A. Lazar Vs M.K. Azhagiri and Others <BR>M.K. Azhagiri Vs A. Lazar and Others

@JUDGMENTTAG-ORDER

V. Dhanapalan, J.@mdashWhile Application Nos. 188 of 2011 and 2639 of 2011 have been filed by the election Petitioner, praying to permit him to correct the description of the names of the 11th Respondent as Veeradurai instead of Veerapandi and of the 7th Respondent as Thangapandi instead of Thangapandian respectively in short and long cause title of the Election Petition and the pending applications, the Application Nos. 2502 of 2011 and 3019 of 2011 have been filed by the returned candidate, praying to dismiss the Application Nos. 188 of 2011 and 2639 of 2011 respectively.

2. Facts in Application No. 188 of 2011:

Applicant/election Petitioner is substituted in the place of deceased Petitioner in the election petition P. Mohan, by an order of this Court dated 06.09.2010 passed in O.A. No. 1358 of 2009. The amendment has been carried out. He has also taken steps to serve the amended copy of the petition to the Respondents. As far as the name of the 11th Respondent in the election petition is concerned, it is mentioned as "S. Veerapandi" instead of "S. Veeradurai". Notice in the main Election Petition No. 2 of 2009 has been served on the 11th Respondent at the address at No. J-11-1, Tamil Nadu Housing Board Colony, 1st Cross Street, K.K. Nagar, Madurai. The 11th Respondent has not entered appearance in O.A. No. 1358 of 2009 and also he has not raised any plea. However, some of the Respondents have raised a plea that the name of the 11th Respondent has been wrongly described. Pursuant to the ordering of O.A. No. 1358 of 2009, applicant has come on record as the person substituted in the place of deceased election Petitioner. Hence, he is taking steps to correct the name of Veerapandi as Veeradurai, by filing Application No. 188 of 2011.

3. First Respondent/returned candidate has filed a counter, stating as follows:

3.1. The application to amend the Election Petition is devoid of merit and liable to be dismissed in limine, as the same is neither sustainable in law nor on merits. The petition for amendment of the Election Petition is not permissible and is therefore not maintainable. The defect in the Election Petition as filed by the original Petitioner cannot be rectified by the applicant herein. The applicant is nonchalant in his approach in correcting the error made in the Election Petition and is indeed oblivious of the flippant allegations levelled against the first Respondent.

3.2. Having got substituted in the case six months ago after the demise of Mr. Mohan and knowing full well of the details of the mistake apparent on the fact of the record, taking steps at a snail''s pace only questions and doubts his sincerity in pursuing with the allegations levelled against the first Respondent by the deceased contestant. The petition ought to have been framed impeccably by collecting exact details at the inception itself. The names compared are entirely two different names and had nothing to do with the name of the 11th Respondent. Comparison of the names of different Respondents will in no way justify the ignorance of the Petitioner. It is obligatory on the part of the Petitioner to know the names of the persons who had contested in the Parliament election when such allegation is made against a law abiding citizen like the first Respondent.

3.3. Neither the Petitioner nor the original Petitioner can plead ignorance of the name of the 11th Respondent as the same is widely published before the election and was part of the declaration by the Election Officer. Further, the correct name and exact address of the 11th Respondent was conspicuously displayed in over 1200 polling stations, which would not have escaped the attention of everyone.

3.4 The petition is indistinct and incoherent and lacks integrity and affidavit filed along with the petition is illogical and in all likelihood is false and frivolous and is irrefutably without any basis. Therefore, the substituted Petitioner, who seeks amendment at this belated stage to correct the description of the name of the 11th Respondent as Veeradurai instead of Veerapandi in short and long cause title of the Election Petition and in the pending applications is not at all maintainable.

4. The case of the applicant in Application No. 2502 of 2011, who is the returned candidate, is as below:

4.1. The deceased P. Mohan filed the Election Petition and after his demise on 30.10.2009, the first Respondent herein substituted himself in the place of the deceased Petitioner late P. Mohan, pursuant to the order in O.A. No. 1358 of 2009, dated 06.09.2010. The applicant herein raised an objection to the maintainability of the said application on the ground that the Election Petition itself is liable to be rejected, as the contesting candidates were not being made parties to the Election Petition. The first Respondent herein took a stand that he can seek amendment of the Election Petition only after he is substituted as the Petitioner. Accordingly, Application No. 188 of 2011 was filed by the first Respondent to correct the cause title in so far as the 11th Respondent in the Election Petition is concerned. The said application is still pending. In the said application, this Hon''ble Court ordered notice to the Respondents returnable by 15.02.2011. The applicant herein prayed for time to file counter on that day. On 10.01.2011, this Hon''ble Court passed orders in Application No. 6873 of 2010 filed by the first Respondent herein, seeking order for substituted service on Respondents 2, 5, 7, 10 and 11 by paper publication in any of the daily newspapers in Madurai Edition, and ordered affixture at Last Known Residence and Court Notice Board respectively. This Hon''ble Court ordered the above application with a direction to the Petitioner in Election Petition to make paper publication in the Tamil Daily "Dinamalar" Madurai Edition and in the English Daily "The Hindu" Madurai Edition within two weeks. Notice by affixure was also ordered.

