JUDGMENT K.C. Sood, J. :- General Elections to the State Assembly of Himachal Pradesh were held on February 26, 2003. Respondent No. 1, Sat Pal Singh, hereinafter referred to as the "returned candidate" was declared elected from 32-Una Legislative Constituency. Petition Virender Nath Gautam, hereinafter referred to as the "defeated candidate" was one of the candidates from this Constituency on the symbol of Indian National Congress. The returned candidate contested the election as candidate of Bhartiya Janta Party. Result of the election was declared on March 1, 2003. The returned candidate was declared elected by a margin of 51 votes. The returned candidate secured 27651 votes and the defeated candidate secured 27600 votes. Respondent No. 2 Hem Raj and respondent No. 3 Khushal Singh were also candidates. They secured 1018 and 746 votes respectively. 2. The defeated candidate by this petition under Sections 80 and 81 read with Section 100 and 101 of the Representation of People Act, 1951, hereinafter referred to as "the Act", challenge the election of the returned candidate. 3. The election of the returned candidate is sought to be set aside and declared void with a prayer that the defeated candidate be declared as duly ejected from 32-Una Legislative Assembly Constituency. 4. The election of the returned candidate is sought to be set aside on the grounds that 188 void votes were cast and counted in spite of the fact that all these votes were invalid/void votes as the margin of the votes between the defeated candidate and the returned candidate is only 51, therefore the result of the returned candidate has materially been affected. 5. The case of the defeated candidate as set out in the petition is : (1) 37 votes of dead persons were cast during the poll and these 37 votes ought to have been "deducted" from the total number of votes and not counted at all. The details of the votes cast of dead persons is Sr. No. Vote No. Boot h No. Name Fathers/Husbands Name 1. 40 49 Shri Mela Ram Shri Harjalu 2. 639 49 Shri Jeet Singh Shri Hardev Singh 3. 581 49 Smt. Khelo Devi Shri Lehnu Ram 4. 569 49 Shri Rulia Ram Shri Hardev Singh 5. 269 49 Shri Ramesh Chand Shri Prithi Singh 6. 589 49 Shri Mahant Singh Shri Feena Ram 7. 754 49 Shri Tulsi Ram Shri Ram Chand 8. 639 49 Shri Jeet Singh Shri Hardev Singh 3. 581 49 Smt. Khelo Devi Shri Lehnu Ram 4. 569 49 Shri Rulia Ram Shri Hardev Singh 5. 269 49 Shri Ramesh Chand Shri Prithi Singh 6. 589 49 Shri Mahant Singh Shri Feena Ram 7. 754 49 Shri Tulsi Ram Shri Ram Chand 8. 380 49 Sh. Joginder Pal Shri Seeta Ram 9. 654 49 Sh. Pritam Singh Shri Sham Singh 10. 496 49 Smt. Fula Devi Shri BabuRam 11. 415 49 Sh. Mangat Ram Shri Madu Ram 12. 539 49 Sh. Balwant Singh Shri Shiv Ram 13. 490 49 Sh. Amar Singh Shri Beli Ram 14. 425 49 Sh. Gurdass Ram Shri Raju Ram 15. 550 49 Smt. Pritmi Devi Shri Malook Singh 16. 375 49 Smt. Bhagi Rani Shri Kesri Dass 17. 538 49 Smt. Rumal Devi Shri Balak Ram 18. 452 49 Sh. Hoshiar Singh Shri Udham Singh 19. 258 49 Sh. Jhatu Ram Shri Sada Ram 20. 442 49 Sh. Raj Kumar Shri Milkhi Ram 21. 313 49 Smt. Vanti Devi Shri Kishan Singh 22. 49. 49 Sh. Pragat Singh Shri Sahib Singh 23. 244 49 Sh. Rabbal Shri Chandu 24. 283 49 Sh. Nand Lai Shri Ram Ditta 25. 356 49 Sh. Kewal Singh Shri Jalla Ram 26. 593 49 Sh. Dilbag Singh Shri Mahant Singh 27. 786 49 Sh. Baldev Singh Shri Fulla Singh 28. 536 48 Sh. Jagdish Shri Chandu Ram 29. 604 48 Smt. Ram Piari Shri Nanak Chand 30. 810 48 Sh. Jagdev Singh Shri Lai Chand 31. 510 54 Smt. Kaushalaya Devi Sh Bakhtawar Singh 32. 386 56 Sh. Mangal Singh Shri Matua Ram 33. 694 56 Sh. Vipin Singh Shri Avtar Singh 34. 202 39 Sh. Rattan Chand Shri Chanda Ram 35. 248 39 Sh. Daulat Ram Shri Penchu Ram 36. 285 39 Sh. Milkhi Ram Shri Achhru Ram 37. 113 39 Sh. Mukesh Kumar Sh. Shamsher Singh 6. According to the petitioner, out of 37 votes, 30 such votes were cast in Booth No. 48 and 49 which falls in the native village of the returned candidate, i.e. village Jalgran Tappa. (b) 60 double votes were cast in violation of Section 62(4) of the Act and thus 120 votes were counted though all these votes were void under Section 62(4) of the Representation of People Act and could not be counted. (b) 60 double votes were cast in violation of Section 62(4) of the Act and thus 120 votes were counted though all these votes were void under Section 62(4) of the Representation of People Act and could not be counted. The detail of such votes has been given as follows :- Vote No. Booth No. Name Father/Husbands Name Votes No. Booth No. 856 40 Shri Raj Kumar Sh. Ishwar Dass 112 48 857 40 Smt. Poonam Kumari Shri Raj Kumar 115 48 307 48 Shri Bal Krishan Shri Ram Parkash 72 27 308 48 Smt. Asha Rani Shri Bal Krishan 73 27 310 48 Sh. Narinder Kumar Shri Bal Krishan 74 27 311 48 Shri Sanjay Shri Bal Krishan 76 27 312 48 Ms. Reena Shri Bal Krishan 78 27 313 48 Smt. Veeran Shri Narinder Kumar 75 27 314 48 Smt. Neeta Shri Sanjay 77 27 224 48 Shri Trilok Shri Raja Ram 225 48 226 48 Smt. Shanti Shri Tarlok 227 48 801 48 Sh. Shival Singh Shri Amar Singh 620 49 802 48 Smt. Raj Kumari Shri Shival Singh 621 49 803 48 Shri Surinder Singh Shri Shival Singh 622 49 804 48 Smt. Saroj Devi Shri Shival Singh 623 49 805 48 Shri Charanjit Singh Shri Shival Singh 724 49 806 48 Shri Sham Singh Shri Shival Singh 625 49 632 48 Smt. Anshu Shri Naresh Kumar . 