JUDGMENT 1. - This is Civil Miscellaneous appeal under section 46 of the Rajasthan Municipalities Act, 1959, against an order of the Civil Judge, Churu, dated January 16, 1976, whereby the appellant's election as a member of the Municipal Board, Chappar, was set aside. 2. The relevant facts giving rise to this appeal are these. The election of Municipal Board, Chappar, was held on September 15, 1975. From Ward No. 9, there were three contestants, (1) appellant Jai Chand Lal, (2) respondent No. 1 Ramjilal, and (3) respondent No. 2 Bhuramal. Bhuramal secured 7 votes only. Jai Chand Lal and Ramjilal secured equal number of votes, namely, 186 votes each. A lot was, therefore, drawn by the Returning Officer on September 16, 1974, as per section 56 of the Rajasthan Municipalities Election Order, 1960. Since the lot fell on Jai Chand Lal, he was declared duly elected by the Returning Officer. On October 14, 1974, Ramjilal filed an election petition challenging the election of Jai Chand Lal on the following grounds amongst others:- " 1- oksVksa dh fxurh ds le; fuokZfpr vf/kdkjh egksn; us ,d oksV tks Li"V :i ls nksuksa ds i{k esa Fkk dks jn~n djds xyrh dh gSA ernkrk dh eu'kk Li"V:i ls ;kph dks oksV nsus dh Fkh vkSj ;kph dk pquko fpUg gkFkh FkhA mlh gkFkh ds fp= ij ernkrk us fu'kku yxkdj oksV fn;k ijUrq fuokZpu vf/kdkjh egksn; us oksV dks jn~n dj ds xyrh dh gSa vkSj bl dk;Z ls pquko ifj.kke ij egRoiw.kZ vlj igqapk gSA blfy;s izfr;kph la0 1 dk pquko fu.kZ; xyr ,oa voS/k gSA 2- Jheku fuokZpu vf/kdkjh egksn; us ,d er dh x.kuk izfr;kph la0 ds i{k esa djds xyrh dh gSa D;ksafd ml er ij dksbZ fu'kku ugha Fkk vkSj eri= Li"V :i ls CyaSd Fkk vkSj fu;ekuqlkj dksbZ fu'kku eri= ij dks fuokZfpr vf/kdkjh egksn; us izfr;kph la0 dks i{k esa fxudj xyrh dh gSa vkSj bl dk;Z ls Hkh fu.kZ; ij egRoiw.kZ vlj igqapk gSaA " Ramjilal made two fold prayer in the election petition. In the first instance, it was prayed that the election of Jai Chand lal be declared void and secondly, that he (Ramjilal) be declared elected instead. It was also prayed that the ballot papers be rescrutinised to find out the mistake committed by the Returning Officer. Jai Chand Lal, the returned candidate, resisted the election petition. In the first instance, it was prayed that the election of Jai Chand lal be declared void and secondly, that he (Ramjilal) be declared elected instead. It was also prayed that the ballot papers be rescrutinised to find out the mistake committed by the Returning Officer. Jai Chand Lal, the returned candidate, resisted the election petition. He denied that any vote in favour of the election petitioner has been wrongly rejected or that any vote had been wrongly counted in his favour. According to him, no mistake was mistake was committed by the Returning Officer in counting the votes. He further pleaded that no objection whatsoever was raised by the election petitioner or this authorised agent at the time of counting. If the Returning Officer had wrongly rejected or accepted any vote, the election petitioner would have given full details of each vote specially when the prayer was for recounting of votes. 3. The learned Civil Judge framed following issues:- "(1) Whether any particular voter had affixed the seal on the election symbol elephant and the Returning Officer had treated this vote as cancelled, if so what is its effect on this petition? (2) Whether Murari Lal voter was disallowed to cast (the duty) vote and what is its effect on the petition? (3) Whether the Returning Officer had counted a blank ballot paper in favour of non petitioner No. 1 and has it any effect on this election petition? (4) Whether the non petitioner No. 1 had paid a bribe of Rs. 600/- to non petitioner No. 2 and thereby he had discouraged the non petitioner No. 2 from fighting the election. If so, what bearing has it upon this cause of action? (5) Whether the election petition has not been presented in accordance with law and the verification of it is not legal, so the petition is not competent? 4. The learned Civil Judge, without giving any opportunity to the parties to adduce evidence, straightway scrutinised the two rejected ballot papers and found that the ballot paper marked Ex.P.2, which was cast in favour of Jai Chand Lal, was wrongly rejected by the Returning Officer. The learned Civil Judge added this one vote, making a total of 187 votes in favour of Jai Chand Lal, against 186 votes in favour of Ramjilal. The learned Civil Judge added this one vote, making a total of 187 votes in favour of Jai Chand Lal, against 186 votes in favour of Ramjilal. On the above conclusion, the learned Civil Judge allowed the election petition set aside the election of Ramjilal, and declared Jai Chand Lal as duly elected member of the Municipal Board, Chappar, from Ward No. 9. Dissatisfied with the said order, Ramjilal has preferred this appeal section 46 of the Rajasthan Municipalities Act, 1959. 