S.K. Ray, J.
1. The respondent, Smt. Nandini Satpathy, was elected as a member of the Orissa Legislative Assembly in a by-election from the Cuttack City Assembly Constituency. The polling in this Constituency took place on 26-11-1972. On 10-1-1973, which was the last date under the law for the presentation of an election petition, Shri Ajit Prasad Narayan Singh, alleging himself to be an 'elector' of the aforesaid Constituency presented or filed the election petition in question challenging the election of the respondent on the- ground, inter alia, that the respondent has herself committed various corrupt practices or has connived at commission of such corrupt practices by other persons. Till 19-6-1973, this petition was being dealt with by the Chief Justice who settled the Issues and some interim matters and on 28-6-1973, he passed the following order:--
'Put up three weeks after when a judge will be selected for trying the election case. All these interim matters will be put up before him.'
and then assigned me as the Judge to try further the election petition.
2. The petitioner and the respondent respectively filed their draft Issues on 10-5-1973 and 9-5-1973. Thereafter, on 16-5-1973, Mr. Rath, learned counsel for the respondent submitted recast Issues which were thirtyone in number and they were accepted as Issues framed by this Court. These Issues are both of fact and, of law. It was agreed by the parties, and I am also of the same view, that Issues 6 to 8, part of Issue No. 10 (as to the question of correctness of the affidavit), 11, 12, 14 and 15 should be disposed of preliminarily, because, the entire election case may be disposed of on these Issues without going into its merits. Subsequently, on 12-11-1973, the respondent filed a petition praying that Issues 1, 3 and 4 may also be tried as preliminary Issues. This was objected to by the petitioner on the ground that matters of merit are interlinked with these three issues. But on a perusal of these Issues, it appears to me that they should also be determined as preliminary Issues. These issues have been drafted on the basis of allegations of the respondent that requirements of Sections 81, 82, 83 and 117 of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') have not been complied with. The Supreme Court has said in the case of Krishan Chander v. Ram Lal, AIR 1973 SC 2513 that it is incumbent upon the High Court, where the allegation is that requirements of mandatory provisions of election law are not complied with, to determine those Issues as preliminary Issues. I, therefore, proceed to decide Issues 1, 3, 4, 6, 7, 8, part of Issue Nos. 10, 11, 12, 14 and 15 as preliminary Issues, all of which have a direct bearing on the question of maintainability of the election petition.
3. These Issues are extracted herein below:--
(1) Is the election petition maintainable?
(3) Is the petition not hi accordance with law?
(4) Is the petition barred by limitation?
(6) Is the petition liable to be dismissed for non-compliance with the provisions of Sections 81, 82, 83 and 117 of the Representation of the People Act, 1951?
(7) Whether the verification of petitioner is invalid and the petition is liable to be rejected on that score?
(8) Whether the petition is liable to be rejected on account of material discrepancy between the original petition and the copy served on the respondent?
(10) , Are the material particulars of corrupt practice (part) alleged in the election petition not duly supported by an affidavit? If so, is the petition liable to be dismissed on that account?
(11) Has the original petition been subsequently tampered with, altered and corrected without authority of law and/or without a formal petition by way of amendment? If so, is the petition liable to be dismissed under Section 86(1) of the Representation of the People Act, 1951?
(12) Has any alteration and modification been made in the verification and affidavit annexed to the petition without authority of law? If so, has the petition become invalid, infructuous and liable to be dismissed under Section 86(1) of the Representation of the People Act, 1951?
(14) Whether the relief claimed by the petitioner has become infructuous on account of the dissolution of the Orissa State Legislative Assembly vide the Proclamation issued by the President under Article 356 of the Constitution of India and the petition is liable to be dismissed?
(15) Is the petitioner an elector and entitled to vote at the election from the Cuttack City Assembly Constituency by-election held on 26-11-1972?
4. The main allegations underlying all these Issues, now being tried preliminarily, relate to non-compliance of the requirements of Sections 81, 83 and 117 of the Act. It is, therefore, necessary at the outset, to review the law as laid down by the Supreme Court from time to time regarding the effect of such non-compliance and its consequences which is penal in nature, as provided in Section 86(1) of the Act.
5. For the purpose of appreciating the Supreme Court cases, dealing with nature of Sections 80, 83 and 117 of the Act and consequences of non-fulfilment of their requirements, it is convenient to extract them ;
'80. Election petitions. -- No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
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 fortyfive 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.
(2) Omitted by Act 47 of 1956.
(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.
83. Contents of petition--
(1) An election petition--
(a) .........(not relevant for the present purpose);
(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. 117. Security for costs.--
(1) 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 petition.
6. The question of the nature of right to vote or stand as a candidate for election and the nature of the jurisdiction conferred upon the Judge or Tribunal to examine and determine matters relating to election has been examined in the case of N. P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64. The learned Judges extracted a passage with approval from the judgment of Lord Cairns in the case of Theberge v. Laudry, (1876) 2 AC 102, who was dealing with the special nature of the jurisdiction of the election Tribunal acting under election law, which runs as follows :
'.........They are not Acts constituting orproviding for the decision of mere ordinary civil rights; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court ............ for thepurpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the Legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in such a way that should as soon as possible become conclusive; and enable, the constitution of the Legislative Assembly to be distinctly and speedily known.'
At another place Lord Cairns observed as follows :--
'Now, the subject-matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and privileges of the electors and of the Legislative Assembly to which they elect members. Those rights and privileges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in complete independence of the Crown, so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the Legislation, if, with regard to rights and privileges, of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court which the legislative assembly had put in its place, but belonged to the Crown in Council, with the advice of the abvisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substituted in its place.'
The learned Judges of the Supreme Court after extracting the aforesaid passage proceeded to set out the principles as emerging from them, which are :--
'(1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.
(2) Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.'
7. In the case of Jagan Nath v. Jas-want Singh, AIR 1954 SC 210, the Supreme Court again considered the effect of non-compliance of procedural requirements of election law. The learned Judges stated as follows :
'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the Common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these pro-positions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down byit.
It is always to be borne in mind thatthough the election of a successful candidate is not to be Tightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected.'
The learned Judges were considering the effect of non-compliance of Section 82 of the Act in the conspectus of Sections 81, 83 and 117 thereof. The Act did neither prescribe any consequence nor laid down any penalty for non-compliance of Section 83, while Section 85 (now Section 86 of the Act) provided for a penalty in case of non-compliance of Sections 81, 82, and 117 of the Act by enjoining upon the Election Commissioner to dismiss the election petition. They accordingly held that non-compliance of the requirement ofSection 83 did not entail a compulsory dismissal of the election petition while impliedly indicating that non-compliance of Sections 81, 82, and 117 did involve such a consequence.
