1. This is an appeal by Shri Rewachand and Shri Keshavsingh, election petitioners, under Section 116A of the Representation of the People Act, 1951 (Act No. 43 of 1951, hereinafter called the Act) against the judgment and order of the Election Tribunal, Jodhpur, dated the 29th November, 1963, dismissing their election petition.
2. The appellants and respondents Nos. 1 to 8 stood up as candidates for election to the Rajasthan Vidhan Sabha from the Jodhpur City 1 Assembly Constituency at the General Election held in 1962. The poll took place on the 23rd February, 1962, as a result of which Shri Anand Singh, the contesting respondent was declared successful. This led to the institution of an election petition by the present appellants which was dismissed by the order under appeal. We consider, it unnecessary to set out the allegations on which the election petition was founded, for the purposes of the present judgment as certain preliminary objections have been raised before us on behalf of the contesting respondent as to the maintainability of the appeal, and some of these, in our considered opinion, go to the very root thereof and must result in its dismissal.
3. The principal objections raised before us may be summarised as follows :
(1) The appeal is barred by time, and, therefore, it shoud be dismissed as such;
(2) The appeal has not been filed in accordance with certain Rules of this Court inasmuch as
(a) it was filed without being accompanied by. any paper-books resulting in breach of Rule 247-E, and in this connection it was further contended that
(i) the extension of two months' time that was obtained by the appellants from the Court for filing the paper-books was so obtained on entirely false and untenable grounds and that this amounted to an abuse of the process of the Court and the extension granted should be revoked leading to the dismissal of the appeal on this ground alone;
(ii) even so, the paper-books were not supplied within the time so allowed, and no further application for extension of time was made;
(iii) eventually only four paper-books were filed on the 27th March, 1964, although according to the rule mentioned above, as many paper books were to be supplied as the number of the parties to be served together with two extra copies for the use of the Court, that is, ten paper-books had to be supplied in all;
(b) even the four paper-books which were supplied by the appellants on the 27th March, 1964, did not contain copies of the memorandum of appeal and this has led to the failure to comply with Clause (f) of Rule 247-F; and
(c) no certificate as to the correctness of the translation and/or typing of the paper-books was furnished by the advocate of the appellants resulting in the breach of Rule 247-H. The certificate was not supplied upto the date when the arguments on the preliminary points began, on the 31st July, 1964, and the certificate which was supplied later on the 4th August, 1964, when the arguments had almost completed was not correct, and it is contended that the paper-books supplied are still incomplete inasmuch as statements of some ten witnesses produced by the appellants are not fully incorporated in the paper-books that have been furnished.
4. On behalf of the appellants, it was equally strenuously contended that the appeal was within time. As to the maintainability of the appeal on account of the alleged breaches of the various rules referred to above it was contended that these rules were ultra vires being violative of Article 329 of the Constitution and therefore, illegal and inoperative and any breaches thereof were of no consequence. Alternatively, it was contended that any breach of the Rules 247-E or 247-F or 247-H was of no real consequence as these rates were really directory. Elaborating this argument, it was submitted that although the memorandum of appeal had not been filed accompanied by any paper-books and two months' extension of time was prayed for by the appellants, that was not done because of any false or untenable grounds inasmuch as inspection of the record had been taken during the relevant period, and four paper-books were eventually filed on the 27th March, 1964, which should be considered to be good enough in all the circumstances, the reason being that there was only one contesting respondent Shri Anand Singh and no other respondent appeared at the hearing before this Court.
It was further contended that although it was correct that the memorandum of appeal had not been filed along with these paper-books, the same had been supplied to learned counsel for the contesting respondent on the 14th April, 1964. As for the certificate of correctness of the translation and typing etc., of the paper-books the position taken up was that this could not be done up to the time of the filing of the appeal or even later but a certificate was filed during the course of the arguments on the 4th August, 1964, and that that should be taken to be sufficient for the purposes of the hearing of the appeal.
