Jagat Narayan, J.
1. This is a reference under Section 98 of the Code of Civil Procedure by a Division Bench of this Court consisting of Modi and Shinghal, JJ. It arises out of an appeal under Section 116A of the Representation of the People Act 1951.
2. The facts relevant for disposing of it are these. Smt. Gayatri Devi respondent was elected to the House of the People at the third general elections held in the month of February 1962 from the Jaipur Parliamentary Constituency in Rajasthan. Her election was challenged by Sardar Mal appellant, who is an elector in the constituency, by an election petition on the ground of corrupt practices mentioned in para 4 thereof. Full particulars of the corrupt practices as required by Section 83(i)(b) were given in three annexures to the petition marked A, B and C. An affidavit in support of the allegations of corrupt practices was also filed along with the petition as required under the proviso to Section 83(2). The election petition, including the annexures and the accompanying affidavit, along with their copies, were presented before the Election Commission on 16-4-1962. The Commission referred the petition to an Election Tribunal for trial after causing a copy of it to be published in the Gazette.
3. On 22-9-62 the respondent took an objection that the copies of the main petition and annexures A and B which were served on her did not bear the attestation by the petitioner as prescribed under Section 81(3) and urged that the petition should be rejected on this ground tinder Section 90(3). This objection was not taken by her in the written statement which was filed on 16-7-62.
4. The above copies were filed before the Tribunal on the same day. They are substantially true copies of the petition, the annexures and the affidavit.
5. The copy of the main petition consists of 5 sheets numbered serially from 1 to 5. There is no attestation on any part of it. Then follow copies of the three annexures A, B and C consisting of two one and three sheets respectively. The pages of these annexures are not numbered in continuation of the main petition or in continuation of one another. They are numbered independently. There is no attestation on any part of the copies of annexures A and B. At the foot of the last page of the copy of annexure C there is an attestation by the petitioner who has inscribed the words 'True Copy' under his signatures. The copies of the annexures are followed by the copy of the affidavit which is inscribed with words 'True Copy' under the signatures of the petitioner both on the first page and at the foot of the last page.
6. The contention of the petitioner was that Section 81(3) was fully complied with, in as much as annexures being integral parts of the petition, an attestation on the foot of the last page of the copy of the last annexure was tantamount to attesting the whole of the petition including the annexures.
In the alternative it was contended that Section 81(3) was merely directory, that its purpose was to ensure that true copies of the petition were furnished, that this purpose was fully achieved and no prejudice was caused to the respondent as true copies were supplied, and that in this view of the matter there was substantial compliance of It. The petitioner filed an affidavit stating that the copy of the petition filed by him was a true copy and that he had attested it at the end of annexure C, under his signature, to be a true copy, as he had been advised by his counsel to regard the annexures as a part of the petition and he believed that to be the correct advice.
7. The Tribunal held that the copy of the petition as well as copies of annexures A and B were not attested as required under Section 81(3) and that the provision of it was mandatory. It accordingly dismissed the petition under Section 90(3).
8. On appeal, Shinghal, J. was of the opinion that the contentions of the petitioner were correct, Modi, J. on the other hand was on the view that the findings of the Tribunal were correct. They have accordingly stated the following points of law on which they differ for decision under Section 98, C.P.C.
'(i) Whether Section 81(3) of the Representation of the People Act 1950 (1951?) as amended, in so far as it lays down that every copy of the election petition shall be attested by the petitioner under his own signature to be a true copy of the original petition is mandatory or directory, which involves the further question -- whether the schedule and/or the affidavit, if any, accompanying the main election petition require to be separately attested as much as the petition Itself having regard to the purposes underlying therein and the scheme of the Act.
(2) Whether in case this requirement is held to be directory, the copy of the election petition supplied by the election petitioner for the use of the respondent in this case substantially fulfils this requirement.'
9. I shall first consider what is the difference between a mandatory and a directory provision of law and whether it is appropriate to use the expression 'substantial compliance' in relation to a provision which is wholly directory.
10. In Halsbury's Laws of England, Simonds Edition, Vol. 36, the distinction between mandatory and directory enactments is explained in Article 656 in the following words:
'Where a statute requires an act to be done at or within a particular time, or in a particular manner, the question arises whether the validity of the act is affected by a failure to comply with what is prescribed. If it appears that Parliament intended disobedience to render the act invalid, the provision in question is described as 'mandatory', 'absolute,' 'imperative' or 'obligatory'; if, on the other hand, compliance was not intended to govern, the validity of what is done, the provision is said to be 'directory'.
