ORDER R.S. Garg, J. 1. The present petition has been filed by the applicant under Rule 19 of the Madhya Pradesh Municipalities Election Petition Rules, 1962, being dissatisfied by the order dated 17.7.96 passed by the Fourth Additional Judge to the Court of District Judge, Sagar in Election Petition No. 15/96. 2. The facts necessary for the purpose of present petition are that elections for the Municipal Council, Garhakota were held on 19.12.94. An election petition was filed on the ground that nomination form of Non-applicant no. 2 Laxmi Prasad was wrongly accepted, this wrong acceptance has materially affected the election, election of Mahesh Kori ruturned candidate be declared void and the election petitioner Gautam Kori be declared elected. The election petition was filed on 23.12.94 before the District Judge Sagar which was later on transferred to the trial Court. 3. In the election for Ward No. 2 Gandhi Ward, Garhakota, which was reserved for Seheduled Caste, Election petitioner Gautam Kori returned candidate Mahesh, Laxmi Prasad Sunkar and Smt. Jagrani had filed their nominations. The material allegation was that Laxmi Prasad did not belong to Scheduled Caste. He was in fact Sonkar and not Sunkar. Various allegations regarding corrupt practices were also made. It was submitted that the returned candidate tried to claim votes on the ground of religion, caused the electrification in some temples, used certain vehicles for bringing the voters to the polling station, distributed money for securing votes and got certain pamplets issued which affected the elections and consequently the election is bad. The returned candidate filed his reply and submitted that Laxmi Prasad belonged to Scheduled Caste his nomination was rightly accepted, no corrupt practices were adopted and by acceptance of the nomination of Laxmi Prasad, the election were not adversely affected. 4. The lower Court granted proper opportunity to the parties to lead evidence, parties led evidnece and also produced the documentary evidence. After hearing the parties, the Election Tribunal came to the conclusion that the non-applicant (Laxmi Prasad) did not belong to the Scheduled Caste, was not entitled to submit his candidature, the form was wrongly accepted and the worng acceptance has materially affected the result of the election. The Tribunal also found that at the time of scrutiny no objection was raised by the election petitioner that Laxmi Prasad did not belong to the scheduled Caste. The Tribunal also found that at the time of scrutiny no objection was raised by the election petitioner that Laxmi Prasad did not belong to the scheduled Caste. The Court however found that non-raising of the objection at the time of scrutiny would not make any difference. The Tribunal however, also found that the election petitioner has failed in proving that the returned candidate adopted corrupt means or was guilty of corrupt practice. In view of the findings regarding acceptance of the nomination it found that the election was liable to be set aside. Being dissatisfied by the said order, the returned candidate has preferred this revision petition. 5. Shri V.K. Tankha and Shri Rajesh Pancholi appearing for the applicant contended that the Tribunal was not justified in holding that Laxmi Prasad was not a member of Scheduled Caste and was also wrong in not appreciating that unless it is proved to the satisfaction of the Court that the results were materially affected, the election could not be set aside. It was submitted that neither there was a proper pleading nor an issue was cast nor there was any evidence on record to show that the result was materially affected, they submit that the election could not be set aside. On the other hand, Shri R. L. Gupta, learned counsel for the non-applicant no. 1 submits that the pleadings were sufficient. The applicant had clearly stated that the elections were materially affected and even if an issue was not cast it would not make any difference because the parties knew that the ground for setting aside the election was wrong acceptance of the form of Laxmi Prasad and the election petitioner was seeking relief in his favour on the ground that the election was materially affected. 6. Section 20 of M.P. Municipalities Act, 1961 which provides for an election petition reads as under :- Election Petitions :- (1) No election or nomination under this act be called into question except by a petition presented in accordance with the provisions of this section. 