not and could not believe them to be true. That complaints were made to the District authorities about the obnoxious wall paintings and posters to which the attention of the respondent had been drawn. The said authorities while clearly admitting the R.S.M. election agents and workers as well as to the press correspondents that they were objectionable took no steps to remove or obliterate them. Prominent newspapers and press correspondents continued to draw attention to those slogans and posters but the respondent or his workers took no steps whatsoever to stop their exhibition, circulation and use. The respondent condoned and sanctioned the exhibition and circulation of this poster. He did nothing to stop the use thereof by his workers. The wall painting mentioned above and this poster were paid out of Congress (I) Party's. These were therefore, his own expenses sanctioned by himself. Cutting of some of the newspaper reports will be filed as Exhibit C.

144. In the Election Petition, therefore, it was mentioned that a copy of the poster would be subsequently filed, and the cuttings of some newspaper reports would also be filed later on.

145. When objection was raised by the Respondent before the High Court that copies of the documents were not supplied to the Respondent alongwith copy of the Election Petition, the Petitioner sought an amendment in the Election Petition to delete the above averments regarding filing of the above documents subsequently.

146. The High Court rejected the prayer for amendment in regard to the posted, but granted the prayer in respect of the newspaper cuttings.

147. The High Court took the view that the poster was claimed to be an integral part of the Election Petition and since it was not filed (much less its copy furnished to the Respondent), the pleading suffered from infirmity and non-compliance with Section 83(1) read with Section 86(1) of the R.P. Act, 1951.

148. The Supreme Court noticed in detail the view expressed by the High Court and, thereafter, opined that the High Court was fully justified in taking the view th at it had taken.

149. Their Lordships of the Supreme Court observed as under (paragraphs 27 and 28 of the said AIR):

27. The High Court held:

...It appears to me that if an averment of fact is an essential part of the pleading, it must be considered to be an integral part of the petition. If such an averment is not actually put in the election petition, the petition suffers from the lack of material facts and, therefore, the statement of cause of action would be incomplete. If it is stated in the election petition, either in the body of the petition Itself or by way of annexure, but its copy is not furnished to the respondent, the election petition would be hit by the mischief of Section 81(3) read with Section 86(1) of the Act. In my opinion, the reference to the poster and its proposed translation in the election petition, which was never incorporated into it, are material facts under Section 83(1)(a) of the Act and their absence cannot now be made good by means of an amendment. The pleading as it stands, and even if it were permitted to be amended would suffer from lack of cause of action on this material fad: and, therefore, is liable to be struck out. The newspaper cutting are not used by the petition as containing fact, but only as evidence to the extent amendment is allowed.

Whether the High Court was right in taking the aforesaid view?

28. It will be noticed that in the election petition it has been mentioned that a copy of the poster would be subsequently filed, and the cuttings of some newspaper reports would also be filed later on. The election petitioner sought an amendment to delete the averments on both these aspects. The High Court rejected the prayer in regard to poster (Ex.B), but granted the prayer in respect of the cuttings. The High Court has taken the view that the poster was claimed to be an integral part of the election petition and since it was not filed (much less its copy furnished to the respondent) the pleading suffered from infirmity and non-compliance with Section 83(1) read with Section 86(1) of the Act. Non-filing of the poster is fatal to the election petition as in the absence thereof the petition suffers from lack of material facts and therefore the statement of cause of action would be incomplete. Nothing turns on the fact whether or not the words "a copy of the said poster would be filed as Exhibit B" are allowed to be retained in the election petition or are deleted as prayed for by the appellant The fact remains that no copy of the poster was produced. It must also be realized that the election petitioner did not seek to produce the copy of the poster, but only wanted a reference to it deleted so that it cannot be said that the accompaniments were not produced alongwith the election petition. The fact remains that without the production of the poster, the cause of action would not be complete and it would be fatal to the election petition inasmuch as the material facts and particulars would be missing. So also it could not enable the respondent to meet the case. Apart from that the most important aspect of the matter is that in the absence of the names of the respondents workers, or material facts spelling out the knowledge and consent of the respondent or his election agent, the cause of action would be incomplete. So much so that the principle enunciated by this Court in Nihal Singh's case, (supra) would be attracted. And the Court would not even have permitted the election petitioner to lead evidence on this point. The High Court was therefore fully justified in taking the view that it has taken.

150. Thus, this decision, interalia, lays down the following propositions:

(1) If a document contains material facts, and the document is referred to in the Election Petition but is not filed with the Election Petition, then the Election Petition suffers from lack of material facts, and, therefore, the statement of cause of action would be incomplete, and the same would be fatal to the Election Petition.

(2) If a document contains material facts and is referred to in the Election Petition, and copy of such a document is not furnished to the Respondent, then the Election Petition would be hit by the mischief of Section 81(3) read with Section 86(1) of the R.P. Act, 1951, as the Respondent would not be able to meet the case of the Petitioner.

(3) If in the absence of a document, the Election Petition would suffer from lack of material facts and particulars, and the cause of action would be incomplete, then such a document must be filed with the Election Petition, and its copy must be supplied to the Respondent alongwith copy of the Election Petition so as to enable the Respondent to meet the case. In case, such a document is not filed with the Election Petition, and its copy is not supplied to the Respondent alongwith copy of the Election Petition, the same is fatal to the Election Petition.

(4) If a document is only a piece of evidence, then such a document is not required to be filed with the Election Petition, and its copy is not required to be served on the Respondent alongwith copy of the Election Petition.

151. In M. Karunanidhi v. Dr. H.V. Hande and Ors. (supra), the appellant (M. Karunanidhi) was declared elected to the State Legislative Assembly of Tamilnadu in the general election held in May, 1980 defeating the respondent (Dr. H.V. Hande). The respondent (Dr. H.V. Hande) filed an Election Petition under Section 81 read with Section 100 of the R.P Act, 1951 challenging the election of the appellant on various grounds.

152. It was, inter-alia, pleaded by the respondent in paragraph 18 of the Election Petition that the appellant was guilty of corrupt practice under Sub-section (6) of Section 123 of the R.P. Act, 1951 by incurring or authorizing expenditure in contravention of Section 77. It was alleged that the appellant had failed to disclose certain items of expenditure in his statement of election expenses filed by him in connection with the election as detailed in Sub-paragraphs (a) to (e) of paragraph 8 of the Election Petition. The allegation in paragraph 18 (b) related to an expenditure of about Rs. 50,000/- in erecting fancy banners throughout the constituency and it was alleged that there were such fancy banners about 50 in number, the cost of each banner being not less than Rs. 1000/-. It was averred in paragraph 18(b) that a photograph of one such banner was filed alongwith the Election Petition. Accordingly, the respondent filed with the Election Petition a photograph of one such banner. However, a copy of the photograph was not annexed to the copy of the Election Petition furnished to the appellant.

153. The appellant filed his Written Statement. One of the preliminary objections raised by the appellant was that the Election Petition was liable to be dismissed in limine under Sub-section (1) of Section 86 of the R.P. Act, 1951 for non-compliance with the requirements of Sub-section (3) of Section 81 of the said Act as the copy of the Election Petition served on the appellant was not accompanied by a copy of the photograph of the alleged fancy banner annexed to the Election Petition, as allege in paragraph 18(b) of the Election Petition.

154. The Madras High Court overruled the above preliminary objection. Relying upon the decision of the Supreme Court in Smt. Sahodrabai Rai v. Ram Singh Aharwar and Ors. (supra), the Madras High Court held that the photograph was merely a document filed alongwith the Election Petition as a piece of evidence in proof of the allegation contained in paragraph 18(b) of the Election Petition, and, therefore, there was no need for the respondent to supply the appellant with a copy of the photograph alongwith copy of the Election Petition.

155. The Madras High Court was of the view that the photograph of the farcy banner adverted to in paragraph 18 (b) of the Election Petition could not be treated to be an integral part of the Election Petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant, and, therefore, failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of Sub-section (3) of Section 81 of the R.P. Act, 1951.

156. The Supreme Court reversed the judgment of the High Court in regard to the above preliminary objection. The Supreme Court held that the failure to supply a copy of the photograph to the appellant alongwith copy of the Election Petition amounted to non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951 inasmuch as the photograph of the fancy banner was an integral part of the Election Petition, and, therefore, the Election Petition must be dismissed summarily under Sub-section (1) of Section 86 of the said Act.

157. Their Lordships of the Supreme Court opined as under (paragraphs 28,29,39 and 41 of the said SCC):

28. To bring out the points in controversy, the averments in paragraph 18(b) may be set out.

18. The Petitioner submits that the first Respondent is guilty of the corrupt practice under Section 123(6) of the Act by incurring and authorizing expenditure in excess of the limit of Rs. 35,000 fixed under Section 77 of the Act. The first Respondent has submitted a statement of election expenses disclosing a total of Rs. 10,125.75 only. A true photostat copy of the Return filed by him is filed herewith as Annexure V. He has, however, failed to disclose the following amount incurred by him in connection with the election, between the date of his nomination and th ? date of the declaration of the result thereof.

(b) The first Respondent erected fancy banners throughout the constituency and the number of such banners is about 50. A photograph of one such banner is filed herewith. The cost of each such banner will be not less than Rs. 1000. The expenditure involved in erecting these fifty banners is about Rs. 50,000. It is submitted that the first Respondent has incurred the above said expenditure which added to the amount disclosed in the Return of Election Expenses exceeds th? amount fixed under Section 77(3) of the Act thus amounting to a corrupt practice under Section 123(6) of the Act.

Admittedly, a copy of the photograph was not furnished to the appellant alongwith a copy of the election petition. The averment contained in paragraph 18(b) would be Incomplete without a copy of the photograph being supplied with a copy of the election petition. The averment therein is that the appellant committed a corrupt practice under Sub-section (6) of Section 123 of the Act by incurring or authorizing expenditure in contravention of Section 77. It is alleged that the appellant had set up fancy banners throughout the constituency and the number of such banners was about 50, the cost of each such banner being not less than Rs. 1000 and therefore the expenditure involved in erecting these 50 banners was not less than Rs. 50,000, but that the appellant had not disclosed the amount in the return of the election expenses and thus committed a corrupt practice under Sub-section (6) of Section 123 of the Act.

29. It is not possible to conceive of the dimension of the large fancy banner unless one has a look at the photograph. The photograph filed with the election petition gives a visual description of the fancy banner, the cost of which at a mere look would show that the expenditure in setting up each such banner would be Rs. 1000 or more. The photograph depicts two election banners. One of them is a huge fancy banner or a hoarding on the left side of the road and the other on the right is a smaller election banner. The fancy banner depicts two groups, and the appellant is present in both. On the left hand top there is a large picture of the appellant with the late Sri Annadurai and at the right hand below there is a smaller picture of the appellant with Smt. Indira Gandhi. The fancy banner shown in the photograph contains an election slogan in Tamil appealing to the electorate to vote for the appellant. This has been translated for us into English and it reads: To

The Electorate in Anna Nagar Constituency

I request you to mark on the Rising Sun and ensure success to enable service to you.

Always your affectionate, Kalaignar M. Karunanidhi

Polling date

May 31, 1980

It is true that paragraph 18(b) must be read in conjunction with the opening part of paragraph 18. Though the words "in connection with" do not appear in paragraph 18(b), these words are there in paragraph 18 and therefore it must be taken that the fancy banners were set up in connection with the election. Nevertheless, without being furnished with a copy of the photograph, the averments in paragraph 18(b) would be incomplete as regards the allegation of the corrupt practice committed by the appellant.

39. The test to be applied in determining whether the photograph referred to in paragraph 18(b) is an integral part of the election petition or was merely a piece of evidence in proof of the allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18(b), it is unnecessary for us to deal with the submission based on Order 7, Rule 14 of the Code of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai case, of the report. The Court observed that under Order 7, Rule 14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them, and that it would be too strict a reading of the provisions of Sub-section (3) of Section 81 and Sub-section (2) of Section 83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai case, was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed alongwith the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of Sub-section (3) of Section 81 and Sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper.

41. It is obvious that the photograph was a part of the averment contained in paragraph 18(b). In the absence of the photograph the averment contained in paragraph 18(6) would be incomplete. The photograph referred to in paragraph 18(b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of Sub-section (3) of Section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao case, , the Court held that if there is a total and complete non-compliance with the provisions of Sub-section (3) of Section 81, the election petition could not be treated an "election petition presented in accordance with the provisions of this Part" within the meaning of Section 80 of the Act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan.

158. Thus, the following propositions, amongst others, have been laid down in the above decision:

(1) If a document is an integral part of the Election Petition, and is not merely evidence of the averments made in the Election Petition, then copy of such a document must be supplied to the respondent in the Election Petition alongwith copy of the Election Petition so as to comply with the requirements of Sub-section (3) of Section 81 of the R.P. Act, 1951.

(2) If the averments made in the Election Petition would be incomplete in tie absence of a document, then the document is an integral part of the Election Petition, and is not merely evidence of the averments made in the Election Petition. Therefore, the test to decide as to whether a document is an integral part of the Election Petition or not, is : whether the averments made in the Election Petition would be incomplete in the absence of such document.

159. In A. Madan Mohan v. Kalavakunta Chandrasekhara (supra), the Respondent filed an Election Petition in the Andhra Pradesh High Court challenging the election of the Petitioner to the Andhra Pradesh Assembly alleging certain corrupt practices. The Petitioner filed an Application for dismissing the Election Petition of the Respondent in limine under Section 86 of the R.P. Act, 1951 on the ground that copies of the documents and schedules, which formed an integral part of the Election Petition, were not supplied to the Petitioner which amounted to a clear breach of the mandatory provisions contained in Section 81(3) of the R.P. Act, 1951.

160. The High Court dismissed the Application filed by the Petitioner for throwing out the Election Petition of the Respondent in limine.

161. Thereupon, a Petition for Special Leave was filed before the Supreme Court The Supreme Court dismissed the Special Leave Petition and upheld the view taken by the High Court.

162. Accepting the distinction between the documents or the schedules which form an integral part of the Election Petition and the documents or the schedules which are filed merely as evidence of the averments made in the Election Petition and are not an integral part of the Election Petition, the Supreme Court concluded that the documents or the schedules in question did not form an integral part of the Election Petition. Therefore, non-supply of copies of such documents or schedules did not amount to breach of the requirements of Section 81(3) of the R.P. Act, 1951, and, therefore, the Election Petition could not be dismissed in limine under Section 86 of the said Act.

163. Their Lordships or the Supreme Court observed as follows (paragraphs 10 to 15 of the said AIR):

10. The counsel for the petitioner vehemently contended that as the schedules and other documents formed an integral part of the petition, the same should have been served on the petitioner (respondent in the High Court) before it could be said that the provisions of Sections 81 and 82 of the Act had been complied with. It was further argued that in the absence of such a compliance, the petition was liable to be rejected in limine under Section 86 of the Act. We are, however, unable to agree with the contention which does not at all flow from the plain and simple requirements of Sections 81 and 82. As indicated above, all that was necessary was done in this case and there was no requirement that the documents or the schedules should also have been served on the petitioner because if they were filed in the Court it was always open to the petitioner to inspect them and find out the allegations made in the petition. We are unable to hold that the documents or the schedules formed an integral part of the petition.

11. An identical question came up for consideration before this Court in Sahodrabai's case AIR 1968 SC 1079 (supra) where while repelling a similar argument the following observations were made (para 12):

The only provision to which our attention has been drawn is Sub-section (3) of Section 81 and Sub-section (2) of Section 83. The first provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and that every such copy shall be an authenticated true copy. The words used here are only "the election petition". There is no mention of any document accompanying the election petition.... Assistance is however taken from the provisions of Sub-section (2) of Section 83 which provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of Section 86(1) is made out. In our opinion, this is too strict a reading of the provisions. We have already pointed out that Section 81 (3) speaks only of the election petition. Even if this be not the case, we are quite dear that Sub-section (2) of Section 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.

...

But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of those averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments are concerned.... It would be stretching the words of Sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper.

12. It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above, this Court clearly held that if the arguments of the appellant (in that case) were to be accepted, it would be stretching and straining the language of Sections 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once for all.

13. The learned Counsel relied on a later decision of this Court in the case of M. Karunanidhi v. H.V. Hande where a Division Bench while considering a similar question made the following observations: The preliminary issue and the appeal turn on a short point of construction. The question that arises is whether the words "copies thereof in Sub-section (3) of Section 81 comprehend the election petition proper or do they also include a schedule or annexure in terms of Sub-section (2) of Section 83 or merely a document only in proof of the allegations in paragraph 18(b) must turn on a construction of Sub-section (3) of Section 81 read with Sub-section (2) of Section 83. It now appears to be well settled by Sahodrabai's case Sub-section (2) of Section 83 applies only to a schedule or annexure which is an integral part of the election petition and not to a document which is produced as evidence of the averments of the election petition.

14. This decision in no way departs from the ratio laid down in Sahodrabai's case (supra). The aforesaid case, however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, therefore, manifest that the facts of the case cited above are clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhi's case (supra) has noticed the previous decision and has fully endorsed the same.

15. For these reasons, therefore, we are clearly of the opinion that the view taken by the High Court was correct and no interference is called for with the judgment of the High Court. As the matter was clearly concluded by authorities of this Court we did not think it necessary to grant special leave and after hearing the parties at length we dispose of and dismiss the petition in terms of the aforesaid observations.

164. Thus, this decision, interalia, lays down the following propositions:

(1) Wherever a statute contains stringent provisions, they must be literally and strictly construed so as to promote the object of the Act. (See paragraph 12 of the said AIR).

(2) Sub-section (2) of Section 83 of the R.P. Act, 1951 applies only to such schedules or annexures which are integral part of the Election Petition and not to documents which are produced as evidence of the averments made in the Election Petition. For compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951, copies of the schedules or annexures, which are integral part of the Election Petition in terms of Sub-section (2) of Section 83 of the said Act, are to be supplied to the Respondents alongwith copies of the Section Petition. Copies of the documents which are filed with the Election Petition merely as evidence of the averments made in the Election Petition, are not required to be supplied to the Respondents in terms of Sub-section (3) of Section 81 of the R.P. Act, 1951. (See paragraphs 10 to 14 of the said AIR).

165. In U.S. Sasidharan v. K. Karunakaran and Anr. 1989 (4) SCC 482 : AIR 1990 SC 924 (supra), which has been heavily relied upon by the learned Counsel for the Respondent, the appellant, a voter, challenged the election of the First Respondent to the Kerala Legislative Assembly on the ground of various corrupt practices alleged to have been committed by the First Respondent.

166. Giving particulars of the alleged corrupt practices in various paragraphs of the Election Petition, the appellant referred to a notice, a photograph and a video cassette. Copies of the said notice, photograph and video cassette were not supplied to the First Respondent alongwith the copy of the Election Petition.

167. The High Court took the view that the said documents formed integral part of the Election Petition, and, therefore, it was necessary to serve copies of the same on the First Respondent. Non-furnishing to the First Respondent copies of the said documents alongwith a copy of the Election Petition was non-compliance with Section 81(3) of the R.P. Act, 1951, and, as such, the Section Petition was liable to be dismissed under Section 86(1) of the said Act In view of the said conclusions, the High Court dismissed the Election Petition, whereupon an Appeal was filed before the Supreme Court.

168. The Supreme Court dismissed the said Appeal. As regards the copies of the notice and the photograph, the Supreme Court held that the High Court was not justified in holding that these should have also been furnished to the First Respondent alongwith the copy of the Election Petition. However, as regards copy of the video cassette, it was held by the Supreme Court that the video cassette formed an integral part of the Election Petition, and, therefore, the copy of the Election Petition which was served on the First Respondent without a copy of the video cassette was not a true copy of the Election Petition within the meaning of Section 81(3) of the R.P. Act, 1951, and as such, the Election Petition was liable to be dismissed under Section 86(1) of the said Act.

169. It may be mentioned that the video cassette in question was submitted by the appellant in a sealed cover with an Application praying for keeping the video cassette in the sealed cover till the stage of examination of witnesses. (See paragraphs 5 and 18 of the said AIR).

170. It was laid down by their Lordships of the Supreme Court as follows (paragraphs 5, 6, 7, 9, 10, 11, 12, 14 to 34 of the said AIR):

5. In paragraph 5(xi) of the election petition, the appellant interal a stated as follows:

5(xi) ...Besides at the instigation of the first respondent a video cassette called "Malayude Purogathi" has been used in the constituency. The persons who speak are one Shri Jose P. George, Government Pleader, Kerala High Court, 2. Shri Thomas Thottappally, Veterinary Doctor, Veterinary Polyclinic, Valiyaparambu. This is also a corrupt practice. The video cassette is produced herewith in a sealed cover.

6. The first respondent opposed the election petition by filing a written statement denying the allegations of corrupt practices. It was submitted by him that as the copies of the said notice, photograph and video cassette were not supplied to the first respondent alongwith the copy of the election petition, the election petition was liable to be dismissed in limine under section 86(1) for non-compliance with section 81(3) of the Act.

7. The High Court came to the findings that the allegations in the election petition would really show that the said documents formed integral part of the election petition and, therefore, it was really necessary to serve copies of the same on the first respondent and overruled the contention of the appellant that as he had filed the documents and produced the video cassette in Court, the first respondent could very well take copies of the same and defend his case. The High Court took the view that non-furnishing to the first respondent copies of the documents alongwith a copy of the election petition was non-compliance with section 81(3) and, as such, the election petition was liable to be dismissed under section 86(1) of the Act. In that view of the matter, the High Court dismissed the election petition. Hence this appeal.

9. We are concerned with section 81(3) which enjoins that 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. Section 81(3), however does not provide for giving of copies of the documents either referred to in the election petition or filed in the proceedings. We may now refer to section 86(1) or the Act which reads as follows: 86(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.

10. Section 86(1), therefore, is a mandate on the court to dismiss an election petition if there be a non-compliance with the provision of section 81(3). In other words, both section 81(3) and section 86(1) are mandatory in nature and if there be any non-compliance with the mandatory provision of section 81(3), the court will be bound to dismiss the election petition.

11. Before considering whether a copy of the document referred to in the election petition or filed in the proceedings should be furnished to the elected candidate, whose election is under challenge, along with a copy of the election petition, we may refer to section 83 of the Act providing as to the contents of an election petition. Section 83 provides as follows:

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 and place 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, 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.

12. It is apparent from Clauses (a) and (b) of Section 83 that an election petition shall contain a concise statement of the material facts and also set forth full particulars of any corrupt practice. These two requirements are also mandatory in nature. So, whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner.

14. It has been already noticed that the High Court dismissed the election petition as the appellant has not furnished to the first respondent copies of the notice, photograph and the video cassette referred to above alongwith a copy of the election petition. So far as the copies of the notice and the photograph are concerned, we do not think that the High Court was justified in holding that these should have also been furnished to the first respondent alongwith the copy of the election petition. Dr. Chitale, learned Counsel appearing on behalf of the first respondent, also has not urged that the copies of these two documents should have been served upon the first respondent What has, however, been vehemently urged on behalf of the first respondent is that he should have been served along with the election petition a copy of the video cassette. This contention will be considered presently.

15. We have already referred to section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides, forgiving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent alongwith a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86(1) for non-compliance with section 81(3).

16. On the other hand, if the contents of the document in question a v pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document docs not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent alongwith a copy of the election petition.

17. There may be another situation when a copy of the document need not be served on the respondent alongwith the election petition. When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent. What Section 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate. When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must be served on the respondents.

18. Keeping in view the above principles, let us consider whether the video cassette, as mentioned in paragraph 5(xi) in the election petition, forms an integral part of the election petition. It is not disputed that a copy of the video cassette was not served on the first respondent alongwith the copy of the election petition. Indeed, the same was submitted by the appellant in a sealed cover with an application praying for keeping the video cassette in the seated cover till the stage of examination of witnesses. It is, therefore, apparent that not only the copy of the video cassette was not served on the first respondent, but also the appellant had no Intention of serving a copy of the same on the first respondent

19. It is urged by Mr. Poti, learned Counsel appearing on behalf of the appellant, that the video cassette is only an evidence of the fact stated in paragraph 5(xi) of the election petition, relevant portion of which has been extracted above. It has been alleged in paragraph 5(xi) that at the instigation of the first respondent, a video cassette called "Malayude Purogathi" has been used in the constituency. The expression "Malayude Purogathi" means progress of Mala, which is the constituency in question. Further, it has been alleged that the persons whose speeches have been recorded in the video cassette regarding progress of Mala are two Government officers named in paragraph 5(xi), and that the cassette has been used in the constituency at the instigation of the first respondent. This has been averred as a corrupt practice. It is also mentioned in the same paragraph that the video cassette is produced with the election petition in a sealed cover. It is not disputed that by corrupt practice as referred to in paragraph 5(xi) of the election petition, the appellant is referring to the corrupt practice within the meaning of Section 123(7) of the Act. Section 123 enumerates the different corrupt practices for the purposes of the Act. One of the corrupt practices, as contained in Section 123(7), is the obtaining or procuring or abetting or attempting to obtain or procure by a Candidate or his agent, or by any other person, with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidates election, from any person in the service of the Government and belonging to any of the classes as mentioned in Clauses (a) to (g) of the section. The significant ingredient of corrupt practice, as mentioned in Section 123(7), is that the assistance which is obtained or procured from a Government it-servant of the classes mentioned in classes (a) to (g) must be for the furtherance if the prospect of the election of the candidate who or on whose behalf such assistance has been obtained or procured. It is not disputed that the two Government servants mentioned in paragraph 5(xi) of the election petition whose speeches have been recorded in the video cassette, are Government servants within the meaning of Section 123(7).

