Holding

Section 89(3) imposes a mandatory requirement that each copy of an election petition be attested by the petitioner under his own signature; failure to do so mandates dismissal under Section 94(1).

Summary

The appellant, Sharif‑ud‑Din, filed an election petition challenging the election of Abdul Gani from the Handwara constituency. The petition was dismissed by the Jammu & Kashmir High Court because the copies of the petition were attested by the appellant’s advocate, Piyare Lal Handoo, rather than by the appellant himself as required by Section 89(3) of the Jammu & Kashmir Representation of the People Act, 1957. The Supreme Court examined whether the attestation requirement is mandatory or merely directory, and whether an advocate’s signature can satisfy it. Relying on the language of the statute, its object, and precedent, the Court held that the requirement of the petitioner’s own signature is mandatory; non‑compliance triggers dismissal under Section 94(1). Consequently, the appeal was dismissed, upholding the High Court’s order.

Issues considered

The provision of Section 89(3) of the Jammu & Kashmir Representation of the People Act, 1957, is a mandatory or directory requirement.
Whether attestation of the copies of an election petition by the petitioner’s advocate satisfies Section 89(3).
Whether failure to comply with Section 89(3) obliges the court to dismiss the election petition under Section 94(1).

Legislation cited

Jammu and Kashmir Code of Civil Procedure, 1977
Jammu & Kashmir Representation of the People Act, 1957s. 125, s. 89(1), s. 89(3), s. 90, s. 94(1)
Representation of the People Act, 1951s. 117, s. 81(3), s. 82, s. 86(1)

Subjects

election petitionmandatory provisionattestationtrue copySection 89(3)Section 94(1)Representation of the People ActJammu & Kashmirprocedural requirementdismissal

Judgment

1 I 77

SHARJJl-UD-DIN A
v.
ABDUL GANI LONE
November 12, 1979
rv. D. TULZAPURKAR AND E. s. VENKATARAMIAH, JJ.] B
;J(imtnu and Kashn1ir Represe1Uation of the People A.ct, 1957, Section
·89(3)-Wltethcr ·mandatory-Attestation by the counsel for the election
petiti<mer as "true copy" is not valid-Attestation should be under 'he petitioner's
own. Sl"gnature and the absence thereof is a material defect--Object Of secti(}n
:1!9(3). .
c
Rules of construction of law, as to· 1vl1ether it is mandatory or directory,
.explai"ed.

·Section 89(3) of the Jammu & Kashmir Representation of the People Act,
1957 reads: "Every election petition should be accompanied by as many copies
thereof as there are respondents mentioned in the petition and every such copy
shall be attested by the petitioner under his own signature to be true copy of D
the petition". Under Section 94(1) of the Act, "The High Court shall dismiss
an election petition which does not 'comply with the provisions of Section 89
or Section 9Q or Section 125". S.ctions 89(3) and 94(1) of the Act are in
pari materia with sections 81 (3) and 86(1) of the Central Act 43 of 1951.

Jn the election petition· filed by the appellant in the J & K High Court
challeoging the "erdict of the Returning Officer declaring the respondent as a E
succ.es&ful candidate from the Handwara Constituency to the State Legislature,
b0th the copies of the election petition contained the ·endorsement "Attested
true copy. Piare Lal I-Iandoo, Advocate". The question arose_ whether it \vas
a sufficient compliance within the provisions of Section 89(3) of the ;\ct.

·Dismissing the appeal, the Court
" HELD : 1. The requirement in Section 89(3) of J & K Representation of
F

People Act, 1957 iliat every copy of tho election petition which is ihtended for
service on the respondent should be attested by the petitioner under his own
signature is a mandatory requirement and the non-compliance with that require-
ment should. result in the dismissal of the petition as provided in Section 94(1)
of the Act. [1189 F-G]
G
2. The object of requiring a copy of an election petition t-0 be attested by
the petitioner under his O'W'Il. signature to be a true copy of the petition is
that the petitioner should take full responsibility for its contents and that the
Tespondent or respondent.;; should have in their possession a copy of the peti·
tion duly attested under the signature of the petitioner to be the true copy of
the petition at the earliest possible opportunity to prevent any nnauthorised
alteration or tampering Of contents of the original petition after it is filed into H
Court No doubt, the n:cordi and documents in the custody of Courts are
taken due care of by the Courts and th'\ Courts would not by themselves give
1178 SUPREME COURT REPORTS [1980] l S.C.R •.