5. Now to be able to deal with the preliminary objection as to limitation, we may narrate a few facts with reference to relevant dates. The present appeal was preferred in this Court on the 15th January, 1964, the judgment under appeal being dated the 29th November, 1963. The appellants had made an application for a certified copy of the judgment on the 2nd December, 1963. The date fixed for the delivery of the copy was the 9th December, 1963; the copy was ready for delivery on the 17th December, 1963. A notice was served by the. Court below on the appellants to take delivery on the 19th December, 1963, and the delivery of the copy was actually taken on the 3rd January, 1964. The appeal was thus filed in this Court on the 47th day. The proper time taken for obtaining the copy on the facts stated above is from the 2nd December, 1963, to igth December, 1963, that is, 18 days. Excluding this time from computation, the appeal clearly appears to us to have been filed within the 30 days period of limitation prescribed for such appeals under Article 116A(3) of the Act.
It was, however, contended before us that the appellants were not entitled to all this time because they had made their application for copies on a stamp paper of one rupee only which was fantastic under the circumstances, and, therefore, it was prayed that we should send for the original application. This was ordered, but it transpired that this application was not available. Be that as it may, there is nothing on the record before us to show, nor have we been otherwise convinced that the allegation made on behalf of the contesting respondent is well-founded. In these circumstances, we hold that there is no force in the contention that the appeal is barred by time and we reject this objection.
6. Turning next to the other set of objections as regards the competency of the appeal on account of want of compliance with certain rules, made by this Court, the first question to decide is whether these rules are validly made, or they are ultra vires as contended for by the appellants. It may be mentioned that these rules are contained in Chapter XIV of the Rules of this Court. These were published in the Rajasthan State Gazette No. 25 Part IV C dated the 19th September, 1957, at pages 419 to 421. It may. be pointed out before proceeding further that rules have been made by this Court for regulating procedure in the matters coming before it in pursuance of the power conferred by Section 46 of the Rajasthan High Court Ordinance, 1949, read with Article 225 of the Constitution of India and all other powers enabling it on that behalf and these rules are known as the Rules for the High Court of Rajasthan 1952. The rules with which we are concerned were enacted in 1957 and duly published. It is contended that the High Court had no power to make them because of the limitations contained in Article 329 of the Constitution.
7. Now Article 329 in so far as it is material for the present purpose reads 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 be provided for by or under any law made by the appropriate Legislature.'
It is well settled that the non-obstante clause with which Article 329 begins debars the ordinary Courts in the country as also the superior Courts including the High Courts and the Supreme Court from entertaining a suit or proceeding calling in question any election to the Parliament or the State Legislature and such proceedings can be initiated only in the manner as provided for by the appropriate Legislature and the law in this connection is contained in the Representation of the People Act, 1951. Part VI of this Act is headed as 'Disputes regarding Elections'.
It is laid down in this chapter that if the election petition is not dismissed by the Election Commission, it shall refer the same to the Election Tribunal for trial and the procedure therefor is also prescribed. Sections 98 and 99 deal with the final orders which might be passed by the Tribunal. Section 116A provides for appeals to the High Court of the State in which the Tribunal is situate. Sub-section (2) of this section lays down that
'The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil Court situated within the local limits of its civil appellate jurisdiction'.
There is a proviso to this sub-section which however lays down that
'where the High Court consists of more than two judges every appeal under this Chapter shall be heard by a bench of not less than two judges.'
The next important provision in this connection is Sub-section (5) which enacts that
'Every appeal shall be decided as expeditiously as possible and endeavour shall be made to determine it finally within three months from the date on which the memorandum of appeal is presented to the High Court.'
Reading Sub-sections (2) and (5) of this section with Article 225 of the Constitution, the High Court's power to make rules for the regulation of the business coming before it is fully preserved. By Section 46 of the Rajasthan High Court Ordinance No. 15 of 1949, the High Court was and is competent consistently with the laws for the time being in force to make rules to regulate, inter alia, the practice of the Court and all such matters as it may think fit with a view to promote the efficiency of the High Court. This power is fully preserved by Article 225, and therefore, if having regard to the provisions contained is Sub-section (5) of Section 116A as regards the expeditious disposal of the election appeals, this Court framed a special set of rules as contained in Chapter XIVA, we are not prepared to accept that in doing so it has in any way violated Article 329 of the Constitution or Section 116A(2) of the Act.