20. The speeches of the two Government servants relating to "Malayude Purogathi" that is, the progress of Mala, simpliciter will not constitute a corrupt practice within the meaning of Section 123(7). In order to be a corrupt practice within the meaning of Section 123(7), the speeches of the said Government servants as recorded in the video cassette and alleged to have been used in the constituency at the instigation of the first respondent, must be with a view to obtaining or procuring or abetting or attempting to obtain or procure the assistance for the furtherance of the prospects of the first respondents election. It is urged by the learned Counsel for the appellant that as no such allegation has been made in paragraph 5(xi), the allegations in that paragraph do not constitute a corrupt practice within the meaning of Section 123(7) and, accordingly, the video cassette does not form an integral part of that paragraph.

21. We are unable to accept the contention. It is true that there is no allegation in paragraph 5(xi) that the video cassette was used by the first respondent for the purpose of any assistance for the furtherance of the prospects of his election. But, in our opinion, it is apparent that such an allegation is implied in the paragraph. After alleging that the video cassette was used in the constituency at the instigation of the first respondent, it is alleged that the same constituted ? corrupt practice which points to the only fact that the video cassette containing the speeches of the Government servants was used for the purpose of some assistance for the furtherance of the prospects of the election of the first respondent. It is implied that the video cassette is referred to in paragraph 5(xi) in regard to the alleged assistance for the furtherance of the prospects of the election of the first respondent and, accordingly, the contents of the cassette are incorporated in that paragraph by reference. In other words, the cassette forms an integral part of paragraph 5(xi). In this connection, we may refer to Item No. 1 of the List of Documents which reads as follows:

1. Video Cassette by Kala Audio & Video, Kallettumkara, Trichur District titled "Malayude Purogathi" prepared at the instance of the first respondent for election propaganda, as stated in paragraph 5(xi) of the election petition.

22. It is clear from Item No. 1 of the List of Documents that it is the specific case of the appellant that the video cassette was prepared at the instance of the first respondent for election propaganda, as stated in paragraph 5(xi) of the election petition. Whether it was so stated in Item No. 1 of the List of Documents or not it is, as stated already, apparent on the face of the allegation in paragraph 5(xi) that it was used by the first respondent by way of assistance in furtherance of the prospects of his election and so the video cassette formed an integral part of paragraph 5(xi). Unless a copy of the video cassette was given to the first respondent, he would not know how the speeches of the said Government servants could assist the furtherance of the prospects of his election and would not be in a position to deal with the allegations made in paragraph 5(xi). The copy of the election petition which was served on the first respondent without a copy of the video cassette was not, therefore, a true copy of the election petition within the meaning of Section 81(3) of the Act.

23. Much reliance has been placed on behalf of the appellant on a decision of this Court in Sahodrabai Rat v. Ram Singh Aharwar . In that case, the appellant filed an election petition challenging the election of the first respondent on four grounds, one of which was corrupt practice inasmuch as the first respondent had appealed to religion through a pamphlet marked Annexure A. In the body of the election petition a translation in English of the Hindi Pamphlet was incorporated. The original pamphlet was attached to the election petition and was marked Annexure A. The election petitioner, thereafter, stated in the petition that the pamphlet formed part of the petition. The first respondent raised an objection that a copy of the pamphlet had not been annexed to the copy of the election petition served on him and, therefore, the election petition was liable to be dismissed under section 86 of the Act. The High Court accepted the objection and dismissed the election petition. On an appeal to this Court by the appellant, this Court set aside the judgment of the High Court holding that the pamphlet must be treated as a document and not as a part of the election petition in so far as the averments were concerned.

24. The decision in Sahodrabai's case does not, in our opinion, lend any assistance to the contention of the appellant that the video cassette is only evidence and does not form part of the election petition. In that case, the election petition reproduced the whole of the pamphlet and, accordingly, it was held that it was only an evidence and not a part of the election petition. What has been stressed in that case is that each and every document does not form part of the election petition. Moreover, the Court was considering the scope of section 83(2) of the Act before it was amended. We are unable to accept the contention made on behalf of the appellant that a document, in no circumstances, can form an integral part of the election petition. As has been noticed already, the pamphlet in that case was fully reproduced in the election petition and, therefore, it was merely an evidence and did not form a part of the election petition.

25. In Thakur Virendra Singh v. Vimal Kumar , the question was whether a leaflet, a copy of which was Annexure A to the election petition and referred to in paragraph 13 thereof, constituted a part of the election petition and, accordingly should have been served on the elected candidate. This Court overruled the contention of the elected candidate that the petition was liable to be dismissed as the copy of the petition meant to be served on the appellant was not accompanied by a copy of Annexure A on the ground that the allegation of corrupt practice and particulars thereof, as given in paragraph 13 of the election petition, were sufficiently clear and precise. 777/5 decision is, therefore, of no help to the contention of the appellant trial the video cassette is not a part of the election petition.

26. The most important case for our purpose is the decision of this Court in M. Karunanidhi v. H.V. Hande . In that case, in paragraph 18(b) of the election petition it was alleged as follows: 18(b). The first Respondent erected fancy banners throughout the constituency and the number of such banners is about 50. A photograph of one such banner is filed herewith. The cost of each such banner will be not less than Rs. 1000. The expenditure involved in erecting these fifty banners is about Rs. 50,000. It is submitted that the first Respondent has incurred the above said expenditure which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section 77(3) of the Act thus amounting to a corrupt practice under Section 123(6) of the Act.

27. Admittedly, a copy of the photograph as referred to in paragraph 18(b) was not furnished to the appellant alongwith a copy of the election petition. This Court took the view that the averment contained in paragraph 18(b) would be incomplete without a copy of the photograph being supplied with a copy of the election petition. The reason being that it was not possible to conceive of the dimension of the large fancy banner unless one had a look at the photograph, In that view of the matter, it was held by this Court that the photograph formed an integral part of the petition and a copy of it should have been served alongwith the election petition. Accordingly, this Court reversed the judgment of the High Court in so far as it held that the photograph of the fancy banner adverted to in paragraph 18(b) could not be treated to be an integral part of the election petition, but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and, therefore, failure to supply a copy of the photograph to the appellant did not amount to a violation of the provision of Sub-section (3) of section 81 of the Act.

28. The decision in Karunanidhi's case AIR 1983 SC 558 fully support the view which we take, namely, the video cassette formed an integral part of the election petition because without a copy of the video cassette the First respondent, it-was not in a position to know whether the video cassette recording the speeches of the two Government servants could be said to have been used by the first respondent for the purpose of any assistance in furtherance of the prospects of his election. Karunanidhi's case was referred to and approved in a subsequent decision of this Court in Mithilesh Kumar Pandey v. Baidyanath Yadav .

29. Mr. Poti has, however, urged that if the averments in paragraph 5(xi) of the election petition are full and complete or, in other words, if they do not give particulars of the corrupt practice, in that case the said averments may be struck out under the provisions of Order VI Rule 16 of the Code of Civil Procedure, but the entire election petition cannot be dismissed. It has already been noticed that under Clauses (a) and (b) of section 83(1) of the Act, an election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice. The material facts and the full particulars of corrupt practice will constitute cause of action for the election petition. If the material facts are not-supplied or full particulars of corrupt practice are not given in the election petition, as a consequence of which the election petition does not disclose any cause of action, it is liable to be dismissed under the provision of Order VII, Rule 11(a) of the Code of Civil Procedure. See Azhar Hussain v. Rajiv Gandhi .

30. Apart from striking out the whole of the election petition when it docs not disclose a cause of action, the court can strike out any statement which is irrelevant, scandalous or has nothing to do with the cause of action under the provision of Order VI, Rule 16 of the Code of Civil Procedure. it is submitted by Mr. Poti that if the averments in paragraph 5(xi) of the election petition are irrelevant or do not disclose any cause of action, at the most the said paragraph can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure. We are afraid, we are unable to accept the contention. We are not concerned with whether paragraph 5(xi) can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure as not disclosing any cause of action, but really we are concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of the video cassette is a true copy of the election petition or not within the meaning of section 81(3) of the Act. We have come to the conclusion that the appellant has not served on the First respondent a true copy of the election petition inasmuch as, admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served alongwith the election petition. There is, therefore, no substance in the contention which is rejected.

31. Mr. Poti has drawn our attention to the observations made by this Court in Udhav Singh v. Madhav Rao Scindia which reads as follows (at p. 752 of AIR): Like the Code of Civil Procedure, this section also envisages a distinction between "material facts" and "material particulars". Clause (a) of Sub-section (1) corresponds to Order 6, Rule 2, while Clause (b) is analogous to Order 6, Rule 4 and 6 of the Code. The distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.

32. On the basis of the above observations, it is submitted that if paragraph 5 (xi) of the election petition suffers from a deficiency of material particulars, the court has a discretion to allow the appellant to supply the required particulars even after the expiry of limitation. The above observations have been made in a different context and are quite inapplicable to the facts and circumstances of the instant case which, as noticed already, relate to the question as to whether the video cassette is an integral part of the election petition and whether non-furnishing of a copy of the video cassette to the first respondent along with a copy of election petition is non-compliance with the mandatory provision of section 81(3) and, as such, liable to be dismissed under section 86(1) of the Act. The question of exercise of discretion by the court in permitting the appellant to supply the particulars does not arise at all.

33. Lastly, the decision of this Court in A. Madan Mohan v. Kalavakunta Chandrasekhara has been relied upon by the learned Counsel for the appellant. We fail to understand how this case is of any assistance to the appellant, for in this case also this Court once more approved of the decision in Karunanidhi's case AIR 1983 SC 588. No other point has been urged by either party in this appeal.

34. In view of the discussion made above, we affirm the judgment of the High Court dismissing the election petition of the appellant on the ground that as the copy of the video cassette was not served on the first respondent along with a copy of the election petition, it was non-compliance with the provision of section 81(3) of the Act.

171. Thus, the following propositions, amongst others, have been laid down in this case:

1. In view of Clauses (a) and (b) of Sub-section (1) of Section 83 of the R.P. Act, 1951, an Election Petition shall contain a concise statement of the material facts and also set forth full particulars of any corrupt practice. The said two requirement, are mandatory in nature. (See paragraph 12 of the said AIR).

2. In case, the material facts or particulars relating to any corrupt practice are contained in a document, then the following situations may arise:

(i) The election petitioner, without pleading the material facts or particulars of corrupt practice in the Election Petition, may refer to the document in the Election Petition. When such a reference is made in the Election Petition, a copy of the document must be supplied to the Respondent alongwith copy of the Election Petition. This is because, by making a reference to the document and without pleading its contents in the Election Petition, the document becomes incorporated in the Election Petition by reference in other words, it forms an integral part of the Election Petition. Section 81(3) of the R.P. Act, 1951 provides for giving a true copy of the Election Petition. When a document forms an integral part of the Election Petition and a copy of such document is not furnished to the Respondent alongwith a copy of the Election Petition, the copy of the Election Petition will not be a true copy within the meaning of Section 81(3) of the R.P. Act, 1951, and as such, the Court has to dismiss the Election Petition under Section 86(1) of the said Act for non-compliance with the said Section 81(3).

(ii) The contents of the document in question may be pleaded by the election petitioner in the Election Petition itself. In such a case, the document does not form an integral part of the Election Petition, and, therefore, a copy of the document need not be served on the Respondent alongwith copy of the Election Petition. Failure to supply copy of the document in such a case, will not be non-compliance with the provisions of Section 81(3) of the R.P. Act, 1951. In such a case, the document may be relied upon as evidence in the proceedings. (See paragraphs 15 and 16 of the said AIR).

3. When a document does not form an integral part of the Election Petition, but has been either referred to in the Election Petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the Respondent alongwith a copy of the Election Petition.

Hence, if a document does not form an integral part of the Election Petition, but the document has been referred to in the Election Petition as evidence of any fact, or the document has been filed in the proceedings as evidence of any fact, then copy of such a document is not required to be served on the Respondent alongwith a copy of the Election Petition. (See paragraph 16 of the said AIR).

4. When a document has been filed in the proceedings, but is not referred to a the Election Petition, either directly or indirectly, a copy of such document need not be served on the Respondent. (See paragraph 17 of the said AIR).

5. It is implied in the allegations made in paragraph 5(xi) of the Election Petition that the video cassette containing the speeches of the Government Servants was used in the constituency at the instigation of the First Respondent for the purpose of some assistance for the furtherance of the prospects of the election of the First Respondent. Therefore, the contents of the cassette were incorporated in paragraph 5(xi) of the Election Petition by reference. In other words, the video cassette formed an integral part of paragraph 5(xi) of the Election Petition. Unless a copy of the video cassette was given to the First Respondent, he would not know how the speeches of the said Government Servants could assist the furtherance of the prospects of his election and would not be in a position to deal with the allegations made in paragraph 5(xi) of the Election Petition. The copy of the Election Petition which was served on the First Respondent without a copy of the video cassette was not, therefore, a true copy of the Election Petition within the meaning of Section 81(3) of the R.P. Act, 1951.

Hence, in case a document containing material facts or particulars of corrupt practice is incorporated in the Election Petition by reference without pleading its contents in the Election Petition, then such a document becomes an integral part of the Election Petition, and copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition so that the Respondent may be able to effectively meet the case set up by the Election Petitioner in the Election Petition. (See paragraphs 15,21 and 22 of the said AIR).

6. What Section 81(3) of the R.P. Act, 1951 enjoins is that a true copy of the Election Petition has to be served on the Respondents including the elected candidate. When a document forms an integral part of an Election Petition containing material facts or particulars of corrupt practice, then a copy of the Election Petition, without such a document, is not complete, and cannot be said to be a true copy of the election Petition. Copy of such document must be served on the Respondents. (See paragraph 17 of the said AIR).

7. If the averments in the Election Petition would be incomplete without a copy of the document being supplied alongwith a copy of the Election Petition, then such a document forms an integral part of the Election Petition, and a copy of such document must be served on the respondent alongwith a copy of the Election Petition. The reason is that without a copy of such document, the respondent would not be in a position to appreciate and effectively meet the averments made in the Election Petition, as he would not be in a position to know the relevance, implications, and impact/consequence/effect of the contents of the document. (See paragraphs 27 and 28 of the said AIR).

8(a) If the material facts are not supplied or full particulars of corrupt practice are not given in the Election Petition, as a consequence of which the Election Petition does not disclose any cause of action, it is liable to be dismissed under the provisions of Order VII, Rule 11 (a) of the Code of Civil Procedure.

Apart from striking out the whole of the Election Petition when it does not disclose a cause of action, the Court can strike out any statement which is irrelevant, scandalous or has nothing to do with the cause of action under the provisions of Order VI, Rule 16 of the Code of Civil Procedure.

(b) The fact that the Election Petition may be dismissed for non-disclosure of any cause of action under Order VII, Rule 11(a) of the Code of Civil Procedure on account of failure to give material facts or full particulars of corrupt practice in the Election Petition, or the fact that the Court may strike out any statement in the Election Petition which is irrelevant, scandalous or has nothing to do with the cause of action under the provisions of Order VI, Rule 16 of the Code of Civil Procedure, is not relevant at the stage of considering the question of dismissal of the Election Petition under Section 86(1) of the R.P. Act, 1951 in view of non-compliance with the requirements of Section 81(3) of the said Act.

Hence, the stage of Section 86(1) of the R.P. Act, 1951 is anterior to the stage of Section 83(1)(a) and (b) of the said Act. As such, the Election Petition may be dismissed under Section 86(1) of the R.P. Act, 1951 on account of non-compliance of Section 81(3) of the said Act, notwithstanding the fact that at a subsequent stage:

(i) The Election Petition may be dismissed under Order VII, Rule 11(a) of the Code of Civil Procedure on account of non-compliance with the requirements of Clauses (a) and/or (b) of Sub-section (1) of Section 83 of the R.P. Act, 1951 resulting in failure to disclose any cause of action in the Election Petition, or

(ii) Any matter in the pleading in the Election Petition may be struck out under Order VI, Rule 16 of the Code of Civil Procedure on various grounds mentioned in the said provision. (See paragraphs 29, 30, 31 and 32 of the said AIR).

172. In Manohar Joshi v. Nitin Bhaurao Patil and Anr. (supra), Bhaurao Patil, the original election petitioner, who was the candidate of the Congress (I) Party, challenged the election of Manohar Joshi (appellant) to the Maharashtra Legislative Assembly alleging commission of corrupt practices under Sub-sections (3) and (3A) of Section 123 of the R.P. Act, 1951.

173. The corrupt practices alleged were, in. substance, speeches on 24.2.1990 at Shivaji Park by the returned candidate (Manohar Joshi) and leaders of the BJP Shiv Sena alliance; and some audio and video cassettes played during the election campaign alleged to contain material constituting these corrupt practices.

174. The audio cassettes were not produced or relied on at the trial. The Election Petition was supported only on the ground of the said speeches and video cassettes. Paragraphs 32 and 33 of the Election Petition, as quoted in paragraph 30 of the sad Judgment Today, are as under:

32. The petitioner states that in addition to holding public meetings, the said alliance had also taken out video cassettes and audio cassettes. The video cassettes were titled "Challenge & Appeal "Shiv Sena" and the other called "Ajinkya". The said video cassettes and audio cassettes discloses promises, appeals, exhortations and inducements to the voters to vote for the said alliance and their candidates. The said cassettes show that the said alliance has scant respect for the religious beliefs and practices of other religious like Muslims, Christians etc. Not only the other religions are ridiculed but the followers thereof are termed as "traitors" and "betrayers". Under the guise of protecting Hindu religion/ Hindutva the said cassettes attach other religions and whips up lowered instincts and animosities The concept of secular democracy is totally eliminated. It generates powerful emotions by appealing to the Hindu voters to vote for the candidates of the alliance on a false impression given to voters that only the alliance and its candidates can protect Hindu religion. The petitioner will reply upon the visuals which have the aforesaid effect on the voters. The petitioner also craves leave to refer to and reply upon the said video cassettes as and when produced.

33. The petitioner states that the said alliance had also issued audio cassettes wherein the speeches of the leaders of the said alliance like Bal Thackeray, at various places in Maharashtra are recorded, e.g. Parbhani, Sely Aurangabad, Panvel, Girgaon, Vashi (New Bombay) etc. The said audio cassettes as well as the video cassettes were played in the said constituency, particularly at the Shakha offices, street corners after 6.30 p.m. They were regularly exhibited at or near the places of residence of some of the active workers of the said alliance in the said constituency. The exhibition and playing of the cassettes was on a large scale in the said constituency. The petitioner craves leave to refer to and rely upon the said audio cassettes as and when produced.

175. Before the Bombay High Court, it was urged that the Election Petition was liable to be dismissed under Section 86 of the R.P. Act, 1951. The Bombay High Court rejected the said contention. The Bombay High Court further held that the corrupt practices alleged had been proved. Consequently, the Election Petition was allowed and the election of the returned candidate, Manohar Joshi, was declared to be void on the ground under Section 100(1)(b) of the R.P. Act, 1951. The Appeal was thereupon filed before the Supreme Court.

176. The Supreme Court allowed the Appeal with costs, dismissing the Election Petition. The Supreme Court held that the finding recorded by the High Court against the appellant that charge of corrupt practices under Sub-sections (3) and (3A) of Section 123 of the R.P. Act/1951 had been proved to declare his election to be void on the ground contained in Section 100(1)(b) of the R.P. Act, 1951, was contrary to law and was, therefore, set aside.

177. One of the submissions raised on behalf of the appellant before the Supreme Court was regarding non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951. The submission was that there was reference in paragraphs 32 and 33 of the Election Petition to certain video cassettes, the contents of which would be deemed to be incorporated by reference in the Election Petition, and since the video cassettes or a transcript of its contents was not filed alongwith the Election Petition and was not supplied with the copy of the Election Petition to the Respondent (returned candidate), it resulted in non-compliance of Section 81(3) of the R.P. Act, 1951, which attracted Section 86(1) of the said Act.

178. The Supreme Court rejected the said submission. The Supreme Court held that there was no non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951, and, therefore, the Election Petition was not liable to be dismissed under Section 86(1) of the said Act.

179. A Bench consisting of three Hon'ble Judges of the Supreme Court observed as under (paragraphs 6,7, and 17 to 26 of the said J.T.):

6. It would be appropriate to first deal with the contention of Shri Ram Jethmalani relating to non-compliance of Section 81 of the R.P. Act which, if correct renders the election petition liable to be dismissed under Section 86 thereof. The arguments of Shri Jethmalani in this respect have to be considered with reference to Sections 81,83 and 86(1) which are as under:

81. Presentation of petitions.-(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 candidate 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 person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

[XX XX XX]

[(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 the petitioner under his own signature to be a true copy of the petition.]

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 and place 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.

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) of Section 98.

XXX XXX XXX

7. Shri Jethmalani contended that the election petition should have been dismissed by the High Court in accordance with Section 86(1) of the HP. Act for non-compliance of Sub-section (1) of Section 81 because it was not presented within the prescribed limitation; and it ought to have been dismissed thereunder, also for non-compliance of Sub-section (3) of Section 81. For the second part of the submission, Shri Jethmalani contended that Sub-section (3) of Section 81 must be read alongwith Section 83 and, therefore, the copy of the ejection petition must be the copy of a petition satisfying the requirement of Section 83(1) of the HP. Act. These are the two parts of the argument for invoking Section 86 for dismissal of the election petition at the threshold. The question, therefore, is : Whether there has been non-compliance of any part of Section 81 to attract Section 86 of the R.P. Act? We will consider this argument at the outset.

17. Sub-section (3) of Section 81 requires 'every election petition to be accompanied by as many copy thereof as there are respondents, obviously for the purpose of a copy of the election petition being served upon each respondent alongwith the notice of the election petition. The submission of Shri Jethmalani is that the election petition and, therefore, its accompanying copy in accordance with Section 81(3) should satisfy the requirement of Sub-section (1) of Section 83 as to the contents of the petition. He argues that If the contents of the election petition which has been filed and the copy accompanying it do not satisfy the requirement of Section 83(1), there is non-compliance of Section 81(3) attracting Section 86 for dismissal of the election petition. The argument is that the defect in such a case is in the accompanying copy of the election petition which is deficient in its contents as required by Section 83(1). For this reason, he submits, it results in non-compliance of Section 81(3) which attracts Section 86 of the R.P. Act.

18. In the present case, there is reference in paras 32 and 33 of the election petition to certain video cassettes, the contents of which are deemed to be incorporated by reference in the election petition, and since the video cassettes or a transcript of its contents was not filed alongwith the election petition and was not supplied with the copy of the election petition to the respondent (returned candidate), it is argued, that it has resulted in non-compliance of Section 81(3) which attracts Section 86. No further reference to the audio cassettes is necessary since the audio cassettes were not produced even at the trial and were not relied on by the election petitioner for proof of the corrupt practice. These video cassettes were later produced at the trial but the subsequent production of the video cassettes at the trial, it is urged, does not cure the defect of non-compliance of Section 81(3). In reply, Shri Ashok Deasi submitted that the video cassettes did not form part of the election petition as the contents thereof are not incorporated by reference in the election petition and, therefore, non-production of the video cassettes or their transcript with the election petition and failure to annex the same to the copy of the election petition served on the returned candidate did not amount to non-compliance of Section 81(3). Shri Desai submitted that Section 81(3) merely requires the copy to conform with the election petition as presented in the court and not an election petition as required to be drafted according to Section 83(1) of the R.P. Act. He further submitted that any defect or deficiency in the content of the election petition found with reference to Section 83(1) of the R.P. Act may have any other consequence requiring the court to act under Order 7 Rule 11 C.P.C. or Order 6 Rule 16 C.P.C, but there is no non-compliance of Section 81(3) if the copy accompanying the election petition which is served on the respondent is identical with the election petition as it is actually presented in the court. In short, Shri Desai submitted that non-compliance of Section 83(1) of the R.P. Act is not visited with the consequence of dismissal of the election petition at the threshold under Section 86 and, therefore, the non-compliance of Section 81 which attracts Section 86 has to be seen without reference to Section 83 of the R.P. Act. Both sides have placed reliance on the same set of decisions to support the rival contentions.

19. There is no dispute that the election petition as presented in the court, was accompanied by as many copies thereof as there were respondents in the election petition; and the copy of the election petition served on the returned candidate with the notice of the election petition was identical with the election petition as it was presented in the court. The requirement of the plain language of Section 81(3) was, therefore, fully met. The object of the provision is clearly to ensure that each respondent to the election petition gets an identical copy of the election petition as presented in the court to acquaint the respondent with the actual and full contents of the election petition as it is presented in the court. On the basis of the identical copy the respondent can prepare his defence and also take the plea of deficiency, if any, in the contents of the election petition with reference to Section 83 of the R.P. Act, in order to apply in the court for action being taken under Order 7 Rule 11 or Order 6 Rule 16, C.P.C, as the case may be. These provisions are attracted only after the election petition survives the liability for dismissal at the threshold under Section 86 of the R.P. Act.

20. Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, all of which arc patent defects evident on a bare examination of the election petition as presented. Sub-section (1) of Section 81 requires the checking of limitation with reference to the admitted facts and Sub-section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented. Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition. Section 117 requires verification of the deposit of security in the High Court-in accordance with Rules of the High Court. Thus, the compliance of Section 81,82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed alongwith it at the time of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the R.P. Act which is a judicial function. For this reason, the non-compliance of Section 83, is not specified as a ground for dismissal of the election petition under Section 86.

21. Acceptance of the argument of Shri Jethmalani would amount to reading into Section 86 an additional ground for dismissal of the election petition under Section 86 for non-compliance of Section 83. There is no occasion to do so, particularly when Section 86 being in the nature of a penal provision, has to be construed strictly confined to its plain language.

22. We may now refer to the decisions of this Court on which reliance is placed by both sides to support the rival contention on this point. In Sahodrabai Rai v. Ram Singh Aharwar, a translation in English of the pamphlet annexed to the election petition was incorporated in the body of the election petition and it was stated in the petition that it formed part' of the petition. Alongwith the copy of the election petition which contained the entire transcript in English of the pamphlet, a copy of the pamphlet had not been annexed. The respondent raised the objection that the copy of the election petition served on him was not a copy of the election petition presented in the High Court and, therefore, the election petition was liable to be dismissed under Section 86 of the R.P. Act. It was held by this Court that the pamphlet which was filed as an annexure to the election petition must be treated as a document tiled with the election petition and not a pan of the election petition in so far as the averments are concerned. Obviously, this view was taken because the contents of the pamphlet were incorporated in the body of the election petition of which a copy was duly served on the respondent. Accordingly, it was held that there was no non-compliance of Section 81(3) and the petition was not liable to be dismissed under Section 86 of the R.P. Act. In A. Madan Mohan v. Kalavakunta Chandrasekhara , the earlier decision in Sahodrabai Rai (supra) was followed. It was held that failure to furnish copy of schedules and documents which did not form an integral part of the election petition was not fatal to the petition and it was not liable to be dismissed under Section 86 of the R.P. Act. An earlier decision in M. Karunanidhi etc. etc. v. Dr. H.V. Hande and Ors. etc. etc. was distinguished and it was pointed out that M. Karunanidhi (supra) did not depart from the ratio laid down in Sahodrabai Rai (supra). Para 15 of the decision in A. Madan Mohan (supra) is as under:

This decision in no way departs from the ratio laid down in Sahodrabai case The aforesaid case, however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent It is, therefore, manifest that the facts of the case cited above are clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhi case has noticed the previous decision and has fully endorsed the same.

This decision by a 3- Judge Bench also indicated that this stringent provision must be construed literally and strictly. Para 13 of the decision is as under:

It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above, this Court clearly held that if the arguments of the appellant (in that case)were to be accepted, it would be stretching and straining the language of Sections 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once for all.

Another decision referred is U.S. Sasidharan v. K. Karunakaran and Anr. . That was a case in which a document was incorporated in the election petition by reference and was filed with the election petition in a sealed cover but a copy was not supplied to the returned candidate alongwith a copy of the election petition. In such a situation, it was held to be non-compliance of Section 81(3) rendering the election petition liable for dismissal under Section 86(1) of the R.P. Act. 77 is conclusion was reached on the view that non-supply of copy of the document with a copy of the election petition was a fatal defect because the document was filed in the High Court with the election petition and it formed an integral part of the election petition. This decision also indicates the distinction between a document forming an integral part of the election petition and being produced merely as evidence of an averment made in the election petition.

23. The distinction brought out in the above decisions is, that in a case where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition, it forms an integral part of the petition and if a copy of that document is not furnished to the respondent with a copy of the election petition, the defect is fatal attracting dismissal of the election petition under Section 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the election petition and the document also is filed with the election petition, not furnishing a copy of the document with a copy of the election petition in which the contents of the document are already incorporated, does not amount to non-compliance of Section 81(3) to attract Section 86(1) of the R.P. Act. In other words, in the former case the document filed with the election petition is an integral part of the election petition being incorporated by reference in the election petition and without a copy of the document, the copy is an incomplete copy of the election petition and, therefore, there is non-compliance of Section 81(3). In the other situation, the document annexed to the petition is mere evidence of the averment in the election petition which incorporates fully the contents of the document in the body of the election petition and, therefore, non-supply of a copy of the document is mere non-supply of a document which is evidence of the averments in the election petition and, therefore, there is no non-compliance of Section 81(3). In U.S. Sasidharan (supra), this distinction is clearly brought out as under.-

...The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86(1) for non-compliance with Section 81(3).

On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition.

24. It may be mentioned that in ail the above decisions cited at the Bar, the document in question had been filed in the court alongwith the election petition, but a copy of that document was not supplied to the respondent with the copy of the election petition. In those cases wherein the annexed document was treated to be incorporated by reference in the election petition forming an integral part of the election petition, non-supply of a copy of the document was held to be fatal warranting dismissal of the election petition under Section 86(1) for non-compliance of Section 81(3). In the other cases, the document was filed with the election petition, but the contents thereof were also incorporated in the body of the election petition, a copy of which had been supplied to the respondent even though copy of that document was not furnished in addition. In those cases, non-supply of a copy of the document was held not to be non-compliance of Section 81(3) because the document annexed to the election petition was treated as evidence of the averments contained in the body of the election petition, a copy of which had been furnished to the respondent. This is the gist of these decisions which also indicates that the question has to be answered with reference to the kind of use made of the document annexed to the petition, whether as an integral part of the election petition or merely as evidence of the pleadings contained in the body of the election petition.

25. In the present case, the video cassettes, non-supply of a copy of transcript of which is urged by Shri Jethmalani to be a ground for non-compliance of Section 81(3), were not even filed in the High Court with the election petition in the High Court. This is, therefore, not a case of non-supply of a copy of a document which was filed alongwith the election petition. What was supplied to the returned candidate in the present case, was a true copy of the election petition as it was presented in the court without the video cassettes of which mere mention was made without incorporating its contents by reference or enumerating it in the election petition. It is not the case of the election petitioner that the full contents of the video cassettes or their transcripts are incorporated by reference in the election petition in order to make the video cassettes an integral part of the election petition, inasmuch as no video cassette was filed along with the election petition as it was presented in the High Court. Reliance is placed by the election petitioner on the video cassettes produced later during the trial as only evidence of the pleading in paras 32 and 33 of the election petition. It is, therefore, clear that the contents of the video cassettes, except to the extent pleaded in paras 32 and 33 of the election petition, cannot be treated to be incorporated by reference in the election petition as a part of the pleadings and its use is sought to be made by the election petitioner only as evidence of the averments contained in paras 32 and 33 of the election petition. Admittedly, a true copy of the election petition as presented in the High Court was furnished to the returned candidate alongwith the notice of the election petition. There was thus no non-compliance of Sub-section (3) of Section 81 of the R.P. Act. The election petition was, therefore, not liable to be dismissed under Section 86(1) even on the ground of non-compliance of section 81(3) of the R.P. Act.

26. The contention of Shri Jethmalani that the entire election petition is liable to be dismissed under Section 86(1) of the R.P. Act for non-compliance of Sub-section (1) and/or Sub-section (3) of Section 81 is, therefore, rejected.

180. Thus, the following propositions, amongst others, have been laid down in the above decision:

1. The object of Section 81(3) of the R.P. Act, 1951 is to ensure that each Respondent to the Election Petition gets an identical copy of the Election Petition as presented in the Court to acquaint the Respondent with the actual and full contents of the Election Petition as it is presented in the Court. On the basis of the identical copy, the Respondent can prepare his defence and also take the plea of deficiency, if any, in the contents of the Election Petition with reference to Section 83 of the R.P. Act, 1951 in order to apply in the Court for action being taken under Order VII, Rule 11 or Order VI, Rule 16 of the Code of Civil Procedure, as the case may be. (see paragraph 19 of the said Judgment Today).

2. The provisions of Order VII, Rule 11 of the Code of Civil Procedure or Order VI, Rule 16 of the Code of Civil Procedure are attracted only after the Election Petition survives the liability for dismissal at the threshold under Section 86 of the R.P. Act, 1951. (see paragraph 19 of the said Judgment Today).

3. Section 86 of the R.P. Act, 1951 is in the nature of a penal provision, and it has to be construed strictly confined to its plain language, (see paragraph 21 of the said Judgment Today).

4. Section 86 of the R.P. Act, 1951 empowers the High Court to dismiss an Election Petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act. Non-compliance of Section 83 of the R.P. Act, 1951 is not specified as a ground for dismissal of the Election Petit on under Section 86 of the said Act. (see paragraph 20 of the said Judgment Today).

5. Compliance of Section 81, 82 and 117 of the R.P. Act, 1951 is to be seen with reference to the evident facts found in the Election Petition and the documents filed alongwith it at the time of its presentation. This is a ministerial act. On the other hand, to ascertain the deficiency, if any, in the Election Petition found with reference to the requirements of Section 83 of the R.P. Act, 1951 is a judicial function, (see paragraph 20 of the said Judgment Today).

6.(A) There is a distinction between a document forming an integral part of the Election Petition and a document being produced merely as evidence of an averment made in the Election Petition.

(B)(i) Where the document is incorporated by reference in the Election Petition without reproducing its contents in the body of the Election Petition, it forms an integral part of the Petition and if a copy of that document is not furnished to the Respondent with a copy of the Election Petition, the defect is fatal attracting dismissal of the Election Petition under Section 86(1) of the R.P. Act, 1951.

(ii) On the other hand, when the contents of the document are fully incorporated in the body of the Election Petition and the document also is filed with the Election Petition, not furnishing a copy of the document with a copy of the Election Petition in which the contents of the document are already incorporated, does not amount to non-compliance of Section 81(3) of the R.P. Act, 1951 to attract Section 86(1) of the said Act.

(iii) In the case (i) above, the document filed with the Election Petition is an integral part of the Election Petition being incorporated by reference in the Elect-on Petition and without a copy of the document, the copy is an incomplete copy of the Election Petition, and, therefore, there is non-compliance of Section 81(3) of the R.P. Act, 1951.

In the case (ii) above, the document annexed to the Election Petition is mere evidence of the averments made in the Election Petition, which incorporates fully the contents of the document in the body of the Election Petition, and, therefore, non-supply of a copy of the document is mere non-supply of a document which is evidence of the averments made in the Election Petition, and, therefore, there is no non-compliance of Section 81(3) of the R.P. Act, 1951.

(iv) Reliance for the above propositions Nos. (i), (ii) and (iii) was placed on the decision of the Supreme Court in U.S. Sasidharan case (supra), (see paragraphs 22 and 23 of the said Judgment Today).

7(A) In the decisions, cited at the Bar, the document in question had been filed in the Court alongwith the Election Petition, but a copy of that document was not supplied to the Respondent with the copy of the Election Petition. In such cases, the question has to be answered with reference to the kind of use made of the document annexed to the Election Petition, whether as an integral part of the Election Petition or merely as evidence of the pleadings contained in the body or the Election Petition.

(B)(i) In those cases wherein the annexed document was treated to be incorporated by reference in the Election Petition, forming an integral part of the Election Petition, non-supply of a copy of the document was held to be fatal, warranting dismissal of the Election Petition under Section 86(1) of the R.P. Act, 1951 for non-compliance of Section 81(3) of the said Act.

(ii) In the other cases, the document was filed with the Election Petition, but the contents thereof were also incorporated in the body of the Election Petition, a copy of which had been supplied to the Respondent even though copy of that document was not furnished in addition. In these cases, non-supply of a copy of the document was held not to be non-compliance of Section 81(3) of the R.P. Act, 1951 because the document annexed to the Election Petition was treated as evidence of the averments contained in the body of the Election Petition, a copy of which had been furnished to the Respondent, (see paragraph 24 of the said Judgment Today).

8(i) In the present case, the video cassettes were not filed alongwith the Election Petition but were later produced at the trial. This was, therefore, not a case of non-supply of a copy of a document, which was filed alongwith the Election Petition. What was supplied to the returned candidate in the present case, was a true copy or the Election Petition as it was presented in the High Court without the video cassettes.

(ii) The contents of the video cassettes were not incorporated by reference in the Election Petition as a part of the pleadings. The video cassettes were merely mentioned as evidence of the averments contained in paragraphs 32 and 33 of the Election Petition.

181. Therefore, there was no non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951.

182. Hence, as the contents of the video cassettes were not incorporated in the Election Petition by reference, and the video cassettes were merely referred to as evidence of the averments made in paragraphs 32 and 33 of the Election Petition, it was not necessary to supply copy of the video cassettes to the Respondent alongwith copy of the Election Petition. Thus, the decision again emphasizes the distinction between a document incorporated in the Election Petition by reference without reproducing its contents thereby making the document an integral part of the Election Petition and a document referred to in the Election Petition as evidence of the averments made in the Election Petition {see paragraphs 18 and 25 of the said Judgment Today).

183. In Shri Suryakant Venkatrao Mahadik v. Smt. Saroj Sandesh Naik (Bhosale) J.T. 1995 (8) SC 686, the appellant, Shri Suryakant Venkatrao Mahadik, was candidate of the Shiv Sena, and he was declared duly elected to the Maharashtra Legislative Assembly since he had got the maximum number of votes. The Respondent, Smt. Saroj Sandesh Naik (Bhosale), filed an Election Petition before the Bombay High Court challenging the election of the appellant. The Bombay High Court declared the election of the appellant to be void on the ground under Section 100(1)(b) of the R.P. Act, 1951 on the ground that he, his Election Agent and workers had committed corrupt practice as defined under Section 123(3) and Section 123(3A) of the R.P. Act, 1951.

184. One of the grounds taken by the appellant for opposing the Election Petition before the Bombay High Court was that there was non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951 inasmuch as certain photographs were annexed to the Election Petition, but copies of the photographs served on the appellant alongwith copy of the Election Petition were illegible, and, therefore, the copy of the Election Petition served on the appellant was not a true copy of the Election Petition. The Election Petition was, therefore, liable to be dismissed under Section 86 of the R.P. Act, 1951 for non-compliance of Sub-section (3) of Section 81 of the said Act.

185. The said plea raised on behalf of the appellant was not accepted by the Bombay High Court.

186. In the Appeal before the Supreme Court, the appellant again raised the said plea.

187. Rejecting the said plea raised on behalf of the appellant, their Lordships of the Supreme Court held as under (paragraph 6 of the said Judgment Today):

6. We also do not find any merit in the contention that there is non-compliance of Sub-section (3) of Section 81. This argument is based on certain photographs which were annexed to the election petition. In the facts of the present case, it is unnecessary to decide whether the copies of the photographs served on the appellant alongwith copy of the election petition were illegible or not. Those photographs were of certain posters alleged to have been put up in the constituency and to have contained slogans of the Shiv Sena, of which party the appellant was a candidate, which amounted to appeal to voters on the ground of Hindu religion. The argument of learned Counsel for the appellant is that in the absence of legible copies of those photographs, the contents of which are relied on for the allegation of corrupt practice under Section 123(3) of the Act, the relevant pleading in that behalf-was not supplied to the appellant inasmuch as the copy of the election petition served on him was deficient to that extent. In our opinion, this question does not really arise in the present case since the contents of those posters have also been expressly pleaded in the election petition. These facts are pleaded in para 12 of the election petition and the contents of the four photographs annexed to the election petition of which the copies are alleged to be illegible are expressly pleaded in Clause (ii), (Hi), (vi) and (vii) of Sub-para (b) of para 12 of the election petition. In such a situation, the photographs annexed to the election petit/on after expressly pleading their contents in para 12 of the election petition, were only evidence of the pleading contained in para 12 of the election petition and it is not a case of incorporating into the election petition the contents of those photographs by reference without stating it in the election petition. On these facts, the decision applicable is that in Sahodrabai Rai v. Ram Singh Aharwar , which clearly indicates that the failure to supply copy of such a document annexed to the election petition, the contents of which have in addition been expressly pleaded in the election petition does not amount to non-compliance of Sub-section (3) of Section 81 to attract dismissal of the election petition under Section 86 of the Act. In such a situation the document annexed to the petition is only evidence of the pleading incorporated in the petition. Thus there is no merit in the argument that the election petition was liable to be dismissed under Section 86 of the Act for not -compliance of Sub-section (1) and/or Sub-section (3) of Section 81 of the Act.

188. Thus, the following propositions, amongst others, have been laid down in the above decision:

1. There is distinction between a case of incorporating into the Election Petition the contents of a document by reference without stating the contents thereof in the Election Petition and a case where the contents of a document are expressly pleaded in the Election Petition.

2. In case the contents of a document are expressly pleaded in the Election Petition, the document is only evidence of the pleading incorporated in the Election Petition.

3. In case the contents of a document are expressly pleaded in the Election Petition and the document is also annexed to the Election Petition, the document will be only evidence of the pleading incorporated in the Election Petition. Therefore, failure to supply copy of such a document annexed to the Election Petition does not amount to non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951 to attract dismissal of the Election Petition under Section 86 of the said Act.

4. In the present case, the contents of the four photographs annexed to the Election Petition of which the copies were alleged to be illegible were expressly pleaded in paragraph 12 of the Election Petition. In such a situation, the photographs annexed to the Election Petition after expressly pleading their contents in paragraph 12 of the Election Petition, were only evidence of the pleading contained in paragraph 12 of the Election Petition. Therefore, failure to supply copies of these photographs did not amount to non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951 to attract dismissal of the Election Petition under Section 86 of the said Act.

In the circumstances, the question as to whether the copies of the photographs served on the appellant alongwith copy of the Election Petition were illegible or not, was not relevant.

4. Reliance for the above propositions was placed on Sahodrabai Rai case (supra).

189. In Jagram Singh v. Pritam Singh and Ors. 1992 All. L.J. 502 (supra), the Petitioner, an unsuccessful candidate of Janta Dal, filed an Election Petition calling in question the election of the Respondent No. 1 to the U.P. Legislative Assembly. One of the grounds for challenging the election of the Respondent No. 1 was that the Respondent No. 1 was not qualified on the date of filing of nomination and also on the date of the election as he had not then completed the age of 25 years.

190. It was averred in paragraph 8(v) of the Election Petition that the Respondent No. 1 had passed High School Examination conducted by the Board of High School and Intermediate Education, U.P. in the year 1982 and that his date of birth was then recorded in the High School Certificate as 11.9.1967.

191. In paragraph 8(vi) of the Election Petition, it was averred that the aforesaid date of birth had been recorded in the record of High School Examination on the basis of the date of birth as furnished by the Respondent No. 1 in his application form which he had filled-in himself under his signature.

192. The Respondent No. 1 filed an Application praying that the Election Petition be dismissed under Section 86(1) of the R.P. Act, 1951 for non-compliance of Section 81(3) of the said Act. It was contended that the Petitioner made reference to High School Certificate and the Application Form submitted for High School Examination in the Election Petition, and the said documents became integral part of the Election Petition, as they stood incorporated by reference in the Election Petition, and, therefore, the omission of supplying copy of High School Certificate and copy of the Application Form filled-in for High School Examination alongwith the copy of the Election Petition, amounted to non-compliance of Section 81(3) of the R.P. Act, 1951.

193. Accepting the contention raised on behalf of the Respondent No. 1, this Court held that the Application made for dismissing the Election Petition under Section 86(1) of the R.P. Act, 1951 for non-compliance of Section 81(3) of the said Act deserved to succeed, and, accordingly, the said Application was allowed. This Court laid down as under (paragraphs 16 to 20 of the said All. L.J.):

16. The respondent No. 1 has made another application praying that election petition be dismissed under Section 86(1) for non-ompliance of Section 81(3) of the Act. The contention of the respondent No. 1 is that copy of the election petition supplied to him by the petitioner is not a true copy of the petition. Section 81(3) mandates that 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 contention of the petitioner is that respondent No. 1 had not completed age of 25 years either on date of filing nomination or on the date of election and, therefore, he was not eligible to contest the election. In para 8 (v) of the petition, it is stated that the respondent No. 1 had passed High School Examination conducted by the Board of High School and Intermediate Education, U.P. in the year 1982 and that, his date of birth was then recorded in the High School Certificate as 11.9.1967. In para 8 (vi), it further stated that the aforesaid date of birth had been recorded in the record of High School Examination on the basis of the date of birth as furnished by respondent No. 1 in this application form which he had filled in himself under Us signature. When the petitioner made reference of High School certificate and the application form submitted for High School Examination in the petition, respondent No. 1 contends that those documents became integral part of the petition, as they stood incorporated by reference in the petition and, therefore, omission of supplying copy of High School Certificate and copy of the application form filled in for High School Examination with the election petition, rendered election petition not to be a true copy of the petition as required by Section 81(3). In short, the contention is that when a High School Certificate and the application form filled in for High School examination, became integrated part of the petition by virtue of their being referred to in the petition, then a copy of the election petition should have contained copies of such documents without which election petition would not be a true copy of the petition. This is how it is stated that the petition deserves to be dismissed under Section 86(1) for non-compliance of Section 81(3).

17. The question for consideration is whether the aforesaid documents referred to in the petition can be said to have become integral part of the petition? As already stated, disclosure of material facts in every petition and disclosure of material facts coupled with the disclosure of particulars when the election of a returned candidate is called in question on ground of corrupt practice is necessary. A catena of authorities referred to in connection with the disposal of the application under Order 6, Rule 16 C.P.C., throws enough guideline as to what does constitute material facts. Material facts are those facts which constitute cause of action or give a composite picture of cause of action, disclosure of which is essential for the maintainability of the petition. Non-disclosure of any material fact will result in dismissal of the petition for want of cause of action. The allegation of the petitioner is that the respondent No. 1 having not completed age of 25 years either on the date of filing nomination paper or on the date of election, was not eligible to contest and that an objection assailing his date of birth was filed by him before the Returning Officer in writing, but the later refused to acknowledge the same. When the petitioner relies on the aforesaid documents to support his contention that respondent No. 1 was underage either on the date of nomination or on the data of election, then it was his duty either to reproduce them In the petition or to annex them to the petition. The petitioner has verified paragraphs 8(iv),(v) and (vi) in the verification part on the basis of records. It is, therefore, implied that the petitioner had seen the High School certificate as well as the application form filled in by respondent No. 1 for the High School Examination. It is not the case of the petitioner that he had personal knowledge about the date of birth of respondent No. 1. For the allegation that respondent No. 1 was below 25 years, when the nomination paper was filed by him, the petitioner wholly relied on the High School Certificate and the application form and referred to them in the petition and, therefore, respondent No. 1 is right in contending that those documents have become integral part of the election petition and they stood incorporated in the petition by reference.

18. Certain provisions of Code of Civil Procedure can be usefully referred to conclude that the contents of the High School certificate and the application form submitted for High School Examination are material facts and, therefore, such documents ought to have been produced with the petition. Order 7, Rule 14(1) C.P.C. states: where plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. From the averments made in the petition, it is manifest that the contention of the petitioner that respondent No. 1 was under age, is based on perusal of High School certificate and the application form and it is on the basis of those documents the petitioner alleged that respondent No. 1 was not qualified to file the nomination papers. When in the verification clause, the petitioner dearly averred that he perused the record then it can be safely assumed that it was within the power of the petitioner to obtain copies of those documents and file the same in the Court with the petition. Order 7, Rule 14(2) C.P.C. says that where a plaintiff relies on any other document (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. Order 7, Rule 18(1) further states that a document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint and which is not produced or entered accordingly, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. All these provisions made in the Code of Civil Procedure, enjoin upon a plaintiff to file the documents on the basis of which a suit is filed or which forms the basis of his claim. For the allegations made in Grounds 'A' and 'B' by the petitioner, the basis is the facts as contained in the High School certificate and the application form and, therefore, they must have been filed with or reproduced in the petition. These provisions hold a clue that facts mentioned in the High School certificate and in the application form are material facts and if such documents are not reproduced in the petition then they must have been annexed to the petition to make a copy of the petition as a true copy thereof within the meaning of Section 81(3) of the Act In taking this view, I am fortified by U.S. Sasidharan v. K. Karunakaran . In U.S. Sasidharan, election of the returned candidate was called in question on the ground of various corrupt practices and then the Supreme Court took the view that if a document contains material facts relating to corrupt practice, then that document should be made a part of the petition, otherwise a copy of the petition would not be a true copy. Though such rule was laid down by the Supreme Court in the petition filed on the ground of corrupt practice, but I see no good reason why that rule should not be applied to a petition filed on the ground other than corrupt practice or to the petition raising one or more grounds not relating to corrupt practice. The basic requirement in every petition is that it must disclose the material facts or the full composite picture of cause of action to make it maintainable. As a plaint which discloses no cause of action is liable to be rejected under Order 7, Rule 11(a) C.P.C, similarly an election petition is liable to be rejected for the same reasons under that provision, read with Section 87 of the Act. Disclosure of material facts is a common requirement of any election petition either filed on the ground of corrupt practice only or on the ground other than corrupt practice or on the mixed grounds of corrupt practice and other one. The only difference is that a petition filed on ground of corrupt practice is subjected to more serious rigours, as the charge of corrupt practice is equated with the criminal charge to be decided considering the rigours of criminal jurisprudence.

