JAGJIVAN PAL v. BIPIN SINGH PARMAR — 1999 DIGILAW 6 (HP)

JUDGMENT Surinder Sarup, J.—Shri Jagjivan Pal has filed election petition under Sections 80 and 81 read with Sections 100 and 101 of the Representation of People Act, hereinafter to be called the Act, calling in question the election of respondent No.1 Shri Bipin Singh Parmar, with the prayer for setting aside his election held on 28.2.1998 for the 45, Sulah Legislative Assembly Constituency of H.P. Vidhan Sabha. 2. The case of the petitioner is that his name is entered at serial Number 105 Polling Station No. 55 Khera-I of the said constituency and that he had also contested the election from it which was held in February 1998. Thus, he being a voter and a candidate at the said election, is entitled to file the election petition. 3. The election programme of the said election as issued by the Election Commission of India, has been set out in detail in para 2 of the election petition. It has been stated in para 3 thereof that after the withdrawal of the nomination papers, the petitioner and the three respondents arrayed in the election petition, including respondent No. 1 being the returned candidate, were left in the fray. 4. According to the case of the petitioner, as set out in the election petition, the polling and counting of the said Constituency and Kangra Parliamentary Constituency of which the said Assembly Constituency is a segment, was held simultaneously on 28.2.1998, 2.3.1998 and 3.3.1998, respectively. It has been mentioned in para 4 of the election petition that the petitioner contested the election on the ticket of the Indian National Congress while respondent No.1 contested on the ticket of the B.J.P. The counting of both Assembly and Parliamentary Constituencies i.e. Sulah and the Sulah segment of the latter, respectively, was held in Guitton Hall, Palampur. Respondent No.1 was declared to have been elected by margin of only 125 votes. 5. In para 5 of the election petition, it has been stated that the counting of 44 Palampur Assembly Constituency was done in Guitton Hall. The process started at 8.00 a.m. on 2.3.1998 and was over at 10.00 p.m. Immediately thereafter, the counting of 45-Sulah Assembly Constituency started, which lasted till 11.00 a.m. on 3.3.1998. The staff for counting of both the Assembly Constituencies i.e. 44 Palampur and 45 Sulah was the same and thus they did not have any rest or respite in between. The process started at 8.00 a.m. on 2.3.1998 and was over at 10.00 p.m. Immediately thereafter, the counting of 45-Sulah Assembly Constituency started, which lasted till 11.00 a.m. on 3.3.1998. The staff for counting of both the Assembly Constituencies i.e. 44 Palampur and 45 Sulah was the same and thus they did not have any rest or respite in between. In para 6 of the election petition, it has been stated that in the room where the counting of the parliamentary as well as the Assembly Constituency were being conducted, 14 tables were placed for counting of votes/ballots. Seven out of these were for 45-Sulah and other seven were for the Kangra Lok Sabha Constituencies. Both these sets of tables were placed in a parallel position at about a distance of six feet. The table of the Returning Officer was on one side of the room and he set on a dias. It has been mentioned that the Returning Officer was not present during the counting of 45-Sulah Legislative Assembly, instead the Assistant Returning Officer one Shri S.C. Saklani was present. There was a wire-mesh/net on the tables except at Table No. 6 and 7 of 45 Sulah. It has been further pleaded in para 6 thereof that neither the candidates nor the counting agents were in a position to have a look at the ballot papers for the purpose of satisfying themselves regarding their validity and correctness and of the counting and to know as to whom the vote has been cast. 6.. In para 10 of the election petition, it has been stated that the total votes polled comes to 30,731, as per the diary/reports of the Presiding Officers, whereas the total votes found in the ballot boxes when opened and counted were 30,72 1. In other words, there were 10 votes short. Similarly, it has been pleaded that the total votes counted in five rounds were 30,711. In this manner also, there were 10 votes less than the votes found in the ballot boxes. Thus, according to the pleaded case of the petitioner, the total votes which were less at the time of counting were 20. 7. The details of the irregularities and illegalities alleged to have been committed during the counting in various rounds are contained in para 11 of the election petition. 8. Thus, according to the pleaded case of the petitioner, the total votes which were less at the time of counting were 20. 7. The details of the irregularities and illegalities alleged to have been committed during the counting in various rounds are contained in para 11 of the election petition. 8. Only respondent No.1 contested the election petition and has filed his written statement. He has taken various preliminary objections. On merits, the averments and pleadings of the petitioner have been controverted in the written statement. 9. The petitioner, in turn, has filed rejoinder to the written statement of respondent No.1. 