8. We should like to go further and point out that if the special rules contained in the chapter in question had not been framed, and the procedure to be followed with regard to the making of paper books in the case of civil appeals from an original decree was left to be observed. as provided for in Chapter XIII (and which has been laid down in Rules 175 to 226) of the Rules of the Court, the disposal of election appeals might easily take several years instead of the comparatively short time as at present. It may usefully be pointed out at this place that a paper book in a first appeal has, as a matter of general rule to be prepared by the Court before a case can be heard, and this can be undertaken after the appellant makes an application for the preparation thereof indicating, apart from such material as must be included therein as laid down by the Rules generally, all the evidence and papers to which he wishes to refer at the hearing, either for the purpose of showing that the decision appealed against is erroneous or for the purpose of supporting his case.
It must also be remembered that the preparation of a paper-book cannot be undertaken by the Court unless the record of the Court below has been received, and an elaborate procedure has been laid down commencing with an exhibition of the notice relating to the receipt of the record; as to when and how an application for the preparation of a paper-book has to be made and the initial and the further deposits of money in connection with the preparation thereof have to be made and so on and so forth. Again, the rules provide that normally, paper books shall not be prepared out of turn unless specially directed by the Chief Justice, and in such a case, a farther sum amounting to 50 per cent. over and above the total estimated cost has to be made by a party making the application.
It also deserves to be pointed out that if an appellant fails to make an application for the preparation of the paper book within the prescribed time, the appeal must be listed for dismissal before the Court under Rule 184, and that it must be dismissed unless on an application in writing made in this behalf, the Court for sufficient cause shown grants further time for the making of such application or correction. Similarly, if an instalment of the estimated amount for the preparation of the paper-book which is communicated to the appellant is not paid within the prescribed time, the matter must be listed along with an office, report before the Registrar who may from time to time extend the time for such payment for sufficient cause shown; but if such instalment is not paid within the prescribed time or within such further time as the Registrar may allow the order for translation and printing of the papers with respect to which the estimate was prepared abates, and, immediately oa the abatement of the order, the appeal, or the cross-objection, as the case may be, is listed for dismissal before the Court and must be dismissed unless the Court on an application supported by an affidavit that there was reasonable cause for default may extend the time.
9. It clearly seems to us that with a view to obviate the delays caused by the elaborate procedure laid down in the Rules for the preparation of the paper-books and the consequent delay in the disposal of election appeals that would have otherwise inevitably occurred, this High Court, like many others, has, and wisely, by rule enacted that any appeals in election disputes must be accompanied by the requisite number of paper books and has laid down other rules to safeguard and ensure the correctness thereof. Having regard to the provisions to which we have drawn attention as contained in the Constitution itself and the Act with which we are concerned, we are altogether unable to hold that the rules made by this Court as contained in Chapter XIVA are in any manner in excess of its authority and ultra vires or void on that account. In fact we should go further and say that these rules are designed to carry out the object underlying Sub-section (5) of Section 116A of the Act and that law in its turn legitimately falls within the four walls of Article 329 of the Constitution. We therefore, reject this objection.
10. This brings us to a consideration of the nature or the character of the rules which are contained in Chapter XIVA and some of which have undoubtedly been breached in the present case.
11. The first and the most important rule which is said to have been violated in the present case is Rule 247-H. This rule reads as follows :
'Every memorandum of appeal shall be accompanied by as many typed copies of the paper book as there may be parties to be served together with two extra copies for the use of the Court.'
There is no doubt that when the memorandum of appeal was presented before the Court on the 15th January, 1964, it was not accompanied by any, paper-book whatsoever, and an application was made on that date stating that it was necessary, to obtain certified copies of a number of statements and orders for the preparation of the paperbooks and that it would take the appellants about two months time to do so and they undertook to produce the paper-books within a maximum period of two months in any case and consequently it was prayed that two months' time be granted to them.
