Kaleel,Dr. M. C. M. V. Themis, M. S. Et Al.,

1956 Present; Pulle, J.

DR. M. C. M. KALEEL, Petitioner, and M. S. THEMIS
et al., Respondents

Election Petition No. 2 of 1956

IN THE MATTER OF THE CEYLON (PARLIAMENTARY ELECTIONS)
 ORDER IN COUNCIL, 1946, ELECTION FOR ELECTORAL DISTRICT
No. 2-COLOMBO CENTRAL-HOLDEN ON THE
5TH DAY OK APRIL, 1956

Election petition-Miscount of ballot papers alleged by unsuccessful candidate- Validity of such, ground-Discretion of Court-Multiple member electoral district-Necessary parties-Amendment of petition by supplementary affidavits-Ceylon (Parliamentary Elections) Order in Council, 1946, ss. 48 (7) (8), 49 (1) (5), 80 (b) (c), 83, 86 (2)-Parliamentary Election Petition Rules, 1946, rules 4 (1) (b), 5.

Miscount of ballot papers is a valid ground on which an election judge may grant relief under section 80 (b) and (c) of the Ceylon (Parliamentary Elections) Order in Council, 1946. The provisions of sub-sections 1 and 5 of section 49 and of sub-sections 7 and 8 of section 48 do not necessarily point to the non existence of a jurisdiction to order a recount of ballot papers.

Where an unsuccessful candidate presents an election petition against a successful candidate on the ground that as between them there was a miscount ' of votes, the other candidates who were returned at the same time to the same electoral district and who received a greater number of votes than the respondent need not be made parties to the petition. In such a case, the averment in the petition that " there has been a miscount of the votes cast at the said election " cannot be said to be vague and entirely devoid of content when the petitioner seeks relief under section 80 (b) and (c) of the Parliamentary Elections Order in Council.

It is not requisite to a valid election petition based on a miscount of votes that it should set out how and why such miscount occurred. The word " miscount " in the context of an election petition presented by a candidate on the ground that he had a majority of votes and should be declared to be duly elected bears a restricted meaning.

 Where a candidate or his election agent failed to make an application to the returning officer for a recount of the ballot papers under the proviso to subsection 7 of section 48 of the Order in Council, it would, generally speaking, be undesirable for an election court in its discretion to order a recount. Obiter: If an election petition is bad on the date it is presented, it cannot be retrospectively made good by any affidavit filed after the time limit prescribed by section 83 of the Order in Council.

ELECTION petition No. 2 of 1956, Colombo Central.

Izadeen Mohamed, with Carl Jayasinghe, for the petitioner.

G. E. Chitty, Q.C., with G. T. Samerawickreme, Prins Gunasekera and K. D. P. Wickremasinghe, for the 1st respondent.

M. Rafeek, with L. G. Weeramantry, for the 2nd respondent.

A. C. Nadarajah, with S. Ponniah, for the 3rd respondent.

M. Tiruchelvam, Acting Solicitor-General, with V. Tennekoon, Senior Crown Counsel, and M. Kanagasundaram, Crown Counsel, for the 4th respondent.

Cur. adv. vult.

 October 24, 1956. PULLE, J.-

The petitioner was one of the seven candidates at the last general election who sought to be elected for the Electoral District No. 2-Colombo Central-which has to return three members to serve in the House of Representatives. There are four respondents to the petition of whom the 4th is the returning officer who made a return under section 50 of the Ceylon (Parliamentary Elections) Order in Council, 1946, that the 2nd, 3rd and the 1st respondents, in that order, received the majority of votes lawfully given.

The petition states that the returning officer declared that the 2nd respondent received 45,296 votes, the 3rd respondent 26,522, the 1st respondent 20,375 and the petitioner 20,338. It further states in paragraph 5 " that there has been a miscount of the votes cast at the sai

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