8. In the case of Rattan Anmol Singh v. Atma Ram, AIR 1954 SC 510, the learned Judges of the Supreme Court were dealing with a case of absence of attestation on nomination paper subscribed by an illiterate person as required by Section 33 of the Act, and whether the Returning Officer was bound to reject it under Section 36, Sub-section (2) (d) of the Act. It was held that the defect was not of a technical nature, but was of a substantial character and Section 36 being mandatory, the Returning Officer at the time of scrutiny could not permit rectification of the defect. The learned Judges further proceeded to say that even if evidence had been led to satisfy the Returning Officer about the identity of the person subscribing to the nomination paper, and thereby fulfilled the purpose of attestation and consequently removed the lacuna of its absence, nevertheless, the position could not change and Section 36 which was mandatory and enjoined upon the Returning Officer to refuse any nomination paper which failed to comply with the requirement of Section 33, would still have its compulsive effect. In other words, what the learned Judges intended to say was that equitable considerations of common law court administering common law, have no place in determining election matters under the special election, law.
9. In the case of Baru Ram v. Smt. Prasanni, AIR 1959 SC 93, the learned Judges of the Supreme Court were considering the validity of the action of the Returning Officer rejecting the nomination paper under Section 36(2)(b) of the Act. One of the matters which the Returning Officer was required to be satisfied about under Section 36 of the Act was whether the candidate who is not an elector in the Constituency in question is in fact an elector of a different Constituency, before rejecting the nomination paper. Section 33(5) of the Act requires the candidate to supply the certified copy containing the relevant entry of the electoral roll to establish the fact that the candidate is an elector in the Constituency in question and Section 36(2)(b) provides that in default of producing the certified copy, the nomination paper is liable to be rejected. In this case, the certified copy was not produced and the nomination paper was rejected. In the aforesaid circumstances, the learned Judges laid down the following dictum :--
'Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence. There is no doubt that the essential object of the scrutiny of nomination papersis that the returning officer should be satisfied that the candidate who is not an elector in the constituency in question, is in fact an elector of a different constituency. The satisfaction of the returning officer is thus the matter of substance in these proceedings; Section 33(5) requires the candidate to supply the prescribed copy and Section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. If the candidate fails to produce the relevant copy, the consequence prescribed by Section 36(2)(b) must inevitably follow :--
Where the statute requires specific facts to be proved in a specific way and it also provides for the consequence of non-compliance with the said requirement it would be difficult to resist the application of the penalty clause on the ground that such an application is based on a technical approach............'
(the aforesaid passages are extracted from the headnote)
This case reiterated the principles laid down in the previous decisions of the Supreme Court in AIR 1954 SC 210 and 510 (supra).
10. In the case of Ch. Subbarao v. Member Election Tribunal, Hyderabad, AIR 1964 SC 1027, the learned judges of the Supreme Court held--
'.........an election petition was not to beequated to an action at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the courts possessed and could exercise no dispensing power to waive non-compliance/' The learned Judges again said--
'It cannot be urged that the jurisdiction of the Election Tribunal under Section 80(3) to dismiss an election petition which does not comply with the provisions of Section 81 is attracted only if there is a defect in the petition itself and that a defect merely in the copy accompanying the petition would not be a case of a petition not complying with the provisions of Section 81 so as to require or even permit the Tribunal to dismiss the petition. When Section 81(3) requires an election petition to be accompanied by the requisite number of copies, it becomes a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition. If that is a requirement of Section 81, no distinction can be drawn between the requirements of Sub-sections (1) and (2) and of Sub-section (3). If there is a total and complete non-compliance-with the provisions of Section 81(3), the election petition might not be 'an election petition presented in accordance with the provisions of this Part' within Section 80 of the Act. If there had been such a non-compli-ance with the requirement of Sub-section (3) not merely the Election Commission under Section 85 but' the Election Tribunal under Section 90 (3) would prima facie not merely be justified but would be required to dismiss the election petition.'
It may be noticed that in this particular case, the learned Judges were considering whether the copy accompanying the election petition was a true copy or not. Required number of copies were filed and the copies bore two signatures of the petitioner authenticating both the contents of the petition as well as the verification, but the petitioner had omitted to insert the words 'true copy' before and above the signature. It was contended that Section 81(3) of the Act had not been complied with. This contention was negatived as the copies were found to be true copies and omission to insert 'true copy' did not matter as the section itself did not indicate the manner of authentication of a copy as a true copy. That, however, does not affect the decision that Section 85 (now Section 86) is mandatory and must be strictly complied with.
11. The Supreme Court has reiterated the aforesaid principles in the case of K. V. Rao v. B. N. Reddi, AIR 1969 SC 872, in which it has been stated that the trial of an election petition is not the same thing as the trial of a suit and the- trial of an election petition and the powers of the Court in respect of it are all circumscribed by the Act. Regarding applicability of Limitation Act, the learned Judges observed--
'.........the Limitation Act cannot applyto proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act.'
They, however, say that Sections 9 and 10 of the General Clauses Act, 1897, providing for computation of time which are in pari materia with Sections 12 (1) and (4) of the Limitation Act would apply to such a petition. They also say elsewhere in the judgment--
'.........No right is however given to theHigh Court to entertain an election petition which does not comply with the provisions of Section 81, 82, and 117.' and
'.........Under Section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82. Again the High Court must dismiss an election petition if security for costs be not given in terms of Section 117 of the Act.'
12. In 1973, the Supreme Court in two cases reiterated the aforesaid principles. The first is the case of Charan Lat v. Nand-kishore, AIR 1973 SC 2464, where it has been said --
'The right to challenge an election conferred by Article 329(b) of the Constitution being a statutory right, the terms of thatstatute have to be complied with. If no discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs is conferred, it cannot be exercised under any general law or any principle of equity. There is no provision in the Act empowering the High Court to absolve the petitioner from making any security deposit or to reduce the amount required to be deposited under the Act.'
(quoted from Head-note)
This dictum in relation to security deposit will also apply to non-compliance of the requirements of mandatory provisions contained in Sections 81 and 82, of the Act.
The second case is the case of Krishan Chander v. Ram Lal, AIR 1973 SC 2513. In this case, the Supreme Court held that Section 82 of the Act is mandatory and non-compliance of its requirements makes the dismissal of the election petition compulsory under Section 81(1) of the Act. The same consequence will also flow in case of non-compliance of the mandatory requirements of Sections 81 and 83 of the Act.
13. The trend of the decisions of the Supreme Court in the aforesaid cases is in full accord with Article 329 of the Constitution, which runs as follows :
'329. Notwithstanding anything in this Constitution--
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to -such authority and in such manner as may beprovided for by or under any law made by the appropriate Legislature.'
