Chotey Singh Yadav v. Santosh — 1987 DIGILAW 1235 (ALL)

ORDER V.K. Mehrotra, J. - General Election to the U.P. Assembly took place in the year 1985. 310 Chhibramau Assembly Constituency was also called upon to elect its Member. The last day for filing nomination was February 6, 1985. The date of poll was March 5, 1985. In between. were the dates for scrutiny of the nominations and for withdrawal. Several persons, including the petitioner Chhotey Singh Yadav, filed their nomination papers for this Constituency. After the scrutiny and withdrawals 16 candidates in all remained in the field. They included the petitioner as well as the first respondent, Sri Santosh, apart from whom 14 more persons were in the fray. They are respondents Nos. 2 to 15 in this writ petition. 2. Polling took place on March 5. Re-poll was ordered by the District Magistrate on filling centres, namely, Polling Stations Nos. 47 and 48 (Dadauna) and 64 and 65 (Jafarabad). Re-poll took place on March 6, 1985. Counting took place on March 6, 1985 and continued till the next day. Sri Santosh, first respondent was declared elected. Santosh is said to have received 28570 votes while petitioner Chhotey Singh Yadav, who polled the next highest number of votes, was said to have obtained 28534 votes. The margin by which he lost the election is of 36 votes. 3. On April 9, 1985 this election petition was presented by Chhotey Singh Yadav in which he has challenged the election of Santosh on the undermentioned three grounds enumerated in paragraph 16 of the petition "(A) Because the result of the election has been materially affected by non-compliance of the provisions of the Representation of the People Act, Rules and Orders framed therein and also on account of contravention of the provisions of the Representation of the People Act, Conduct of Election Rules, 1961, and the Orders framed thereunder and also issued by the Election Commission from time to time. (B) Because the result of the election has been materially affected by the improper reception of invalid votes in favour of the Respondent No. 1, by improper refusal of acceptance of valid votes of the petitioner, by improper rejection of valid votes of the petitioner and also by improper reception of invalid votes in favour of other candidates. (B) Because the result of the election has been materially affected by the improper reception of invalid votes in favour of the Respondent No. 1, by improper refusal of acceptance of valid votes of the petitioner, by improper rejection of valid votes of the petitioner and also by improper reception of invalid votes in favour of other candidates. (C) Because the Respondent No. 1 was also disqualified for being a candidate for the U.P. Lagislative Assembly inasmuch as he was panel lawyer of Gaon Sabhas in Tehsil Chhibramau appointed by the State Government on remuneration and was holding the office of profit under the State Government of Uttar Pradesh and was thereby disqualified to be a member of U.P. Legislative Assembly under Article 191(1)(a) of the Constitution of India" 4. Concise statement of material facts in respect of these grounds are contained in paragraphs 17, 18 and 19 of the petition. The principal relief sought in the election petition is that after declaring the election of the first respondent to be null and void the petitioner may be declared to be a duly elected member of the Assembly Constituency. 5. On service of notice of the petition upon him, the first respondent Santosh put in appearance. He filed the present application (A-7) on September 17, 1985 praying that certain paragraphs of the election petition be struck off under R. 16 of O. 6 C.P.C. and the petition be dismissed under S. 86(1) of the Representation of the People Act, 1951 (hereinafter "the Act") for non-compliance with the provisions of Sections 81, 82 and 117. The application is supported by an affidavit of the first respondent. Chhotey Singh Yadav has filed a counter affidavit in this application. 6. In the election petition the first respondent has filed a written statement. He has also filed a Recriminatory petition under S. 97 of the Act with the prayer that Chhotey Singh Yadav be declared to have committed corrupt practices mentioned in it and be debarred for a period of six years from contesting any election. The Recriminatory petition is duly supported by an affidavit of the first respondent. Dr. O. P. Verma, who is arrayed as respondent No. 7 in the election petition, has also filed a written statement to which a replication has been filed by Chhotey Singh Yadav. 7. The Recriminatory petition is duly supported by an affidavit of the first respondent. Dr. O. P. Verma, who is arrayed as respondent No. 7 in the election petition, has also filed a written statement to which a replication has been filed by Chhotey Singh Yadav. 7. The election of the first respondent Santosh from 310 Chhibramou Assembly Constituency was challenged by one Ram Prakash Tripathi in election petition No. 24 of 1984. The ground taken was that the nomination of Tripathi was improperly rejected on the ground that he was holding an office of profit under the State of U.P. as a teacher in an aided Institution which had rendered the election to the Constituency void under S. 100(1)(c) of the Act. That petition was allowed on August 12, 1987 and the election of the first respondent was declared void. Operation of the judgment of this Court stands stayed pending an appeal against it before the Supreme Court. The election of the first respondent to the Constituency was also assailed in election petition No. 12 of 1985 by O.P. Verma alias Dr. O.P. Verma. That petition was dismissed on November 25, 1987. 