5. This appeal came up before me for hearing on January 8, 1976. It was thought necessary to frame the follows issues:- Whether it is a fit case for the scrutiny of the rejected ballot papers? This issue was remitted for trial to the learned civil Judge, with the direction to afford an opportunity to the parties to adduce evidence on the above issue and send his finding thereon along with the evidence within two months. The learned Civil Judge, after recording evidence of the parties found that it was a fit case for the scrutiny of the rejected ballot papers in the interest of justice. 6. Arguing the appeal, Mr. M.B.L. Bharagava, learned counsel for the appellant, contends that the learned Civil Judge committed gross error in treating the present case to be a fit case for the scrutiny of the rejected ballot papers. Elaborating his argument, Mr. Bhargava has urged that the grounds mentioned in the election petition are, by no stretch of imagination, sufficient to justify the scrutiny of the rejected ballot papers, because the allegations made in the petition are totally ambiguous and vague. Mr. Bhargava has emphasised that unless definite allegation as the non acceptance or the rejection of the ballot paper was made, no re-scrutiny and recounting could be ordered. According to Mr. Bhargava, the petitioner must have mentioned in his election petition the number of the wrongly rejected ballot paper and in the absence of that, it was wrong on the part of the learned Civil Judge to conclude, prima facie case for ordering a re-scrutiny. 7. On the other hand, it is contended on behalf of Jai Chand Lal that the case for recount was made out by the election petitioner and all necessary particulars were mentioned in the election petition. 8. 7. On the other hand, it is contended on behalf of Jai Chand Lal that the case for recount was made out by the election petitioner and all necessary particulars were mentioned in the election petition. 8. The question that arises for consideration in the present appeal is whether the election petitioner has made out prima facie case for inspection of the rejected ballot papers. Section 38 of the Rajasthan Municipalities Act lays down as to what are to be the contents of an election petition. I may read this section which is as under:- "Section 38. Contents of petition - (1) An election petition:- (a) shall contain a concise statement of the material facts on which the petitioner relied; (b) set forth full particulars of any corrupt parctice that the petitioner alleges, 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; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908) for the verification of pleadings. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." The section does not provide, in so many words, that serial numbers of rejected ballot papers and the grounds on which they were rejected, where the allegation is that they were wrongly rejected to the prejudice of the election petitioner, are to be furnished in the election petition. In Vasudev v. Ram Kishan and others, AIR 1972 Raj 74 which was a case under the Rajasthan Municipalities Act, Hon'ble Kansingh, J. after review of several authorities laid down:- "To my mind, while it is desirable that an election petitioner should specify the number of ballot papers which he wants to be counted in his favour or to be rejected against the opposing candidate or candidates, but this cannot be said to be the sine qua non for making out a case for the inspection or scrutiny of ballot papers in each and every case. By and large, it should depend on the facts and circumstances, of the particulars case in hand." If I may say so with respect, I am in entire agreement with the above principle propounded by Hon'ble Kan Singh J. 9. Now let me turn to the facts of the present case. Ramjilal, in his election petition, has very clearly stated that one of the ballot papers which was rejected by the Returning Officer bore the seal impression on the election petitioner's symbol "elephant" and that clearly showed the intention of the voter to vote for the election petitioner. It was further mentioned that the Returning Officer, in the circumstances of the case, wrongly rejected the said ballot paper. Having regard to the circumstances of the case in my opinion, the aforesaid particulars given in the election petition about the wrong rejection of one ballot paper, cannot be said to be vague or ambiguous. It is true that the ground of rejection of the said ballot paper was not mentioned in so many words, but all the necessary particulars were mentioned by narrating that the seal impression on that rejected ballot paper was affixed on the symbol "elephant". The particulars mentioned in the election petition are sufficient for the court to re-scrutinise or recount the rejected ballot papers. It is significant to note that in the present case, these were only two ballot papers which had been rejected by the Returning Officer. In my opinion, in such a case it was not necessary to give the serial number of the rejected ballot paper. It was observed by Kan Singh J., in Vasudev's case (1), to which I entire agree, that "where there are quite a large number of votes, about which a challenge is made then it can be expected of the party to disclose the number of such ballot papers in order to avoid fishing or roving enquiry into the ballot boxes, but where the number of ballot papers to be counted is indicated with sufficient particularity otherwise, and the number is not large, the mere fact that the numbers have not been given in the election petition, it may not disentitle the party from asking for the scrutiny of the ballot papers." 