JUDGMENT 1. - The instant writ petition has been filed by returned candidate-petitioner Smt. Sushila of the office of Sarpanch of village Panchayat Sorkha Kalan, Tehsil Mundawar, District Alwar against the rejection of her application filed under Order-7 Rule-11 of Civil Procedure Code by the Election Tribunal vide its order dated 13.9.2005. 2. Briefly stated the relevant facts of the case are that the petitioner-returned candidate and the respondent No.4 both were the candidates in the election of Sarpanch pf Panchayat Samiti Sorkha Kalan, Tehsil Mundawar, District, Alwar, held on .31.1.2005 and after fourth recounting the petitioner was declared elected on 31.1.2005. Against the said election, respondent No.4 who lost the election, filed the Election Petition in the Court of Additional District Judge No.2, Alwar (herein after referred to as 'the Election Tribunal'), which was registered as Election Petition No. 22/2005. The respondent No.4 has prayed in the said Election Petition that the election of the respondent No.4 of the Election petition, Smt. Sushila Chaudhary of Sarpanch of Panchayat Samiti Sorkha Kalan, Tehsil Mundawar, District Alwar be declared null and void and further the election petitioner be declared elected to the said office and it has been further prayed that after calling the necessary record, recounting be ordered. 3. In the said election petition, the petitioner has mainly raised the ground that there was no need of third recounting whereby four valid votes have been declared invalid, which has resulted in equal number of votes i.e., 742-742. Although in earlier two counting and recounting, she got more votes than the returned candidate-petitioner. Even after third recounting, the S.D.M., was called, who was nothing to do with the election process but still Rule 51 of Lottery Draw was not followed and again recounting was held and she was declared defeated by rejecting four valid votes. The election-petitioner-respondent No.4 has further alleged caste bias against the S.D.M. 4. The petitioner-returned candidate filed reply to the election petition and has taken the ground that the averments of the election petition lack material facts /particulars with regard to counting/recounting. The election-petitioner-respondent No.4 has further alleged caste bias against the S.D.M. 4. The petitioner-returned candidate filed reply to the election petition and has taken the ground that the averments of the election petition lack material facts /particulars with regard to counting/recounting. One more objection was taken that no written application was filed before the Returning Officer and simultaneously filed on application under Order-7 Rule-11 of Civil Procedure Code on the ground that neither the cause of action nor the reasons for recounting have been disclosed nor objected the recounting, therefore, the election petition is liable to be dismissed. 5. The Election Tribunal after hearing both the parties, came to the conclusion that the election petition relating to the election result dated 31.1.2005 and on this date the cause of action is said to have arisen to the election petitioner who is a defeated candidate. The Tribunal has further given the finding that grounds to the challenge have been enumerated in the election petition and not giving any separate para for mentioning the cause of action will not make any difference. As regards not filing written objection before the Returning Officer, the Tribunal was of the view that the last recounting was not on the application of the election petitioner, therefore, there was no need for filing any written objection before the Returning Officer. The relevant portion of the said order is reproduced hereunder for ready reference : HINDI MATTER 358367 6. The submission of the counsel for petitioner-returned candidate is that the Tribunal has committed serious error of law in rejecting the application under Order-7 Rule-11 of the Civil Procedure Code. The counsel for the petitioner-returned candidate further submits that the material facts/particulars for recounting are lacking and further no objection was submitted before the Returning Officer by the petitioner-respondent No.4. As regards application under Order-7 Rule-11 Civil Procedure Code, the submission of the counsel for the petitioner is that no cause of action has been disclosed in the election petition, therefore, the Election Tribunal committed an error in rejecting the said application and not dismissing the election petition. As regards application under Order-7 Rule-11 Civil Procedure Code, the submission of the counsel for the petitioner is that no cause of action has been disclosed in the election petition, therefore, the Election Tribunal committed an error in rejecting the said application and not dismissing the election petition. In support of the aforesaid submissions, the counsel for the petitioner placed reliance on : (1) Charan lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500 , (2) Bhagwati Prasad Dixit "Ghorewala" v. Rajeev Gandhi, (1986) 4 SCC 78 , (3) Satyanarain Dudhani v. Uday Kumar Singh & others, 1993 Supp (2) SCC 82 , (4) Quamarul Islam v. S. K. Kanta & others, 1994 Supp (3) SCC 5 , (5) Smt. Manju Sharma v. Suji Sharma & another, 1996 (3) WLC 161 , (6) Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294 , (7) Vadivelu v. Sundaram & others, (2000) 8 SCC 355 , (8) V. S. Achuthanandan v. P. J. Francis and another, (2001) 3 SCC 81 , (9) Shree Narain Dhanuka v. Jaidev Prasad Indoria & Ors., RLW 2001 (2) (Raj.) 1075 , (10) Jaipal Singh v. Sumitra Mahajan (Smt.) and another, (2004) 4 SCC 522 , (11) Chandrika Prasad Yadav v. State of Bihar and others, (2004) 6 SCC 331 . 