4.2. The first Respondent, as per the directions in Application No. 6873 of 2010, dated 10.01.2010, effected publication of the Election Petition with defective cause title. The first Respondent further filed Application No. 1218 of 2011 in Application No. 188 of 2011 in Election Petition No. 2 of 2009, seeking an order for substituted service to serve Respondents 3, 10 and 11 by paper publication in any one of the daily newspapers in Madurai Edition and for ordering affixture at the Last Known Residence and in the Court Notice Board. The said Application No. 1218 of 2011 was heard on 28.02.2011 and this Court ordered the application with a direction to publish in the Madurai Edition of "Dinamalar" and "The Hindu" within two weeks, submitting the same to this Court on 14.03.2011. The first Respondent carried out the said publication also, giving the wrong cause title. Hence, when the Application No. 188 of 2011 came up for hearing on 14.03.2011, this Court noted the defect and permitted the first Respondent to make a fresh paper publication in the Madurai Editions of "Dinamalar" and "The Hindu" within two weeks. This Court recorded that affixture was effected in the Last Known Residence of R10 and service awaited in respect of R3 and R11. On the same day, this Court passed an order in the Election Petition No. 2 of 2009 to the effect that as far as R2, R3, R4, R7, R8, R10 and R11 are concerned, they were served and their names were printed in the cause list and there was no representation on their behalf. They were called absent and hence set exparte. The matter was adjourned to 28.03.2011 for counter of R1, R5, R9 and R12. R6 reported that he was not filing counter. In view of the order declaring Respondents 2, 3, 4, 7, 8, 10 and 11 exparte, the question of amending the cause title in the Election Petition No. 2 of 2009 does not arise. Hence, the Application No. 188 of 2011 is not maintainable.

5. The first Respondent/the election Petitioner, has filed a counter stating as under:

5.1. For his Application No. 188 of 2011, the applicant herein, who is the first Respondent in the said application, has already filed his counter and the said application is ripe for hearing. At this juncture, the Application No. 2502 of 2011 has been filed, seeking to dismiss the application No. 188 of 2011. The above application has been filed only to drag on the proceedings. The applicant herein has been served in the main election petition and he entered appearance through his counsel as early as 06.10.2009. After the first Respondent has been substituted as the Petitioner, the amended copy of the election petition has been served on the applicant on 01.11.2010. In spite of the same, till date, the applicant herein has not filed his counter in the main election petition and he has been dragging on the matter by filing the above frivolous application and, therefore, the application is not at all maintainable in law and on facts.

6. Facts in Application No. 2639 of 2011:

6.1. First Respondent has filed Application No. 2610 of 2011 seeking for striking off the pleadings in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Election Petition and for rejection of the Election Petition. In the affidavit filed in support of the said application, the first Respondent has raised a new plea that there is mis-description in the name of the 7th Respondent. The name of the 7th Respondent has been mentioned as "Thanga Pandian" instead of "Thanga Pandi". The affidavit filed in support of the application No. 2610 of 2011 has been served on the counsel for the applicant on 08.06.2011. To avoid any technical objection, the applicant is filing the present application to properly describe the name of the 7th Respondent. The 7th Respondent was served in the election petition, but he had not entered appearance and was set exparte. The 7th Respondent is also served in the Application 188 of 2011 filed by the applicant, but he has not appeared. After the substitution of the applicant, while the amended copy of the election petition was sent to the seventh Respondent, he evaded service and he has been served by way of substituted service.

6.2. The name of the 7th Respondent has been wrongly described as "Thanga Pandian" instead of "Thanga Pandi". It is only a mis-description. He has been served at address Old No. 18, New No. 70/2, Sabethar Madam, Thalaivirichan Street, 33rd Ward, Madurai-1". This mistake was not taken note of by the election Petitioner while signing the election petition. Therefore, the applicant is taking steps to correct the mis-description in describing the name of the 7th Respondent, by filing this application.