When the case came before a Bench of this Court on the 28th January, 1964, the 'appeal was admitted and time for filing the paper-books was allowed as prayed for 'subject to all just excepttions'. The contention now is that the appellants did not file the paper-books within the time permitted, and further that they had obtained an extension of time from the Court on demonstrably false pretences. In support of this ground, the contesting respondent has filed letter No. 40 dated 23-7-1964 from the Officer Incharge of the Copying Department of the Election Tribunal saying that no application for obtaining certified copies of the statements, documents, orders or any other papers was made by the appellants or anybody on their behalf right from the period extending from the 15th January 1964 (the date of filing of the appeal in this Court) to the 27th March, 1964 (the date of the filing of four paper-books in this Court).
A further letter No. 42 dated the 27th July, 1964 has also been filed from the same quarter to show that no application for inspection of the election petition in question was made by the petitioners or by any other person on their behalf during the same period. There is no satisfactory, rebuttal of this from the side of the appellants. All that they seem to say in their reply is that they had taken inspection of the original record; but conveniently enough, no date when such inspection was taken has been disclosed. There is no getting away from the fact, therefore, that the memorandum of appeal at the time it was filed in Court was not accompanied by any paper-book at all. It further appears to us that time was obtained from the Court for the filing of the paperbooks on grounds which have turned out to be wholly unfounded and untenable.
It is further clear that only four paper-books were filed in Court on the 27th March, 1964, although the parties to be served, according to the appellants themselves, were as many as eight. We have no hesitation in saying that Rule 247-E of the Rules has been thoroughly breached by the, appellants in this case and there cannot possibly be two opinions about this.
12. The further and the more difficult question, however, is whether this appeal should be thrown out for breach of this rule; or, in other words whether Rule 247-E is mandatory.
13. On a most careful and anxious consideration of this question, we are disposed to think that that is so. Learned counsel for the appellants contended that if the rule was mandatory, one should have expected the consequence of the breach of the rule to be mentioned in the rules themselves. It is correct that there is no specific provision in the rules to the effect that a violation of this or any other rule in this chapter would have the effect of the dismissal of the appeal. We are fully aware that if such were the case, that would be a very strong argument, and almost conclusive, to hold that the consequence must be the one which has been laid down by the statute itself. But the converse of this proposition, in our opinion, is not necessarily true, and in ca'ses where the rules do not lay down the penal consequences themselves, it must be seen, what is the nature of the rule, the object underlying it and the mischief that would be caused by the non-observance of the rule.
From what we have stated above, and we have no desire to repeat ourselves, it should be clear enough that there is a definite and cogentobject why, in election appeals, the appellant ishimself required to produce the paper-books alongwith the appeal, for if this rule were not there,the paper-books would have, in the ordinarycourse of things, to be prepared by the Courtaccording to a fairly elaborate and long drawn-outprocedure to which we have already adverted and.it would take years to prepare them. This wouldmean that in many a case by the time the appealcomes to be heard, the life of the Legislatureitself in connection with the membership of whichthe election dispute arose, might have come to anend. How anxious the Legislature is to see theseappeals disposed of quickly clearly appears fromSub-section (5) of Section 116A which lays down thatevery such appeal shall be decided with all possible expedition and an endeavour shall be made todetermine it finally within three months from thedate on which the memorandum of appeal is presented to the High Court.
That, in our opinion, brings out the fundamental object behind the enactment of this rule, and it cannot possibly be said that an object like this is not worth achieving or that it hardly matters whether it is achieved or not. We have also no hesitation in saying that any laxity in compliance with this rule is bound' to result in a good deal of mischief; for if the rule is held to be merely directory, then it would be open to the appellant to file a paper-book or not along with his memorandum of appeal or file it whenever he can, according to him, manage it conveniently to do so. The question whether a particular requirement of law is mandatory or directory, particularly where the consequence of the violation thereof has not been mentioned by the statute or by the rules is almost always fraught with very great difficulties.
See Bijai Cotton Mills Ltd. v. State of Rajasthan, ILR (1959) 9 Raj 1242 to which one of us was a party. And it seems to us to be well-settled that in this type of case, the one sound test that must be applied to come to a proper conclusion one way or the other js to closely examine the particular provision and find out its nature with reference to the object underlying it and the scheme and the setting in which it has been enacted and the consequences of its strict or lax observance and then to see which view would fulfil the paramount intention of the Legis-, lature behind the enactment of the rule. If on a close examination of all these aspects of a particular rule, we may unhesitatingly come to the conclusion that the intention of the Legislature! was to require a strict and punctilious observance of the rule having regard - to the object to be achieved by it, then we need have no hesitation in holding that the rule was a mandatory one, and the mere fact that the rule is procedural should not and need not preclude us from coming to that conclusion. See Collector of Monghyr v. Keshav Prasad, AIR 1962 SC 1694.