8. Coming now to application A-7 under 0. 6 Rule 16 C.P.C. The basic principles about consideration of the prayer of the nature contain d in this application are no more in doubt. The election petition is to be read as a whole and the assertions are to be construed properly discovering the intention of the party concerned primarily from the tenor and terms of the pleading taken asa whole Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 and K.N. Mani v. P.J. Antony, AIR 1979 SC 234 . A case founded upon grounds mentioned in S. 100(1)(d)(iii) and (iv) would merit trial if the general allegations contained a concise statement of material facts and raised a triable issue (Arun Kumar Bose v. Mohammad Furkan, AIR 1983 SC 1311 and S.N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 . Evidence is not to be mentioned in the petition nor are particulars to be given Kidwai Hussain Kamil v. Yadav Ram Sewak, AIR 1964 All 86 , B.S. Sharma v. Sri Rain Dutt, AIR 1964 Raj 99 and Manphul Singh v. Surinder Singh, AIR 1973 SC 2158 . 9. Evidence is not to be mentioned in the petition nor are particulars to be given Kidwai Hussain Kamil v. Yadav Ram Sewak, AIR 1964 All 86 , B.S. Sharma v. Sri Rain Dutt, AIR 1964 Raj 99 and Manphul Singh v. Surinder Singh, AIR 1973 SC 2158 . 9. The question whether some of the paragraphs of the petition deserve to be struck off under Order VI Rule 16 C.P.C. is to be examined on consideration of the averments made in the election petition on the assumption that they are true. Also, having regard to the language of the rule, it has to be found out whether the averments sought to be struck of are either unnecessary, frivolous and vexatious or that they are such as may tend to prejudice, embarrass or delay fair trial of the election petition or that they constitute an abuse of the process of the Court. It has to be kept in mind that the burden of disclosing facts which are not within his knowledge cannot be cast on the election petitioner Roop Lal v. Nachhattar Singh, AIR 1982 SC 1559 . 10. The facts which should be stated in the petition should be those which, prima facie, show that the result of the election, in so far as it concerned the returned candidate had been materially affected on account of the 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. Proper foundation should be laid in the election petition about it, in order to obtain re-count of votes (D.P. Sharma v. Commissioner & Returning Officer, AIR 1984 SC 654 ) Similarly, the non-compliance of the provisions of the Act and the Rules or the orders made under the Act put forward by the election petitioner as a ground for setting aside the election of the returned candidate should be such which prima facie show that the result of the election, in so far as it concerned the returned candidate had been materially affected by it. The approach which the Court is to adopt while considering an application of the nature of A-7 has been indicated by me, after considering detailed submissions' of learned counsel and after referring in it to a large number of decisions of the Supreme Court, in my order dated February 23, 1987 (reported in 1987 All LJ 1137) on a similar application (paper A-9) in election petn. No. 16 of 1985 (Ambrish v. Mahabir Singh Rana) and in my order of March 2, 1987 on an application (A-5) of a similar nature in election petn. No. 15 of 1985 (reported in AIR 1988 All 116 ) (Amar Nath v. Janardan Prasad Ojha). When the application (A-7) in the present petition was taken up, counsel for-the parties (Sri R.C. Srivastava for the petitioner and Sri A. Kumar for the first respondent) prayed, after placing their view points about the recital of facts in this petition, that these be examined in the light of those principles without referring to the various decisions or submissions which had already been noticed by me in the aforesaid two orders. I proceed to do so. 11. The petition runs into 22 paragraphs of which some have a number of sub- paragraphs. The first five paragraphs recite facts regarding the Assembly Constituency being called upon to elect a member, the various dates, the filing of nominations and the number of persons who remained in the field after scrutiny and withdrawal. In paragraph 6, the allegation is that the District Magistrate directed re-poll for filling centres without any authority and notified about it only through the press. 