6.3 No counter is filed by the first Respondent in this application.

7. Facts in Application No. 3019 of 2011:

7.1. The deceased P. Mohan filed the Election Petition and after his demise on 30.10.2009, the first Respondent herein substituted himself in the place of the deceased Petitioner late P. Mohan, pursuant to the order in O.A. No. 1358 of 2009, dated 06.09.2010. The applicant herein raised an objection to the maintainability of the said application on the ground that the Election Petition itself is liable to be rejected, as the contesting candidates were not being made parties to the Election Petition. The first Respondent herein took a stand that he can seek amendment of the Election Petition only after he is substituted as the Petitioner. Accordingly, Application No. 188 of 2011 was filed by the first Respondent to correct the cause title in so far as the 11th Respondent in the Election Petition is concerned. The said application is still pending. In the said application, this Hon''ble Court ordered notice to the Respondents returnable by 15.02.2011. The applicant herein prayed for time to file counter on that day. On 10.01.2011, this Hon''ble Court passed orders in Application No. 6873 of 2010 filed by the first Respondent herein, seeking order for substituted service on Respondents 2, 5, 7, 10 and 11 by paper publication in any of the daily newspapers in Madurai Edition and ordered affixture at Last Known Residence and Court Notice Board respectively. This Hon''ble Court ordered the above application with a direction to the Petitioner in Election Petition to make paper publication in the Tamil Daily "Dinamalar" Madurai Edition and in the English Daily "The Hindu" Madurai Edition within two weeks. Notice by affixture was also ordered.

7.2. The first Respondent, as per the directions in Application No. 6873, dated 10.01.2010, effected publication of the Election Petition with defective cause title. The first Respondent further filed Application No. 1218 of 2011 in Application No. 188 of 2011 in Election Petition No. 2 of 2009, seeking an order for substituted service to serve Respondents 3, 10 and 11 by paper publication in any one of the daily newspapers in Madurai Edition and ordering affixture at the Last Known Residence and in the Court Notice Board. The said Application No. 1218 of 2011 was heard on 28.02.2011 and this Court ordered the application with a direction to publish in the Madurai Editions of "Dinamalar" and "The Hindu" within two weeks, submitting the same to this Court on 14.03.2011. The first Respondent carried out the said publication also, giving the wrong cause title. Hence, when the Application No. 188 of 2011 came up for hearing on 14.03.2011, this Court noted the defect and permitted the first Respondent to make a fresh paper publication in the Madurai Editions of "Dinamalar" and "The Hindu" within two weeks. This Court recorded that affixture was effected in the Last Known Residence of R10 and service awaited in respect of R3 and R11. On the same day, this Court passed an order in the Election Petition No. 2 of 2009 to the effect that as far as R2, R3, R4, R7, R8, R10 and R11 are concerned, they were served and their names were printed in the cause list and there was no representation on their behalf. They were called absent and hence set exparte. The matter was adjourned to 28.03.2011 for counter of R1, R5, R9 and R12. R6 reported that he was not filing counter. In view of the order declaring Respondents 2, 3, 4, 7, 8, 10 and 11 exparte, the question of amending the cause title in the Election Petition No. 2 of 2009 does not arise. Therefore, he filed Application No. 2502 of 2011 to dismiss the Application No. 188 of 2011 filed by the substituted Petitioner and that application is still pending. This Hon''ble Court has already set exparte the Respondents 2, 3, 4, 8, 10 and 11 including the 7th Respondent and hence the Application No. 2639 of 2011 is not maintainable.

7.3. When the situation warrants that the petition needs to be prepared meticulously, the same is prepared so casually without following the rules, which clearly reveals the scant reverence of the election Petitioner for the court and the proceedings before it. When it was brought to the notice of the election Petitioner that the name of the 11th Respondent was wrongly mentioned, he ought to have taken sincere steps to see whether the names of the other Respondents are correctly mentioned. Having failed to to do so, he is only ardent to beset the applicant herein relentlessly.

7.4. It is highly mischievous on the part of the substituted Petitioner to state that in the affidavit filed for mending the name of the 7th Respondent, he has stated that the summons to appear was sent to one Thangapandian and further that he had refused to receive the summons, which facts are highly deplorable. It is nowhere said in law that when a summon is meant for one person and another person who also bears a part of name of the summoned person should receive the summon and appear before the Court. The substituted Petitioner states that summons was sent to one Thangapadian who was in no way connected with this proceedings and in fact the summons ought to have been sent to Thangapandi. The substituted Petitioner conceals his defect and accuses a stranger to the proceedings for not receiving the summons. When the deficiencies are apparent on the face of the petition and need to be corrected for further progress of the case, till then, it will not be fair and proper for the first Respondent to file the counter with the defects which are prevalent in the petition. Ignoring this fact, the substituted Petitioner is accusing the applicant herein for having sought time for filing counter.