10. EMP No. 17 of 1998 has been filed by respondent No.11 under Order 6, Rule 16 and Order 7, Rule 11 (a) of the C.P.C. It has been pleaded therein that the election petition does not disclose the material particulars and facts of the case. It has been stated that the petitioner has nowhere given the names of the voters, their parentage, the place where they cast votes, etc. Similarly, it has not been mentioned as to what were the serial numbers of the votes which were alleged to have been wrongly counted in favour of respondent No.1. According to the objection raised by respondent No.1 in the said EMP, the election petition lacks material particulars and facts and the same is totally vague and thus deserves to be dismissed in limine. In para 5 of the EMP, it has been stated that the election petition does not disclose any cause of action. Towards the end of para 6 of the EMP, it has been stated that the petitioner has failed to make out a case for re-counting, as such, his application in that behalf was rightly rejected by the competent authority and the election petition also deserves to be dismissed in limine in view of the law laid down by the Supreme Court in the case of Satya Narain v. Uday Kumar, (AIR 1993 SC 367). 11. In para 8 of the EMP, two other rulings have been referred to, namely, Azhar Hussain v. Rajiv Gandhi, (AIR 1996 SC 1253) and Narain Chand Prashar v. Prem Kumar Dhumal, (AIR 1993 HP 84). 12. A brief reply to the EMP has been filed on behalf of the petitioner i.e. Jagjivan Paul in which the allegations have been denied. 13. 12. A brief reply to the EMP has been filed on behalf of the petitioner i.e. Jagjivan Paul in which the allegations have been denied. 13. The following preliminary issues, arising out of this EMP have been framed: "1. Whether the petitioner has not supplied a true copy of the main election petition as required under Section 81(3) of the Representation of People Act, 1951, as amended up to date? OPR. 2. Whether the main election petition is bad for non-joinder of necessary parties? If so, its effect? OPR. 3. Whether the main election petition has not been properly verified as per the provisions of Section 83 of the Act (ibid)? If so, its effect? OPR. 4. Whether the main election petition lacks material particulars and concise statement of material particulars as required under Section 83 of the Act (ibid)? If so its effect? OPR. 5. Whether the main election petition does not disclose any cause of action or ground for recounting as alleged therein? OPR. 6. Whether the main election petition is bad for non-compliance of the provisions of Sections 81 and 82 of the Act (ibid)? If so, its effect? OPR." The learned Counsel for the parties agreed that no evidence was required in respect of the above preliminary issues. 14. Arguments have been advanced and have been heard at length on behalf of both the parties. On behalf of respondent No.1 Shri S.P. Jain, learned Counsel assisted by Shri Suresh Bhardwaj has addressed this Court in support of the EMP, while on behalf of the petitioner, arguments have been advanced by Shri Inder Singh, learned Counsel assisted by S/Shri M.S. Chandel and Vijay Thakur, Advocates. 15. At the outset, it may be mentioned that at the hearing of the EMP, Issues No. 4 and 5 out of the above preliminary issues have been pressed, inasmuch as arguments have been advanced in respect of these two issues only by the learned Counsel for respondent No.1. Hence a finding is required to be given and is called for only in respect of the said preliminary issues No.4 and 5, and the remaining preliminary issues will be deemed as having not been pressed in support of the EMP. 16. The learned Counsel for respondent No 1 has referred to Section 100 (1)(d) (iii) and (iv) of the Act. This provision provides for grounds for declaring an election to be void. 16. The learned Counsel for respondent No 1 has referred to Section 100 (1)(d) (iii) and (iv) of the Act. This provision provides for grounds for declaring an election to be void. According to subsection (1) clause (d) sub-clauses (iii) and (iv), if the High Court is of the opinion that the result of the election, insofar as it concerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote which is void or by any non-compliance of the provisions of the Constitution or of the Act or of any rules or orders made under the Act, it shall declare the election of the returned candidate to be void. The learned Counsel for respondent No. 1 has also referred to the provisions of sub-section (1) of Section 80, Section 81 and sub-section (1) of Section 83 of the Act. The first mentioned Section provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part-VI. The second mentioned Section provides for presenting election petition calling in question any election on one or more of the grounds specified in sub-section (1) of Sections 100 and 101 of the Act. The third mentioned Section provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings. 17. Based on the above legal provisions as incorporated in the Act, it has been vehemently argued by Shri S.P. Jain that the averments as well as the allegations made in the body of the main election petition in the present