Sou. Vimaltai Dnyndeo Borade Vs Laxman Kondiba Dhobale

R.G. Vaidyanath, J.@mdashThis is an Election Petition filed by the petitioner challenging the election of the respondent on the ground of corrupt practices. The respondent has filed written statement contesting the petition. Issues have been framed. Some oral evidence has been recorded. At this stage, the respondent has filed an application that the Election Petition is not maintainable for not complying with the statutory provisions and is liable to be dismissed. The petitioner has filed reply to the said application. Heard both the sides.

2. The petitioner and the respondent contested election to the Lok Sabha from Constituency No. 215 of Mangalwedha-Mohol Constituency in District Sholapur. The election was held on 9-2-1995, the counting took place on 11-3-1995. Results were declared on 12-3-1995 declaring the respondent as duly elected by getting highest number of votes viz. , 61087 as against 37892 votes secured by the petitioner. As already stated, being aggrieved by the results of her election, the petitioner has filed this Election Petition challenging the election on the ground that the respondent has won the election by corrupt practices.

3. Now, the respondent has filed the instant application stating that the petition is not maintainable since the true copy of the petition has not been served on the respondent. The respondent has annexed to his application a copy of the Election Petition served on him.

The petitioner while denying that true copy has not been served on the respondent has raised two objections. One is that the application is highly belated and filed after recording of evidence has commenced. The other objection is that no Chamber Summons is taken out as required by the Rules of Practice.

4. As far as merits are concerned, there cannot be any dispute that a true copy of the Election Petition has not been served on the respondent.

In the original Election Petition, the verification of the Election Petition is made before the Assistant Chief Translator and Interpreter, High Court, Bombay. The concerned Officer has put his signature with date as 26-4-1995 below his signature and then, there is a rubber stamp of his office. On the left side bottom, there is one more stamp endorsement with certain words being written in ink to show that the affidavit was interpreted by official interpreter of the High Court viz., H. S. Chitnis in Marathi with the designation of the interpreter and also with his signature and date as 26-4-1995.

In the copy supplied to the respondent, we do not find the name or signature or date put by the officer of the High Court or his designation. It is simply shown as "before me" with no name, no signature and no designation of the officer who administered oath.

Any person who reads the copy of the Election Petition cannot make out whether the verification has been done at all and if so, whether it is before the Officer High Court or a Magistrate or a Notary Public etc. Hence, there can be no difficulty to hold that the l copy supplied to the respondent is not a true copy of the Election Petition.

5. I had occasion to consider this position in five Election Petitions viz., Vinod Ramchandra Gosalka Vs. Sunil Dattatray Tatkare and Others, and connected cases by a detailed Judgment dated 23rd December 1996 and after referring to number of decisions including the decisions of the Supreme Court, I have held that if the copy supplied to the respondent does not contain the name and signatures of the officer who administered the oath then the copy is defective and in such a case, the Election Petition is not maintainable, In view of statutory mandate of section 81(3) of the Representation of People Act and the decision of the Apex Court in (Dr. (Smt.) Shipra v. Shanti Lal Khoiwal)2, AIR 1996 S.C. 1691 since I have given detailed reasons and referring to the statutory provisions and all the relevant authorities in my judgment dated 23-12-1996 Vinod Ramchandra Gosalka Vs. Sunil Dattatray Tatkare and Others, which is relied on by the learned Counsel for the respondent before me, it is not necessary to consider that point again in this matter. In view of the statutory provisions and the judgment of the Apex Court in Shipra''s case and in view of my considered judgment mentioned above, I have no hesitation to hold that the present Election Petition is not maintainable and liable to be rejected summarily for not furnishing a true copy of the Election Petition to the respondent. In view of this finding, it is not necessary to consider another submission made on behalf of the respondent that the Election Petition is also defective since in the concise statement of facts, there is no verification clause at all.

6. The learned Counsel for the petitioner contended that application is filed at a belated stage after the evidence is partly recorded and therefore, such an application should not be entertained. It is true that the application is filed at a late stage. But when the question raised by the respondent goes to the root of the matter and points out the violation of mandatory statutory provisions the application cannot be rejected on the ground that it is filed at a late stage, if it is otherwise entitled to consideration on merits. The matter is no longer res integra and is covered by a direct authority of the Apex Court reported in Samar Singh Vs. Kedar Nath alias K.N. Singh and Others, . That was a case where similar objection about the maintainability of the Election Petition was taken after the issues had been framed, the point urged before the Apex Court was that any objection regarding maintainability should be raised at the earliest point and not after the issues are framed. While appreciating that normally such objection should be taken at the earliest stage, the Apex Court pointed out that if an objection is taken at a late stage it cannot be brushed aside on that ground. It is pointed out that in Order 7, Rule 11 of the Code of civil Procedure, there is no mention that the objection should be raised at the earliest point of time. It is clearly pointed out that such a objection can be raised at any stage unless of course, there is a statutory provision as to at what stage, objection should be raised. This is what the Apex Court has observed in para 5 of the reported judgment.

"In the absence of any restriction placed by the statutory provisions, it is open to the Court to exercise the power at any stage."

therefore, the argument of the learned Counsel for the petitioner that this point is raised at a late stage and therefore, it should not be entertained, has no merit.

7. The only other point pressed by the learned Counsel for the petitioner is that the respondent has not taken out a formal chamber summons as required by the High Court Rules and therefore, a simple application filed by the respondent cannot be entertained. There is no merit in this submission. The Rules of Practice are made as guidance. The object of taking out chamber summons is to bring to the notice of the Court that there is some defect in suit or a petition and it is liable to be rejected. If such an objection is taken by a simple application without there being a formal chamber summons, the application cannot be rejected only on that ground. It is open to the respondent to bring to the notice of the Court the defect in the Election Petition by filing a memo or precise or an application or a formal chamber summons; if the defect pointed out is substantial and goes to the root of the matter then the same cannot be rejected only on the ground that formal chamber summons has not been taken out by the respondent. Even if such an argument is accepted and the present application is rejected as not maintainable, then immediately, the respondent can file a formal chamber summons and request the Court to pass an order. Hence, it would not help the petitioner in any way.

8. After hearing both the sides, I find that the defect in the Election Petition goes to the root of the matter and therefore, the Election Petition is liable to be rejected summarily. However, since the petitioner has adduced some evidence on merits and since the petition is being disposed of on a technical ground, I do not want the petitioner to be burdened with costs.

9. In the result, the application filed by the respondent dated 24-1-1997 is hereby allowed. Election Petition is summarily rejected as not maintainable for not supplying true copy of the Election Petition to the respondent. In the circumstances of the case, there will be no order as to costs.

The security deposit made by the petitioner shall be refunded to the petitioner and video-cassettes and other documents summoned from different Departments be returned to the concerned Department after the appeal period is over. Copy of this order be forwarded to the Election Commissioner and also to the Speaker of the Legislative Assembly of Maharashtra at Bombay as required by law.