14. The respondent had clearly alleged in her written statement that due to non-compliance of the mandatory requirements of Sections 81, 82, and 117 of the Act, the election petition is bound to fail in limine. Thus, at one point of time, a controversy arose between the parties as to who is to begin in leading evidence on the preliminary Issues. General onus of proof is always on the election petitioner. There is an essential distinction between the 'burden of proof' as a matter of law and pleading and as a matter of adducing evidence. The burden in the first sense is always upon the party who comes to Court to get a decision on the existence of certain facts he asserts; but the burden to prove in the sense of adducing evidence 'shifts from time to time' having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other. Section 86(1) of the Act imposes a duty upon the High Court to dismiss an election petition which does not comply with the provisions of Section 81, 82 and 117 of the Act, Section 80provides that an election can be called in question only in accordance with the provisions of 'this part.' The election petitioner, therefore, has prima facie to satisfy the High Court that his applications is in accordance with the Sections 81, 82 and 117 of the Act. In view 'of the written statement of the respondent, it is the statutory duty of the High Court to be satisfied that the requirements of Sections 81, 82 and 117 of the Act have been fulfilled before proceeding further with the merits of the case. In this legal perspective, if neither party adduced evidence, the election petition is liable to be dismissed in limine. However, at the end of the argument on the question of 'who has the right to begin?', the learned counsel for the petitioner agreed to lead evidence without further insisting upon the respondent to lead evidence.
15. Issue No. 4 :-- The limitation provided for presenting an election petition is provided in Section 81 of the Act. It says that an election petition may be presented within forty-five days from the date of election of the returned candidate.' The date of election is the date when polling took place, i.e., 26-11-1972. The election petition was presented on 10-1-1973. Under Section 9 of the General Clauses Act, 1897, which has been held to be applicable in computation of the period of limitation by the Supreme Court in K.V. Rao's case, referred to above, 26th of November is to be excluded. So, computing the period of limitation, it is clear that the election petition was filed on the forty-fifth day and was, thus, in time. This Issue is, therefore, answered in the negative.
16. Issues Nos. 1, 3, 6, 7, 8, 10, 11, 12, 14 and 15:--
These Issues are taken up together because they are admittedly inter-connected. Under Section 86(1) of the Act, dismissal of the petition is compulsory if the provisions of Sections 81, 82 and 117 are found not to have been complied with. This indicates that non-compliance or indifferent compliance of the provisions of Section 83, would not have the same compulsive consequence of dismissal of the petition, and the High Court may permit the petitioner to fulfil the requirements of that section later. Sub-section (5) of Section 86 of the Act also corroborates this view because it provides that the High Court may allow opportunities of any corrupt practice alleged in the petition to be amended or amplified in such manner as may, in its opinion, be- necessary for ensuring a fair and effective trial of the case subject to the limitation that the petitioner shall not be allowed to introduce a new corrupt practice which was not previously alleged in the petition, by way of amendment. The requirements of attestation and verification are provided in this Section 83 of the Act and defects in the same can be allowed to be cured subsequently. Section 87 of the Act provides that the election petition shall be tried by the High Court as nearlyas may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. The trial of an election petition is deemed to commence from the date fixed for the respondents to appear before the High Court and answer the claim made in the petition (vide Section 86(4), Explanation). Thus, everything that is permissible to be done under the Civil P. C. in the matter of permitting irregularities to be cured, may also similarly be done with respect to the election petition.
So far as Section 82 of the Act is concerned, there is no allegation of any non-compliance. As to non-compliance of Sections 81 and 117 of the Act, the respondent's case is :--
(a) The petitioner is not an 'elector' as defined in the Explanation to Section 81 of the Act and, as such, the election petition is not maintainable in law;
(b) The election petition has not been 'presented' as required under Sub-section (1) of Section 81, but has been merely 'filed.' The election petition is, therefore, liable to be dismissed in limine;
(c) The election petition was not accompanied by a true copy of the election petition attested by the petitioner under his own signature indicating the copy to be a true copy; and
(d) The petitioner did not deposit in the High Court in accordance with the Rules of the High Court the amount of security towards costs of the petition at the time of presentation. I will now proceed to consider these four aspects of the case seriatim.
17. The petitioner in paragraph I of the petition asserts :--
'That the petitioner is an elector entitled to vote at the election from the Cuttack City Assembly Constituency by-election held on 26-11-1972. The petitioner's number is 2444 in part 16 of the Electoral Roll of Cuttack City Assembly Constituency.'
The respondent has replied to this part of the petitioner's case in paragraphs 21 and 22 of her written statement. Those paragraphs are :
'21. That the facts which are not specifically admitted in this written statement shall be deemed to have been denied. 22. That the facts stated in paragraph 1 of the election petition are not admitted.'
On these pleadings, the petitioner filed a draft Issue on 10-5-1973 of which Issue No. 17 reads as follows :
'17. Is the petitioner an elector entitled to vote at the election from the Cuttack City Assembly Constituency by-election held on 26-11-1972.' This draft issue No. 17 is Issue No. 15 framed by the Court which reads as follows :--'15. Is the petitioner an elector and entitled to vote at the election from theCuttack City Assembly Constituency by-election held on 26-11-1972?'
The explanation to Section 81(1) of the Act provides that for the purpose of this subsection an '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.' The meaning of 'elector' in this Explanation is somewhat different from the definition of 'elector' in Section 2(1)(e) of the Act. Section 62 of the Act deals with right to vote. Sub-section (1) of that section which is relevant for the present purpose is extracted hereinbelow:--
'62. Right to vote.--
(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote- at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950).
Section 16 of the Representation of the People Act, 1950, provides--
'16, Disqualifications for registration in an electoral roll.--
(1) A person shall be disqualified for registration in an electoral roll if he--
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for thei time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
(2) x x x x'
Thus, reading Section 81(2) Explanation alongwith Section 62 of the Act and Section 16 ofthe Representation of the People Act, 1950(hereinafter called the '1950 Act') it is clearhat in order to maintain his petition calling in question the by-election, the petitioner is toprove that--
(a) his-name is entered in the electoral roll; and
(b) he has not incurred any of the disqualifications, in other words, he is entitled to vote at the by-election held on 26-11-1972.
The initial burden of proving these two facts is on the petitioner. Even though one of such facts is a negative one in nature, yet the initial burden may be discharged by a mere assertion of the petitioner that he has not incurred any of the disqualifications by the time of holding of the by-election in question. It is only after the prima facie evidence is led by the petitioner that the burden would shift on to the shoulder of the respondent. It is pertinent to notice here two decisions in this connection. The first is the case of Krishnaswami Naidu v. Secy, of StateAIR 1943 Mad 15. The relevant passage in that judgment runs as follows:--
'.........If a party wishes the Court tobelieve in the non-existence of certain facts and the existence of the rights asserted by him depends on the non-existence of such facts, it is as much his duty to establish those negative facts as it would be of proving positive facts, if his rights were to depend on their existence ......... When an affirmative fact isto be established, direct evidence to prove that fact can be adduced and the Court has to make up its mind as to its credibility and sufficiency; but when a negative fact has to be proved, it may be that in a large number of cases no more than prima facie evidence as to the non-existence of the fact that is alleged not to have existed is available or can be adduced and in such cases, a plaintiff can be expected to do nothing more than produce such evidence to substantiate his allegations prima facie.'
