Holding

The petition’s pleadings were insufficient; without a specific allegation invoking Rules 39(2)(b) and 56(2)(b), the evidence cannot be considered, and the use of a wrong instrument supplied by the polling officer does not invalidate the votes, so no recount is ordered.

Summary

In the Kerala Legislative Assembly election for Kunnathunadu, respondent No.1 was declared elected by a margin of 60 votes. The appellant filed an election petition alleging double voting, impersonation, and that about 300 votes were cast using a wrong instrument for marking ballot papers, seeking a recount. The High Court dismissed the petition, holding that the pleadings did not specifically invoke Rules 39(2)(b) and 56(2)(b) of the Conduct of Election Rules, 1961, and therefore the evidence of the alleged wrong instrument could not be considered. On appeal, the Supreme Court affirmed that without a specific pleading raising the statutory violation, no issue arises and the evidence is inadmissible; moreover, when the polling officer mistakenly supplies a wrong stamp, the voter is not at fault and the ballot papers remain valid. The Court also ruled that the small margin of victory is irrelevant absent a proven error affecting the result. Consequently, the appeal was dismissed.

Issues considered

The election petition must specifically plead a violation of Rules 39(2)(b) and 56(2)(b) of the Conduct of Election Rules, 1961 to raise that issue.
Whether evidence of the use of a wrong instrument for marking ballot papers can be admitted when the petition does not contain a specific pleading on that ground.
Whether the use of a wrong instrument supplied by a polling officer invalidates the ballot papers or breaches the secrecy of voting.
Whether the narrow margin of victory (60 votes) alone justifies a recount in the absence of proven irregularities.
Whether the other alleged irregularities (mixing, sorting, bundling of ballot papers) are sufficient to warrant a recount.

Legislation cited

Conduct of Election Rules, 1961s. Rule 39(2)(b), s. Rule 56(2)(b)
Representation of the People Act, 1951s. 62(1), s. 62(3), s. 62(4), s. 81(3), s. 83(1), s. 83(2), s. 86(1)

Subjects

election petitionrecountConduct of Election Rulesballot paper markingwrong instrumentsecrecy of votingpleading sufficiencymargin of votesirregularities

Judgment

A T.H. MUSTHAFFA
v.
M.P. VARGHESE AND ORS.

SEPTEMBER 23, 1999

B [DR. A.S. ANAND, C.J., S. RAJENDRA BABU AND
R.C. LAHOTI, JJ.]

Election:

C Election Petition.,.....Pleadings-Insufficiency of-Assembly Elec-
tions-Counting of votes--lrregualarities-Demand for recounting-Filing of
election petition-Trial-Evidence adduced that wrong instrument was sup-
plied. for exercising preference-No such pleadings in the petition-Effect
of-Held, evidence cannot be looked into unless pleadings contain necessary
D foundation-High Court justified in holding that the pleadinffe were insuffi-
cient to order recount-Conduct of Election Rules, 1961-Rules 39(2) (b) and
56(2)(b)-Representation of People Act, 1951.

Election-Ballot papers-Marking of-Supply of wrong instrument-Ef-
fect of-Held, if the instrument other than the one intended for marking ballot
E papers is supplied, by mistake by Polling Officei, ballot papers are not liable
to be rejected-Conduct of Election Rules,- 1961-Rules 39 and 56.

Electfon--Ballot papers-Marking of-Use of wrong instrument-Dis-
tinguished marking by voters-Maintainance of secrecy of voters-Violation
of-Held, when all the voters in ti polling station exercised their votes with the
F same wrong instrument, there is no violation of secrecy in voting-Conduct of
Election Ru/es-1961, Rules 39 and 56.

Election-Allegation of Irregularities-Smallness of margin-Relevancy
of-Held, mere smallness of margin of votes not relevant unless error indi-
G cated in pleadings and evidence.