12. Paragraph 8 (there is no paragraph 7 in the petition) says that in spite of the protest of the petitioner who came to know about it on March 6, 1985 at 7 A.M. re-poll took place on the basis of the illegal order of the District Magistrate on March 6. In paragraph 9 it has been stated that the counting actually started from 8 A.M. of March 6, 1985 and continued till 7 A.M. on March 7, 1985 when the Returning Officer declared illegally the first respondent elected as a member of the Assembly from the Constituency though the petitioner had actually got the majority of valid votes and was entitled to be so declared. The result sheet was illegally changed by the Returning Officer. The result sheet was illegally changed by the Returning Officer. In paragraph 10, the votes received by the various' candidates have been given out in a tabular form along with the name and the party of affiliation or status as independent candidates on the basis of the so called declaration made by the Returning Officer. Paragraph 11 then says that the total number of valid votes polled were shown as 83848 in one Form 20 while in the other such form prepared by the Returning Officer it was shown at 83872. The figures contained in the so called two forms have been mentioned in a tabular form in regard to the various candidates in this paragraph. Paragraph 12 then says that 1116 votes were declared to be invalid by the Returning Officer and the figure was disclosed in the Form 20 prepared by him. In paragraph 13, the petitioner says that the difference of votes between him and the first respondent had been shown to be of 36 although in the correct counting he had secured the highest number of votes and had won with a margin of 842 votes from the first respondent. 13. In paragraph 14 of the petition, it has been alleged that apart from the fact that the record of valid votes of the petitioner and the first respondent had not been made correctly, the Returning Officer did not count postal ballot papers which were six in number nor were 14 tendered votes also counted or mentioned in Form 20. The votes polled at Polling Centres 47,48,64 and 65 on March 5, 1985 were also not counted by the Returning Officer. In paragraph 15 it is said that as a result of the aforesaid counting the first respondent was illegally declared elected by the Returning Officer on March 7, 1985. 14. Paragraphs 20, 21 and 22 of the petition recite the fact about the petition being filed within limitation, necessary number of duly attested copies of the same being filed along with the petition and the deposit of the security of Rs. 2,000/- in the Treasury of the Court on April 6, 1985. 15. The three grounds mentioned in Paragraph 16 and the concise statement of material facts in their support, as given out in paragraphs 17, 18 and 19, of the petition may now he examined. 16. Paragraph 17 has(xii)sub-paragraphs. 2,000/- in the Treasury of the Court on April 6, 1985. 15. The three grounds mentioned in Paragraph 16 and the concise statement of material facts in their support, as given out in paragraphs 17, 18 and 19, of the petition may now he examined. 16. Paragraph 17 has(xii)sub-paragraphs. In sub-paragraphs (i), (ii) and (iii) it has been given out that the polling took place on March 5, 1985 and that it took place peacefully in the presence of the Presiding Officers. Polling Officers, Police Officers and observer of the rank of Additional District Magistrate. In sub-paragraph (iv), the grievance made is that in spite of the fact that the polling took place peacefully, the District Magistrate, in purported Exercise of his powers as District Election Officer, ordered for re-polling at following Stations, 47 and 48 Dadauna and 64 and 65 Jafrabad. This action has been described as illegal and void in sub-paragraph (v) on the ground that the District Magistrate did not have power to direct the re-poll. Thereafter, the provision of S. 58 of the Act is reproduced in sub-paragraph (vi) which is followed by the statement that the power can be exercised only by the Election Commission and not by the Returning Officer-who can only make a report to the Election Commission, in certain situations mentioned in S. 58. In sub-paragraph (viii), the plea is that inasmuch as, re-poll was ordered by the Election Officer and not by the Election Commission, re-poll was void and the ballot papers on the basis of the re-poll could not have been counted so that the election of the first respondent was liable to be declared void on that ground. 17. Sub-paragraphs (ix), (x) and (xi) contain the allegation that if counting was done on the basis of the polling held on March 5, 1985, the petitioner would be found to have received 28,784 votes while the first respondent would have been found to have received 28,320 votes and the former would have been declared elected. However, on account of the re-poll, the petitioner has been found to have received 812 votes while the first respondent had been held to have 851 votes on these following Stations, the difference between the two being of 39 votes while the total difference of votes, as counted by the Returning Officer, has been found to be only of 36 votes. As such, if re-poll had not been illegally ordered, the petitioner would have been declared elected and on account of the illegal direction for re-poll, the result of the election had been materially affected so far as it concerned the first respondent. 