Instances in our procedural laws of many a requirement contained therein being held to be/ mandatory are not wanting. The law laid down by Order 41, R. I. C. P. C. that a memorandum off appeal must be accompanied by a copy of the decree at the time it is filed is indeed nothing but procedural and yet the law is well settled that it is mandatory and that a breach of this rule earn not but lead to the dismissal of the appeal. See, a Bench decision of this Court in Moti Ram v. Kedar Sharma, Election Appeal No. 40 of 1963, D/- 5-10-1963 (Raj). It seems to us that the language of the rule with which we are concerned, is not essentially different from that contained in, Order 41, Rule I, C. P. C. inasmuch as it is here provided that every memorandum of appeal shall be accompanied by as many typed copies of the paper-book as there may be parties to be served together with two extra copies for the use of the Court. The phrase 'shall be accompanied by' is common to both the rules, and, in our opinion, should have the same effect.
14. We might with advantage refer to another example from the Act with which we are concerned. Section 81(3) thereof reads as follows :
'Every: election petition shall be accompanied,by as many, copies thereof as there are respondents mentioned in the petition and one morecopy for the use of the Election Commission, andevery such copy shall be attested by the petitioner under his own signature to be a true copyof the petition.'
The question may be posed; what would happenif an election petition is not accompanied, whenpresented before the Election Commission, by as,many copies thereof as there are respondents mentioned in the petition and one more copy for theuse of the Election Commission? This questionseems to have engaged the consideration of their;Lordships of the Supreme Court in Subbarao v. Member, Election Tribunal, AIR 1964 SC 1027,although the main question for decision was somewhat different.
The following observations made in this case, however, may be extracted here with advantage :
'When Section. 81(3) requires an election petition) to be accompanied by the requisite number of copies, it becomes a requirement for the presenta-, tion of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition..... if there had been such a non-compliance 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.'
Our conclusion, therefore, is that Rule 247-Eshould, on the whole and for the reasons discussed above, be held to be mandatory.
15. We may also refer to Sutherland's Statutory Construction. Third Edition, Volume 3where under Article 582 headed as 'statutes,relating to procedure', the learned author hassummed up the law like this :
'The cases in which statutes regulating Court)procedure are construed show a considerable lackof uniformity on the question of mandatory anddirectory construction, so that little can be doneby way of rationalizing them. However, a fewgeneralizations can be made. Where a statutespecifies acts to be done by parties litigant to entitle them to maintain an action or to perfectan appeal, it is generally mandatory. Whererights or privileges are denied to an individualbecause of his own failure to comply strictly withstatutory directions, he has no cause for complaint.'-
The requirement with which we are concerned is clearly one 'to perfect an appeal' and may there-fore be held to be mandatory even though procedural.
16. The only further question in this regard is whether the circumstance that only one respondent appeared at the hearing and contested the appeal should make any difference to the conclusion at which we have arrived above. We have carefully considered this question and think that the answer to it must be in the negative. The rule has been enacted with a definite and sound purpose in view, and that is the expeditious disposal of the appeal and therefore the duty of preparing the paper-books in such appeals has been laid squarely on the shoulders of the appellant, and it has been further enjoined that the memorandum of appeal when presented to the Court shall be accompanied by the paper-books. The next question is as to the number of such paper-books which the appellant should file along with hjs appeal. This number has been rightly fixed with regard to the number of respondents to be served in the appeal. This primarily depends on the number of persons who have been impleaded as parties to the appeal by the appellant himself in his memorandum of appeal, a matter which depends on his choice subject of course to any. law that may be applicable to it.