7. The counsel for the respondents submits that the cause of action is to be determined by reading the averments made in the plaint in their entirety and has further submitted that as regards recounting, material facts are there which are subject matter of the trial and no decision can be taken at this stage. He also submits that in the election petition grounds of election given under Rule 80(iii)(iv) exists which is supported by the material facts. Therefore, the Election Tribunal has rightly dismissed the application under Order-7 Rule-11 of the Civil Procedure Code. He also submits that in the election petition grounds of election given under Rule 80(iii)(iv) exists which is supported by the material facts. Therefore, the Election Tribunal has rightly dismissed the application under Order-7 Rule-11 of the Civil Procedure Code. In support of his contention, the counsel for the respondents relied on (12) Ashwani Kumar Sharma v. Yaduvansh Singh and others, (1998) 1 SCC 416 , (13) Sri H. D. Revanna v. Sri G. Puttaswamuy Gowds & Ors., JT 1999 (1) SC 126 , (14) Bidesh Singh v. Madhu Singh and others, (2003) 11 SCC 448 , (15) Liverpool & London S. P. & I Association Ltd. v. M. V. Sea Success I and another, (2004) 9 SCC 512 , (16) Kailash v. Nanhku and others, (2005) 4 SCC 480 and (17) Mangal Chand v. The District Judge, Sikar and others,, 2005 (4) WLC (Raj.) 711 . 8. I have gone through the record of the writ petition and further considered the rival submissions of the parties. 9. The relevant provisions of the law of Raj. Panchayati Raj (Election) Rules, 1994 (herein after referred to as 'the Rules of 1994) and the Civil Procedure Code which is involved in the present petition are as follows :Rule 80 of the Rules of 1994-Manner of challenging an election under the Act: (iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void, or (iv) by any non-compliance with the provisions of the Act of or these rules, or Rule 82 of the Rules of 1994--Contents and verification of election petition: (1) The petition shall contain a concise statement of the material facts on which the petitioner relies and ....." Rule 85 of the Rules of 1994-Hearing of petition : The procedure provided in the Code of Civil Procedure, 1908 (Central Act V of 1908) in regard to suits, shall, in so far as it can be made applicable, be followed in the hearing of the petition." The relevant rule of Order-7 Rule-11 of the Code of Civil Procedure is reproduced hereunder for ready reference :Order-7 Rule-11. Refection of plaint:-The plaint shall be rejected in the following cases :(a) where it does not disclose a cause of action; 10. The analysis of the judgments cited by the counsel for the petitioner and conclusion of the same are as under : 11. Refection of plaint:-The plaint shall be rejected in the following cases :(a) where it does not disclose a cause of action; 10. The analysis of the judgments cited by the counsel for the petitioner and conclusion of the same are as under : 11. Seven Judges constitution Bench of Hon'ble the Supreme Court in Charan Lal Sahu v. Neelam Sanjeeva Reddy (supra) in para No.3 and 12, in election petition challenging the election of the President considered Rule 6 of the Rules made by the Supreme Court has observed that "where a plaint does not disclose a cause of action", or where "the suit appears from the statement in the plaint to be barred by any law", it is obligatory upon the Court to reject it outright and not to waste any more time upon a plaint or petition and dismissed the election petition filed by Charan Lal Sahu on the ground that he has no locus standi to challenge the election of the President Shri Neelam Sanjeeva Reddy as he neither was nor can claim to be a candidate. The relevant para No.3 of the aforesaid judgment is as follows : "3..... Among these rules is Rule 6 which provides that this Court, after the plaint has been presented to the Registrar and numbered, shall reject the plaint "where it does not disclose a cause of action", or where "the suit appears from the statement in the plaint to be barred by any law". It is obligatory upon the court to reject it outright and not to waste any more time upon a plaint or petition if the provisions of law bar are shown to bar proceeding. Indeed, it is not even necessary to issue a notice to any opposite party or parties in such a case. But, where the petition or plaint of the petitioner is rejected, Order 23, Rule 7 requires that "the Court shall record an order to that effect with the reasons for the order." 12. Indeed, it is not even necessary to issue a notice to any opposite party or parties in such a case. But, where the petition or plaint of the petitioner is rejected, Order 23, Rule 7 requires that "the Court shall record an order to that effect with the reasons for the order." 12. In Bhagwati Prasad Dixit "Ghorewala" v. Rajeev Gandhi (supra), Hon'ble the Supreme Court has held that if the election petition does not disclose a cause of action, it is liable to be rejected in limine and further affirmed the test of (18) Charan Lal Sahu v. Giani Zail Singh ( AIR 1984 SC 309 ) that the averments of the election petition is to be taken at their face value to decide whether a cause of action is disclosed or not for setting aside the election petition. The relevant para No.4 of the aforesaid judgment of Bhagwati Prasad Dixit " Ghorewala" v. Rajeev Gandi (supra) is reproduced hereunder for ready reference : "4. It is now well settled that in election petitions pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it is liable to be rejected in limine. It is now well settled that in election petitions pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it is liable to be rejected in limine. In Charan Lal Sahu V. Giani Zail Singh ( AIR 1984 SC 309 ) which was a petition under Section 14 of the Presidential and Vice