AJAY MAKEN versus ADESH KUMAR GUPTA & ANR.

Citation: [2012] 13 S.C.R. 192 · Decided: 11-12-2012 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Disposed off

Judgment (excerpt)

A 
B 
(2012) 13 S.C.R. 192 
AJAY MAKEN 
. 
v. 
ADESH KUMAR GUPTA & ANR. 
(Civil Appeal No. 8919 of 2012) 
DECEMBER 11, 2012 
[ALTAMAS KABIR, CJI AND J. CHELAMESWAR, J.] 
Representation of the People Act, 1951 - s.82 - Election 
petition - Parties/respondents to the petition - Election of 
C returned candidate (appellant) challenged on ground of 
commission of corrupt practices -
Objection raised by 
appellant that the election petition was liable to be dismissed 
for non-impleadment of 'V', another candidate in the said 
election - He contended that Annexure of the election petition 
o contained a/legations of commission of corrupt practice by the 
appellant, as also by 'V' and in view of s.82(b), 'V' also ought 
to have been made a respondent to the election petition and 
failure to so implead him was fatal to the election petition -
Held: In the entire body of the election petition there was no 
~ reference to any corrupt practice committed by 'V' -
Allegations against 'V' were found in a document. annexed to 
the election petition - of which the election petitioner was not 
the author- hence it cannot be said that the a/legations were 
made in the petition - In order for any other candidate to be 
F made a party to the Election Petition, allegations of corrupt 
practice would have to be made against him in the Election 
Petition itself - In absence of any such allegation in the 
Petition, clause (b) of s.82 will not be attracted - 'V' thus not 
required to be made a party to the Election Petition -
" 
Consequently, non-impleadment of 'V', against whom there 
.:i were no a/legations in the Election Petition, not fatal to the 
Election Petition. 
The second respondent filed election petition before 
the High Court challenging the election of the returned 
H 
192 
AJAY MAKEN v. ADESH KUMAR GUPTA & ANR. 
193 
candidate (appellant) from the New Delhi Parliamentary 
A 
Constituency on ground of commission of corrupt 
practices falling under Section 123(1), (2), (5), (6), (7) read 
with Section 127(a) of the Representation of the People 
Act, 1951. The election petitioner impleaded the Returning 
Officer and the appellant as party-respondents to the 
B 
election petition. The appellant filed Interlocutory 
Application (I.A.) invoking Order VII Rule 11 of CPC 
praying that the election petition be dismissed in 
compliance with the mandate contained in section 86 of 
the Act, which stipulates "the High Court shall dismiss c 
an election petition which does not comply with the 
provisions of section 81 or section 82 or section 117". 
The appellant raised objection inter alia on two grounds 
- a) for non-compliance with Section 81 (3) of the Act and 
b) for non-impleadment of 'V', another candidate in the 
0 
said election. He contended that Annexure-1 of the 
election petition not only contained allegations of 
commission of corrupt practice by the appellant, but also 
by 'V' and in view of the requirement of Section 82(b) of 
the Act, 'V' also ought to have been made a respondent 
to the election petition and failure to so implead him was 
E 
fatal to the election petition. The I.A. was, however, 
dismissed, and therefore the instant appeal. 
Two issues thus came up for consideration before 
this Court: a) whether the copy served on the appellant 
F 
was not a true copy of the original within the meaning of 
Section 81 (3) of the Act and thus the election petition was 
liable to be dismissed on that ground; and b) whether 
non-impleadment of 'V' was fatal to the election petition-
i.e. whether allegations were made against 'V' in the G 
election petition and if made, was 'V' required to be made 
a respondent to the election petition. 
Adjudicating upon the second issue but remitting the 
matter to the High Court for consideration afresh of the 
H 
194 
SUPREME COURT REPORTS 
[2012) 13 S.C.R. 
A objections raised by the appellant in regard to the first 
issue, the Court 
B 
HELD: 
Per J. Chelameswar, J. 
1.1. It is not clear whether the various deficiencies 
pointed out pertain to the original copy of the election 
petition filed in the High Court or the copy served on the 
appellant. Legally there is a distinction between failure to 
c sign and verify the original copy of the election petition 
filed in the Court and failure to attest the copy served on 
the respondent to be a true copy of the election petition. 
While the latter failure falls within the scope of Section 
81 (3), the earlier failure falls under sub-Section

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