Jammu & Kashmir High Court
Harsh Dev Singh vs Balwant Singh Mankotia & Ors on 22 May, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
(THROUGH VIRTUAL MODE)
Reserved on: 11.05.2026
Pronounced on: 22.05.2026
Uploaded on: 22.05.2026
Whether operative part or full
judgment is pronounced:Full
EP No.1/2024
HARSH DEV SINGH ... PETITIONER(S)
Through: - Petitioner in person.
Vs.
BALWANT SINGH MANKOTIA & ORS. ...RESPONDENT(S)
Through: - Mr. Vilakshan Singh, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) I have heard arguments advanced by the petitioner and
learned counsel for the respondent with reference to the
preliminary issue No.III, which reads as under:
“Whether the petitioner has not supplied the
attested true copy of the petition to
respondents No. 10 and 12? If so, to what
effect? OPR”
2) It has been contended by learned counsel for respondent
No.10 that the petitioner has not supplied copy of election petition
attested by him under his own signature certifying it to be a true
copy of the petition to the respondent, thereby committing a
breach of the provisions contained in Section 81(3) of the
Representation of People Act, 1951 (for short “the Act of 1951”).
EP No.01/2024 Page 1 of 9
He has contended that in view of non-adherence to the provisions
contained in Section 81(3) of the Act of 1951, the present petition
is liable to be dismissed in terms of Section 86(1) of the Act of
1951. In order to lend support to his argument, learned counsel
has placed reliance upon the judgment of the Supreme Court in
the case of Sharif-ud-din vs. Abdul Gani Lone, (1980) 1 SCC
403.
3) Per contra, the petitioner has contended that signed copy of
the election petition has been duly furnished to respondent No.10
and, therefore, there has been substantial compliance of the
requirements of Section 81(3) of the Act of 1951and, as such, the
petition cannot be dismissed.
4) Before dealing with the rival contentions of the parties, it
would be apt to notice the provisions contained in Sections 81(3)
and 86(1) of the Act of 1951, which read as under:
81. Presentation of petitions.–
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) Every election petition shall 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 a true copy of the petition.
xxx xxx xxx
xxx xxx xxx
86. Trial of election petitions.–(1) The High Court
shall dismiss an election petition which does not
comply with the provisions of section 81 or section
82 or section 117.
EP No.01/2024 Page 2 of 9
5) From a perusal of the provisions contained in Section 81(3)
quoted above, it is clear that an election petition has to 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 a true copy of the
petition. Section 86(1) of the Act of 1951makes it clear that in case
an election petition does not comply with, inter alia, the
provisions contained in Section 81, the same shall be dismissed,
meaning thereby that the provisions contained in Section 81 are
mandatory in nature. The legislature has clearly provided the
consequences of non-compliance of the provisions contained in
Section 81 of the Act of 1951. Therefore, it has to be presumed that
the said provision is mandatory in nature.
6) Coming to the facts of the present case. It appears that the
petitioner has supplied photocopy of signed election petition to
respondent. The record shows that the election petition and the
affidavits accompanying thereto bear signatures of the petitioner
on each page and photocopies thereof have been furnished to the
respondents. However, the petitioner has neither put in his
original signatures on the photocopy nor has he specifically
mentioned that it is the true copy of the original petition. The
question that arises for determination is as to whether such
omission on the part of the petitioner would entail dismissal of the
election petition or whether supply of photocopy of the signed
petition and the affidavit accompanying thereto would amount to
EP No.01/2024 Page 3 of 9
substantial compliance of the provisions contained in Section
81(3) of the Act of 1951.
7) The Supreme Court has, in the case of Ch. Subbarao vs.
Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027,
held that when there is sufficient and substantial compliance with
the requirements of Section 81(3) of the Act of 1951, the petition
cannot be dismissed. In the said case, the Supreme Court has,
while dealing with a similar situation where the petitioner had
only signed the copy of the election petition without
authenticating the contents of the documents, observed that if the
signature of the petitioner, whose name is set out in the body of
the petition, is appended at the end, surely it authenticates the
contents of the documents.