Presidential Elections Act, 1952 challenging the election of Shri Zail Singh as the President of India, the petitioner had alleged among other grounds (1) that Shri Zail Singh was not a suitable candidate for the post of the President; (2) that Shri M. H. Beg former Chief Justice of the Supreme Court of India and then Chairman of the Minorities Commission had been engaged by Shri Zail Singh and by the then Prime Minister for influencing the votes of the minority communities; (3) that a Cabinet Minister of the Union Government who was a supporter and a close associate of Shri Zail Singh exercised undue influence over the voters by misusing the Government machinery and that a statement issued by him asking the voters to vote for Shri Zail Singh was published by he Press Information Bureau, Government of India; (4) that the then Prime Minister participated in the election campaign of Shri Zail Singh and misused the Government machinery for the purpose; (5) that the then Prime Minister made a communal appeal to the Akali Dal that its members should vote for Shri Zail Singh; and (6) that Government helicopters and cars were misused for the purpose of the election of Shri Zail Singh. It was contended on behalf of Shri Zail Singh that even assuming that those allegations were true they did not disclose any cause of action for setting aside the election. This Court came to the conclusion that the allegations made as regard the participation of Shri Beg in canvassing votes for Shri Zail Singh did not make out the offence of undue influence as defined in Section 171-C of the Indian Penal Code and that the election petition did not disclose any cause of action for setting aside the election petition of Shri Zail Singh on the ground of undue influence as specified in Section 18(1)(a) of the Presidential and Vice Presidential Elections Act, 1952. The court also came to the conclusion that the remaining ground alleged by the election petitioner for invalidating the election of Shri Zail Singh were misconceived. It held that the use of Government machinery, abuse of official position and appeal to communal sentiments so long as such appeal did not amount to undue influence were not considered by the legislature to be circumstances which would invalidate a Presidential or a Vice Presidential election. The court ultimately held that the averments in the election petition taken at their face value, did not disclose any cause of action for setting aside the election of the returned candidate on the grounds stated in Section 18(1)(a) of the Presidential and Vice Presidential Elections Act, 1952. It accordingly dismissed the petition at a preliminary stage. The principle followed by this Court in the above decision is applicable to the present case also." 13. Three Judges Bench of the Supreme Court in Quamarul Islam v. S.K. Kanta & others (supra) has held that petition must disclose full cause of action by furnishing all material facts and particulars of corrupt practice so that the averments of the election petition be not so vague that it left a wide scope to the election petitioner to adduce evidence in support of the material particulars. The relevant paras No. 38 and 60 of the aforesaid judgment are reproduced hereunder for ready reference: "38. In our opinion the approach of the trial Judge was not correct and it seems that he was treating the trial of the election petition in a rather casual manner, unmindful of the provisions of the Act and the Rules framed thereunder as also the law laid down by this Court from time to time on the relevant aspect. 60. According to the election petitioner, the returned candidate also delivered an offensive speech at Jalanabad, the substratum whereof has already been extracted by us from the petition. In the election petition, apart from specifically mentioning that a speech was made by the appellant at Roza Market, there is no specific mention of any speech having been delivered by the appellant at Jalanabad. The use of the expression at "several places" besides Roza Market in the petition where the meetings were allegedly held appears to have been designedly made by the election petitioner to lead evidence in respect of such other places for which evidence-could be subsequently procured. The use of the expression at "several places" besides Roza Market in the petition where the meetings were allegedly held appears to have been designedly made by the election petitioner to lead evidence in respect of such other places for which evidence-could be subsequently procured. In the pleadings specific reference to the speech by the appellant was made only of Roza Market and not either of Jalanabad or Muslim Chowk. The learned trial Judge should not have permitted any evidence to be led in respect of the meetings allegedly held at Jalanabad or Muslim Chowk. A novel procedure appears to have been adopted by the learned trial Judge in overruling the objection raised on behalf of the returned candidate during the cross examination in this respect by holding that "since the evidence was in accordance with the issues", the objections had no merit. In the face of vague pleadings and the absence of specific mention of Jalanabad as a place where the appellant spoke at a meeting, the doubtful nature of cassette, Exbt. P-7, containing the tape-recorded speech allegedly delivered at Jalanabad and the absence of any other evidence to support the plea, we hold that the election petitioner has miserably failed to discharge the burden which lay on him to prove that the returned candidate had committed the corrupt practice as alleged in the petition of delivering the offending speech at Jalanabad or at Roza Market. The averments of the election petitioner were so vague that it left a wide scope to the election petitioner to adduce evidence in respect of a meeting at any place, on any date, that he found convenient or for which he could procure evidence later on. In view of the vague pleadings and defective affidavits, the Court would require much better type of evidence, absolutely reliable in character, in proof of the alleged meeting where offending speeches were delivered by the appellant, than the evidence as has been produced by the election petitioner in this case. There is, no reliable, trustworthy or satisfactory evidence on the record to hold that the appellant delivered the speeches as alleged by the election petitioner at Roza Market or at Jalanabad". 