PATEL AHMED MOHAMMADversusBALWANT SINGH RAJPUT & ORS.

6                SUPREME COURT   REPORTS
                         [2018] 14 S.C.R. 6               [2018] 14 S.C.R.


A                     PATEL AHMED MOHAMMAD
                                       v.
                   BALWANT SINGH RAJPUT & ORS.
                   (Civil Appeal Nos. 10005-10007 of 2018)
B                          SEPTEMBER 26, 2018
           [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
              DR. DHANANJAYA Y CHANDRACHUD, JJ.]
           Representation of the People Act, 1951 – s.86(1) r/w. ss.81(3),
    83(1)(C) and 83(2) – Applications for dismissal of election petition
C   – Respondent no.1 filed election petition challenging the election
    of the appellant to the Council of States – Appellant filed three
    applications for dismissal of the election petition – First application-
    election application no.2 was for dismissal of election petition on
    ground of non-removal of office objections raised by the office/
D   registry of the High Court – Second application-election application
    no.3 urged dismissal of election petition u/s.86(1) r/w. ss.81(3),
    83(1)(C) & 83(2) of the Act and under the provisions of the CPC
    and also under the High Court Rules as election petition served to
    appellant was not a ‘true copy’ – Third application-election
    application no.6 was for dismissal of election petition u/Or.VII,
E   r.11(a) and (d) of CPC for non-disclosure of the cause of action –
    All three applications were rejected by the High Court – On appeal,
    held: In case of election application no.2, it is evident from the
    High Court Rules that the election petition is required to be placed
    for orders before the Court by the office only after removal of office
F   objections as per r.285 and in the instant case, the record showed
    that the matter was placed before the Court u/r.285 – Thus, the
    High Court was right in rejecting the election application no.2 – In
    case of election application no.3, High Court committed error in
    noting that appellant did not file the original copy of the election
    petition – In that, appellant had not only submitted a photocopy of
G   the election petition, but also gave an undertaking to produce the
    original on the next date of hearing and he did produce and handed
    over to the High Court – Thus, decision of the High Court on
    election application no.3 set aside – Application No.3 and the parties
    relegated before the High Court for de novo consideration of the
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                                       6
 PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                             7


said application – Insofar as election application no.6 is concerned,     A
said application disposed of with liberty to the appellant to challenge
the selfsame decision of the said application afresh in event the
remanded election application no.3 is rejected – Gujarat High Court
Rules, 1993 – rr.282, 283, 284 and 285 – Code of Civil Procedure,
1908 – Or.XIX r.3, Or. VII r.11(a) & (d).
                                                                          B
      Disposing of the appeals, the Court
       HELD : 1. In the First application i.e. Election Application
No. 2 of 2017, the High Court, in substance, opined that the
averments in the said application preferred by the appellant were
vague and unsubstantiated. On a bare perusal of the Gujarat High          C
Court Rules,1993 it is evident that the election petition is
required to be placed for orders before the Court by the office
only after removal of office objections as per Rule 285. If the
office objections are pending and not cured within the prescribed
period, the office is obliged to list the matter before the Court
for appropriate orders under Rule 284. For that reason, the High          D
Court opined that in the absence of any positive statement in the
application filed by the election petitioner and as the record would
show that the matter was placed by the office before the Court
under Rule 285, it must follow that the grievance made in the
application under consideration was based on mere conjectures             E
and surmises and cannot be the basis to dismiss the election
petition at the threshold, as prayed. The view taken by the High
Court was right and as a result, the order rejecting the application
under consideration, being Election Application No.2 of 2017,
deserves to be upheld. [Paras 6, 12][11-D; 17-E-H]
                                                                          F
      2.1 Reverting to the second application filed by the
appellant, being Election Application No.3 of 2017, the High Court
noted that the appellant did not file the original copy of the election
petition served on him, but produced only a photocopy of the
allegedly served copy of the election petition along with the
application filed for that purpose, bearing Election Application          G
No.3. The High Court noted that the only grievance of the
appellant was that the copy of the election petition served on him
did not contain the words: “True Copy”. [Paras 13, 14][18-A, D]

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8               SUPREME COURT REPORTS                  [2018] 14 S.C.R.