822 48 875 48 Smt. Anita Kumari ! Shri DharamSingh 518 48 835 49 Shri Dulbag Singh Shri Karam Chand 875 49 836 49 Smt. Sudesh Kumari Shri Dilbag Singh 876 ,49 837 49 Shri Amrish Kumar Shri Dilbag Singh 877 49 838 49 Shri Surinder Kumar Shri Dilbag Singh 878 49 866 49 Smt. Kusum Shri Jai Gopal 867 49 228 48 Shri Sanjiv Shri Trilok 107 48 314 29 Shri Rakesh Singh Shri Madan Singh 531 39 430 16 Shri Upinder Kumar Shri Kanti Chand 1 32 431 16 Smt. Sudha Rani Shri Upinder Kuamr 2 32 35 40 Sh. Amrik Singh Shri Nasib Singh 724 49 36 40 Smt. Sunita Devi Shri Amrik Singh 725 49 42 40 Smt. Roshni Devi Shri Harbans Singh 736 48 43 40 Shri Dilbag Singh Shri Basant Singh 737 48 44 40 Shri Urmila Devi Shri Dilbag Singh 738 48 48 40 Ms. Amrik Singh Shri Nasib Singh 724 49 36 40 Smt. Sunita Devi Shri Amrik Singh 725 49 42 40 Smt. Roshni Devi Shri Harbans Singh 736 48 43 40 Shri Dilbag Singh Shri Basant Singh 737 48 44 40 Shri Urmila Devi Shri Dilbag Singh 738 48 48 40 Ms. Suman Shri Harbans Singh 739 48 163 40 Smt. Shanti Devi Shri Ashok Kumar 320 49 164 40 Shri Ashok Kumar Shri Chokas Ram 319 49 202 40 Smt. Poonam Shri Pawan Singh 939 40 205 40 Sh. Jagmohan Singh Sh. Hardev Signh 120 48 226 40 Smt. Pooja Shri Sanjeev Singh 938 40 241 40 Sh. Mangal Singh Shri Thandu Ram 340 49 242 40 Smt. Sansari Devi Shri Mangal Singh 341 49 243 40 Sh. Sanjeev Kumar Shri Mangal Singh 342 49 360 40 Ms. Minakshi Sh. Harsem Lai 947 40 499 40 Shri Onkar Chand Sh. Shambhu 963 40 500 40 Smt. Rachhna Sh. Onkar Chand 964 40 501 40 Sh. Vinod Kumar Sh. Onkar Chand 965 40 502 40 Sh. Ashok Kumar Sh. Onkar Chand 966 40 503 40 Sh. Raman Kumar Shri Onkar Chand 967 40 553 40 Sh. Nathu Ram Sh. Kanwar Man. 994 40 554 40 Smt. Pushpa Sh. Nathu Ram 995 40 555 40 Ms. Manju Sh. Nathu Ram 996 40 852 40 Sh. Gurmail Chand Sh. Ishwar Dass 108 48 853 40 Smt. Asha Rani Sh.Gurmail Chand 109 48 854 40 Sh.Sukhdev Sh. Ishwar Dass 110 48 855 40 Smt. Urmila Sh. Sukhdev 111 48 906 23 Smt.Prem Lata Sh. Rajender Kuamr 335 28 907 23 Ms. Vandana Shri Ram Swaroop 336 28 49 . 39 Sh. Gurmeet Shri Hari Ram 331 29 50 39 Smt. Rachna Shri Gurmeet 332 29 (c) 19 persons cast their votes in two Constitutes, i.e., Una-32 Constituency and Kutlehar-33 Constituency. The detail of the voters who cast votes in two Constituencies is given in the petition as follow :- Vote No. Booth No. Con stitu ency No. Name of Voter FatherHusband s Name Vote No. Booth : Nos. Constituency No. 444 28 32 Smt. Shanti Devi Sh. Kishan Chand 709 76 33 445 28 32 Sh. Som Nath Sh. Kishan Chand 708 76 33 446 28 32 Smt. Saroj Bala Sh. Som Nath 710 76 33 447 28 32 Smt.Mamta Kumari Sh. Vijay Kumar 712 76 33 448 28 32 Sh. Vinod Kumar Sh. Constituency No. 444 28 32 Smt. Shanti Devi Sh. Kishan Chand 709 76 33 445 28 32 Sh. Som Nath Sh. Kishan Chand 708 76 33 446 28 32 Smt. Saroj Bala Sh. Som Nath 710 76 33 447 28 32 Smt.Mamta Kumari Sh. Vijay Kumar 712 76 33 448 28 32 Sh. Vinod Kumar Sh. Kishan Chand 713 76 33 449 28 32 Smt Anju Bala Sh. Vinod Kumar 714 76 33 450 28 32 Sh. Pawan Kumar Sh. Banta Ram 190 76 33 451 28 32 Smt.Parveen Kumari Sh. Pawan Kumar 191 76 33 452 28 32 Sh.Ashwani Kumar Sh. Kishan Chand 715 76 33 453 28 32 Smt. Aruna Kumari Sh. Ashwani Kumar 716 76 33 454 28 32 Sh. Rakesh Kumar Sh. Kishan Chand 718 76 33 455 28 32 Smt. Anju Bala Sh. Rakesh Kumar 717 76 33 456 28 32 Sh. Ravinder Nath Sh. Banta Ram 193 76 33 457 28 32 Smt. Rekha Rani Sh. Ravinder Nath 194 76 33 469 36 32 Sh. Tarsem Sh. Ram Parkash 516 63 33 470 36 32 Smt. Kamlesh Sh. Tarsem 517 63 33 471 36 32 Sh. Surinder Sh. Ram Parkash 518 63 33 472 36 32 Smt. Neelam Sh. Surinder 519 63 33 473 36 32 Sh. Ajay Sh. Ram Parkash 520 63 33 7. According to the petitioner, most of the persons who cast their votes twice in same Constituency or different Constituency belong to the families which are the supporters of the returned candidate and, therefore, the returned candidate is beneficiary of the void votes. (d) The Returning Officer committed material irregularity while counting the postal ballots. Six persons were sent double postal ballot papers and therefore instead of six votes, 12 votes were cast by those 6 persons and all those six persons 12 votes being void, should not have been counted. The detail of the persons who cast their votes twice by ballot papers issued by the returning officer given in the petition is : Vote No. Name No. IInd Vote No. 9. Sh. Parveen Kumar 2684449 163 27. Sh. Rajinder Kumar 3987258 134 28. Shri Narinder Kumar 3993288 132 52 Sh. Rajesh Kumar 14938107 223 53. Smt. Mamta w/o Rajesh Kumar 14938107 224 177. Sh. Sh. Parveen Kumar 2684449 163 27. Sh. Rajinder Kumar 3987258 134 28. Shri Narinder Kumar 3993288 132 52 Sh. Rajesh Kumar 14938107 223 53. Smt. Mamta w/o Rajesh Kumar 14938107 224 177. Sh. Vijay Pal Singh 6913281 217 According to the defeated candidate, the averments made by him make it clear that election of the returned candidate was materially affected because of the acceptance of the void and invalid votes and if such void/invalid votes cast are excluded, the election of the "returned candidate" is definitely effected and the number pf votes cast in favour of the petitioner shall be higher than the number of votes cast to respondent No. 1. It was only because of the wrong counting to votes that the returned candidate was declared elected. 8. The petitioner prays for the inspection of the polled votes in Booth No. 63 and 76 of Kutlehar-33 Constituency and all the votes in 32-Una Constituency and recounting of all the polled votes after deducting 180 void/invalid votes. 9. In the written statement filed by the returned candidate, the following preliminary objections are taken ; "1. That in Election Petition, the petitioner had tried to canvas that in the electoral rolls, the names of certain dead persons were continuing and on the name of those dead persons votes were polled during the election. On the basis of these wrong electoral rolls and polls, the petitioner is challenging the election of the replying respondent. However, the alleged defect in preparation of electoral rolls cannot be canvassed in the election petition. The stage for challenging these electoral rolls is not by way of election petition, but the remedy was available some where else at the appropriate time. As such the present petition is not maintainable and liable to be dismissed. 2. That the petition has not been properly verified as provided under the law, as such, the same is liable to be dismissed. As much as, the petitioner has never stated regarding para No. 8 sub-para 1 to 4 and 12 that he has not given the name of the persons from whom he has received the information. As such, the entire petition is liable to be dismissed. 3. That the allegations levelled in the petition are vague and the petition does not disclose the details of the material facts as required under the law. As such, the entire petition is liable to be dismissed. 