SHARLF-UD-DIN v. ABDUL GANI LONE (2)

Citation: [1980] 1 S.C.R. 1177

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, E.S. VENKATARAMIAH

Case summary

But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of The respondent contended that the petiition was liable to be dismissed in view of section 94' of tbe Act which provided that the High Court should...

Judgment text

1 I 77 SHARJJl-UD-DIN v. ABDUL GANI LONE November 12, 1979 rv. D. TULZAPURKAR AND E. s. VENKATARAMIAH, JJ. ] ;J(imtnu and Kashn1ir Represe1Uation of the People A. ct, 1957, Section ·89(3)-Wltethcr ·mandatory-Attestation by the counsel for the election petiti 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 due care of by the courts and the courts would not by themselves ,give any scope for tampering with them. But still experience shows. ·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 8 !

'Probably 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 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 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 ·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 ' ' copy of the election petition which is intended for service on the 'fespondent should be attested by the petitioner under his own signature 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. For the foregoing reasons, the appeal filils and is hereby clismisied with costs. ·s. R. Appeal dismissed. MGl'. PF-743SCI/79-18-6-80-2500