The second case is the case of S. T. Trading Co. v. Union of India, AIR 1966 Guj 116. The relevant passage from this decision runs as follows:--
'.,.......It is true that, in considering thequestion as to whether the burden is discharged or not, the Court must bear in mind the fact that plaintiff is called upon to prove a negative fact. It may be that very slight evidence may be sufficient to satisfy the Court that the burden has heen discharged. It may be that, in some cases, slight evidence may be considered as sufficient to shift the burden of proof on the other side. But the important point to notice is that there must be some such reliajjle evidence adduced by plaintiff in the first instance which would permit the Court to hold that the burden has either been discharged or that it has been shifted on the other side.........'
18. The learned counsel for the petitioner contends that the burden of proof rests on the respondent to show that the petitioner is not an ejector within the meaning of the Explanation to Section 81(1) of the Act. His reasoning is that the validity of the entry in the electoral roll (Ext. 23) is not open to challenge. In view of Section 30 of the 1950 Act, neither the Civil Courts nor the Election Tribunals which consider the validity of an election have the jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a Constituency or to question the legality of the action taken by or under the authority of the Electoral Roll Registration Officer or any decision gives by any authority under that Act for the revision of any such roll. Reliance is placed in this connection on the decisions of the Supreme Court in the case' of Kabul Singh v. Kundan Singh, AIR 1970 SC 340 and in the case of S.K. Chowdhury v. B. Panjiar, AIR 1973 SC 717. It has been further contended, relying upon the provisions of Order 8, Rule 2 of the Codeof Civil Procedure that since there was no specific denial of the averments in paragraph 1 of the petition, the facts alleged therein must be taken to have been admitted. In such a case the onus clearly shifts to the respondent to prove that such admission is wrong. Mere stating by way of reply that 'the facts stated in paragraph 1 are not admitted' does not constitute a specific denial.
19. The first part of the aforesaid contention may now be noticed. It is true that the validity of the entry in the electoral roll is not open to challenge, but that does not absolve the petitioner from satisfying the Court or the Tribunal about the identity or the description of the person in the entry in the electoral roll with him. Where there is lapse of time between preparation of the electoral roll and the holding of the election which is challenged by an election petition, a presumption which arises from the electoral roll that a person registered therein is free from disqualification and, as such, is entitled to vote in the Constituency for which the electoral roll had. been prepared, will continue until it is rebutted by counter evidence showing that subsequent to registration the person has incurred disqualification. In that view, the petitioner may be presumed to be free from all disqualifications and it would be clearly the burden of the respondent to disprove that presumption. Such a presumption will certainly operate in favour of the petitioner only after he establishes his identity with the description of the person who has been registered against entry No. 2444 in part 16 of the electoral roll (Ext. 23). By giving prima facie proof of such identity, he will raise the presumption in his favour and, as such, be deemed to have discharged the initial burden of proof that he is an elector free from any disqualifications envisaged in Section 16 of the 1950 Act and as defined in the Explanation to Section 81(1) of the Act. But in the present case, the petitioner has not led even that prima facie evidence to raise the presumption in his favour, as will be shown hereinafter. The cases referred to at ' page 398 in the Law of Elections and Election Petitions in India by Nanak Chand Pandit and Gyan Chand Mathur, 3rd Edition, 1962, on which the petitioner's counsel rely merely decide that the burden is on the respondent to show that the petitioner is disqualified, in other words, it is the respondent's duty to positively establish that the petitioner as an elector has incurred disqualifications subsequent to the preparation of the electoral roll. They do not appear to lay down the proposition that the petitioner is absolved even from discharging his burden of establishing the fact that he has been registered in the electoral roll and, as such, he is an elector, as defined in Section 2(1)(e) of the Act. This part of the contention of the petitioner does not appear to be sound.
20. Coming to the second part of his contention, it is necessary to look to the lawof pleadings and the judicial decisions rendered in regard to the same. Rule 3 of Order 8 of the Code of Civil Procedure provides that the denial must be specific and it shall not be sufficient to make general denial. Rule 4 of Order 8 of the Code similarly prohibits an evasive denial as an effective denial. The respondent here must answer the point of substance specifically. Rule 5 of Order 8 of the Code provides:--
'5. Specific denial-- Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability;
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.' The facts in paragraph 1 of the election petition are within the special knowledge of the petitioner and not of the respondent. In the circumstances, the respondent stated in paragraphs 21 and 22 of her written statement that 'the facts stated in paragraph 1 of the election petition are not admitted' and that 'such facts which are not specifically admitted shall be deemed to have been denied.' Keeping the language of Rule 5 of Order 8 in view and of the written statement, the averments of paragraph 1 of the election petition cannot be said to have been admitted. Judicial decisions referred to hereinbelow are also to the same effect.
In the case of Surendra Bahadur v. Behari Singh, AIR 1939 PC 117, in similar circumstances, it was held that the execution of a mortgage deed was not admitted. Their Lordships say:
'.........It is clear that Lachman Singh inhis written statement pleaded that he did not admit the execution of the mortgage deed, and it appears from the judgment of the Subordinate Judge that at the trial the pleader who appeared for Lachman Singh 'hotly contended that the execution and due attestation of the mortgage bond in suit was not proved against his client'. In those circumstances, in their Lordships' opinion, it must be held that the execution of the mortgage deed by Mt. Jamna Kunwar was in fact specifically denied by Lachman Singh.'
Dealing with the rule of pleading, Lord Denning, in -the case of Warner v. Sampson, 1959 (1) All ER 120 at page 123 stated as follows:--
'Whenever he knows there is a serious contest, he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the trial. At one time the use of this general denial was said to be embarrassing, ............ but since 1893 it has been recognised as convenient and permissible, see Adkins v. North Metropolitan TramwaysCo., (1893) 63 LJQB 361, Sometimes the pleader 'denies', sometimes he 'does not admit' each and every allegation, but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded 'as if it were specifically set put and traversed seriatim'. In short, it is a traverse, no more and no less.'
In the book 'Precedents of Pleadings' by Bullen & Leake, at page 664, Section 2 states the law on the point as prevalent in England. The English rule is similar tq Rule 5 of Order 8 of the Code. Referring to that, it is stated:--
'The primary object of the Defence is, as we have seen; to inform the plaintiff precisely how much of the Statement of Claim the defendant admits and how much he denies. ............ The counsel forthe defendant should therefore commence his pleading by dealing with the material facts alleged in the Statement of claim in the order in which they are alleged, either admitting or denying each of them. If he omits to deny any material allegation in the Claim or to state expressly; that he does not admit it, he will be taken to admit it. He need not plead to any allegation of law, but he will be taken to admit every allegation of fact, unless he either denies it or says expressly that he does not admit it, .,..........'