In the Kerala Legislative Assembly Elections, appellant and respon-
dents contested the election. Respondent no. 1 was declared elected by a_
margin of 60 votes. Appellant's application for recount was rejected by
Returning Officer. Thereafter, appellant filed an Election Petition before -
H the High Court raising several irregularities. High Court directed the
162
T.H. MUSTHAFFA v. M.P. VARGHESE 163

parties to go for trial. During trial, appellant adduced evidence to the A
effect that wrong instrument had been supplied to the voters in two polling
stations for exercising their preference. High Court held that there was .
no pleading in the petition regarding use of wrong instrument to attract
Rules 39(2)(b) and 56(2)(b) of the conduct of Election Rules, 1961 nor
any reference in the relevant pamphlet issued by the election commission.
Thus, the High Court dismissed the Election Petition. Hence the present
B
appeal.

On behalf of appellant it was contended that the fact that votes in
the two polling stations had been cast by using a wrong instrument was
not in dispute and was clearly admitted by the Returning Officer in his c
evidence and, therefore, even in the absence of an appropriate pleading
in that· regard the evidence could be looked into; that the intention of
Rules 39 and 56 of the Rules was to maintain the secrecy in voting and
when the ballot papers were marked with a distinguishing mark by the
voters .it would certainly be possible to identify the voters.
D
Dismissing the appeal, the Court

HELD : 1.1. High Court was justified in holding foat the allegations
contained in the Election Petition and evidence adduced were not suffi-
cient to warrant recount or inspection of the b11llot papers. [173-8] E
1.2. If the pleadings in the petition did not contain the necessary
foundation for raising an appropriate issue, the same cannot go to trial.
Any amount of evidence in that regard, however excellent the same may be,
will be futile. In the instant case, the pleading raised does not refer to either
Rule 39 or Rule 56 of the conduct of Election Rules, 1961 much less to the F
'pamphlet showing illustrative cases of valid and invalid postal and ordi-
nary ballot papers' issued by the Election Commission, nor any specific
allegations are found in the case. So far as the evidence that had been
adduced in the case is concerned, it need not have been looked at by the
trial Judge in the absence of appropriate pleadings in that regard. Unless G
the appellant had put forth his case in the pleadings and the respondents
are put on notice, the respondents cannot make an admission at all and
there is no such admission in the course of pleadings. [169-H; 169-C; E; GJ

2. If the relevant Rules 39 and 56(2)(b) of the Rules is read with
the instructions given at clause lOF in the Hand book for the candidates, H
164 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A it will be clear that the voter will record his vote by stamping a mark on
the ballot paper with the rubber stamp supplied to him by one of the
Polling Officers. In the instant case admittedly, it is the polling officer
who had supplied the instrument for marking the ballot paper. It is not
a case where a voter had made use of an instrument which was not
B supplied to him for the purpose of marking his preference, but one where
preferen::e was exercised with the instrument supplied to him for the
purpose and, therefore, there is no violation of the Rules in marking the
ballot papers. [170-D; E; F]

Ram Avtar Singh Bhadauria v. Ram Gopal Singh & Ors., [1976] 1 SCR
C 191 and Era Sezhiyan v. T.R. Batu, [1990] Supp. 3 SCC 22, relied on.

Hari Vishnu v. Ahmad lshaque, AIR (1955) SC 233 and Manni Lal
v. Pannai Lal, AIR (1971) SC 330, referred to.

3. The Returning Officer has categorically stated in his_ testimony
D that almost all the voters in the two polling stations marked their votes
using the wrong instrument. Thus, there is no violation of secrecy of voting
under Rules 39 and 56 of the Rules. [172-F; GJ

4. Mere smallness of margin of votes by which the election is decided
is irrelevant. However, in a given case on the totality of pleadings and
E evidence, smallness of margin may gain importance but not in the instant
case. In the instant case, the pleadings do not indicate the errors made
either with reference to number of ballot papers or table or round in which
such mistakes occured. Except to make vague statements, the appellant has
not either pleaded or given any testimony through witnesses. [173-D; E]
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5036 of
1998.