any scope for tampering with them. Still allegations-not always without
basis-are sometimes made that records in the Court have been tampered with~
notwithstanding the care and caution take~: by Courts. To obviate any scope
for such an allegation being made or to protect the interest of the respondent,.
the Legislature thought of enacting sub-section (3) of Section 89 of the Act
so that the respondent may rely on the copy served on him when he finds ihat
the original document in the Court contains allegations different from those

• in the copy in his custody. A respondent would not have the same degree
of assurance if a copy served on him is one attested by any person other than
the petitioner himself. The attestation by the advocate for the petitioner oon-
not be treated as the equivalent of attestation by the petitioner under his own
signature. If the requirement of the second part of section 89(3) that copy
of the petition should contain the signature of the petitioner himself is not
one of substan~, there was no need to enact! it as the first part of sub-section
c (3) of section 89 of the Act would have been sufficient for it provides that
every election petition shall be accompanied by as many copies thereof as
there are respondents mentioned in the petition and the word "copies" men~
tioned th~rein can only mean "true copies". The importance of the pro·
vision contained in section 94 of the Act which makes it obligatory on the
part of the High Court to dismiss a petition when it is ·established that section
89 of the Act had not been complied with also cannot be overlooked in this
D context. [1188 G-H, 1189 A-El

3. It is true that section 89(3) of the Act is purely procedural in character
and that ordinarily procedural law should not be given that primacy by courts
as would defeat the ends of justice. But if a law even though it may be
procedural in character insists that an act must be done in a particular manner
and further provides that certain consequences should follow if the act is not
E done in ·that manner, courts have no option but to ,enfcirce the law as it is.
A rule of limiOO.tion, for example, which is generally considered as procedural ·
in character is strictly enforced by courts since the rule lays down that no court
shall entertain a suit, an appeal or an application which is barred by time.
[1187 F·Hl

An election to .a Legislative Assembly can be called in question only by
F filing an ele<;tion petition and not otherwise. The righit to challenge the elec-
tion by filing an election petition is a statutory right and not a common law
right. A successful oandidate is entitled to enjoy the privileges attached to
the membership of the Legislative Assembly unles11 his right to. do so is succeSs-
fally challenged in an election petition filed within the prescribed period and
in accordance with law. Section 89(3) of the Act consists of two parts. The.
first part requires that every election petition shall be accompanied by as many
G copies thereof as there are respondents mentioned in the petition and the
second pa.rt requires that every such copy shall be attested by the petitioner
under his own signature to be a true copy of the petition. The copies of the
election petition should be filed alongwith it in order to prevent the delay in
the disposal of the election petitions. Sub-section (3) of section 89 of the
Act provides that a copy Of the petition shall be attested by the petitioner "undor.
his own signature". But the same expression is not to be found in Section
B 91(l)(c) of the Act which provides that an election petition shall be signed
by the petitioner and verified in the manner laid down in the Jammu end
Kashmir Code of Civil Procetlure (Act X of 1977), for the verification of
SHARIF-UD-DIN V. ABDUL GANI 1179

pleadings. Sub-section (3) of section 89 of the Act was inserted by Jammu A
:and Kashmir Act I of 1962. Section 94 of the Act which requires the High
·Court to dismiss an election petition when the petitioner bas not complied
with the provisions of section 89 was enacted in the place of former section
·94 of the Act by Jammu and. Kashmir Act XI of 1957 by the Legislature with
the full knowledge of the requircments of section 89(3) of the Act. [1188 A-G]

