JUDGMENT : R.N. Biswal, J. - In this writ petition, the Petitioner challenged the order dated 31.8.2009 passed by learned Civil Judge (Junior Division), S. Rampur in Election Petition No. 5 of 2007 allowing the application filed by the opposite party for recounting of votes. 2. Opposite party was the election Petitioner and Petitioner was opposite party in the aforesaid case. The Petitioner, opposite party and three others contested the election to the office of Sarpanch of Lingmarni Grama Panchayat, where opposite party was declared elected. Petitioner (present opposite party) filed the aforesaid case to declare the election of opposite party (present Petitioner) null and void and to declare that he had been elected as Sarpanch of the aforesaid G.P. 3. Opposite party filed counter therein. Evidence was adduced. The Petitioner (present opposite party) filed a petition to recount the votes polled in that election. There were altogether 11 booths. The learned Civil Judge (Junior Division), S. Rampur after hearing learned Counsel for the parties allowed recounting of votes in respect of six booths, out of 11 booths vide order dated 31.8.2009, under Annexure 3. Being aggrieved with the said order, the opposite party filed the present writ petition. 4. Learned Counsel appearing for the Petitioner submitted that there was no pleading in the election petition to recount the votes, as such, no issue was framed in respect thereof. Furthermore, no material was adduced during the evidence justifying recounting of votes. So, the learned court below ought not to have allowed the petition for recounting of votes. In support of his submission, he relied on the decision in the case of T.H. Musthaffa Vs. M.P. Varghese and Others where the Apex Court held that unless pleading contains necessary foundation for raising an appropriate issue, no amount of evidence will be sufficient for raising the issue and granting the relief sought for. 5. Learned Counsel appearing for opp. party contended that there was ample material in the election petition for recounting of the votes. It was prayed there to call for all the relevant records including the ballots utilised in the election and to verify and count the ballots in the court process. He further contended that evidence was also led in that light. It is found from the election petition that in booth No. 6 there were more than 300 voters. It was prayed there to call for all the relevant records including the ballots utilised in the election and to verify and count the ballots in the court process. He further contended that evidence was also led in that light. It is found from the election petition that in booth No. 6 there were more than 300 voters. While election was going on in that booth Petitioner along with a number of his followers prevented the voters from casting their votes, for which, more than fifty voters could not exercise their franchise and the hooligans forcibly snatched away the utilised ballots of the said booth. Even though in fact, there was no counting of votes of booth No. 6, the election officials being influenced by the Petitioner falsely declared that the Petitioner secured 206 valid votes whereas the opposite party secured only 19 valid votes. It is further found from the election petition that while counting ballots in other booth about more than 40 invalid votes were added to the credit of the opposite party (present Petitioner) and 24 valid votes of the Petitioner (present opposite party) were rejected illegally. Thus, there was improper addition and rejection of votes, for which the present Petitioner was illegally declared to have been elected as Sarpanch of Lingmarni Grama Panchayat. In the case of Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and Others the Apex Court held: In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on. hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. The Apex Court, again in the case of Bhagwati Prasad Vs. Shri Chandramaul held: The general rule no doubt is that the relief should be founded on pleadings made by the parties. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. The Apex Court, again in the case of Bhagwati Prasad Vs. Shri Chandramaul held: The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. As stated earlier, in the present case, there are sufficient materials in the pleading showing rejection of valid votes and acceptance of invalid votes. 6. Admittedly, in the case at hand, no specific issue has been framed as to whether about 40 invalid votes were added to the credit of opposite party (present Petitioner) and 24 valid votes of the Petitioner (present opposite party) were rejected illegally and that even though the opposite party (present Petitioner) did not secure any vote in booth No. 6, 206 votes were illegally counted in his favour. The learned Counsel for the opposite party submitted that the issues framed covered the said issue. The learned Counsel for the opposite party submitted that the issues framed covered the said issue. He further submitted that even if no issue was framed in that regard, when there is specific evidence that some invalid votes were counted in favour of the Petitioner and some valid votes of the opposite party were not so counted and there is evidence to that effect, non framing of issue in respect thereof cannot be a ground to reject the prayer for counting of votes. In support of his submission, he relied on the decision in the case of Appa Babaji Misal Patil and others Vs. Dagdu Chandru Misal, since deceased by his heirs Naginbai Dagadu Misal etc. etc. and others where a Division Bench of Bombay High Court held: Shri Agrawal, learned Counsel appearing on behalf of the Appellants, submitted that the lower Appellate Court was in error in ignoring the specific evidence given by the Plaintiff, asserting that the partition was effected prior to year 1914 between the branches of Balu and Sheshappa. The learned Counsel urged that the positive claim made by the Plaintiff was by passed by lower Appellate Court only on the ground that the case of partition was not specifically pleaded in the plaint and issue was not struck by the trial Court on the fact of partition. In our judgment, the complaint of Shri Agrawal on this aspect is correct because pleadings are not the evidence and a party who deposes in the witness box, cannot be permitted to turn around and claim that the fact of partition should be ignored because it was not averred in the pleadings. On perusal of the testimony of the Plaintiff, it is clear that the Plaintiff deposed that Ijappa, Sheshappa and Daji, son of Sheshappa partitioned the land between themselves. The specific statement made in the evidence is sufficient to conclude that partition was effected prior to year 1914 between the branches of Balu and Sheshappa and the suit land had fallen to the share of Daji. 7. The specific statement made in the evidence is sufficient to conclude that partition was effected prior to year 1914 between the branches of Balu and Sheshappa and the suit land had fallen to the share of Daji. 7. In the case at hand, it is found from the impugned order that while the election Petitioner (present opposite party) was being examined as P.W. 1 he deposed that he obtained 1190 votes while the opposite party obtained 1229 votes and more than 40 invalid votes were added to the opposite party (present Petitioner) and about 25 valid votes of the Petitioner (present opposite party) were rejected, which have been corroborated by P.W. Nos. 2 to 4. P.W. 1 further deposed that 206 votes were added to the opposite party (present Petitioner) in booth No. 6 though he has not secured any such vote, which has been corroborated by P.W. 5. So, there is ample evidence with regard to rejection of valid votes and addition of invalid votes and counting of votes in respect of the opposite party (present Petitioner), even though he did not poll any vote from booth No. 6. There is also pleading in that respect. So, non framing of issue in that regard is not sufficient to reject the petition for counting the votes. The trial court discussing the law and fact in detail rightly allowed the petition for recounting of votes in respect of six booths, out of eleven booths. Accordingly, the writ petition stands dismissed. No cost. Final Result : Dismissed