A          2.2 However, the grievance made by the appellant before
    this Court is that the factual position recorded by the High Court
    in the impugned judgment that the appellant had not produced
    the copy actually served on him in the Court is incorrect. In that,
    the appellant had submitted the photocopy of the actually served
    copy along with Election Application No.3 and had also undertaken
B
    to produce the original of the actually served copy at the time of
    hearing and that the same was so produced at the time of hearing
    and handed over to the High Court. This specific plea has been
    taken in ground (u) of the special leave petition. In other words,
    the High Court committed manifest error in that regard. If that is
C   so, it would be appropriate to relegate the parties before the
    High Court for consideration of grievance that the copy actually
    served on the appellant is not the true copy within the meaning
    of Section 81(3) of the Representation of People Act, 1951. The
    appellant had also pointed out 20 discrepancies in the copy of the
    election petition served on him, which according to the appellant,
D
    were material discrepancies warranting a finding that the copy of
    the petition served on him was not a “True Copy” within the
    meaning of Section 81(3) of the Act. The High Court has
    not dealt with this contention in the impugned judgment at all.
    The decision of the High Court on the application under
E   consideration, being Election Application No.3 of 2017, set aside.
    [Para 16][19-B-F]
           3. The question to be decided in Election Application No.3
    of 2017 for dismissal of the election petition, will be limited to
    non-compliance of Section 81(3) and the consequences flowing
F   therefrom including under Section 86(1) of the Act. For, the
    dismissal of the election petition under the latter provision is
    envisaged only on that count and not in reference to some non-
    compliance of requirement under Section 83 of the Act. This is
    the settled legal position. [Para 17][19-H; 20-A]
           4. Thus, the parties relegated before the High Court for
G
    consideration of Election Application No.3 of 2017 afresh in
    accordance with law, and in the event the appellant is in a position
    to persuade the High Court to allow the said application, the
    election petition will have to be dismissed at the threshold under
    Section 86(1) read with Section 81(3) of the Act. However, if that
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 PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                            9