case are vague. According to him, no details have been given therein as regards the persons supporters of the petitioner who had raised objections in respect of the averments made in para 11(iv)(v)(vii)(ix) etc. He has submitted on the basis of the same that material facts have not been disclosed in the election petition, inasmuch as the details are missing therein. According to him, no details have been given therein as regards the persons supporters of the petitioner who had raised objections in respect of the averments made in para 11(iv)(v)(vii)(ix) etc. He has submitted on the basis of the same that material facts have not been disclosed in the election petition, inasmuch as the details are missing therein. It has also been submitted by Shri S.P. Jain that there is no averment/allegation therein that the voters to whom reference has been made in para 11 of the election petition vide various sub-paras thereof, had in fact voted for the returned candidate, because the ground in the election petition is that the result of the election has been materially affected. 18. In support of this submission, he has relied on case law, namely, Narain Chand Prashar v. Prem Kumar Dhumal and others, (AIR 1993 H.P. 84); Azhar Hussain v. Rajiv Gandhi, (AIR 1986 SC 1253); S. Baldev Singh v. Teja Singh Swatantra (dead) and others, AIR 1975 SC 693) and Satyanarain Dudhani v. Uday Kumar Singh and others, (AIR 1993 SC 367). In addition, he has also placed strong reliance on a recent decision of this Court in the case of Mahendra Pal v. Ram Dass Malanger and others in Election Petition No. 1 of 1998 dated 24.6.1998. 19. In order to appreciate the submission of the learned Counsel for respondent No. 1, it would be appropriate to refer to the grounds contained in the election petition on the basis of which challenge has been laid to the election of respondent No.1 from the 45, Sulah Legislative Constituency. Para 11 of the election petition contains the details of the irregularities and illegalities alleged to have been committed during the counting in various rounds. Para 11 of the election petition contains the details of the irregularities and illegalities alleged to have been committed during the counting in various rounds. They are, inter alia, that one Arun Kumar was earlier appointed as Counting Assistant on table No.1 in Lok Sabha in D.D.A. Hall, Palampur, was brought at Table No.1 45, Sulah Legislative Assembly counting, which change was made without any order of any authority and was unauthorised, in addition, the said Arun Kumar was allegedly an active supporter and worker of respondent No. 1 and had canvassed votes for him; at table No.1, 80 votes which were meant for the petitioner, have been counted in favour of respondent No.1, while 75 votes which were meant for the petitioner, were declared to be invalid and 85 votes which were invalid were counted in favour of respondent No.1; that 30 votes meant for the petitioner were rejected by the counting staff on the ground of having identification marks in them and an equal number of votes meant for the petitioner were rejected on the ground that they were having a slight smudge of ink due to the handling of the ballot papers by the electors and that an equal number of votes were rejected on the ground that they were partially stamped in favour of the petitioner, although they were clearly in his favour; at table No.1, the counting staff accepted 3 to 6 votes for respondent No.1 which in fact, should have been rejected, while 20 votes in favour of the petitioner were mixed in the bundle of respondent No.1, that on table No.2, the counting of votes in rounds 3 to 5 was objected to as 15 votes which were polled in favour of the petitioner were again slightly smudged due to mishandling of the ballot papers, but those were illegally rejected by treating the same as identification marks, moreover, on this very table about 12 votes in each round were mixed with the bundle of respondent No.1; at table No.3, about 10 votes iii each round were mixed with the bundles of respondent No.1 and other candidates and during round No.5 there were 7 to 8 votes, which could not be ascertained as to in whose favour they had been polled and were thus liable to be rejected, but were counted in fact, in favour of the respondent No.1, and that each time the counting agents of the petitioner objected but, the counting staff used to threaten them to keep quiet and they were further told that if they persisted in their objection, they would be thrown out of the counting hall. 20. Apart from the above, various other details have been given as per grounds (i) to (xix) of para 11 of the election petition. 