3. That the allegations levelled in the petition are vague and the petition does not disclose the details of the material facts as required under the law. As such, the petition lacks in detailed material facts and particulars and is liable to be rejected. 4. That the Election Petition does not disclose sufficient ground for recounting. As such, it is liable to be dismissed. On the request of the petitioner, the returning Officer conducted the recounting to the satisfaction of the petitioner on the spot. As such, now there is no justification and valid ground for directing recounting by this Honble Court. 5. That now it has been finally settled by the Honble Supreme Court that if the petitioner fails to raise the objection for recounting in writing and by giving proper and sufficient reasons, he cannot be later on allowed to agitate such objections in the Election Petition. 6. That if the inspection of the polled votes and recounting is allowed by this Honble Court, it would trinchh the secrecy of ballot papers, which would be in violation of Section 94 of the Representation of Peoples Act therefore, this Election Petition is liable to be dismissed. 7. That there is no allegation against the replying respondent that he had any contribution for adding the names of dead persons in the electoral rolls or preparing the double votes. As such, the petition is not maintainable. 8. That the election petition does not disclose any cause of action, as such liable to be dismissed. 9. That copy of the petition supplied to the replying respondent is not a true copy of the original, as such, the election petition is liable to be dismissed." 10. The case of the returned candidate is : the allegations are wrong, vague and frivolous. The petitioner did not raise any objection when the electoral rolls were prepared nor at the time when the vote of any dead person was cast by any individual. According to the returned candidate, the defeated candidate intentionally got votes in the name of the dead person polled in his favour. Even though the defeated candidate had details of these dead persons, he never raised any objection at the time of the revision/preparation of the electoral rolls or when the poll was held. According to the returned candidate, the defeated candidate intentionally got votes in the name of the dead person polled in his favour. Even though the defeated candidate had details of these dead persons, he never raised any objection at the time of the revision/preparation of the electoral rolls or when the poll was held. The returned candidate denied that there was any improper reception, refusal or rejection of any vote. It is pleaded that the petitioner has not stated material facts as to which of the votes out of these 188 votes are invalid and which are void. The defeated candidate, pleads returned candidate, having not raised any objection at the time of revision or preparation of the election petition or when the votes were cast, cannot raise such objection at this stage. According to the returned candidate, the defeated candidate knowingly got the names of the dead persons included in the voters list and having lost the election, has made a grievance of it. The returned candidate emphasizes that it was a pre-planned Scheme of the defeated candidate to get the votes of dead persons polled in his favour and in case he lost the election, to file election petition on this ground. According to the returned candidate the plea of defeated candidate that out of 37 votes, 30 were cast in booth No. 40 and 49 falling in the native village of the returned candidate does not raise any presumption that these votes were polled in favour of the returned candidate. 11. So far casting of double votes, is concerned, it is pleaded that the defeated candidate never raised any objection at the time of preparation/revision of the voters lists nor at the time of polling or at the time of counting and therefore, the objection at this stage is not sustainable. In so far the counting of postal ballot is concerned, it is pleaded that there was no irregularity in the counting nor such objection was raised at the time of counting. 12. The returned candidate having polled highest number of votes, has rightly been declared elected. There was no illegality or irregularity in the elections more so when the defeated candidate failed to point out any such illegality or irregularity at appropriate time in the manner as prescribed in the Act and the rules framed there under. 13. The following issues were settled for trial: 1. There was no illegality or irregularity in the elections more so when the defeated candidate failed to point out any such illegality or irregularity at appropriate time in the manner as prescribed in the Act and the rules framed there under. 13. The following issues were settled for trial: 1. Whether 188 invalid votes were wrongly accepted and counted by the Returning Officer, as alleged? If so, its effect. ...OPP. 2. If issue No. 1 is proved in affirmative, whether counting of such invalid votes materially affected the result of the returned candidate ? ....OPP. 3. If issues No. 1 and 2 are proved in affirmative whether election of the returned candidate is liable to be set aside and declared void ? ....OPP 4. If issues No. 1, 2 and 3 are proved in affirmative, whether the petitioner is entitled to be declared elected, as alleged ? ...OPP. 5. Whether the election petition does not disclose any cause of action?.....OPD. 6. Whether the petition lacks in material facts and particulars, as contemplated under Section 83 of the Representation of People Act ? OPD. 7. Whether the petition has not been verified in accordance with the provisions of law and is liable to be dismissed ? ...OPD, 8. Whether the petitioner is estopped from claiming recounting of votes? ....OPD. 14. Issues No. 5, 6 and 8 were directed to be tried as preliminary issues. 15. Learned Counsel for the parties stipulated that no evidence is to be led by any of the parties on these three issues. 