application fails, the appellant can be permitted to reopen or           A
revive the challenge to the issues raised in Election Application
No.6 of 2017 for dismissal of the election petition under Order
VII Rule 11(a) & (d) of the Code of Civil Procedure, 1908 on the
ground that the election petition does not disclose a cause of
action or that it is barred by law. In that eventuality, the appellant
                                                                         B
may challenge the judgment rendered in the remanded Election
Application No.3 of 2017 and also have the liberty to file fresh
special leave petition against the impugned judgment and order
passed by the High Court in Election Application No.6 of 2017.
Further, both such special leave petitions can be heard together.
[Para 18][20-B-D]                                                        C
      Chandrakant Uttam Chodankar v. Dayanand Rayu
      Mandrakar and Ors. (2005) 2 SCC 188 : [2004]
      6 Suppl. SCR 916 ; Murarka Radhey Shyam Ram
      Kumar v. Roop Singh Rathore [1964] 3 SCR 573 ;
      Ch. Subbarao v. Member, Election Tribunal [1964] 6                 D
      SCR 213 ; T.M. Jacob v. C. Poulose and Ors. (1999) 4
      SCC 274 : [1999] 2 SCR 659 – referred to.
                       Case Law Reference
[2004] 6 Suppl. SCR 916         referred to             Para 10
                                                                         E
[1964] 3 SCR 573                referred to             Para 14
[1964] 6 SCR 213                referred to             Para 14
[1999] 2 SCR 659                referred to             Para 14
     CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10005-
10007 of 2018.                                                           F
       From the Judgment and Order dated 20.04.2018 of the High Court
of Gujarat at Ahmedabad in Election Application Nos. 2, 3 & 6 of 2017
in Election Petition No. 1 of 2017.
       Dr. Abhishek Manu Singhvi, Harin P. Raval, Sr. Advs., Devadatt    G
Kamat, Pankaj Champaneri, Varun Chopra, Amit Bhandari, Nizam Pasha,
Aditya Bhat, Javedur Rahman, Rajesh Inamdar, Gautam Talukdar, Advs.
for the Appellants.
     Satyapal Jain, Sr. Adv., Devang Vyas, Siddharth Dave, Amit
Sharma, R. C. Kohli, Advs. for the Respondents.
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10                 SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A          The Judgment of the Court was delivered by
           A. M. KHANWILKAR, J. 1. Leave granted.
           2. These appeals take exception to the judgment and order dated
     20th April, 2018 passed by the High Court of Gujarat at Ahmedabad, in
     Election Application Nos.2, 3 and 6 of 2017 in Election Petition No.1 of
B
     2017. By the said order, the High Court dismissed all the three applications
     preferred by the appellant seeking dismissal of Election Petition No.1 of
     2017 at the threshold.
            3. Election Petition No.1 of 2017 has been filed by respondent
     No.1 challenging the election of the appellant to the Council of States
C    (Rajya Sabha) held on 8th August, 2017, by the members of the Legislative
     Assembly of Gujarat, on the ground that the appellant had committed
     corrupt practices of ‘bribery’ and ‘undue influence’ within the meaning
     of sub-sections (1) and (2) of Section 123 of the Representation of the
     People Act, 1951 (for short “the Act”) and also on the ground that two
D    valid votes were illegally and improperly rejected by the Returning Officer
     and at the same time, two invalid votes were accepted by the said officer,
     which has materially affected the results of the election. The election
     petition came to be filed on 18th August, 2017 much before the last date
     of limitation.
E           4. The appellant was served with the summons on 7th September,
     2017 to appear in the election petition, pursuant to the order of the High
     Court dated 21st August, 2017. The appellant filed his written statement
     on 4th October, 2017 and also filed the stated three applications for
     dismissal of the election petition at the threshold. The first application
     was numbered as Election Application No.2 of 2017, wherein the appellant
F    had prayed for dismissal of the election petition primarily on the ground
     of non-compliance of Rules 282 (ii) and (iii) of the Gujarat High Court
     Rules, 1993, as there was no order to rectify such non-compliance as
     contemplated under Rule 284 and the time provided therefor in the later
     portion of Rule 283 had elapsed. In other words, the election petition
G    was required to be dismissed for non-removal of office objections raised
     by the office/registry of the High Court, in exercise of power under Rule
     284 after recalling the order dated 21st August, 2017. The second
     application was numbered as Election Application No.3 of 2017, praying
     for dismissal of the election petition on the ground of non-compliance of
     the provisions of the Act read with the Gujarat High Court Rules, 1993,
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 PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                                    11
              [A. M. KHANWILKAR, J.]

as well as the provisions of Order XIX Rule 3 of the Code of Civil               A
Procedure (“CPC”). The grounds urged in the application were ascribable
to dismissal of the election petition under Section 86(1) read with Sections
81(3), 83(1)(c) and 83(2) of the Act as well as the provisions of CPC
and the High Court Rules. The third application, being Election Application
No.6 of 2017, was also for dismissal of the election petition at the threshold
                                                                                 B
under Order VII Rules 11(a) and (d) of CPC, for non-disclosure of the
cause of action in the election petition and the petition being barred by
law. As aforesaid, all the three election applications have been rejected
by the High Court vide common impugned judgment.
      5. The appellant, being aggrieved by the said decision of the High
Court, has filed these appeals by special leave. We shall deal with the          C
challenge to the impugned judgment in reference to the concerned
application in seriatim.
       6. Reverting to the first application i.e. Election Application No.2
of 2017, the High Court, in substance, opined that the averments in the
said application preferred by the appellant were vague and unsubstantiated.      D
It found that the appellant was not sure as to whether the office objections
had been removed or not, when the application was filed by him. Further,
there was no specific averment in the application as to which objection
raised by the office/registry of the High Court was not removed. All that
had been stated in the application was that the objections which were            E
raised by the office were not removed, as no noting was found in the
official record to indicate that the same were duly removed before the
expiry of the limitation period. The ground urged by the appellant did not
commend to the High Court. For, the High Court found that the same
was based on mere conjectures and surmises. The High Court instead
found that as per Rule 284, the matter was required to be listed before          F
the High Court only if the objections were not removed within the time
fixed therefor or as per the order, if any, passed by the Court under Rule
283. On the other hand, the subject petition was placed before the Court
under Rule 285 which presupposes that it was so done only after the
office objections were duly cured. It noted that if the matter was placed        G
before the Court under Rule 285 by the Office, it had to be presumed
that the Office had done so after due scrutiny of the petition and on
being satisfied that office objections had been duly removed. Further, it
was only an administrative function of the High Court and could not be
the basis to dismiss the election petition at the threshold. The High Court
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12                SUPREME COURT REPORTS                        [2018] 14 S.C.R.