7.5. When the substituted Petitioner was not aware of the details and names of the contestants and when the petition itself is anomalous, it will be an arduous task for the substituted Petitioner to establish the alleged misconduct committed by the applicant herein, who is the first Respondent in the election petition, which was levelled by a person who was himself not aware of the names of the persons who had contested the election with him and who is now dead and the person who takes forward these proceedings after the demise of the original Petitioner is himself a person with a poor track record and who keeps changing community and religion to suit his convenience and that fomented him to file two affidavits stating two different religious which he belongs to. The statements made by a person of such a doubtful condor should not be taken seriously and further at a latter stage he may even renounce the set of facts furnished now and regenerate another set of facts.

7.6. The dereliction from the side of the substituted Petitioner overtly depicts with what seriousness he wants to pursue with the proceedings and how far he will succeed in his endeavour to establish the alleged misconduct and alleged corrupt practice said to have been committed by the first Respondent. When he had not even acquainted himself with the basic facts regarding the names of contestants, no amount of mollification regarding his negligence in preparing this petition will justify his action, instead of imploring to the Court for permitting him for amendment he has himself concluded the mistake as of not a serious nature and can be corrected without any difficulty and the substituted Petitioner claims it as a matter of right to get it corrected. The substituted Petitioner cannot exonerate himself from the mistakes committed in the petition on the pretext that it was prepared by the deceased Petitioner. He cannot also wash his hands off for the errors which have crept in and if the statements were authentic, he must have taken steps to correct the errors immediately. Hence, the Application No. 2639 of 2011 filed by the substituted Petitioner is liable to be dismissed.

8. First Respondent/election Petitioner has filed a counter, stating as under:

For the application filed by him in Application No. 2639 of 2011, the applicant herein, who is the first Respondent in the said application, has to file his counter. Instead, he filed this application No. 3019 of 2011, seeking to dismiss the Application No. 2639 of 2011 only to drag on the proceedings. The application to correct the mis-description is sustainable. The applicant in this application and his other Application No. 2502 of 2011 failed to include the name of the deceased election Petitioner in the cause title. The mistake in spelling the name of the 7th Respondent is only a typographical error. The first Respondent herein has filed Application No. 2639 of 2011 immediately after the mis-description in describing the name of the 7th Respondent has been pointed out by the applicant herein. Hence, this application is not maintainable.

9. Mr. T.V. Ramanujam, learned Senior Counsel appearing for the applicant in Application Nos. 188 of 2011 and 2639 of 2011/election Petitioner, would contend that the mis-descriptions in the names of Respondents 11 and 7 in the Election Petition viz., Veerapandi instead of Veeradurai and Thangapandian instead of Thangapandi are errors apparent on the face of the record and they are curable defects. He would further contend that the said errors are cosmetic in nature and typographical errors. The quintessence of the learned Senior Counsel is that to avoid technical objections from any quarter, correction in the description of the names of the 11th and 7th Respondents is necessary and, hence, the applications are to be allowed. To substantiate his arguments, the learned Senior Counsel would rely on the following decisions:

(i) Gore Lal Shakya v. Maharaj Singh Yadav and ors :

7. Nothing has been brought to our notice as to whether any counter-affidavit has been filed before the High Court refuting the statement made in the application filed by the Appellant stating that the name of 10th Respondent is correctly mentioned in the body of the petition Sanjiv Kumar; but by typographical mistake the spelling of the name of Sanjiv Kumar has been mentioned as Sanjai Kumar. The High Court has made much about nothing and also made a mountain out of a mole hill. It is very surprising that the first Respondent himself has committed the same typographical mistake in his application taken up before the High Court seeking dismissal of the election petition mentioning the name of "Sanjiv Kumar" at one place as "Sanjai Kumar" and when counsel for the Respondent was confronted with this mistake in his application, he states that it is a typographical mistake. In our considered opinion nothing can adversely be inferred against the Appellant since it is now demonstrably shown that the mistake is committed only in the array of parties that too by a typographical error.

(ii) Umesh Challiyil Vs. K.P. Rajendran, :

12. Both the defects which have been pointed out by the learned Single Judge were too innocuous to have resulted in dismissal of the election petition on the basis of the preliminary objection. The courts have to view whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart the election petition should not be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should contain material facts. Section 86 says that the High Court shall dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. But not of defect of the nature as pointed out by the Respondent would entail dismissal of the election petition. These were the defects, even if the Court has construed them to be of serious nature, at least notice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset.