14. There is, no reliable, trustworthy or satisfactory evidence on the record to hold that the appellant delivered the speeches as alleged by the election petitioner at Roza Market or at Jalanabad". 14. Three Judges Bench of the Supreme Court in para No. 23 of Narayanaswamy v. C. P. Thirunavukkarasu (supra), has held to find out the disclosure of cause of action averment in election petition should be assumed to be true and made distinction between the "material facts" and "material particulars" and held that the failure to plead material facts is fatal to the election petitioner and absence of material particulars can be cured at a later stage by an appropriate amendment. Para No. 23 of the aforesaid judgment is reproduced hereunder for ready reference : "23. It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and From 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition i.e. clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 of the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. Then under clause (b) of sub-section (1) of Section 83 of the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature that court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 91 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the petition." 15. In Jaipal Singh v. Sumita Mahajan (Smt.) and another (supra), Hon'ble the Supreme Court has again affirmed that basic facts disclosing the cause of action are material facts and failure to plead the same results in dismissal of the election petition and has again affirmed the difference between material facts and material particulars. The relevant paras No. 7, 8 and 9 are as follows:- "7. Section 83 deals with contents of petition. It states that an election petition shall contain a concise statement of material facts, on which the petitioner relies and shall state full particulars of any corrupt practices which the petitioner alleges and which shall be signed by him and verified in the manner laid down in the Code of Civil Procedure. In the case of Sopan Sukhdeo Sable v. Asstt. Charity Commr. In the case of Sopan Sukhdeo Sable v. Asstt. Charity Commr. ( (2004)3 SCC 137 ) , it has been held that Order 6 Rule 2(1) Civil Procedure Code deals with basic rule of pleadings and declares that the pleading has to state material facts and not the evidence; that there is a distinction between "material facts" and "particulars" and the words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of single material fact leads to an incomplete cause of action and consequently, the plaint becomes bad. The distinction between "material facts" and "particulars" was brought by Scott, L. J. In Bruce v. Odhama Press Ltd. ((1936) 1 KB 697: (1936} 1 ALL ER 287(CA)) in the following passage : (All ER p. 294). "The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The words 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted the statement of claim is bad; it is 'demurrable' in the old phraseology and in the new is liable to be 'struck out' under RSC Order 25 Rule 4 (see Philipps v. Philipps ({1878} 4 QBD 127) ; or 'a further and better statement of claim' may be ordered under Rule 7. The function of 'particulars' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim-gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial." 8. The above dictum of Scott, L. J. In Bruce case has been quoted with approval by this Court in the case of Samant N. Balkrishna v. George Fernandez ( (1969) 3 SCC 238 ) . 9. The above dictum of Scott, L. J. In Bruce case has been quoted with approval by this Court in the case of Samant N. Balkrishna v. George Fernandez ( (1969) 3 SCC 238 ) . 9. As to what is the material fact has to be decided in the present case, in the context of the election petition under the said Act. An election petition is a matter of statutory right. In the petition, the key issue was whether the appellant held an office of profit on the date of scrutiny. For that purpose, the appellant ought to have stated that on 13.3.2002 he had requested for waiver of the notice period; that a appointing authority had received the notice on the specified date and that his request for waiver stood granted on the date of scrutiny and he ceased to be a Government servant. These were the material facts which the appellant should have pleaded so that the returned candidates would not be taken by surprise. They were material facts within his knowledge and ought to have been pleaded in the election petition. Lastly, even the letter of the appellant seeking the waiver of the notice period did not form part of the election petition. Hence, the High Court was right in dismissing the election petition for want of material facts." 