Further, in the instant case, the Court instead of construing such denial as vague or constituting by itself an admission, framed a specific Issue which is Issue No. 15 hi the case and thereby exercised its discretion as provided in the Proviso to Rule 5 of Order 8 of the Code, in requiring that fact to be still proved. In the circumstances, it is no longer open to the petitioner to plead that the matter is to be decided on the basis of admission. In this connection, it may be recalled that the petitioner himself submitted draft Issues on 10-5-1973 of which Issue No. 17 which is the same as Issue No. 15 framed by the Court, related to the question whether the petitioner was an elector. The parties also led evidence on that Issue, as would be indicated, by filing of Ext. 23 by the petitioner. The petitioner, therefore, cannot escape his obligation of proving the facts which make him an elector within the meaning of the Explanation to Section 81(1) of the Act to maintain the election petition. (See AIR 1966 Pat 75, South Bihar Sugar Mills v. Maharai Prasad Singh and AIR 1966 All 39 Abdul Sami v. Mohammad Noor).
When parties have framed a specific Issue as to whether the petitioner is an elector or not and were aware that it involved a substantial question, the petitioner cannot rely upon the rule of pleading to infer an admission in substitution of lack of evidence. See the case ofBhagwati v. Chandramaul, AIR 1966 SC 735, where it is stated:--
'........ The general rule no doubtis that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? ............'
For the aforesaid reasons, the second part of the petitioner's contention must also be negatived.
21. It is next to be considered whether the petitioner has been able to establish that he is an elector of the Constituency in question. The only evidence adduced on this aspect of the case is Ext. 23, the certified copy of the electoral roll. Again the Entry No. 2444 in this document, the name of one Ajit Prasad Nara-yan Singh, son of 'R. P.', aged 26 years, is shown as the person who has been registered as an elector for the Cuttack City Assembly Constituency. This electoral roll was admittedly prepared on 1-1-1971. The petitioner who has examined himself in this case on 13-11-1972 has stated his age to be 26 years. The father's name as deposed to by the petitioner may or may not be 'R. P.' as noted in the electoral roll. The description in Entry No. 2444 in Ext. 23, therefore, does not tally with the petitioner's identity. No prima facie evidence has been given to connect the petitioner's identity with the description of the person registered against Entry No. 2444 in Ext. 23, which, if given, would have raised a presumption that he was entitled to vote at the election to which the election petition relates.
In the case of Hemanta Kumar v. Alliantz Ins. Co., AIR 1938 Cal 120, it was said
'............ As was held in (17181 1 ER1501, entries of the names of persons in a register of births or deaths or marriages cannot be positive evidence of birth, death or marriage of such persons unless their identity is fully proved; ............'
In the case of Biseswar Misra v. The King, AIR 1949 Orissa 22, it was said--
'......... The birth certificate does notprove itself and is no proof of age of any particular person unless the person connected with that entry either by making the entry or giving information comes forward and speaks to the entry and connects the entry with the individual concerned. ............'
In the case of State v. Kamruddin, AIR 1956 Nag 74, it has been held:--
'............ A mere entry in a Birthand Death register to the effect that a daughter was born to a person without any statement as to the identity of the girl is not sufficient to prove the birth of a particular person. The identity of that person has to be fully established by other evidence. .,.....'...'
In the case of Paryanibai v. Bajirao, AIR 1963 Bom 25. it has been held that mere filing of a copy of an entry in the Birth register or the Kotwari book does not prove ipso facto that the entry relates to or proves the birth of the person concerned and evidence has to be introduced to connect that entry with the person whose date of birth has to be established.
Similarly in the case of Didar Singh v. Sohan Singh. AIR 1966 Punj 282, it was held that:--
'............ But, all these factors notwithstanding, it appears that mere production of a copy of this document would not, as a matter of law, connect the entry with the appellant's father, particularly when the appellant too has. in his own statement as a witness, omitted, for reasons best known to him, to say anything about this entry. This document has, therefore, to be excluded from consideration.'
The learned counsel for the petitioner has cited three English cases ( (1817) 106 ER 67, Hennell v. Lyon; (18421 152 ER 21, Simpson v. Dismore; and (1843) 114 ER 1034, Sewell v. Evans) in support of the proposition that Ext. 23 is the presumptive evidence of identity of the petitioner with the description of the person in the Entry No- 2444 in that document. In those cases the question of identity did not arise as a specific issue but came in incidentally. That apart, unlike in Hennell's case, the description in that entry does not tally in every particular with the description of the petitioner given by himself at the top of his deposition, as already indicated. Further this document was produced at a stage when the respondent had closed her evidence and had no opportunity to rebut whatever presumption it gave rise to. The proposition in those cases is nothing more than a practice followed in administration of justice in England as a matter of public convenience and is not followed in criminal cases. Adoption of such a practice is inappropriate in case where requirements of election law are to be strictly applied. These cases, therefore, are of no assistance to the petitioner.
Thus, the petitioner having omitted to connect the identity of the person under Entry No, 2444 in Ext. 23 with himself, either by his own statement orby other evidence, the only available conclusion is that he has failed to prove that he is an elector, who was entitled to vote at the election to which the election petition relates. In other words, he has failed to establish that he is an elector within the meaning of Explanation to Section 81(1) of the Act. The inevitable conclusion is that the petition must be held to be not maintainable by him.
22. A petition was filed by the petitioner on 7-12-1973 praying for permission to examine a witness for the limited purpose of bringing on record 'some formal statement regarding the Voters' List', as such statement was omitted through inadvertence. An objection petition was filed on behalf of the respondent. The objection was that at this stage the petitioner was not entitled to fill up the lacuna of a substantial character and to open up a new point of evidence against the respondent. In view of the specific Issue No. 15 as to whether the petitioner was an elector and entitled to vote at the election from the Cut-tack City Assembly Constituency by-election, and the petitioner having omitted to give legal evidence upon that Issue at the trial, he was not entitled at this late stage to reopen the case and lead fresh evidence upon that Issue, The order-sheet shows that the petitioner concluded leading his evidence on the preliminary Issues on 27-11-1973 and evidence on behalf of the respondent commenced on that date. The leading of the evidence on behalf of the respondent was concluded on 28-11-1973. Thereafter, arguments were advanced by the counsel for the respective parties. This argument continued from day to day. On 5-12-1973, the petitioner for the first time filed a certified copy of the Voters' list which was marked as Ext. 23 on the respondent's waiving its formal proof. The petitioner's counsel concluded his argument and the respondents counsel commenced his reply- It is only when the respondent's counsel argued on absence of evidence regarding Issue No. 15, that the petition under Section 151 of the Code of Civil Procedure was filed by the petitioner. In the aforesaid circumstances, I do not think it to be just and proper to allow this application and to re-open Issue No. 15. Accordingly, I reject this application.
23. In the net result, Issue No. 15 is answered in the negative, which means that the petitioner has failed to prove his locus standi as an 'elector' to maintain this election petition.
