IMPORTANT POINT
Where election petitioner found earlier election without surname "Yadav" and in the impugned election did not make an application under Rules 8/9 of Election Rules for addition of his surname "Yadav" in Ballot Papers,he cannot challenge validity of election on this omission in the ballot paper.

JUDGMENT

K. Venkataswami, J.-Aggrieved by the dismissal of his Election Petition No. 36 of 1990 on the file of High Court of Madhya Pradesh, the appellant has filed the present appeal under Section 116-A of the Representation of the People Act, 1951, hereinafter called the Act.

2. In the election held in the month of February, 1990 for No. 44 - Jatara Constituency in the District of Tikamgarh, Madhya Pradesh, the appellant alongwith 24 other candidates contested in that constituency by filing nomination. The appellant polled 13, 716 votes while respondent No. 2 was polled 15, 221 votes. Respondent No. 2 having secured 1505 votes, more than the votes polled by the appellant, was declared elected to the said Constituency. The appellant challenged the election of the second respondent by filing the Election Petition in the High Court.

3. The main grounds of attack in the Election Petition were that his full name is Akhand Pratap Singh Yadav , but in the voters list as well as in the ballot papers his name was shown as Akhand Pratap Singh . The failure to give his surname Yadav & both in the voters list and in the ballot papers had materially affected the voting and the result of the returned candidate to the prejudice and detriment of the appellant. According to the appellant he had convassed throughout the Constituency giving prominence to his full name, namely, Akhand Pratap Singh Yadav , whereas in the ballot papers his name was mentioned as Akhand Pratap Singh which sounded similar to the name of the returned candidate, namely Surendra Pratap Singh which created confusion in the minus of the voters in particular amongst the rural and uneducated voters who were familiar with the Appellant s/Petitioner s name as Yadav .

4. The second ground of attack was that that the Returning Officer failed to prepare a complete layout of the counting hall for each constituency and also failed to give the appellant a notice of the time and placed for counting of votes at least one week before the date fixed for counting as required by the rules and guidance contained in the handlook issued for the guidance of the Returning Officer. As a consequence of that the appellant could not prepare his list of required counting agents. It was also averred in the Election Petition that adequate arrangements for counting of votes were not made by the Returning Officer and that there were open malpractices of manipulations in the counting of votes in favour of the returned candidate. Yet another contention taken in the election petition was that the Returning Officer had refused to admit his counting agents in the counting hall. The appellant was informed that there would be 14 tables for counting and two tables for Returning Officer in the counting hall. The petitioner could however manage to submit only ten completed forms with photographs of his proposed counting agents. He could not submit four more forms with photographs of his proposed counting agents for want of sufficient time and the Returning Officer declined to receive his forms stating that they were not given within the time fixed for that purpose. This resulted in some counting tables unattended on behalf of the petitioner/appellant. The election of second respondent also was challenged on the ground that the petitioner s/appellant s application for re-count was arbitrarily rejected by the Returning Officer and if a re-count had been allowed, the appellant would have got more votes than respondent No. 2.

5. In the High Court the petitioner examined himself as PW2, apart from other witnesses. The appellant has also filed a number of documents in support of his case. The learned Judge on a careful consideration of the pleadings, documents and the oral evidence found that the appellant had not filed any application under rule 8/9 of Election Rules before the Returning Officer for addition of his surname Yadav to his name in the list of the nominated candidates, as alleged. The non-addit