21. Coming now to the case law relied on by Shri S.P. Jain. In Narain Chand Prashar’s case (supra) Issue No.3, being a preliminary issue was to the effect whether the petition does not disclose any cause of action and is liable to be dismissed for the non-compliance of the provisions of Sections 83-86 of the Act. On the facts of that case, it was found that having considered the entire petition in that case, an impression could be gathered that it disclosed no cause of action and suffers from lack of material facts and the cause of action pleaded is totally incomplete with respect to various grounds. At the same time, it was observed that no doubt, an election petition normally deserves to be and should be tried on merits (emphasis supplied).Provided it discloses cause of action, but when on a closer scrutiny, material facts of the alleged corrupt practice(s) are not furnished and it does not disclose any cause of action, the other allegations in the absence of complete cause of action pleaded may be of a serious nature, it must be dismissed in limine. Reliance was placed on Azhar Hussains case (supra) which has also been cited by Shri S.P. Jain in the present case. 22. In my considered view, the ratio of the judgment in Narain Chand Prashar’s case (supra) would not apply to the facts of the present case. The first reason for this is that the main ground on which the election of the returned candidate was challenged in that case, was the alleged corrupt practices having been committed by the returned candidate, etc. Secondly, from the above perusal of the grounds contained in para 11 of the present election petition, it cannot be said that material facts have not been disclosed, as has been argued by the learned Counsel for respondent No.1. Moreover, in view of the case law cited by the learned Counsel for the election petitioner, which shall be referred to subsequently in this judgment, the ratio in Narain Chand Prashar’s case (supra) would not be applicable, in the considered view of this Court. 23. Moreover, in view of the case law cited by the learned Counsel for the election petitioner, which shall be referred to subsequently in this judgment, the ratio in Narain Chand Prashar’s case (supra) would not be applicable, in the considered view of this Court. 23. In Azhar Hussains case (supra), it has been laid down that an election petition can be and must be dismissed under the provisions of C.P.C. if the mandatory requirements enjoined by Section 83 (of the Act) to incorporate the material facts and particulars relating to alleged corrupt practices in the election petition are not complied with. The C.P.C. applies to, the trial of an election petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6, Rule 16 and Order 7, Rule 11 (a). It has further been laid down therein that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the C.P.C. and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. Shri S.P Jain, learned Counsel for respondent No.1 has laid great stress on para 12 of the said judgment to the effect that the condition that even if the election petition is liable to be dismissed ultimately, it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. 24. In the considered view of this Court, the ratio of the ruling in Azhar Hussains case (supra) is not applicable to the facts of the present case. In that case, the election of the returned candidate was challenged only on the ground of alleged corrupt practices. Apart from that distinction, a reference to the contents of para 11 of the election petition herein would show that the present case is not of that type where it can be said that the election petition lacks material particulars and concise statement of material particulars, as required under Section 83 of the Act or that it does not disclose any cause of action, etc. In the case of S. Baldev Singh (supra), the conclusion of the learned Judge of Punjab and Haryana High Court, while dismissing the election petition was approved and affirmed by the Apex court. That conclusion was as follows: “In view of these facts, I am of the opinion that no case has been made out for any further inspection or scrutiny of ballot papers, especially when we find that the claim of the petitioner that in Sherpur segment as many as 450 votes polled by him had been rejected solely on the ground that they did not bear the prescribed signature or the mark, but 200 similar votes were counted for the respondent, stands falsified by the scrutiny that has already been undertaken. Scrutiny of votes of the remaining segments will be nothing but a fishing or roving inquiry which is not permitted by law.” 25. It is manifest that in the said case of Baldev Singh (supra), the learned Judge of the Punjab and Haryana High Court had come to a finding that the plea of the election petitioner therein for further inspection or scrutiny of ballot papers was turned down on the ground that it stood falsified by the scrutiny that had already been undertaken, which is not the case here before this Court, therefore, this ruling of the Apex Court relied on by the learned Counsel for respondent No.1 is of no avail. 