24. The next question to be considered is whether the election petition has been presented as required under subsection (1) of Section 81 of the Act. Section 81 of the Act provides for 'presentation' of an election petition. The Actnowhere designates the special mode of presentation. Orissa High Court has framed certain Rules to regulate the proceedings under the Representation of the People Act, 1951 (Act 43 of 1951). Rule 4 of the High Court Rules provides that:--
'Every Election petition accompained by copies as prescribed under Section 81(3) of the Act shall be presented under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act), either in person or by an Advocate duly authorised by the parties concerned, to the Registrar or in his absence to the Deputy Registrar, Additional Deputy Registrar or the Assistant Registrar during usual office hours of any working day.'
Rule 6 provides that
'The election petition shall be presented along with the necessary copies. All copies of the petition shall conform to the original, page by page. Immediately after its presentation, the date of presentation shall be endorsed thereon and shall be entered in a special register maintained, for the registration of election petitions in the following form--
XX XX Xx XX'
Rule 7 provides that
'Every election petition shall, on presentation, be examined by the Stamp Reporter, who shall certify thereon whether the petition is in conformity with the requirements of law and the rules applicable to the same and the petition with the defects or omissions if any, as reported by the Stamp Reporter, shall be referred to the Judge who has been assigned by the Chief Justice for the trial of the Election petition for orders under Section 86 of the Act'
On 10-1-1973, the election petition was presented before the Deputy Registrar (P. W. 2) as the Registrar (P. W. 1) was absent This petition bears an endorsement (Ext. 7) of the Deputy Registrar, which is as follows:--
'Presented on 10-1-1973.
It also bears Deputy Registrar's oval-shaped seal containing within it the following inscription:
1973 2nd. Clearance'
The Stamp Reporter on the reverse of the first page of the election petition has made an endorsement of some defects noticed in the election petition, which are of very formal nature. He has not appended his certificate as required under Rule 7 of the High Court Rules referred to above After the petition went to the Section concerned, the Clerk-in-charge of the Section attached an order-sheet to the petition and typed out the first order dated 10-1-1973 and put it up before theDeputy Registrar for his signature. That typed order runs thus:--
'Filed. Put up for orders
According to P. W. 1, the Registrar a Lawazima register is maintained in the High Court office in which all kinds of presentations either before the Registrar or in his absence before the Dy. Registrar or in his absence before the Asst. Registrar are entered. In normal course this election petition should have been entered in the Lawazirna register, but as a matter of fact, it has not been so entered. P. W. 2, the Deputy Registrar, has stated that unless the papers are put in the box, the filing seal is not annexed and that when a paper bears the seal of '2nd clearance' that says that it was removed from the filing box at about 2.30 P. M.
In view of these circumstances, it is contended on behalf of the respondent that if the election petition had been duly presented, it would have been registered in the Lawazirna register and the first typed order on the order-sheet of the petition would have shown 'presented' and not 'filed' and the petition should not have borne the Deputy Registrar's seal of 2nd Clearance and the clear inference, therefore, is that the petition was not presented before the Deputy Registrar, but the latter in order to conceal his lapses of duty has made the endorsement Ext. 7 on the election petition.
I do not agree that this logic is inexorable. It may as well be that after the proper presentation before the Deputy Registrar, the other acts which are expected to be performed by other officials of the High Court were not duly carried out. Omission to carry out the functions of other officers would not necessarily lead to the inevitable conclusion that presentation as endorsed by the Deputy Registrar was untrue. To determine whether the petition was presented or not, it is immaterial as to how the ministerial officer treated the petition subsequent to the presentation. The Deputy Registrar (P. W. 21 has stated on oath that the election petition was presented before him and he made the endorsement (Ext. 7). He thereby corroborates the express averment of the petitioner himself that he presented the petition on 10-1-1973. Nothing has been shown as to why the Deputy Registrar's testimony is to be disbelieved. He is an officer of this Court. He has not been shown to suffer from any bias against the respondent. The Superintendent (P. W, 3) also corroborates the Deputy Registrar that when the petition came to him, he found the endorsement (Ext. 7) already on it. There may be slight discrepancies in the testimonies of P. Ws. 3 and 2 on this point, but thoseare of very trivial in nature. I see no reason at all to disbelieve the statement of P. W. 2 that the election petition was presented to him on 10-1-1973, which has been corroborated by P. W. 3. In the state of evidence on record, I, therefore, come to the conclusion that the election petition has been 'presented' in accordance with Section 81(1) of the Act. The election petition, therefore, is not liable to be dismissed on this ground.
25. The next question to be considered is whether the election petition was accompanied by a true copy attested by the petitioner under his own signature indicating the copy to be true copy at the time of presentation. If this question is answered in the negative, then necessarily it must have to be held that Section 81(3) of the Act has not been complied with which would perforce entail a dismissal of the election petition on that ground alone.
We have on record three election petitions -- one is the original election petition; the second is a copy, but not a true copy, of the; election petition (Ext. 6) and the third is a copy of the election petition produced by the respondent as having been served on her through Court (Ext. 5). Ext. 6 is apparently not a true copy. The differences between it and the main election petition which have been brought out in the evidence of the petitioner (P. W, 4) are both major and minor and that apart it has not been attested by the petitioner as required by law. There is no serious dispute over the fact that Ext. 6 is not a true and attested copy as required by law. Ext. 5 is a cyclostyled copy of the main election petition and according to the petitioner (P. W. 4) it was cyclostyled one week after presentation of the election petition and was not presented along with it. That apart, there are a number of discrepancies between it and the original as has been elicited in course of cross-examination of P. W. 4 in paragraphs 38 to 48 of his testimony. Therefore, Ext. 5 is also not a true copy though every page of it bears the signature of the petitioner as well as of his Advocate and the Court seal. Therefore, filing of Ext. 5 does not amount to a compliance of Section 81(3) of the Act. The petitioner's counsel, therefore, contends that a third copy was filed along with the election petition which was sent out to be served by post That copy was a true, attested copy and has been served on the respondent, but the latter is suppressing it. The petitioner himself has stated that apart from Ext. 6, he filed another copy at the time of presentation and that copy was a true and attested copy. If this evidence of the petitioner is accepted then the inevitable conculsion would be that Section 81(3) of the Act was complied with, because ofthe two copies if one of them is a true and attested copy and the requirement being to only file one such copy, the legal requirement will be satisfied notwithstanding that the other copy (Ext. 6) is not a true and attested copy.
It is argued on behalf of the respondent that only one copy was filed at the time of presentation and that is Ext.' 6. The other copy which is said to have been served by post and which is not forthcoming was subsequently filed along with Ext. 5 in compliance with the order of the Chief Justice directing service of notice in two ways, namely, through Court and by post. Therefore, the evidence is to be scanned to find out as to
(i) how many copies were filed at the time of presentation; and
(ii) whether any copy was served on the respondent by post.