B
Satya Narain ''· Dhuja Ram and Ors,, [1974] 3_ SCR 20; applied,

4. 'fhe question whether a provision of law is mandatory or not, depends
upon its language, the context in which it is enacted and its object. The
·difference between a' mandatory rule and a directory rule is that \Vhile the
former must be strictly observed, in the case of the latter substantial compli-
.ance may be sufficient to achieve the object regarding which the rule fa enact-
ed. Certain broad propositions which can be deduced fron1 several decisions c
of courts regarding the rules of construction that should be follo\ved in deter-
mining whether, a provision of law is directory or mandatory are as follows :

The fact that the statute uses the \\'Ord 'shall' while laying dov,rn a duty is
not conclusive on the question whether it is a mandatory or directory provision.
In order to find out the true character of the legislation, the Court has to D
ascertain the object which the provision of law in question is to subserve an!il
its de:5ign and the context in v»hich it is enacted. If the object of a law is
to be defeated by non-compliance with it, it has to be regarded as mandatory.
But when 3. provision of law relates to the performance of any public duty and
the invalidation of arty act done in disregard of that provision causes serious
prejudice to those for whose benefit it is enacted and at the same time who
have no control oyer the performance· of the duty, such provision should be E
treated as a directory one. Where ho\vever, a provision of law prescribes that
a certain act has to be done in a particular manner by a person in order to
acquire. a -right and it is coupled with another provision which confers an
immunity on another when such act is not, done in that manner, the former
-has to be n;:garded as a mandatory one. A procedural rule ordinarily should
not be construed as mandatory if the defect in the act done in pursuance of
it can be cured by :Permitting appropriate rectification to be carried out at a F
subsequent stage unless by according such permission to rectify the error
later on, another rule would be contravened. Whenever a statute prescribes
that a particular act is to be done in a particular manner and also lays down
that failure to comply with the said requirement leads to a specific consequence,
it. would be difficult to hold that the requirement is not mandatory and the
·specified consequence should not follow, [1182 E-I-I, 1183 A-C, 1188 DJ
G
J{. Ka1naraja 11.ladar v. Kunju Thevar and Ors. [1959] SCR 583, Subbarao v•
.Member, Electian Tribunal Hyderabad, [1964] 6 SCR 213, Kama/am (M.) v.
Dr. V. A. Syed Mohd., [1978] 3 SCR 446 at p, 452; referred to.

Satya 1\Tarain v. Dhuja Ram and Ors., [19741 3 SCR 20; applied.
H
Jagat Kishore Prasad Narain Singh v. Rajendra Kun1ar Poddar and Ors.,
'[19711 1 SCR 821; held inapplicable.
180 SUPREME COURT REPORTS [1980] l' s~c.ru..

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2005 of 1978.
Appeal under section 123 of the Jammu and Kashmir Re- .l
presentation of People Act, 1957 from the Judgment and Order
dated the 6th September 1979 of the Jammu and Kashmir High.
Court in Elec1,ion Petition No. 3 of 1977
B D. V. Patel, Vineet Kumar and A. Srivastava for the Appellant.,
Z. A. ,Shah, M. Veerappa, J. R. Das and R. N. Nath for the
Respondent.
J
The Judgment of the Court was delivered by
VENKATARAMIAH, J. This appeal is filed under section 123 of
c the Jammu and Kashmir Representation of the People Act, 1957
(hereinafter referred to as 'the Act') by tbe appellant against the
judgment of the High Court of J:immu & Kashmir in Election Peti-
tion No. 3 of 1977 dismissing an election petition filed by him on the
ground that he had not complied with section 89(3) of the Act.
D At the general election held in the year 1977 to elect members.
to the Legislative Assembly of the State of J:immu & Kashmir, the·
appellant and the respondent were candidates for the seat to be filled
from the Handwara Assembly Constituency. The respondent was-
doclared as the successful candidate by the Returning Officer. There-
after the appellant filed an election petition before the High Court
E of Jammu & Kashmir challenging the validity of the respondent's·
electron on various grounds. The respondent raised two preliminary
objections to the election petition-( 1) that the petition had not
been presented in accordance with sub-section (1) of section 89 of
the Act and (2) that the copy of the election petition had not been
attested by the appellant under his own signature to be a true copy
F
of the petition as reqnired by section 89(3) of the Act. The res-
pondent contended that the petiition was liable to be dismissed in
view of section 94' of tbe Act which provided that the High Court
should dismiss an election petition which did not comply with the
provisions of section 89 or section 90 or section 125. of the Act. We
G are not concerned with the first ground as it has been held by the
High Court that the petition had been validly presented in accordance-
with section 89 (1) of the Act. The appellant while admitting·
that the copies of the election petition had not been attested by him·
under his own signature to be true copies of the petition pleaded
that section 89(3) of the Act had been substantially complied with·
H as the copies of the election petition had been signed by bis advocate·
and that they had been authenticated to be true copies of .the peti-
tion. On the basis of the above pleadings, the High ·Court raised'
Sl!ARJF-UD-DIN v. ABDUL GANI (Venkataramiah,. J.) 1181

