P. MALAICHAMI versus M. ANDI AMBALAM & ORS.

Citation: [1973] 3 S.C.R. 1016 · Decided: 18-04-1973 · Supreme Court of India · Bench: D.G. PALEKAR · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1016 
P.MALAICHAMI 
v. 
M. ANDI AMBALAM & ORS. 
A.prll 18, .1973 
[D. G. PALB!Wl AND A. ALAGIB.!SWAMI, JJ.] 
RtpreHntatlon of PIOplt's A.ct, Sec. 91 
Rtcrimllratlon pttltlon-
NecUllty of-R.espclndtnt challenging 11ectlon of appellant and 111kl"6 
d1c/aratlon of el1ctlon hlmstlf-A.ppellant nDl fillng Rtcrlmlnotlon peti-
tion u/• 91-In general recount valid votts cast In favour of appt/lanr 
cannot bf tizken account fur non-compliance of sec. 91-High Court 
would haVe no jurisdiction. 
'Jbe respondent filed an election petition, not only questionipg 
the 
election of the appellant but . also claiming the seat for himself, allegin$ 
infraction of the Oonduct of Electiop Rules. Accordingly, he 
praye<t 
for recounting of the votes and for declarations that 
he was 
duly 
elected Bild that the election of the appellant was void. 1be appellant 
in bis counter affidavit denied all the allegations ;., the petition. How-
ever, the appellllllt did J>Ot file any Recrimination application u/s 97 of 
the Act. 'Ibe respondent filed an interlocutory epplication for directing 
a scrutiny end recounting of all the votes. 'Ibe evidence waa duly re-
corded and the learned Judge of the High Court eventually passed an 
order on various groUJ>ds for recount of the votes. 
As a result of the 
recount, It was finally found that the majority of 127 votes by which 
tho appellant had been declered elected was reduced to 75 votes. 
'Ibe respondent urged before the High Court that in a case where 
the election petitioner had applied not merely for setting 
aside 
the 
election of the successful candidate but alao for declaril:lg himself (the 
defeated candidate) as elected, it was the duty of the successful candi-
date to have filed a Recrimination application u/s 97 of the Act. 'Ibe 
High Court took the view that in the absence 
of the 
Recrimination 
petition u/ s 97 the appellant was not entitled to question any 
votes 
which might have been improperly received on behalf of the respondent. 
Consequently, the High Court found that 
leaving_ out 
of 
account 
votes improperly received on behalf of the respondept and taking into 
account only the votes which ought to have gone to the respondent 
which had been improperly rejected, the respondent bad secured 96 votes 
more than the appellant and declared him elected, 
. On e.ppeal to this OJurt th~ appellant made the followinJ,:. submis-
SIODS : (1) Sec. 97 has no application to a case where a prayer is fo-
total count and re-scrutiny; 'ii) Sec. 97 has no application 
to 
the 
present case where the returned candidate let in or did not have ro let 
i,n any evidence on any single vote all of which were produced 
and 
tendered in· evidence by the election 
petitioner 
notwithstanding 
the 
n!spondent·s protest; iii) Since am case has been made out in respect 
of individual votes 111!<1 no finding given for inspecting individual votes 
liie petitioner would not be entitled to the benefit of the de~ision ;,; 
Jabar Slngh'a C"1e '[(19614) 6 S.C.R. 54] and his .ri$fit is only to a 
gener_al .recount or none at all; (iv) 'The respondent " estopped from 
questiorung the result of the recount because of mutual 
concessions; 
( v) The present case is wholly different from the one in Johar Singh v' 
Genda Lal and the whole question should be reconsidered by a large; 
A 
•
B 
c 
D 
E 
F 
G 
H 
J 
A 
B 
c 
D 
E 
F 
G 
P, MALAICHAMI v. M. AMBALAM (Alagiriswamy, J.) 
1017 
bench in view of Justice Rajagopala Ayyangar's dissenting 
judgment; 
and (vi) The democratic process should be allowed to have full sway and 
no more technicality should be allowed to come in the way of jusfice 
being done. 
Dismissing the appeal, 
HELD : (I) The appellant did 11<>1 comply with the requirements of 
Sec. 97 of the Act. The appellllllt had not given notice u/s 97 within 
14 days of his appearance to give evidence to prove that the election 
of the respondent would have been void if the respondent had been the 
returned candidate nor had be given the security and further security 
referred to in sections 117 and 118 respectively nor was 
there 
any 
stlltement and particulars as required u/,s 83 in case of 
an 
election 
petition. Even when an attempt was made to file a recriminaticp peti· 
tion with a petition to excuse the delay, the other requisites of Seo. 97 
were not complied with. 
[.t032-G-!033BJ 
(2) The respondent's prayer for recount was not a 
request 
for 
mere ~chanical process of countipg but for counting contemp

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