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CASE NO.: Appeal (civil)  33 of 2003

PETITIONER: M. Chinnasamy                                            

RESPONDENT: K.C. Palanisamy & Ors.                                   

DATE OF JUDGMENT: 21/11/2003

BENCH: CJI, S.B. Sinha & Dr. AR. Lakshmanan.

JUDGMENT: J U D G M E N T

S.B. SINHA for himself and CJI :   

       To what extent  an election tribunal should exercise  its jurisdiction to direct inspection of the ballot papers  and recounting of votes polled while determining an election  petition in terms of the provisions of the Representation of  the People Act, 1951 (hereinafter referred to as ’the Act’,  for the sake of brevity) is in question in this appeal which  arises out of a judgment and order dated 07.11.2002 passed  by the High Court of Judicature at Madras in Election  Petition No.7 of 2000.

BACKGROUND FACTS :         An election took place for Karur Parliamentary  Constituency (26) consisting of six assembly segments on  05.09.1999.  Eleven candidates contested the said election.  Total number of votes polled was 719705 and the appellant  herein who is the returned candidate having the election  symbol of ’two leaves’ secured 334407 votes whereas   Respondent No.1 herein (the election petitioner) who  contested the said election on the election symbol of  ’rising sun’ secured 331560 votes.  The margin of votes  between the returned candidate and the election petitioner  was, thus, 2847.

       It is also not in dispute that 16906 votes were  rejected. The chief election agent of the election  petitioner on or about 06.10.1999 lodged a complaint  alleging irregularities in counting of votes. The said  counting of votes took place on 6.10.1999 and the result  thereof was declared at 5.10 A.M. on 7.10.1999.

       The relevant portion of the said complaint reads thus :

       "Today (6.10.1999) during counting  of the votes in all the Six Segments of  Karur parliamentary constituency about  15,000 votes polled in Rising Sun Symbol  of the Candidate K.C. Palanisamy has  been rejected in violation of the Act  and Rules without reason by the  Assistant Returning Officers. The oral  and written objections raised by the  Agents were not accepted.  So our  candidate winning prospect was

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prevented.

       In Election each and every vote is  important and even one vote difference  decides the result.  Therefore, I kindly  request you to recount the rejected  invalid votes and thereafter election  result may be declared."     

       It is also not dispute that upon holding an inquiry in  relation to the aforementioned complaint (Ex.P9), the  returning officer who examined himself as CW1 rejected the  same holding :

"...The Assistant Returning Officer who  were incharge of the Counting of Ballot  Papers in all the 6 Assembly Segments  comprised in 26 Karur Parliamentary  Constituency were enquired about the  issue raised by the Objection  Petitioner.  All of them have reported  that they have decided the rejected  Ballot Papers only in the presence of  the Counting Agents deputed by the  contesting Candidates for this purpose,  and the decisions were taken only in the  presence of such counting Agents and  with their concurrence.  No one raised  any objection to the decision taken by  Assistant Returning Officers in the  matter of rejection of Ballot Papers.   In fact, all of them had appreciated the  fairness in the rejection of Ballot  Papers by the Assistant Returning  Officers.  The Assistant Returning  officers have stated that no Objection  Petition was presented to them at the  time of Counting over the Rejection of  Ballot Papers.  Even the Poll Observers  deputed by the Election Commission had  been campaigning in the Counting Centres  and no Objections were made to them over  this issue.  The Objections were  analysed to find out whether they are  substantiated.  It is brought to my  notice by the Assistant Returning  Officers that most of the Ballot Papers  were rejected on the ground "No Marking"  and "Multiple Voting".  The analysis of  the votes polled and Votes rejected  during the present Poll and the previous  polls reveals that the total rejected  votes during the previous poll was  25,292 as against the total valid votes  of 6,49880 whereas the Ballot Papers  rejected in the present election is only  16,906 as against the total valid Votes  of 7,19,705.

       I find no reason to Order  Recounting of rejected Ballot Papers as  requested by the Petitioner and  accordingly his request is rejected."

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       The election petitioner thereafter filed the election  petition before the High Court which was marked as Election  Petition No.7 of 2000. Besides raising a question of corrupt  practice, allegations were also made as regards  irregularities in counting of votes, which were divided in  five different heads, namely :

Category 1 : Rejection of valid votes cast in favour of the  petitioner by considering inadvertent thumb impression.

Category 2 : Rejection of valid votes on the basis of  Polling Officer’s rubber stamp impression found on ballot  paper apart from voter’s instrument mark.

Category 3 : Rejection of valid votes cast on border.