two preliminary issues-one relating to the validity of the presenta- A
tion of the election petitlon and the other relating to the effect of
the absence of attestatioli of the copies of the election petition by
the appellant. After recordi!llg the evidence led by the parties on
the preliminary issues and hearing the counsel for the parties, the
High Court disposed of the petition by the judgment under appeal.
B
In the course of its judgment while the High Court upheld the case
of the appellant that the petition had been validly presented under
section 89(1) of the Act came to the conclusion that the petition
was liable to be dismissed as required by section 94 of the Act on
the ground tliat section 89 ( 3) of the. Act had not been complied
with by the appellant. Accordingly, the petition was dismissed. c
Hence this appeal.
section 89(3) of the Act reads : . "Every election petition shall
be accompanied by as many copies thereof as there are respondents
mentioned in the petition and every such copy shall be attested by
the pcititioner under his own signature to be true copy of the peti-
tion." D
Section 94(1) of the Act provides : "The High Court shall dis-
miss an election petition which does not comply with the provisions
of section 89 or section 90 or section 125".
Section 89(3) and section 94(1) of the Act correspond to
section 81(3) and section 86(1) respectively of the Representation E
of the People Act, 1951 (Act No. 43 of 1951) (hereinafter referred
to as 'the Central Act'). There is no difference between the language
( of section 89(3) of the Act and the language of sec.lion 81 (3) o~
the Central Act. The language of section 94(1) of the Act and the
fanguage of section 86(1) of the Central Act are similar except with
F
regard to the numbers of sections referred to therein. Whereas in
Section 94 of the Act, the High Court is required to dismiss an
election petition which does not comply with the provisions of sec-
tion 89 or section 90 or section 125 of the Act, section 86(1) of
the Central Act requires the High Court to dismiss an election peti-
tion which does nqt comply with the provisions of section 81 or G
section 82 or section 117 of the Central Act. The toPics dealt with
by sections 89, 90 and 125 of the Act are the same as the topics
dealt with by sections 81, 82 and 117 of the Central Act. Section 89
of the Act and section 81 of the Central Act deal with presentation
of election petiti9ns. Section 90 of the Act and section 82 of the
Central Act deal with the parties to the petition and section 125 of H
the Act and section 117 of the Central Act deal with security for
costs.
1182 SUPREME COURT REPORTS [1980] l S.C.R.

A It is admitted that neither of the two copies of the election petit-
tion which had been filed along with it had been · signed by the
appellant. Both the copies contained identical endorsements at. the
foot which read :