From the Judgment and Order dated 19.5.98 of the Kerala High
Court in E.P. No. 1of1996.
G
E.M.S. Anam for the Appellant.

K.K. Venugopal, Shahid Rizvi, Ms. Rahana V.M. and G. Prakash for
the Respondents.

H The Judgment of the Court was delivered by
T.H. MUSTHAFFA v. M.P. VARGHESE [RAJENDRA BABU, J.] 165

RAJENDRA BABU, J. Elections were held on April 27, 1996 to the A
Kerala Legislative Assembly. The appellant and respondents nos. 1 to 19
contested in the said election from Kunnathunadu No. 78 Assembly Con-
stituency. Counting took place on May 8 and 9, 1996. Appellant secured
49,974 votes, while respondent no. 1 secured 50,034 votes. Thus respondent
no. 1 was declared elected by a margin of60 votes. Before the declaration
of the result the appellant made an application for recount on several
B
grounds. The Returning Officer rejected the said application. The appel-
lant filed another application styled as "Review Application" which was
also rejected. The appellant, thereafter, filed an Election Petition before
the High Court of Kerala. The High Court dismissed the said Election
Petition. Hence, this appeal. c
The principal allegations raised by the appellant m the Election
Petition are as follows :

(i) Votes cast by 36 persons (a list of names and other particulars
of the said 36 persons was produced as Annexure-5 to the D
election petition) voted twice in either the same Constituency
of Kunnathunadu or other constituencies. The votes cast by
them are void under Section 62(3) and (4) of the Act. All the
36 persons have voted for the respondent.
E
(ii) In addition to the above 36, 17 persons have voted in two
polling stations. Their names appeared in electoral rolls of
two polling stations of the same Kunnathunadu Constituency.
A list of the names and other particulars of the said 17
persons was attached as Annexure-5(a) to the Election Peti-
tion. F

(iii) 12 persons (whose names and particulars were given An-
nexure-6) are not voters of this constituency, their names
having been deleted from the final voters list but they have
voted in Polling Station Nos. 195 and 158 taking advantage G
of the fact that their names found a place in the original voters
list.

(iv) Annexure-7 is a list of the names, addresses etc. of 56 persons
who are employees of Kitex Ltd., an industrial unit in the
constituency and who are voters in Booth nos. 194, 195 etc. H
166 SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R.

A in the constituency. They are natives of far away places and
were not in Kunnathunada Constituency during the election
including the polling day so as to cast their votes due to the
long day off of the factory. However their votes are seen as
cast by impersonation. These voters are invalid under Sec.
62( 1) of the Act.
B
(v) About 300 votes are cast in violation of Rules 39(2)(b) and
56(2)((b) of the Conduct of Election Rules, 1961, in as much
as in the polling booths at Puttannoor school and Varikoli
school etc. in Vadavucode-Puthencruz Panchayat about 300
c voters voted using an instrument other than the arrow cross
mark stamp prescribed by the Election Commission. The said
votes are invalid.

(vi) 5633 votes were wrongly declared invalid, majority of which
were cast in favour of the Election Petitioner, and
D
(vii) There are various other irregularities in mixing, sorting and
bundling of the ballot papers contrary to Rules and instruc-
tions issued by the Election Commission.