13. Learned Counsel for the Respondent has tried to justify and support the order of the learned Single Judge and submitted that in fact these objections were raised by the Respondent in his counter-affidavit and the Appellant had sufficient opportunity to have cured them and in that connection, learned Counsel for the Respondent pointed out that the election petition was presented on 22-6-2006 and the first date of hearing was on 30-8-2006. The Appellant should have cured these defects but the same was not done. Therefore, there was no option with the learned Single Judge but to dismiss the election petition. We fail to appreciate this argument of the learned Counsel for the Respondent for the simple reason that how can the Appellant who bona fidely felt that his election petition in all respects is complete will entail such a serious consequence of dismissal of the election petition on such minor omissions. In case the learned Single Judge found that the election petition was not in the format then after recording his finding, the learned Single Judge should have given an opportunity to the Appellant to amend or cure certain defects pointed out by the Court. It may be relevant to mention, these are not the grounds mentioned in Section 86 of the Act for dismissal of the election petition. But nonetheless even if it is to entail serious consequence of dismissal of the election petition for not being properly constituted, then too at least the Appellant should have been given an opportunity to cure these defects and put the election petition in proper format. But the learned Single Judge instead of giving an opportunity has taken the easy course to dismiss the election petition which in our opinion, was not warranted.

(iii) Bhim Sen v. Gopali, 22 ELR 288 (SC):

12. It appears that the petition filed by the Appellant had impleaded Respondent 5, Sheodan Singh, as one of the candidates who contested the election. His father''s name was, however, shown as Ram Sarup when in fact it was Nanak Chand. This clerical mistake was, sought to be corrected by the Appellant by his application presented on 27.07.1957, and the Tribunal allowed the correction to be made. This order of the Tribunal was challenged before the High Court, but the High Court held that in the circumstances the amendment had been rightly allowed. This finding of the High Court is challenged by Mr. Sadhan Gupta on behalf of Respondent 1. He contends that the amendment in question really introduced a new party to the proceedings after limitation had expired, and so the petition of the Appellant should be dismissed on the ground that the contesting party had not been properly impleaded at the outset. We are not impressed by this argument. It is clear that Respondent 5 Sheodan Singh had been impleaded as a constesting candidate and it had been specifically averred that he had secured 4060 valid votes and 327 invalid votes. Thus there was no doubt about the identity of Respondent 5 and no mistake about it either. The mistake crept in the description of the name of Respondent 5''s father and that mistake which was purely clerical was allowed to be corrected. In our opinion, the High Court and the Tribunal were obviously right in holding that the correction thus allowed did not amount to permitting the Appellant to add a new party at all.

(iv) Ram Prasad Sarma Vs. Mani Kumar Subba and Others, :

17. The purpose of the provision to furnish a true copy of the petition is not to frustrate the cause of the Petitioner approaching the Court by adhering strictly to technicalities of little consequence. On the other hand the anxiety is that the Respondent must have a correct idea of the allegations of corrupt practices made against him with some responsibility and that he may not be misled in any material respect by furnishing of a copy of the affidavit which may not be a correct copy having vital variation from the original. It is true that in the matters relating to elections and election petitions, strict compliance with the legal provisions is necessary and full care is to be taken to see that rights of an elected representative are not lightly disturbed and rightly so. But an election petition is not to be thrown at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is substance not form which would matter. If it is permitted otherwise, the returned candidate would only be on the lookout microscopically for any kind of technical lacuna or defect to abort the endeavour of the Petitioner to bring to trial the issues relating to corrupt practices in the elections. The purpose of the law on the point cannot be to allow the returned candidate to avoid the trial of the issues of corrupt practices raised against him on the basis of any little defect which may not result in any vital variation between the original and the true copy so as to have the effect of misleading the returned candidate. As it is, the prevailing situation of elections and practices often said to be adopted now and then and here and there does not always give a very happy picture. Free, fair and fearless elections is an ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities.

21. The only grievance is that the stamp and the name of the Oath Commissioner is not indicated in the true copy of the affidavit. We feel that if it was there it would have been better but absence of stamp and the name of the Oath Commissioner will not be a vital or material deviation from the original nor it may in any manner mislead the returned candidate. Prima facie perusal of the heading of the affidavit and detailed verification of the contents of the paragraphs, as indicated above, would normally lead one to believe that the averments have been made on affidavit. In para 1 of the affidavit there is a specific mention that the Petitioner was acquainted with the facts of the case for the purpose of swearing of the affidavit in support of contention of corrupt practices taken recourse to by Respondent 1 and Respondent 7. In the end the Petitioner signs as "deponent" and he is identified by the Advocate''s Clerk. That being the position, mere omission of indicating the name of the Oath Commissioner or an endorsement in the true copy that the affidavit was attested by an Oath Commissioner bearing his stamp and seal etc. would not be material. Once an averment is there that affidavit was being sworn in support of allegations of corrupt practices and that the Petitioner had put his signature, thereon, prima facie fulfilment of such a legal requirement is adequately reflected even in absence of name and seal etc. of the Oath Commissioner in the true copy.