"Attested true copy, Piyare Lal Handoo, Advocate".
B
The advocate had presented the election petition alongwith his •
.Vakalatnam.a.
j
The crucial part of section. 89(3) of the Act with which we are
concerned provides that "every such copy shall be attested by the
c petitioner under his own signature to be a true copy of the petition"
and the critical words in this part are "under his own signature''.
The case of the respondent is that the requirement of section 89(3)
of the Act that the copy of.the election petition should be attested by
the petitioner under his own signature is a mandatory one. It is his
further case that the language of section 89 (3) of the Act does not
D permiit of any other mode of compliance and, therefore, the attesta-
tion made by the counsel for the petitioner filing the election petition
is no compliance with that provision. It is, therefore, contended by
him that the petition is liable to be dismissed as required by sec-
tion 94 of the Act. On the other hand, the appellant's case is that
since the copies of the petition had been signed by his advocate who
E had been empowered to act for him in the case it should be treated
as substantial compliance witll section 89(3) of the Act which having
regard to its object must be considered to .be directory.
y
The difference between a mandatory rule and a directory rule is
that while the former must be strictly observed, in the case of the
F latter, substantial compliance may be sufficient to achieve the object
regarding which the rule is enacted. Certain broad propositions
which can be deduced from several decisions of courts regarding the
rules of constt11ction that should be followed in determining whether
a provision of law is directory or mandatory may be summarised
G thus: The fact that the statute uses the word 'shall' while laying
down a duty is not conclusive on the question whether it is a man-
datory or directory provision. In order to find out the true character
of the legislation, the Court. has to ascertain the object which the
provision of law in question is to subserve and its design and the
context in which it is enacted. If the object of a law is to be defeat-
H ed by non-compliance with it, it has to be regarded as manda-
tory. But when a provision of law relates to the performance of
any public duty and the invalidation of any act done in disregard of
SHARIF-UD-DIN v. ABDUL GANI (Venkataramialz,' J.) 1183

lhat provision causes serious prejudice to those for whose benefit it A
is enacted and at the same time who have rio control over the
performance of the duty, such provision should be treated as a
directory one. Where however, a provision of law prescribes that
a cer1ain act has to be done in a particular manner by a person in
order to acquire a right and it is coupled with another provision
·which confers an immunity on another when such act is not done B
fo that manner, the 'former has to be regarded as a mandatory one.
A procedural rule ordinarily should not be construed as mandatory
if the defect in the act done in pursuance of it can be cured by
permitting appropriate rectification to be carried out at a subsequent
stage unless by according such permission to rectify the error later
on, another rule would be contravened. Whenever a statute pres- c
cribes that ai particular act is to be done in a particular manner
and also lays down that failure to comply with the said requirement
leads to a specific consequence, it would be difficult to hold that the
requirement is not mandatory and the specified consequence should
not follow. D
We shall now proceed to deal with some1 of the decisions cited
before us at the hearing of the appeal.

In one of the connected appeals which wiis disposed of by this
E
Court by .its common Judgment in K. Kamaraja Nadar v. Kunju
Thevar & Ors.,(') the person who had filed the election petition had
depooited in the Goverrunent Treasury a sum of Rs. 1,000/- towards
security under section 117 of the Central Act for the costs in favour
of the Election Commission instead of in favour of the Secretary
to the Election Commission as required by that section as it stood F
then. It was contended that section 117 of the Central Act had been
contravened thereby and that the petition was liable to be dismissed
I under section 90(3) (since repealed) of the Central Act which
'!'eqnired the Election Tribunal to dismiss an election petition which

t did not comply with sections 81, 82 and 117 of the Central Act
notwithstanding that it had not been dismissed by the Election Com-
mission under section 85 (since repealed) of the Central Act:
Without going into the rel:itionship between the Election Commission
G

<on the one hand and the Secretary to the Election Commission on
the other for the purpose of examining the correctness of the said con-
tention, this Court proceeded to negative it with the following observa-
·tions vide at page 606 :-- H

(I) [1959] S.C.R. 583.
1184 SUPREME COURT REPORTS [1980] 1 s.c.R.

A "It would be absurd to imagine that a deposit made
either in a Government Treasury or in the Reserve Bank
of India in favour of the Election Commission itself would
not be sufficient compliance with the provisions of s. 117
and would involve a dismissal of the petition under s. 85
ors. 90(3). The above illustration is sufficient to demons-
B trate that the words "in favour of the Secretary to the
Election Commission" used in s. 117 are directory and not
mandatory in their character. What is of the essence of
J
the provision contained in s. 11 7 is that the petitioner
should furnish security for the costs of the petition, and
c should enclose along with the petition a Government Trea-
sury 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, 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
, D a proper application being made in that behalf to the E!ec-
. tion Commission or to any person duly authorised by it to
receive the same, be he the ~retary to the Electio11. Com-
mission or any one else."