If one copy is found to have been filed along with the main election petition at the time of presentation that copy would necessarily be Ext. 6 which is not a true and attested copy, and the point No. (ii) will not arise for determination. If two copies are found to have been filed at the time of presentation, the question of any copy being served on the respondent by post will become relevant for probabilising the petitioner's story that the second copy was a true copy and has been deliberately withheld.
26. Point No. (i). The petitioner (P. W. 4) has deposed in his examination-in-chief:--
'............ I filed Exhibit 6 along withthe original petition which I presented before the Deputy Registrar. Besides this, another exact copy I filed along with the main election petition. This copy bore my signature on all pages.'
In paragraph 13 of his deposition incross-examination, he stated--
'Immediately after the filing of the main petition, I filed another copy of the said petition, which is my office copy.'
In paragraph 14, he further stated--
'In the first instalment. I presented my main election petition accompanied by one copy with the Deputy Registrar, Subsequently, in the second instalment, I also gave my office copy as the second copy to the Deputy Registrar.'
This amended version of filing Ext. 6 before the Deputy Registrar subsequently is not borne out by the Deputy Registrar-At this stage it is necessary to recount the practice of filing in the Deputy Registrar's office. There is a box kept in his office where documents intended to be filed are placed. The Deputy Registrar (P. W. 2) deposes regarding this practice in the following words:
'The box in which the filings are put by the parties is opened at 12.30, 2.30 and between 4.30 and 5.00 p. m. every daywhich are respectively called 'First Clearance', 'Second clearance' and 'Third clearance'.
At each clearance, the documents from, the box are stamped with the filing stamp kept with me.
After the first clearance is over, the bit indicating the time of the clearance is changed by my orderly peon (Number of clearance).
Unless the papers are put in the box,the riling seal is not affixed thereon. .......................'
The Deputy Registrar's seal showing that it was taken out of the box during Second Clearance and absence of any endorsement on it by the Deputy Registrar, both negative the truth of this amended version
In the petition filed by the petitioner on 26-7-1973, which is exhibited as Ext. P, it was stated as follows:--
'2. That 'the respondent has alleged that the petition is liable to be dismissed far non-compliance with the provisions of Section 81(3) of the Representation of the People Act, 1951. There being only one respondent the petition was accompanied by one copy of the petition attested by the petitioner as true copy of the petition in compliance with that section. That subsequently the petitioner was asked to take out summons on the respondent by both ways. Hence the petitioner supplied another copy of the petition for the purpose. ,...........'
Earlier, on 1-6-1973, the petitioner filed an affidavit (Ext. Q) in which he stated in paragraph 6 as follows:--
'.......... I may submit that one copyas required under the Representation of the People Act (wrongly stated as Representative of People Act) was filed along with the petition. The other copies werefiled as required subsequently for facility of service.'
Thus all told, only three copies were filed. The statement extracted from Ext. Q indicates that only one copy was filed along with the petition and two other copies were filed subsequently. This averment in Ext. Q was sought to be explained away by the learned Counsel for the petitioner by saying that one attested true copy was filed along with the petition and of the two other copies one was filed subsequently in the second instalment on the date of presentation and the second subsequently much later, in compliance with the order of the Court to take out notice in both ways. It is a very strange explanation and runs directly counter to the categorical statement in Ext. P that there being only one respondent, the petition was accompanied by one copy of the petition attested by the petitioner as true copy of the petition.
Inherently, the petitioner's statement in paragraph 14 of his deposition, extracted above, is improbable. If the second copy was filed on the advice of the lawyers in the second instalment, it is really beyond comprehension as to why an unattested and incomplete copy was filed as it served no purpose. No corroborative testimony in this regard is forthcoming from P. W. 2, the Deputy Registrar, P. W. 3, the Superintendent, however, supports the petitioner's case by stating--
'8. Two copies of the election petition were filed along with the main petition.'
This statement of P. W. 3 is hard to swallow for the simple reason that it conflicts with his testimony in paragraph 23 of his deposition that he cannot say about the details regarding the steps taken in different cases unless he refers to the records of those cases and with his further admission that he has not noted in the order-sheet of the election petition or in the special register in which election case is registered or in any portion of the office note of the order-sheet on 10-1-1973, 16-1-1973, 18-1-1973 or 25-1-1973 that two copies were filed along with the original petition. He has admitted that he was not present at the time of presentation of the election petition and, therefore, could have no direct knowledge of the number of copies filed at the time. Further, it appears from Ext. H that he notified on the office notice board calling upon the petitioner to file requisites for service of summons both through Court and by registered post. 'Requisites' includes as per Rule 12 of Chapter VIII of the High Court Rules, 'process fee and typed copies of applications for purpose of service'. The court ordered on 16-1-1973 for effecting service in both ways and in pursuance of that order, P. W. 3 issued Ext. H. If, in fact, there were two copies on record, he should not have called for complete requisites, but only should have called for process fee and postal requisites for despatching notice by registered post- There was, therefore, no occasion to publish the notice Ext. H dated 18-1-1973, calling upon the petitioner to file complete requisites inclusive of two copies for service in both ways. In paragraph 15 of his deposition, he has insisted that the copy that was sent for service to the District Judge was a typed copy and the copy that was sent through post was a cyclostyled copy. That in fact is not true because the copy that was sent through the District Judge is Ext. 5, which is a cyclostyled copy. This indicates that this P. W. 3 is depositing to events occurring long ago and most probably has become faint in his memory and yet, he is making categorical statements which do not always accord with truth. For instance, at one place P W. 3 has stated that the original election petition was not available to the petitioner or to the petitioner's counsel for correction. This statement is obviously incorrect. The order sheet dated 16-1-1973 shows that Mr. Das, counsel for the petitioner, was permitted to correct and initial the date '15th November' occurring in the first sentence of sub-para, (iv) of paragraph 13 as '25th November' and he made the corrections accordingly. The order sheet dated 16-3-1973 clearly indicates that no Advocate other than Mr. Das was permitted to make the correction in any document other than the original petition. But Ext. 6, the typed copy of the petition indicates that some other Advocate had carried out many corrections. Those corrections obviously were carried out without order of the Court and since those corrections do not bear the initials of the Stamp Reporter in red ink, they must have been carried out subsequent to presentation and facility for correction was, therefore, afforded by somebody in the office. Thus, as already stated, P. W. 3's evidence that two copies of the election petition were filed along with the main petition cannot be accepted.