8) Again, a Constitution Bench of the Supreme Court in
Murarka Radhey Shyam Ram Kumar vs Roop Singh
Rathore & Others 1964 SCR (3) 573 has elaborately dealt
with this aspect of the matter. It was held that 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. The Constitution Bench found as untenable
the contention that since copies of the petition served on the
returned candidate did not contain signatures of the petitioner
below the word petitioner, on the copies of the petition served on
the respondent, they had ceased to be true copies of the original
EP No.01/2024 Page 4 of 9
petition, attracting the consequences of Section 86(1) of the Act.
The relevant observations of the Supreme Court in this regard are
reproduced as under:
“11. We agree with the High Court and the Election
Tribunal that the first defect is not a defect at all. When
every page of the copy served on the appellant was
attested to be a true copy under the signature of the
petitioner, a fresh signature below the word “petitioner”
was not necessary. Sub-section (3) of Section 81 requires
that the copy shall be attested by the petitioner under his
own signature and this was done. As to the second defect,
the question really turns on the true scope and effect of
the word “copy” occurring in sub-section (3) of Section
81. On behalf of the appellant the argument is that sub-
section (3) of Section 81 being mandatory in nature all
the requirements of the sub-section must be strictly
complied with and the word “copy” must be taken to be
an absolutely exact transcript of the original. On behalf of
the respondents the contention is that the word “copy”
means that which comes so near to the original as to give
to every person seeing it the idea created by the original.
Alternatively, the argument is that the last part of sub-
section (3) dealing with a copy is merely directive, and
for this reliance is placed on the decision of this Court in
Kamaraja Nadar v. Kunju Thevar3. We are of the view
that the word “copy” in subsection (3) of Section 81 does
not mean an absolutely exact copy, but means that the
copy shall be so true that nobody can by any possibility
misunderstand it (see Stroud’s judicial Dictionary, 3rd
Edn., Vol. 4, p. 3098). In this view of the matter it is
unnecessary to go into the further question whether any
part of sub-section (3) of Section 81 is merely directory.
Several English decisions were cited at the Bar. The
earliest decision cited to us is the decision in Pocock v.
Mason4 where it was held that the omission of the words
“the” and “by” in the copy of the writ of capias prescribed
by the Schedule 2 W. 4, c. 39 did not invalidate an arrest.
The reason given was thus expressed:
“To ascertain whether or not an unfaithful copy
produces any alteration in the meaning, supposes
an exertion of intellect which it may be
inconvenient to require at the hands of those who
serve the copy. It was to obviate this inconvenience,
that the legislature has given a form, and required
that it should be pursued. Nothing but ordinary
care is necessary for taking the copy.”
In a later decision Sutton v. Mary and Burgess5, the
copy of the writ served on the defendant omitted the
letter “s” in the word “she”. It was held that the omission
was immaterial as it could not mislead anybody. In
Morris v. Smith6 there was a motion to set aside the
service of the writ of summons for irregularity, on the
EP No.01/2024 Page 5 of 9
ground that the defendant being an attorney, he was only
described as of Paper Buildings in the Inner Temple,
London and the addition of “gentleman” was not given. It
was held that the form in the Statute 2 Will. 4, c. 39
Section 1 did not require the addition of the defendant to
be inserted in the writ and it was sufficient to state his
residence. The writ of summons was therefore valid. In
another case in the same volume Cooke v. Vaughan7 it
was held that where a writ of capias described the
defendant by the addition of “gentleman”, but that
addition was omitted in the copy served, the copy was
not a copy of the writ, in compliance with the Statute 2
Will. 4, c. 39, S. 4. On behalf of the respondents a
number of decisions under the Bills of Sale Act, 1878 and
the Amendment Act, 1882 (45 and 46 Vict. c. 43) were
cited. The question in those cases was whether the bill
was “in accordance with the form in the schedule to this
Act annexed” as required by Section 9 of the Bills of Sale
Act 1878, and Amendment Act 1882. In re Hewer. Ex
parte Kahen it was held that a “true copy” of a bill of sale
within the Bills of Sale Act 1878, Section 10, sub-section
2, must not necessarily be an exact copy, so long as any
errors or omissions in the copy filed are merely clerical
and of such a nature that no one would be thereby
misled. The same view was expressed in several other
decisions and it is unnecessary to refer to them all.