18. The criticism which has been made by Sri A. Kumar, appearing for the first respondent, in respect of the assertions made in paragraph 17 is that there is no specific pleading that in the poll, prior to the re-poll on the following Stations, the petitioner had obtained majority of valid votes and that, thereafter, on re-poll his majority had been reduced to minority. The criticism also is that the statements in sub-paragraphs (ix), (x) and (xi) have been sworn on personal knowledge which could not be done without violating secrecy of the ballot about which the petitioner had not made any pleading. The basic criticism is that the petitioner was conscious about the fact that re-poll could be ordered in the event of circumstances mentioned in Sections 57 and 58 of the Act. He was, as is clear from the pleading, also conscious that circumstances mentioned in S. 58 were not present to permit the re-poll. As such, specific plea in that regard was raised However, there was no plea to the effect that the circumstances contemplated by S. 57 were also not present so as to justify an order for re-poll and this failure to exclude the possibility of a direction for re-poll in the circumstances contemplated by S. 57 rendered the pleadings incomplete. This part of the objection over-looks that S. 57 of the Act relates to postponement of polling in certain circumstances not to a re-poll which is envisaged only in those circumstances which are contemplated by S. 58. 19. If the assertions made in paragraph 17 are correct, as they have to be assumed to be at this si age, it cannot be said that they do not give rise to a triable issue between the parties about the validity of the order of re- poll by the Election Officer. The allegations in the various sub-paragraphs of paragraph 17 are not such which can be said to be unnecessary, frivolous and vaxatious or as those which may tend to embarrass or delay fair trial of the petition or were an abuse of the process of the Court. The allegations in the various sub-paragraphs of paragraph 17 are not such which can be said to be unnecessary, frivolous and vaxatious or as those which may tend to embarrass or delay fair trial of the petition or were an abuse of the process of the Court. In fact, there is no submission of this nature on behalf of 'the first respondent. They cannot be directed to be struck of under R. 16 of Order 6 C.P.C. If they are read as a whole, they do contain the plea that the result of the election, in so far as it related to the first respondent, was materially affected on account of the illegal order of re-poll. 20. Ground No. Cis sought to be founded upon facts mentioned in paragraph 19 of the petition. It has been urged on behalf of the first respondent that the ground, as taken by the petitioner, does not raise a triable issue because it is not mentioned therein that the petitioner was holding an office of profit under the Government on the date of election and was as such, disqualified under Article 191(1) (a) of the Constitution. This part of the submission is prima facie unsound because S. 100(1) (a) of the Act provides for declaration of the election of the returned candidate to be void if it is of opinion that on the date of his election, a returned candidate was dis- qualified to fill the seat under the Constitution. Mere non-mention in the ground, as taken, of the fact of the disqualification of the candidate on the date of the election, will not make the recital of the ground insufficient in law. Whether or not there is a recital of the fact of disqualification on the date of election in the ground, it is known to the parties that the Court has to form its opinion about the disqualification of the returned candidate on the date of his election and they have to lead evidence with reference to that date. Whether or not there is a recital of the fact of disqualification on the date of election in the ground, it is known to the parties that the Court has to form its opinion about the disqualification of the returned candidate on the date of his election and they have to lead evidence with reference to that date. The date of election, argued Sri A. Kumar, meant the date of scrutiny of nomination and the date of poll as laid down by the Supreme Court in V.C. Shukla v. Purshottam Lal Kaushik, AIR 1981 SC 547 so that it had to be specified with precision to enable the parties to know the date with reference to which dis- qualification of the returned candidate had to be established. This submission lost sight of the fact that the uncertainty, if any, will still be there even if there is a recital in the ground about disqualification of the returned candidate "on the date of election". 21. In the alternative it was urged by Sri Kumar that S. 67-A of the Act lays down that for purposes of the Act, the date on which a candidate is declared by the Returning Officer to be elected to the Legislature of a State under S. 53 or S. 66 shall be the date of his election. The facts mentioned in paragraph 19 of the petition, according to Sri Kumar, do not refer to_ this -date at all though in paragraph 19(1) it is said that the petitioner held an office of profit on the date of his nomination as a panel lawyer appointed under S. 127-B of the U.P. Zamindari Abolition and Land Reforms Act and was receiving remuneration from the State Government for conducting cases on behalf of the Gaon Sabhas of Chhibramau tahsil. 