16. In Chandrika Prasad Yadav v. State of Bihar and others (supra), Hon'ble the Supreme Court has again made emphasis on the concise statement of material facts in the election petition as per the requirement of the Order 6 Rule 2 and 4 and what would constitute material facts would depend upon the facts and circumstances of each case. The relevant paras No. 11 and 15 are as follows : "11. The law relating to re-counting of votes is now well settled. The provisions of the Act and the Rules framed thereunder provide that in relation to an election petition the provisions of the Code of Civil Procedure would apply. An election petition, therefore, contain concise statement of material facts. It is well settled that the question as to what would constitute material facts would depend upon the facts and circumstances of each case. 15. An election petition, therefore, contain concise statement of material facts. It is well settled that the question as to what would constitute material facts would depend upon the facts and circumstances of each case. 15. The averment made in the said paragraphs do not improve the appellants' case inasmuch as therein also no material fact has been averred as to how and in what manner the so-called valid votes were kept out of consideration or invalid votes had been taken into consideration. The appellant in para 11 of the election petition categorically stated that a request was made to the Returning Officer for re-counting of the votes but he did not pay any heed thereto. In the aforementioned situation; it was obligatory on the part of the appellant to prove the said fact. The averments made in the election petition clearly go to show that the appellant was aware of his right to file an appropriate application before the Returning Officer praying for a re-counting. If the said application was not entertained, he should have proved the said fact by bringing on record the original application which was refused to be accepted or a copy thereof. He should have also adduced evidence in that behalf before the learned Munsif." 17. This Court in Smt. Manju Sharma v. Suji Sharma & another (supra), has held that the petition must disclose the cause of action by pleading all material facts and the petition not disclosing the cause of action is liable to be rejected under Order 7 Rule 11 of the Civil Procedure Code. The relevant Para No. 9 of the aforesaid judgment is reproduced hereunder for ready reference : "9. Mr. Alankar Khanna, the learned counsel for the petitioner has vehemently argued that the primary objections raised by the petitioner deserved to be sustained in view of the provisions of Rule 82 of the election Rules. The provisions of the Representation of People Act, 1951 and the principles embodied therein shall apply even to the petitions under the Rajasthan Panchayati Act on the basis of equity, justice and good conscience. The provisions of the Representation of People Act, 1951 and the principles embodied therein shall apply even to the petitions under the Rajasthan Panchayati Act on the basis of equity, justice and good conscience. The application preferred by the petitioner under Order 7 Rule 11 of the Code has been dismissed in a perfunctory manner without properly appreciating the judgments of this Court and the Apex Court in which it has been held that in the absence of material particulars and material facts the election petition is liable to be dismissed." 18. This Court in Shree Narain Dhanuka v. jaidev Prasad Indoria & Ors. (supra) decided on 25.10.2000 has followed the aforesaid judgments of the Supreme Court up to the date judgment and held that the election petition must contain concise statement of material facts and if the same are taken as true, then a case for trial is to be made out. The relevant Paras No. 33 and 34 of the aforesaid judgment are as follows : "33. In view of the above, it can be summarised that right to challenge the election of the Parliament/State Legislative Assembly is neither a civil right nor a right in equity but merely a statutory right and thus very strick adherence to the statutory provision is required. Election petitioner, by incorporating adequate material facts has to discharge the burden by satisfying the Court that there was a prima facie case for recounting. Allegations made in the petition must be clear and specific and must be supported by adequate statements of material facts. The court has to reach the conclusion that by passing an order of recounting, it was imperative to do full justice between the parties for the reason that it is also very important to maintain the secrecy of the ballot which is, in fact, sacrosanct and cannot be violated on frivolous, vague and indefinite allegations. Secrecy of ballot is "an adjunct of free and fair elections" but the same cannot be invoked to suppress a wrong coming to the light or to protect a fraud on the election process. Secrecy of ballot is "an adjunct of free and fair elections" but the same cannot be invoked to suppress a wrong coming to the light or to protect a fraud on the election process. Section 83(1) of the Act which provides that petition must contain a concise statement of the material facts, on which the petitioner relied, is akin to the provision contained in O.VI R.2 of the Code which requires that every pleading shall contain a concise statement of the material facts on which the party relies for his claim or defence. Election petition must contain the material facts and where the petition is based on the allegations of corrupt practices, the material particulars have also to be furnished mandatorily as required under Section 83(1)(b). In case the petition is based on the grounds other than the corrupt practices, the particulars can be furnished at a later stage as the election petition cannot be dismissed at the threshold under Section 86 for the reason that Section 83 has not been referred to therein along with the provisions of Section 81, 82 and 117 of the Act. 34. Application under the provisions of Order 7 Rule 11 of the Code has to be considered only in respect of the material facts in the case like the instant, taking the averments made in