16. I heard Mr. R.K. Gautam, Senior Advocate assisted by Mr. Naresh K. Sood and Mr. J.R. Poswal, Advocates for the petitioner and Mr. S.P. Jain, Senior Advocate, assisted by Mr. P.K. Sharma, Mr. Sandeep Kaushik and Mr. Baldev Singh, Advocates for respondent No. 1. My findings on the preliminary issues are :- Issues No. 5, 6 and 8 17. All these issues are taken up together being inter-linked and inter-dependent. The contention of the learned Senior Counsel for the returned candidate is that the petition does not disclose either cause of action or material facts on which the defeated candidate relies in support of the challenge made by him. 18. Chapter-II of the Act provides for presentation of the petitions. The contention of the learned Senior Counsel for the returned candidate is that the petition does not disclose either cause of action or material facts on which the defeated candidate relies in support of the challenge made by him. 18. Chapter-II of the Act provides for presentation of the petitions. Section 80 in this Chapter provides that an election petition challenging an election may be filed on one or more ground as specified in sub-Section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within the time prescribed under Section 81 of the Act. Section 82 of the Act provides for joining of the respondents to the petition. Section 83(1) stipulates that election petition shall : (a) contain a concise statement of the material facts on which the petitioner relies; (b) set forth full particulars of any corrupt practice that the petitioner alleges, including full statement of names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of the pleadings. 19. Proviso to sub-Section (1) of Section 84 mandates that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Section 86. lays down that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. 20. Section 83 of the Act makes a distinction between material facts and material particulars as different consequences flow by non-compliance if all material facts are not given on that material particulars are not given, it leads to incomplete cause of action. 21. 20. Section 83 of the Act makes a distinction between material facts and material particulars as different consequences flow by non-compliance if all material facts are not given on that material particulars are not given, it leads to incomplete cause of action. 21. The Apex Court in Udhav Singh v. Madho Rao Scindia, AIR 1976 Supreme Court 744, ruled that failure to plead even a single material fact leads to an incomplete cause of action and, therefore, incomplete allegation of such a charge are liable to be struck off under Order 6 Rule 16 of the Code of Civil Procedure and if petition is based only on those objections, which suffers from lack of material facts, the petition is liable to be rejected in limine. 22. The Apex Court in Azhar Hussain V. Rajiv Gandhi, AIR 1986 Supreme Court 1253, after having a look at Section 87 of the Act, which provides that every election petition is to be tried by the High Court, as nearly as may be, in accordance with the procedure applicable to the trial of suits and noticing that though Section 83 does not find a olace in Section 86 of the Act, which authorizes dismissal of the election petition in certain contingencies, can act in exercise of the powers of the Court including order 6 rule 16 and order 7 rule 11-A. Their Lordships in para 11 of the judgment observed: "11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samants case 1969(3) SCC 238: AIR 1969 SC 1201 has expressed itself in no unclear terms 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. This Court in Samants case 1969(3) SCC 238: AIR 1969 SC 1201 has expressed itself in no unclear terms 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. So also in Udhay Singhs case 1977(1) SCC 511: AIR 1977 SC 744 the law has been enunciated that all the primary facts which must be proved by a party to establish cause action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particulars corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1 )(a). An election petition therefore can be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail." (Emphasis given) 23. It was contended in Azhar Hussain that power to reject an election petition summarily or at the threshold under the Code of Civil Procedure should not be exercised. It should not be done without recording evidence and this procedure should only be resorted to after trial of the election petition is concluded. This argument was repelled by their Lordships. It was held that if there is merit in the preliminary objection, then the Court must exercise its power instead of keeping the sword of Damocles hanging over the returned candidate which serves no purpose. This argument was repelled by their Lordships. It was held that if there is merit in the preliminary objection, then the Court must exercise its power instead of keeping the sword of Damocles hanging over the returned candidate which serves no purpose. Their Lordships observed : "To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if facts of the case warrant exercise of such powers, at the threshold, is to contend that the Legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The Court cannot accede to such a proposition." 24. The question what are material facts is no longer res integra. Material facts are the facts which if established, would give petitioner the relief asked for. 25. The first allegation of the defeated candidate is that 37 votes of dead persons were cast during the polls and these 37 votes ought to have been "deducted" from the total number of votes and not counted at all. It is the case of the defeated candidate that 30 such votes out of 37 were cast in Booth No. 48 and 49 which falls in the native village of the respondent No. 1, the returned candidate. So far this allegation is concerned, there is not a word as to how many of these votes were cast in favour of the returned candidate and who cast those votes. Learned Senior Counsel for the returned candidate urged that the defeated candidate never raised any objection at the time of the polling and at this stage, it is not open to the defeated candidate to raise such an objection. 