24. It may be noted that in para 1 of the election petition it has been mentioned that the Respondents were the contesting candidates from 9, Tezpur Parliamentary Constituency, that is to say, that Respondent 11 was also impleaded as one who had contested the election from the said constituency. There was every intention to implead such a person as a Respondent. It may then be noted that along with the election petition, copy of return of election is required to be filed in Form 21-E under Rule 64 of the Conduct of Elections Rules, 1961. It contains the result of the election as well as the list of candidates. The said list is on record as Annexure I to the election petition filed by the Petitioner and the name of Abul Khayer is indicated at Serial No. 7 having contested as an independent candidate. It is thus evident that it is not as if the correct name is not available on the record of the case. Apparently, it seems to be a case of spelling mistake. Instead of Abul, letter ''d'' got added extra hence typed as Abdul in the array of parties and the spelling of Khayer as ''Khyer'' omitting ''a'' after ''kh''. It is to be noted that address of Respondent 11 is also indicated in the petition. It is not disputed that it is the address of the person who contested the election. In this Court there is an office report of service of notice on Respondent 8 prepared on the basis of the report received from the Gauhati High Court. So far as the wrong spelling of Khyer is concerned, it is of little consequence. Both words ''Khyer'' and ''Khayer'' would produce almost the same sound. Technically there may be difference but by way of example some may spell ''Banerjee'' as ''Banerji'' or ''Saksena'' as ''Saxena'' or the like. Therefore such difference in spelling of Khayer is but to be ignored. There is certainly some difference in ''Abul'' and ''Abdul'' but there is ample material on record to indicate that the same person who had contested election was meant to be impleaded e.g. the address of the person, the averment that Respondents 7 to 18 had contested the election as well as the form of election return indicating names of all those who had contested the election and the names with correct spelling is on the record, namely, #Abul Khayer#. The Respondent therefore gets no advantage out of the abovenoted point sought to be made out. The parties have however placed reliance on certain decisions on the point. On behalf of Respondent 1 reliance has been placed on Gore Lal Shakya v. Maharaj Singh Yadav9 wherein Respondent 10 was shown as Sanjay Kumar whereas the correct name should have been Sanjiv Kumar. Similar argument seems to have been advanced that notice was not served on the correct Respondent and the person who ought to have been impleaded, has not been impleaded. The High Court dismissed the petition for non-compliance with Section 82(a) of the Act. This Court upset the decision of the High Court observing that the High Court had made a mountain out of a molehill as it was a mere typographical mistake. Then this Court noted that in the body of the petition at one place his name was indicated as Sanjiv Kumar and at another place his name was indicated as Sanjay Kumar. It is submitted that in the present case no application for correcting the name was moved nor was any written objection filed to indicate that it was a typing error. We feel that absence of any such application will not adversely affect the petition for the reasons we have already indicated earlier. Another case relied upon by the learned Counsel for the Respondent is reported in K. Kamaraja Nadar v. Kunju Thevar10. This is a case relating to non-joinder of necessary parties. We are not concerned here with such a point. This case therefore would be of no help to the Respondent. The learned Counsel for the Appellant relies upon a case reported in Shiv Chand v. Ujagar Singh11 to indicate the approach which the Court may adopt while dealing with a case u/s 86(1) of the Act. It is observed that the test is whether the election petition complies with provisions of Section 82, not whether the election Petitioner has failed to comply with Section 82. The substance of the matter must govern, because hypertechnicality when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat the vital judicial process, namely, investigation into the merits of the case. We find no force in this point too raised by Respondent 1. No other point has been urged.

(v) Kaka Joginder Singh alias Dharti Pakad Vs. K.R. Narayanan, Vice-President of India, :

21. The nature of mistake or defect in the nomination papers of the Respondent, viewed from a different angle, also leads to the same conclusion. The object of the particulars required to be filled in the nomination paper, in accordance with Sub-sections (1) and (2) of Section 5-B of the Act read with Rule 4 and Form 3 of the Rules, is to correctly and unambiguously identify the candidate, and to indicate that the conditions of eligibility for being a candidate at the election are satisfied. The Returning Officer is also required to permit correction of any discrepancies, to remove any ambiguity or misdescription. It is, therefore, clear that unless the defect in the nomination paper or the deficiency therein is of a substantial character, Section 5-E(5) enjoins the Returning Officer not to reject the nomination paper. It is, therefore, obvious that if there be any mistake or defect in the nomination paper which is a mere misdescription of the candidate, but the misdescription is such that it does not mislead anyone, and the identity of the candidate is not in doubt to enable the Returning Officer to perform his duty of scrutinising the nomination paper to find out whether the candidate has been validly nominated, then the mistake, if any, is not of a substantial character.