6. Section 20 of M.P. Municipalities Act, 1961 which provides for an election petition reads as under :- Election Petitions :- (1) No election or nomination under this act be called into question except by a petition presented in accordance with the provisions of this section. (2) Such petition may be presented on one or more of the grounds specified in section 22 (a) by any candidate at such election or nomination; or (b) (i) in the case of an election of a Councilor, by any voter of the ward concerned; (ii) in the case of a nomination of Councilor, by any Councilor; (iiii) in the case of election of President by any voter of the Municipal area; to the District Judge, where such election or nomination is held within the revenue district in which the Court of the District Judge is situate, and in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue district in which such election or nomination is held and if there be more than one such Additional District Judge within the said revenue district, to such one of them as the District Judge may specify for the purpose (hereinafter such District Judge or Additional District Judge referred to as Judge). (3) No petition presented under sub-section (2) shall be admitted unless: (i) It is presented within thirty days form the date on which the result of such election or nomination was notified in the Gazette; and (ii) it is accompanied by a Government Treasury receipt showing a deposit of two hundred rupees, in the case of election or nomination to Municipal Councils and one hundred rupees in the case of election or nomination to Nagar Panchayats. (4) A petitioner shall join as respondents to his petition. (a) where the petitioner, in addition to claiming a declaration that the election or nomination, as the case may be, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected or nominated, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition. (5) An election petition shall (a) contain a concise statement of the material facts on which the petitioner relies; (b) set forth with sufficient particulars, the ground or grounds on which the election or nomination called in question; (c) be signed by the petitioner and verified in the manner prescribed in the Code of Civil Procedure, 1908 (V of 1908), for the verification of pleadings. 7. Section 21 of Muncipalities Act, 1961 provides that what relief can be claimed by the election petitioner. Section 22 provides the grounds on which an election or nomination can be declared void. Section 22 of the Act reads as under :- Grounds for declaraing election or nomination to be void : - (1) Subject to the provisions of sub-section (2) if the Judge is of the opinion - (a) that on the date of election or nomination a returned candidate was not qualified or was disqualified, to be chosen as a President or a Councilor; or (b) that any corrupt practice has been committed by returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; (c) that any nomination paper has been improperly rejected; or (d) that the result of the election or nomination in so far as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance of any nomination; or (ii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or (iii) by the non-compliance with the provision of this Act or of any rules or orders made there under save the rules framed under Section 32 in so far as they relate to preparation and revision of list of voters; he shall declare the election or nomination of the returned candidate to be void. (2) If in the opinion of the Judge a returned candidate has been guilty by an agent of any corrupt practice, but the Judge is satisfied -(a) that no such corrupt practice was committed at the election or nomination by the candidate and every such corrupt practice was committed contrary to the instructions, and without the consent of the candidate; (b) that the candidate took all reasonable means for preventing the commission of corrupt practice at the election or nomination; and (c) that in all other respects the election or nomination was free from any corrupt practice on the part of the candidate or any of his agents; Khan, the Judge may decide that the election or nomination of the returned candidate is not void. 8. Clause (b) - of Sub-section 1 of Section 22 provides about the corrupt practice and Clause (d) provides about the improper acceptance of any nomination or improper acceptance or refusal of any vote or reception where the election is materially affected by the non-compliance with the provisions of the Act or of any rules or orders made thereunder. 9. Section 23 provides the procedure to be followed in disposal of the election petition and Section 24 provides the decision of the election petition. The Tribunal shall have power to dismiss the election petition or declare the election or nomination of all or any of the returned candidates to be void or declare the election or nomination of all or any of the returned candiates to be void and the petitioner and any other candidate to have been duly elected or nominated. Sub-section 2 of Section 24 provides the eventuality wherein the election petitioner can be declared to be duly elected or nominated in case where the election of the reutnred candiate has been set aside. 10. In the instant case, this Court is not required to consider the question of corrupt practice because the findings recorded by the Court below are in favour of the present applicant as it has been found that the charge of corrupt practices are not proved and at the time of argument of correctness of the said findings was not challenged. The question for consideration before this Court is whether Laxmi Prasad did not belong to the Scheduled Caste and improper acceptance of his nomination has materially affected the election, in so far as it concerns the returned candidate. The question for consideration before this Court is whether Laxmi Prasad did not belong to the Scheduled Caste and improper acceptance of his nomination has materially affected the election, in so far as it concerns the returned candidate. 