Case Note & Summary
The matter pertained to an application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 read with Sections 81, 83 and 86 of the Representation of the People Act, 1950 by the original respondent (the elected candidate) seeking rejection of the election petition filed by the defeated candidate. The election was held on 15 October 2014 for Maharashtra State Legislative Assembly Constituency No. 145, Mira Bhayandar, and results were declared on 19 October 2014, with the applicant being declared elected. The election petition was filed on 2 December 2014, on the 44th day of the 45-day limitation period. The applicant contended that the petition was incomplete when presented, as it contained office objections that were removed only on 24 December 2014. Additional grounds alleged non-compliance with mandatory provisions: the petition pages lacked the petitioner's signature; hand-made corrections were not initialled; exhibits were not signed or endorsed as true copies; the petition was presented by an advocate rather than the petitioner in person, violating Section 81(1); and the copy served on the applicant was not attested as a true copy, breaching Section 81(3). The applicant argued these defects were fatal and rendered the petition not maintainable, citing several Supreme Court and High Court decisions. The opponent opposed the application, submitting that the office objections were procedural under the Bombay High Court Original Side Rules and curable; only defects under Sections 81, 82 or 117 could lead to dismissal at the threshold; re-verification and subsequent actions had cured any defects; presentation by advocate was valid; and the true copy had been supplied later. The opponent relied on subsequent Supreme Court decisions stating that earlier views on fatal defects had been overruled. The court heard arguments and reserved judgment, but the provided excerpt does not include the final decision and directions of the court.
Issue of Consideration
Whether the Election Petition was liable to be rejected at the threshold for non-compliance with the mandatory provisions of the Representation of the People Act, 1950 and the Code of Civil Procedure, 1908
Case Details
2018 LawText (BOM) (02) 64
Application No. 22 of 2015 in Election Petition No. 29 of 2014
Mr. S.M. Gorwadkar, Mr. S.D. Patil, A.A. Singh, C.Y. Shah, Sanjay Gawade, Mr. D. Vyas, Mr. Durgesh Kulkarni
Shri Narendra Lalchandji Mehta
Shri Gilbert John Mendonca
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Nature of Litigation
Application by an elected candidate (original respondent) to reject the election petition filed by the defeated candidate challenging his election, alleging non-compliance with mandatory provisions of the Representation of the People Act, 1950 and seeking dismissal at the threshold.
Remedy Sought
The applicant (original respondent No.1) sought rejection of the Election Petition under Order VII Rule 11 of CPC read with Sections 81 and 83 of the Representation of the People Act, 1950 and its dismissal under Section 86 of the same Act.
Filing Reason
The applicant contended that the Election Petition was filed with fatal defects, including incomplete presentation, lack of proper verification, absence of true copy endorsement, and non-compliance with mandatory provisions, rendering it not maintainable.
Issues
Whether the Election Petition was liable to be rejected at the threshold for non-compliance of Sections 81, 81(1), 81(3), 83 and 86 of the Representation of the People Act, 1950 and Order VII Rule 11 CPC
Submissions/Arguments
The applicant argued that the petition was presented on the 44th day with objections and was not a complete petition within the limitation period; the petition lacked proper signatures, endorsements, and initialing of corrections; presentation by an advocate rather than the petitioner in person violated Section 81(1); the true copy served was not attested, breaching Section 81(3); these defects were fatal and warranted rejection at the threshold.
The opponent submitted that the office objections were procedural under the Bombay High Court Original Side Rules and curable; only defects under Sections 81, 82 or 117 can lead to dismissal at the threshold; re-verification and subsequent actions had cured any defects; presentation by advocate was valid; true copy had been supplied later; the defects were not fatal.
Judgment Excerpts
the hand made corrections in the petition are neither initialed nor attested by the petitioner
the copy of the petition served upon the applicant (Original Respondent No.1) falls foul of the provisions of the Act, insofar as the said copy has not been attested by the opponent (originalpetitioner) under his own signature to be a 'True Copy' of the petition
the petition was presented by Advocate Shri Durgesh Kulkarni and not by the petitioner in person
Procedural History
Elections held on 15-10-2014; results declared on 19-10-2014; Election Petition No. 29 of 2014 filed on 02-12-2014; Application No. 22 of 2015 filed on 08-09-2015 under Order VII Rule 11 CPC; opponent filed affidavit-in-reply on 22-10-2015; applicant filed Application No. 4 of 2016 for amendment, allowed on 06-10-2016; opponent filed additional affidavit-in-reply on 24-12-2016; matter heard on 18-07-2017 and judgment reserved; pronounced on 09-02-2018.
Acts & Sections
- Representation of the People Act, 1950: 81, 81(1), 81(3), 82, 83, 86, 117
- Code of Civil Procedure, 1908: Order VII Rule 11
