Burden lies on the petitioner on prove the allegation.

This is an appeal against the order of the learned District Judge of Kanyakumari at Nagercoil acting as the Election Tribunal, Tirunelveli, in Election Petition No. 98 of 1957. The petitioner, who is the appellant before us, was one Kandaswami. He was a contesting candidate for the election to the Madras Legislative Assembly from the Sattankulam constituency. In the election he was defeated and the 1st respondent was declared elected to the said constituency. Thereupon the appellant filed an election petition before the said Election Tribunal questioning the validity of the election of the 1st respondent and praying that the election of the 1st respondent to the Madras Legislative Assembly from the Sattankulam constituency should be declared void and that he should be paid the costs of the petition.

Though the petitioner sought the election of the 1st respondent to be declared void as required by the rules, the 2nd, 3rd and 4th respondents were made parties, as all of them were either contesting candidates or candidates, who retired from the contest. As a matter of fact, while respondents 1 to 3 were the contesting candidates for the said election, the 4th respondent and two others are said to have been candidates, who either retired or withdrew from the election. The 4th respondent is said to have retired from the contest, while P.W. 10 is said to have withdrawn his nomination to the election.

It is not necessary for us in this appeal to go into the elaborate details of the various facts relating to the election in question. We think it sufficient to say that at the election for the said Sattankulam constituency, which was held on the 4th March, 1957, the 1st respondent secured 33,636 votes as against the petitioner, who polled only 22,429 votes. The 3rd respondent is said to have polled only 1,115 votes and the 2nd respondent 1,083 votes only. Consequently, the 1st respondent was declared elected by the Returning Officer as a result of the counting of the votes.

In the petition filed by the appellant, several acts of bribery and corrupt practices coming within the scope of section 123 (1) of the Act XLIII of 1951 were alleged by the appellant. These allegations have been elaborately referred to by the learned Election Tribunal in its order, dated 9th February, 1959. The petitioner also alleged against the 1st respondent and his agent that they had contravened section 77 of the said Act XLIII of 1951 in regard to expenditure incurred in connection with the election.

The 1st respondent in his written statement contested the truth and validity on the various contentions raised by the petitioner and contended that his election was not liable to be set aside and that the petition had to be dismissed.

Before the Tribunal respondents 2 and 3 remained ex parte. The 4th respondent, however, filed a written statement supporting the case of the petitioner and stating that he was promised a sum of Rs. 7,500 if he would retire from the election but was actually paid only Rs. 500 and that the balance was promised to be paid later and that out of this balance the election agent of the 1st respondent paid him a further sum of Rs.2,000 and that the balance of Rs.5,000 remained unpaid.

On the petition and the counter-statements filed by the 1st and the 4th respondents, the learned Election Tribunal framed as many as ten issues with various sub-divisions to some of the said issues and taking into consideration both the oral and documentary evidence, came to the conclusion that the petitioner failed to prove his case and dismissed the petition. For reasons given in paragraph 209 the learned Election Tribunal did not award costs to the 1st respondent which he claimed he was entitled to as a consequence of the dismissal of the petition.

The petitioner has therefore preferred this appeal, while the 1st respondent has preferred the memorandum of cross-objections against the order as to costs.

Both the appeal and the memorandum of