22. In paragraph 19 of the petition, facts have been stated in sub-paragraphs (i) to (vi). None of them have been described by the learned counsel for the first respondent to be unnecessary, frivolous, and vaxatious or as those which tend to prejudice, embarrass or delay fair trial of the petition or as constituting an abuse of the process of the Court. None of them have been described by the learned counsel for the first respondent to be unnecessary, frivolous, and vaxatious or as those which tend to prejudice, embarrass or delay fair trial of the petition or as constituting an abuse of the process of the Court. They cannot be directed to be struck off under Rule 16 of Order 6 C.P.C. Even if it be assumed that read as a whole they do not make out a triable issue for purposes of S. 100(1)(a), it is difficult to sustain the submission that the petition can be dismissed as disclosing no cause of action on that account. Rule 11 of Order VII C.P.C. does not permit rejection of the plaint in part. 23. Coming now to Ground B in respect whereof facts have been stated in paragraph 18 of the petition. This paragraph states facts in sub-paragraphs (i) to (lvii). The allegations made in this paragraph are many fold. In respect of them several paragraphs can be grouped together. 24. Sub-paragraphs (i) to (xvi) relate to the error committed in counting of votes on account of the fact that initially counting was done on 20 tables in the presence of the counting agents of the petitioner but when it was found that the petitioner was leading in the first round of counting over the first respondent, by a margin of 4235 votes, eight more counting tables were added in another room for counting of votes but the petitioner was not permitted to appoint counting agents for those tables nor any counting agent was allowed to go there to watch the counting on the ground that they had not been appointed for those tables. The counting staff was already exhausted but was made to carry on counting,on these eight additional tables so that the counting on these tables was .done haphazardly in contravention of the relevant rules. When - it was found that in spite of addition of these eight tables, the petitioner had received about 400 votes more than the first respondent in the second round of counting, the Returning Officer added 10 more tables in another room and conducted counting without the presence of the counting agent of the petitioner. The space in the room was much too small for accommodating the ten tables and there was a big congestion in the rooms. The space in the room was much too small for accommodating the ten tables and there was a big congestion in the rooms. There were more than 200 people present in a room which could not accommodate more than 100 to 125 persons. The result was that proper watch could not be kept on the process of counting which was carried on haphazardly and hurriedly. 25. The counting agents of the petitioner were not permitted to see the ballot papers or handle it nor even allowed to note down the serial number of the ballot papers even when they raised an objection on the question of validity or infirmity of the ballot papers. With great difficulty, and on enough pursuation, only some numbers of the ballot papers were allowed to be seen and noted by the counting authorities. 26. The basic criticism made by the counsel for the first respondent about these allegations is that they are vague and do not raise a triable issue for, even if they were accepted, they would not lead to the conclusion that the result of the election had been materially affected in so far as concerned the - returned candidate. The charge of vagueness was founded upon the absence of the serial number of ballot papers. What, however, is to be remembered is that if the allegation that the counting agents of the petitioner were either not permitted to be present at the counting at some tables or had no access to the ballot papers on the tables where they were actually present is to be accepted to be true, it would not be possible to hold that the assertion should be struck off on the ground of being vague, for the burden of disclosing facts which could not be within the knowledge of the petitioner, in these circumstances, cannot be placed upon him. 27. In Sub-paragraph (ix) it has been asserted that in the fair counting of ballot papers, the petitioner had received the highest number of votes and was entitled to be declared elected but on account of the irregularities committed in the counting at the instance of the Returning Officer, the result was manoeuvred against the petitioner who was shown to have received lesser number of votes than the first respondent. In sub-paragraph (x) it has been specified that even in the first round of counting the petitioner was leading by a margin of 4235 votes while in the second round alone he had received about 400 votes more than the first respondent, whereafter the additional tables for counting were added and counting was done in the absence of the agents of the petitioner. If accepted, these allegations, prima facie, show that the result of the election had been materially affected in so far as it concerns the first respondent on account of the alleged irregularities. 28. In sub-paragraphs (xvii) and (xviii), it has been said that there was paucity of light at the place where counting was being done and no additional light was provided in spite of an objection, by the Returning Officer. It was found that the Counting officials were placing valid ballot papers of the petitioner in the bundles of the first respondent or the bundles of the other candidates. Whenever this was pointed out to them they took refuge in the pretext that there was paucity of light. 