E Respondent no. l in the written statement raised certain preliminary
points as to non-compliance of Section 81 (3) of the Representation of
People Act, 1951 [hereinafter referred to as 'the R.P. Act']. He also raised
objections as to the manner in which the signature has been put and the
verification made in the petition in violation of Section 83(1) and (2) of the
R.P. Act. He contended that the entire counting process had been
F conducted legally, regularly and correctly. He denied the allegation that
the Counting Supervisor and the Counting Assistants were pro-left minded
and indulged iii manipulations. He contended that the facilities provided
in the Counting Centres were adequate with full opportunity to the
counting agents of the candidates to observe or scrupulously watch the
G scrutiny of the ballot papers. He claimed that the ballot papers in favour
of the candidates were accurately bundled with 25 ballots in each of the
bundles and not even a single ballot paper of the appellant was bundled
with that of the respondent. He contended that test checking had been
done by the Ret.urning Officer in accordance with the instructions in the
H Hand Book. He asserted that there was no impersonation in voting, or any
T.H. MUSTHAFFA v. M.P. VARGHESE [RATENDRA BABU, J.] 167

of them had voted twice either in Kunnathunada Constituency or A
elsewhere.

On these pleadings 17 issues have been raised. A; regards Issues
Nos. 1, 2, 3, 4 and 5 pertaining to preliminary points raised by respondent
No. 1, the High Court held that the Election Petition was not liable to be
rejected for non-compliance with Section 86(1) of the R·.P. Act and the B
parties were directed to go for trial.
,-
67 witnesses were examined on behalf of the petitioners, while on
behalf of respondent No. 1, he examined himself as sole witness. The
-
learned Judge in the course of the order recorded as under : C

"Issue Nos. 7, 8, 9, 10, 11, 12 and 13: Counselfor the petitioner
Shri K. Ramakumar fairly conceded that the petitioner was not
successful in his attempt to prove that more than 60 votes were
invalid on account of double voting, voting by ineligible persons,
impersonation, etc. and hence he is not pressing those issues. D
According to him, at the most the invalid votes would come to only
~·
54 and as it has not reached 60, the margin by which the first
respondent was declared elected, there is no useful purpose in
considering the points which arise for consideration on the basis
of the above issues. So, recording the submission, the issues are E
answered against the petitioner."

Thus the principal issue that remains for consideration is Issue No.
6 and other issues 14 to 17 are consequential to the finding to be recorded
on Issue No. 6. The averments contained in the Election Petition are as
follows : F

"Paragraph 2

........ Upon such announcement the petitioner who was present at
the counting station submitted a petition requesting a recounting
on the basis of several allegations of manipulations in the sorting G
and bundling of votes, in the wrong acceptance of invalid votes
polled for the 1st respondent as valid, the rejection of valid votes
polled for the petitioner as invalid, irregularities committed by the
~-·
Counting Supervisors and Counting Assistants, the absence of test
checking of the bundles of 25 of all the candidates and several H
168 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A other grounds which has caused error in the announcement of the
number of votes of each candidate ... "

"Paragraph 4

.... .In several instances votes which were invalid as per the instruc-
8 lions issued by the Election Commission in a pamphlet showing
illustrative cases of valid and invalid papers were honoured in the

- breach to favour the 1st respondent."

In the course of the trial evidence was adduced to the effect that the
instrument supplied by the Election Commission for the purpose of
c exercising the preference of a voter is the arrow cross mark rubber stamp
in all polling stations but in two of the polling stations at Varikole school c ~'
I

and Koothmannoor school, votes had been cast by using the instrument
meant for th~ polling officials for making distinguishing mark of the polling l
station. Thus a wrong instrument had been used in these two pqlling
D stations. The Returning Officer (P.W. 46) admitted in his deposition .before
the High Court that the Polling Officers had, by mistake, handed over the 1

l
wrong seal to the voters for' exercising their preference. Reliance was
placed on 'A Pamphlet Showing Illustrative Cases of Valid and Invalid
Postal and Ordinary Ballot Papers' issued by the Election Commission of
E India in 1996. It is indicated therein as illustrations II and III in respect of
'Ordinary Ballot Papers Invalid Cases' at pages 24 and 25 to treat a ballot
paper containing a mark not made with instrument supplied to be treated
'
as 'invalid' and to be put in the 'doubtful' bundle by the Counting Party
and rejected by the Returning Officer.
F The learned trial Judge adverted to the pleadings of the case and
noticed that there is no plea in the entire election petiti~ as to using a
wrong instrument for the purpose of expressing preference by the voters
or that an instrument to be used for distinguishing ma& of the polling
station had been used instead of arrow cross mark rubber stamp, nor was