In Sutherland's Statutory Construction, Third Edition, Vol. 2, Article 2801 it is stated that 'the important distinction between directory and mandatory statutes is that the violation of the former is attended with no consequences, while the failure to comply with the requirements of the latter either invalidates purported transactions or subjects the non-complier to affirmative legal liabilities. This distinction grows out of the fundamental difference in the intention of the legislature in enacting the two statutes. Although directory provisions are not intended by the legislature to be disregarded, yet the seriousness of non-compliance is not considered so great that liability automatically attaches for failure to comply. The question of compliance remains for judicial determination. If the legislature considers the provisions sufficiently important that exact compliance is required then the provision is mandatory.'
11. The distinction between mandatory and directory acts is stated in the following words by Crawford in Statutory Construction 1940 Edition:
'A statute or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory. So, a mandatory statute may be defined as one whose provisions or requirements, if not complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where non-compliance will not invalidate the proceedings to which it relates.'
In Maxwell on Interpretation of Statutes it is stated:
'The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed pr fulfilled substantially.'
The above statement of law tends to convey the impression that even in the case of a directory provision, absence of substantial compliance will invalidate the act or the proceeding. This is not so.
12. All provisions of law which are not mandatory are directory. Although directory provisions are not intended by the legislature to be disregarded yet the seriousness of non-compliance is not considered so great that liability automatically attaches for failure to comply. The question of compliance remains for judicial determination. Acts and proceedings have frequently been held valid notwithstanding the total failure to comply with what is prescribed.
13. In Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 the petitioner had not joined as respondent a duly nominated candidate who had withdrawn his candidature and had not contested the election. Section 82 of the Representation of the People Act 1951, as it stood then, laid down that a petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election. It was held that the provision was directory and the defect could be cured.
14. Order 34, Rule 1, C. P. C. lays down thatall persons having an interest either in the mort-gage-security or in the right of redemption shall be joined as parties to any suit relating to the mort-gage it has been held that this provision is directory and a decree can be passed so far as regardsthe parties actually on the record are concernedwithout impleading all persons mentioned in theRule as parties unless any of the persons so omittedis a necessary party in the sense that in his absenceno relief could be given at all even as regards theparties actually on the record.
15. Order 6 Rule 15, C. P. C. provides for thedue verification of pleadings in the manner laiddown therein before they are filed in Court. It hasbeen held that this provision is directory. Evenin cases where there is a total absence of verification the defect can be cured at any stage of thesuit including appeal. If the verification is defective and no objection has been taken in the trialCourt, an objection is not allowed to be raisedat the appellate stage.
16. The statement of law/In Maxwell's Interpretation of Statutes referred to above is based en the observations of Lord Coleridge C. J. in Birmingham case; Woodward v. Sarsons, (1875) 10 CP 733.
That was a case in which some provisions were mandatory and others were directory. It was held that if the mandatory provisions were complied with, the proceeding concerned was valid even though the directory provisions were totally disregarded. The second section of the Ballot Act provided that 'the voter, leaving secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place ft in an inclosed box'. The rules provided that 'the voter will go into one of the compartments, and with the pencil provided in the compartment place a cross on the right hand side, opposite the name of each candidate for whom he votes', His Lordship held that the provisions of Section 2 of the Act were mandatory and those of the rules were directory. The requirements of the section were that the preference of the voter for a particular candidate should be indicated by marking the ballot paper and that this marking should be done secretly. His Lordship held the provisions of the rules to be directory. It did not therefore matter how the ballot paper was marked. Ballot papers which bore one or more marks, other than a cross mark to the left of the name of the candidate, in total disregard of the directions contained in the rules were also held to- be valid.
It was in this context that his Lordship observed that the manner of marking the ballot paper was obeyed substantially. What he really meant to say was that as the mandatory part of the provisions had been complied with, there was substantial compliance of the law.
17. In this connection the following passage in foot-note (b) to Article 656 Halsbury's Laws of England, Simonds Edition, Vol. 36 may be referred to:
'It has also been said that mandatory provisions must be fulfilled exactly, whereas it is sufficient if directory provisions are substantially fulfilled, see e.g., (1875) 10 CP 733; at p. 746; Phillips v. Goff, (1886) 17 QBD 805, at p. 812. It appears, however from the authorities (see, e.g., notes (i). -- (i), pp. 435, 436, post) that acts have frequently been held valid notwithstanding a total failure to comply with what is prescribed, and the foregoing proposition would seem to amount to no more than an inaccurate description of the overall position where a provision laying down a number of requirements is held to be mandatory as to some and directory as to the rest' see, e.g., Pope v. Clarke, (1953) 2 All ER 704, (the facts of which are mentioned in note (h), p. 435, post)'
(underlining (here in ' ') mine)
18. It will thus be seen that if the whole of of a provision is mandatory, exact compliance is necessary and if it Is not made, the act or the proceeding its rendered void, irrespective of whether or not any prejudice is caused to any other party.