26. It may be noticed that Section 62 of the Act provides that every person who for the time being is entered in the electoral roll of any Constituency shall be entitled to vote in that constituency. Thus all persons whose names are entered in the electoral rolls were entitled to vote in the Constituency. The defeated candidate does not say that he raised any objection when electoral rolls were prepared or revised under Section 21 of the Representation of People Act, 1950. Thus all persons whose names are entered in the electoral rolls were entitled to vote in the Constituency. The defeated candidate does not say that he raised any objection when electoral rolls were prepared or revised under Section 21 of the Representation of People Act, 1950. Section 21 of 1950 Act provides that electoral roll in each Constituency shall be prepared in the prescribed manner and this electoral roll is subject to revision as provided under sub-Section (2) and (3) of Section 21. Section 22 provides an opportunity to get any entry in the electoral roll of the Constituency, if it is erroneous or defective, to be corrected. Sub-Section (c) of Section 22 specifically provides that on an application made to the Electoral Registration Officer, any person can apply for the correction of the electoral roll on the ground that the name of any person should be deleted as that person is dead or has ceased to be ordinary resident of the Constituency or is otherwise not entitled to be, registered in the roll. The defeated candidate does not say that he was not aware of the entries of the dead persons in the Electoral Roll which, in my view, is a material fact and ought to have been pleaded. 27. This apart, Section 61 of the Act provided for procedure for preventing personation of electors. Section 46 of the Act gives a right to a contesting candidate to appoint Polling Agents of such candidate at each polling station as also the relief agents as may be prescribed at each Polling Station. Rule 13 of the Conduct of Election Rules, 1961, hereinafter referred to as "the rules" provides that a candidate or his agent can appoint one agent and two relief agents as Polling Agents for each polling station as provided under Section 46 of the Act. Rule 36 of the Rules stipulates that any polling agent may challenge the identify of a person claiming to be a particular elector by depositing a sum of rupees 21- in cash with the Presiding Officer for each such challenge. Rule 35 contemplates that when an elector enters the polling station, his name and other particulars are to be checked in reference to the Electoral Roll and then call out the serial •number. Rule 35 contemplates that when an elector enters the polling station, his name and other particulars are to be checked in reference to the Electoral Roll and then call out the serial •number. It is at this point of time that challenge of identity can be made by polling agent of a candidate as provided under Section 36 of the rules. In the present case, there is not a word, a whisper that the polling agents or their relief agents, challenged the identity of the persons who allegedly voted for dead electors. If not challenged why ? This too was a material fact which ought to have been pleaded to enable the elected candidate to meet the challenge of this ground. It is not the case of the defeated candidate that he could not make challenge to the electors who impersonated or voted for dead persons because he was not aware of the entries of dead persons in the electoral rolls. The petitioner has given particulars of the dead persons for whom the votes were cast by impersonation therefore, he must have known at the time of polling that these electors were dead. Assuming he was not ware, he does not say when and how he came to know that 37 voters whose names appear in the Electoral rolls and were cast by personation were dead. There is no allegation that the votes cast due to impersonation of the dead persons were managed by the returned candidate or his supporters or election agent. The allegation lacks material facts, noticed above, without which it is not possible for the elected candidate to meet the challenge. The material fact that votes of dead persons by impersonation were cast in favour of the returned candidate is also missing from the pleadings. The names of the persons who impersonated are not given in the pleadings. Non-impleadment of these material facts rendered the cause of action incomplete. 28. The Apex Court in Satyanarain Dudhani v. Udhay Kumar Singh and others, 1993 Supp.(2) SCC 82 took a view that secrecy of the ballot papers is sacrosanct and cannot be permitted to be tinkered lightly. An order of recount or inspection of ballot papers cannot be made as a matter of course. 28. The Apex Court in Satyanarain Dudhani v. Udhay Kumar Singh and others, 1993 Supp.(2) SCC 82 took a view that secrecy of the ballot papers is sacrosanct and cannot be permitted to be tinkered lightly. An order of recount or inspection of ballot papers cannot be made as a matter of course. It is only when the Court is satisfied on the basis of the material facts pleaded in the petition and supported by contemporaneous evidence that recount can be ordered. 29. The view in Satyanarain Dudhani was reiterated in Vadivelu v. Sundaram and others, AIR 2000 Supreme Court 3230. In Vadivelu, the allegation was that electoral roll contains names of dead persons and that some persons impersonated and cast votes in favour of the elected candidate. No details were given as to who committed such irregularity and how such votes were cast in favour of the elected candidate or in what manner. Their Lordships in Para 18 of the judgment observed : "From the above pleadings, it is evident that the appellant has not set forth material facts or particulars required for recount of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. Though an allegation is made that electoral roll contained the names of dead persons, that the 1st respondent took advantage of the same, and that some persons had impersonated and cast votes in his favour, no details are given as to who committed such irregularity. The appellant has also not mentioned as to how many such votes had been cast in favour of the 1st respondent. So also, the appellant has not alleged the nature of the illegality or irregularity said to have been committed by the Counting Officers. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes also is not explained by the appellant. In short, the Election Petition is bereft of all details." 30. Merely because the returned candidate has won by a narrow margin cannot be a reason for inspection of the ballot papers and recounting of the votes. 31. In Vadivelu, the polling was held on 12.10.1996. The votes were counted on 14.10.1996. The elected candidate secured 1011 votes and the defeated candidate Vadivelu secured 1010 votes. The elected candidate won by one vote. 31. In Vadivelu, the polling was held on 12.10.1996. The votes were counted on 14.10.1996. The elected candidate secured 1011 votes and the defeated candidate Vadivelu secured 1010 votes. The elected candidate won by one vote. In this background, the Apex Court said that as the pleadings were bereft of material facts, therefore, the defeated candidate was not entitled to recount. 32. In Hah Shankar Jain v. Sonia Gandhi, 2001(8) Supreme Court Cases 233 : 2002(1) Cur. L.J. (C.C.R.) 70 the Apex Court reiterated that Section 83(1 )(a) of the Act mandates that an election petition shall contain a concise statement of material facts on which the petitioner relies. Their Lordships observed in para 23 : "By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908." 32. Para 23 of the judgment reads : "23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of count. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Gemandez, Jitendra Bahadur Singh v. Krishna Behari). The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Gemandez, Jitendra Bahadur Singh v. Krishna Behari). Merely quoting the words of the Section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must- be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition." (Emphasis given) 33. In para 24 of the judgment, their Lordships ruled that it is the duty of the court, to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose any cause of action. To enable the Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings. 34. The next ground for challenge is improper receipt of void votes by the Returning Officer. The allegation is that 60 persons cast their votes twice in the same Constituency thereby 120 void vote have been counted and 19 persons cast their votes not only in Una-32 Constituency but also in Booth No. 76 and 63 of 33-Kutlehear Constituency. The defeated candidate has given details of double votes polled in paragraph 8(ii) of the petition. Para 8(iii) give details of 19 void votes which were polled in the Constituency in question as well as other Constituency. 35. The petitioner maintains pregnant silence when and how he came to know about the persons listed having cast their votes in different booths in the same Constituency and in two different constituencies. Para 8(iii) give details of 19 void votes which were polled in the Constituency in question as well as other Constituency. 35. The petitioner maintains pregnant silence when and how he came to know about the persons listed having cast their votes in different booths in the same Constituency and in two different constituencies. He does not say who impersonated for these persons in the other booth. He also does not disclose if 19 votes which are cast in Una-32 Constituency and Kutlehar-33 Constituency are the same persons or some other persons who impersonated in other Constituency. Whether he asked for exclusion of the void votes from counting when the counting took place. 36. Rule 51 of the Rules clearly provides that the Returning Officer shall, at least one week before the date fixed for poll appoint the place or places where the counting of the votes will be done and the date and time at which the counting will commence and give notice of the same in writing to each of the candidate or his election agent. Rule 52 says that in terms of Section 47 of the Act, the candidates can appoint their Counting Agents not exceeding 16 at each of the places fixed for counting under Rule 51. Rule 53 provides for appointment of counter supervisor and counting assistant to assist the Returning Officer in counting. The petitioner does not say when precisely he came to know that 60 persons had cast their votes twice though in different booths and 19 persons cast their votes in two different Constituencies. Even though the pleading indicate that the defeated candidate was aware of the persons who cast their votes twice in the same constituency and who cast their vote twice in different constituencies. He does not disclose whether he or any of his counting agent(s) raised any objection at the relevant time regarding the counting of invalid or void votes. He does not disclose his source of information regarding cast of void votes which is a material fact. 37. The plea of the defeated candidate, as -noticed earlier, in support of the challenge is that the result of the returned candidate has materially been affected by improper reception of the votes which were void and, therefore, liable to be excluded. The defeated candidate does not say that these void votes were cast in favour of the returned candidate. 37. The plea of the defeated candidate, as -noticed earlier, in support of the challenge is that the result of the returned candidate has materially been affected by improper reception of the votes which were void and, therefore, liable to be excluded. The defeated candidate does not say that these void votes were cast in favour of the returned candidate. What the defeated candidate says may be recapitulated again : Similarly as many as 60 double votes have been cast which is violative of Section 62(4) of the Representation of People Act, 1955 : He then goes to add : "Again it is pertinent to mention that out of 120 votes mentioned above, 104 votes belong to Booth No. 48 and 49 which are in the native village of respondent No. 1." 38. The material fact that these void votes, which may provide; cause of action, were cast in favour of the returned candidate is missing from the pleadings. 