19. Before proceeding with election petition, it is the duty of the Court to ensure that full material facts, that is, full cause of action has been disclosed. If requisite attention is not paid to this precedent condition, then the representatives of the people, election of whom is the mirror in which will of the people is reflected, will remain under constant trauma and engaged in the Court proceedings with a sword of damocles always handing on their heads instead of discharging their onercus legislative duty for which they are elected by the people in a democratic polity.

20. For the reasons, I hold that the application made for dismissing the petition under Section 86(1) for non-compliance of Section 81(3) of the Act also deserves to succeed and is allowed.

194. Thus, the following propositions, amongst others, have been laid down in the above decision:

1. Disclosure of material facts in every Election Petition and disclosure of material facts coupled with the disclosure of particulars when the election of a returned candidate is called in question on ground of corrupt practice is necessary. (see paragraph 17 of the said All. L.J).

2. Disclosure of material facts is a common requirement of any Election Petition either filed on the ground of corrupt practice only or on the ground other than corrupt practice or on the mixed grounds of corrupt practice and other one. The only difference is that a Petition filed on ground of corrupt practice is subjected to more serious rigours, as the charge of corrupt practice is equated with the criminal charge to be decided considering the rigours of criminal jurisprudence. (see paragraph 18 of the said All. L.J.).

3. Material facts are those facts which constitute cause of action or give a composite picture of cause of action, disclosure of which is essential for the maintainability of the Election Petition. Non-disclosure of any material fact will result in dismissal of the Election Petition for want of cause of action. (see paragraph 17 of the said All. L.J.).

4. The basic requirement in every Election Petition is that it must disclose the material facts or the full composite picture of cause of action to make at maintainable. As a plaint which discloses no cause of action is liable to be rejected under Order VII, Rule 11(a) of the Code of Civil Procedure, similarly, an Elect on Petition is liable to be rejected for the same reasons under that provision, read with Section 87 of the R.P. Act, 1951. (see paragraph 18 of the said All. L.J.).

5. When the Petitioner relied on the aforesaid documents (namely, High School Certificate and the Application Form for High School Examination) to support his contention that the Respondent No. 1 was underage either on the date of nomination or on the date of election, then it was his duty either to reproduce them in the Election Petition or to annex them to the Election Petition. (see paragraph 17 of the said All. L.J.)

6. The averments made in the Election Petition regarding the Petitioner being underage were made on the basis of the aforesaid documents. The Petitioner referred to the aforesaid documents in the Election Petition without reproducing the contents of the said documents. Therefore, the said documents became integral part of the Election Petition and they stood incorporated in the Election Petition by reference. (see paragraph 17 of the said All. L.J.).

7. Various Rules contained in Order VII of the Code of Civil Procedure enjoin upon a plaintiff to file the documents on the basis of which a Suit is filed or which form the basis of his claim. The ground raised in the Election Petition regarding the Respondent No. 1 being underage was based on the facts as contained in the High School Certificate and the Application Form for High School Examination, and, therefore, the said documents ought to have been filed with or reproduced in the Election Petition. The provisions of Order VII of the Code of Civil Procedure "hold a clue that facts mentioned in the High School Certificate and in the Application Form are material facts and if such documents are not reproduced in the Petition then, they must have been annexed to the Petition to make a copy of the Petition as a true copy thereof within the meaning of Section 81(3) of the Act". (see paragraph 18 of the said All. L.J.).

8. In U.S. Sasidharan case (supra), the Supreme Court has taken the view that if a document contains material facts relating to corrupt practice then that document should be made a part of the Petition, otherwise, a copy of the Petition would not be a true copy. Though such Rule has been laid down by the Supreme Court in the Petition filed on the ground of corrupt practice, there is no good reason why that Rule should not be applied to a Petition filed on the ground other than corrupt practice or to the Petition raising one or more grounds not relating to corrupt practice (see paragraph 18 of the said All. L.J.).

195. In Prem Pal Singh v. Avnish Kumar Singh and Ors. 1996 All. L.J. 33 (supra), the Petitioner, one of the candidates who lost the election, filed an Election Petition calling in question the election of the Respondent No. 1 to the U.P. Legislative Assembly. An Application under Section 86(1) of the R.P. Act, 1951 was filed on behalf of the contesting Respondent No. 1 praying for dismissal of the Election Petition for the alleged non-compliance of the mandatory provisions contained in Section 81(3) of the said Act. The Election Petition was filed on the following two grounds (as quoted in paragraph 3 of the said All. L.J.):

(A) Because the result of the election of the respondent No. 1 has been materially affected by non-compliance and contravention of the provisions of Representation of the People Act, 1951; Conduct of Election Rules 1961 and the Orders and Directions Issued by the Election Commission of India from time to time under the Constitution read with provisions of Representation of the People Act and the Conduct of Election Rules, 1961.

(B) Because, the result of the election of the respondent No. 1 has been materially affected by improper reception of the votes in his favour which votes in fact were invalid and were liable to be rejected and the improper rejection of votes cast in favour of the petitioner which in fact were valid votes and were liable to be counted in favour of We petitioner as valid votes.

196. The concise statement of the alleged material facts in support of ground (A) was to be found in paragraph 12 of the Election Petition which contained Sub-paragraphs No. (i) to (xiv).

197. Sub-paragraphs 12 (iv), 12 (v), 12 (vi) and 12 (ix), which were relied upon by the Respondent No. 1 in support of his prayer for dismissal of the Election Petition were as follows (as quoted in paragraph 3 of the said All. L.J.):

(iv) That under Rule 45 of the Conduct of Election Rules 1969 the Presiding Officers at the close of the polling are required to fill up the details of the ballot papers utilized in a ballot paper account to be maintained in Form-16, Part 1. At the start of counting the ballot papers found inside the ballot boxes are recorded on Form 16, Part II. In the polling held for 47-Dataganj Assembly Constituency there are discrepancies in the total number of votes polled and the total number of votes found inside ballot boxes. Besides there is further discrepancy in the total number of votes found inside the ballot boxes and the total number of votes as shown in the final result sheet in Form 20. The allegations made in para under reply are based upon the figures as recorded in certified copies of Form 16. Part I. Form 16. Part II and Form 20.

(Underlining by the Court)

(v) That the total of the votes polled as recorded in Form 16, Part I is 103535 while the total number of votes found inside the ballot boxes is 103459 as per Form 16, Part II. And the total number of votes as shown in Final result sheet is 103497. The discrepancies in the aforesaid figures which do not tally with each other is indicative of the fact that the counting process was not correctly conducted. The averments in this paragraph are based on the figures shown in Form 16, Part I and Form 16. Part II and the final result sheet in Form 20. the certified copies of which are being filed alongwith this Election Petition.

(Underlining by the Court)

(vi) That on polling station 21 Naveen Primary Pathshala Deharpur Khurd, the number of votes polled was 594 as per Form 16, Part I while the total number of votes as shown to have been found inside the ballot box is 544 as per Form 16, Part II with no explanation whatsoever as regard to 50 votes. The averments made are based upon the figures shown in certified copies of Form 16, Part I and Form 16, Part II pertaining to said polling station which are on record of this election petition.

(Underlining by the Court)

(ix) That the counting supervisors similarly failed to prepare a bundle with correct number of votes of each candidate after counting and the bundles containing less than 50 votes cast in favour of respondent No. 1 were also counted as having contained 50 votes. This irregularity has resulted in discrepancies in the figures set out In result sheet in Form 20. According to the information supplied by counting agents of the petitioner on table No. 2 viz. Jafaruddin the counting supervisor of table No. 2 viz. Anand Kumar Pal, Junior Engineer, Public Works Department committed this irregularity in the first round of counting and the bundles of respondent No. 1 containing less than 50 votes were counted as having 50 votes thereby resulting in discrepancy in the number of votes allotted and counted on the table.

(Underlining by the Court)

198. Parts I and II of Form 16 (Ballot Paper Account), maintained under Rule 45 of the Conduct of Election Rules, 1961, and Form 20 (Final Result Sheet), under Rule 56(7)(b) of the Conduct of Election Rules, 1961, which were referred to in paragraphs 12 (iv), 12(v), 12(vi) and 12(ix), and the certified copies whereof were stated to have been filed alongwith the Petition in paragraph 12(v) and asserted to be on record of the Election Petition in paragraph 12(vi) did not accompany the Petition presented in the Court. The said documents were not supplied to the Respondent No. 1 alongwith the copy of the Election Petition served upon him.

199. This Court rejected the said Application of the Respondent No. 1 for dismissing the Election Petition of the Petitioner for non-compliance of the provisions of Section 81(3) of the R.P. Act, 1951.

200. This Court laid down as under (paragraphs 5 to 15 of the said All. L.J.):

5. Intensely relying upon the decision of this Court rendered in Jagram Singh v. Pritam Singh and Ors. reported in 1992 All L.J. at page 502, Sri K.R. Singh, learned Counsel appearing for the respondent No. 1, contended that non-supply of the copies of Parts I and II of Form 16 and of Form 20 alongwith the copy of the election petition to the respondent No. 1 amounted to non-compliance of the mandatory requirement of the provisions of Sub-section (3) of Section 81 of the Act entailing dismissal of the election petition under Sub-section (1) of Section 86 of the Act.

6. Sri Vijendra Singh, learned Counsel for the petitioner, contested the contention of the learned Counsel for the respondent No. 1 on the ground that Par's I and II of Form 16 and of Form 20 were not integral parts of the petition and were merely documents intended to be relied upon by the petitioner as evidence in support of his grounds for questioning the election of the respondent No. 1. According to him, non-supply of the said documents to the respondent No 1 alongwith the copy of the election petition did not amount to non-compliance of. To buttress his submission, the learned Counsel placed reliance upon the decision of the Hon'ble Supreme Court of India in U.S. Sasidharan v. K. Karunakaran and Anr. reported in AIR 1990 SC 924.

7. Section 83 of the Act mandates that every election petition shall contain a concise statement of material facts on which the petitioner relies; and that in a petition which is founded on the ground of any corrupt practice the petition shall also contain full particulars of the alleged corrupt practice including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such corrupt practice.

8. Although the requirement of making of a concise statement of material facts upon which the petitioner relies and of setting forth full particulars of any corrupt practice he alleges in mandatory, the Act does not prescribe any particular form to be used for pleading a concise statement of material fact and particulars.

9. A concise statement of material facts on which the petitioner relies or particulars of corrupt practice alleged to have been committed may be incorporated in the main body of the election petition or in any schedule or annexure thereto, duly signed by the petitioner and verified by him in the same manner as the election petition. The material facts and particulars may also be pleaded by reference to a separate document containing such material facts and particulars. Where the mode of pleading of material facts and particulars in the election petition adopted by the petitioner is incorporation by reference to any document such document becomes integrated in the election petition.

10. But, a document does not become integrated in the election petition merely by its mention in the petition. Mention of a document may be made in the election petition to indicate the intention of the election-petitioner to rely upon it as evidence in support of the material facts or particulars already disclosed in the election petition and such document may also be filed along with the election petition for the purpose. If a document referred in the election petition is filed alongwith is as evidence to be relied upon in support of the material facts or particulars already disclosed in the petition, the document cannot be treated as integral part of the election petition. This is the settled legal position (See U.S. Sasidharan v. K. Karunakaran ).

11. Section 86(1) of the Act ordains the High Court to dismiss an election petition which does not comply with the provisions of Section 81 of Section 82 or Section 117. Sub-section (3) of Section 81, which is relevant in the context of the controversy, requires every election petition presented to the High Court to be accompanied by as many copies thereof as there are respondents mentioned in the petition. It further requires every copy of the election petition accompanying the election to be attested by the petitioner under his own signature to be a true copy of the petition. Obviously, the copy or the copies of the election petition require to accompany the election petition presented to the High Court are meant for service upon the respondent or respondents, as the case may be, for the purpose of giving them notice of the case of the petitioner; and object of demanding strict compliance of the provisions of Sub-section (3) of Section 81 of the Act regarding supply of copy of the election petition attested under the signature of the petitioner to be a true copy of petition is to ensure that the respondent is not prejudiced in making a proper and effective defence. It cannot be gainsaid if the respondent is not furnished with true copy of the election petition along with true copy of the material document forming integral part of the pleadings in the election petition he will surely be prejudiced in making a proper and effective defence.

12. A conjoint reading of paragraphs 12 (iv), 12(v), 12(vi) and 12(ix) leaves no room for doubt that concise statement of material facts and particulars on which the petitioner relies in support of his ground (A), as is required by Section 83 of the Act is fully contained in the said paragraphs. Reference to Parts I and II of Form 16 and Form 20 has been made only to add emphasis to the already seated material facts and to indicate that these documents may be relied upon by the petitioner as evidence to support the material facts. The documents were not filed alongwith the petition as part thereof or otherwise although it is stated in the petition that they "are being filed along with the Election Petition" and "are on record of this election petition". Mere statement by the petitioner that the documents " are being filed along with this Election Petition" or that the documents " are on record of this election petition" cannot make the documents an integral part of an election petition. The Court, therefore, holds that the documents in question are not integral part of the election petition of the petitioner and non-supply thereof will in no way prejudice the respondent No. 1 in making his effective defence. Thus, omission to file or to supply the copies or the said documents to the respondent No. 1 cannot invite the lethal penalty of dismissal of the election petition for non-compliance of the provisions of Section 81(3) of the Act.

13. Legal position regarding requirement of saving upon the respondent a copy of a document, either referred in election petition or filed in the proceedings as evidence, along with a copy of the election petition as has been declared by the Hon'ble Supreme Court of India in the case of U.S. Sasidharan v K. Karunakaran , is as follows: On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent alongwith a copy of the election petition.

14. The contents of the documents, namely, Parts I and II of Form 16 and Form 20, are already pleaded in the election petition by giving relevant figures in its sub-paragraphs reproduced earlier. The documents will only prove or disprove the said figures, and will have the status of evidence, not pleading. The documents being evidence were not statutorily required to be served on the respondent No. 1. Failure, if any, to serve upon the respondent No. 1 copies of the said documents along with the election petition cannot be held to be fatal, by any stretch of imagination.

15. The decision in the case of Jagram v. Pritam Singh 1992 All LJ 502 relied upon on behalf of the respondent No. 1, by itself does not lay down any law having the effect of a binding precedent. It cannot be assigned a status higher than an illustration of the manner and course adopted by the Court on the facts and circumstances of the case. As a matter of fact, the Court followed and felt fortified by the decision of the Hon'ble Supreme Court of India in the case of U.S. Sasidharan v. K. Karunakaran , which still continues to be lodestar.

201. Thus, the following propositions, amongst others, have been laid down in the above decision:

1. Although the requirement of making of a concise statement of material fact upon which the Petitioner relies and of setting-forth full particulars of any corrupt practice he alleges is mandatory, the R.P. Act, 1951 does not prescribe any particular form to be used for pleading a concise statement of material facts and particulars. Such concise statement may be incorporated in the main body of the Election Petition or in any Schedule or Annexure thereto, duly signed by the Petitioner and verified by him in the same manner as the Election Petition. (see paragraphs 8 and 9 of the said All. L.J.).

2. The material facts and particulars may also be pleaded by reference to a separate document containing such material facts and particulars. Where the mode of pleading of material facts and particulars in the Election Petition adopted by the Petitioner is incorporation by reference to any document, such document becomes integrated in the Election Petition. (see paragraph 9 of the said All. L.J.).

3. A document does not become integrated in the Election Petition merely by its mention in the Petition. Mention of a document may be made in the Election Petition to indicate the intention of the election-petitioner to rely upon it as evidence in support of the material facts or particulars already disclosed in the Election Petition and such document may also be filed alongwith the Election Petition for the purpose. If a document referred to in the Election Petition is filed alongwith it as evidence to be relied upon in support of the material facts or particulars already disclosed in the Petition, the document cannot be treated as integral part of the Election Petition. Reliance was placed on the decision in U.S. Sasidharan case (supra) in this regard. (see paragraph 10 of the said All. L.J.).

4. The object of demanding strict compliance of the provisions of Sub-section (8) of Section 81 of the R.P. Act, 1951 regarding supply of copy of the Election Petition attested under the signature of the Petitioner to be a true copy of the Petition is to ensure that the Respondent is not prejudiced in making a proper and effective defence. If the Respondent is not furnished with true copy of the Election Petition alongwith true copy of the material document forming integral part of the pleadings in the Election Petition, he will be prejudiced in making a proper and effective defence. (see paragraph 11 of the said All. L.J.).

5. The contents of the documents, namely, Parts I and II of Form 16 and Form 20, were already pleaded in the Election Petition by giving relevant figures in its sub-paragraphs reproduced above. Therefore, the said documents were not integral part of the Election Petition and non-supply thereof could not in any way prejudice the Respondent No. 1 in making his effective defence. (see paragraphs 12 and 14 of the said All. L.J.).

6. As the contents of the said documents were already pleaded in the Election Petition, the said documents were merely evidence of the pleading in the Election Petition. (see paragraphs 13 and 14 of the said All. L.J.).

7. Non-supply of copies of the said documents did not amount to non-compliance of the provisions of Section 81(3) of the R.P. Act, 195.1. (see paragraphs 12, 13 and 14 of the said All. L.J.).

202. In Election Petition No. 8 of 2002, Ajay Kumar Poeia v. Shyam and Ors. decided by this Court on 10.3.2003, the Petitioner (Ajay Kumar Poeia) challenged the election of the First Respondent (Shyam) to the U.P. Legislative Assembly from 346 Govardhan (S.C.) Assembly Constituency in the elections of 2002. One of the grounds for challenge to the election was that the Assembly Constituency in question was reserved for Scheduled Caste candidates whereas the returned candidate (First Respondent) did not belong to Scheduled Caste.

203. The returned candidate (First Respondent) filed an Application praying that the Election Petition be dismissed under Section 86(1) of the R.P. Act, 1951 for non-compliance of Section 81(3) of the said Act.

204. The relevant paragraphs and sub-paragraphs of the Election Petition as quoted in the judgment of this Court, were as under (paragraphs 4, 6, 7, 8, 9, 10, 11, 12 and 13):

4. That the election of respondent No. 1 (Shyam) is void on the following grounds:

GROUNDS

(i) ...

(ii) Because the respondent No. 1 with the mala fide intention and fraud (sic), obtained a caste certificate showing himself a person belonging to scheduled caste and wrongly and fraudulently (sic) contested the election from the seat which is reserved for scheduled caste where as in fact he does not belong to scheduled caste.

(iii) ...

6. That the respondent No. 1 had filed the nomination paper and annexed his caste certificate showing himself to be of scheduled caste. The caste certificate was issued in favour of the respondent No. 1 by Tehsildar, Mathura on 16.7.2001 showing in belonging to Bahelia caste.

7. That in 1991 the respondent No. 1 was issued a caste certificate showing him as of Agaria caste. The caste certificate was issued by the Tehsildar, Mathura on 8.3.1991 as per the SCHEDULE A.

8. That the respondent No. 1 had contested the election of member of Zia Panchayat in 1995 from ward No. 15 which is a reserved constituency and with his nomination paper, he had annexed a caste certificate showing himself belonging to the scheduled caste.

9. That an election petition was filed by one Laxman Singh against the respondent No. 1 challenging his caste as scheduled caste and it was asserted by the petitioner that Shyam Singh belongs to Aheria caste which is a backward caste.

10. That it is pertinent mention that the brother of Shyam Singh, namely Vijendra Singh had filed an affidavit in the aforesaid election petition and said that they belong to Aheria caste which is a backward caste and not a scheduled caste.

11. That it is relevant to mention that the Daughter of the respondent No. 1 Rani Kumari was studying in Shree Chameli Devi Khandelwal Girls Inter College, Mathura which issued a transfer certificate to the Rani Kumari on 4.3.2002 which contents the caste as Aheria which is the caste of the respondent No. 1.

12. That the facts stated above is conclusive evidence to prove that the respondent No. 1 does not belong to scheduled caste and he Is the member of backward caste as such his nomination paper ought to have been rejected as per the Section 36(2)(a) of the representation of the peoples act.

13. That the petitioner moved an application before the Returning Officer on 24.1.2002 to cancel the nomination of the respondent No. 1 for wrongly showing himself as a member of scheduled caste, which he does not actually belong.

205. After quoting the above paragraphs and sub-paragraphs of the Election Petition, this Court observed as under:

It may be mentioned here that the contents of paragraph 4 of the election petition have been affirmed in the verification clause of the election petition on the basis of legal advice obtained by the election petitioner. Thus, the contend of paragraph 4(ii) extracted above cannot be taken to be an averment of fact in the election petition, because legal advice is given to the litigant regarding law and not regarding facts.

Apart from the said paragraph 4(ii), there is no averment as a fact in the election petition that the returned candidate (respondent No. 1) did not belong to scheduled caste and had wrongly represented himself to be a member of that caste. Even paragraph 13 does not aver as a fact that the respondent No. 1 was not a member of the scheduled caste. What that paragraph actually says is that in an application moved before the Returning Officer the election petitioner had mentioned that the returned candidate was not a member of the scheduled caste'.

In the circumstances, the election petitioner has not pleaded as a fact that the returned candidate was not a member of the scheduled caste and had wrongly so represented himself. On the contrary, what has been pleaded by the election petitioner, on a totality of reading of the paragraphs 6 to 13 is that ' certain documents show that the petitioner Is not a member of the scheduled caste, but he has obtained a wrong caste certificate on the basis of which he has contested the election'.

In the circumstances, it cannot be said that the documents referred to are merely evidence to prove any averment of fact in the election petition. Indeed, as stated above, there is no such averment of fact. Therefore, having regard to the nature and content of the pleadings and documents, the documents have been incorporated in the pleading by reference and it cannot be said that the documents are merely evidence to prove the pleaded facts. Thus, the documents form part of the pleadings of the election petition and non-filing and non-supply of these documents amounts to failure on part of the election petitioner to fulfill the requirement of section 83 and consequently, the petition is liable to be dismissed under section 86(1) of the Representation of the People Act, 1951 in accordance with the law in U.S. Sasidharan v. Karunakaran.

Learned counsel for the election petitioner has relied upon a decision of the Supreme Court in the care of Mohan Rawale v. Damodar Tatyaba alias Dadasaheb and Ors. , (para 20 to 25 of the law report). I fail to see how it helps the election petitioner.

In that case the Supreme Court in para 20, has laid down the test of distinction as follows:

Whether the document is, in itself, an integral part of the pleadings or is merely appended or referred to as a possible means of proving the allegations.

Thereafter, in para 25 of the said law report, the Supreme Court has stated that whether the documents has become an integral part of pleadings or nut depends upon the facts and circumstances of each case and the nature and content of the pleadings and of the documents. Thus, the ratio of the aforesaid case is that facts of each case have to be examined with reference to the nature and contents of the pleadings.

Learned counsel for the election petitioner has thereafter referred to another decision of the Supreme Court in the case of Manohar Joshi v. Nitin Bhaurao Patil , (particularly para 17 onwards of the report). In para 24 and 26 of this law report, the same test has been laid down by the Supreme Court as has been laid down in the case of Mohan Rawale above.

Thereafter, an unreported decision of this Court dated 13.3.1989 in Election Petition No. 53 of 1985 Om Prakash Diwakar v. Ashok Sehra has been cited by the learned Counsel for the petitioner. In that case, the document was not held to be an integral part of the pleading but as stated above the question whether a particular document forms an integral part of pleading by way of incorporation by reference or it is merely an evidence to prove the factual averments in the pleading depends on the facts of each case with reference to the nature and content of the pleadings and documents and because in the cited case and the case in hand the re is no similarity with regard to nature and content of the pleading and the documents, therefore, the cited case to my mind does not help the petitioner in view of what has been stated above in this judgment.

Learned counsel for the petitioner has also relied upon the decision of the Supreme Court in the case of D. Ramachandran v. R.V. Janakiraman and Ors. (Para 10), which has no bearing whatsoever upon the question under adjudication namely, whether the document is merely a part of evidence or it has become part of pleading.

On the other hand, learned Counsel for the first respondent has relied upon the decision of the Supreme Court in the case of U.S. Sasidharan v. K. Karunakaran (supra). For appreciation of the law laid down in that case, it would be useful to refer to two short passages from the above decision which are quoted below:

The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference." (Para 15 of the report in AIR)

On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition.(Para 16 of the law report)

Learned counsel for the first respondent has also relied upon a decision of a learned Single Judge of this Court in the case of Jagram Singh v. Pritam Singh reported in 1992 ALJ 502, the ratio of which is to the same effect as the case of Sasidharan, referred to above.

In view of the findings on facts and law above, the document having become Incorporated in the pleadings of the election petition by reference and due to non-filing and non-supply of the document along with the election petition, the petition is liable to be dismissed under section 86(1) of the Representation of the People Act, 1951.

The election petition is accordingly dismissed.