26. Lastly, the learned Counsel for respondent No. 1 has placed reliance on Dudhanis case i.e. AIR 1993 SC 367. In that case, the election of the returned candidate was challenged on the sole ground that the counting of the votes was done illegally and against law and the margin of victory was a narrow one of 24 votes only. The High Court ordered re-counting and allowed inspection of ballot papers. As a result of the same, the High Court came to the conclusion that the election petitioner has polled majority of 26 votes and as such was required to be declared elected. Consequently, that election petition was allowed in that case. In appeal by the returned candidate before the Supreme Court, it was held as follows: "The secrecy of ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. Consequently, that election petition was allowed in that case. In appeal by the returned candidate before the Supreme Court, it was held as follows: "The secrecy of ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of ballot papers has to be maintained and only when the Court is satisfied on the basis of the material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. Thus, in the instant case, only three, line objection application was filed before the Returning Officer. No objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition has been pleaded with the object of having a fishing inquiry and it did not inspire confidence. A cryptic application claiming recount made by the contestant before the Returning Officer. No details of any kind was moved by the petitioner. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. Held, when there was no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition." 27. The distinction between the facts of the present case and the facts in Dudhanis case (supra) straightaway arises, whereas in that case, the High Court had ordered re-counting and allowed inspection of ballot papers and on the basis of the result thereof declared the defeated candidate, the election petitioner, as having been elected, the same is not before this Court. The reason for this is that the present election petition is still pending at the preliminary stage and the stage of ordering recount or allowing of inspection of ballot papers will only arise, if at all it arises, after the evidence has been led by the parties during the trial of the main election petition. Secondly, the finding by the Apex Court in Dudhanis case (supra) was to the effect that the secrecy of the ballot papers has to be maintained and only when the Court is satisfied on the basis of the material facts pleaded in the petition and supported by contemporaneous evidence that the recounting can be ordered. Secondly, the finding by the Apex Court in Dudhanis case (supra) was to the effect that the secrecy of the ballot papers has to be maintained and only when the Court is satisfied on the basis of the material facts pleaded in the petition and supported by contemporaneous evidence that the recounting can be ordered. Insofar as the contemporaneous evidence in the present case is concerned, as pointed out by Shri Inder Singh, learned Counsel for the petitioner, the petitioner herein is placing reliance on a video cassette film of the counting which has been placed on record as Annexure P-11, and as per the pleadings contained in sub-para (xvi) of para 11 thereof, it has been stated that the said video film cassette would show the facts as contained and pleaded vide clauses (a) to (f) thereof. In other words, it cannot be said that the present election petition is bereft of such material facts and is also not supported by contemporaneous evidence so as to necessitate or invite dismissal for non-compliance of the provisions of Section 83(i)(a) read with Section 100 (i)(d)(iii) and (iv) of the Act as well as the provisions of Order 6, Rule 16 and Order 7, Rule 11 (a), C.P.C., the EMP having been filed by invoking the same. 28. Insofar as the decision in the case of Mahendra Pal v. Ram Dass Malanger and others (Election Petition No. 1 of 1998 decided on 24.6.1988) is concerned, the learned Counsel for respondent No. 1 has taken this Court through para 11 pages 15, 23, 24, 27 to 32 and 36 of that judgment. According to him, the facts in the present case are similar to the facts of that case, therefore, since the election petition in that case was dismissed at the preliminary stage on the ground that the pleadings contained therein lacked in material particulars, as required under Section 83 of the Act and that such pleadings do not furnish a cause of action, the present election petition also deserves to be dismissed in a similar manner. 29. I have carefully gone through the judgment in Mahendra Pal’s case (supra) but, I have not been able to persuade myself to accept the contention of Shri S.P. Jain on the above point. 29. I have carefully gone through the judgment in Mahendra Pal’s case (supra) but, I have not been able to persuade myself to accept the contention of Shri S.P. Jain on the above point. The reasons for this conclusion of mine shall follow at a later part of this judgment in the context of the submissions made by the learned Counsel for the petitioner hereinafter. 30. The learned Counsel for respondent No.1 has also submitted in passing that the election petition deserves to be dismissed for non-compliance of the provisions of Section 83(1)(c) of the Act In this behalf, he has referred to paras 10 and 11 thereof, which have been verified at the foot as being based on the information received and believed to be true by the petitioner. The precise objection in this behalf is that the petitioner has not disclosed the source of his information with regard to the said two paras. 