Having regard to the provisions of Part VI of the Act, we
are of the view that the word “copy” does not mean an
absolutely exact copy. It means a copy so true that
nobody can by any possibility misunderstand it. The test
whether the copy is a true one is whether any variation
from the original is calculated to mislead an ordinary
person. Applying that test we have come to the
conclusion that the defects complained of with regard to
Election Petition No. 269 of 1962 were not such as to
mislead the appellant; therefore there was no failure to
comply with the last part of sub-section (3) of Section 81.
In that view of the matter sub-section (3) of Section 90
was not attracted and there was no question of
dismissing the election petition under that sub-section by
reason of any failure to comply with the provisions of
Section 81. This disposes of the second preliminary
objection raised before us.”
9) From the foregoing analysis of the legal position, it comes to
the fore that defects complained of in the copy provided to the
returned candidate by the Election Commission should be of such
a nature as could have misled the returned candidate about the
real contents of the election petition. While it is necessary to
ensure strict enforcement of the provisions of the Act of 1951, we
EP No.01/2024 Page 6 of 9
cannot treat every requirement in literal sense in a manner to
defeat the purpose for which the provisions of said act have been
incorporated.
10) The Supreme Court, in case of J.M. Jacob vs. C. Poulose
and others, (1999) 4 SCC 274, has clearly held that non-
compliance with the provisions contained in Section 83(1) of the
Act is a curable defect, which will not attract Section 86(1) of the
Act. It has been further held that true copy of the election petition
within the meaning of Section 81(3) does not mean absolutely
exact copy, but it is one which no reasonable person can
misunderstand as not being the same as the original. It has been
observed that copy should not contain any substantial variation of
vital nature that can mislead such person to understand and meet
the charges. Relying upon the aforesaid judgment of the Supreme
Court, High Court of Madhya Pradesh has, in the case of Dhruv
Narayan Singh vs. Arif Masood, [Election Petition No. 4,
decided on 14.08.2024], while dealing with a similar situation,
where the respondent therein was furnished with photocopy of
election petition by the petitioner, held that there was substantial
compliance to the provisions of Section 81(3) of the Act 1951.
11) In the present case, the petitioner has furnished photocopy
of the election petition to the respondent. The copy furnished to
the respondent does not contain original signatures of the
petitioner nor does it mention the words „true copy‟ but it is not
EP No.01/2024 Page 7 of 9
the case of the respondent that photocopy furnished to him is not
the exact copy of the election petition that has been filed by the
petitioner before this Court. It is also not the case of the
respondent that he has been misled as to the real contents of the
election petition by furnishing the photocopy of the election
petition to him. Therefore, in the facts and circumstances of the
case, it can safely be stated that the petitioner by supplying exact
photocopy of the election petition to the respondent has made
substantial compliance to the provisions contained 81(3) of the
Act of 1951.
12) In Sharif-ud-din‘s case (supra), which has been relied
upon by learned counsel for the respondent, the copy of the
election petition was signed by the Advocate and not by the
petitioner. It is in those circumstances that the Supreme Court
held that the petitioner had not complied with the provisions
contained in Section 89(3) of the J&K Representation of the
People Act, 1957, which is in pari-materia with Section 81(3) of
the Act of the 1951. In the present case, there are no allegations of
tampering with the pleadings or with the contents, therefore, the
ratio laid down in the aforesaid case is not applicable to the facts
of the present case.
13) For what has been discussed hereinbefore, issue No.III is
not proved and the same is decided in favour of the petitioner and
against the respondents.
EP No.01/2024 Page 8 of 9
14) The contesting parties are now directed to file their
respective lists of witnesses within fifteen days from today. The
petitioner shall file his own affidavit and the affidavits of his
witnesses by way of evidence by next date of hearing after
providing advance copies thereof to learned counsel for the
respondent. He shall also deposit the diet expenses in respect of
the witnesses who are sought to be summoned through the
process of the court, within a period of fifteen days.
15) List this petition for further proceedings on 07.07.2026.
(Sanjay Dhar)
Judge
Srinagar,
22.05.2026
“Bhat Altaf-Secretary”
Whether the JUDGMENT is reportable: YES/NO
KARAM CHAND
2026.05.22 16:00
EP No.01/2024
I attest to the accuracy and
integrity of this document
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