A also found that the application under consideration was filed by the
  appellant one month after the date of service of summons and that the
  plea under consideration was not taken in the written statement filed by
  the appellant on 4th October, 2017. The High Court concluded that in the
  absence of any positive statement in the application filed by the appellant,
  as to which of the office objections was not removed by the election
B
  petitioner (respondent No.1) before the matter was placed before the
  Court for consideration under Rule 285, the objection raised by the
  appellant was replete with conjectures and surmises. That could not be
  made the basis to dismiss the election petition on the ground of non-
  removal of office objections. The relevant extract of the impugned
C judgment dealing with this aspect reads thus:
           “32…….In the opinion of the Court there is basic fallacy in the
           said submission. It appears that the applicant himself was not sure
           as to whether the office objections were, in fact, removed or not,
           when the Election Application No.2 of 2017 was filed by him
D          inasmuch as there is no specific allegation made in the application
           as to which objections raised by the office/registry of the High
           Court were not removed, and it is stated that “It appears that the
           objections which were raised by the office were not removed”.
           The application appears to have been filed on mere conjectures
           and surmises. That apart, the office was required to be place the
E          matter before the Court for appropriate orders under Rule 284
           only if the objections were not removed within the time fixed or as
           per the order, if any, passed by the Court under Rule 283.
           33. The petitioner in the reply to the said application, while denying
           the said allegation, has stated on oath that the petitioner had removed
F          all the objections before the petition was actually placed before
           the Court for consideration. Pertinently, the petition could be
           placed before the Court for consideration under Rule 285,
           only after the removal of the office objections, otherwise
           the matter would be placed for appropriate orders by the
G          office for non-removal of the objections as per Rule 284.
           No such orders were sought by the office under Rule 284,
           meaning thereby it has to be resumed that the office after
           scrutiny of the petition, and after removal of office objections
           by the petitioner had placed the matter for consideration
           before the Court. As held by the Supreme Court in case of
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PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                               13
             [A. M. KHANWILKAR, J.]

   Chandrakant Uttam (supra), the scrutiny of election petition            A
   is one of the administrative functions to be performed by
   the officers of the High Court, and such an act would draw
   a presumption of having been performed in terms of Section
   114(e) of the Evidence Act.
   34. It is also pertinent to note that after the matter was placed       B
   before the court as per the roster, the Court had issued summons
   to the respondents on 21.08.2017, directing the respondents to
   appear before the Court on 21.09.2017. Thereafter the learned
   Advocate Mr. Champaneri appearing for the Respondent No.1
   had stated that he had filed a separate application seeking further
   time to file written statement. Thereafter the matter was directed      C
   to be placed on 06.10.2017. In the meantime, the respondent No.1
   had filed the written statement and the present applications on
   4.10.2017. At no point of time after the filing of the appearance,
   the learned Advocate for the applicant (original respondent No.1)
   had raised such contention to the effect that the petition was placed   D
   for consideration before the Court without removing all office
   objections. It is true that on presentation of the petition on
   18.08.2017, the office had pointed out the office objections i.e.
   No.19, 22 and 23 listed in the prescribed check-list in Form B.
   office objection No.19 is as to whether paging is done; No.22 is
   as to whether copies are true, legible and whether typed copies of      E
   any written annexures are filed, and No.23a is as to whether copies
   are true copies signed by the Advocate. The matter was permitted
   to be circulated before the appropriate Bench on 21.08.2017.
   Hence, it is just possible that the petitioner had removed the said
   office objections before the matter was actually placed before          F
   the Court for consideration on 21.08.2017. In absence of any
   positive statement in the application filed by the applicant as to
   which office objections were not removed by the petitioner before
   the matter was placed before the court for consideration, such
   application No.2 of 2017 filed merely on conjectures and
   inferences could not be entertained for dismissal of the petition on    G
   the ground of non-removal of office objections.”
                                                (emphasis supplied)


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14                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A           7. The view so taken by the High Court has been assailed by the
     appellant on the argument that the High Court could not have presumed
     that office objections noted by the Registry of the High Court on 18 th
     August, 2017, were duly removed. Further, if the office objections had
     not been removed, it must necessarily follow that the Registry could not
     have posted the matter before the Court under Rule 285 but ought to
B
     have proceeded under Rule 284 of the High Court Rules. In that event,
     the office objections would remain valid and for which reason the order
     passed on 21st August, 2017, issuing summons to the appellant to appear
     in the proceedings ought to be recalled and the election petition dismissed
     for non-removal of the office objections within the limitation period. The
C    respondent No.1, on the other hand, supported the view expressed by
     the High Court in rejecting the application and has reiterated the same
     argument before us.
            8. The question is: whether the view taken by the High Court as
     regards the rejection of Election Application No.2 of 2017 is just and
D    proper? For that, we may first turn to the averments in the application to
     discern whether the finding recorded by the High Court is a possible
     view. The relevant averments can be traced to paragraphs 10, 11 and 14
     in particular. The same read thus:
           “10. It appears that after the election petition was filed, the office/
E          Registry of this Hon’ble Court has raised several objections which
           are more popularly referred to and known as ‘office objections’.
           That in terms of Rule 282 (ii) read with Section 283, the same
           were bound to be removed by the petitioner or his advocate on
           the 3rd day from the date of presentation provided and stipulated
           under Rule 282 (ii). The 3rd day from the date of filing of the
F          petition would fall on the 20th of August.
           11. It appears that the objections which were raised by the office
           were not removed and the election petition was placed pursuant
           to the request made on the 18th of August for circulation on the
           21st of August. Thus, in the respectful and humble submission of
G          the Applicant/Respondent No.1, there is non-compliance of Rules
           282 (ii) and 283.”
           “14. In view of the office objections raised by this Hon’ble Court
           and the procedure prescribed under Rule 282 (ii) & (iii) read with
           Rules 283a and 284 having not been adhered to, it is most humbly
H          and respectfully submitted that the order passed by this Hon’ble
 PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                                   15
              [A. M. KHANWILKAR, J.]

      Court of the nature contemplated under Rule 285 (i) dated 21st of         A
      August, 2017 of issuance of summons was at a premature stage
      and, therefore, the Applicant/Respondent No.1 respectfully begs
      to submit that the said order be recalled and as the office objections,
      raised by the office in the above captioned petition after it being
      filed on 17th of August, 2017 not having been removed and no
                                                                                B
      time having been either granted or extended, the petition ought to
      be and this hereby prayed to be dismissed for non-compliance of
      Rules 282 (ii) & (iii) read with Rule 283 for non-removal of office
      objections.”
       9. From these averments in the application under consideration, it
is not clear as to which of the office objections remained to be cured          C
when the matter was placed before the Court on 21st September, 2017
under Rule 285 of the High Court Rules. As aforesaid, the election petition
was filed on 18th August, 2017, on the same day the office objections
were noted by the Registry, as is noticed from Page 411 of the paper
book. It is also noticed at the bottom of that document in the column of        D
office objections, the numbers notified are only serial Nos.19, 22 and 23.
The said office objections are:
      “19. Whether paging is done?
      22. Whether copies are true legible and whether typed copies of
         hand-written Annexure filed?                                           E