11. The evidnece on record was read by both the parties. Each of the party relying upon their own evidence wanted to contend that the finding should have been in their favour. The applicant before this Court submitted that the evidence clearly shows that Laxmi Prasad belonged to the Schedule Caste. In support of their contention they had filed various documents including a School Certificate. The election petitioner had examined himself and also examined PW/2 Mansingh, PW/3 Shailendra Bhargav and PW/4 Balchand. The reutnred candiate had examined his ownself and also examined Ashok Kumar Jain. The person whose nomination was accepted has not entered in the witness box. The Court below has drawn an adverse inference against the returned candidate because of non-examination of Laxmi Prasad. Ordinarily it is not expected of a returned candidate that he would produce another party to the petition as a witness but in the present case it is to be seen that the returned candiate Mahesh Kori and Laxmi Prasad had filed joint written-statement. When Mahesh Kori and Laxmi Prasad had joined the issue it was expected of Laxmi Prasad that he would enter into witness box in support of his case that he belonged to the Scheudle Caste. The presumption itself may not be conclusive but it would certainly give a dent to the applicant's contention that Laxmi Prasad belonged to the Scheduled Caste. Laxmi Prasad all through had been shown to be a 'Sonkar'. The Exhibit P/7 Laxmi Prasad has referred himself to be Sonkar and not a "Sunkar". The school certificate says that Laxmi Prasad is Sunkar. Unfortunately, the person who issued the certificate, the person who made the original entry or the person who informed the school authority have not been examined. The original register has not been summoned from the school. The certificate showed "Laxmi Prasad Sonkar" but in the broken words Sunkar has been added. Undisputedly the Deputy Director Education District Sagar has not found this certificate to be palatable and has asked for an explanation from the Head Master of the Primary School Garhakota. The original register has not been summoned from the school. The certificate showed "Laxmi Prasad Sonkar" but in the broken words Sunkar has been added. Undisputedly the Deputy Director Education District Sagar has not found this certificate to be palatable and has asked for an explanation from the Head Master of the Primary School Garhakota. This fact would show that in the school records Laxmi Prasad was shown to be a 'Sonkar' and not 'Sunkar'. 12. It is not the case of the returned candidate or Laxmi Prasad that Sonkar and Sunkar are same. Sonkars are included in other back ward classes while Sunkars are included in Schedule Casts. The evidence on record does not show that Laxmi Prasad is a Sunkar by Caste. The evidence from the side of the election petitioner was positive and clinching. The election petitioner and Laxmi Prasad failed to prove that Laxmi Prasad was a Sunkar by Caste. On basis of preponderance of probabilities it has to be held that Laxmi Prasad was not a Sunkar but was a Sonkar and was not entitled to contest election from ward No. 2 "Gandhi Ward" which was reserved for Schedule Caste. In view of this finding it has to be accepted that the nomination of Laxmi Prasad Sonkar was improperly accepted by the election officer. 13. The question still is whether this improper acceptance of the nomination has materially affected the result of the election in so far as it concerns the returned candidate. 14. Before considering the question that the election was materially affected or not because of the improper acceptance of the nomination, the Court has to see that what are the pleadings of the parties. The election petitioner in Paragraph No. 6 of the election petition has stated that Laxmi Prasad did not belong to Scheduled Caste, therefore he was not entitled to contest election from Ward No. 2 and for this reason his nomination could not be accepted. It further reads that Laxmi Prasad contested election and the nomination was wrongly accepted. Paragraphs No. 9, 10, 11, 12, 13, 14, 15 and 16 related to Corrupt practices. Para 17 refers to the date of election. It further reads that for the reasons aforesaid, the result of the election was affected. Para-18 shows the number of total votes cast and the votes received by the candiates. Paragraphs No. 9, 10, 11, 12, 13, 14, 15 and 16 related to Corrupt practices. Para 17 refers to the date of election. It further reads that for the reasons aforesaid, the result of the election was affected. Para-18 shows the number of total votes cast and the votes received by the candiates. Para-19 shows that the returned candidate won by margin of 38 votes. Para-20 refers to the declaration of the result. Para 21 states that on the facts and the grounds and the reasons aforesaid, the election of the respondent no. 1 (returned candidate) deserves to be set aside, nomination of Laxmi