RANJAN GOGOI, J.

(1.) An objection to the maintainability of the election petition having been put on record by the applicant/returned candidate, this Court by order dated 19/10/2001 has framed the following two preliminary issues for deciding the question of maintainability of the election petition.

"1. Whether the election petition was presented by the election petitioner in accordance with Section 81(1) of the Representation of the People Act, 1951 read with Rule 1 of Chapter VIII A of the Gauhati High Court Rules. If not, whether the election petition is liable to be dismissed under Section 86 of theof 1951

2. Whether the copy of the election petition was served on the returned candidate in compliance with the provisions of Section 81(3) of theof 1951. If not, whether the election petition is liable to be dismissed"

(2.) As the aforesaid two issues framed by order dated 19/10/2001, involve mixed questions of fact and law, parties were allowed to adduce evidence. The opposite party/election petitioner has examined three witnesses to establish that the election petition filed by him is maintainable. No witness has been examined on behalf of the applicant/returned candidate.

(3.) In so far as Issue No. 1 is concerned, the requirement of Section 81(1) of theread with Rule 1 of Chapter VIIIA of the Gauhati High Court Rules is that an election petition must be presented by the election petitioner in person before the Stamp Reporter within 45 days of the date of declaration of result which in the instant case can be determined to be 28.6.2001. PW-1 is the election petitioner himself. According to him, after the decision to file the election petition was taken, on or about 25.6.2001 the election petitioner was informed by his advocates that the election petition has been made ready for filing. Accordingly, on the evening of 25.6.2001, the election petitioner visited the office of his counsel and the election petitioner satisfied himself as regards to the contents of the election petition. On 26.6.2001, the election petitioner took away the election petition and nine copies thereof from the office of his counsel and requested one Jainul Abedin, PW-2, a junior counsel to come to his residence in the morning of 27.6.2001 so that the election petition could be filed. PW- I/the election petitioner has further stated that in the morning of 27.6.2001, when PW-2 came to his residence, he in the presence of PW-2 signed all pages of the election petition and the copies thereof except the first pages and the affidavit. At about 1 p.m. of 27.6.2001, the election petitioner alongwith PW-2 came to the High Court with the election petition and copies thereof for presentation before the Stamp Reporter. On reaching the office of the Stamp Reporter (PW-3), he met his engaged counsel Shri A.B. Choudhrury who was busy with some other work. Thereafter, the election petitioner occupied a chair in front of the Stamp Reporter and executed the affidavit before the Oath Commissioner. The Stamp Reporter was working as the Oath Commissioner also. After the affidavit was executed and necessary seals and signatures were affixed, the election petitioner/PW-1 signed on the first pages of the election petition and the copies with the following endorsement - Filed by Hafiz Rashid Ahmed Choudhury, the petitioner in person - 27.6.2001". Thereafter, the election petition and the copies were placed on the table of the Stamp Reporter and the Stamp Reporter was informed that the election petition is being presented. The Stamp Reporter examined the contents of the election petition and counted the copies and informed PW-1 that the election petition was found to be alright. Thereafter, according to PW-1, one Rajkumar Singh, believed to be the Filing Assistant, was called by the Stamp Reporter and the election petition and the copies alongwith all enclosures were handed over to the Stamp Reporter to the said person. The aforesaid person was asked to affix necessary seals and endorsement and enter the particulars in the filing register. PW-2 accompanied the Filing Assistant Rajkumar Singh and came back to the table of the Stamp Reporter after about 15/20 minutes. The election petition and the copies were handed back to the Stamp Reporter. PW-1 has further deposed that he had a look at the check slip as well as the first page of the election petition. In so far as the election petition is concerned, he found a round seal somewhere in the bottom of the first page with the date - 27.6.2001. PW-1 has also deposed that on the left side of the top portion of the check slip there is an initial with the date 28.6.2001. Thereafter, as the Stamp Reporter had informed the PW-1 that the presentation had been done as required, PW-1 alongwith his counsels left the office. PW-1 has proved the Election petition filed by him which has been marked as Ext. P-1. He has also proved the endorsement with the signature and date appearing on the first page of the election petition as Ext.P-1(1). The round seal of the Filing Assistant has been proved as Ext.P-1(2). This witness has proved Ext.P-2 namely the check slip and P-2(1) namely the initial of the Filing Assistant. He claims to be conversant with the signature and initials of the Filing Assistant as in the course of his legal practice in the High Court, he had the occasion to deal with the aforesaid Filing Assistant in the normal course of office work. No cross examination of PW-1 has been made by the opposite party/returned candidate except a mere suggestion to the effect that the election petition was not presented in person before the Stamp Reporter on 27.6.2001.