Category 4 : Rejection of valid votes on ground that wrong  instrument used by voter

Category 5 : Rejection of postal votes cast in favour of the  petitioner.

       Evidences  were  led  to  the  effect that the number  of votes which are alleged to have been illegally rejected  in Category-1 : 750 votes; in Category-2 : 250 votes; in  Category-3 : 1500 votes; in Category-4 : 5000 votes and in  Category-5 : 300 votes.          The allegations made in the election petition were  denied and disputed by the elected candidate.  He further  raised a plea that the allegations made in the said election  petition as regard illegal rejection of votes suffered from  vagueness.  It was  pointed out that no particulars had been  disclosed in the election petition as to at which centre and  at what time the alleged irregularities took place. The  details of the tables  at which the objections were raised  had also not been disclosed.  Even the names of the counting  agents had not been mentioned in the election petition.  

Such objections had been raised having regard to the  fact that the Parliamentary Constituency consisted of six  assembly segments and the counting was done at four  different centres.  It had further been contended that the  election petition also does not disclose as to how and in  what manner the provisions of sub-rules (3) and (4) of Rule  56 of the Conduct of Election Rules, 1961 had been breached.

ISSUES :

     On the pleadings of the parties, the High Court  framed, inter alia, the following issues :

(1)     Whether the petitioner has proved acts of  serious irregularities in the manner of  conduct of election and or in the counting of  votes vitiating the entire election process  as well as results? (2)     Whether the first respondent and/or his  agents are guilty of corrupt electoral  practices or electoral malpractice  contemplated under Section 123 of the  Representation of the People Act, 1951?

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(4)     Whether the petitioner is entitled to an  order of scrutiny and recounting of the  ballot papers in respect of No.26, Karur  Parliamentary Constituency as sought in  prayer No.(i) of the Election Petition?

HIGH COURT JUDGMENT :                    Issue No.2 was decided against the election petitioner.   The allegation as regard irregularity of counting of votes  in relation to Category-4 aforementioned, had also not found  favour with the High Court. The High Court, however, having  regard to the evidences adduced on behalf of the election  petitioner being PWs 1 to 7 held :

"...Having regard to the entire  evidence, I am of the view that the  petitioner had made out a prima facie  case for re-count of the votes.  The  evidence of P.Ws.1 to 7 clearly  established the counting irregularities  relating to category 1, namely,  rejection of valid votes cast in favour  of P.W.1 by considering inadvertent  thumb impression, Category II, rejection  of valid votes on the basis of polling  officer’s rubber stamp impression found  on the ballot papers apart from voter’s  instrument mark, category III -  rejection of valid votes cast on the  border and category V relating to  rejection of postal votes which went in  favour of the petitioner.  Apart from  that, as adverted to, the Returning  Officer had failed to carry out the  mandatory requirements provided under  the Guidelines issued by the Election  Commission.  The objections given under  Ex.P.9 have not been properly considered  and the alteration made in the date in  Ex.P.10 coupled with the evidence of  P.W.1 and also the delay in declaring  the result of about 7 hours, would only  lead to the irresistible conclusion that  recount of the entire votes is a must to  decide the intention of the electoral.   Simply because under Ex.p/9 only a  request was made for recount of the  rejected votes, it cannot be made use of  presently and prevent the recount of  entire voters.  In the case cited above,  it is made clear that it is not  necessary that there should be a request  for recount and if the Returning Officer  comes to know about the irregularities,  it is his duty to order recount of the  votes.  Moreover, neither P.W.1 nor his  Chief Election Agent is qualified in law  to expect that they would be able to  give a petition for recount in  accordance with law pointing out all  irregularities one by one.  When there  is substantial compliance in the request  under Ex. P/9 coupled with the  irregularities highlighted and

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established by adducing positive  evidence on the side of the 1st  respondent, it is just and necessary  that the entire ballot papers have to be  inspected and recounted to pass further  and appropriate orders in the case.   Hence, these issues are answered  accordingly."   