It is seen from the· above decision that this Court regarded the
E words "in favour of the Secretary to the Election Commission" used
in seetion U 7 of the Central Act directory as the essence of sec-
tion 11 T of the Central Act was that the petitioner should deposit
the amount by way of security for the costs of the petition and that
the said amount should be at the disposal and control of the Elec-
tion Commission to be used by it in the manner authorised by law.
. F As the amount was in fact at the disposal of the Election Commis-
sion, the Court held that section 117 of the Central Act bad been
complied with by the petitioner in that election petition as there was
nothing else in the relative provisions which precluded the Court
· from taking that view.
G In Ch. Subbarao v. Member, Election Tribunal, Hyderabad(')'·
the question of non-compliance wilth section 81 (3) of the Central
Act directly arose for consideration. The facts of that case were
theae : The petitioner had filed alongwith the election petition suffi-
cient number of copies as required by section 81 ( 3) of the Central
Act. The election petition was type-written and the copies which
H accompanied the petition were carbon copies of the type-script. ·Each

(1) [1964] 6 S.C.R. 213 .

..
SJIARIF-UD-DJN v. ABDUL GANI (Venkataramiah, J.) 1185'

of the copies bore the signature of the petitioner. The petitioner
had not, however, inserted the words 'true copy" before or above
his signature. Without going into the question whether section 81 (3)
of the Central Act or any portion 'of it was merely directory, this
Court held that the signatures in original found on the copies were
intended to authenticate the documents to which they were append-
ed and that in the circumstances of that case, the absence of the
words "true copy" above the signature of the election petitioner in
the copies was not fatal. The Court held that there was substantial
compliance with the requirement of section 81 (3) of the Central
Act:

In Jagat Kishore Prasad Narain Singh v. Rajendra Kumar Poddar
c
& Ors.(') this Court dismissed an election petition on the ground of
non-compliance wi{h section 81 (3) of the Central Act as the copies
furnished to the contesting respondents were not true copies as there
was divergence between the allegations made in the petition and the
allegations made in the copies. This decision bas no bearing on the D
question involved in this case.

In Satya Narain v. Dhuju Ram & Ors.(') this Court held that
the first part of section 81 (3) of the Central Act which . required
that the election petition should be accompanied by as many copies
thereof as there were respondents mentioned in the petition was
mandatory in character and non-compliance with it was fatal to the
petition in view of section 86(1) of the Central Act. The Court
was not concerned in that case with the second part of seetion 81 (3) -'
of the Central Act.
F
In Kama/am (M.) v. Dr. V. A. Syed Mohammed,( 3 ) the signature
of the election petitioner by way. of authentication appeared at the
foot of the COPY. of the affidavit but there was no such signature
separately appended at the foot of the copy of the election petition.
The respondent by way of preliminary objection to the election peti-
tion contended that since the copy of the election petition had not G
been attested by the petitioner under her own signature to be a true
copy, there was no compliance with section 81 (3) of the Central Act
and hence the petition was liable to be dismissed. The High Court
accepted the said contention and dismissed the petition. In appeal;
(1) _[1971] I S.C.R. 821. D
(2) [1974] 3 S.C.R. 20.
(3) [1978] 3.S.C.R. 446 at p. 452.
1186 SUPREME COURT RB.PORTS [1980] 1 S.C.R.

A this Court held that section 81(3) of the Central Act had been com-
plied with for the following reasons :,..-