the election petition to be true as the truthfulness or falsehood of the said averments is a matter for trial and if material facts have been incorporated in the election petition, the same cannot be dismissed by entertaining such an application. The trial Court may also take into consideration that the candidate/his election agents and counting agents had sufficient opportunity to see the ballot papers at the time of counting and raise objection for acceptance or rejection of a ballot paper improperly or illegally and if they had not raised any objection at the time of counting or had raised the objection but the same had been found vague or rejected after being considered by the Returning Officer, the court may not permit to raise the issue unless there are compelling circumstances to show that the order passed by the Returning Officer on such ballot papers was perverse or illegal. If the election petitioner, his agent or counting agent has not made any complaint to the Returning Officer at the time of counting regarding any illegality or irregularity of accepting or rejecting the votes, he should furnish an explanation why he could not make such an objection, and if made, what was the result of their objection. If the same had not been raised there and agitated first time in the election petition, it may be deemed to be after-thought. If the election petitioner cannot furnish the serial number of the ballot etc. he should furnish explanation for the same. Vague pleas taken in the petition, not supported by the material facts, do not warrant the order of inspection and recounting. More so, on every plea it has to be urged that for want of proper action, result of the election stood materially affected for the reason that Court cannot avoid the election on "speculation and conjectures". In order to bring the case within the ambit of Section 100(1)(d)(iv) of the Act, material facts have to be incorporated not only with regard to the breach of the Rules, but also with regard to the fact of materially affecting the result of the election." 19. On the strength of the aforementioned judgments, the counsel for the petitioner has also argued that the relief of recounting cannot be granted to the respondent No.4 - election petitioner as the election petition is lacking material particulars for recounting and further no application for recounting was filed before the Returning Officer. Therefore, the election petitioner is also estopped from raising the ground. In support of the aforesaid submissions, the counsel for the petitioner has cited Satyanarain Dudhani v. Uday Kumar Singh & others (supra), Vadivelu v. Sundaram & others (supra) and V. S. Achuthandan v. P. J. Francis and another (supra). All these three judgments have been passed in the proceeding against the order of recounting by the Election Tribunal/Returning Officer, but here in the instant case, the trial is going on and no such order has been passed and, therefore, the said judgments are not applicable to the facts and circumstances of the present case. 20. The judgments cited by Mr. Maloo, the counsel for the election-petitioner are on the issue that the cause of action is to be determined by reading averments made in the plaint in their entirety. 20. The judgments cited by Mr. Maloo, the counsel for the election-petitioner are on the issue that the cause of action is to be determined by reading averments made in the plaint in their entirety. The part of the plaint cannot be rejected under Order 7 Rule 11 and material facts are available on record of the election petition which clearly disclose the cause of action. In case the same are taken to be true, then the order of recounting is to be passed and further the number of ballot is not required to be specified. 21. In Liverpool & London S.P. & I Association Ltd. v. M. V. Sea Success I and Another (supra), it has been held that the cause of action is the question of fact to be determined by reading the averments made in the plaint in their entirety and if taken to be correct decree would be passed. The relevant paras No. 139 and 140 of the aforesaid judgment are as follows : "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. 140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influences." 22. The concise statement of material facts is mandatory requirement of the election petition. Material facts and material particulars are different; failure to plead material fact may lead to a incomplete cause of action and is fatal whereas if material particulars are lacking, they may be supplied at the later stage. The evidence in support of the material facts not essential as held by the Supreme Court in Ashwani Kumar Sharma v. Yaduvansh Singh and others (supra), the relevant para No. 7 of the said judgment is as follows "7. The evidence in support of the material facts not essential as held by the Supreme Court in Ashwani Kumar Sharma v. Yaduvansh Singh and others (supra), the relevant para No. 7 of the said judgment is as follows "7. The High Court has held that the allegations regarding irregularities in the counting of ballot papers are not supported by adequate material or by material particulars. The High Court has further held that some imaginary figures are given in respect of alleged irregularities. The appellant has, in his verification affidavit, stated that statements are based on information derived from his counting agents and election agents. The High Court holds that because the names of these persons are not disclosed, the allegations must be considered as vague. The High Court has further said that the basis on which the counting agents or election agents of the appellant had furnished information regarding rejection of 2500 ballot papers on the ground that the same did not