19. If a part of it is mandatory, then compliance of the mandatory part is necessary and if it is not made, the act or the proceeding is rendered void irrespective of whether or not any prejudice is caused to any party. If there is compliance of the mandatory part but non-compliance of the directory part, then the act or proceedings is valid. In such cases compliance of the mandatory part of the provision is both necessary and sufficient. Now the mandatory part is the essence of the substance of the provision, and if it is complied with, it is said that there is substantial compliance.
20. If the whole of the provision is directorythen compliance of it at the prescribed stage is notnecessary. Compliance I may be made at a laterstage or dispensed with altogether if substantial prejudice is not caused thereby to the other partiesconcerned.
21. I am accordingly of the opinion that the use of the expression 'substantial compliance' is only appropriate in relation to a provision which is in part mandatory and in part directory. In case of a wholly directory provision no question of substantial compliance arises.
22. I now come to the question as to whether the requirement of attestation provided for in Section 81(3) is mandatory. The sub-section runs as follows:
'Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.'
23. Section 81, as it stood before it was amended in 1961 did not require the election petitioner himself to supply the necessary number of copies of the election petition to the Election Commission. It was however the duty of the Election Commission under Section 86(1) to serve a copy of the petition on each respondent. These copies had to be prepared in the Commission's Office. This took time, with the result that that disposal of the election petition was delayed. It appears that it was to obviate this delay that Sub-section (3) was inserted in Section 81. Section 86(1) however remains unamended and it is still the duty of the Election Commission to serve a copy of the petition on each respondent.
24. Now 'copy' as used in Section 86(1) must mean the same thing as a copy under Section 81(3). It was held in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, Civil Appeals Nos. 30 and 31 of 1963, D/- 7-5-1963, (reported in AIR 1964 SC 1545) by their Lordships of the Supreme Court that under the latter section the word 'copy' does not mean an absolutely exact copy but means that the copy shall be so true and nobody can by any possibility misunderstand it. In other words it means a substantially true copy. It is thus the duty of the Election Commission to serve a substantially true copy of the petition on each respondent under Section 86(1). The object of the Parliament in enacting Section 81(3) obviously was that these substantially true copies should be supplied to the Election Commission by the petitioner along with his election petition.
25. Now if copies are supplied by the petitioner which are, not attested as true copies, then the Commission will still have to get them compared with the original petition before, serving them. This will take time, and the object of the Parliament in enacting Section 81(3) will be partially defeated. If on the other hand, the copies which are supplied by the petitioner are attested as true copies by him, then the Commission is assured that they have been duly compared with the original and can be served straightway on the respondents without comparing them with the original.
26. I am therefore of the opinion that both the requirements of Section 81(3) namely that the requisite number of copies should be supplied and that they should be attested under the signature of the petitioner have a purpose and a public policy behind them and are essential elements of the provision contained in that sub-section. The Parliament has taken care to emphasize both the requirements' by the use of the word 'shall' twice in one sentence so as to govern each requirement separately.
27. It was strenuously argued on behalf of the petitioner that if true copies are actually supplied then it is immaterial whether or not they are attested as such by the petitioner and the purpose of the Parliament in enacting Section 81(3) will be substantially fulfilled. I am unable to accept this argument on account of the reason which I have already given above. The purpose behind the provision will not be fully achieved unless it appears on the face of the copies that they are substantially true copies. Without such an attestation the Election Commission cannot be assured that they are true copies and cannot discharge its duty under Section 86(1) properly without getting the copies compared with the original. Section 90(3) provides that the Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81. It was not disputed on behalf of the petitioner that this provision is mandatory. It was so held by their Lordships of the Supreme Court In K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687.
28. The above case related to an election to an assembly constituency which took place in 1957. Section 117, as it then stood, provided that when a petitioner presented an election petition to the Election Commission he was to enclose with the petition a Government Treasury Receipt showing that a deposit of Rs. 1000/- had been made by him in favour of the Secretary to the Election Commission as security for the costs of the petition. Section 90(3) laid down that the Tribunal shall dismiss an election petition which does not comply with the provisions of Section 117. The petitioner in that case had made the necessary deposit and had enclosed with the petition a Government Treasury Receipt evidencing it. But the deposit was made in favour of the Election Commission instead of being made in favour of the Secretary to the. Election Commission. Their Lordships held that the words 'In favour of the Secretary to the Election Commission' used in Section 117 were directory and not mandatory in their character. They observed:
'What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, and is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else.'
