SHARLF-UD-DIN versus ABDUL GANI LONE

Citation: [1980] 1 S.C.R. 1177 · Decided: 12-11-1979 · Supreme Court of India · Bench: V.D. TULZAPURKAR · Disposal: Dismissed

Cited by 8 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

" 
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<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). 
. 
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 
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 
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 
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] 
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 
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 
A 
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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 
(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 ov

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