29. By themselves, these paragraphs may not be said to give rise to any triable issue but it is clear that the allegations in a petition are to be read as a whole and these assertions, when judged in the context of the various irregularities said to have been committed during the counting cannot be treated to be unnecessary or liable to be struck off on that ground. 30. In sub-paragraphs (xix), (xx), (xxi) and (xxii) it has been averred that valid ballot papers in favour of the petitioners were mixed up in the bundles of the ballot papers in which votes had been cast in favour of the first respondent. The allegation is that bundles of 50 ballot papers of the candidate were tied up and counted candidate wise. The method adopted was to put ballot papers in favour of the first respondent at the top and the bottom of the bundle while ballot papers containing votes in favour of the petitioner were kept in between. In Schedule I the number of some such ballot papers, with reference to the name and number of the polling stations which contained votes in favour of the petitioner but were included in the bundle of the first respondent have been indicated. In Schedule I the number of some such ballot papers, with reference to the name and number of the polling stations which contained votes in favour of the petitioner but were included in the bundle of the first respondent have been indicated. The serial numbers of these ballot papers are, however, not mentioned. The criticism is that in the absence of the serial numbers, the allegation cannot be said to constitute a concise statement of material facts. The criticism overlooks that if the allegation that there was paucity of light and the counting. agents of the petitioner had not access to the vicinity of the counting tables is to be treated as correct, failure to give the serial numbers of these ballot papers cannot be considered to be a deliberate omission on the part of the election petitioner to give out the material facts which were within his knowledge. 31. In sub-paragraph (xxiii) the allegation is that a number of ballot papers marked for the petitioner were mixed up similarly in the bundles of other candidates. Serial number of four such ballot papers have been mentioned in this paragraph. This would amount to statement of material facts even on the submission of the learned counsel for the first respondent. The number and name of the Polling Station and of the candidate in whose bundles these were mixed up can be required to be furnished by the petitioner by asking for better particulars. The absence of these details, which can be required to be furnished by way of better particulars, will not amount to a failure on the part of the petitioner to give out a concise statement of material facts. 32. Similar is the position about the averment in sub-paragraph (xxiv) in which serial number of some of the ballot papers which were liable to be rejected but were illegally counted for the first respondent are mentioned. This sub-paragraph contains serial number of six ballot papers. Details about the number and name of Polling.Station or the round of counting in which they were illegally counted can be required to be furnished by way of better particulars. 33. In sub-paragraphs (xxv) to (xxviii) it has been given out that 1116 votes were declared to be invalid. Out of them mere 800 votes were valid in favour of the petitioner. 33. In sub-paragraphs (xxv) to (xxviii) it has been given out that 1116 votes were declared to be invalid. Out of them mere 800 votes were valid in favour of the petitioner. They were held to be invalid for the only reason that they did not contain the signature of Presiding Officer though all of them contained seal mark of the Polling Station. The Returning Officer, according to the allegation, did not consider the proviso to R. 56 of the Conduct of Election Rules, 1961 The serial number of some.such ballot papers, out of the total number of ballot papers rejected in respect of the various Pulling Stations, described both with reference to its number and name, have been given out in the tabular chart appended as Schedule II to the petition. The total number of the ballot papers alleged to have been illegally rejected, of which serial numbers have been mentioned, exceeds 36 which is the difference of the votes received by the.petitioner and the first respondent who w as declared elected. If none other but these allegations alone were to be treated to be correct it is obvious that the election petition would merit a trial. Nothing was urged on behalf of the first respondent about these allegations which may be said to be covered by Rule 16 of Order VI, C.P.C. so as to merit an order for them to be struck off. 34. In sub-paragraph (xxix) the allegation is that the ballot papers used at Polling Station 47 and 48 (Dadauna) and 64 and 65 (Jafarabad) in the poll held on March 5, 1985 should have been counted and not those which had been used in the re-poll held on March 6, 1985. 25 ballot papers, even from amongst those used during the re-poll, were illegally rejected on the ground that the official seal mark put by the voter was not completely affixed and the ballot paper contained mark other than the mark of official seal. These ballot papers, according to the petitioner, were not liable to be rejected on this ground, even if it was so, no objection to that effect had been raised before the Returning Officer. Serial numbers of twelve, out of such 25 ballot papers, had been mentioned in the paragraph. The allegations do amount to a statement of material facts. 