A perusal of the judgment of their Lordships goes to show that the essence of the provision contained in Section 117 was regarded by them to be mandatory. Only the words 'in favour of the Secretary to the Election Commission' were held to be directory.
29. The above decision was followed in Chandrika Prasad v. Shiv Prasad, AIR 1959 SC 827. In delivering the judgment of the Court Gajendragadkar J. observed: --
'It has recently been held by this Court in AIR 1958 SC 687 that Section 117 should not be strictly or technically construed and that wherever it is shown that there has been a substantial compliance with its requirements the tribunal should not dismiss the election petition under Section 90, Sub-section (3) on technical grounds.' From these observations it cannot be inferred that the provision contained in Section 117 was held to be directory. The expression 'substantial compliance' has been used in the sense that the essence of the provision which alone is mandatory has been complied with. It was in the same sense that Sinha C. J. observed in Budhi Nath Jha v. Manilal Jadav, 22 Ele LR 86 (SC) in which Kamraj's case, AIR 1958 SC 687 was followed, referring to the latter case- 'It was also held that literal compliance with the terms of Section 117 of the Act was not intended and that substantial compliance was enough.' The decision in Kamraja Nadar's case, AIR 1958 SC 687 is fully applicable to the present case in my opinion. It follows from this decision that the essence of the provisions contained in Section, 81(3) is mandatory. As I have already shown above both the requirements, namely, the supplying of the requisite number of copies as well as their attestation under the signature of the petitioner ire essential for fulfilling the object of the Parliament in enacting Section 81(3). Both these requirements have a public policy behind them. They are there-fore both mandatory. But as was held in Chandrika Prasad's case, AIR 1959 SC 827 Section 81(3) should not be strictly or technically construed and wherever it is shown, that there has been a substantial compliance with its requirements the election petition should not be dismissed on technical grounds. This was the view taken by their Lordships of the Supreme Court in Murarka Radhey Shyam Ram Kumar's case. Civil Appeals Nos. 30 and 31 of 1963, D/- 7-5-1963 : (reported in AIR 1964 SC 1545) with regard to the first requirement of Section 81(3) and in Ch. Subharao v. Member, Election Tribunal Hyderabad, Civil Appeal No. 971 of 1963, D/-13-1-1964: (reported in AIR 1964 SC 1027) with regard to the second requirement of that sub-section.
30. Next I come to the question as to whether the copy of the petition which was suppliedto the respondent and which is on record substantially complies with the requirement regardingattestation under Section 81(3).
31. Annexures A, B and C filed with the petition contained particulars of the corrupt practices. Section 83(2) of the Representation of the People Act 1951 as originally enacted laid down that such particulars shall be contained in a list signed and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. This provision was deleted when the Act was amended in 1956 and Section 83 as it now stands provides for the setting forth of such particulars either in the petition itself or in one or more schedules or annexures. It is however laid down that any schedule or annexure to the petition shall also he signed by the petitioner and verified in the some manner as the petition. These annexures are thus parts of the petition itself.
32. It is also provided in this section that where the petitioner alleges any corrupt practice the petition shall be accompanied by an affidavit in support of the allegation of such corrupt practice and the particulars thereof. It is in compliance with this provision that the petitioner filed an affidavit along with his petition. The copy of the affidavit was admittedly duly attested in accordance with Section 81(3) and it is not necessary to consider in this case whether or not it is a part of the petition within the meaning of Section 81(3).
33. Section 81(3) however does not lay down the manner in which a copy shall be attested by the, petitioner under his own signature to be a true copy of the petition. As annexures A, B and C are parts of the petition it is necessary for the petitioner to supply the requisite number of copies of these annexures also along with an equal number of copies of the main petition, and to attest them under his signature, in such a way, that on their face, they would appear to be attested copies of the petition and the annexures. The attestation is to be made in such a way that this object is fulfilled. So long as this object is fulfilled it does not matter where the endorsement or endorsements about attestation are placed. Nor does it matter what words are used in the endorsement to achieve this object, as no particular words are prescribed. The attestation must be made in such a way that It must appear that the main petition as well as the annexures have been attested as true copies by the petitioner. It is not necessary that the petition and the annexures shall be separately attested. All that is necessary is that the endorsement of attestation made under the signature should indicate either by the use of appropriate words that it relates to the petition as well as the annexures or the endorsement or endorsements should be so placed that it or they ex facie govern the petition as well as the annexures.