39. The pleas in the petition are bereft of material facts. As already stated, the petition does not disclose how the defeated candidate obtained the information regarding 60 persons having voted twice or 19 persons having cast their vote in two Constituencies. The defeated candidate and his counting agents were present in the counting Hall. Neither the defeated candidate nor his counting agent raised any objection nor asked for recounting. Only in a half hearted manner he alleged in para 7 that he approached the Returning Officer at the time of counting and brought to his notice "it has come to his knowledge that many void votes have been cast and those should be deleted from the cast votes but the Returning Officer showed his helplessness to do so by saying that there is no such procedure in the Electronic Voter Machines and he could not do it." 40. Section 64 of the Act provides that in every election where poll is taken, votes shall be counted by or under the supervision or \ direction of the Returning Officer and each contesting candidate, his election agent and his counting agent, shall have a right to be present at the time of counting. Section 64 of the Act provides that in every election where poll is taken, votes shall be counted by or under the supervision or \ direction of the Returning Officer and each contesting candidate, his election agent and his counting agent, shall have a right to be present at the time of counting. Section 66 of the Act stipulates that after the completion of the counting, the returning officer shall, in the absence of any direction by the Election Commission to the contrary, forthwith declare that result of the election in the manner provided by this Act or the rules made there under. Rule 63 of the Rules provides that after the completion of the counting, the Returning Officer shall record in the result sheet, in Form 20, the total number of votes polled by each candidate and announce the same. After such announcement, it is open to any candidate, his election agent or any of his counting agents to apply in writing to the Returning Officer for recounting the votes either wholly or in part stating the grounds on which he demands such recount. Neither the defeated candidate nor his election agent nor counting agent made by application in writing to the Returning Officer under rule 63 of the rules. The averment of the defeated candidate that he earlier asked the Returning Officer for recounting, is nothing but a bald allegation unsupported by material facts. 41. In Azhar Hussain supra, an allegation was made that assistance of a Government servant was procured and obtained by the returned candidate, his agents and other persons with the consent of the returned candidate with a view to assist the furtherance of the prospects of the returned candidates election. It was not mentioned in the election petition as to who procured or obtained the services of such Government servant or in what manner he obtained the services and what were the facts which went to show that it was with the consent of the elected candidate. In this background, their Lordships observed : "That the averments made in the petition do not show : (1) who has obtained or procured the assistance from Shri Beg; (2) how he had obtained or procured the assistance of Shri Beg; and (3) how it was said that it was with the consent of the respondent or his election agent. In this background, their Lordships observed : "That the averments made in the petition do not show : (1) who has obtained or procured the assistance from Shri Beg; (2) how he had obtained or procured the assistance of Shri Beg; and (3) how it was said that it was with the consent of the respondent or his election agent. Nor is it shown which, if any, facts went to show that it was in furtherance of the prospects of the respondents election. In the absence of material factors and particulars in regard to these aspects, the petition would not disclose the cause of action." 42. In the present case too, it is not disclose who was instrumental in getting the 60 votes cast twice and 19 votes polled in two different constituencies. It is not the allegation that it was the returned candidate or his election agent who was instrumental in getting these sixty votes cast twice and 19 votes cast in two different constituencies. The mere allegation that out of 104 votes were cast in two booths in the native village of the returned candidate does not provide cause of action. The allegations are bereft of material facts. The cause of action remains incomplete unless, a nexus between the casting of these void votes and the returned candidate is alleged. 43. Part-IV of the Conduct of Election Rules, 1961 provides for voting in Parliamentary and Assembly Constituencies. Rule 37 provides that every elector with whose identity the Presiding Officer or the polling officer, as the case may be, is satisfied shall allow his left forefinger to be inspected by the Presiding Officer or polling officer and an indelible ink mark to be put on it. There is no whisper whether the persons who cast their votes twice had mark of ink on their left forefinger. The defeated candidate does not plead whether or not the polling agent of the defeated candidate objected to such person voting at any of the booths, if not why? or such persons had removed the indelible ink mark or no mark was put in one of the booths on the left hand finger of these persons. 44. In the present case, as noticed earlier, the defeated candidate does not say how he came to know about the void votes having been polled. For this reason too, the cause of action remain incomplete. 44. In the present case, as noticed earlier, the defeated candidate does not say how he came to know about the void votes having been polled. For this reason too, the cause of action remain incomplete. The allegation is bereft of material facts. In Mender Bahadur Singh v. Krishna Behari and others, AIR 1970 Supreme Court 276, their Lordships observed: "In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which the arrived at those figures. His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, their must be such facts as to afford a basis for the allegations made in the petition." 