Prasad deserves to be rejected and the election petitioner deserves to be declared as an elected candidate. Para-22 refers to deposit of security for costs and the unnumbered prayed clause states that Election of the returned candidate be declared void, nomination of Laxmi Prasad be rejected and the election petitioner be declared elected. I have referred to the pleadings of the petitioner in extenso to show that nowhere in the election petition, the petitioner has stated that by the improper acceptance of the nomination the result of the election in so far as it concerns the returned candidate has been materially affected. The petition simply reads that the results were affected. The allegations are not that the results were materially affected in so far as it concerns the returned candidate. It is also to be seen that there was no allegation that results were materially affected, therefore no issue was cast by the Election Tribunal. Issue No. 3-A and B relate to the caste of Laxmi Prasad and whether the nomination was wrongly accepted. Issue No. 4 A and B state whether any objection was raised by the Election Petitioner at the time of scrutiny. Issue No. 5 to 8 relate to the corrupt practice. Issue No. 9 states "whether for the reasons aforesaid the results of the election are liable to be set aside and issue No. 10 is in relation to relief and costs. The election petitioner did not make any allegation that by the improper acceptance of the nomination of Laxmi Prasad, the result of the election so far as it concerns the returned candidate was materially affected. In absence of the pleadings an issue was not cast. The election petitioner did not make any allegation that by the improper acceptance of the nomination of Laxmi Prasad, the result of the election so far as it concerns the returned candidate was materially affected. In absence of the pleadings an issue was not cast. I have gone through the entire evidence and unhesitatingly I would say that there is no evidence on record to show that because of the improper acceptance the result of the election in so far as it concerns the returned candidate was materially affected. In absence of the pleadings, issue and proof it cannot be held that the results were materially affected. 15. At this stage, Shri Gupta, learned counsel for the non-applicant no. 1 submits that it is not expected of an election petitioner that he would bring the evidence to show that if the nomination was not accepted how the voters would have behaved. Placing reliance on a judgment of the Supreme Court in the matter of Chhedi Ram Vs. Jhilmit Ram (A.I.R. 1984 S.C. 146), it was submitted by the counsel that the Court has to do certain guess work and if on the guess work, the Court is satisfied that the results of the election were materially affected then the Court must decide in favour of the election petitioner. 16. On the other hand, counsel for the applicant placing reliance on the judgment of Supreme Court in the matter of Vashist Narain Vs. Dev Chandra (A.I.R. 1954 S.C. 513) and S. N. Balakrishna Vs. Fernandez (A.I.R. 1969 S.C. 1201) contended that in absence of the positive proof the election petition merits dismissal only. 17. In the matter of Vashist Narain's (supra), the Supreme Court observed as under :- But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predict how many or which proportion of the votes will go to one or the other of the candidates, while it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 110 (1) (c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. The Supreme Court in the matter 'Chhedi Ram' agreed with the observation made in the matter of Vashist Narain but however observed that it does not mean that whatever the number of wasted votes and whatever the margin of difference between the number of votes secured by the successful candidate and the number of votes secured by the next highest candidate, the Court would invariably hold that the result of the election had not been materially affected. The Supreme Court further observed that in an appropriate case having regard to the margin of difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and the proportion which such margin bears to the wasted votes, it is permissible for the Court to hold that the burden of proving that the result of the election has been materially affected has been discharged. 18. The Supreme Court in the matter of Chhediram also considered the case of S. N. Balakrishna (supra), the following observations from the judgment of S. N. Balakrishna (supra) were quoted by the Supreme Court for consideration as under: In our opinion the matter cannot be considered on possibility. Vashist Narain's case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. Vashist Narain's case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no room, therefore for a reasonable judicial guess. The law requires proof. How for that proof should go or what it should contain is not provided by the Legislature. In Vashist's case ( AIR 1954 SC 513 ) the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully discharged. The Supreme Court further observed that the case of S. N. Balakrishna (supra) does