"Now, it is true that no signature was appended by the
appellant on the copy of the election petition proper and
B the signature was placed only at the foot of the copy of the
affidavit, bu! that, in our opinion, was sufficient compliance
with the requirement of the last part of sub-section (3) of
section 81. The copy of the affidavit was, for reasons al-
ready discussed, part of the copy of the election petition
and when the appellant put his signature at the foot of the
c copy of ·the affidavit it was tantamount to appending signa-
ture on the copy of the election petition. The law does not
require that the authenticating signature must be made by
the petitioner at any particular place in the copy of the
election petitiion. It may be at the top of the copy or in
the middle or at the end. The place of the signature is
D immaterial so long as it appears that it is intended to
authenticate the copy. When original signature is made
by the petitioner on the copy of the election petition, it
can safely be presumed, as pointed out by this Court in
Ch. Subbarao's case (supra), that the signature is made
by the petitioner by way of authenticating the document to
E be a true copy of the election petition. Now, here the
appellant placed her signature .in original at the foot of the
copy of the affidavit and the copy of the affidavit was part
of a composite document, namely, copy of the election ' •
petition, and hence the signature of the appellant must be
F regarded as having been appended on the copy of the elec-
tion petition. In fact, the copy of the affidavit constituted
the end-portion of the copy of the election petition and
the signature placed by the appellant at the foot of the copy
of the affidavit was, therefore, clearly referable to the entire
copy preceding Pt and it authenticated the whole of
G the copy of the election petition to be a true copy. We can-
not, in the circumstances, accept the contention of the res-
pondent that the copy of the election petition was not
attested by the appellant under her own signature to be a true
copy of the petition. The requirement of the last part of
sub-section (3) of section 81 was complied with by the
B appellant inasmuch as the copy of the election petition was
authenticated to be a true copy by the appellant by placing
11er signature at the foot of the copy of the affidavit which
SHARIF-VD-DIN V. ABDUL GANI (Venkataramiah, J.) I 187

formed part of the c~py of the election petition. The High A ..
Court was clearly in error. in dismissing the election peti-
1ion under sub-s. (1) of sec. 86.'"

It is seen from the above decision .that this Court held tl1at the
second part of section 81(3) of the Central Act had been complied a,
#' with. after holding that the copy of the petition and the affidavit
filed alongwith it as required by law constituted one single document
and the signature in original of the petitioner at. the foot of the
affidavit satisfied the requirements of section 81 (3) . of the Central
Act. In none of the decisions of this Court referred to· above it has
been held that the absence of the signature of the election petitioner c·
on the copies of the petition was not a material defect.

Tt was argued by the learned counsel for the appellant that the
object of enacting sub-section ( 3) of section 89 of the Act which
was merely procedural in character being that the respondents should
be able to secure copies of the election petition as early as possible
to enable them to file their statement of objections to it early, it·
would be sufficient compliance with the said provision irf the true
copies are filed alongwith it and since in the instant case, there had
been no allegation that the copies which were filed were not exact
copies of the original election petition, the petition should have been E:
disposed of on its merits instead of dismksing it under section 94 of
the Act. He contended that the attestation made by the advocate
on the copies was sufficient to assure the respondent that the copy
served on him was in reality a true copy of the election petition. He
3.lso ccmtended that if a suit instituted in a civil court was not to be
dis.mis!;ed on the ground that the copy of the plaint was not authen- F
ticated to be a true copy by the plantifll under his own signature,
there was no justification for treating the second part of section 89
of the Act as mandatory. It is true that section '89(3) of the Act is
parely procedural in character and that ordinarily procedural Jaw
should not be given that primacy by courts :is would defeat the ends G.
of jnstke. But if a law even though it may be procedural in charac- .
ter insists that an act must be done in a particular manner and
further provides that certain consequences should follow if the act
is not done in that manner,_ courts have no option but to enforce
the law as it is. A rule of limitation, for example, which is generally
considered as procedural in character is strictly enforced by courts D
since the rule lays down that no court shall entertain a suit, an appeal:
«an applicatioo which is barred by time.
11:ss SUPREME COURT REPORTS [198()] 2 S.C.R.