35. These ballot papers, according to the petitioner, were not liable to be rejected on this ground, even if it was so, no objection to that effect had been raised before the Returning Officer. Serial numbers of twelve, out of such 25 ballot papers, had been mentioned in the paragraph. The allegations do amount to a statement of material facts. 35. In sub-paragraph (xxx), the statement is that 10 ballot papers containing a clear seal mark in favour of the petitioner but a mere impression of ink mark either in favour of the first respondent or some other candidate on account of the handling of- the ballot papers were rejected by the Returning Officer illegally. Serial numbers of 6 of such ballot papers have been mentioned in this paragraph. The number and name of the Polling Station and clarification about the candidate in whose favour a faint mark was found on these ballot papers can be obtained by requiring the petitioner to furnish better particulars. The allegation in this sub-paragraph cannot be rejected on the ground that it does not amount to statement of material facts. 36. In sub-paragraph (xxxi) serial numbers of five out of 15, ballot papers which contained clear official seal mark in favour of the petitioner which was faint due to paucity of ink in the ink pad and had been illegally rejected on that ground are mentioned. The statement amounts to a concise statement of material fact though the details in regard to the number and name of the Polling Station can be obtained by requiring the petitioner to furnish better particulars. 37. In sub-paragraph (xxxii), the statement is that 25 incomplete ballot papers, in torn condition, which contained the name of the first respondent were counted for him but similar 25 ballot papers at Polling Station No. 50 Dadauni containing official seal mark in favour of the petitioner were illegally rejected. By itself, the statement is vague but has not been characterised as unnecessary, frivolous, vexatious or such as may tend to prejudice, embarrass or delay the fair trial of the petition or as constituting an abuse of the process of the Court. It cannot be directed to be struck off under Rule 16 of Order VI, C.P.C. 38. By itself, the statement is vague but has not been characterised as unnecessary, frivolous, vexatious or such as may tend to prejudice, embarrass or delay the fair trial of the petition or as constituting an abuse of the process of the Court. It cannot be directed to be struck off under Rule 16 of Order VI, C.P.C. 38. In sub-paragraph (xxxiii), serial numbers of six ballot papers, out of 40, which did not contain official seal mark near the column of the first respondent but only an ink mark and which, according to the petitioner, were liable to be rejected, were illegally counted for the first respondent, have been given out. Details about the number and name of the Polling Station to which these ballot papers related can be asked to be given by way of better particulars. The allegations, as made, cannot be described as not amounting to statement of material fact. 39. The assertion in sub-paragraph (xxxiv) that about 1(10 ballot papers which contained official seal mark in the column meant for the first respondent as also in the column of one of the other candidate deserved to be rejected were illegally counted for the first respondent is undoubtedly vague but it cannot be struck off for it has not been described as belonging to any of the categories enumerated in Order VI, Rule 16, C.P.C. 40. In sub-paragraph (xxxv) to (xxxvii) are mentioned serial numbers of some of the ballot papers which did not contain official seal mark in the column of any candidate but only a thumb impression or ink mark in the middle of ballot paper of those containing official seal mark in favour of the other candidate than the first respondent or did not contain the official seal of the Polling centre and the centre of the Presiding Officer which was illegally counted for the first respondent. Details in respect of the number and name of the Polling Station or the round of counting can be required to be furnished by the petitioner as better particulars but these allegations cannot be ignored on the ground that they do not amount to statement of material facts. 41. Details in respect of the number and name of the Polling Station or the round of counting can be required to be furnished by the petitioner as better particulars but these allegations cannot be ignored on the ground that they do not amount to statement of material facts. 41. Likewise in sub-paragraph (xxxviii) are mentioned serial numbers of five out of 12 ballot papers which were illegally rejected though they contained major portion of the official seal mark in the column of the petitioner and only the edge of the seal mark in the shaded area or towards the area of other candidates. The allegation is clearly a statement of material fact though details about the Polling Station and the round of counting can be secured by requiring the petitioner to furnish better particulars. 