10. I may also mention here that on remitting the issue by this Court the election petitioner Ramjilal examined himself and one more witness PW2 Shanker Lal. I may also mention here that on remitting the issue by this Court the election petitioner Ramjilal examined himself and one more witness PW2 Shanker Lal. The latter had acted as election agent of the petitioner. In rebuttal, Jai Chand Lal appeared in the witness box and examined DW2 Phoos Raj and DW3 Shri S.S. Bhandari, the Returning Officer. The learned Civil Judge, who recorded the above evidence, after discussion came to the conclusion, and in my opinion rightly, that, there existed a prima facie case in the interest of justice for re-scrutiny or recount. I am satisfied that the court below was justified in examining the rejected ballot papers. 11. Mr. Bhargava, learned counsel for the appellant has next contended that Ramjilal and his agent were present throughout at the time of counting and none of them claimed recount when under section 55 of the Rajasthan Municipalities Election Order, 1960,it was possible to claim recount more than once during the process of counting itself. Mr. Bhargava submits that Ramjilal did not ask for a recount because he was fully satisfied with the result of the counting and the decision was fully accepted in writing by both the parties. Mr. Bhargava further submits that the Returning Officer drew a lot only after Ramjilal and Jai Chand Lal had given their consent. It is further submitted that both of them even signed the proceedings for drawing the lot. In these circumstances, it is urged that Ramjilal was estopped from challenging the verdict of the Returning Officer declaring Jai Chand Lal to be duly elected. It is further, urged that Jai Chand Lal under the belief that neither he nor Ramjilal could resile there from. Jai Chand Lal failed to file a recriminatory petition. If the recriminatory petition had been filed by Jai Chand Lal no benefit could accrue to Ramjilal on account of wrongly rejecting one ballot paper by the Returning Officer; the reason being that the Returning Officer, on identical grounds, had also rejected one ballot paper which was cast in favour of Jai Chand Lal. 12. On giving my careful consideration, to the various facts urged by Mr. Bhargava, I regret to say that even assuming the correctness of the said facts, it is difficult to arrive at the conclusion that Ramjilal is estopped from challenging the validity of the election of Jai Chand Lal. 12. On giving my careful consideration, to the various facts urged by Mr. Bhargava, I regret to say that even assuming the correctness of the said facts, it is difficult to arrive at the conclusion that Ramjilal is estopped from challenging the validity of the election of Jai Chand Lal. The failure on the part of Ramjilal or his agent to assert for a recount at the time of counting or the consent of Ramjilal for drawing a lot, cannot, in any manner, adversely affect the conclusion at which the court below has arrived. The Rajasthan Municipalities Act, 1959 provides a remedy by way of election petition for challenging the validity of the election petition for challenging the validity of the election of the returned candidate. The failure to raise objections, at the time of counting or at the time of declaration of the result, cannot estop the defeated candidate from challenging the election of the returned candidate. It is much too sell settled a principle that there can be no estoppel against a statute. If any authority is needed for this proposition, reference be made to City Tobacoo Mart, Banglore and others v. Income Tax Officer, Banglore,AIR 1955 Nag 49 , Quarabali and others v. Government of Rajasthan and others, AIR 1960 Raj 152 , and Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126 . I may further add that there can be no question of any estoppel in such cases because it cannot be said that the position of the other side was in any way altered by reason of something done or not done by the petitioner. I may also mention here that Jai Chand Lal was at liberty to move a recriminatory petition when the election petition had been filed against him. If he failed to do so, the blame lies on him and not on the petitioner Ramjilal. 13. For the reason stated above, I see no merit in this appeal and dismiss it with costs. *******