bear the distinguishing mark of the signature of the Presiding Officer, has also not been furnished. However, 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 petition is required to set out under Section 83(1)(a). In the case of Udhav Singh v. Madav Rao Scindia ( (1977) 1 SCC 511 ) this Court made a distinction between material facts and material particulars. The Court said that this distinction was important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact would lead to an incomplete casue 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. Respondent 1 relies upon this distinction in support of his plea that the election petition is liable to be dismissed for non-disclosure of material facts. The election petition, however, is required to contain a concise statement of material facts, this being equivalent to a cause of action. The entire evidence in support of such material facts is not required to be set out. The election petition, however, is required to contain a concise statement of material facts, this being equivalent to a cause of action. The entire evidence in support of such material facts is not required to be set out. From the contents of the election petition, it is not possible to hold that a concise statement of material facts is not to be found in the petition. In the case of Arun Kumar Bose v. Mohd. Furkan Ansari ( AIR 1983 SC 1311 at p. 1314) this Court distinguished the provision of Section 83(1)(a) from Section 83(1)(b) : (SCC pp. 96-96, para 8)." 23. In Bidesh Singh v. Madhu Singh and Others , (supra) the Supreme Court has considered this aspect of the matter that even if material particulars are lacking in petition, the petitioner is entitled to furnish the same under the Code of Civil Procedure. Paras No. 6 and 8 of the said judgment are as follows : "6. Section 86 of the Act provides 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. It is not disputed that the petition did not suffer on account of a defect in the requirements of Section 81 or Section 82 or Section 117 and, thus, the election petition could not have been dismissed for non-compliance with the aforesaid provisions. What is sought to be stated by the Tribunal is that the election petition lacks material facts and that the election petitioner himself has given a certificate to the Returning Officer that the third round of counting of Booth No. 35 was correct and, therefore, has disentitled himself from raising any such objection. 8. It is not a case where respondent 1 contended that the allegations made in the election petition were vague which could cause prejudice to him in the matter of filing written statement. 8. It is not a case where respondent 1 contended that the allegations made in the election petition were vague which could cause prejudice to him in the matter of filing written statement. Even if such a case had been made out, the Tribunal must remember the difference between the requirement of pleading as regards an election petition based on/under Section 100 (1)(d)(iii) and an election petition based on Section 100(1)(b) of the Representation of the People Act, 1951 in case an election petition based on Section 100(1)(d)(iii) is concerned, the election petitioner is required to set out the material facts and particulars inasmuch as to make out a prima facie case for inspection or scrutiny of the ballot papers. Where the Tribunal finds that the material facts are lacking, the election petitioner is entitled to supply necessary material facts and particulars under Order 17 of the Code of Civil Procedure. The question as to whether the election petitioner was estopped and precluded from raising the contentions in his election petition as regards the validity or otherwise of the 258 ballot papers in our considered opinion was a matter which could have been gone into only at the trial. The election petition could have been allowed or dismissed by the Tribunal having regard to the provisions contained in Section 100(1)(e) of the Act only after a full-dress trial and upon giving an opportunity to the parties to examine themselves and/or their witness in support of their respective cases. In such a proceeding, the parties could even examine the Presiding Officer or other official witnesses as regards the contention as to whether the said 258 ballot papers were valid or invalid." 24. As regards procedure, Hon'ble the Supreme Court has recently in Kailash v. Nanhku and others (supra), held that the trial of the civil suit under the Civil Procedure Code is not applicable in its entirety to the trial of election petition. The Civil Procedure Code is applicable only 'AS NEARLY AS MAY BE. The relevant para No. 9 of the aforesaid judgment is as follows:- "9. The Civil Procedure Code is applicable only 'AS NEARLY AS MAY BE. The relevant para No. 9 of the aforesaid judgment is as follows:- "9. Sub-section (6) of Section 86 of the Act requires trial on an election petition to be continued from day to day until its conclusion, so far as is practicable consistently with the interests of justice in respect of the trial, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. Sub-section (7) requires every election petition to be tried as expeditiously as possible with an endeavour to conclude the trial within six months from the date of presentation of the election petition. Thus, the procedure provided for the trial of civil suit by Civil Procedure Code is not applicable in its entirety to the trial of election petitions. The applicability of the procedure is circumscribed by two riders; firstly, Civil Procedure Code procedure is applicable "as nearly as may be"; and secondly, Civil Procedure Code procedure would give way to any provisions of the Act and of any rules made thereunder. 