42. In sub-paragraph (xxxix) the allegation is that 69 ballot papers containing votes in favour of the petitioner were removed from the ballot box and not counted for him. They were shown to be missing at different Polling Stations. A chart containing the number of ballot papers so shown at the different Polling Stations has been appended as Schedule III to the election petition. The serial number of these ballot papers is not mentioned in t .Schedule. By itself the assertion may be said to be vague but that would not be a ground for directing it to be struck off under Rule 16 of Order VI, C.P.C. 43. In sub-paragraph (xl), the allegation made is that 14 ballot papers were illegally counted for the first respondent though they had not been issued to the electors nor used by them at any Polling Station but were found in different ballot boxes. Schedule IV to the petition contains the number of such ballot papers attributable to 9 Polling Stations described in it with reference to their number and names. By itself the allegation may be vague as it does not contain the serial number of the ballot paper. But on that ground the statement in this paragraph cannot be struck off under Rule 16 of Order VI, C.P.C. 44. By itself the allegation may be vague as it does not contain the serial number of the ballot paper. But on that ground the statement in this paragraph cannot be struck off under Rule 16 of Order VI, C.P.C. 44. In sub-paragraphs (xli) to (xliv) the petitioner has given out the discrepancy in the chart in Form No. 20 prepared by the Returning Officer by recording therein lesser number of votes cast in favour of the petitioner than those disclosed by him in the first of these charts at various pulling Stations. The criticism has been that these allegations do not raise a triable issue for they are vague and incorrect. It may only be said that the correctness of the allegation cannot be struck off on the ground of vagueness under Rule 16 of Order VI, C.P.C. 45. In sub-paragraphs (xLv) to (xLiv) also some further discrepancies in the chart prepared in Form 20 allegedly twice over have been mentioned by the petitioner with a view to show that in reality he had received a majority of valid votes and was leading by 842 votes but due to the deliberate error committed by the Returning Officer at the instance and behest of the first respondent he was shown to have been defeated. The prayer for re-count of the ballot papers, as contemplated under Rule 63, made by the petitioner as soon as the defect in the preparation and incorporation of incorrect figures was detected by him and his agents was illegally rejected by the Returning Officer. These allegations cannot be directed to be struck off for they do not fall in the category of any of the reasons for which such an order can be made under Rule 16 of Order VI, C.P.C. If true, these allegations raise a triable issue. 46. In sub-paragraph (L) the allegation is that initially when the result was declared the petitioner was shown to have been received 842 votes more than the first respondent but at that stage chaos was created in the counting arena and the police and the local administration helped the first respondent. Lathi charge was resorted to at the instance of the first respondent and the Returning Officer and the counting agents of the petitioner were turned out of the counting arena. Incorrect result sheets were then prepared. Lathi charge was resorted to at the instance of the first respondent and the Returning Officer and the counting agents of the petitioner were turned out of the counting arena. Incorrect result sheets were then prepared. These allegations have been expanded in sub-paragraph (Li) by saying that though the petitioner was initially shown as leading by 842 votes but in the substituted result-sheet he was first shown as defeated by a margin of 69 votes and thereafter by a margin of 36 votes. These allegations, when read with the assertions made in the form of conclusions contained in sub-paragraphs (Lii) and (Liii), would not merit deletion for they are not alleged as falling in any of the categories mentioned in Rule 16 of Order VI, C.P.C. By themselves, they may not raise a triable issue be pleadings are not meant to be read in isolation. 47. In essence, the allegation in sub- paragraph (liv) is that the scrutiny of only the rejected ballot papers, 1116 in number, is to be made and those valid papers which have been improperly rejected or counted for the petitioner, it would be found that the result of the election had been materially affected and the petitioner had, in fact, received a majority of votes. Sub-paragraphs (Lv), (Lvi) and (Lvii) then say that it was clear from the facts mentioned in the earlier paragraphs that the counting of ballot papers had been shown in disregard of the provisions of the Act, the Conduct of the Election Rules, 1961 and the orders issued by the Election Commission from time to time and that in case scrutiny and re-counting of ballot papers was done, it would be found that the petitioner had received the majority of valid votes and was entitled to be declared elected and further that the petitioner was entitled for inspection, scrutiny, and re-counting of ballot papers. The statement in these sub-paragraphs is in the nature of inference of the petitioner on the facts and about the legal position. They do not deserve to be struck off. 48. In ultimate analysis, the conclusion is inescapably that the present application deserves " be dismissed. I direct accordingly. Lett case be now listed on January 11, 1988 for framing of issues.