17. Now it is not easy to see at the stage the appeal is presented who will or will not contest the appeal. Only one may contest and others may not, but they may. All this may eossibly depend on the nature of the contentions raised in the appeal and in the ultimate analysis on the choice of the respondents. Thus it may be noticed at this place that in the election petition itself one of the prayers was that not only the election of Shri Anand Singh be set aside but that the first election petitioner and alternatively the second election petitioner Shri Keshav Singh ber declared to have been duly elected at the election in question. That being so, there is no escape from the conclusion that all the candidates who contested this election were necessary parties? to the eletion petition by virtue of the provision-contained in Section 82(a) of the Act.
It appears that allegations of corrupt practice were also made against respondent Ramsingh in the election petition. He was, therefore, also a necessary party under Section 82(b). There can be no doubt, therefore, that these other persons were necessary parties to the election petition. When the petition was dismissed, the appellants filed. this appeal and Impleaded all these as respondents in the memorandum of appeal. It is prayed in the appeal that the decision of the Tribunal be 'reversed' which, to our mind, would also Involve the grant of relief that one of the appellants, election-petitioners, be declared to havw been duly elected. It clearly seems to us that it was on this account that respondents Nos. 2 to 8 were also jmpleaded as respondents in the appeal
In any case, the appellants treated them as necessary parties to the appeal and there can be no gainsaying this position. All the respondents were duly served also as intended. It is admitted before us that some of them did appear before the Deputy Registrar Judicial and complained that they had not been served with a copy of the memorandum of appeal which was ordered to be supplied to them. But, later on, they do not seem to have chosen to appear. But the point to bear in mind is that they might have appeared at the hearing and asked for a paper book, each for one. Could these have been refused to them? We think not, for the simple reason that the appellants had impleaded them as respondents in the appeal of their own choice and in their own wisdom. Suppose again that in such a case the requisite number of copies has not been prepared already or presented along with the memorandum of appeal. The hearing of the appeal will be at once arrested and the Court will have to stay its hands until the requisite number, of paper books is prepared and made available.
18. It is for considerations like these, in out opinion, that the rule was deliberately, and, if we may say so with all respect, properly, framed an the manner it was, to obviate all delays and to fulfil all necessary requirements. We cannot cover-emphasize the consideration that the requirement contained in Rule 247-E is intended to be fulfilled at the time of the presentation of the appeal and, rightly too, and cannot be allowed to rest for its proper compliance on the events that may transpire later. In this view of the matter, we are clearly of opinion that the circumstance that only one respondent appeared to contest the appeal cannot properly make any differrence to the conclusion at which we have arrived above as to the correct intendment and effect of Rule 247-E.
19. On the conclusion to which we have come as regards the nature of the law contained in Rule 247-E, we are therefore strongly persuaded to hold that the present appeal is vitiated by a flagrant violation of this rule and was improperly filed and must be dismissed on that ground alone
20. Closely connected with this aspect of the case is the breach of Rule 247-H in the present case. This rule reads as under:
'The correctness of the translation and typing of paper book shall be certified by the Advocate of the party preparing the copy.'
The value of a certificate like this cannot be over-stressed in a case where the paper-book is required by the Rules to be prepared by the litigant himself. It is not only necessary that there should be the requisite number of paper-books as required by Rule 247-E accompanying the memorandum of appeal but further that the paper-book should be duly authenticated by a certificate to be furnished by the advocate or the party preparing the copy as to the correctness of the translation and typing thereof, so that the Court and the parties may stand assured that the paper-books supplied to them represent the cor rect state of the record. It will be noticed in this connection, that the paper-book according to Rule 247-E is required, inter alia, to consist of copjes and . transliterations or translations of the following papers, namely,
(a) election petition;
(b) written statement;
(c) further pleadings, if any;
(d) statements of parties or their pleaders recorded under Rules 1 and 2 of Order X of the Code;
(e) judgment under appeal;
(f) memorandum of appeal; and
(g) such evidence, oral or documentary or other papers as the appellant may wish to refer to.