(4.) PW-2 Jainul Abedin, a practicing Advocate of the High Court, has corroborated the evidence of PW-1. The opposite party/returned candidate has declined to cross examine the said PW-2.

(5.) The Stamp Reporter/PW-3 one Jadav Deka has deposed that on 27.6.2001, the election petitioner had presented the election petition in question in person before him. The same was handed over to the Filing Assistant for entering the serial number and putting the date, seal, etc. as the Stamp Reporter/PW-3 did not have any separate seal. PW-3 has admitted the execution of the affidavit in support of the election petition in his presence and has also stated that when the election petition was presented before him, he had checked the contents thereof to satisfy himself that all requisites have been filed alongwith the election petition. PW-3 has identified the check slip Ext.P-2 as well as the signature off the Filing Assistant namely Ext.P-2(1) whose signature he claims to be familiar with. PW-3 has further admitted that as the Stamp Reporter, he submitted the formal report on 2.7.2001 only. The delay has been sought to be explained by him as having occurred due to heavy pressure of work. PW-3 has also proved the filing register maintained in the office of the Stamp Reporter as Ext. P-3. The relevant entry in the filing register in respect of the election petition has been proved as Ext. P-3(1).

(6.) An appraisal of the evidence of the three witnesses examined by the opposite party/election petitioner would go to show that PW-1 the election petitioner and PW- 2 a junior advocate representing the election petitioner has been consistent with regard to the events that had occurred on 27.6.2001 in respect of the presentation of the election petition. There is no inconsistency or material contradictions or any other cogent reason for this Court to disbelieve the evidence of the aforesaid two witnesses. In so far as PW-3 is concerned, a perusal of the evidence adduced by the said witness would go to show that the said witness namely PW-3 has been equally categorical that the election petition was presented by PW-1 before him on 27.6.2001. PW-3 has further fortified the evidence tendered with effect to the date of presentation of the election petition by exhibiting the filing register am Ext.P-3 and by proving the relevant entry in respect of the election petition as Ext P-3(1) which is one of one entries in the filing register in respect of 27th June, 2001,.

(7.) In view of the aforesaid position, this Court has no hesitation in accepting the evidence of PW-3 also.

(8.) In view of the aforesaid conclusions, reached, preliminary Issue No. 1 as framed is decided in favour of the opposite party/election petitioner and against the applicant returned candidate.

(9.) Adverting the second preliminary issue framed in the case, the copy of the election petition served on the applicant/ returned candidate has been duly exhibited and marked as Ext.R-1. A perusal of the aforesaid copy of the election petition duly exhibited would go to show that in the first page of the election petition, the following words are inserted: Filed by Hafiz Rashid Ahmed Choudhury-Petitioner irvperson - 27.6.2001". In the rest of the election petition, there is a signature which the petitioner in his evidence claims to be his. That the aforesaid signature is of the election petitioner is not disputed on behalf of the returned candidate. The verification in support of the election petition; schedule of corrupt practices and the verification and affidavit in support of the corrupt practices alleged as well as the other enclosures and the verifications in support thereof, are certified to be true copy under the signature of the election petitioner.

(10.) Mr G.P. Bhowmick, learned counsel appearing for the applicant/returned candidate, relying on the ratio of the law laid down by the Apex Court in the case of Jyoti Basu and others-Vs-Debi Ghosal and others reported in 1982(1) SCC 691, as well as the decision of the Apex Court in the case of D.R. Shipra-Vs-Shanti Lal Khoiwal reported in AIR 1996 SC 1691 [LQ/SC/1996/730] , has sought to contend that, inasmuch as pages 1 to 40 of the election petition has not been certified to be true copy by the election petitioner, the election petition in question is not in conformity with the provisions of Section 81(3) of the RP Act, 1951 and therefore, deserves to be dismissed as not maintainable under the provisions of Section 86 of the.