not lay down any different principle then what was already observed by the Suprme Court in Chhedi Ram's case. The Supreme Court found that the Court would be entitled to go for a guess work. In the said case Jhilmit Ram secured 17822 votes, Chhedi Ram secured 17449 votes. The difference between the two was 373 votes. One Motiram secured 6710 votes. The petition was based on the ground that Motiram could not contest the election from the said constituency. The Supreme Court held that if the reasonable probability is all one way, a court must not lay down impossible standards of proof and hold a fact as not proved. It was found that the votes cast in favour of Motiram (6710 votes) were almost 20 times the difference between the votes secured by Jhilmit Ram and Chhediram. The Court observed that the number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate - it was a little over one-third and in that situation, the result of the election may safely be said to have been affected. 19. Though there are no pleading or proof that the result of the election was materially affected but assuming on the facts as are available on record, this Court is entitled to go into the question regarding votes then this Court must also see the principle laid down by the Supreme Court in the matter of 'Vashist Narain'. In the said case Vashist Narain secured 12868 votes while Vireshwar Nath Rai secured 10996 votes. In the said case Vashist Narain secured 12868 votes while Vireshwar Nath Rai secured 10996 votes. The difference / margin of the votes was 1872 votes. The candidate whose nomination was wrongly accepted secured 1983 votes. On mathematical calculation it would show that the difference between the margin of the votes of the first two candidates and the votes secured by the third candidate was hardly 111. 20. In the present case, the returned candidate secured 205 votes, the election petitioner secured 167 votes. The margin was 38 votes. The third candidate i. e. Laxmi Prasad secured 98 votes. The difference between the margin of votes i. e. 38 and the votes secured by the third candidate i. e. 98 votes would only be 60 votes. The total votes cast were 532. The difference of 60 votes would show that it was a difference of about 12% of the total votes cast. At this stage, the Court is again required to consider whether these 60 votes really and materially affected, the result of the election in so far it concerns, the returned candidate. From the judgment of the Supreme Court in the matter of 'Chhediram', it can be deduced that if the number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate, surely, in that situation, the result of the election may safely be said to have been affected. There the Court found that the difference between the margin of the votes between the first two candidates and the votes secured by the third candidate bore a ratio of about 20 times. In the instant case, the ratio is hardly two times. Whether the said 60 votes would have affected the result of the election was required to be proved by the election petitioner. Whatever guess work is taken in favour of the election petitioner, it cannot be held that the result of the election in fact was materially affected. It is not the number of the votes secured by the third candidate which would show that the results was materially affected but it is the difference of the votes which would show that the results were materially affected or not. It is not the number of the votes secured by the third candidate which would show that the results was materially affected but it is the difference of the votes which would show that the results were materially affected or not. The election petitioner has not stated even a single world in his statements as to how the result of the elections were materially affected. There are no pleadings about this aspect, there is no evidence in relation to this allegation and in the opinion of this Court whatever guess work is applied in favour of the election petitioner, it cannot be held that the results of the election so far as it concerns the returned candidate were materially affected. If there are no pleadings or evidence in support of an argument then such an argument cannot be raised and has to be rejected. A successful reliance can be placed on the judgment of the Supreme Court reported in 1996 (2) SCC 273 , Akhand Pratap Singh Yadav vs. Kunwar Surendra Pratap Singh. 21. The Election Tribunal has simply held that the nomination was wrongly accepted. It did not consider the opening words of clause (d) of sub-section 1 of Section 22 of the Act which provided that the result of the election or nomination, in so far as it concerns a returned candidate, has been materially affected. In absence of such evidence that the elections were materially affected, the Court could not set aside the result of the election. In the opinion of this Court, the Court below was not justified in setting aside the election of the returned candidate. The revision deserves to and is accordingly allowed. The order passed by the Court below is set aside. 22. The parties are directed to bear their own costs throughout. Petition allowed