~
G any reference made to the pamphlet issued by the Election Commission
thereby putting the respondent on ·notice thereof. The learned Judge,

~
therefore, found that the pleading was insufficient in election petition to
base a claim to attract Rules 39(2)(b) and 56(2)(1:>) of the Conduct of
Election Rules, 1961 [for short 'the Rules']. In the absence of any pleading
H regarding the violation of Rules 39(2)(b) and 56(2)(b) of the Rules in the
T.H. MUSTHAFFA v. M.P. VARGHESE [RAJ END RA BABU, J. J 169

course of the election petition with reference to the facts alleged therein, A
no issue could arise on that aspect of the matter.

The learned counsel for the appellant submitted that the claim for
recount was based on two grounds. Firstly, violation of Rules 39(2)(b) and
56(2)(b) inasmuch as in the polling booths at Varikole school and Kooth-
mannoor school instrument other than the arrow cross mark rubber stamp
B
had not been used contrary to the one prescribed by the Election Commis-
sion and secondly, there are various other irregularities such as wrong
mixing, sorting and bundling of ballot papers.

The pleading raised in the case docs not refer to either Rule 39 or c
56 of the Rules much less to the 'pamphlet showing illustrative cases of
valid and invalid postal and ordinary ballot papers' issued by the Election
Commission of India, nor any specific allegations are found in the case.
The allegation made in the course of the petition is that there is wrong
acceptance of invalid votes polled for respondent no. 1. It is not made clear D
as to how many votes are liable to be rejected for using wrong instrument
by the voters for expressing their preference. There is no further indication
as to how many of such votes had been polled in favour of respondent No.
1 so as to materially affect the result of the election. In the absence of such
plea the learned Judge could not have granted the relief of recount.
Therefore, the view taken by the High Court that the pleadings are insuf- E
ficient to order recount is perfectly in order. So far as the evidence that
had been adduced in the case is concerned, it need not have been looked
at by the learned Judge in the absence of appropriate pleadings in that
regard. However, Shri E.M.S. Anam, the learned counsel for the appellant,
submitted that the fact that votes in the two polling stations at Varikolc F
school and Koothmannoor school had been cast by using a wrong instru-
ment was not in dispute and the evidence of the Returning Officer clearly

1 indicated the use of the wrong instrument in the two polling stations which
amounted to an admission in the case and, therefore, even in the absence
of an appropriate pleading in that regard the evidence could be looked at.
We fail to appreciate this argument. Unless the appellant had put forth his G
case in the pleading and the respondents are put on notice, the respondents
cannot make an admission at all and there is no such admission in the
course of the pleadings. If the pleadings did not contain the necessary
foundation for raising an appropriate issue, the same cannot go to trial.
Any amount of evidence in that regard, however excellent the same may H
170 SUPREME COURT REPORTS [1999] SVPP. 3 S.C.R.

A be, will be futile. Therefore, the learned counsel is not justified in making
the said submission and the same is rejected. The learned Judge noticed
that the appellant, though had raised objection in this regard in the
application for recount, did not reiterate the same in second application
much less any averment is made in the petition. The learned Judge held,
B in our view, rightly that there is no pleading in this regard and the evidence
adduced cannot be looked into as no issue thereto arises.