22. The requirements for a valid nomination in Sub-sections (1) and (2) of Section 5-B are: the nomination by specified number of proposers and seconders, assent of the candidate to the nomination, a certified copy of the entry in the electoral roll showing the candidate to be a registered elector, presentation of the nomination paper completed in the prescribed form within the specified time to the Returning Officer at the specified place, and fulfilment of the conditions of eligibility as a candidate. For this purpose, correct identification of the candidate is necessary. There is not even a remote suggestion in the present case that there was any difficulty or doubt in identifying the Respondent as the candidate nominated by the nomination papers filed for his candidature, due to any mistake in describing the parliamentary constituency corresponding to #94 Palai Assembly Constituency# in which the Respondent was registered as an elector or showing the name of his father #Raman# under the column written as #Name of Guardian# instead of #Name of Father/Mother/Guardian/Husband#. Even the Petitioner was not misled by these defects, and it is for this reason that no such objection was taken by the Petitioner to the nomination of the Respondent even though the Petitioner did raise objection at the time of scrutiny for other reasons.

23. The mistake in mentioning the name of the parliamentary constituency as ''Ottapalam (SC)'' instead of ''Muvattupuzha'' when the assembly constituency in which the Respondent was registered as an elector therein was correctly described as "94 Palai Assembly Constituency" was at best a misnomer which misled no one, not even the Petitioner, and it was, therefore, not a defect of substantial nature. The true test for determining whether a misdescription is a mere misnomer or defect of substantial nature was indicated in Davies v. Elsby Brothers, Ltd.4 as under:

... In English law as a general principle the question is not what the writer of the document intended or meant, but what a reasonable man reading the document would understand it to mean; and that is the test which ought to be applied as a general rule in cases of misnomer " which may embrace a number of other situations apart from misnomer on a writ, for example mistake as to identity in the making of a contract. The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong", then, there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer....

24. Viewed in this manner also, there can be no doubt that the mistake or defect, if any, in the nomination paper of the Respondent was not of a substantial character and, therefore, it could not be a ground to permit rejection of the nomination paper in accordance with Section 5-E(3)(e) of the Act. Had the defect been pointed out by anyone at the time of scrutiny, the Returning Officer would have certainly, and rightly, permitted correction of the same, since it was only a technical defect. However, no one, not even the Petitioner, had any such doubt, as the identity of the Respondent and his eligibility as a candidate was undisputed. For this reason, this objection was not even raised at the time of scrutiny, but only as an afterthought in the election petition.

25. The fact, however, remains that this technical defect crept into the nomination papers of the Respondent in spite of the association of a galaxy of men drawn from the top echelons of several political parties in the filing of his nomination papers. The election petition does serve the purpose of revealing this discrepancy which that galaxy of men completely missed. It is a different matter that the defect is merely technical and not substantial in nature, so that it has no adverse consequence.

(vi) Sethi Roop Lal Vs. Malti Thapar (Mrs) and Others, :

10. The fasciculus of sections appearing in Chapter III of Part VI of the Act lays down the procedure for trial of election petitions. Sub-section (1) of Section 87 thereof provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the CPC ("Code" for short). That necessarily means that Order VI Rule 17 of the Code which relates to amendment of pleadings will afortiori apply to election petitions subject, however, to the provisions of the Act and of any rules made thereunder. Under Order VI Rule 17 of the Code the Court has the power to allow parties to the proceedings to alter or amend their pleadings in such manner and on such terms as may be just and it provides that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. But exercise of such general powers stands curtailed by Section 86(5) of the Act, when amendment is sought for in respect of any election petition based on corrupt practice. Since Section 87 of the Act " and, for that matter, Order VI Rule 17 of the Code " is subject to the provisions of the Act, which necessarily includes Section 86(5), the general power of amendment under the former must yield to the restrictions imposed by the latter.

11. Indubitably, therefore, if the amendment sought for in the instant case related to corrupt practice we might have to consider the same in conformity with Section 86(5) of the Act as interpreted by this Court in the case of F.A. Sapa1 and accept the findings of the learned Judge as recorded in the impugned order; but then, the learned Judge failed to notice that the amendments, the Appellant intends to bring in his election petition, do not relate to any corrupt practice and, therefore, it has to be considered in the light of Section 87, and de hors Section 86(5) of the Act. For the foregoing reasons the impugned order dated May 28, 1993 cannot also be sustained.