      23. Whether the copies are true copies signed by the Advocate?”
       After mentioning the serial numbers of three office objections, a
further noting is found “(PC- with OO)”. In the first place, this noting is
evidently made on 18th August, 2017. What is relevant for our purpose is        F
that the matter was processed by the office under Rule 285 of the Gujarat
High Court Rules, 1993 and placed before the Court on 21st September,
2017. On that date, the Court passed the following order:
                              “Date: 21/08/2017
                               ORAL ORDER                                       G
      Having regard to the provisions contained in Section 86(1) of the
      Representation of Peoples Act, 1951 read with Rule 285 of the
      Gujarat High Court Rules, 1993, office is directed to issue
      summons as per the provisions contained in the Rules, to the
      respondents to appear before the Court on 21.9.2017.”                     H
16                    SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A          10. In this backdrop, while rejecting the objection taken by the
     appellant, the High Court opined that since the appellant had come to the
     Court with an assertion that the office objections remained to be cured
     before the limitation period, he should have expressly stated as to which
     objection remained to be cured and the source of his information. The
     averments in the application, even if read as a whole and liberally, do not
B
     even remotely suggest that such a case has been made out. The High
     Court, therefore, relying on the exposition of this Court in the case of
     Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar
     and Ors.1 opined that the scrutiny of election petition is one of the
     administrative functions to be performed by the office of the High Court
C    and such an official act would draw a presumption of all necessary
     steps having been duly taken by the office and being satisfied in that
     behalf, the matter was placed by the office before the Court for
     appropriate orders under Rule 285.
           11. We may usefully refer to the Rules of the High Court which
D    may have some bearing on the issue under consideration, namely, Rules
     282, 283, 284 and 285. The same read thus:
               “”282. Petition.-
               (i) Every application invoking the jurisdiction of the High Court
               under section 80A of the Representation of the People Act, 1951,
E              shall be by petition addressed to the Honorable the Chief Justice
               and Judges of the High Court.
                (ii) The petition shall comply with the provisions of sections 81,
               82, 83 and 84 of the Act and the grounds on which the relief are
               sought shall be clearly stated in the petition which shall be arranged
F              in suitable paragraphs consecutively numbered. The relief sought
               should be set out at the end of the petition.
               (iii) The full names and the full addresses of all the parties to the
               petition for service of any process shall be stated in the petition.
               In addition to the permanent residence and addresses of the
G              respondent the present address of the respondent at which service
               of the notice may be effected, shall be stated in the petition.”
               “283. Examination of petition.-
                  The office shall examine the petition with a view to see whether
               it is in conformity with the requirements of law and rules applicable
H    1
         (2005) 2 SCC 188
 PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                                   17
              [A. M. KHANWILKAR, J.]

      to the same, and if it is not in conformity with law and rules, raise     A
      objections which should be removed by the party or the Advocate
      concerned. The office shall complete the examination within two
      days after filing of the petition and shall bring the office objections
      to the notice of the party or the Advocate on the date fixed for
      attendance under rule 282(ii) and such objections shall be removed,
                                                                                B
      subject to the orders of the Court, if any, within three days
      thereafter.”
      “284. Petition to be placed for orders if objection not removed.-
      Immediately after the expiration of time fixed for the removal of
      objections, the petition shall be placed before the Judge for             C
      appropriate orders.”
      “285. Petition to be placed for orders after removal of office
      objections.-
      (i) After the removal of office objections, the petition shall be
      placed before the Judge for consideration as to whether the petition      D
      is liable to be dismissed under section 86(1) of the Act. If the
      petition is not dismissed under section 86(1) of the Act, the Judge
      shall direct issue of summons upon the respondent; and the
      summons shall be issued to the respondent to appear before the
      High Court on the date fixed and answer the claim or claims               E
      made in the petition.””
       12. On a bare perusal of the said Rules, it is evident that the
election petition is required to be placed for orders before the Court by
the office only after removal of office objections as per Rule 285. If the
office objections are pending and not cured within the prescribed period,       F
the office is obliged to list the matter before the Court for appropriate
orders under Rule 284. For that reason, the High Court opined that in the
absence of any positive statement in the application filed by the election
petitioner and as the record would show that the matter was placed by
the office before the Court under Rule 285, it must follow that the
grievance made in the application under consideration was based on              G
mere conjectures and surmises and cannot be the basis to dismiss the
election petition at the threshold, as prayed. We respectfully agree with
the said view taken by the High Court and as a result, the order rejecting
the application under consideration, being Election Application No.2 of
2017, deserves to be upheld.
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18                  SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A           13. Reverting to the second application filed by the appellant, being
     Election Application No.3 of 2017, the thrust of the grievance was that
     the copy of the election petition served on the appellant was not a true
     copy. It was not a copy attested by the election petitioner under his own
     signature, much less to be a “true copy” of the petition. Further, there
     were blanks in the verification clause of the petition and the affidavit in
B
     Form No.25 was not in conformity with the requirement of law.
     Additionally, it was also urged that the election petitioner had not filed as
     many copies of the election petition as there are respondents mentioned
     in the election petition. The last point raised by the counsel for the
     appellant came to be rejected by the High Court on the finding that the
C    same was not taken up in the application filed by the appellant. In other
     words, it was canvassed across the Bar for the first time. That being the
     position, the High Court justly disallowed the said contention.
            14. However, with regard to the other aspects raised in the
     application, the High Court noted that the appellant did not file the original
D    copy of the election petition served on him, but produced only a photocopy
     of the allegedly served copy of the election petition along with the
     application filed for that purpose, bearing Election Application No.3 of
     2018. The High Court noted that the only grievance of the appellant was
     that the copy of the election petition served on him did not contain the
     words: “True Copy”. That contention was rejected by placing reliance
E    on the exposition of the Constitution Bench of this Court in Murarka
     Radhey Shyam Ram Kumar Vs. Roop Singh Rathore2, Ch. Subbarao
     Vs. Member, Election Tribunal3 and in T.M. Jacob Vs. C. Poulose
     and Ors.4, wherein it has been held that the real test of whether the
     copy served is a “true one” is to find out whether any variation from the
F    original is calculated to mislead an ordinary person and if there is
     substantial compliance with the requirements of Section 81(3) of the
     Act, the election petition cannot be dismissed at the threshold.
            15. We must agree with the High Court that to test the arguments
     of the appellant as to whether the copy served on him was a true copy
G    of the original election petition or otherwise, it was imperative for him to
     produce the copy of the petition actually served on him and not the
     photocopy thereof. The grievance of the appellant that some blanks had
     been kept in the verification clause or there were material discrepancies,
     2
       (1964) 3 SCR 573
     3
       (1964) 6 SCR 213
H    4
       (1999) 4 SCC 274
 PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                                   19
              [A. M. KHANWILKAR, J.]