45. In the present case, as observed earlier, there is no assertion in the election petition that who gave the information about the casting of void votes or how he came to know about void votes having been cast twice. The inescapable conclusion is that the facts stated in paragraph 8(ii) and (iii) of the election petition are mere allegations not supported by material facts. The cause of action remains incomplete. The petition, in view of this, is not maintainable on these grounds. 46. The last ground of challenge as averred in sub-para (iv) of para 8 is that double postal ballots were sent to six persons. Therefore instead of six votes, twelve votes were cast by those six persons which resulted in twelve void votes having been polled and which were liable to be excluded from counting. The petitioner has given the details of those persons including the vote number in their para. The allegation on the face of it is bereft of material facts. The plea of the defeated candidate is: "It is submitted that for six persons named herein below, double postal ballot papers have been sent. The petitioner has given the details of those persons including the vote number in their para. The allegation on the face of it is bereft of material facts. The plea of the defeated candidate is: "It is submitted that for six persons named herein below, double postal ballot papers have been sent. Therefore, instead of six votes, twelve votes have been cast by six persons which has resulted in all the twelve votes as void and ought not to have been accounted for in the declaration of result being void votes." 47. The allegation indeed is presumptuous. The petitioner does not say that those six persons not only were issued double postal ballot papers but also cast double votes. The allegation merely is that six persons were sent double postal ballot papers but also cast double votes. The allegation merely is that six persons were sent double postal ballot papers. Merely because double ballot papers were sent to these six persons would not lead to the conclusion that in fact they cast their vote twice. The allegation is bereft of material fact that these persons sent back two ballot papers each, which were counted and therefore, it materially affected the result of the returned candidate. This apart, the fact that how and when the defeated candidate came to know about these six persons having been issued double postal ballot papers is not stated in the petition. This fact was material to enable the returned candidate to meet the allegation of the defeated candidate. The petitioner does not disclose if all those twelve ballot papers were counted in favour of the returned candidate, if not, how many of such ballot papers were counted in favour of the returned candidate which materially affected the result of the election so far returned candidate is concerned. In view of lack of material facts on this ground too, the cause of action is not complete. The defeated candidate, it is interesting to note, in para 8(iii) pleads : “It may not be out of place to mention here that most of the double voting in the same Constituency as well as in the different constituencies by families and these families are supporters of respondent No. 1, the returned candidate. It is therefore, clear that the returned candidate has been beneficiary of these void votes.......". 48. It is therefore, clear that the returned candidate has been beneficiary of these void votes.......". 48. Even though the defeated candidate has taken a plea that most of the persons who cast their votes twice in the same constituency or different constituency or in other words belongs to the families which are the supporters of the returned candidate but he does not give the details or names of those families or the supporters though, apparent as it is, he knows the details of those families who, according to him, cast their void votes. This was the material fact absence of which result in incomplete cause of action. 49. In Hari Ram v. Hira Singh and others, AIR 1984 Supreme Court 396 the Apex Court ruled that in the garb of seeking inspection, the defeated candidate should not be allowed to make a roving inquiry in order to fish out materials to set aside the election. In Bhabhi v. Dheo Govind, AIR 1975 SC 2117 the Court observed : "Thus, on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection of the ballot papers. (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of materials facts......." 50. The allegations made by the defeated candidate are vague, indefinite, bereft of material facts. It is not precisely stated as to how many void votes were cast in favour of the returned candidate and if such void votes were not counted in his favour, the defeated candidate would have been elected. 51. For the reasons recorded above, the election petition cannot be said to be in accordance with Section 83(1)(a) of the Act being bereft of primary facts to complete the cause of action. The defect cannot be cured even by amendment of the petition. 52. To conclude, the petitioner has not disclosed all material facts and has withheld the same. In the absence of such facts, a roving inquiry cannot be permitted. The defect cannot be cured even by amendment of the petition. 52. To conclude, the petitioner has not disclosed all material facts and has withheld the same. In the absence of such facts, a roving inquiry cannot be permitted. There is no dispute that if para 8 sub-paras (i) to (iv) are deleted, nothing survives in the election petition for putting the petition for trial. 53. For the aforesaid reasons, para 8, sub-paras (i), (ii), (iii) and (iv) are struck down being vague, indefinite and lacking in material particulars. After striking down of the said paras, nothing survives in the election petition. The petition is rejected with costs quantified at rupees 5000/-. 54. The Registry shall immediately communicate the decision in the present petition to the Election Commissioner of India and the Speaker of the Himachal Pradesh Legislative Assembly alongwith authentic copy of the judgment in accordance with the provisions of Section 103 of the Act -