SUBMISSIONS :

       Mr. M.N. Rao, learned Senior Counsel appearing on  behalf of the appellant, inter alia, would submit that  allegations made in the election petition being general and  vague in nature, the purported evidences on the basis  whereof the impugned judgment has been passed were wholly  inadmissible.  The learned counsel would submit that a  manifest error has been committed by the High Court in  accepting the evidences of PWs 2 to 7 when neither  particulars in relation to the alleged irregularities nor  the names of the counting agents who examined themselves as  PWs 2 to 7 had been mentioned in the election petition. In  any event, the evidences adduced by PWs 1 to 7 could not  have been accepted by the High Court as they failed and/or  neglected to produce the notebooks  in which they had  allegedly been making notes which admittedly had been  supplied to them as regard details of alleged irregularities  in counting of votes.  The learned counsel would contend  that even no detailed particulars had been mentioned in the  complaint filed by the chief election agent of the election  petitioner marked as Ex.P/9.  Mr. Rao would submit that  while making an inquiry on the objections filed by the chief  election agent of the election petitioner, it was not  necessary for the returning officer to record oral evidence  and in that view of the matter the High Court committed an  error in arriving at a finding that the objections under  Ex.P/9 had not been properly considered.  Mr. Rao would  argue that in an election petition, the Tribunal cannot  direct a roving or fishing inquiry and more so when only  general and bald allegations were made.  It was pointed out  that whereas the High Court adopted the correct test in not   directing recounting in relation to alleged irregularities  in counting votes falling within Category-4, it failed to  apply the same test in relation to other categories.  In any  event, contended the learned counsel, when the prayer in  Ex.P/9 revolved round the 15000 rejected votes, all the  votes could not have directed to be recounted.

       Mr. K.K. Mani, learned counsel appearing on behalf of  the respondents, on the other hand, would submit that in an  election petition, it is not necessary to disclose the  particulars of material facts in terms of sub-section (1) of  Section 83 of the Act.  The learned counsel would contend  that what is necessary to be stated is the material fact in  a concise form as is required in terms of clause (a) of   sub-section (1) of Section 83 of the Act and no particulars  of such material facts are required to be pleaded as in the  case of corrupt practice.  According to the learned counsel,  the chief election agent of the election petitioner having  made serious allegations as regard irregularities in  counting of votes in relation to all the six segments of the  Parliamentary Constituency, the rule of pleadings would not

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require disclosure of the detailed particulars.  The learned  counsel would submit that as the High Court has passed the  impugned judgment upon consideration of the evidences  adduced by the parties, the same does not warrant any  interference by this Court.  

STATUTORY PROVISIONS :

       Chapter II of Part VI of the said Act provides for the  presentation of election petitions to the Election Tribunal.   Section 80 provides that no election shall be called in  question except by an election petition presented in  accordance with the provisions of the said Part. The  material part of Section 83 of the said Act reads as under :   "83.Contents of petition.-(1) An election  petition -

(a) shall contain a concise statement of  the material facts on which the  petitioner relies;

(b)     shall set forth full particulars of  any corrupt practice that the  petitioner alleged including as  full a statement as possible of the  names of the parties alleged to  have committed such corrupt  practice and the date and place of  the commission of each such  practice;"  

 MATERIAL FACTS :         It is not in dispute that in relation to an election  petition, the provisions of the Code of Civil Procedure  apply.  In terms of Order VI Rule 2 of the Code of Civil  Procedure which is in pari materia with clause (a) of sub- section (1) of Section 83 an election petition must contain  concise statement of material facts.  It is true as  contended by Mr. Mani that full particulars are required to  be set forth in terms of clause (b) of sub-section (1) of  Section 83 of the Act which relates to corrupt practice.   The question as to what would constitute material facts  would, however, depend upon the facts and circumstances of  each case. It is trite that an order of recounting of votes  can be passed when the following ingredients are satisfied :  (1) If there is  a prima facie case; (2) material facts  therefor are pleaded; (3) the court shall not direct  recounting by way of roving or fishing inquiry; and (4) such  an objection had been taken recourse to.  

The necessity of ’maintaining the secrecy of ballet  papers’ should be kept in view before a recounting is  directed to be made. A direction for recounting shall not be  issued only because the margin of votes between the returned  candidate and the election petitioner is narrow.

The requirement of rule of pleadings containing  material facts are salutary in nature.

The parties are bound by the said rule of pleadings and  verification thereof having regard to the fact that an

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election may not be set aside on hyper-technical grounds  although no factual foundation therefor had been laid in the  pleadings as the elected candidate may not have any hand  therein.  So far as requirement of pleadings in a case where  a direction of recounting of ballot papers has been prayed  for, the court must proceed cautiously and with  circumspection having regard to the requirement of  maintaining secrecy of ballot papers.  It is not disputed  that the counting was done at four centres. It is further  not disputed that the material facts, as regard as to which  category of irregularities as enumerated in the election  petition occurred, at which centre and at what time, had not  been pleaded.  It has further not been disclosed the details  as regards tables at which such objections were raised, nor  the names of the counting agents had been disclosed.  The  very basis of the election petition centres round the  objections of the Chief Election Agent of the election  petitioner dated 6.10.1999 (Ex.P/9).  We have set out the  said objections in extenso hereinbefore.  A bare perusal  thereof would clearly show that the allegations contained  therein are absolutely vague and lack material particulars.  Details as regard commission of alleged irregularities  police stationwise, assembly segmentwise, polling  counterwise or tablewise had  not been disclosed.  The same  by itself goes to show that the Chief Election Agents of the  election petitioner did not raise any objection before the  returning officer and the counting staff as and when such  irregularities purported to have been found out.  It may be  relevant to note that even if the said Agent of the election  petitioner had not been examined, inter alia, on the ground  that he after declaration of the election result has changed  the sides.   

It is also relevant to notice that no material has been  brought on records to show that the factual findings of the  Returning Officer as contained in his order dated 6.10.1999  are incorrect.

Furthermore, even PWs 2 to 7 in their evidences  accepted that they had been supplied with notebooks wherein  they allegedly noted such irregularities.  Such notebooks  had not been produced before the High Court and, thus, an  adverse inference against the election petitioner ought to  have been drawn.  It appears from the records that the votes  which had allegedly not been counted even according to PWs 1  to 7 would not cross five hundred marks.  Although in Ex.P/9  it has been contended that "the oral and written objections  raised by the agents were not accepted", but no such written  objection was brought on record.

In relation to the allegations contained in Paras 13  and 14 of the election petition regarding bundling of ballot  papers and purported wrong transfer of valid votes polled in  favour of Respondent No.1, the High Court has disbelieved  the evidence of PWs 2 to 7 on the ground that they could not  give the details of the counting centres and other proper  particulars, but accepted their evidence as regard  alleged  irregularities covered by Categories 1, 2, 3 and 5 for no  valid or cogent reason.

The High Court while considering the objections raised  in the election petition in relation to Category-4, inter  alia, held such allegations cannot be considered as the same  are based on general and vague allegations without any  particulars, observing :

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    "...Even in the complaint given under  Ex.P.9, there is no whisper that wrong  instrument has been used by any voter in  particular booth of Constituency, which  resulted in invalidating the votes..."

       Despite the fact that in relation  to the allegations  made under Categories-1, 2, 3 and 5, similar general and  vague allegations had been made, the High Court proceeded to  accept the evidences of the said witnesses.

The High Court should not have accepted the evidence of  PWs 2 to 7 when there are no particulars in the election  petition and the names of counting agents had not even been  mentioned in the pleadings.

       The High Curt furthermore applied a wrong legal test in  passing the impugned judgment insofar as it proceeded to  hold that the first respondent would not be prejudiced, if a  recounting is ordered.  The test required to be applied for  directing a recounting being well-settled, the High Court  must be held to have misdirected itself in law.  The  question of prejudice of the election petitioner would not  be a relevant factor keeping in view the constitutional and  statutory scheme involving holding of an election and the  consequences emanating from the direction of recounting  which may lead to identification of voters as the same is  not at all desirable.

       In the instant case, it was all the more necessary for  the election petitioner to plead the material facts with  certain precisions having regard to Ex.P/9 in terms whereof  the recounting was prayed having regard to alleged rejection  of 15000 votes. Furthermore although a distinction exists in  terms of clauses (a) and (b) of Section 83(1) of the Act,  but it should be borne in mind that pleading of material  fact would include disclosure of all such information which  if not rebutted would result in allowing the petition.  A  distinction between ’particulars’ and ’full particulars’  should also be borne in mind.   

       Had the election petitioner in his pleadings, as  noticed hereinbefore, disclosed the details of the names of  polling stations, counting centres, the tables, particulars  of round of the counting of votes in relation whereto  alleged irregularities had taken place under all the four  categories and basis of material facts and particulars, the  High Court, if finds, that election petitioner has made out  prima facie case for scrutiny of ballot papers and recount,  it may direct for recount of ballot papers in respect of the  said votes only and not the entire votes.  The High Court  further failed to notice that in para 12 of the election  petition it has merely been pointed out that irregularities  in respect counting had materially affected the election and  in that view of the matter, the High Court should not have  directed recounting of all the votes which would amount to  going beyond the said election.

CASE LAWS :

       The law operating in the field is no longer res  integra. Inspection of ballot papers can be ordered when in

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the facts and circumstances obtaining in the case, the  Tribunal finds it necessary to so direct in the interest of  justice.  Discovery and inspection of documents with which  the civil court is invested with power under the Code of  Civil Procedure when trying a suit may be applied but such  an order would not be granted as a matter of course having  regard to the insistence upon the secrecy of the ballot  papers. Such an inspection may be ordered when two  conditions are fulfilled :

(i)     that the petition for setting aside an election  contains an adequate statement of the material  facts on which the petitioner relies in support  of his case; and (ii)    the Tribunal is prima facie satisfied that in  order to decide the dispute and to do complete  justice between the parties inspection of the  ballot papers is necessary..

[See Ram Sevak Yadav vs. Hussain Kamil Kidwai &  Ors. [1964 (6) SCR 238]

Upon considering the provisions of the Act and the  Conduct of Election Rules, 1961, the Court in Ram Sewak  Yadav (supra) held : "There can therefore be no doubt that  at every stage in the process of  scrutiny and counting of votes the  candidate or his agents have an  opportunity of remaining present at the  counting of votes, watching the  proceedings of the Returning Officer,  inspecting any rejected votes, and to  demand a re-count. Therefore a candidate  who seeks to challenge an election on  the ground that there has been improper  reception, refusal or rejection of votes  at the time of counting, has ample  opportunity of acquainting himself with  manner in which the ballot boxes were  scrutinized and opened, and the votes  were counted. He has also opportunity of  inspecting rejected ballot papers, and  of demanding a re-count. It is in the  light of the provisions of s. 83(1)  which require a concise statement of  material facts on which the petitioner  relies and to the opportunity which a  defeated candidate had at the time of  counting, of watching and of claiming a  recount that the application for  inspection must be considered."

In Dr. Jagjit Singh vs. Giani Kartar Singh and Others  [AIR 1966 SC 773], before a 3-Judge Bench of this Court, a  contention was raised to the effect that when a Tribunal  considering the evidence in the light of the allegations  made by the election petitioner was satisfied that  inspection should be ordered, the same should not ordinarily  be reversed in appeal, this Court held :

"We are not prepared to accept this  contention.  The order passed by the  Tribunal clearly shows that the Tribunal  did not apply its mind to the question

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as to whether sufficient particulars had  been mentioned by the appellant in his  application for inspection.  All that  the tribunal has observed is that a  prima facie case has been made out for   examining the ballot papers; it has also  referred to the fact that the appellant  has in his own statement supported the  contention and that the evidence led by  him prima facie justifies his prayer for  inspection of ballot papers.  In dealing  with this question, the Tribunal should  have first enquired whether the  application made by the appellant  satisfied the requirements of S. 83(1)  of the Act; and, in our opinion, on the  allegations made, there can be only one  answer and that is against the  appellant.  We have carefully considered  the allegations made by the appellant in  his election petition as well as those  made by him in his application for  inspection and we are satisfied that the  said allegations are very vague and  general and the whole object of the  appellant in asking for inspection was  to make a fishing enquiry with a view to  find out some material to support his  case that respondent No.1 had received  some invalid votes and that the  appellant had been denied some valid  votes.  Unless an application for  inspection of ballot papers makes out a  proper case for such inspection it would  not be right for the Tribunal to open  the ballot boxes and allow a party to  inspect the ballot papers, and examine  the validity or invalidity of the ballot  papers contained in it.  If such a  course is adopted, it would inevitably  lead to the opening of the ballot boxes  almost in every case, and that would  plainly be inconsistent with the scheme  of the statutory rules and with the  object of keeping the ballot papers  secret."                    

(See also Bbhabhi vs. Sheo Govind & Ors.  - (1976) 1 SCC 687)

In Km. Shradha Devi vs. Krishna Chandra Pant and Others  [(1982) 3 SCC 389 (II)], this Court observed :  

"\005If the re-count is limited to those  ballot-papers in respect of which there  is a specific allegation of error and  the correlation is established, the  approach would work havoc in a  parliamentary constituency where more  often we find 10,000 or more votes being  rejected as invalid. Law does not  require that while giving proof of prima  facie error in counting each head of  error must be tested by only sample

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examination of some of the ballot-papers  which answer the error and then take  into consideration only those ballot- papers and not others. This is not the  area of enquiry in a petition for relief  of re-count on the ground of miscount.  True it is that ’a re-count is not  granted as of right, but on evidence of  good grounds for believing that there  has been a mistake on the part of  Returning Officer’ (See Halsbury’s Laws  of England, 4th Edn., Vol. 15, para  940). This Court has in terms held that  prima facie proof of error complained of  must be given by the election petitioner  and it must further be shown that the  errors are of such magnitude that the  result of the election so far as it  affects the returned candidate is  materially affected; then re-count is  directed\005"

In D.P. Sharma vs. Commissioner and Returning Officer  and Others [(1984) Supp. SCC 157], this Court laid down the  law in the following terms :   

"...It is well established that in  order to obtain re-count of votes a  proper foundation is required to be laid  by the election petitioner indicating  the precise material on the basis of  which it could be urged by him with some  substance that there has been either  improper reception of invalid votes in  favour of the elected candidate or  improper rejection of valid votes in  favour of the defeated candidate or  wrong counting of votes in favour of the  elected candidate which had in reality  been cast in favour of the defeated  candidate..."

In Satyanarain Dudhani  vs. Uday Kumar Singh and Others  [(1993) Supp. (2) SCC 82], this Court laid down :

"A cryptic application claiming recount  was made by the petitioner-respondent  before the Returning Officer. No details  of any kind were given in the said  application. Not even a single instance  showing any irregularity or illegality  in the counting was brought to the  notice of the Returning Officer. We are  of the view when there was no  contemporaneous evidence to show any  irregularity or illegality in the  counting ordinarily, it would not be  proper to order recount on the basis of  bare allegations in the election  petition. We have been taken through the  pleadings in the election petition. We  are satisfied that the grounds urged in

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the election petition do not justify for  ordering recount and allowing inspection  of the ballot papers. It is settled  proposition of law that the secrecy of  the ballot papers cannot be permitted to  be tinkered lightly. An order of recount  cannot be granted as a matter of course.  The secrecy of the ballot papers has to  be maintained and only when the High  Court is satisfied on the basis of  material facts pleaded in the petition  and supported by the contemporaneous  evidence that the recount can be  ordered."

In Ram Rati (Smt) vs. Saroj Devi and Others [(1997) 6  SCC 66], it was observed :

"...In the light of the mandatory  language of Rule 76 of the Rules, it is  incumbent upon a candidate or an agent,  if the candidate was not present, to  make an application in writing and give  reasons in support thereof, while  seeking recounting. If it is not done,  then the tribunal or the court is not  empowered to direct recounting even  after adduction of evidence and  consideration of the alleged  irregularities in the counting..."

Yet again in Mahant Ram Prakash Dass vs. Ramesh Chandra  and Others [(1999) 9 SCC 420], this Court held : "So far as round six, which is the last  and the final round, is concerned, the  charge made by the appellant in para 6  of the petition is in the following  terms :-  "Round No. 6, serial No. 79/9 i.e.  table No. 9, there is a cutting on  the votes secured by the petitioner  as 462. None of these cuttings,  alterations has been authenticated by  the Returning Officer or any other  officer concerned at any stage."   We have seen the original Form 20 and  we do not find any corrections made  therein. It is only in the copies, that  were typed thereafter, that  discrepancies have crept in, which have  been sought to be corrected and copies  thereof are furnished to the appellant.  On the basis of such copies no case  could have been made out by the  appellant. Thus there is no plea at all  so far as round 6 is concerned pointing  out any discrepancy or irregularity in  the matter of counting. Hence we find no  case is made out by the appellant in the  course of the petition. In the absence  of any pleading thereof, we find it  difficult to accept the case put forth  by the appellant that there was any

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irregularity in the 6th round of  counting."  

In P.H. Pujar vs. Kanthi Rajashekhar Kidiyappa and  Others [(2002) 3 SCC 742], it was laid down as under :

"...The petitioner seeking re-count  should allege and prove that there was  improper acceptance of votes or improper  rejection of valid votes. If only the  Court is satisfied about the  truthfulness of the said allegations can  it order re-count of votes. Secrecy of  ballot has always been considered  sacrosanct in a democratic process of  election and it cannot be disturbed  lightly by bare allegations of  illegality and irregularity in  counting..."

 [See also T.H. Musthaffa vs. M.P. Varghese and Others  [(1999) 8 SCC 692].

In D. Ramachandran Vs. R.V. Janakiraman and Others  [(1999) 3 SCC 267] this Court held: "We do not consider it necessary to  refer in detail to any part of the  reasoning in the judgment; Instead, we  proceed to consider the arguments  advanced before us on the basis of the  pleadings contained in the election  petition. It is well settled that in all  cases of preliminary objection, the test  is to see whether any of the reliefs  prayed for could be granted to the  appellant if the averments made in the  petition are proved to be true. For the  purpose of considering a preliminary  objection, the averments in the petition  should be assumed to be true and the  court has to find out whether those  averments disclose a cause of action or  a triable issue as such. The Court can  not probe into the facts on the basis of  the controversy raised in the counter."

       In Mohan Rawale Vs. Damodar Tatyaba Alias Dadasaheb and  Others [(1994) 2 SCC 392] this Court observed: "12. Further, the distinction between  "material facts" and "full particulars"  is one of degree. The lines of  distinction are not sharp. "Material  facts" are those which a party relies  upon and which, if he does not prove, he  fails at the time. 13. In Brace v. Odhams Press Ltd.,  (1936) 1 KB 697 : (1936) 1 All ER 287  Scott L.J. said: "The word ’material’ means  necessary for the purpose of  formulating a complete cause of  action; and if any one ’material’  statement is omitted, the statement

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of claim is bad." The purpose of  "material particulars" is in the  context of the need to give the  opponent sufficient details of the  charge set up against him and to  give him a reasonable opportunity. 14. Halsbury refers to the function of  particulars thus: "The function of particulars is to  carry into operation the overriding  principle that the litigation  between the parties, and  particularly the trial, should be  conducted fairly, openly and  without surprises, and incidentally  to reduce costs. This function has  been variously stated, namely  either to limit the generality of  the allegations in the pleadings,  or to define the issues which have  to be tried and for which discovery  is required." (See: Pleadings Vol. 36, para 38) 15. In Bullen and Leake and Jacob’s  "Precedents of Pleadings" 1975 Edn. at  p. 112 it is stated: "The function of particulars is to  carry into operation the overriding  principle that the litigation  between the parties, and  particularly the trial, should be  conducted fairly, openly and  without surprises and incidentally  to save costs. The object of  particulars is to ’open up’ the  case of the opposite party and to  compel him to reveal as much as  possible what is going to be proved  at the trial, whereas, as Cotton  L.J. has said, ’the old system of  pleading at common law was to  conceal as much as possible what  was going to be proved at the  trial’," 16. The distinction between ’material  facts’ and ’particulars’ which together  constitute the facts to be proved -- or  the facta probanda -- on the one hand  and the evidence by which those facts  are to be proved --facta probantia -- on  the other must be kept clearly  distinguished. In Philipps v. Philipps,  Brett, (1878) 4 QBD 127, 133 L.J. said: "I will not say that it is easy to  express in words what are the facts  which must be stated and what  matters need not be stated. ... The  distinction is taken in the very  rule itself, between the facts on  which the party relies and the  evidence to prove those facts. Erle  C.J. expressed it in this way. He  said that there were facts that  might be called the allegata  probanda, the facts which ought to

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be proved, and they were different  from the evidence which was adduced  to prove those facts. And it was  upon the expression of opinion of  Erie C.J. that Rule 4 [now Rule  7(1)] was drawn. The facts which  ought to be stated are the material  facts on which the party pleading  relies." 17. Lord Denman, C.J. in William v.  Wilcox, (1838) 8 Ad & El 331 said: "It is an elementary rule in  pleading that, when a state of  facts is relied it is enough to  allege it simply, without setting  out the subordinate facts which are  the means of proving it, or the  evidence sustaining the  allegations." 18. An election petition can be rejected  under Order VII Rule 11(a) CPC if it  does not disclose a cause of action.  Pleadings could also be struck out under  Order VI Rule 16, inter alia, if they  are scandalous, frivolous or vexatious.  The latter two expressions meant cases  where the pleadings are obviously  frivolous and vexatious or obviously  unsustainable."

Mr. Mani, however, has placed strong reliance on P.K.K.  Shamsudeen vs. K.A.M. Mappillai Mohindeen and Others [(1989)  1 SCC 526].  A two-Judge Bench of this Court therein took  note of Ram Sewak Yadav (supra) and R.Narayan vs. S.  Semmalai and Others [(1980) 2 SCC 537] wherein it was   observed : "Thus the settled position of law is  that the justification for an order for  examination of ballot papers and recount  of votes is not to be derived from  hindsight and by the result of the  recount of votes. On the contrary, the  justification for an order of recount of  votes should be provided by the material  placed by an election petitioner on the  threshold before an order for recount of  votes is actually made. The reason for  this salutary rule is that the  preservation of the secrecy of the  ballot is a sacrosant principle which  cannot be lightly or hastily broken  unless there is prima facie genuine need  for it. The right of a defeated  candidate to assail the validity of an  election result and seek recounting of  votes has to be subject to the basic  principle that the secrecy of the ballot  is sacrosanct in a democracy and hence  unless the affected candidate is able to  allege and substantiate in acceptable  measure by means of evidence that a  prima facie case of a high degree of  probability existed for the recount of  votes being ordered by the Election  Tribunal in the interests of justice, a

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Tribunal or court should not order the  recount of votes."  