34. For example one endorsement placed any-where on the petition or the annexures saying that the petition as well as the annexures were being attested as true copies would be enough.
35. On behalf of the respondent a reference was made to Section 83(2) which provides that every schedule or annexures to the petition shall be separately signed and verified by the petitioner and it was sought to infer from this that every copy of the petition and the annexures should be separately attested. In my opinion separate attestation of the copies cannot be insisted upon tinder Section 81(3) as no separate attestation has been prescribed under this provision, as has been done under Section 83(2) with regard to the signing and verification of the annexures.
36. The provision for separately signing and verification of each of the annexures however goes to show that even though they are parts of the petition, they are at the same time to be regarded as separate entities.
37. As has already been mentioned above the copy of the main petition, which consists of 5 sheets numbered serially from 1 to 5 bears no attestation on any part of it. Then fellow copies of the three annexares A, B and C consisting of two, one and three sheets respectively. The pages of these annexures are not numbered in continuation of the main petition or in continuation of one another. The copies of the three annexures are numbered independently. There is no attestation on any part of the copies of annexures A and B. At the foot of the last page of copy of annexure C there is an attestation by the petitioner who has inscribed the words 'True Copy' under his signature. The question which arises is this. Does this attestation ex facie relate to all the four copies, namely, those of the main petition and the three annexures or does it relate to the copy of annexure C alone? The answer to this question must depend on whether a reasonable roan who receives these four copies will think that all the four of them have been attested or only the last of them.
38. In my opinion any reasonable man who looks at these four copies which are all separate and have been independently numbered will only think that only the copy of annexure C has been attested as 'True Copy'. He will not think that copies of the main petition or of annexures A and B have also been attested.
39. The petitioner filed an affidavit stating that he had attested the copies of the petition and the annexures by affixing his signatures at the end of the copy of annexure C under the endorsement 'True Copy' as he had been advised by his counsel to regard the annexures as a part of the petition and he believed that to be the correct advice. This allegation cannot be relied upon as the affidavit was authenticated by him by signing an endorsement of 'True Copy' both on the first sheet and the last sheet. It may be mentioned here that the petitioner is himself a practising advocate.
40. For reasons given above I hold that substantial compliance with the requirement of attestation as laid down in Section 81(3) has not been made.
41. In Ch. Subharao's case, Civil Appeal No. 971 of 1963 D/- 13-1-1964: (AIR 1964 SC 1027) the copies of the petition supplied under Section 81(3) had been signed and verified by the election petitioner in the same manner as the original petition. One signature was appended to authenticate the contents of the petition and another to authenticate the verification of it. Their Lordships of the Supreme Court held-
'If the signature of the petitioner, whose name is set out in the body of the petition, is appended at the end, surely it authenticates the contents of the document.'
It was in these circumstances that their Lordships concluded that there was substantial compliance with the requirement of attestation under Section 81(3). The facts of the present case are distinguishable.
42. To sum up, my conclusions are-
1. Provisions of law are either mandatory or directory or partly mandatory and partly directory. Non-compliance of the mandatory part of the provision renders the act or proceeding concerned invalid irrespective of whether or not any prejudice is caused thereby to any other party.
The use of the expression 'substantial compliance' is only appropriate in relation to a provision which is in part mandatory and in part directory. In case of a wholly directory provision no question of substantial compliance arises.
2. Both the requirements of Section 81(3) that requisite number of copies are supplied and that these copies are attested as true copies under the signature of the petitioner are mandatory. But the provisions of the sub-section should not be construed strictly or technically and if there is compliance of the substance or the essence of that two requirement, the petition should not be dismissed even though exact or literal compliance has not been made.
3. The word 'petition' as used in Section 81(3) includes the annexures to the petition containing particulars of corrupt practices alleged therein.
4. The manner of attestation under Section 81(3) is left entirely to the petitioner, the only requirement being that the copy of the petition and the copies of each annexure should ex facie appear to be attested under the signature of the petitioner. This may be done by means of one single endorsement under the signature of the petitioner by the use of appropriate words which show that it governs the copy of the main petition as well as the copies of the annexures or it may be done by more than one endorsement under the signature of the petitioner so placed that it appears that all the copies have been certified as true copies,
5. In the present case it does not ex facia appear that the copy of the petition and the copies of annexures A and B have been attested. The endorsement at at the foot of the last page of annexure C appears to govern that annexure only. The requirement of attestation laid down in Section 81(3) has thus not been substantially complied with.
43. The reference is answered as indicated above.