31. There is no merit in the above contentions inasmuch as Section 83(1)(c) provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. Order 6, Rule 15, C.P.C. provides for verification of pleadings. Sub-rule (2) thereof says that the person verifying shall specify, by reference to the numbered paragraphs of the pleadings what he verifies of his own knowledge and what he verifies upon information received and believed to be true. A perusal of the verification at the foot of the election petition indicates that the petitioner has verified the contents of paras 10, 11(i) to 11(ix) and xvii to 11(xix) and 20 and the prayer clause of the petition upon information received and believed to be true. As rightly pointed out by Shri Inder Singh, learned Counsel for the petitioner, by placing reliance on the Allahabad High Court judgment reported as Naresh Kumar v. Prakash Narain Awasthi and others, (AIR 1988 All 102), the absence of recital as to the source of knowledge or information in the affidavit (verification) can have no material bearing on the trial of the election petition. Therefore, in the considered view of this Court, the election petition herein fully complies with the provisions of Section 83(i)(c) of the Act read with Order 6, Rule 15, C.P.C. Moreover, as laid down by the Apex Court in F.A. Sapa, etc. Therefore, in the considered view of this Court, the election petition herein fully complies with the provisions of Section 83(i)(c) of the Act read with Order 6, Rule 15, C.P.C. Moreover, as laid down by the Apex Court in F.A. Sapa, etc. v. Singora and others etc. (AIR 1991 S.C. 1557), the mere defect in the verification of the election petition is not fatal to the maintainability of the petition and it cannot be thrown out solely on that ground. 32. In fairness to the petitioner, his learned Counsel, Shri Inder Singh while replying to the arguments raised by Shri S.P. Jain, learned Counsel for respondent No.1, has referred to Section 101(a) of the Act and para 22(v), which is a part of the main prayer in the election petition. On the basis of the same, he has submitted that in the present election petition, the petitioner has made a prayer to this Court that after calling the record of the ballot papers and ordering inspection of the polled votes, thereafter allowing recounting of the same, the election of respondent No.1 may be set aside and declared void and in his place the petitioner may be declared as duly elected from 45, Sulah Legislative Constituency to the Himachal Pradesh Assembly. This prayer is based on the statement of facts, as contained in the election petition, more particularly, the contents of para 11 thereof whereby the details of the irregularities and illegalities alleged to have been committed during the counting in various rounds have been given. Shri Inder Singh has sought to controvert the arguments of Shri S.P. Jain by citing the case law with reference to the pleadings in the election petition. He has first placed reliance on the case reported as Manohar Joshi v. Nitin Bhaurao Patil and another, (AIR 1996 SC 796). It has been held therein that the compliance of Sections 81, 82 and 117 (of the Act) is to be seen with reference to the evident facts found in the election petition and the documents filed alongwith it at the time of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 which is a judicial function. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 which is a judicial function. For this reason, the non-compliance of Section 83, is not specified as a ground for dismissal of the election petition under Section 86. Shri Inder Singh has placed reliance on these observations of the Apex Court in support of his submission that at this preliminary stage, all that this Court has to see are the facts contained in the election petition herein and the documents filed alongwith it, and thus seen it cannot be said that the election petition herein lacks material particulars and does not disclose any cause of action. I find force in this submission of the learned Counsel. As stated above, in this judgment, the election petition contains material particulars and concise statement thereof in the contents of paras 5 and 10 referred to above, as also the details of the irregularities and illegalities alleged to have been committed during the counting of ballots in various rounds vide para 11 thereof. It would be an unnecessary repetition to reproduce the statement of facts/material particulars, as contained in the election petition, in this judgment. Suffice it to say, that this Court is satisfied from the contents of the election petition as a whole, in addition to the contents of paras 10 and 11 thereof, that it does not suffer from the vice of lacking in material particulars and concise statement thereof as required under Section 83(1) (a) of the Act and thus, it cannot be said that it does not disclose any cause of action. The learned Counsel for the petitioner has then cited the case of Arun Kumar Bose v; Mohd. Furkan Ansari and others, (AIR 1983 SC 1311). In that case, number of wrongly rejected ballot papers were furnished and the counting table numbers were given as also booth number was disclosed. On an objection having been raised that the election petition in that case did not set out material facts and defects, it was held