(vii) A decision of this Court in A. Lazer v. M.K. Azhagiri and Ors. reported in (2010) 5 CTC 517:

20. One more contention of the Respondents that the Election Petition itself is defective because the name of eleventh Respondent is mentioned as Veerapandi instead of Veeradurai cannot also be sustained. This is so, because, it is only a curable defect. The applicant has taken notice as per the cause title in the Election Petition. The eleventh Respondent received notice in the Election Petition. Since the notice taken on him in the present application returned unserved, paper publication was ordered by this Court and the same was effected in Tamil Daily "Dinamalar" (Madurai Edition) and English Daily "The Hindu" (Madurai Edition) on 05.05.2010 and 04.05.2010 respectively. In addition, the applicant/ a third party can take steps only as per the cause title in the Election Petition and he cannot ask for amendment of Election Petition at this stage. The address of eleventh Respondent is admittedly correct. Hence, it can be treated as sufficient service on the eleventh Respondent.

23. The Election Petition cannot be touched at this stage, in spite of it containing whatever defects. Once the applicant is substituted as per Section 112(3), he may take steps to cure the defects, if any, in accordance with law. Now, the issue to be decided is not whether the Election Petition is defective or not, but, instead, it is only with regard to substitution of the applicant in the Election Petition.

30. A plea has been raised by the first Respondent that the name of eleventh Respondent has been mentioned as Veerapandi instead of Veeradurai and therefore the non-joinder of necessary party would be fatal to the election petition and as such the election petition itself is not maintainable.

31. Technically, there may be some difference, but, it is a matter to be seen on the merits of the election petition. The test is whether the election petition complies with provisions of Section 82. The substance of the matter must govern, because hypertechnicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat the vital judicial process, namely, investigation into the merits of the case. This is the proposition laid down by the Supreme Court in Ram Prasad Sarma Vs. Mani Kumar Subba and Others, . So, the non-joinder of parties as per Section 82 and non-compliance of Section 83(1) that documents are to be accompanied along with the substitution application and the difference in the names of the Respondents are all matters for adjudication in the Election Petition, after allowing the application for substitution.

10. On the contrary, Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the first Respondent in Application Nos. 188 of 2011 and 2639 of 2011/returned candidate, would contend that naming a person wrongly would amount to non-compliance of Section 82 of The Representation of the People Act, 1951; the error crept in the cause title is neither a formal defect nor cosmetic in nature and the said error goes to the root of the matter, as it is not curable. He would further contend that the Respondents 11 and 7 have been set exparte in the Election Petition and, hence, the question of amendment of cause title does not arise. He would cite the following authorities:

(i) K. Kamaraja Nadar Vs. Kunju Thevar and Others, :

29. When we come to the provisions of Part VI of the Act relating to disputes regarding elections, we find that there is no definition given in Section 79 of the expression "contesting candidate", though there are definitions of "candidate" and "returned candidate" to be found therein. An election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in Sections 100(i) and 101 to the Election Commission and a Petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. Where the Petitioner claims such further declaration, he must join as Respondents to his petition all the contesting candidates other than the Petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition. The words "other than the Petitioner" are meant to exclude the Petitioner when he happens to be one of the contesting candidates who has been defeated at the polls and would not apply where the petition is filed for instance by an elector. An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the returning officer in the manner prescribed u/s 38, that is to say, candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed. Such contesting candidates will have to be joined as Respondents to such petition irrespective of the fact that one or more of them had retired from the contest u/s 55-A(2). If the provisions of Section 82 which prescribes who shall be joined as Respondents to the petition are not complied with, the Election Commission is enjoined u/s 85 of the Act to dismiss the petition and similar are the consequences of non-compliance with the provisions of Section 117 relating to deposit of security of costs. If the Election Commission however does not do so and accepts the petition, it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the Respondents and then refer the petition to an election tribunal for trial. Section 90 (3) similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of Section 82 or Section 117 notwithstanding that it has not been dismissed by the Election Commission u/s 85. Section 90 (3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose.

41. We are of opinion that both the Election Tribunal and the High Court were wrong in the view they took. If the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the 2nd Respondent in support of the numerous allegations of corrupt practices attributed by him to the Appellant, his agents or others working on his behalf; examination of a large number of witnesses by or on behalf of the Appellant controverting the allegations made against him; examination of witnesses in support of the recrimination submitted by the Appellant against the 2nd Respondent; and a large number of visits by the Appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the Appellant from his public duty in the various fields of activity including those in the House of the People. It would mean unnecessary harassment and expenses for the Appellant which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal.