JUDGMENT : Mitter, J. 1. This is an appeal by a returned candidate whose election was set aside on a petition filed by one Tirlochan Singh, another candidate contesting the seat for the Puccakalan Assembly Constituency in District Bhatinda of Punjab in the General Elections of 1967. 2. Originally there were six candidates, two of whom withdrew leaving four in the field. The petitioner contested the election on a Congress ticket. The appellant who had the support of the Akali Dal (Sant group) polled 19,965 votes as against 15,864 votes secured by the petitioner. The two other candidates, Amar Singh and Chand Singh polled 987 and 1625 votes respectively. The appellant was charged with various kinds of corrupt practices in the election petition filed on April 7, 1967. By his written statement filed on May 10, 1967 the appellant denied the commission of the same. Five issues with different sub-issues were framed by the learned trial Judge on May 18, 1967. Of these Issues 3 and 5 were not pressed at the hearing and Issues 1 and 2 were decided against the petitioner. It is only the fourth issue which was held against the appellant and the only issue with which we have to deal in this appeal. The issue reads: "(4)(a) Did Respondent 1 through his agent Ganda Singh, enter into an agreement with the Harijan voters of Village Jodhpur Ramana, named in sub-clause (b) of para 15, to make a gift of Rs. 1500 to them for the construction of a Dharamsala for the Harijans in that village after the result of the election had been declared, with a view to influence the Harijan voters of that village to cast their votes in favour of of Respondent 1? (b) Was the aforesaid sum deposited with Manohar Lal, brickkiln owner, with instruction to supply the bricks after the election was over? If so, were the bricks so supplied or are being supplied for the Harijan Dharamsala in pursuance of the abovementioned agreement? (c) If so, is Respondent 1 not guilty of corrupt practice of bribery? 3. On the above issue, the plea in the election petition is contained in para 15 to the effect that Karnail Singh had struck a bargain with the Harijan voters of Village Jodhpur Ramana for inducing them to vote for him. (c) If so, is Respondent 1 not guilty of corrupt practice of bribery? 3. On the above issue, the plea in the election petition is contained in para 15 to the effect that Karnail Singh had struck a bargain with the Harijan voters of Village Jodhpur Ramana for inducing them to vote for him. This was negotiated by the appellant through one Ganda Singh of the same village. In substance the plea was that the appellant had offered the Harijan voters through two of their representatives Sunder Singh and Mansha Singh Rs. 1500 for construction of a Dharamsala for the Harijans in Village Jodhpur Ramana in return whereof the Harijans were to vote solidly for him. The arrangement was arrived at in the house of Ganda Singh on February 18, 1967, that is to say, only a day before the date of the poll. The said paragraph of the petition goes on to narrate that following the above Rs. 1500 was deposited with a brickkiln owner M/s Manohar Lal for the supply of bricks after the election and the Harijan voters voted for the appellant and at the date of the filing of the election petition, bricks were being supplied for the construction of the Harijan Dharamsala. In his written statement, the appellant denied the entire plea covering the agreement with all particulars thereof including the allegation that he had ever approached Ganda Singh or the leaders of the Harijan community, Sunder Singh and Mansha Singh, through the said Ganda Singh to get the support of Harijan voters by offering Rs. 1500 as a gift for the construction of a Dharamsala as alleged in para 15 of the election petition: no meeting had taken place in the house of Ganda Singh on February 18, 1967 and no person of the name Ajaib Singh, a relation of Ganda Singh was present there at all. The particulars with regard to the payment of the sum of Rs. 1500 were also denied. According to the appellant, the supply of bricks for the construction of the Dharamsala had nothing to do with the appellant and he denied as a matter of fact that any bricks had been so supplied. 4. The witnesses who deposed in favour of the petitioner on the above issue were Mansha Singh, Ajaib Singh, Sunder Singh and the petitioner himself although he had no personal knowledge. 4. The witnesses who deposed in favour of the petitioner on the above issue were Mansha Singh, Ajaib Singh, Sunder Singh and the petitioner himself although he had no personal knowledge. The brickkiln owner, Manohar Lal was also examined by the petitioner but his evidence does not help the petitioner. On the side of the appellant the witnesses examined were Ganda Singh and the returned candidate himself. The evidence of Mansha Singh given in his examination-in-chief was as follows. The appellant had gone to their village about a week before the date of the polling and there at the house of Ganda Singh he had sent for the witness and Sunder Singh, members of the Panchayat and asked them to secure for him the votes of the Harijans in the forthcoming election. No mention was made about the construction of any Dharamsala or the passing of any money on that occasion. The witness told the appellant that he would ascertain the views of the community and let him know later on. A meeting was actually called two or three days thereafter and the Harijan members left the decision to the witness and Sunder Singh. It is further to be noted that nothing was said in the examination-in-chief that there was any discussion among the members of the community that votes should be given only to the person who would help in the construction of the Dharamsala, According to the witness, he went to Ganda Singh's house again on the 18th of February, 1967 when the appellant was already there besides Sunder Singh and Ajaib Singh, a relation of Ganda Singh. The witness told the appellant that the Harijans wanted Rs. 2000 for construction of the Dharamsala and if the money was forthcoming, something like 17.5 votes of the Harijans would be cast in his favour. The appellant agreed to contribute Rs. 1500 for the Dharamsala and handed over the money to Ganda Singh then and there. On being approached by the witness about a week after the election Ganda Singh arranged for supply of bricks and cement and had the same transported by his tractor for the construction of the Dharamsala. The bricks were brought from a kiln which was situated midway between Jodhpur-Ramana and Bhatinda. The witness had no idea as to the source of the cement. The bricks were brought from a kiln which was situated midway between Jodhpur-Ramana and Bhatinda. The witness had no idea as to the source of the cement. According to the witness the construction of the Dharamsala was complete except the fixing of the rain water pipes. In cross-examination the witness stated that Harijans had decided to cast their votes in favour of the Congress candidate and if the appellant had not given the money, he would not have received the votes. He admitted that he was a member of the Khadi Board and some of the Harijans numbering about eighteen had formed a society for taking loan from the Congress Government. He also said that he had instructed the Harijan voters that as the appellant had given Rs. 1500 kept in deposit with Ganda Singh, they should all vote solidly for him. 5. The evidence of Sunder Singh in his examination-in-chief was somewhat different. According to him the Harijans had come to a decision about a week before the date of the poll that they would all vote for the candidate who would assist them in getting their Dharamsala erected. On the same day, being approached by Ganda Singh the Harijans told him that they would vote for a person willing to pay Rs. 2000 for the purpose. Ganda Singh agreed to the course proposed. Being sent for by the latter on February 18, 1967 at about 7 p.m. the witness went to Ganda Singh's house in company of Mansha Singh where they found Karnail Singh and Ajaib Singh. The views of the Harijans being put to the appellant Ganda Singh told them that appellant was agreeable to give Rs. 1500 in return for the votes of the Harijans. The appellant took out Rs. 1500 and gave it to Ganda Singh as directed by the Harijan leaders. Some twenty days thereafter, bricks began to arrive and construction of the Dharamsala was taken up. Two girders, some iron bars and some cement were brought by Ganda Singh. The witness also stated that recently some addition to the village school building had been made. In his cross-examination he said that about a week before, the election the petitioner had also approached them for their votes but the election petitioner was not informed about the decision of the Panchayat to vote for anybody who helped them in putting up the Dharamsala. In his cross-examination he said that about a week before, the election the petitioner had also approached them for their votes but the election petitioner was not informed about the decision of the Panchayat to vote for anybody who helped them in putting up the Dharamsala. Ganda Singh had approached them and told them that the appellant was agreeable to put up the money. There was no such talk with the other candidates at the election. According to witness only one room had been added to the Dharamsala after the election and bricks were lying about with the parapet still to be built. Before the election the Dharamsala had no room where the Harijans could sit. They had previously purchased a Kutcha Kotha for Rs. 650. The witness was not present in the village during the period when the construction of the Dharamsala was in progress and he could not therefore give any details with regard thereto. 6. Ajaib Singh gave evidence to the effect that he was present at the meeting in the house of Ganda Singh on February 18, 1967 and that the appellant had given Rs. 1500 to Ganda Singh for the construction of the Dharamsala. The learned trial Judge found himself unable to accept Ajaib Singh's evidence as he was of the view that Ajaib Singh had no reason to be present in the village on February 18 and therefore his evidence was not acceptable. 7. The election petitioner also examined Manohar Lal, proprietor of brick kiln, Bhatinda mentioned in the petition. This witness said that he had a brick kiln at some distance from Jodhpur-Ramana but no bricks had come out of his kiln before April 1, 1967 and it was only on April 6, 1967 that 11,750 bricks were supplied to the school committee and subsequent thereto other supplies had been made in April, June and in August 1967. He was positive that no stock of bricks was available at his kiln earlier than the 1st of April and it was therefore not possible for him to supply any bricks before that date. He even went to the length of saying that the fire was set to his kiln on 14th March, 1967 and it was only on April 1, 1967 that four thousand bricks were taken out therefrom for the first time. 8. He even went to the length of saying that the fire was set to his kiln on 14th March, 1967 and it was only on April 1, 1967 that four thousand bricks were taken out therefrom for the first time. 8. The evidence of the election petitioner is not material on this issue as he had no personal knowledge himself. The appellant stated in very clear terms in his examination-in-chief that he had never gone to the house of Ganda Singh and that in every village he used to go to the Sath. He never had any talk with the Harijans of the said village about their voting for him in consideration of any monetary contribution nor was any payment ever made by him. 9. On this state of the evidence, it would be difficult to hold the appellant guilty of the commission of any corrupt practice by the offer to pay any money to the members of the Harijan community in return for their votes or that he actually paid any money for the purpose. But what turned the scale against the appellant was the evidence of Ganda Singh and the report of the local commissioner appointed by the trial Judge. Ganda Singh stated that Mansha Singh and Sunder Singh were supporters of the Congress party and they had never approached him on any occasion requesting him to secure some money or donation for the Dharamsala in return for promise to vote for the helper. He stated further that the appellant had never visited his house with a request to get the Harijans to cast their votes in his favour. The appellant never gave him Rs. 1500 or any other sum for the purpose mentioned in the petition. According to the witness, the purchase of a built up kotha with a verandah and a Deori had been made for the Harijans in the year 1964 to serve the Harijans as their Dharamsala and for which purpose Rs. 600 had been collected from the Biswedars and Rs. 300 from the Harijans themselves. The verandah was a pucca one and the wall of the Kotha adjoining the lane was kutcha. The Deori was also pucca. His answer to the last question put in examination-in-chief was that the Dharamsala was exactly in the same condition on 6th September, 1967 as it was when purchased in 1964. 300 from the Harijans themselves. The verandah was a pucca one and the wall of the Kotha adjoining the lane was kutcha. The Deori was also pucca. His answer to the last question put in examination-in-chief was that the Dharamsala was exactly in the same condition on 6th September, 1967 as it was when purchased in 1964. In cross-examination it was suggested to him that his answers with regard to the construction of the Dharamsala were not correct and that a room had been recently added to the old building which was already there since the purchase in 1964. The witness admitted the addition of a room but could not be sure whether it was before or after the date of polling. When he was asked whether it had been constructed during the month of March, he was not in a position to give the correct date. His answer to the question put that a room had been added to the school during the month of February, was equally vague. He could not give the approximate date of commencement of the construction. Towards the end of his cross-examination, the learned trial Judge put several questions to him suggesting that the Dharamsala was actually still under construction as would be borne out by local inspection. The witness, however, stuck to his previous answer and said that the Dharamsala was in the same condition as that in which it was purchased and no additional construction had been put up. It appears that the learned trial Judge took upon himself the role of a cross-examining counsel and even suggested that a room had been constructed recently with two girders on the roof. The witness answered that there were no girders and only wooden beams had been used for the roof. 10. Evidently the learned Judge was not satisfied with the answers given by the witness and he appointed a commissioner to make local investigation and report as to the construction described as a Dharamsala by the witnesses. The commissioner made his report on 11th September. 1967 to the effect that the Dharamsala consisted of one small room, a big room, one back courtyard and a big "Thara" in the front. The commissioner made his report on 11th September. 1967 to the effect that the Dharamsala consisted of one small room, a big room, one back courtyard and a big "Thara" in the front. The small room was an old construction, but so far as the big room was concerned, one of the walls was old, while the three other walls were partly old and partly new especially at the top. The ceiling of the big room constructed of bricks appeared to be newly built. It has an arched roof with two iron girders, five iron bars (tierods) and ten iron loops still hanging from the ceiling. There was no plastering done to the ceiling of the big room and some sand was still sticking to the cement mortar used. According to the report, the big room with its ceiling appeared to be newly constructed within about six months. Further, the western wall of the court yard was newly built of bricks and the upper layers of the bricks of the western wall appeared to have been placed there very recently. 11. In his judgment the learned Judge commented on the change in the story set up by the election petitioner at the trial is that the amount of Rs. 1500 stated in the petition to have been given to Manohar Lal for supply of bricks was said to have been made over to Ganda Singh himself at the meeting of 18th February, 1967 and it was Ganda Singh who had supplied the bricks, cement and the iron girders after the election and looked after the construction of the Dharamsala. Although be was conscious of the fact that the evidence as unfolded by the witnesses was at variance with the case set up in the petition, the learned Judge thought that no harm had been done to the appellant as no objection had been taken on his behalf to the course adopted by the election petitioner at the trial. In our view, the learned Judge was not right in this. Some departure from the case set up in an election petition may be accepted but not where the evidence of the witnesses is completely different from the case sought to be set up in the petition. In our view, the learned Judge was not right in this. Some departure from the case set up in an election petition may be accepted but not where the evidence of the witnesses is completely different from the case sought to be set up in the petition. Probably the change in the case of the election petitioner was made because Manohar Lal was not prepared to assist the election petitioner by stating that he had received Rs. 1500 for supply of bricks and therefore the story had to be changed by the testimony of the witnesses to the effect that it was Ganda Singh who had received this sum of money. As we have already noticed, the learned trial Judge rejected the evidence of Ajaib Singh. That leaves us with the story set up by Mansha Singh and Sunder Singh. We find ourselves unable to accept the testimony of these witnesses. On their own version, although they were supporters of the Congress Organisation and had obtained help from the previous Congress Government they had no hesitation in selling their votes to anybody who paid them money even against the Congress candidate. Further, we find it difficult to appreciate why they should not have informed the Congress candidate that they were in need of money for the Dharamsala and if some money was forthcoming the Harijan community would be agreeable to consider giving support to the Congress as in the past. The learned Judge noticed that there were discrepancies between the statements of Mansha Singh and Sunder Singh but he described them as only with regard to details. As we have already noted, the discrepancy was not only with regard to the deposit of money but the way in which the money was demanded. According to Mansha Singh there was no talk of money with the appellant at the first meeting on the 12th of February and at the meeting of the community two or three days thereafter nothing was said about money for the Dharamsala. This is directly contradictory to Sunder Singh's evidence that the community were prepared to sell their votes to anybody who paid them money for raising the Dharamsala. This is directly contradictory to Sunder Singh's evidence that the community were prepared to sell their votes to anybody who paid them money for raising the Dharamsala. Mansha Singh did not further say that at the meeting of the community held two or three days after 12th February it was decided that the Hadjans should only cast their votes in favour of anybody who was agreeable to meet the expenses of the construction of the Dharamsala. It was therefore on his own initiative that Mansha Singh had told the appellant on the 18th February that votes would be cast only if Rs. 2000 as required by the members of the Harijan community were forthcoming for the construction of the Dharamsala. It is difficult to believe that if the appellant Karnail Singh knew that he would have to purchase the votes by paying up money he would leave it till a few hours before the poll and he would be carrying money with him to the extent of Rs. 1500 and make it over to Ganda Singh when he had not been given any idea as to the amount which would be necessary. 12. The evidence furnished by the report certainly goes against the testimony of Ganda Singh. It would appear that there had been some addition to the already existing building termed as Dharamsala within a few months before September 1967 when the election petition was being heard. But we have no evidence before us as to who was responsible for the expenses and merely because Ganda Singh's evidence with regard to the construction of the Dharamsala was not acceptable to the Judge he should not have reached the conclusion that the Dharamsala had been constructed out of money made over to Ganda Singh by the appellant. The witnesses, Mansha Singh and Sunder Singh being suspect and their evidence being in the nature of evidence given by accomplices besides the contradictory evidence of Karnail Singh, we find ourselves unable to uphold the judgment of the learned trial Judge that the appellant had met members of the Harijan community at the house of Ganda Singh on 18th February 1967 and promised to give Rs. 1500 for the construction of the Dharamsala or had, as a matter of fact, made over Rs. 1500 to Ganda Singh as stated in the evidence though not pleaded in the petition. 1500 for the construction of the Dharamsala or had, as a matter of fact, made over Rs. 1500 to Ganda Singh as stated in the evidence though not pleaded in the petition. In the trial of an election petition evidence has to be scrutinised with a good deal of care particularly where the commission of a corrupt practice is alleged and we see no sufficient reason for accepting a case where there is a substantial difference between the pleading and proof as was allowed by the learned trial Judge in this case. Evidence should be led strictly according to the pleading and a party who proposes to set up a case at variance with his pleading should apply for an amendment thereof and it will then be for the learned trial Judge to decide whether amendment should be allowed at that stage. The respondent should be given an opportunity to amend his reply. All these precautions were not taken in the trial from which this appeal has been brought. There is no justification for the course adopted at the trial and on the evidence we find ourselves unable to uphold the decision of the learned trial Judge setting aside the election of the appellant. 13. We, therefore, allow the appeal with costs throughout. We also note with some regret that the learned trial Judge did not allow the successful petitioner his costs merely because some of the pleas set up by him were not accepted but on the facts of the case there was no sufficient reason for depriving the successful litigant of his costs. Costs, as a rule, should follow the event and if it was the view of the trial Judge that the election petitioner had set up a case part of which could not be upheld he should have made a proper order for costs in his favour keeping that in mind.