Natarajan, J. having regard to the averments made in  the election petition observed that neither the averments in  the pleadings nor the evidence adduced were of such  compulsive nature as could have made the Tribunal reach a     prima facie satisfaction that there was adequate  justification for the secrecy of ballot papers.  The said  decision, therefore, runs counter to the submissions of the  learned counsel.

In Jibontara Ghatowar vs. Sarbananda Sonowal and Others  [(2003) 6 SCC 452], wherein a case was made out that 824  ballot papers were rejected contrary to the provisions  contained in Rule 63 of the Conduct of Elections Rules and  in violation of the law laid down by this Court in Arun  Kumar Bose vs. Mohd. Furkan Ansari [(1984) 1 SCC 91], this  Court held that the High Court was in error in refusing to  direct the recounting of votes. While making the said  observations, the Court relied upon an earlier decision of  this in T.A. Ahammed Kabeer vs. A.A. Azeez and Others  [(2003) 5 SCC 650], wherein one  of the members, Lahoti, J.  was also a party noticing :

"27. Though the inspection of ballot  papers is to be allowed sparingly and  the court may refuse the prayer of the  defeated candidate for inspection if, in  the garb of seeking inspection, he was  indulging in a roving enquiry in order  to fish out materials to set aside the  election, or the allegations made in  support of such prayer were vague or too  generalized to deserve any cognizance.   Nevertheless, the power to direct  inspection of ballot papers is there and  ought to be exercised if, based on  precise allegations of material facts,  also substantiated, a case for  permitting inspection is made out as is  necessary to determine the issue arising  for decision in the case and in the  interest of justice."

28.     It is true that a recount is  not to be ordered merely for the asking  or merely because the court is inclined  to hold a re-count.  In order to protect  the secrecy of ballots the court would  permit a re-count only upon a clear case  in that regard having been made out.  To  permit or not to permit a recount is a  question involving jurisdiction of the  court.  Once a recount has been allowed  the court cannot shut its eyes on the  result of recount on the ground that the  result of recount as found is at  variance with the pleadings.  Once the  court has permitted recount within the  well-settled parameters of exercising  jurisdiction in this regard, it is the  result of the recount which has to be  given effect to."

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With respect we are not in a position to endorse the  views taken therein in its entirety.  Unfortunately, the  decision of a larger Bench of this Court in Jagjit Singh  (supra) had not been noticed therein.  Apart from the clear  legal position as laid down in several decisions, as noticed  hereinbefore, there cannot be any doubt or dispute that only  because a recounting has been directed, it would be held to  be sacrosanct to the effect that although in a given case  the court may find such evidence to be at variance with the  pleadings, the same must be taken into consideration. It is  now well-settled principle of law that evidence adduced  beyond the pleadings would not be admissible nor any  evidence can be permitted to be adduced which is at variance  with the pleadings.  The court at a later stage of the trial  as also the appellate court having regard to the rule of  pleadings would be entitled to reject the evidence wherefor  there does not exist any pleading.  

       Furthermore, the High Court has not arrived at a  positive finding as to how a prima facie case has been made  out for issuing a direction for recounting.  It is well- settled that prima facie case must be made out for scrutiny  and recounting of ballot papers where it is of the opinion  that the errors are of such magnitude as to materially  affect the election. [See M.R. Gopalakrishan vs. Thachady  Prabhakaran - 1995 Supp.(2) SCC 101].

EXTENT OF PROOF :

       The requirement of laying foundation in the pleadings  must also be considered having regard to the fact that the  onus to prove the allegations was on the election  petitioner.  The degree of proof for issuing a direction of  recounting of votes must be of a very high standard and is  required to be discharged. [See Mahender Pratap vs. Krishan  Pal and Others - (2003) 1 SCC 390].                      In T.H. Mustaffa (supra), this Court held that when the  pleadings do not contain the material facts and necessary  particulars, any amount  of evidence would be insufficient.            Even in the recount it was found that the returned  candidate has not secured majority of the votes, the result  could not have been disturbed, unless prima facie case of  high degree of probability existed for recount of votes.  [See P.K.K. Shamsudeen vs. K.A.M. Mapillai Mohindeen -  (1989) 1 SCC 526 at 530, 531].                  For the reasons aforementioned, the impugned judgment  cannot be sustained.  It is set aside accordingly.  The  appeal is allowed. However, there shall be no order as to  costs.                                                                                  However, keeping in view the fact that the election  petition is pending for a long time, the High Court may  consider the desirability of disposing of the same as  expeditiously as possible and preferably within a period of  three months from the date of receipt of a copy of this  order.  The records of the case, if received, be sent down  forthwith.

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