A An election to a Legislative Assembly can be called in question
l
only lJy filing an ~lection petition and not otherwise. The right to
challenge the election by filing an election petition is a statutory

-~
right and not a common law right. A successful candidate is entitl-
ed to enjoy the privileges attaclied to the membership of the Legis-
lative Assembly unless his right to do so is successfully challenged I
IB in an election petition filed within the prescribed period and in acrord- a
ance with law. Section 89(3) of the Act consists of two parts;
·The first part requires that every election petition shall be accompani-
\
ed by as many copies thereof as there are respondents men-
tioned in the petition and . the second part requires truit every such
copy shall be attested by the petitioner under his own signature to be
a true copy of the petition. The first part of section 89(3) of the
Act bas been held to be a mandatory requirement by this Court in
the case of Satya Narain (supra) as this Court was of the view that
the J:Opies of the election petition should be filed alongwith it in
order to prevent the delay in the disposal of the election petitions.
t> Tlle .question whether a provision of law is mandatory or not, as
observed already, depends upon its language, the context in which
it is enacted and its object. Sub-section (3) of section 89 of the
Act provides that a copy of the petition shall be attested by the
petitioner "under his own signature" to be a true copy of the petitiro.
The emphasis in the above provision appears to be on the wQ[ds
"under his own signature". We do not find the same expression
used' in section 91 ( 1 )( c) of the Act which provides that an election
petition shall be signed by the petitioner and verified in the manner
laid down in the Jammu and Kashmir Code of Civil Procedure (Act
X of 1977), for the verification of pleadings. Sub-section (3) of
section 89 of the Act was inserted by Jammu and Kashmir Act I of
1962. Section 94 of the Act which requires the High Court to
dismiss an election petition when the petitioner has not complied
wiith the provisions of section 89 was enacted in the place of the
former section 94 of the Act by Jammu and Kaslunir Act XI of 1967
by the LegMature with the full knowledge of the requirements of seo-
tion 89(3) of the Act. The object of requiring the copy of an
election petition to be attested by the petitioner under his own ..
,
signature llO be a true copy of the petitron appears to be that the
petitioner should take full responsibility for its contents and that the
respondent or respondents should have in their possession a copy of
the petition duly attestoo. under the signature of the petitioner to lie
tho true copy of the petition at the earliest possible opportunity to
prevent any unauthorised alteration or tampering of the contents of
the original petition after it is filed into court. We have no doubt
SHARIF-UD-DIN v. ABDUL GANI (Venkataramitih, l.) 1189

!that the records and documents in the custody of courts are taken A
due care of by the courts and the courts would not by themselves
, give any scope for tampering with them. But still experience shows.

r
·that allegations are sometimes made that records in the court have
been tampered with notwithstanding the care and caution taken by
eourts. Such allegations may not always be without basis. It is
!'Probably to obviate any scope for such an allegation being made or 8
to protect the interest of the respondent, the Legislature thought of
-enacting sub"section (3) of section 89 of the Act so that the respon-
-dent lll1ly rely on the copy served on him when he finds that the
oOginal document in the court contains allegations different from
·those in tl1e copy in his custody. A respondent would not have the c
same degree of assurance if a copy served on him is one attested
by any person other than the petitioner himself. The attestation by

,, the advocate for the petitioner cannot be treated as the equivalent
of att:mation by the petitioner under his own signature. If the
(
reqmment of the second part of section 89 (3) that copy of the
·petition should contain the signature of the petitioner himself is D
·not one of substance, there was. no need to enact it as the first part
--of sub-section (3) of section 89 of the Act would have been suffi-
-cient fut it provides that every election petition shall be accompanied
by as many copies thereof as there are respond611ts mentioned
in the petition and the word "copies" mentioned therein can only
·mean "true copies". The importance of the provision contained in
section 94 of the Act which makes it obligatory on the part of the
High Oourt to dismiss a petition when it is established that sec-
·tioo. 89 of the Act had not been complied with also cannot be over-
'looked in this context.

'' We are, therefore, of the view that the requirement that evefy F
copy of the election petition which is intended for service on the
'fespondent should be attested by the petitioner under his own signa-
ture IS a mandatory requirement and the non-compliance with that
requirement should result in the dismissal of the petition as provid-
. -ed in section 94 of the Act. The High Court was, therefore, right in
dismissing the petition on the above ground. G
For the foregoing reasons, the appeal filils and is hereby clismisied
with costs.

·s.R. Appeal dismissed.
H

MGl'.PF-743SCI/79-18-6-80-2500