206. Thus, the following propositions, amongst others, have been laid down in the above decision of this Court:

1. Whether the documents have become an integral part of pleadings or not depends upon the facts and circumstances of each case and the nature and contents of the pleadings and of the documents. Therefore, the facts of each case have to be examined with reference to the nature and contents of the pleadings.

2. The question as to whether a particular document forms an integral part of pleading by way of incorporation by reference or it is merely an evidence to prove the factual averments in the pleading depends on the facts of each case with reference to the nature and content of the pleadings and documents.

3. The test to determine the question as to whether the document is merely a part of evidence or it has become part of pleading, is:

Whether the document is, in itself, an integral part of the pleadings or is merely appended or referred to as a possible means of proving the allegations.

4. Where the documents have been incorporated in the pleadings by reference and thus form an integral part of the pleadings of the Election Petition, "non-filing and non-supply" of such documents alongwith Election Petition would result in the dismissal of the Election Petition under Section 86(1) of the R.P. Act, 1951.

5. In the present case, having regard to the nature and content of the pleadings and documents, the documents were incorporated in the pleadings by reference, and it could not be said that the documents were merely evidence to prove the pleaded facts. As the documents formed an integral part of the pleadings of the Election Petition, non-filing and non-supply of these documents resulted in the dismissal of the Election Petition under Section 86(1) of the R.P. Act, 1951.

207. Against the above decision of this Court in Ajay Kumar Poeia v. Shyam and Ors. an Appeal was filed before the Supreme Court. By its decision reported in Ajay Kumar Poeia v. Shyam and Ors. , the Supreme Court dismissed the said Appeal.

208. Their Lordships of the Supreme Court observed as under (paragraph 4 of the said SCC):

4. A bare perusal of the documents contained in the aforementioned paragraphs would show that the appellant in effect or substance did not raise any material fact that the first respondent herein was not a member of the Scheduled Caste. Learned Counsel appearing on behalf of the appellant, however, submitted that the averments contained in Ground 4(ii) contains the requisite fact. The said paragraphs contain the grounds for setting aside the improper acceptance of the nomination papers filed by the first respondent and cannot be treated to be statements containing the requisite material facts, which, if proved, would entitle the appellant in obtaining the reliefs sought for. Furthermore, the said statements had been verified and purported to be based on legal advice. It may be true that for improper verification of the material facts pleaded in the election petition, the same cannot be dismissed at the threshold, but apart from the fact that the appellant herein did rot move any application for reverification of the election petition, the averments contained in paragraph 4(ii) do not satisfy the requirement of Section 81(1) of the Representation of the People Act, 1951 and in that view of the matter, the said plea is not available to the appellant.

209. Thus, the decision of this Court in Ajay Kumar Poeia v. Shyam and Ors. was upheld by the Supreme Court.

HAVING NOTICED THE STATUTORY PROVISIONS AND THE PROPOSITIONS LAID DOWN IN VARIOUS JUDICIAL DECISIONS, VARIOUS PRINCIPLES, WHICH FOLLOW FROM THE SAID STATUTORY PROVISIONS AND JUDICIAL DECISIONS INSOFAR AS THE SAME ARE RELEVANT FOR DISPOSAL OF THE APPLICATION IN QUESTION, NAMELY, APPLICATION (PAPER No. A-7), MAY BE ENUMERATED:

(1) All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In other words, all those facts which are essential to clothe the Petitioner with a complete cause of action, are "material facts", which must be pleaded. Failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the R.P. Act, 1951.

(2) Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad, and the Election Petition would, therefore, be liable to be dismissed if it suffers from any such vice.

(3) In case, the Election Petition is filed on the ground of corrupt practice, then the Election Petition must set-forth full particulars of 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 and place of the commission of each such practice. (see Section 83(1)(b)of the R.P. Act, 1951).

(4) If the material facts and/or particulars of corrupt practice are found in a document, then following situations may arise:

(A) The document is incorporated in the Election Petition by reference without reproducing its contents. In such a case, the document becomes an integral part of the Election Petition, and it must be filed with the Election Petition, and its copy must be supplied to the Respondent alongwith copy of the Election Petition. If copy of such a document is not supplied to the Respondent alongwith copy of the Election Petition, then the copy of the Election Petition will not be a true copy within the meaning of Section 81(3) of the R.P. Act, 1951, and as such, the Election Petition will be liable to be dismissed under Section 86(1) of the said Act for non-compliance with the requirements of Section 81(3) of the said Act.

(B) The contents of the document are reproduced in the Election Petition. In such a case, the document does not become an integral part of the Election Petition. Therefore, the document need not be filed with the Election Petition, nor its copy need be supplied to the Respondent alongwith copy of the Election Petition. Failure to supply copy of the document in such a case, will not be non-compliance with the provisions of Section 81(3) of the R.P. Act, 1951.

(5) Where the contents of a document are reproduced in the Election Petition, the document is only evidence of the pleadings incorporated in the Election Petition. In such a case, the document need not be filed with the Election Petition, nor its copy need be supplied to the Respondent.

Even if the document is annexed to the Election Petition, the document will be only evidence of the pleadings incorporated in the Election Petition. Therefore, failure to supply copy of such a document annexed to the Election Petition does not amount to non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951 to attract dismissal of the Election Petition under Section 86 of the said Act.

(5) If a document does not form an integral part of the Election Petition, but the document has been referred to in the Election Petition as evidence of any fact, or the document has been filed in the proceedings as evidence of any fact, then copy of such a document is not required to be served on the Respondent alongwith copy of the Election Petition.

(7) When a document has been filed in the proceedings, but is not referred to in the Election Petition, either directly or indirectly, a copy of such a document need not be served on the Respondent alongwith copy of the Election Petition.

(8) If a document is evidence of the material facts pleaded in the Election Petition, then such a document need not be filed with the Election Petition, nor its copy need be supplied to the Respondent alongwith copy of the Election Petition.

(9) Test to determine as to whether a document is an integral part or the Election Petition, or is merely evidence of the pleadings incorporated in the Election Petition is: Whether statement of material facts in the Election Petition, as per the requirements of Clause (a) of Section 83(1) of the R.P. Act, 1951, and/or setting forth of particulars of corrupt practice in the Election Petition, as per the requirements of Clause (b) of Section 83(1) of the said Act, is incomplete without reference to the contents of the document?

210. If the answer to the above question is in the affirmative, then the document is an integral part of the Election Petition.

211. On the other hand, if the answer to the above question is in the negative, then the document is merely evidence of the pleadings incorporated in the Election Petition.

212. The above principles should be read in the light of Order VII, Rule 14 of the Code of Civil Procedure, as amended by the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002, the scope whereof will be discussed in the subsequent part of this judgment.

213. The above principles may be referred to as constituting the thereof doctrine of integral part or the theory/doctrine of incorporation by reference and the exceptions thereto.

LET US NOW PROCEED TO CONSIDER VARIOUS CONTENTIOUS POINTS RAISED BY THE LEARNED COUNSEL FOR THE PARTIES.

Point No. 1. Whether Section 83 of the R.P. Act, 1951 is relevant at the stage of consideration of the dismissal of the Election Petition under Section 86(1) of the said Act?

214. It is submitted by the learned Counsel for the Petitioner that Section 86(1) of the R.P. Act, 1951 does not refer to Section 83 of the said Act, and, therefore, the Election Petition cannot be dismissed under Section 86(1) of the said Act on account of non-compliance with the requirements of Section 83 of the said Act.

215. On the other hand, the learned Counsel for the Respondent submits that in order to decide as to whether a document contains material facts or particulars of corrupt practice, it is necessary to refer to the provisions of Section 83 of the R.P. Act, 1951.

216. Detailed submissions made by the learned Counsel for the parties in this regard have already been noticed in the earlier part of this judgment, and the same need not be repeated here.

217. I have considered the submissions made by the learned Counsel for the parties.

218. As noted in the earlier part of this judgment, Section 86(1) of the R.P. Act, 1951 lays down that the High Court shall dismiss an Election Petition which does rot comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act. Thus, Section 83 of the R.P. Act, 1951 has not been mentioned in Section 86(1) of the said Act. Therefore, non-compliance with the provisions of Section 83 of the R.P. Act, 1951 cannot be a ground for dismissal of the Election Petition under Section 86(1) of the said Act.

219. Therefore, in case, the material facts are not stated in the Election Petition as per the requirements of Section 83(1)(a) of the R.P. Act, 1951 or the particulars of corrupt practice are not set-forth in the Election Petition as per the requirements of Section 83(1)(b) of the R.P. Act, 1951, then the Election Petition cannot be dismissed at the threshold under Section 86(1) of the R.P. Act, 1951. It is true that such an Election Petition may be dismissed in view of the provisions of Order VII, Rule 11(a) of the Code of Civil Procedure read with Section 87 of the R.P. Act, 1951, or the pleadings which are irrelevant etc. may be struck-out under the provisions of Order VI, Rule 16 of the Code of Civil Procedure read with Section 87 of the R.P. Act, 1951, but the same will be subsequent to the stage of Section 86(1) of the R.?. Act, 1951.

220. The decisions of the Supreme Court in U.S. Sasidharan case (supra) and in Manohar JoshiA case (supra) lay down that the stage of consideration of non-compliance of the requirements of Section 83(1)(a) and (b) of the R.P. Act, 1951, thereby attracting Order VII, Rule 11(a) or Order VI, Rule 16 of the Code of Civil Procedure comes after the stage of Section 86(1) of the R.P. Act, 1951. In other words, the stage of Section 86(1) of the R.P. Act, 1951 is anterior to the stage of Section 83(1)(a) and (b) of the said Act.

221. It has been seen above that the theory/doctrine of integral part has been propounded with reference to the compliance of the requirements of Section 81(3) of the R.P. Act, 1951. It has also been noticed above that the theory/doctrine of integral part is attracted where a document contains material facts or particulars of corrupt practice. Whether a document contains material facts or particulars of corrupt practice can only be decided with reference to Section 83(1)(a) of the R.P. Act, 1951, which requires concise statement of material facts in the Election Petition, and Section 83(1)(b), which requires setting forth of particulars of corrupt practice.

222. Therefore, while it is true that an Election Petition cannot be dismissed under Section 86(1) of the R.P. Act, 1951 on the ground of non-compliance with the requirements of Section 83(1)(a) or Section 83(1)(b) of the said Act, but the provisions of Section 83(1)(a) and Section 83(1)(b) of the said Act may be referred to for deciding as to whether a document contains material facts and/or particulars of corrupt practice, so as to attract the theory/doctrine of integral part which is relevant for deciding the question of compliance of Section 81(3) of the said Act. To this limited extent, the provisions of Section 83 of the R.P. Act, 1951 are relevant while considering the question of dismissal of an Election Petition under Section 86(1) of the said Act.

Point No. (2): Whether for excluding the requirement of Filing a document with the Election Petition or supplying its copy to the Respondent alongwith copy of the Election Petition, exact or verbatim reproduction of a document in the Election Petition is necessary, or substantial narration of the contents of the document would be sufficient?

223. It is submitted by the learned Counsel for the Respondent that in case the entire document, as it is, is reproduced/ quoted in the Election Petition, it will not be necessary to file the said document with the Election Petition, nor will it be necessary to supply copy thereof to the Respondent alongwith copy of the Election Petition as per the requirements of Section 81(3) of the R.P. Act, 1951. It is emphasized by the learned Counsel for the respondent that exact and verbatim reproduction of the contains of the document in the Election Petition is necessary in order to exclude the requirement of filing the document alongwith the Election Petition and supplying copy thereof to the Respondent alongwith the copy of the Election Petition.

224. On the other hand, it is submitted by the learned Counsel for the Petitioner that it is not necessary that the contents of a document should be quoted/ reproduced verbatim in the Election Petition. What is required is substantial reproduction of the contents of the document in the Election Petition.

225. Detailed submissions made by the learned Counsel for the parties in this regard have already been noted in the earlier part of this judgment, and the same need not be repeated here.

226. I have considered the submissions made by the learned Counsel for the parties.

227. Sub-section (1) of Section 81 of the R.P. Act, 1951, as noted earlier, lays down that 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 of the R.P. Act, 1951. Therefore, the Election Petition must specify the ground/grounds mentioned in Sub-section (1) of Section 100 and Section 101 of the said Act, on which the Petitioner relies for challenging any election.

228. Clause (a) of Sub-section (1) of Section 83 of the R.P. Act, 1951 makes it-obligatory on the part of the Petitioner to give in the Election Petition a concise statement of the material facts on which he relies in respect of the ground/grounds taken by him in the Election Petition. Further, Clause (b) of Sub-section (1) of Section 83 of the R.P. Act, 1951 requires that the Petitioner must set-forth in the Election Petition full particulars of any corrupt practice that the Petitioner alleges as a ground/grounds for challenging any election.

229. The object of the above provisions is that the Respondent must know the grounds on which an Election Petition has been filed as well as the material facts pertaining to the said grounds as also the particulars of corrupt practice if the Election Petition has been filed on the ground of corrupt practice, so that the Respondent may put up effective defence. To meet such cases, the theory/ doctrine of Integral part, as mentioned in detail above, has been developed.

230. As noted above, the theory/doctrine of integral part provides that if a document contains material facts or particulars of corrupt practice, and such a document is incorporated in the Election Petition by reference without reproducing its contents in the Election Petition, then such a document becomes an integral part of the Election Petition. Such a document must be filed with the Election Petition, and its copy must be supplied to the Respondent alongwith copy of the Election Petition.

231. However, in case, the contents of the document are reproduced in the Election Petition, then such a document does not become an integral part of the Election Petition. Therefore, such a document need not be filed with the Election Petition nor its copy need be supplied to the Respondent alongwith copy of the Election Petition.

232. The object of the theory/ doctrine of Integral part is that the Respondent may know all the material facts or particulars of corrupt practice relied upon by the Petitioner, and reply to the same effectively in his defence. Therefore, the object is to bring all the material facts or particulars of corrupt practice to the notice of the Respondent.

233. Now suppose all the material facts or particulars of corrupt practice, as contained in a document, are stated in the Election Petition. These material facts or particulars of corrupt practice may not be stated in the exact or verbatim wording as used in the document, but whatever material facts or particulars of corrupt practice are contained in the document, the same have been stated in the Election Petition. In other words, there is substantial, not literal, reproduction of the contents of the document in the Election Petition insofar as the material facts or particulars of corrupt practice as contained in the document, are concerned.

234. In such a case, the document will not be an integral part of the Election Petition but will only be an evidence of the material facts or particulars of corrupt practice as stated in the Election Petition on the basis of the contents of document.

235. Hence, I am of the opinion that what is required is substantial reproduction of the contents of a document in the Election Petition so that all the material facts or particulars of corrupt practice as contained in the document, are stated in the Election Petition. Exact or verbatim reproduction of such a document is not required.

236. It should, however, be noted that while making substantial reproduction of the contents of the document, it is necessary that all the material facts or particulars of corrupt practice, as contained in the document, are stated in the Election Petition. Further, there should be sufficient indication in the Election Petition that the said material facts or particulars of corrupt practice are contained in the said document and are being stated on the basis of the contents of the said document.

237. It is true, as submitted by the learned Counsel for the Respondent, that in U.S. Sasidharan case (supra) (paragraph 15 of the said AIR), the words " without pleading its contents in the election petition" have been used. Similarly, in Manohar Joshi case (supra) (paragraph 23 of the said Judgment Today), the words " without reproducing its contents" and "fully incorporated" have been used.

238. However, reading the entire judgments in the said cases in the light of the object of pleading/ reproducing the contents of a document containing material facts or particulars of corrupt practice, it is evident that what is required is substantial reproduction of the contents of a document in the Election Petition so that all the material facts or particulars of corrupt practice, as contained in the document, ate stated in the Election Petition. The above mentioned words used in the said judgments are intended to emphasize that all the material facts or particulars of corrupt practice, as contained in a document, should be fully stated in the Election Petition by substantial reproduction of the contents of the document in the Election Petition.

239. Suppose material facts and/or particulars of corrupt practice, as contained in the document, are stated in the Election Petition by reproducing the contents of the document. Question arises:

240. Whether reproduction of the contents of the document in the Election Petition, is substantial or not?

241. In order to answer the question, certain tests may be indicated:

(i) Whether without further reference to the document, certain material fact(s) and/ or particular(s) of corrupt practice, as contained in the document, would be missing in the Election Petition?

(ii) Whether without further reference to the document, it would not be possible to appreciate and understand the material facts and/or particulars of corrupt practice, stated in the Election Petition by reproducing the contents of the document?

(iii) Whether without further reference to the document, it would not be possible to know the relevance, implications, and impact/ consequence/ effect of the contents of the document?

242. If the answer to all or any of the tests is in the affirmative, then the reproduction of the contents of the document in the Election Petition is not substantial reproduction. Hence, the document becomes an integral part of the Election Petition, and it must be filed with the Election Petition, and its copy must be supplied to the respondent alongwith copy of the Election Petition.

243. On the other hand, if the answer to none of the above tests is in the affirmative, then the reproduction of the contents of the document in the Election Petition is substantial reproduction. Hence, the document does not become an integral part of the Election Petition, and it is not necessary to file the same with the Election Petition or supply copy thereof to the respondent alongwith copy of the Election Petition.

Point No. (3): Whether the theory / doctrine of integral pan is confined to the cases where the challenge to an election is on the ground of corrupt practice, or the said theory/ doctrine also applies in cases where an election is challenged on ground/ grounds other than corrupt practice?

244. It is submitted by the learned Counsel for the. Petitioner that various cases laying down the theory/ doctrine of integral part were cases where elections were challenged on the ground of corrupt practice, and the documents in question contained particulars of corrupt practice. Therefore, the submission proceeds, the theory/ doctrine of integral part should be confined to such cases only.

245. On the other hand, the learned Counsel for the Respondent submits that various cases, laying down the theory/ doctrine of integral part, do not make any difference as to the documents which contain material facts and the documents which contain particulars of corrupt practice.

246. Detailed submissions made by the learned Counsel for the parties in this regard have already been noted in the earlier part of this judgment, and the same need not be repeated here.

247. Having considered the submissions made by the learned Counsel for the parties, I find myself unable to accept the submissions made by the learned Counsel for the Petitioner.

248. There is no indication in any of the judgments mentioned above that the theory/ doctrine of integral part is confined only to cases of corrupt practice. On the contrary, the said judgments clearly show that the theory/ doctrine of integral part is concerned with the cases where the material facts as contemplated in Clause (a) of Section 83(1) of the R.P. Act, 1951 or particulars of corrupt practice as contemplated in Clause (b) of Section 83(1) of the R.P. Act, 1951 are contained in a document. No distinction has been made between a document containing material facts and a document containing particulars of corrupt practice.

249. Therefore, even if the Election Petition has been filed not on the ground of corrupt practice, but on other grounds mentioned in Sections 100 and 101 of the R.P. Act, 1951, and the material facts are contained in a document, then the theory/ doctrine of integral part will apply.

250. The above conclusions are supported by the observations of the Supreme Court in various cases. For instance, in U.S. Sasidharan case (supra), the doctrine of integral part has been laid down with reference to cases where "the material facts or particulars relating to any corrupt practice" are contained in a document. (see paragraph 15 of the said AIR).

251. In Manohar Joshi case (supra), the Supreme Court reiterated the doctrine of integral part as laid down in U.S. Sasidharan case (supra) with reference to the cases where "the material facts or particulars of corrupt practice" are contained in a document.

Point No. (4): Whether the theory/ doctrine of integral part stands excluded where a document, though incorporated in the Election Petition by reference without reproducing its contents, is not filed by the Petitioner with the Election Petition so as to absolve the Petitioner of the responsibility of supplying copy of such a document to the Respondent along with copy of the Election Petition as per the requirements of Section 81(3) of the R.P. Act, 1951?

252. It is submitted by the learned Counsel for the Petitioner that the theory/ doctrine of integral part applies only when the document is filed with the Election Petition, and its copy is not served on the Respondent as per the requirements of Section 81(3) of the R.P. Act, 1951. It is further submitted by the learned Counsel for the petitioner that the theory/ doctrine of integral part is not applicable in a case where the document is not filed with the Election Petition, and, therefore, copy of such a document is not required to be served on the Respondent alongwith copy of the Election Petition as per the requirements of Section 81(3) of the R.P. Act, 1951.

253. On the other hand, the learned Counsel for the Respondent submits that the theory/doctrine of integral part applies if a document contains material facts and/or particulars of corrupt practice, and the document is referred to in the Election Petition without pleading the contents of the document in the Election Petition. In such a case, the document is incorporated in the Election Petition by reference, and becomes an integral part of the Election Petition. There is no further requirement that the document should be filed with the Election Petition.

254. In case, the document is so incorporated in the Election Petition by reference and becomes an integral part of the Election Petition, the submission proceeds, copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition as per the requirements of Section 81(3) of the R.P. Act, 1951, irrespective of the fact as to whether the document has been filed with the Election Petition or not. The applicability of the theory/ doctrine of integral part, it is submitted by the learned Counsel for the respondent, is not dependent on the filing of the document with the Election Petition.

255. Detailed submissions in this regard have already been noticed in the earlier part of this judgment, and the same need not be repeated here.

256. I have considered the submissions made by the learned Counsel for the parties.

257. As noted above, the object of the requirements of Clause (a) of Section 83(1) of the R.P. Act, 1951 requiring concise statement of material facts in the Election Petition and of Clause (b) of Section 83(1) of the R.P. Act, 1951 requiring setting-forth of particulars of corrupt practice, is to enable the Respondent to know ail the material facts and/ or particulars of corrupt practice so that he may put up effective defence.

258. The theory/ doctrine of integral part has been developed for dealing with the cases where the material facts and/ or particulars of corrupt practice are contained in a document. According to the said theory/ doctrine, if such a document is referred to In the Election Petition without reproducing its contents in the Election Petition then such a document is incorporated in the Election Petition by reference and becomes an integral part of the Election Petition.

259. Section 81(3) of the R.P. Act, 1951 requires supply of a true copy of the Election Petition.

260. Once a document becomes an integral part of the Election Petition, copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition so as to fulfil the requirements of Section 81(3) of the R.P. Act, 1951. This is because, the object of Section 81(3) of the R.P. Act, ,1951 is that the Respondent should get a true copy of the Election Petition so that he may put up effects defence. In case, a document has been made integral part of the Election Petition by incorporating the document by reference in the Election Petition without reproducing its contents in the Election Petition, then non-supply of copy of such a document will frustrate the object of Section 81(3) of the said Act as the Respondent will not be able to know the material facts and/ or particulars of corrupt practice as contained in the document and will not be able to put up effective defence.

261. Therefore, in case a document has been made integral part of the Election Petition by incorporating the same by reference in the Election Petition without reproducing its contents in the Election Petition then it is incumbent on the Petitioner to file the document alongwith the Election Petition and supply copy of such a document to the Respondent alongwith copy of the Election Petition so that the object of Section 81(3) of the R.P. Act, 1951 is fulfilled and the Respondent is able to put up effective defence.

262. Even if the Petitioner chooses not to file such a document with the Election Petition, still copy of such a document will have to be supplied to the Respondent alongwith copy of the Election Petition so as to fulfil the object of Section 81(3) of the R.P. Act, 1951. In my opinion, the Petitioner cannot be permitted to frustrate the object of Section 81(3) of the R.P. Act, 1951 by adopting this indirect method of not filing the document with the Election Petition. What the Petitioner cannot do directly, namely, to defeat the object of Section 81(3) of the R.P. Act, 1951, he cannot be permitted to do that indirectly.

263. Therefore, even if the Petitioner has not filed with the Election Petition a document, which is incorporated in the Election Petition by reference without reproducing its contents and is an integral part of the Election Petition, still he will be required to furnish copy of such a document to the Respondent alongwith copy of the Election Petition to meet the requirements of Section 81(3) of the R.P. Act, 1951.

264. Reference in this regard may be made to the decisions of the Supreme Court in U.S. Sasidharan case (supra) and in Manohar Joshi case (supra).

265. In U.S. Sasidharan case (supra), the Video cassette in question was submitted by the appellant in a sealed cover with an application praying for keeping the Video cassette in the sealed cover till the stage of examination of witnesses. Copy of the Video cassette was not served on the First Respondent alongwith copy of the Election Petition. (see paragraphs 5 and 18 of the said AIR).

266. Thus, as noted by the Supreme Court, it was apparent "that not only the copy of the Video cassette was not served on the first Respondent, but also the appellant had no intention of serving a copy of the same on the first Respondent" (see paragraph 18 of the said AIR).

267. It is, thus, evident that the Video cassette in question was not filed with the Election Petition as a Schedule or Annexure to the Election Petition, but was filed separately in a sealed cover alongwith an Application with the prayer that the Video cassette be kept in sealed cover till the stage of examination of witnesses. Therefore, the appellant (Petitioner in the Election Petition) did not intend the Video cassette in question to be treated as part of the Election Petition but intended the same to be treated as evidence of the averments made in the Election Petition. Despite the said facts, the Supreme Court laid down the theory/ doctrine of integral part and held that the Video cassette in question formed an integral part of the Election Petition, and therefore, the copy of the Election Petition which was served on the First Respondent without a copy of the Video cassette was not a true copy of the Election Petition within the meaning of Section 81(3) of the R.P. Act, 1951, and as such, the Election Petition was liable to be dismissed under Section 86(1) of the said Act.