The learned Judge did not, however, rest his decision on that basis
but examined the scope of Rules 39(2)(b) and 56(2)(b) of the Rules. After
adverting to decisions in Hari Vishnu v. Ahmad Ishaque, AIR (1955) SC
C 233; Manni Lal v. Pannai Lal, AIR (1971) SC 330; and Era Sezhiyan v. T.R.
Balu, [1990] Supp. 3 SCC 22, the learned Judge came to the conclusion
that the Rules are mandatory and held that when the marking of the ballot
papers is made by an instrument other than the one supplied for the
purpose it will invalidate the ballot papers. While considering question
D whether the marking of the ballots in this case is made otherwise than by
the instrument supplied for the purpose, the learned Judge took the view
that Rules 39(2)(b) and 56(2)(b) of the Rules should be read with clause
lOF of the "Handbook for Candidates" under the heading "Marking
System· of Voting" and concluded that a voter has no control over the
instrument supplied to him and when a wrong instrument is handed over
E to him by the Polling Officer, he will naturally exercise his preference with
the aid of that instrument and in such cases he cannot be found fault with.
The learned Judge made it clear that the present is not a case where a
voter had made use of an instrument which was not supplied to him for
the purpose of marking his preference, but one where preference was
F exercised with the instrument supplied to him for the purpose and, there-
fore, there is no violation of the Rules in marking the ballot papers.

The learned Judge also took note of the fact that the evidence of ,
Returning Officer (P. W. 46) discloses that in respect of two polling stations '
in question wrong markings were done with a wrong instrument in the votes
G polled in favour of almost all the candidates and such mistake was on the
part of the Polling Officers in handing over a wrong instrument for marking
a vote. All the candidates had taken advantage of votes having been cast
in their favour by using a wrong instrument and did not raise any objection.
Therefore, he took those votes lo be valid. On this analysis of the evidence
H the learned Judge held that no objection was taken to the same at the
T.H. MUSTHAFFA v. M.P. VARGHESE [RAJENDRA BABU, J.] 171

time of counting or even subsequently when the appellant filed second A
petition for recounting.

Shri E.M .S. Anam, learned counsel for the appellant, relied on the
.observations of this Court in Ram Autar Singh Bhadauria v. Ram Gopal •
Singh & Ors., (1976] 1 SCR 191, to the effect that once it is established that B
the fault specified in Rule 56(2)(a) or (b) of the Rules has been committed,
there is no option left with the Returning Officer but to reject the faulty
ballot paper. He further submitted that even if such defect is caused by
mistake or failure of the polling officer or members of staff, the Returning
Officer was bound to reject the ballot paper on the ground of such defect.
It is no doubt true that at the first blush one is impressed with this C
argument appearing to derive support from the observations made in that
decision. However, a closer scrutiny of the said decision will unveil the
spell. The facts in that case reveal that 41 ballot papers were alleged to
have been rejected on the ground that elector's choice was expressed
through a wrong instrument. Dealing with this aspect of the matter, this D
Court observed that the court had to apply its mind as to whether
these facts were sufficient to attract Rule 56(2)(b) of the Rules and to do
so had to consider two questions : (i) Was the stamping instrument with
which these 41 electors 'marked' the ballot papers, given to them by the
Presiding Officer or any member of his staff? (ii) If so, could these ballot
papers be deemed to have been marked with "the instrument supplied for E
the purpose" within the contemplation of Rules 39(2)(b) and 56(2)(b)?
Although certain observations were made in regard to the mandatory
nature of the provisions of Rules 39 and 56(2)(b), still ultimately this Court
remanded the matter for consideration of these two questions and stated
that if both these issues are answered in the affirmative, then and only then, F
the trial Judge may proceed to inspection and recount of these 41 votes
referred to earlier. Therefore, the contention put forth on behalf of the
appellant in this case that the mere fact of certain ballot papers have been
marked with the wrong instrument would not by itself lead to the con-
clusion that such ballot papers are liable to be rejected unless the two
questions raised in Ram Autar (supra) to which we have adverted to above G
are answered.

