T.H. MUSTHAFFA versus M.P. VARGHESE AND ORS.

Citation: [1999] SUPP. 3 S.C.R. 162 · Decided: 23-09-1999 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Dismissed

Judgment (excerpt)

A 
B 
T.H. MUSTHAFFA 
v. 
M.P. VARGHESE AND ORS. 
SEPTEMBER 23, 1999 
[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 
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 
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. 
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] 
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, 
B 
c 
D 
E 
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 vote

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