268. This decision, thus, shows that the applicability of theory/ doctrine of integral part is not dependent on filing of the document with the Election Petition.

269. In Manohar Joshi case (supra), the Video cassettes in question were not filed with the Election Petition but were subsequently filed at the trial. Mention of the Video cassettes was made in paragraphs 32 and 33 of the Election Petition. Copy of the Video cassettes was not supplied to the Respondent alongwith copy of the Election Petition.

270. The Supreme Court followed with approval the theory/ doctrine of integral part as laid down in U.S. Sasidharan case (supra) (see paragraphs 22 and 23 of the said Judgment Today). The Supreme Court emphasized the distinction between a document incorporated in the Election Petition without reproducing its contents thereby making the document an integral part of the Election Petition and a document referred to in the Election Petition as evidence of the averments made in the Election Petition.

271. The Supreme Court laid down that as the contents of the Video cassettes were not incorporated in the Election Petition by reference and the Video cassettes were merely referred to as evidence of the averments made in paragraphs 32 and 33 of the Election Petition, it was not necessary to supply copy of the Video cassettes to the Respondent alongwith copy of the Election Petition.

272. It will, thus, be noticed that even though the Video cassettes were not filed with the Election Petition, still the Supreme Court considered the applicability of the theory/ doctrine of integral part and concluded that the Video cassettes were not an Integral part of the Election Petition but were merely evidence of the averments made in paragraphs 32 and 33 of the Election Petition.

273. This decision again shows that the applicability of the theory/ doctrine of integral part is not dependent on the filing of the document with the Election Petition.

274. Hence, I am of the opinion that where a document is incorporated in the Election Petition by reference in the Election Petition without reproducing its contents in the Election Petition, then the theory/ doctrine of integral part becomes applicable and the document is treated to be an integral part of the Election Petition, and copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition so as to fulfil the requirements of Section 81(3) of the R.P. Act, 1951. Even if such a document is not filed with the Election Petition, still the theory/ doctrine of integral part will remain applicable and copy of the document will have to be supplied to the Respondent alongwith copy of the Election Petition.

275. Hence, even if a document, which is incorporated in the Election Petition by reference without reproducing its contents, is not filed with the Election Petition, still the theory/ doctrine of integral part is not excluded so as to absolve the Petitioner of the responsibility of supplying copy of such a document to the Respondent alongwith copy of the Election Petition as per the requirements of Section 81(3) of the R.P. Act, 1951.

Point No. (5): Whether the doctrine of substantial compliance, as laid down in T.M. Jacob v. C. Poulose and Ors. (supra), relying upon Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. (supra), can be resorted to for excluding the theory/ doctrine of integral part, and the consequent requirement of supplying copy of the document forming an integral part of the Election Petition to the Respondent alongwith copy of the Election Petition, as per the requirements of Section 81(3) of the R.P. Act, 1951?

276. It is submitted by the learned Counsel for the Petitioner that in view of the doctrine of substantial compliance laid down by the Supreme Court in T.M. Jacob case (supra), relying upon its decision in Murarka Radhey Shyam Ram Kumar case (supra), with reference to Section 81(3) of the R.P. Act, 1951, the word "copy" occurring in Section 81(3) of the R.P. Act, 1951 does not mean an absolutely exact copy. It means a copy so true that no body can by any possibility misunderstand it. Once there is substantial compliance with the requirements of Section 81(3) of the R.P. Act, 1951, the Election Petition cannot be dismissed under Section 86(1) of the said Act.

277. On the other hand, the learned Counsel for the Respondent submits that the decisions in T.M. Jacob case (supra) and Murarka Radhey Shyam Ram Kumar case (supra) were in a different context. The theory/ doctrine of integral part was not considered in the said decisions. Therefore, the theory/ doctrine of integral part cannot be excluded by taking recourse to the doctrine of substantial compliance.

278. Detailed submissions made by the learned Counsel for the parties in his regard have already been noted in the earlier part of this judgment, and the same need not be repeated here.

279. I have considered the submissions made by the learned Counsel for the parties.

280. In Murarka Radhey Shyam Ram Kumar case (supra), the appellant (Murarka Radhey Shyam Ram Kumar) was elected to the House of the People at the third general elections held in the month of February, 1962. Two Election Petitions were filed for setting aside the election of the appellant.

281. By two applications dated July 6, 1962, the appellant, who was one of the respondents to the two Election Petitions, raised certain preliminary objections to the maintainability of the two Election Petitions.

282. The Election Tribunal dealt with these preliminary objections by its orders dated August 13, 1962. It dismissed the preliminary objections.

283. Thereupon, the appellant filed two Writ Petitions in the High Court of Rajasthan. These two Writ Petitions were dismissed by the High Court by its order dated August 31, 1962.

284. The appellant then applied for special leave to the Supreme Court and having obtained such leave, preferred the appeals before the Supreme Court.

285. One of the preliminary objections raised by the appellant before the Election Tribunal was that the last part of Sub-section (3) of Section 81 of the R.P. Act, 1951 requiring that "every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition", was not complied with inasmuch as (1) the copy which was served on the appellant did not contain the signature of the petitioner at the foot of the petition, though the original contained such signature, and (2) the verification in the copy served on the appellant omitted to mention paragraph 14-g (ii) in that part of the verification which related to averments stated to be true to the personal knowledge of the petitioner.

286. As to the first of these defects, the Election Tribunal pointed out that every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner and furthermore it was not necessary to append a fresh signature to the copy of the petition. With regard to the second defect, the Election Tribunal apparently took the view, though it did not say so in so many words, that the omission of a reference to paragraph 14-g(ii) in the verification in the copy served on the appellant was a case of mere oversight which did not mislead anybody because in the body of the petition full details of the averments were made.

287. The High Court took the view that the defect was not of such a nature as to amount to a non-compliance with the provisions of Sub-section (3) of Section 81 of the R.P. Act, 1951.

288. Agreeing with the view of the Election Tribunal and the High Court, their Lordships of the Supreme Court held as under (paragraph 11 of the said AIR):

11. We agree with the High Court and the Election Tribunal that the first defect is not a defect at all. When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word "petitioner"' was not necessary. Sub-section (3) of Section 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word "copy" occurring in Sub-section (3) of Section 81. On behalf of the appellant the argument is that Sub-section (3) of Section 81 being mandatory in nature all the requirements of the sub-section must be strictly complied with and the word "copy' must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the word "copy" means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of Sub-section (3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this Court in Kamaraja Nadar v. Kunju Thevar . We are of the view that the word "copy" in Sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud's Judicial Dictionary, third edition, Volume 4, page 3098). In this view of the matter it is unnecessary to go into the further question whether any part of Sub-section (3) of Section 81 is merely directory. Several English decisions were cited at the bar. The earlier decision cited to us is the decision in Pocock v. Mason (1834) 131 ER 1111 where it was held that the omission of the words 'the" and "by" in the copy of the writ of capias prescribed by the Schedule 2 W. 4, c. 39 did not invalidate an arrest. The reason given was thus expressed: To ascertain whether or not an unfaithful copy produces any alteration in the meaning, supposes an exertion of intellect which it may be Inconvenient to require at the hands of those who serve the copy. It was to obviate this Inconvenience, that the Legislature has given a form, and required that it should be pursued. Nothing but ordinary care is necessary for taking the copy.

In a later decision Sutton v. Mary Ann Burgess (1835) 149 ER 1291 the copy of the writ served on the defendant omitted the letter "s" in the word "she". It was held that the omission was immaterial as it could not mislead anybody. In Morris v. Smitth (1835) 150 ER 51 there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner Temple, London and the addition of "gentleman" was not given. It was held that the form in the statute 2 Will. 4, C. 39 Section 1 did not require the addition of the defendant to be Inserted in the Writ and it was sufficient to state his residence. The writ of summons was therefore valid. In another case in the same volume Cooke v. Vaughan (1938) 150 ER 1346 it was held that where a writ of capias described the defendant by the addition of "gentleman" but that addition was omitted in the copy served, the copy was not a copy of the writ, in compliance with the stat. 2 Will 4, c. 39, Section 4. On behalf of the respondents a number of decisions under the Bills of Sale Act, 1878 and the Amendment Act, 1882 (45 and 46 Vict. c. 43) were cited. The question in those cases was whether the bill was "in accordance with the form in the schedule to this Act annexed" as required by Section 9 of the Bills of Sale Act 1878, and Amendment Act 1882. In In re Hewer Ex parte Kahen (1882) 21 Ch D 871 it was held that a "true copy" of a bill of sale within the Bills of Sale Act 1878, Section 10, Sub-section (2), must not necessarily be an exact copy, so long as any errors or omissions in the copy filed are merely clerical and of such a nature that no one would the thereby misled. The same view was expressed in several other decisions and it is unnecessary to refer to them all. Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 2t '9 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of Sub-section (3) of Section 81. In that view of the matter Sub-section (3) of Section 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure to comply with the provisions of Section 81. This disposes of the second preliminary objection raised before us.

289. Thus, this decision, inter-alia, lays down the following propositions:

(1) The word "copy" in Sub-section (3) of Section 81 of the R.P. Act, 1951 does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it.

(2) The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person.

(3) Applying the above test (mentioned in proposition No. 2), their Lordships of the Supreme Court concluded that the aforementioned defects complained of with regard to the Election Petition were not such as to mislead the appellant; therefore, there was no failure to comply with the last part of Sub-section (3) of Section 81 of the R.P. Act, 1951.

290. It will thus be seen that the above decision dealt with such omissions/defects in the "copy" of the Election Petition supplied to the respondent in the Election Petition (-appellant before the Supreme Court-) as were formal in nature, and the same could not mislead the respondent in the Election Petition (-appellant before the Supreme Court).

291. The above decision was not dealing with a case of failure to supply copy of a document forming an integral part of the Election Petition, alongwith copy of the Election Petition, as per the requirements of the theory/doctrine of integral part laid down with reference to Sub-section (3) of Section 81 of the R.P. Act, 1951. The theory/doctrine of integral part was not considered in the above decision.

292. In T.M. Jacob case (supra), the appellant, T.M. Jacob, was elected to the Kerala State Legislative Assembly. An Election Petition was filed in the High Court of Kerala by the first respondent challenging the election of the appellant.

293. The appellant filed application/ objection in the said Election Petition seeking dismissal of the Election Petition on the ground of non-compliance with the requirements of Section 81(3) of the R.P. Act, 1951.

294. One of the objections was that copy of the affidavit in Form 25 as per Rule 94-A of the Conduct of Election Rules, 1961, served on the appellant, was defective, and was not a "true copy" as provided in Section 81(3) of the R.P. Act, 195. Reliance for this objection was placed by the appellant on the decision of the Supreme Court in Dr. (Smt) Shipra v. Shanti Lal Khoiwal (supra).

295. The Kerala High Court rejected the application/ objection filed by the appellant.

296. As regards the above objection regarding copy of the affidavit, served on the appellant, being defective, the Kerala High Court held that the "omissions" point ad out in the copy of the affidavit, served on the appellant, did not render that copy as not a "true copy", and there had been substantial compliance with the provisions of Section 81(3) of the R.P. Act, 1951 besides the alleged variation could not cause any prejudice to the appellant in formulating his defence.

297. Distinguishing the decision in Dr (Smt) Shipra case (supra), the Kerala High Court opined that the vice which had been noticed in Dr. (Smt.) Shipra case? (supra) was not present in the present case.

298. Against the order of the Kerala High Court rejecting the application/ objection, the appellant filed appeal before the Supreme Court by Special Leave.

299. After Special Leave was granted by the Supreme Court, the following order was made on 18.12.1997 for reference to a larger Bench:

The main point urged by the learned Counsel for the appellant is that a copy of the affidavit supplied to the appellant together with the notice of the Election Petition Is not a true copy inasmuch as it does not indicate the name and designation of the Notary nor does it bear the seal and stamp of the Notary. On this basis, it is contended that there is non-compliance of Section 81(3) because of which the Election Petition is liable to be dismissed at the threshold under Section 86(1) of the Representation of the People Act. Sh. Sorabjee, learned Counsel for the appellant places reliance on the decision in Dr. Shipra v. Shanti Lal Khoiwal , particularly the opinion of Justice Paripooman therein read with that of Justice K. Ramaswamy. Sh. Sorabjee submits that even though from the supplementary opinion of Justice Bharucha, contained in para 17 of the report, identity on this point may not be explicit but there being no reservation in the opinion of Justice Bharucha on this point this view is to be construed as the unanimous decision of the three-Judge Bench.

Having heard Sh. Sorabjee, we are not too sure that the principle indicated in the said decision can apply to the facts of the present case but certain wide Observations, in the opinion of Justice Paripooman and Justice K. Ramaswamy, may support the appellants contentions. In our opinion, the matter would, therefore, require reconsideration by a larger Bench to decide whether even in a case like the present one, the decision in Dr. Shipra v. Shanti Lal Khoiwal can apply.

The papers be laid before the Chief Justice for constitution of a larger Bench.

300. The matter was, accordingly, placed before the Constitution Bench.

301. The Constitution Bench noticed that in Dr. (Smt) Shipra case (supra), the "true copy" of the Election Petition furnished by the appellant (election - petitioner) to the respondent (the successful candidate) did not show that the appellant's affidavit supporting his allegations of corrupt practice had been duly sworn or affirmed.

302. Having noticed the facts in Dr. (Smt) Shipra case (supra), the Constitution Bench in T.M. Jacob case (supra), opined as under (paragraphs 19, 24, 25, 28, 32, 33, 34, 40, 41, 42, 44 and 45 of the said AIR):

19. Thus from the facts' noted by Bhanjcha, J., it transpires that in Dr. Shipra's case 1996 AIR SCW 1772 the "true copy" of the Election Petition furnished to the respondent gave an impression that the election-petitioner's affidavit supporting his allegations of corrupt practice had not been duty sworn and verified by the election-petitioner before the Notary, who also had not attested the same thereby rendering that document as "no affidavit at all in the eye of law. The defect found in the 'true copy' of the affidavit, was thus, not merely the absence of the name of the Notary or his seal and stamp but a complete absence of "notarial endorsement" of the verification as well as absence of an "affirmation" or "oath" by the election-petitioner. It was in that context that the Bench had found in Dr. Shipra's case that the returned candidate would have got the impression, on a perusal of the "true copy" of the affidavit, that there was no duly sworn and verified affidavit filed in support of the allegations of corrupt practice by the election petitioner. It was precisely on account of this 'fatal' defect that K. Ramaswamy, 1 opined that "that principle of substantial compliance cannot be accepted in the fact situation.

24. Reverting now to the facts of the present case. A perusal of the copy of the affidavit served on the appellant shows that the copy of the affidavit supplied to the appellant contained the endorsement that the affidavit had been duly affirmed, signed and verified by respondent No. 1 before a Notary. Under the affirmation by the Notary, the word, Sd/-. Notary were also written. What was, however, found missing in the copy of the affidavit was the name and address of the Notary as well as the stamp and seal of the Notary, before whom the affidavit had been so affirmed and who had attested the affidavit.

25. The defect found in the present case is almost identical to the defect which had been found in the copy of the affidavit supplied to the first respondent in Anil R. Deshmukh's case 1999 AIR SCW 338 (supra). The defect is materially different from the defect found in Dr. Shipra's case 1996 AIR SCW 1772, where the true copy of the election petition furnished by the election-petitioner to the successful candidate did not show that the affidavit filed in support of the allegation of corrupt practices had been duly sworn or affirmed and verified by the election-petitioner before a Notary, whose attestation was also found missing.

28. In our opinion the principle indicated in Dr. Shipra's case has to be considered as confined to the facts and circumstances of that case as opined by Ramaswamy, J. himself, when his Lordship observed: The principle of substantial compliance cannot be accepted in the fact situation.

(Emphasis ours)

and cannot be considered to be of general application divorced from the fact situation of a given case.

32. Thus, our answer to the reference is that the judgment in Dr. Shipra's case 1996 AIR SCW 1772 is confined to the "fact situation" as existing in that case and has no application to the established facts of We present case and the wide observations made therein made in the context of the facts of that case only.

33. The next question which still arises for our consideration is whether the election petition in the present case was liable to be rejected in limine for non-compliance with Section 81(3) read with section 86(1) of the Act on account of the defect in the "true copy" supplied to the respondent.

34. The precise objection of Mr. Harish Salve, learned senior counsel based on Section 81(3) of the Act as already noticed is that the true copy of the affidavit filed in support of the allegations of corrupt practice in Form No. 25 as required by Rule 94-A had not been served on the appellant inasmuch as in the copy starved on the appellant, the name and other particulars of the Notary and the seal and stamp of the Notary, which had been affixed on the affidavit filed along with the Election Petition, were conspicuous by their absence. According to Mr. Salve, the variation between the affidavit filed by the election-petitioner in support of the allegations of corrupt practice and the copy served on the appellant had rendered the copy as not a "true copy" of the original and notwithstanding the difference between Dr. Shipra's case and the present one, the election petition ought to have been dismissed for non-compliance with Section 81(3) of the Act. For what follows we are not persuaded to agree.

40. The object of serving a "true copy" of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.

41. The expression "copy" in Section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/ allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of Section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation.

42. We have already referred to the defect which has been found in the copy of the affidavit served on the appellant in the present case. There is no dispute that the copy of the affidavit served on the appellant contained the endorsement to the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner before a Notary. Below the endorsement of attestation, it was also mentioned: Sd/- Notary. There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the Notary in the copy of the affidavit served on the appellant. Thee was no other defect pointed out either in the memo of objection or in CMP. No. 2903 of 1996 or even during the course of arguments in the High Court or before us. Could this omission be treated as an omission of a vital or material nature which could possibly mislead or prejudice the appellant in formulating his defence? In our opinion No. The omission was inconsequential. By no stretch of imagination can it be said that the appellant could have been misled by the absence of the name and seal or stamp of the Notary on the copy of the affidavit, when endorsement of attestation was present in the copy which showed that the same had been signed by the Notary. It is not denied that the copies of the Election Petition and the affidavit served on the appellant bore the signatures of respondent No. 1 on every page and the original affidavit filed in support of the Election Petition had been properly signed, verified and affirmed by the election petition and attested by the Notary. There has, thus, been a substantial compliance with the requirements of Section 81(3) read with the proviso to Section 83(1)(c) of the Act Defects in the supply of true copy under Section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of Section 81(3) read with Section 86(1) of the Act. Same consequence would not follow from non-compliance with Section 83 of the Act.

44. Applying the test as laid down in Murarka Radhey Shyam Ram Kumar's case (supra), to the fact situation of the present case, we come to the conclusion that the defects complained of in the present case were not such as could have misled the appellant at all. The non-mention of the name of the notary or the absence of the stamp and seal of the notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature and, thus, the defect, if at all it could be construed as a defect was not a defect of any vital nature attracting consequences of Section 86(1) of the Act. Under the circumstances, it must be held that there was no failure on the part of the election petitioner to comply with the last part of Sub-section (3) of Section 81 of the Act and, under the circumstances, Section 86(1) of the Act was not attracted and the election petition could not have been dismissed by reason of the alleged failure to comply with the provisions of Section 81 of the Act. In this connection, it is also relevant to note that the appellant, neither in the memo of objections nor in the written objection or in CMP. No. 2903 of 1996 has alleged that he had been misled by the absence of the name, rubber stamp and seat of the notary on the copy of the affidavit supplied to him or that he had been prejudiced to formulate his defence. Even during the arguments, learned Counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him.

45. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam's case (supra) are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86(1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying true copy of the affidavit to the appellant by the respondent.

303. Thus, the following propositions, amongst others, have been laid down in the above decision:

(1) The tests suggested in Murarka Radhey Shyam Ram Kumar case (supra) are sound tests and are now well settled. (See paragraph 45 of the said AIR).

(2) The expression "copy" in Section 81 (3) of the R.P. Act, 1951 means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the Election Petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of Section 81(3) of the R.P. Act, 1951 and the vital defect cannot be permitted to be cured after the expiry of the period of limitation. {See paragraph 41 of the said AIR).

(3) It is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the R.P. Act, 1951 with the consequences under Section 86(1) of the said Act to follow, (see paragraph 45 of the said AIR).

304. In the above case (i.e. T.M. Jacob case), the Supreme Court noticed that the copy of the affidavit served on the appellant contained the endorsement to the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner (respondent) before a Notary. Below the endorsement of attestation, it was also mentioned: Sd./- Notary. There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the Notary in the copy of the affidavit served on the appellant.

305. The Supreme Court opined that the omission was in-consequential.

306. Applying the test as laid down in Murarka Radhey Shyam Ram Kumar case (supra) to the fact situation of the above case, the Supreme Court concluded that the defects complained of in the above case were not such as could have misled the appellant at all. The non-mention of the name of the Notary or the absence of the stamp and seal of the Notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature and, thus, the defect, if at all it could be construed as a defect, was not a defect of any vital nature attracting consequences of Section 86(1) of the R.P. Act, 1951 for alleged non-compliance with the last part of Section 81(3) of the said Act.

307. There had been substantial compliance with the requirements of Section 81(3) of the R.P. Act, 1951 in supplying "true copy' of the affidavit to the appellant by the respondent, and there was thus no failure on the part of the respondent (election- petitioner) to comply with the last part of Sub-section (3) of Section 81 of the said Act. (See paragraphs 44 and 45 of the said AIR).

308. It will thus be seen that the above decision dealt with such omissions/ defects in the "copy" of the Election Petition supplied to the respondent in the Election Petition (-Appellant before the Supreme Court-) as were "in form", and not "in substance", and the same could not mislead the respondent in the Election Petition (-Appellant before the Supreme Court).

309. It is further noteworthy that the question of failure to supply copy of a document forming an integral part of the Election Petition, alongwith copy of the Election Petition, as per the requirements of the theory/ doctrine of integral part laid down with reference to Sub-section (3) of Section 81 of the R.P. Act, 1951, was discussed in regard to another objection pertaining to Annexure XV to the Election Petition, and the objection was not accepted. (See paragraphs 4,5,9 and 46 of the said AIR).

310. However, the question of failure to supply copy of the said document was not considered with reference to the doctrine of substantial compliance.

311. Having considered the above decision of the Supreme Court, it is evident that the doctrine of substantial compliance has been laid down for such cases where copy of the Election Petition supplied to the respondent in the Section Petition suffers from formal defects/omissions/variations which are not vital or material in nature and which cannot possibly mislead a reasonable person to understand and meet the charges/ allegations made against him In the Election Petition. The doctrine of substantial compliance has no application in cases where copy of the Election Petition supplied to the respondents in the Section Petition suffers from substantial defects/omissions/variations which are material and vital in nature and which may mislead a reasonable person in understanding and meeting the charges/ allegations made against him in the Election Petition.

312. Thus, the doctrine of substantial compliance has been laid down in a different context, and not in the context of the theory/ doctrine of integral part where there is failure to supply copy of a document forming an integral part of the Election Petition, alongwith copy of the Election Petition. Therefore, the doctrine of substantial compliance is not relevant in the context of the theory/ doctrine of integral part.

313. Moreover, even if the doctrine of substantial compliance were to be applied to the theory/doctrine of integral part, still the test of doctrine of substantial compliance would fail in the case of theory/ doctrine of integral part. This is because, the theory/ doctrine of Integral part applies in a case where a document containing material facts and/or particulars of corrupt practice, forms an integral part of the Election Petition, and there is failure to supply copy of such a document to the respondent alongwith copy of the Election Petition. Failure to supply copy of such a document alongwith copy of the Election Petition, would evidently mislead the respondent as the respondent would never know the material facts and/ or particulars of corrupt practice as are contained in the document Therefore, the copy of the Election Petition supplied to the respondent would not be a copy which is substantially so, as the omission to supply copy of the said document would be a material, substantial and vital omission. There would, therefore, be non-compliance with the requirements of Section 81(3) of the R.P. Act, 1951.

314. Hence, it is evident that the doctrine of substantial compliance, as laid down in T.M. Jacob case (supra), relying upon Murarka Radhey Shyam Ram Kumar case (supra), cannot be resorted to for excluding the theory/ doctrine of integral part, and the consequent requirement of supplying copy of the document forming an integral part of the Election Petition to the respondent alongwith copy of the Election Petition, as per the requirements of Section 81(3) of the R.P. Act, 1951.

Point No. (6): What is the impact of the amendments made in Order VII, Rule 14 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1999 and by the Code of Civil Procedure (Amendment) Act, 2002 with reference to an Election Petition filed under the R.P. Act, 1951?

315. It is submitted by the learned Counsel for the Respondent that Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure requires that the document on the basis of which the Suit is filed as well as the documents relied upon by the plaintiff and in the possession or power of the plaintiff, should be filed with the plaint. Therefore, the documents relied upon by the plaintiff, if in his possession or power, should be filed with the plaint.

316. If any such document relied upon by the plaintiff is not in the possession or power of the plaintiff, then Sub-rule (2) requires that it should be stated as to in whose possession or power the document is.

317. It is further submitted by the learned Counsel for the Respondent that in the entire Election Petition the Petitioner has not averred anywhere that the documents referred to by him in the Election Petition were not in his possession or power, but were in the possession or power of some other person.