On the question whether the stamping instrument with which the
ballot papers are marked in the two polling stations are given by the Polling
Officer or any member of his staff, the answer is given by the learned Judge H
172 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A in the affirmative, on analysis of the evidence and particularly from what
has been stated by the Returning Officer who was examined in the case.
Therefore, the learned Judge proceeded to consider the next" question
whether such instrument could have been deemed to have been supplied
for the purpose of marking ballot papers. The learned Judge took the view
on the admission made by the Returning Officer that the said instrument
B was supplied to the electors for that purpose by the officers by mistake.
This question again arose for consideration in the decision of this Court in
Era Sezhiyan v. T.R. Batu, (supra), in which this Court again took the view
that if the instrument supplied to the voters, though mistakenly, was other
than the one intended for marking the ballot papers, the instrument must
C be deemed to have been supplied by the officers concerned for the purpose
of marking the ballot papers. If we read the relevant Rules 39 and 56(2)(b)
of the Rules with the instructions given at clause lOF in the Handbook for
the Candidates it will be clear that the voter will record his vote by
stamping a mark on the ballot paper with the rubber stamp supplied to
him by one of the polling officers. In this case, admittedly, it is the polling
D officer who had supplied the instrument for marking the ballot paper. It is
thus clear that the appellant cannot take advantage of the mistake, if any,
in supplying the instrument for marking the ballot papers.

The next argument advanced by the learned counsel for the appellant
is that the intention of Rules 39 and 56 of the Rules is to maintain the
E secrecy in voting and when the ballot papers are marked with a distinguish-
ing mark by the voters it would certainly be possible to identify the voters.
If the appellant contends that about 100 voters cast their votes using 'the
wrong instrument, respondent no.1 would put that figure at 300 in the two
polling stations. The appellant and respondent no.1 appear to have made
F only a guess work and have not laid any foundation in the pleadings or by
way of evidence to draw such an inference. On the other hand, the
Returning Officer is categorical in his testimony that almost all the voters
in the two polling stations marked their votes using the wrong instrument.
If all the voters in the two polling stations had marked in the manner stated
by the Returning Officer, and we have no reason to doubt the correctness
G of his statement, the whole case, as sought to be set up by the appellant as
to violation of secrecy in voting, falls to ground. Thus, none of the argu-
ments raised on behalf of the appellant based on Rules 39 and 56 of the
Rules are tenable and they stand rejected.

H After adverting to various principles as enunciated by this Court in
T.H. MUSTHAFFAv. M.P. VARGHESE [RAJENDRABABU, J.] 173

various decisions regarding recount, the learned Judge exami~ed the case A
put forth by the appella_nt as to the various irregularities committed in the
course of counting. The· first irregularity pointed out is non-observance of
the requirement that 5 per cent of the total number of bundles of valid
ballot pap·ers of different contesting candidates should be counted again at
the table of the Returning Officer by making selection of 5 per cent of
ballot papers in such a manner that it contains bundles pertaining to
B
different contesting candidates. The evidence of the Returning Officer is
to the contrary. The learned Judge believed him and held that test of
checking/random checking cannot be stated to have been not done. He
held that the averments in the pleadings or evidence as to other ir-
regularities alleged regarding mixing, sorting and bundling of ballot papers C
were very vague and no weight could be attached to the same. Thus, the
High Court concluded that the allegations contained in the election peti-
tion and evidence adduced were not sufficient to warrant recount or
inspection of the ballot papers.

The learned counsel for the appellant in spite of his strenuous efforts D
is unable to point out any error in the reasoning or conclusion in the
judgment under appeal as to laying any foundation for recount. Mere
smallness of margin of votes by which the election is decided is irrelevant.
Of course, in a given case on the totality of pleadings and evidence,
smallness of margin may gain importance but not in this case. The plead- E
ings do not indicate the errors made either with reference to number of
ballot papers or table or round in which such mistakes occurred. Except
to make vague statements, the appellant has not either pleaded or given
any testimony through witnesses. Hence the appeal is liable to be dis-
missed.
F
In the result, this appeal stands dismissed but in the circumstances
of the case the parties shall bear their respective costs in this appeal.

S.V.K. Appeal dismissed.