could be examined only if the copy of the petition actually served on the       A
appellant was produced before the Court. The High Court could have
non-suited the appellant on this sole ground instead of examining the
matter any further.
        16. However, the grievance made before us by the appellant is
that the factual position recorded by the High Court in paragraph 35 of         B
the impugned judgment that the appellant had not produced the copy
actually served on him in the Court is incorrect. In that, the appellant had
submitted the photocopy of the actually served copy along with Election
Application No.3 of 2018 and had also undertaken to produce the original
of the actually served copy at the time of hearing and that the same was
so produced at the time of hearing and handed over to the High Court.           C
This specific plea has been taken in ground (u) of the special leave
petition. In other words, the High Court committed manifest error in that
regard. If that is so, it would be appropriate to relegate the parties before
the High Court for consideration of grievance that the copy actually
served on the appellant is not the true copy within the meaning of Section      D
81(3) of the Act. We are inclined to say so also because the plea taken
by the appellant before us is that the appellant had pointed out 20
discrepancies in the copy of the election petition served on him and a
chart whereof has been appended at Pages 855-867 of Volume IV of
the Special Leave Petition, which according to the appellant, were material
discrepancies warranting a finding that the copy of the petition served         E
on him was not a “True Copy” within the meaning of Section 81(3) of
the Act. We find that the High Court has not dealt with this contention
in the impugned judgment at all. Even for this reason, the decision of the
High Court on the application under consideration, being Election
Application No.3 of 2017, will have to be set aside and the parties will        F
have to be relegated before the High Court for its consideration afresh
on its own merits in accordance with law. In this view of the matter, we
have consciously avoided to advert to the rival pleadings and submissions
on the merits of this issue so that no prejudice is caused to either party
and the remanded Election Application No.3 of 2017 can be decided de
novo in accordance with law. All contentions available to the respective        G
parties in that regard are kept open.
       17. We may hasten to add that the question to be decided in Election
Application No.3 of 2017 for dismissal of the election petition, will be
limited to non-compliance of Section 81(3) and the consequences flowing
                                                                                H
20                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A    therefrom including under Section 86(1) of the Act. For, the dismissal of
     the election petition under the latter provision is envisaged only on that
     count and not in reference to some non-compliance of requirement under
     Section 83 of the Act. This is the settled legal position.
            18. As we are inclined to relegate the parties before the High
B    Court for consideration of Election Application No.3 of 2017 afresh in
     accordance with law, and in the event the appellant is in a position to
     persuade the High Court to allow the said application, the election petition
     will have to be dismissed at the threshold under Section 86(1) read with
     Section 81(3) of the Act. However, if that application fails, the appellant
     can be permitted to reopen or revive the challenge to the issues raised in
C    Election Application No.6 of 2017 for dismissal of the election petition
     under Order VII Rule 11(a) & (d) of the CPC, on the ground that the
     election petition does not disclose a cause of action or that it is barred by
     law. In that eventuality, the appellant may challenge the judgment rendered
     in the remanded Election Application No.3 of 2017 and also have the
D    liberty to file fresh special leave petition against the impugned judgment
     and order passed by the High Court in Election Application No.6 of
     2017. Further, both such special leave petitions can be heard together.
     All questions in that regard are kept open, to be decided appropriately if
     and when occasion arises. For the time being, we do not wish to burden
     this judgment with the said issues and leave it open.
E
           19. Accordingly, we allow this appeal in the following terms:
           (I)    The judgment and order dated 20th April, 2018 passed by
                  the High Court of Gujarat in Election Application No.2 of
                  2017 in Election Petition No.1 of 2017, is upheld and as a
F                 result thereof, the appeal against that decision is dismissed.
           (II)   The judgment and order dated 20th April, 2018 passed by
                  the High Court of Gujarat in Election Application No.3 of
                  2017 in Election Petition No.1 of 2017 is set aside and the
                  parties are relegated before the High Court for de novo
G                 consideration of the said application which is restored to the
                  file of the High Court to its original number in terms of this
                  order. The High Court is requested to decide the remanded
                  application expeditiously, preferably within one month.
                  Hence, the appeal against the decision on the Election
                  Application No.3 of 2017 is partly allowed.
H
 PATEL AHMED MOHAMMAD v. BALWANT SINGH RAJPUT                                   21
              [A. M. KHANWILKAR, J.]

      (III) The appeal against the judgment and order dated 20th April,         A
            2018 passed by the High Court of Gujarat in Election
            Application No.6 of 2017 in Election Petition No.1 of 2017
            is disposed of with liberty to the appellant to challenge the
            selfsame decision afresh in the event his remanded Election
            Application No.3 of 2017 in Election Petition No.1 of 2017
                                                                                B
            is rejected. That special leave petition be heard analogously
            with the special leave petition against the order to be passed
            on Election Application No.3 of 2017, should the need arise.
       20. The appeals and the accompanying application(s) are disposed
of in the aforesaid terms with no order as to costs.
                                                                                C
Ankit Gyan                                               Appeals disposed of.




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