318. It is submitted by the learned Counsel for the Respondent that even though the Suit cannot be dismissed on the ground of non-filing of such documents with the plaint, still the plaintiff is bound to give an explanation as to why such documents have not been filed with the plaint.

319. On the other hand, reliance is placed by the learned Counsel for the Petitioner upon the decision of the Supreme Court in Kailash v. Nanhku and Ors. (supra), and it Is submitted that the Code of Civil Procedure does not apply with all its rigidity to Election Petition. It is submitted that even though Order VII, Rule 14 of the Code of Civil Procedure may apply to an Election Petition, still strict compliance is not required. Once the Petitioner, in the present case, complied with the requirements of Rule 3 of Chapter XV-A of the Allahabad High Court Rules, which are in-consonance with Order VII, Rule 14 of the Code of Civil Procedure (as it existed prior to amendments), then the Election Petition cannot be thrown-out on the ground that the additional requirement of Order VII, Rule 14 of the Code of Civil Procedure, as introduced after amendments, regarding filing of the documents and copies thereof with the Section Petition, has not been complied with.

320. Detailed submissions in this regard have already been noticed in the earlier part of this judgment, and the same need not be repeated here.

321. I have considered the submissions made by the learned Counsel for the parties.

322. Rule 14 of Order VII of the Code of Civil Procedure, as it stood prior to amendments, as well as Rule 14 of Order VII of the Code of Civil Procedure, as it stands after the amendments, have already been quoted hereinbefore in this judgment.

323. From a perusal of Rule 14 of Order VII of the Code of Civil Procedure, as it stood before the amendments, it will be noticed that prior to the amendments made by the aforesaid Amendment Acts, Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure (i.e. the Unamended Rule 14) required that where a plaintiff sued upon a document in his possession or power, he would produce it in Court when the Plaint was presented, and would at the same time deliver the document or a copy thereof, to be filed with the Plaint.

324. As regards the other documents, relied upon by the plaintiff as evidence in support of his claim, whether such documents were in his possession or power or not, Sub-rule (2) of the Unamended Rule 14 of Order VII required that the plaintiff would enter such documents in a list to be added or annexed to the Plaint.

325. Sub-rule (1) of the Amended Rule 14 of Order VII of the Code of Civil Procedure, as mentioned above, now requires that where a plaintiff sues upon a document or relies upon a document in his possession or power in support of his claim, then he shall enter such documents in a list, and shall produce it in Court when the Plaint is presented by him, and shall, at the same time deliver the document and a copy thereof, to be filed with the Plaint

326. Hence, Sub-rule (1) of the Amended Rule 14 of Order VII now requires filing of the list of documents, as well as filing of the documents and copies thereof, at the time of presentation of the Plaint. Such documents may be the documents which are the basis of the Suit, or may be the documents which are relied upon by the plaintiff as evidence in support of his claim. Sub-rule (1) of the Amended Rule 14 of Order VII applies to both the categories of documents, and requires the filing of all such documents and copies thereof at the time of presentation of the Plaint.

327. This is in contrast with the Unamended Rule 14 of Order VII. As noted above, Sub-rule (1) of the Unamended Rule 14 of Order VII, dealing with the documents which were the basis of the Suit, required the filing of such documents or copies thereof, at the time of presentation of the Plaint.

328. As regards the other documents relied upon by the plaintiff as evidence in support of his claim, Sub-rule (2) of the Unamended Rule 14 of Order VII only required filing of list of such documents at the time of presentation of the Plaint.

329. It will further be noticed that Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, provides that "a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the Suit".

330. Thus, Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not be received in evidence on his behalf at the hearing of the Suit.

331. However, the said Sub-rule (3) further shows that in case the Court grants leave, such a document may be received in evidence on behalf of the plaintiff at the hearing of the Suit.

332. As noted above, Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, applies to the documents which are the basis of the Suit as well as the documents which are relied upon by the plaintiff as evidence in support of his claim. The said Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, requires filing of the list of such documents as well as filing of such documents and copies thereof, at the time of presentation of the plaint.

333. Further, Sub-rule (2) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, provides that where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

334. If there is failure to comply with the requirements of Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, then in view of Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, such documents will not be received in evidence on behalf of the plaintiff at the hearing of the Suit.

335. However, as noted above, in such a situation where there is non-compliance with the requirements of Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, the Court may grant leave for receiving such documents in evidence on behalf of the plaintiff at the hearing of the Suit in view of the provisions of Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments.

336. Sub-section (1) of Section 87 of the R.P. Act, 1951, interalia, provides that "subject to the provisions of this Act and of any Rules made thereunder, every Election Petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of Suits".

337. Thus, Sub-section (1) of Section 87 of the R.P. Act, 1951 may be analyzed as follows:

(A) Every Election Petition shall be tried by the High Court in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of Suits.

(B) The procedure applicable under the Code of Civil Procedure, 1908 to the trial of Suits is to be followed " as nearly as may be" in the trial of every Election Petition.

(C) The above provision for trial of the Election Petition in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of Suits is subject to the provisions of the R.P. Act, 1951 "and of any Rules made thereunder.

338. The words "any Rules made thereunder" occurring in Sub-section (1) of Section 87 of the R.P. Act, 1951, evidently, refer to the Rules made under the R.P. Act, 1951 in exercise of powers given under Section 169 of the said Act. The said words, namely, "any Rules made thereunder'' do not refer to the Rules made by the High Courts for the trial of the Election Petitions.

339. Article 225 of the Constitution of India, interalia, deals with power of the High Courts to make Rules of Court. The said Article 225 is as follows:

225. Jurisdiction of existing High Courts.- Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of Justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

[Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done In the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.]

340. It will, thus, be noticed that any existing High Court has the same power to make Rules of Court as it had immediately before the commencement of the Constitution of India. However, this power to make Rules of Court is subject to the provisions of the Constitution of India and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution of India.

341. The Allahabad High Court Rules, 1952 have similarly been made by the Allahabad High Court "in exercise of the powers conferred by Article 225 of the Constitution of India and all other powers enabling it in that behalf (see Rule 1 of Chapter I of the Allahabad High Court Rules, 1952).

342. In Kailash v. Nanhku (supra), their Lordships of the Supreme Court, interalia, considered the provisions of the R.P. Act, 1951, the Allahabad High Court Rules, 1952 and the Code of Civil Procedure, 1908 and opined as under (paragraphs 9,10,11,12,19,22 and 45 of the said All. C.J.):

9. ...Thus, the procedure provided for the trial of civil suits by the C.P.C. is not in its entirety applicable to the trial of election petitions. The applicability of the procedure is circumscribed by two riders; firstly, the C.P.C. procedure is applicable "as nearly as may be", and secondly, the C.P.C procedure would give way to any provisions of the Act and of any rules made thereunder.

10. Section 169 of the Act confers power on the Central Government to make rules for carrying out the purposes of the Act The Central Government is empowered to make rules which may govern the procedure of trial of election petitions. Although, this subject is not specifically mentioned as one of the matters in Sub-section (2) which specifies the topics on which the Central Government may frame rules, however, Clause (i) of Sub-section (2) is a residuary clause which empowers the Central Government to frame rules regarding "any other matter required to be prescribed by this Act." Sub-section (1) of Section 87 of the Act also gives an indication that the statute contemplates the framing of rules under the Act to govern the procedure of trials before the High Court, which, read with the Preamble to the Act, is the source of power for making the rules laying down the procedure for the trial of election petitions. There is no provision in the Act which empowers the High Court to frame the rules governing the procedure of trials before the High Court. However, the High Court is not entirely powerless in the matter for framing the rules of procedure. Article 225 of the Constitution of India confers powers on the High Court, interalia, to make rules of Court for the purpose of hearing, trying and deciding any matter lying within the jurisdiction of the High Court. The High Court can thus frame rules of procedure regarding the trial of election petitions under Article 225 of the Constitution. This source of power emanates from the Constitution and is, therefore, very potent Section 129 of C.P.C is another source of power of High Court to make rules to regulate its own procedure in the exercise of its original civil jurisdiction. This will include election petitions also as they are tried in the original civil jurisdiction of the High Court.

11. The Allahabad High Court has framed several rules in exercise of the powers conferred by Article 225 of the Constitution. Chapter XV-A, consisting of 13 Rules and titled "Special provisions relating to the trial of election petitions" was added in the body of the rules vide notification dated 7.3.1967. Following Rules are relevant for our purpose and hence are extracted and reproduced hereunder:

1. Scope.- The provisions of this Chapter shall govern the trial of election petitions under the Representation of the People Act, 1951.

XXX XXX XXX

5. Issue of notice to respondent.- The election petition shall be laid before the Bench so constituted without delay, and unless it is dismissed under Sub-section (1) of Section 86 of the Act or for being otherwise defective, the Bench may direct issue of notice to the respondent to appear and answer the claim on a date to be specified therein. Such notice shall also direct that if he wishes to put up a defence he shall file his written statement together with a list of all documents, whether in his possession or power or not, upon which he Intends to rely as evidence in support of his defence on or before the date fixed; and further, that in default of appearance being entered on or before the date fixed in the notice the election petition may be heard and determined in his absence. The notice shall be in Form No. 34-A.

12. Court's power to give directions in matters of practice and procedure.- The Bench may, consistently with the provisions of Section 87 of the Act give such directions in matters of practice and procedure (including the recording of evidence) as it shall consider just and expedient.

12. A perusal of the several provisions made by the High Court Rules goes to show that the Rules touch many a subject on which provisions are found in the Act itself. Suffice it to observe that in case of conflict the provisions of the Act and the provisions of the High Court Rules shall, as far as may be, be harmoniously construed avoiding the conflict, if any, and if the conflict be irreconcilable the provisions contained in the Act being primary legislation shall prevail over the provisions contained in the High Court Rules framed In exercise of delegated power to legislate. No such conflict is noticeable, so far as the present case Is concerned.

'Trial' of election petition, when it commences?

19. Section 87 of the Act is a guarded provision as its language indicates. A few things are noteworthy for determining the nature and character of the provision contained in Section 87. Its title reads "Procedure before the High Court". The applicability of the provision is "subject to the provisions of this Act and of any rules made thereunder". The procedure prescribed by the Code for the trial of suits is not just adopted, and as if incorporated into the Act, so as to govern the trial of election petition. The procedure applicable under the Code to the trial of suits has been made applicable to the trial of every election petition "as nearly as may be". The language of Sub-section (1) of Section 87 has to be read in juxtaposition with the language of Sub-section (2), whereby the provisions of the Indian Evidence Act, 1872 have been made applicable in respect to the trial of an election petition by providing that they shall "be deemed to apply in all respects to the trial of an election petition".

22. We are, therefore, of the opinion that, in view of Rules 5 and 12 framed under Article 225 for purposes of the Special Act, the High Com: is not powerless to extend the time for Wing the written statement simply because the time limit for filing the written statement with the allowance permitted by the Proviso to Order VIII Rule 1 of the C.P.C has come to an end.

45. ...We sum up and briefly state our conclusions as under:

(i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the C.P.C is not called for.

(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits or the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the C.P.C apply to the trial of election petitions under the Act with flexibility and only as guidelines.

(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the C.P.C on the other hand, the former shall prevail over the latter....

343. Thus, this decision lays down that the procedure provided for the trial of Suits is not attracted with all its rigidity and technicality to the trial of Election Petitions. The Rules of Procedure contained in the Code of Civil Procedure, 1908 apply to the trial of Election Petitions under the R.P. Act, 1951 with flexibility and only as guidelines.

344. The said decision further lays down that in case of conflict between the provisions of the R.P. Act, 1951 and the Rules framed thereunder or th.; Rules framed by the High Court in exercise of its powers conferred by Article 225 of the Constitution of India on the one hand, and the Rules of Procedure contained in the Code of Civil Procedure, 1908 on the other hand, the former shall prevail over the latter.

345. As noted above, Chapter XV-A of the Allahabad High Court Rules, 1952 makes special provisions relating to the trial of Election Petitions.

346. Rule 3 of the Allahabad High Court Rules, 1952 has already been quoted in the earlier part of this judgment. The said Rule 3, interalia, lays down that "the Petitioner shall file with the Petition a list of all documents whether in his possession or power or not, on which he relies as evidence in support of his claim."

347. The said provision of Rule 3 of the Allahabad High Court Rules, 1952 corresponds with Sub-rule (2) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stood prior to the aforesaid amendments.

348. As already noted above, Sub-rule (1) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, now requires that "where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint Is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint".

349. Sub-rule (2) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, provides that "where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is".

350. On comparison of the requirements of Rule 3 of the Allahabad High Court Rules, 1952 with the requirements of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, it Is evident that there is no conflict between the two provisions. What Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, does is that it makes certain additional requirements to be fulfilled besides the requirements of Rule 3 of the Allahabad High Court Rules, 1952.

351. Reading Rule 3 of Chapter XV-A of the Allahabad High Court Rules, 1952 with the provisions of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, the following position emerges in regard to the Election Petition:

(A) The Petitioner shall file with the Petition a list of all documents which are the basis of the Election Petition or which are relied upon by the Petitioner as evidence in support of his claim.

(B) The Petitioner shall file such documents and copies thereof at the time of presentation of the Election Petition.

(C) Where any such document is not in the possession or power of the Petitioner, he shall, wherever possible, state in whose possession or power it is.

(D) The document, which ought to be produced in Court by the Petitioner when the Election Petition is presented or to be entered in the list to be added or annexed to the Election Petition, but is not produced or entered accordingly, shall not be received in evidence on his behalf at the hearing of the Election Petition. However, with the leave of the Court, such a document may be received in evidence on behalf of the Petitioner at the hearing of the Election Petition.

The above position will have to be read in the light of the decision of the Supreme Court in Kailash v. Nanhku case (supra), which lays down that the Rules of Procedure contained in the Code of Civil Procedure, 1908 apply to the trial of Election Petitions under the R.P. Act, 1951 with flexibility and only as guidelines. Therefore, normally, the requirements of Sub-rules (1) and (2) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, should be complied with by the Petitioner while filing an Election Petition. However, in case, there is non-compliance of the requirements of Sub-rules (1) and (2) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, by the Petitioner while filing the Election Petition, the matter should be dealt with by the Court adopting flexible approach keeping in view that it has power to grant leave under Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments.

352. It should, however, be noted that in case a document containing material facts and/ or particulars of corrupt practice is incorporated in the Election Petition by reference without reproducing its contents, then such a document becomes an integral part of the Election Petition, and the same must be filed with the Election Petition.

353. This is the impact of the amendments made in Order VII, Rule 14 of the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 1999 and by the Code of Civil Procedure (Amendment) Act, 2002 with reference to an Election Petition filed under the R.P. Act, 1951.

354. WE MAY NOW, FOR CONVENIENCE, CONSOLIDATE AND SUMMARISE VARIOUS PRINCIPLES WHICH FOLLOW FROM THE STATUTORY PROVISIONS AND THE JUDICIAL DECISIONS, AS MENTIONED ABOVE, AND THE PRINCIPLES WHICH HAVE BEEN DERIVED ON VARIOUS CONTENTIOUS POINTS RAISED BY THE LEARNED COUNSEL FOR THE PARTIES:

(I) All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In other words, all those facts which are essential to clothe the Petitioner with a complete cause of action, are "material facts", which must be pleaded. Failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the R.P. Act, 1951.

(II) Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad, and the Election Petition would, therefore, be liable to be dismissed if it suffers from any such vice.

(III) In case, the Election Petition is filed on the ground of corrupt practice, then the Election Petition must set-forth full particulars of 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 and place of the commission of each such practice, (see Section 83(1)(b) of the R.P. Act, 1951).

(IV) If the material facts and/ or particulars of corrupt practice are found in a document, then following situations may arise:

(A) (i) The document is incorporated in the Election Petition by reference without reproducing its contents. In such a case, the document becomes an integral part of the Election Petition, and it must be filed with the Election Petition, and its copy must be supplied to the Respondent alongwith copy of the Election Petition. If copy of such a document is not supplied to the Respondent alongwith copy of the Election Petition, then the copy of the Election Petition will not be a true copy within the meaning of Section 81(3) of the R.P. Act, 1951, and as such, the Election Petition will be liable to be dismissed under Section 86(1) of the said Act for non-compliance with the requirements of Section 81(3) of the said Act.

(ii) If the document is incorporated in the Election Petition without reproducing its contents, then it becomes an integral part of the Election Petition and such a document must be filed with the Election Petition and its copy must be supplied to the Respondent alongwith copy of the Election Petition. However, in such a case, even if the document is not filed with the Election Petition, still copy of the document will have to be supplied to the Respondent alongwith copy of the Election Petition so as to comply with the requirements of Section 81(3) of the R.P. Act, 1951.

(B)(i) The contents of the document are reproduced in the Election Petition. In such a case, the document does not become an integral part of the Election Petition. Therefore, the document need not be filed with the Election Petition, nor its copy need be supplied to the Respondent alongwith copy of the Election Petition. Failure to supply copy of the document in such a case, will not be non-compliance with the provisions of Section 81(3) of the R.P. Act, 1951.

(ii) For reproduction of a document as contemplated in (i) above, what is required is substantial reproduction of the contents of a document in the Election Petition so that all the material facts or particulars of corrupt practice as contained in the document, are stated in the Election Petition. Exact or verbatim reproduction of such a document is not required.

It should, however, be noted that while making substantial reproduction of the contents of the document, it is necessary that all the material facts or particulars of corrupt practice, as contained In the document, are stated in the Election Petition. Further, there should be sufficient indication in the Election Petition that the said material facts or particulars of corrupt practice are contained in the said document and are being stated on the basis of the contents of the said document.

(iii) Certain tests to decide as to whether there is substantial reproduction of the contents of the document in the Election Petition or not, are:

(a) Whether without further reference to the document, certain material fact(s) and/ or particulars) of corrupt practice, as contained in the document, would be missing in the Election Petition?

(b) Whether without further reference to the document, it would not be possible to appreciate and understand the material facts and/or particulars of corrupt practice, stated in the Election Petition by reproducing the contents of the document?

(c) Whether without further reference to the document; it would not be possible to know the relevance, implications, and impact/ consequence/ effect of the contents of the document?

If the answer to all or any of the tests is in the affirmative, then the reproduction of the contents of the document in the Election Petition is not substantial reproduction. Hence, the document becomes an integral part of the Election Petition, and it must be filed with the Election Petition, and its copy must be supplied to the respondent alongwith copy of the Election Petition.

On the other hand, if the answer to none of the above tests is in the affirmative, then the reproduction of the contents of the document in the Election Petition is substantial reproduction. Hence, the document does not become an integral part of the Election Petition, and it is not necessary to File the same with the Election Petition or supply copy thereof to the respondent alongwith copy of the Election Petition.

(V) Where the contents of a document are reproduced in the Election Petition, the document is only evidence of the pleadings incorporated in the Election Petition. In such a case, the document need not be filed with the Election Petition, nor its copy need be supplied to the Respondent.

Even if the document is annexed to the Election Petition, the document will be only evidence of the pleadings incorporated in the Election Petition. Therefore, failure to supply copy of such a document annexed to the Election Petition does not amount to non-compliance of Sub-section (3) of Section 81 of the R.P. Act, 1951 to attract dismissal of the Election Petition under Section 86 of the said Act.

(VI) If a document does not form an integral part of the Election Petition, but the document has been referred to in the Election Petition as evidence of any fact, or the document has been Filed in the proceedings as evidence of any fact, then copy of such a document is not required to be served on the Respondent alongwith copy of the Election Petition.

(VII) When a document has been filed in the proceedings, but is not referred to in the Election Petition, either directly or indirectly, a copy of such a document need not be served on the Respondent alongwith copy of the Election Petition.

(VIII) If a document is evidence of the material facts pleaded in the Election Petition, then such a document need not be filed with the Election Petition, nor its copy need be supplied to the Respondent alongwith copy of the Election Petition.

(IX) Test to determine as to whether a document is an integral part of the Election Petition, or is merely evidence of the pleadings incorporated in the Election Petition is: Whether statement of material facts in the Election Petition, as per the requirements of Clause (a) of Section 83(1) of the R.P. Act, 1951, and/ or setting forth of particulars of corrupt practice in the Election Petition, as per the requirements of Clause (b) of Section 83(1) of the said Act, is incomplete without reference to the contents of the document?

If the answer to the above question is in the affirmative, then the document is an integral part of the Election Petition.

On the other hand, if the answer to the above question is in the negative, then the document is merely evidence of the pleadings incorporated in the Election Petition.

The above principles mentioned at (I) to (IX) constitute the theory/ doctrine of integral part or the theory/ doctrine of incorporation by reference and the exceptions thereto.

(X) Whether a document contains material facts or particulars of corrupt practice can only be decided with reference to Section 83(1)(a) of the R.P. Act, 1951, which requires concise statement of material facts in the Election Petition, and Section 83(1)(b), which requires setting forth of particulars of corrupt practice.

Therefore, while it is true that an Election Petition cannot be dismissed under Section 86(1) of the R.P. Act, 1951 on the ground of non-compliance with the requirements of Section 83(1)(a) or Section 83(1)(b) of the said Act, but the provisions of Section 83(1)(a) and Section 83(1)(b) of the said Act may be referred to for deciding as to whether a document contains material facts and / or particulars of corrupt practice, so as to attract the theory/ doctrine of integral part which is relevant for deciding the question of compliance of Section 81(3) of the said Act. To this limited extent, the provisions of Section 83 of the R.P. Act, 1951 are relevant while considering the question of dismissal of an Election Petition under Section 86(1) of the said Act.

(XI) The theory/ doctrine of integral part is not confined to the cases where the challenge to an election is on the ground of corrupt practice. Even if the challenge to an election is on other grounds mentioned in Sections 100 and 101 of the R.P. Act, 1951, and the material facts are contained in a document, then the theory/ doctrine of integral part will apply.

The above principles should be read in the light of Order VII, Rule 14 of the Code of Civil Procedure, as amended by the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002.

(XII) The doctrine of substantial compliance, as laid down in T.M. Jacob case (supra), relying upon Murarka Radhey Shyam Ram Kumar case (supra), cannot be resorted to for excluding the theory/ doctrine of integral part, and the consequent requirement of supplying copy of the document forming an integral part of the Election Petition to the respondent alongwith copy of the Election Petition, as per the requirements of Section 81(3) of the R.P. Act, 1951.

(XIII) Normally, the requirements of Sub-rules (1) and (2) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, should be complied with by the Petitioner while filing an Election Petition. However, in case, there is non-compliance of the requirements of Sub-rules (1) and (2) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments, by the Petitioner while filing the Election Petition, the matter should be dealt with by the Court adopting flexible approach keeping in view that it has power to grant leave under Sub-rule (3) of Rule 14 of Order VII of the Code of Civil Procedure, 1908, as it stands after the aforesaid amendments.

It should, however, be noted that in case a document containing material facts and/ or particulars of corrupt practice is incorporated in the Election Petition by reference without reproducing its contents, then such a document becomes an integral part of the Election Petition, and the same must be filed with the Election Petition.

KEEPING IN VIEW THE ABOVE LEGAL PRINCIPLES, LET US NOW PROCEED TO CONSIDER THE APPLICATION (PAPER No. A-7) ON MERITS.

355. As is clear from the contents or the said Application (Paper No. A-7), the objections have been raised in respect of the two documents referred to in the Election Petition, namely, the receipt issued by the Returning Officer and Part-45 of the Electoral Roll.

356. Detailed submissions made by the learned Counsel for the parties in regard to the said two documents have been noticed in the earlier part of this judgment, and the same need not be repeated here.

Let us first take-up the objections in regard to the receipt.

357. As is evident from a perusal of paragraph 6 of the Election Petition, quoted in the earlier part of this judgment, the Election Petition has been filed on the ground that "the nomination of Shri Vishwanath was improperly rejected". The said ground is contemplated under Section 100(1)(c) of the R.P. Act, 1951.

358. Paragraph 8 of the Election Petition deals with the filing of nomination paper by Vishwanath as an Independent Candidate and the said paragraph is follows: 8- That Sri Vishwanath filed his nomination paper on 23-4-2004, as an Independent Candidate from 80, Saharanpur Parliamentary Constituency. The nomination of Sri Vishwanath was proposed by 10 Electors whose names and other details regarding Assembly segment number, Part Number and Serial Number of the Electoral Roll were mentioned in the Prescribed Proforma. Sri Vishwanath had also filed required declaration in Part 3-A regarding his criminal antecedents.

359. In paragraph of the Election Petition, it is stated as under:

9- That the nomination of Sri Vishwanath was valid in all respects and this fact was ascertained by the Returning Officer, while receiving the nomination paper. In terms of Section 33(4) of the Act, the Returning Officer had checked and satisfied himself that the names and Electoral Roll number of the candidate, his proposer as entered in the nomination paper are the same as those entered in the Sectoral Roll. The Returning Officer after verifying and satisfying himself that the nomination paper of Sri Vishwanath was valid in all respects, issued a receipt of nomination paper having been duly filed and validly presented by Sri Vishwanath.

360. Thus, paragraph 9 of the Election Petition refers to the receipt of nomination paper issued by the Returning Officer in the following words: ...The Returning Officer after verifying and satisfying himself that the nomination paper of Sri Vishwanath was valid in all respects, issued a receipt of nomination paper having been duly filed and validly presented by Sri Vishwanath.