25. Same is the language of Rule 85 of the Rules of 1994 whereby the procedure provided under the Code of Civil Procedure, 1908 in regard to suits, shall, in so far as it can be made applicable be followed in the hearing of the petition. 26. As regards recounting, the counsel for the respondents has cited two judgments. In Sri H. D. Revanna v. Sri G. Puttaswamy Gowds & Ors. (supra) wherein it has been held that no opinion can be expressed before adducing evidence and another judgment of this Court in Mangal Chand v. The District Judge, Sikar and others (supra), wherein it has been held that even if number of ballot papers not given, the application under Order 7 Rule 11 of Civil Procedure Code cannot be accepted. The relevant paras No. 19 and 20 of Sri H.D. Revanna v. Sri G. Puttaswamy Godwa & Ors. (supra) are as follows : "19. As regards the second contention of learned counsel for the appellant, the question whether the Returning Officer was justified in ordering recounting in the circumstances of the case and whether such recounting fell within the scope of Rule 63 has to be decided at the trial. (supra) are as follows : "19. As regards the second contention of learned counsel for the appellant, the question whether the Returning Officer was justified in ordering recounting in the circumstances of the case and whether such recounting fell within the scope of Rule 63 has to be decided at the trial. No opinion can be expressed at this stage on that question before the parties adduce evidence in that regard. 20. There is no merit in the contention that the Election petition does not set out any illegality committed at the time of recounting. The various averments in the petition are to the effect that the order directing recount was itself an illegality vitiating the result of the election and also that in the course of such recounting, several illegalities were committed whereby the result of the election was materially affected. It is specifically averred in the petition that a large number of ballot papers which were invalid and were liable to be rejected were counted as valid votes in favour of the appellant. The attempt of the learned counsel for the appellant is to divide the Election Petition into two separate compartments, one dealing with recounting and the other with corrupt practices. It is not possible to dissect the Election petition in that manner. The allegations regarding invalid votes no doubt find a place in paragraph 3 but they have to be read together with averments relating to recounting." 27. The relevant para No. 11 of Mangal Chand v. The District Judge, Sikar and others (supra), is as follows : "11. Even otherwise, if the objection raised by the petitioner is taken into consideration that the respondent-petitioner has failed to mention the number of ballot papers in the election petition, in view of ratio decided by Hon'ble Supreme Court that in case the election petition contain a concise statement of material facts on which the petitioner relies, in such eventuality merely on account of filing of application under Order 7 Rule 11, the election petition should not be dismissed, this objection does not sustain. The emphasis supplied in the aforesaid paragraphs is mine. 28. The emphasis supplied in the aforesaid paragraphs is mine. 28. The principles laid down by the Supreme Court and this Court to decide the preliminary objections regarding non-disclosure of cause of action and lacking material facts in the election petition can be summarised as follows : (1) The principles of Civil Procedure Code are applicable "so far as it can be made applicable" and Civil Procedure Code would give way to the provisions of Rajasthan Panchayati Raj Act and Rajasthan Panchayati Raj (Election) Rules, 1994 made thereunder. (2) The provisions of Order-7 Rule-11 of Civil Procedure Code are applicable. (3) The cause of action is to be found out by taking averments of plaint in its entirety as correct. The election petition cannot be dismissed on the ground that no cause of action is specified in a separate para. (4) Non-disclosure of cause of action would result in dismissing the election petition at the threshold. (5) The material facts as required under Rule 82 of the Rules of 1994 are required to be mentioned and test for the same is in case the said facts are assuming to be true then the petition is liable to be accepted. (6) If the material facts are lacking, then the same is fatal to the election petition. (7) There is difference between "material facts" and "material particulars". The petition cannot be dismissed on the ground that although the material facts have been mentioned but no material particulars have been mentioned. (8) Merely not filing the application for recounting before the Returning Officer is not sufficient to dismiss the election petition. (9) While seeking relief of recounting, the mention of number of ballot papers are not the essential requirement. 29. Judging the present case in view of the aforesaid principles laid down in the various Supreme Court judgments as well as of this Court, I am of the view that considering the plaint in its entirety, the cause of action is disclosed, the material facts to challenge the election on the ground of recounting and violation of rules are available in the election petition, the Election Tribunal has committed no error of law in rejecting the application of the returned-petitioner under Order 7 Rule 11 of the Code of Civil Procedure and has further acted within its parameters. Therefore, no interference is called for under Article 227 of the Constitution of India. 30. Therefore, no interference is called for under Article 227 of the Constitution of India. 30. The writ petition fails and the same is dismissed.Petition Dismissed. *******