that the pleadings therein did set out material facts and no defects could be found with it. On an objection having been raised that the election petition in that case did not set out material facts and defects, it was held that the pleadings therein did set out material facts and no defects could be found with it. In the present case also, the counting tables numbers have been given vide the contents of para 11, sub-paras (iii), (iv), (v) and (vi) of the election petition. Apart from that, it has been stated in the election petition vide para 11 (iii) that 30 votes were wrongly rejected on the ground of having identification marks, while an equal number of votes were wrongly rejected on the ground that they contained a slight smudge of ink, although they were clearly marked in favour of the petitioner. Similarly, in para 11(v) it has been stated that at table No.2, 15 votes, which were polled in favour of the petitioner were illegally rejected during counting on the same ground, i.e. that they were having a slight smudge of ink, which had an identification mark by the counting staff. Therefore, in view of the decision of the Apex Court in the case of Arun Kumar Bose (supra) it can safely be said that the pleadings in the present case did set out material facts and as such it cannot be deemed as defective. 33. The learned Counsel for the petitioner has next placed reliance on the case of Ashwani Kumar Sharma v. Yaduvansh Singh and others, (1998) 1 S.C.C. 416). That was a case in which an election petition was filed under Section 100(1)(d)(iii) of the Act on the ground that the result of the election had been materially affected by the improper reception of votes and by mixing of votes of the petitioner with the votes of the other contesting candidates. Similar is the case here inasmuch as, the present election petition has been filed under the same provision and as per the statement of facts/material particulars contained therein, it has been alleged that there was a improper reception of votes in favour of respondent No. 1 and that the result of the election in the present election has been materially affected by allegedly mixing the votes of the petitioner with the votes of respondent No.1. Reference in this connection may be made to the contents of para 11(iii), (iv), (v), (vi), (vii), (viii), (ix), etc. 34. Reference in this connection may be made to the contents of para 11(iii), (iv), (v), (vi), (vii), (viii), (ix), etc. 34. Further in Ashwani Kumar Sharmas case (surpa), in the election petition, it was stated that why the counting of ballot papers was unfair, improper or not in accordance with law, which is also the pleaded case of the petitioner here. It was alleged in that case that as per the information of the election petitioner, hundreds of ballot papers were already mixed with the ballot papers of another candidate, which is similar to the allegations in the present election petition. In that case also, as in the present case, the details of tables showing the wrong counting of votes cast in favour of the election petitioner, being counted in favour of another candidate, were given. On such facts, it was held by the Apex Court that the election petition cannot be considered as not disclosing any cause of action or not containing concise statement of material facts and, therefore, the petition could not be rejected at a preliminary stage on that ground. It is manifest that there being similar facts arising out of the pleadings in the present election petition, the decision of the Apex Court in Ashwani Kumar Sharmas case (supra) applies with full force to this case also. Not only that, it has been held by the Apex Court in the said case that the entire evidence in support of such material facts is not required to be specified, which is the forceful submission made by the learned Counsel for the petitioner here also. As laid down therein, the evidence in support of the pleas which have been taken or facts which have been pleaded, cannot be confused with the concise statement of material facts, which an election petitioner is required to set out under Section 83(1)(a) of the Act. In that case, the Apex Court has made a distinction between material facts and material particulars by holding that they are different and this distinction is important because different consequences may flow from a deficiency of such facts or particulars in the pleadings. Failure to plead even a single material fact would lead to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off. But, if material particulars are lacking, they may be supplied at a later date. Failure to plead even a single material fact would lead to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off. But, if material particulars are lacking, they may be supplied at a later date. (Emphasis supplied). 