361. Paragraph 10 of the Election Petition deals with the rejection of the nomination paper of the said Vishwanath. The said paragraph 10 of the Election Petition is reproduced below:

10- That on the date of scrutiny i.e. 24-4-2004 the nomination of Sri Vishwanath has been improperly rejected on the ground that the names of the proposers of Sri Vishwanath namely Sri Sanjay, Sri Vishal and Sri Satya Pal at Serial Nos. 1,2 and 3 are not entered in the Electoral Roll.

A photocopy of the Nomination Paper of Sri Vishwanath containing the name of his Proposers, the Receipt issued by the Returning Officer and the Rejection Order dated 24-4-2004 is filed as ANNEXURE No. 1 to this Petition.

362. Thus, paragraph 10 of the Election Petition again refers to the receipt issued by the Returning Officer in the following words:

...A photocopy of the Nomination Paper of Sri Vishwanath containing the name of his Proposers, the Receipt issued by the Returning Officer and the Rejection Order dated 24-4-2004 is filed as ANNEXURE No. 1 to this Petition.

363. A perusal of Annexure-1 to the Election Petition shows that the same purports to be a photostat copy of a certified copy of the nomination paper (in Form 2-A) in respect of Vishwanath. Part-II of the said Annexure-1 deals with "particulars of the proposers and their signatures". Part-VI of the said Annexure-1 deals with "receipt for nomination paper and notice of scrutiny". The said Annexure-1 is verified by the Petitioner as is evident from the verification appearing at page 19 of the Paper Book of the Election Petition.

364. Before proceeding to examine whether there has been any non-compliance with Section 81(3) of the R.P. Act, 1951 in so far as the receipt issued by the Returning Officer is concerned, it is necessary to examine as to whether such a receipt issued by the Returning Officer contains material facts or not. This is because, the theory/ doctrine of integral part or the theory/ doctrine of incorporation by reference is attracted in a case where the document contains material facts (and/or particulars of corrupt practice).

365. Section 30 of the R.P. Act, 1951 deals with appointment of dates for nominations etc. by the Election (Commission.

366. Section 31 of the R.P. Act, 1951 makes provision for giving public notice of the intended election by the Returning Officer.

367. Section 32 of the R.P. Act, 1951 deals with nomination of candidates for election.

368. Section 33 of the R.P. Act, 1951 makes provision for presentation of nomination paper and requirements for a valid nomination. Sub-section (1) of Section 33 lays down that "on or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the afternoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer". First Proviso to Sub-section (1) of Section 33 lays down that "a candidate not set up by a recognized political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being doctors of the constituency".

369. Sub-section (4) of Section 33 of the R.P. Act, 1951 provides that "on the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls".

370. Section 35 of the R.P. Act, 1951 provides that "the returning officer shall, on receiving the nomination paper [under Sub-section (1) or, as the case may be, Sub-section (1-A) of Section 33, inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of [the proposer]."

371. Rule 4 of the Conduct of Elections Rules, 1961 provides that every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate.

372. As noted earlier, Form 2A of the Conduct of Elections Rules, 1961 is relevant in the present context.

373. Part VI of the said Form 2A deals with "receipt for nomination paper and notice of scrutiny".

374. The said Part VI has already been quoted in the earlier part of this judgment.

375. A perusal of Part VI of From 2A makes it evident that the said Part VI is intended to meet the requirements of Section 35 of the R.P. Act, 1951 regarding giving information of the date, time and place fixed for the scrutiny of nominations as well as for certifying the date on which and the hour at which the nomination paper has been delivered to him. The said Part VI further mentions that "receipt for nomination paper and notice of scrutiny" contained therein is "to be handed over to the person presenting the nomination paper".

376. The contents of the said Part VI further shows that the same requires mention of the name of the candidate to whom the nomination paper relates, the name of Parliamentary Constituency regarding which the nomination paper has been filed, the hour and the date of filing of the nomination paper and as to whether the nomination paper has been delivered by the candidate or by the proposer. It is further evident from the contents of the said Part VI that the same requires mention Of the hour, date and place fixed for scrutiny of the nomination paper. It is further evident from the contents of Part VI of Form 2A that the same requires the Returning Officer to sign the same and also to put date of his signature.

377. In my opinion, various facts contained in Part VI of Form 2A are material facts in the present case where the Election Petition has been filed on the ground of improper rejection of the nomination paper of Vishwanath.

378. In the context of the present case, the following material facts may be contained in Part VI of Form ?A containing "receipt for nomination paper and notice of scrutiny":

(A) Whether nomination paper in respect of Vishwanath was filed?

(B) Whether nomination paper was filed by Vishwanath himself or by any proposer? That is, who filed the nomination paper in respect of Vishwanath?

(C) Whether satisfaction as per the requirements of Section 33(4) of the R.P. Act, 1951 was done by the Returning Officer on the presentation of the nomination paper?

(D) Whether "receipt for nomination paper and notice of scrutiny" as contained in Part VI of Form 2A was issued and handed over to the person who presented the nomination paper in respect of Vishwanath, as per the requirements of Section 35 of the R.P. Act, 1951?

(E) Whether the person to whom "receipt for nomination paper and notice of scrutiny" was issued in Part VI of Form 2A, made acknowledgement for the same by putting his signature?

(F) Whether notice of scrutiny, as per the requirements of Section 35 of the R.P. Act, 1951, was given in Part VI of Form 2A?

(G) Who issued the "receipt for nomination paper and notice of scrutiny" in Part VI of Form 2A under his signature and on what date?

(H) Relevant details regarding "receipt for nomination paper and notice of scrutiny'?

379. Question arises as to whether the "receipt for nomination paper and notice of scrutiny" in Part VI of Form 2A has been incorporated in the Election Petition by reference without reproducing its contents, or as to whether the contents of the "receipt for nomination paper and notice of scrutiny" in Part VI of Form 2A have been substantially reproduced in the Election Petition so as to state all the material facts as may be contained in such "receipt for nomination paper and notice of X scrutiny", and there is sufficient indication in the Election Petition that the said material facts are contained in the said document.

380. As noted in Principle No. (IV), mentioned above, in the former case, the document, i.e., "receipt for nomination paper and notice of scrutiny" would become an integral part of the Election Petition, and it must be filed with the Election Petition, and its copy must be supplied to the respondent alongwith copy of the Election Petition. In the latter case, the document, i.e., "receipt for nomination paper and notice of scrutiny" would not become an integral part of the Election Petition, and it would not be necessary to file the same with the Election Petition or supply copy thereof to the respondent alongwith copy of the Election Petition.

381. A perusal of the averments made in the Election Petition, particularly in paragraphs 8,9 and 10 thereof, shows that the material facts mentioned at Item Nos. (A), (B) and (C) above were pleaded in the Election Petition. However, there is no sufficient indication in the Election Petition that the said averments are based on the contents of the "receipt for nomination paper and notice of scrutiny" contained in Part VI of Form 2A.

382. There is no pleading in the Election Petition as regards the material facts mentioned at Item Nos. (D), (E), (F), (G) and (H) above.

383. There is no pleading in the Election Petition as to what is contained in the "receipt for nomination paper and notice of scrutiny" in Part VI of Form 2A. No substantial reproduction of the contents of the "receipt for nomination paper and notice of scrutiny" has been made in the Election Petition so as to state all the material facts as may be contained in such "receipt for nomination paper and notice of scrutiny".

384. Therefore, the "receipt for nomination paper and notice of scrutiny" in Part VI of Form 2A, which contains material facts, has been incorporated in the Election Petition by reference. Hence, the said "receipt for nomination paper and notice of scrutiny" in Part VI of Form 2A is an integral part of the Election Petition. Therefore, it ought to have been filed with the Election Petition and its copy ought to have been supplied to the Respondent alongwith copy of the Election Petition so as to comply with the requirements of Section 81(3) of the R.P. Act, 1951.

385. Question, therefore, arises as to whether the "receipt for nomination paper and notice of scrutiny" in Part VI of Form 2A has been filed with the Election Petition, and as to whether its copy has been supplied to the Respondent alongwith copy of the Election Petition so as to comply with the requirements of Section 81(3) of the R.P. Act, 1951.

386. As noted above, a photostat copy of Form 2A, purporting to be a photostat copy of certified copy of the nomination paper in Form 2A in respect of Vishwanath, has been filed as Annexure-1 to the Election Petition. Further, the said Annexure-1 has been signed and verified as per the requirements of Sub-section (2) of Section 83 of the R.P. Act, 1951.

387. Part VI of Annexure-1 purports to be "receipt for nomination paper and notice of scrutiny", which purports to bear the acknowledgment of Vishwanath in the following words: jlhn izkIr dh

fo'oukFk

388. The said Part VI of Annexure-1 further mentions various relevant details which constitute the material facts as mentioned above.

389. It is not disputed that copy of the Election Petition served on the Respondent included copy of the said Annexure-1 also.

390. A perusal of paragraphs 8,9 and 10 of the Election Petition shows that the document (called 'receipt') which has been incorporated in the Election Petition by reference without reproducing the contents thereof, purports to be Part VI of photostat copy of certified copy of the nomination paper (in Form 2A) in respect of Vishwanath, which has been filed as Annexure-1 to the Election Petition.

391. This document (called receipt) has been made an integral part of the Election Petition.

392. Thus, the document (called 'receipt'), namely, Part VI of photostat copy of certified copy of the nomination paper in respect of Vishwanath has been filed with the Election Petition as Part VI of Annexure-1.

393. Further, copy of the said Part VI of Annexure-1 has been supplied to the Respondent alongwith copy of the Election Petition. Therefore, the requirements of Section 81(3) of the R.P. Act, 1951 have been complied with as regards the said document (called 'receipt') in the Election Petition.

394. The learned Counsel for the Respondent, however, submits that Part VI of Annexure-1 could not be that receipt, which was issued to Vishwanath and which has been referred to in paragraph 9 of the Election Petition. It is submitted that the Petitioner ought to have filed the said receipt which was issued to Vishwanath because the averments made in paragraph 9 of the Election Petition show that the Petitioner was in possession of that document.

395. Having considered the submissions made by the learned Counsel for the Respondent, I find myself unable to accept the same.

396. The theory/doctrine of integral part applies to such documents as are Incorporated in the Election Petition by reference without reproducing the contents thereof, and are, thus, made an integral part of the Election Petition. In the present case, as noted above, the averments made in paragraphs 8,9 and 10 of the Election Petition show that the document (called 'receipt'), which has been incorporated by reference without reproducing the contents thereof, is Part VI of photostat copy of certified copy of the nomination paper (in Form 2A) in respect of Vishwanath. The said photostat copy including Part VI has been filed as Annexure-1 to the Election Petition, and its copy has been supplied to the Respondent alongwith copy of the Election Petition. There is, thus, compliance of Section 81(3) of the R.P. Act, 1951.

397. It is pertinent to note that the test is as to what document has actually been made an integral part of the Election Petition, and not as to what document ought to have been made an integral part of the Election Petition. If copy of the document, which has actually been made an integral part of the Election Petition, has been supplied to the respondent alongwith copy of the Election Petition, then there is compliance of Section 81(3) of the R.P. Act, 1951.

398. As regards the question as to whether photostat copy of certified copy of the nomination paper filed as Annexure-1 to the Election Petition, is admissible in evidence or not, I am of the opinion that the said question does not arise because photostat copy of the nomination paper in Form 2A in respect of Vishwanath has been filed as Annexure-1 to the Election Petition, and the said Annexure has been signed and verified in accordance with the provisions of Sub-section (2) of Section 83 of the R.P. Act, 1951. The said Annexure, has, thus, become part of the pleadings.

399. In any case, the question of admissibility or otherwise of a document is to be examined at the appropriate stage during trial, and the said question is not relevant ; at the present stage.

Let us now take-up the objections in regard to Part No. 45 of the Electoral Roll.

400. As noted above, a perusal of paragraph 6 of the Election Petition, quoted in the earlier part of this judgment, shows that the Election Petition has been filed on the ground that "the nomination of Shri Vishwanath was improperly rejected". The said ground is contemplated under Section 100(1)(c) of the R.P. Act, 1951.

401. Paragraph 10 of the Election Petition deals with rejection of nomination paper of the said Vishwanath. The said paragraph 10 of the Election Petition is as under:

10- That on the date of scrutiny i.e. 24-4-2004 the nomination of Sri Vishwanath has been improperly rejected on the ground that the names of the proposers of Sri Vishwanath namely Sri Sanjay, Sri Vishal and Sri Satya Pal at Serial Nos. 1, 2 and 3 are not entered in the Electoral Roll.

A photocopy of the Nomination Paper of Sri Vishwanath containing the name of his Proposers, the Receipt issued by the Returning Officer and the Rejection Order dated 24-4-2004 is filed as ANNEXURE No. 1 to this Petition.

402. In paragraph 11 of the Election Petition, it is stated as follows:

11- That as a matter of fact the names of Proposers of Sri Vishwanath namely Sri Sanjay (at Serial No. 1), Sri Vishal (at Serial No. 2) and Sri Satya Pal (at Serial No. 3) find place in the Electoral Roll at Part No. 45 on the same serials as mentioned in the nomination papers. This Electoral Roll of Part No. 45 was very much before the Returning Officer at the time of scrutiny and the same was pointed out to him by the candidates present at the time of scrutiny.

403. It is admitted position that Part No. 45 of the Electoral Roll referred to in paragraph 11 of the Election Petition has not been filed with the Election Petition nor has its copy been supplied to the Respondent alongwith copy of the Election Petition.

404. It is submitted by the learned Counsel for the petitioner that as the document, i.e., Part No. 45 of the Electoral Roll was not filed with the Election Petition, the provisions of Section 81(3) of the R.P. Act, 1951 would not apply, and copy of the said document was not required to be served on the Respondent, as per the requirements of the said Section 81(3). It is further submitted by the learned Counsel for the petitioner that as the document, namely, Part No. 45 of the Electoral Roll was not filed with the Election Petition, the theory/ doctrine of integral part was not applicable in respect of such a document.

405. On the other hand, the learned Counsel for the Respondent submits that the theory/doctrine of integral part would apply in respect of Part No. 45 of the Electoral Roll, as the same contained material facts, and the same was referred in the Election Petition without pleading its contents in the Election Petition. It is further submitted that the theory/ doctrine of integral part would apply even though Part No. 45 of the Electoral Roll was not filed with the Election Petition. As Part No. 45 of the Electoral Roll, the submission proceeds, became an integral part of the Election Petition, copy of the said document was required to be supplied to the Respondent alongwith copy of the Election Petition, as per the requirements of Section 81(3) of the R.P. Act, 1951.

406. Detailed submissions in this regard have already been noticed in the earlier part of this judgment, and the same need not be repeated here.

407. The said submissions have already been examined in Point No. (4), discussed above.

408. As held in Point No. (4) above, where a document is incorporated in the Election Petition by reference in the Election Petition without reproducing its contents in the Election Petition, then the theory/ doctrines of integral part becomes applicable and the document is treated to be an integral part of the Election Petition, and copy of such a document must be supplied to the Respondent alongwith copy of the Election Petition so as to fulfil the requirements of Section 81(3) of the R.P. Act, 1951. Even if such a document is not filed with the Election Petition, still the theory/ doctrine of integral part will remain applicable and copy of the document will have to be supplied to the Respondent alongwith copy of the Election Petition.

409. Reference may also be made to Principle No. (IV)(A)(ii), mentioned above, which is as under:

(ii) If the document is incorporated in the Election Petition without reproducing its contents, then it becomes an integral part of the Election Petition and such a document must be filed with the Election Petition and its copy must be supplied to the Respondent alongwith copy of the Election Petition. However, in such a case, even if the document is not filed with the Election Petition, still copy of the document will have to be supplied to the Respondent alongwith copy of the Election Petition so as to comply with the requirements of Section 81(3) of the R.P. Act, 1951.

410. In view of the above propositions laid down in the earlier part of this judgment after considering the submissions made by the learned Counsel for the parties, the submission of the learned Counsel for the petitioner that as Part No. 45 of the Electoral Roll was not filed with the Election Petition, the theory/ doctrine of integral part would not apply to the said document, cannot be accepted.

411. Before proceeding to examine whether there has been any non-compliance with Section 81(3) of the R.P. Act, 1951 in so far as Part No. 45 of the Electoral Roll is concerned, it is necessary to examine as to whether the said Part No. 45 contains material facts or not. This is because, the theory/ doctrine of integral part or the theory/doctrine of incorporation by reference is attracted in a case where the document contains material facts (and/or particulars of corrupt practice).

412. Proviso to Sub-section (1) of action 33 of the R.P. Act, 1951 lays down that a candidate not set-up by a recognized political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency. Therefore, the ten proposers must be of the same constituency for which a candidate is filing nomination for election.

413. Section 2(e) of the R.P. Act, 1951 defines the term" elector". Accordingly, "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency far the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950. Therefore, for a person to be "elector" in relation to a constituency, it is necessary that his name is entered in the electoral roll of that constituency for the time being in force, and he is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950.

414. Section 2(b) of the Representation of the People Act, 1950 defines the term "Assembly Constituency". Accordingly, "Assembly Constituency" means a constituency provided [by law] for the purpose of election to the Legislative Assembly of a State.

415. Section 2(f) of the Representation of the People Act, 1950 defines the term "parliamentary constituency". Accordingly, "parliamentary constituency" means a constituency provided [by law] for the purpose of elections to the House of the People.

416. Part II B of the Representation of the People Act, 1950, consisting of Section 13D, deals with "Electoral rolls for parliamentary constituencies". Sub-section (1) of Section 13D, interalia, provides that the electoral roll for every parliamentary constituency, other than a parliamentary constituency in the State of Jammu and Kashmir or in a Union territory not having a Legislative Assembly, shall consist of the electoral rolls for all the Assembly constituencies comprised within that parliamentary constituency. Therefore, the electoral roll for every parliamentary constituency shall consist of the electoral rolls for all the Assembly constituencies comprised within that parliamentary constituency.

417. Part III of the Representation of the People Act, 1950, consisting of Sections 14 to 25A, deals with "electoral rolls for Assembly constituencies".

418. Clause (a) of Section 14 of the Representation of the People Act, 1950 lays down that the term "constituency" in Part III means an Assembly constituency.

419. Section 15 of the Representation of the People Act, 1950 provides that for every "constituency" (i.e., Assembly constituency) there shall be an electoral roll which shall be prepared in accordance with the provisions of the Representation of the People Act, 1950 under the superintendence, direction and control of the Election Commission. Therefore, for every Assembly constituency, there shall be an electoral roll, and such electoral roll shall be prepared in accordance with the provisions of the Representation of the People Act, 1950 under the superintendence, direction and control of the Election Commission.

420. Section 16 of the Representation of the People Act, 1950 lays down the disqualifications for registration in an electoral roll.

421. Section 17 of the Representation of the People Act, 1950 provides that no person shall be entitled to be registered In the electoral roll for more than one "constituency" (i.e., Assembly constituency). Therefore, a person is not entitled to be registered in the electoral roll for more than one Assembly constituency.

422. Section 18 of the Representation of the People Act, 1950 lays down that no person shall be entitled to be registered in the electoral roll for any "constituency" more than once.

423. Section 19 of the Representation of the People Act, 1950 lays down the conditions for registration in the electoral roll. Accordingly, a person shall be entitled to be registered in the electoral roll of a constituency if he is not less than 18 years of age on the qualifying date, and is ordinarily resident in that constituency.

424. Sub-section (1) of Section 21 of the Representation of the People Act, 1950 provides that the electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under the said Act.

425. Coming now to the relevant provisions of the Registration of Electors Rules, 1960. Part II of the said Rules deals with "electoral rolls for Assembly constituencies".

426. Rule 3 of the Registration of Electors Rules, 1960 lays down that "constituency" in Part II means an Assembly constituency.

427. Sub-rule (1) of Rule 5 of the Registration of Electors Rules, 1960 provides that the electoral roll shall be divided into convenient parts which shall be numbered consecutively.

428. Sub-rule (4) of Rule 5 of the Registration of Electors Rules, 1960 provides that the number of names included in any part of the electoral roll shall not ordinarily exceed two thousand.

429. Sub-rule (1) of Rule 6 of the Registration of Electors Rules, 1960, inter-alia, lays down that the names of electors in each part of the electoral roll shall be arranged according to house number, unless the chief electoral officer determines otherwise as mentioned in the said sub-rule.

430. Sub-rule (2) of Rule 6 of the Registration of Electors Rules, 1960 provides that the names of electors in each part of the electoral roll shall be numbered, so far as practicable, consecutively with a separate series of numbers beginning with the number one.

431. In the present case, the election in respect of a parliamentary constituency is involved. Applying the above provisions to such an election, it follows that the nomination paper of an independent candidate for election from a parliamentary constituency must be subscribed by ten proposers being electors of that constituency. Therefore, the name of each of the ten proposers must be entered in the electoral roll of any of the Assembly constituencies comprised within that Parliamentary constituency. Such names will appear in any of the parts of the electoral roll of any of the Assembly constituencies comprised within that Parliamentary constituency at particular serial numbers in that part.

432. This is why, the nomination paper filed in Form 2A of the Conduct of Elections Rules, 1961, inter-alia, requires particulars regarding name of component Assembly constituency, part number of electoral roll and serial number in that part in respect of each of the ten proposers.

433. In the present case, as noted above, the Election Petition has been filed on the ground of improper rejection of the nomination paper of Vishwanath.

434. The averments made in Paragraphs 10 and 11 of the Election Petition have already been reproduced above.

435. In the context of the present case, the material facts, inter-alia, are:

1. Whether the proposers were the electors of the parliamentary constituency in question as per the requirements of the Proviso to Sub-section (1) of Section 33 of the R.P. Act, 1951?

2. Whether the names of the proposers were entered in the electoral roll of any of the component assembly constituencies of the parliamentary constituency in question?

3. Whether the names of the proposers at Serial Nos. 1, 2 and 3 in the nomination paper of Vishwanath were entered in Part 23 of the electoral roll of Nangal constituency, as mentioned in the nomination paper?

4. Whether the names of the said proposers at Serial Nos. 1, 2 and 3 in the nomination paper were entered in Part 45 of the electoral roll?

436. Hence, in the context of the present case, Part No. 45 of the Electoral Roll contains the material facts mentioned at Item No. (4) above, namely:

437. Whether the names of the proposers at Serial Nos. 1, 2 and 3 in the nomination paper of Vishwanath were entered in Part 45 of the electoral roll?

438. Question arises as to whether Part No. 45 of the Sectoral Roll has been Incorporated in the Election Petition by reference without reproducing its contents, or as to whether the contents of Part No. 45 of the Electoral Roll have been substantially reproduced in the Election Petition so as to state all the material facts as may be contained in the said Part No. 45 of the Electoral Roll and there is sufficient indication in the Election Petition that the said material facts are contained In the said document.

439. As noted in Principle No. (IV), mentioned above, in the former case, the document, i.e., Part No. 45 of the Electoral Roll would become an integral part of the Election Petition, and it must be filed with the Election Petition, and Its copy must be supplied to the Respondent along with copy of the Election Petition. In the latter case, the document i.e. Part No. 45 of the Electoral Roll would not become an Integral part of the Election Petition, and it would not be necessary to file the same with the Election Petition or supply copy thereof to the Respondent along with copy of the Election Petition.

440. A perusal of the averments made in the Election Petition, particularly in paragraph 11 thereof, shows that the material facts, mentioned above at Item No. (4), were pleaded in the Election Petition.

441. There is substantial reproduction of the contents of Part No. 45 of the Electoral Roll so as to state all the material facts as may be contained in the said Part No. 45 of the Electoral Roll. Further, there is sufficient indication In the Election Petition that the said averments are based on the contents of Part No. 45 of the Electoral Roll....

442. Therefore, Part No. 45 of the Electoral Roll has not been "incorporated in the Election Petition by reference without reproducing its contents". As such, the said document, i.e., Part No. 45 of the Electoral Roll is not an integral part of the Election Petition. Consequently, it was not necessary to file the said document, i.e., Part No. 45 of the Electoral Roll with the Election Petition, nor was it necessary to supply copy of the said document to the Respondent alongwith copy of the Election Petition.

443. In view of the above discussion, I am of the opinion that the aforementioned Election Petition being Election Petition No. 10 of 2004 is not liable to be dismissed under Section 86(1) of the R.P. Act, 1951 for non-compliance of Section 81(3) of the said Act. The aforementioned Application (Paper No. A-7) lacks merit, and the same is liable to be rejected.

444. In the earlier part of this judgment, the following question has been framed for consideration in view of the aforementioned Application (Paper No. A-7): Whether the Election Petition is liable to be dismissed under Section 86(1) of the Representation of the People Act, 1951 on the ground of non-compliance with the requirements of Section 81(3) of the said Act?

445. The said question is answered in the negative as follows:

The Election Petition is not liable to be dismissed under Section 26(1) of the Representation of the People Act, 1951 on the ground of non-compliance with the requirements of Section 81(3) of the said Act.

446. In view of the aforesaid, the aforementioned Application (Paper No. A-7) is rejected.