It is admitted before us that at the time the paper-books were filed, they did not bear any certificate by the learned advocate for the appellants. In fact, we have an application filed by him as late as the 27th July, 1964, in which he has clearly accepted that the paper-books supplied by him upto that date were not complete and, therefore, a supplementary paper-book was being filed. He further stated that the appellants wanted to make corrections in the paper-books so that they might become complete, but the respondent objected to it with the result that 'corrections and comparison could not be done and the counsel could not give certificate as required by rules'. By a further application dated the 4th August, 1964, learned counsel for the appellants submitted as follows :
'That the correctness of the typing of the paper book was not certified initially because certain comparison was to be made but since now, that comparison has already been made at the time of the inspection, the required certificate is appended herewith.'
and the certificate is appended to the application as follows :
'I, Guman Mal Lodha, Advocate, Jodhpur certify that all the three Paper Books submitted a by the appellant Rewachand (Original and 2 Supplementary) have been typed correctly.'
On the same day, that is the 4th August, 1964, an application was filed by learned counsel for the contesting respondent No. 1 Shri Anand Singh that the paper-book was still incomplete as the statements of some ten witnesses whose names are mentioned in the list had not been completely, typed therein. Apart from that, we are altogether unable to comprehend how learned counsel found himself in a position to give the certificate that ha gave on the 4th August, 1964, when it was hardly possible for him to make any corrections in the paper-books which were already on the file of the Court and on which it was impossible for him to make any corrections without the permission of the Court which was never obtained, and if they did not need any corrections at all, then (sic) not understand why the requisite certificate was not given when the paper-books were filed and how was it that learned counsel himself admitted that he was not in a position then to given it as we have adverted to above.
Under the circumstances it is not possible for us to attack any value to the certificate which new appears on the record. The correct requirement of law, as we understand it, is, that each paper-book should have been 'certified' by learned counsel for the party preparing the same at the time of its presentation. It is in these circumstances that the question arises as to what is the effect of a breach of this rule. For the reasons which we have given in the foregoing part of our judgment and which apply mutatis mutandis to this part of the case also, we are disposed to think that the rule is mandatory and that where it has been clearly and substantially breached, it js not possible to proceed with the hearing of the appeal.
21. We should like in this connection to refer to the decision of their Lordships of the Supreme Court in Rattan Anmol Singh v. Ch. Atma Ram, AIR 1954 SC 510. The principal question for decision in this case was whether the Returning Officer was right in rejecting the petit tioners' nomination papers on the ground that they, were not attested. According to the rules, the nomination papers were required not only to. be subscribed by a proposer and a seconder, but, where the proposer and the seconder were illiterate, as they were in this case, the thumb marks' put by them were required to be attested. The nomination papers lacked this attestation. It was contended that the omission to obtain the required attestation was merely a technical defect of an unsubstantial character which should have been disregarded by the Returning Officer under Section 36(4) of the Act.
Their Lordships observed that :
'When the law enjoins the observance of a particular formality, it cannot be disregarded and the substance of the thing must be there..... But we find it impossible to say that when the law, requires the satisfaction of a particular officer at a particular time, his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage...... If there is no signature and no mark the form would have to be rejected and their absence could not be dismissed as technical and unsubstantial. The 'satisfaction' of the Returning Officer which the Rules require is not, in our opinion,' any the less important and imperative.'
With respect, we think that the principle of this case clearly applies to the present. In order that the appeal should have been properly filed, we are of opinion that the necessary paper-books should not only have accompanied the memorandum of appeal, but further the said books should have been certified by the advocate of the party preparing the copy as to the correctness of the translation and typing of the paper-book at the time the memorandum of appeal was filed. Not only that this has not been done, but no such valid certificate appears until this date on the paper-books. We are disposed to think that a breach of this rule also invalidates the appeal.
22. Having regard to the firm conclusion to which we have felt persuaded to come on the points discussed above, we consider it unnecessary to deal with the breaches of some other rules contained in this Chapter which have been alleged and to which our. attention was drawn during the course of the arguments. We are extremely sorry that the appeal falls to be dismissed on the preliminary grounds without the merits of the appeal being considered; but the blame fpr this must squarely rest on the shoulders of the appellants and/or their legal advisers, who, in our, opinion, have displayed scant care for tie observance of the rules of this Court which must govern all such appeals.
23. For the reasons mentioned above, this appeal fails on the preliminary objections discussed above, and it is unnecessary for us to deal with the merits of the appeal. Under the circumstances, we make no order as to the costs of this appeal.