The main legal point established in the judgment is that a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer.

Curgenven, J.

1. These petitions arise out of an election held on 27th August 1928, to fill three vacancies in the 3rd Ward of the Wallajah Municipality. The election was conducted by the Chairman and the result, so far as it concerns us, stood as follows:

Votes.

1. T.K. Ratnavelu Chetti ... 170 Elected.

2. M. Lakshmana Iyer ... 127 "

3. K.S. Mallappa Chettiar ... 123 "

4. S. Rajam Iyyar ... 116 "

5. P. Venkataswami Naidu ... 109 "

2. Accordingly 1, 2 and 3 were declared elected. An election petition (O.P. 11 of 28) was then filed by S. Rajam Ayyar (No. 4) in the Subordinate Judges Court, Vellore, alleging that the Chairman had shown undue partiality, that he had counted votes in favour of the successful candidates which ought to have been rejected, that he employed an inadequate staff, that the results were announced without checking or verification, and that if there had been Subsequent check the petitioner and other candidates who had failed would have been elected. This petition was filed on 3rd September, and on 24th October, before the hearing had commenced, the petitioner applied for a recount (I.A. No. 699 of 28). This was granted, and the recount was carried out by a Commissioner with the following result:

Votes.

1. T.K. Ratnavelu Chetti ... 160 Elected.

2. S. Rajam Iyyar ... 124 "

3. P. Venkataswami Naidu ... 123 "

4. M. Lakshmana Iyer ... 120 "

5. K.S. Mallappa Chettiar ... 116 "

3. It will be seen that 4 and 5 in the prior list have displaced Nos. 2 and 3. The two candidates who were now defeated, M. Lakshmana Iyer and K.S. Mallappa Chettiar, thereupon applied (I.A. No. 752 of 28) for a scrutiny of the ballot papers, with a view to ascertain in whether they had been tampered with, but this was disallowed by the lower Court.

4. In arguing the main revision petition the contentions are raised that the learned Sub-Judge ordered the recount in circumstances not sufficient to give, him jurisdiction, and that he was in error in not directing the further Scrutiny asked for. On the first point it is urged more specifically, that a Court before ordering a recount must have evidence before it that the original Court was or may have been incorrect. MR.K.S. Krishnaswami Iyengar, has recourse to English Law in support of this position. In the Stepney case (4 O M. & H. 34) the questions which arose were as to the stage in the proceedings at which a recount could be applied for and ordered, which does not now concern us and whether or not it could be claimed as a right. Denman, J. in delivering judgment, referring to an interlocutory conversation during the course of the hearing, says: We decided against the contention that the respondent was entitled to a recount as a matter of right, but offered to hear any evidence tending to show there had been a mistake on the part of the returning officer. We heard witnesses on both sides upon the point, and were satisfied, I may say mainly upon the evidence of one of the witnesses called by the petitioner, that there were strong grounds for thinking that the return could not be strictly relied upon. We therefore determined upon directing a recount....

5. This case forms the sole cited authority for the exposition of the law on this point in Halsbury (Vol. 12, para. 891). A recount is not granted as of right, but en evidence of good grounds for believing that there has been a mistake on the part of the returning officer the Court will make on order for a recount.

6. In Rogers on Elections, 19th Edition, Vol. 2, p. 301, it is stated that The practice now is to order a recount before the trial where there is reason to believe there has been a miscount. Application for it should be made by summons supported by affidavits showing grounds. The form of order for recount (No. 85 at p. 933) of the same "Volume) contemplates the order being passed" upon hearing counsel for the petitioner and respondent and upon reading the affidavits of, etc."

7. Thus although in the Stepney case oral evidence was taken, it is