The petitioner's counsel next relies on the memo (Ext. G) dated 10-1-1973 in proof of filing of two copies on the date of presentation of the election petition. It is a memo under the signature of Mr. Behera, one of the counsel of the petitioner, as admitted by him. This memo bears Deputy Registrar's seal indicating that it was filed in the Deputy Registrar's box. The petitioner does not depose to have presented this memo along with his election petition and is positive that no memo was filed when he filed his second extra copy subsequently. This memo reads that the petition along with 'two' other copies was filed. The word 'two' appears to have been over-written. It may be that the word 'two' has been subsequently converted to 'two' which may also be read as 'true'. Assuming that the word is 'two', the memo Ext. G was accompanied by two copies, all of which were filed in the box. Ext. 6 bears the Deputy Registrar's seal like Ext. G. Therefore, the truth appears to be that Ext. 6 was filed in the box along with Ext. G. This memo contains the statement of the petitioner's counsel that two copies were filed along with Ext. G and non-examination of the lawyer to clarify the position raises a strong presumption that the statement in Ext. G as to filing of two copies with the memo is correct. In the circumstances, Ext. G demolishes the petitioner's case rather than support it.
I think, the truth has come out in Exts. P and Q. Ext. Q is in accord with Ext. P Ext. Q was filed, as already stated, on 1-6-1973, after filing of the written statement on 7-5-1973 and framing ofIssues on 16-5-1973. This document has, therefore, a great probative value. It is noteworthy that the petitioner has not in his testimony explained this admission in Ext. Q. On the contrary, he has reiterated that the contents of that affidavit are true and correct. It is a well-known principle in law that what is admitted by a party to be true must be presumed to be true unless the contrary is shown and that that admission, though not conclusive, is decisive of the matter it admits. It is, of course, open to the party against whom the admission is sought to be used to explain it or to prove that such admission is wrong. In this case, the petitioner has not only owned the admission, but has refrained from giving any explanation other than what it states. The explanation which was sought to be advanced was by the counsel only and not by the person who made it and that explanation, as already indicated, is a farfetched one and not acceptable at all. I am inclined to believe that, if at all, only one copy was filed along with the main election petition at the time of presentation. The petitioner has admitted that Ext. 6 is one such copy and, therefore, my conclusion is that the Election petition at the time of presentation was accompanied by Ext. 6 only.
This conclusion is reinforced by certain circumstances which are indicated hereinbelow: The first circumstance is that if two copies were already on record with effect from 10th of January. 1973, there was no occasion to file extra copies subsequently, unless the petitioner's counsel were aware that either both or any of the two copies filed on 10th January, were not true copies. It is unnatural and unlikely for lawyers to file unnecessary copies unless they were under the impression that they were true copies and were not for mere ornamental purpose. It was the duty of the petitioner to lead such evidence which was surely available as would have offered the explanation as to why an untrue copy or copies were filed on the date of presentation of the election petition. That would have clarified many matters relevant to the present enquiry. Both the counsel of the petitioner were available for testifying. Instead of corning forward to clarify matters, they have been withheld from the box and thus allowed the mystery to remain. That raises an adverse inference against the petitioner.
The second circumstance which carries great weight to me is the absence of certificate of the Stamp Reporter which he was required to append on the petition under Rule 7 of the Rules framed by the High Court under the Representation of the People Act, already extracted above. The rule casts a duty on the Stamp Reporter to certify on the election petition,whether the petition is in conformity with the requirements of law and the Rules applicable to the same. Such a certificate is not there, but the Stamp Reporter's endorsement merely shows that some formal defects have been pointed out. One of the requirements of law is filing of a true and attested copy. The Stamp Reporter withheld this certificate presumably because he did not find that requirement to have been fulfilled. Ext. 6, as has been admitted and as I see now, is not a true and attested copy and that presumably was the only copy which accompanied the petition when it came before the Stamp Reporter for examination. The petition being not in conformity with the requirement of law, the Stamp Reporter presumably withheld the certificate. The petitioner examined the Registrar, the Deputy Registrar and the Superintendent, but refrained from examining the Stamp Reporter whose express duty was to see if the petition was in conformity with law and to append his certificate if satisfied that it was so. The inference is strong that except Ext. 6, no true and attested copy accompanied the election petition.
27. Point No. (ii). In view of my conclusion that only one copy was filed and that was Ext. 6, which, was not in accordance with the requirements of law, the other aspect as to whether any copy of the election petition was served on the respondent by post loses importance. Therefore, I do not propose to deal with this aspect of the case.
28. Section 117 of the Act requires deposit of a sum of Rs. 2,000/- as security for costs. The petitioner deposited such amount, as per Challan (Ext. 4), on 10-1-1973, the day when the election petition was presented. Thus Section 117 of the Act was fully complied with.
29. Verifications and affidavits in the election petition are matters pertaining to Section 83 of the Act. As already indicated this section is not mandatory and Section 86(1) of the Act does not, enjoin a dismissal of the election petition for non-compliance with the provisions of Section 83. It must be held that the election petition is not liable to be rejected on account of any infirmity in the verification or on account of material particulars of corrupt practice not being duly supported by affidavit Those defects can be removed later on by order of the Court. Thus, part of Issue No. 6 regarding liability of the petition to be dismissed for non-compliance of Section 83 of the Act is answered in the negative. Similarly, Issue Nos. 7 and 10 (part) are answered in the negative.
30. With regard to Issue No. 8, it must be held that if a true and attested copy had been filed along with the petition but a discrepant copy has been served, that would not entail dismissal of the petition because it would not violate any mandatory requirement of law. So, this Issue No. 8 is answered in the negative.
31. With regard to Issue No. 11, the evidence is not sufficient to hold that the original petition had been subsequently tampered with, altered, or corrected without authority of law or without a formal petition by way of amendment. The matter of dismissal is to be determined with reference to facts at the time of presentation of the election petition and, therefore, subsequent tampering, even if true, would not attract Section 86(1) of the Act. The election petition is not liable to be dismissed on that ground. Issue No: 11 is decided in the negative.
32. Similarly, the evidence is not sufficient to hold that there has been any alteration or modification in the verification and affidavit annexed to the petition without authority of law for which the petitioner is responsible. Section 86 of the Act is not attracted and the petition is not liable to be dismissed on that account. This Issue No. 12 is decided in the negative.
33. Coming to Issue No. 14, the answer is that the petition is not liable to be dismissed on the ground that it has become infructuqus on account of dissolution of the Orissa State Legislative Assembly under the Proclamation issued by the President under Article 356 of the Constitution, The reason is that corrupt practices have been alleged in the election petition and if those practices are proved against this respondent, she is liable to be disqualified. This Issue, therefore, is answered in the negative.
34. In view of my findings recorded above, there has been non-compliance of some of the requirements of Section 81 of the Act and, as such, the election petition is not in accordance with law, is liable to be dismissed for non-compliance of Section 81 of the Act and is not maintainable on those grounds as well as on the ground that the petitioner has failed to establish that he is an elector. Thus, Issues Nos. 1 and 15 are answered in the negative and Issue No. 3 is answered in the affirmative and Issue No. 6 is partly answered in the affirmative and partly in the negative.
35. In the net result, the election petition is dismissed, but since the respondent has succeeded on preliminary grounds, I would not saddle the petitioner with any costs.
36. Election petition dismissed without costs.