(11.) Mr A.M. Mazumdar, learned senior counsel appearing for the opposite party/election petitioner, has contended that the law relating to compliance with the requirements of Section 81(3) of thehas been settled by a decision of the Apex Court in the case of Appellant, T. Phunzathang- Vs-Respondents, Hangkhanlian and others, reported in 2001 AIR SCW 3892: 2001(3) GLT (SC) 20. According to the learned senior counsel, preliminary Issue No. 2 ought to stand decided in favour of the election petitioner by virtue of the law laid down by the Apex Court as aforesaid.

(12.) I have considered the rival submissions. The Apex Court in the case of T. Phunzathang-Vs-Hangkhanlian and others (supra), has re-affirmed and reiterated the law laid down by the Constitution Benches of the Apex Court in the case of (i) Murarka Radhey Shyam Ram Kumar-Vs-Roop Singh Rathore, (1964) 3 SCR 573 [LQ/SC/1963/144] : (AIR 1964 SC 1545 [LQ/SC/1963/144] ); (ii) Ch. Subbbarao-Vs-Member, Election Tribunal, Hyderabad, (1964) 6 SCR 213 [LQ/SC/1964/3] : (AIR 1964 SC 1027 [LQ/SC/1964/3] ) and (iii) T.M. Jacob-Vs-C. Poulose (1999) 4 SCC 274 [LQ/SC/1999/429] : (1979 AIR SCW 1156: AIR 1999 SC 1359) and has summed up the law in this regard as follows:

"(i) The object of serving a "true copy" of an election petition and the affidavit filed in support of the allegations of corrupt practice of the respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is of substance and not of form. (Para 35) (ii) The test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. (Para 33) (iii) The word copy does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. (Para 34) (iv) Substantial compliance with Section 81(3) was sufficient and the partition could not be dismissed, in limine, under Section 86(1) where there had been substantial compliance with the requirements of Section 81(3) of the. (Para 34) (v) There is a distinction between non- compliance with the requirement of Section 81(3) and Section 83. A substantial compliance with the requirements of Section 81(3) read with the proviso to Section 83(1) of theis enough. Defects in the supply to true copy under Section 81 of themay be considered to be fatal, where the party has been misled by a copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provision of Section 81 (3) read with Section 86(1) of the. The same consequence would not follow from non-compliance with Section 83 of the. (Para 37) (vi) The argument that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into Section 86(1) read with Section 81(3) of the Act, cannot be accepted and has to be replied. (Para 38) (vii) It is only the violation of Section 81 of thewhich can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam (AIR 1964 SC 1545 [LQ/SC/1963/144] ) and Ch. Subbarao cases. (AIR. 1964 SC 1027) [LQ/SC/1964/3] . The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. This clearly emerges from the scheme of Sections 83(1) and 86(5) of the. (Para 38) (viii) A certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The test suggested in Murarka Radhey Shyam case (1964 (3) SCR 573 [LQ/SC/1963/144] : AIR 1964 SC 1345) are sound tests and are now well settled. (Para 40)"

(13.) It is neither alleged nor proved that Ext. R-1 served on the returned candidate is in any way not a true copy of the original election petition (Ext. P-1). The complaint is only as regards the lack of attestation to stipulated in the later part of Section 81(3) of the. In view of the law laid down by the Apex Court as discussed herein above, the absence of the attestation, not being a total defect, in the considered view of the Court, does not render the election petition void and not maintainable. There has been substantial compliance with the requirements of Section 81(3) of thein the instant case. Preliminary Issue No.2 is therefore decided in favour of the election petitioner and against the returned candidates.

(14.) In view of the forgeoing discussions and for the reasons recorded the instant election petition is held to be maintainable and shall now proceed for trial. Misc. case stands rejected.