35. In the case of Jagjit Singh v. Dharampal Singh and others, (1995 Suppl. (1) SCC 422), the question before the Apex Court was whether the election petition in that case contained a concise statement of material facts, as result of that election was challenged as having been materially affected by improper rejection of votes. On the facts of that case, it was found that the number of votes improperly rejected, particular booth to which they related, particular table at which the votes were counted and the grounds on which the votes were rejected, were set out in that Election Petition, only explanation being that serial numbers of the rejected polled papers were not mentioned. Explanation for that omission was offered by stating that the same was because of seating arrangement (counting of votes having taken place behind an iron net and counting agents having been made to sit 5-6 feet behind the net), and no ballot paper was shown to the candidates or their agents during the counting. On these facts, it was held in that case that the averments contained material facts as required by Section 83(1) (a) of the Act, arid that the explanation offered cannot be ignored as the truth or falsity thereof had to be decided on the basis of evidence. 36. In the present case also, it has been pleaded in para 6 of the election petition that neither the candidate nor the counting agents were in a position to have a look at the ballot papers for the purpose of satisfying themselves regarding the correctness of the counting and to know as to whom the vote has been cast. In the same para, it has been pleaded that there was a wire mesh/ net on the tables and the sitting arrangement provided for the candidates and their counting agents near the table of the Returning Officer, was at a distance of about six feet from the counting tables. It has also been pleaded in the same para that the counting agents and the candidates were outside the wire-mesh/net and the counting staff was inside that net. It has also been pleaded in the same para that the counting agents and the candidates were outside the wire-mesh/net and the counting staff was inside that net. For this reason, as alleged in the election petition, neither, the candidates nor their counting agents were in a position to have a look at the ballot papers. It is thus clearly manifest that in view of the law laid down by the Apex Court in Jagjit Singhs case (supra), it can safely be held that the averments made in the present election petition did contain material facts as provided by Section 83(1)(a) of the Act. 37. It would be pertinent to mention here that the Apex Court has gone to the extent of holding in Jagjit Singhs case (surpa) that absence of averment in the election petition that the result of the election was materially affected by improper rejection or acceptance of votes by itself if not fatal to the election petition if that is the obvious conclusion which can be drawn from the circumstances. That was a case where the petitioner lost the election by a narrow margin of 80 votes and it was held that if he succeeds in establishing his case as set out in the election petition, the result of the election in so far as it concerned the returned candidate, would be materially affected. In the present case also, there is a narrow margin of 125 votes and if, after trial of the election petition, the petitioner succeeds in establishing his case as set out by him in the present election petition, it would necessarily follow that the result of the election in so far as it concerns respondent No.1, would be materially affected. 38. Coming now to the decision of the learned Judge in Mahendra Pals case (supra) (Election Petition No.1 of 1988 decided on 24.6.1998), the case law relied upon by the learned Counsel for the petitioner in the present case, has not been considered in that case, namely, the rulings reported in AIR 1996 SC 796, AIR 1983 SC 1311, (1995) Supp. ISCC 422. No doubt, the case of Ashwani Kumar Sharma (supra) has been referred to by the learned Judge in Mahendra Pals case but it has been held that what are material facts, would depend upon the facts of each case. ISCC 422. No doubt, the case of Ashwani Kumar Sharma (supra) has been referred to by the learned Judge in Mahendra Pals case but it has been held that what are material facts, would depend upon the facts of each case. As already discussed above, Ashwani Kumars case has a bearing on the facts of the present case. 39. It would also not be out of place to mention here that Shri Inder Singh has brought to the notice of the Court that Civil Appeal No. 4085/98 has been admitted by the Supreme Court of India against the decision of the learned Judge of this Court in Mahendra Pals case (Election Petition No.1 of 1998 decided on 24.6.1998). In these circumstances, the contention of Shri Inder Singh is to the effect that the matter being subjudice before the Apex Court, finality is not attached to the decision of this Court in that case. 40. In view of the above discussion, I hold that the pleadings in the election petition contain material particulars and concise statement thereof as required under Section 83 of the Act. It necessarily follows that it does disclose a cause of action. Consequently, there is no force in the preliminary objections to the effect that the election petition deserves to be dismissed in limine. Preliminary Issues No.4 and 5 are accordingly decided in favour of the petitioner and against respondent No.1. 41. In the result, EMP No. 17/98 is dismissed with costs, which are quantified at Rs, 5,000/-. Petition dismissed.