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Madhya Pradesh High Court · body

2013 DIGILAW 401 (MP)

Ganesh Ram Gayari v. Bagdiram

2013-03-21

J.K.MAHESHWARI, Shantanu Kemkar

body2013
ORDER Maheshwari, J. -- 1. Challenging the order dated 29.9.2011, passed by the learned Single Judge in Writ Petition No.14591/2010 upholding the order dated 21.12.2010 passed by the Sub-Divisional Officer (Election Tribunal), Sitamau, district Mandsaur declaring the election of the Sarpanch of Gram Panchayat, Sakhtali as invalid after recount, and to declare the respondent No.1, as Sarpanch this appeal has been preferred under section 2(1) of the M.P. Uchch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. 2. The facts giving rise to the filing of the present writ appeal are that appellant and respondent No.1 along with 11 other candidates have contested the election of Sarpanch, Gram Panchayat Sakhtali, Sitamau, District Mandsaur, wherein the appellant was declared elected by issuance of notification on 3.2.2010, as per rule 83 of M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as, Nirvachan Niyam). It is stated that total 1364 votes were casted, out of which set of 1241 votes were valid and 123 votes were rejected as not valid. The appellant received 244 votes and respondent No.1 received 242 votes. After becoming unsuccessful, respondent No.1 has filed an election petition under section 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Adhiniyam, 1993) which was decided on 5.4.2010 directing recount of the votes. The said order was challenged by filing a Writ Petition No.3788/2010 which was allowed on 16.4.2010 and while remitting the matter back to the Election Tribunal, it was directed that after framing of the issues and recording the evidence the election petition be decided on merit. Thereafter, the Election Tribunal vide order dated 21.12.2010 decided the same and directed for recount of votes and subsequently on 22.10.2010 recounting took place, wherein respondent no.1 has been declared elected as Sarpanch of Gram Panchyat, Sakhtali, as he has received two more votes than the appellant. The said order was challenged before the writ Court, inter alia contending that the material facts and particulars have not been pleaded before the Election Tribunal. However, the findings to direct for recount is not in conformity to the principle of law laid down by various judgments. The said order was challenged before the writ Court, inter alia contending that the material facts and particulars have not been pleaded before the Election Tribunal. However, the findings to direct for recount is not in conformity to the principle of law laid down by various judgments. Learned Single Judge while passing the order impugned, has referred the earlier order of remand passed by this Court on 16.4.2010 and thereafter quoting some paras of the order dated 21.12.2010 passed by the Election Tribunal, recorded the finding that in the facts of the case, recounting as directed by Election Tribunal, is just and proper. However, interference was declined. Being aggrieved by the said order, this appeal has been preferred. 3. Shri A.K.Sethi, learned senior counsel appearing on behalf of the appellant referring to rule 21 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter be referred as Corrupt Practices Rules) contended that the grounds to assail the election has been specified in rule 21(d) (i) to (iv). In the pleadings of the election petition, the ground of improper acceptance of nomination and corrupt practices were also pleaded, but both of the grounds were not found proved by Election Tribunal in absence of the material and cogent evidence to establish the same. In the present case, the Court has directed for recounting, to which material facts and the particulars have neither been pleaded nor produced, therefore, the direction issued for recount by the Election Tribunal, upheld by the learned Single Judge is not in conformity to law. Learned senior counsel has placed reliance on the judgments of P.K.K. Shamsudeen v. A.M. Mappillai Mohindeen [ AIR 1989 SC 640 ], Satyanarain Dudhani v. Uday Kumar Singh [ AIR 1993 SC 367 ], and the Division Bench judgments of this Court in the case of Birjha Bai v. State of M.P. [ 2008(2) MPLJ 591 ], Vidhyawati Lilhare v. SDO-cum-Prescribed Officer, Lanji Balaghat [2010(2) JLJ 29], and a Single Bench judgment in the case of Kamlesh Bai v. Upper Commissioner Bhopal and Hoshangabad Division [ 2008(2) MPHT 466 ], Neki Bai v. Mithlesh [ 2011(II) MPWN 58 = 2011(1) MPLJ 659 ]. In view of the aforesaid it is submitted that the direction issued for recount by the Election Tribunal as well as by learned Single Judge was without considering the pleadings and without having any material particulars to record prima facie satisfaction. It is further submitted that the grounds for recounting has not been pleaded and proved therefore also the order impugned passed by the learned Single Judge may be ordered to be set aside. 4. Per contra, Shri Abhishek Tugnawat, learned counsel appearing on behalf of the respondent referring the pleadings in paras 6 and 7 of the election petition has straneously argued in support of the findings recorded by the Election Tribunal as well as the learned Single Judge and contended that looking to the conduct of the election officers and their statements it reveals that they have flouted the provisions of the law, therefore, the recount has rightly been directed by the Election Tribunal and upheld by the learned Single Judge. Reliance has been placed on the judgments of the apex Court in the case of T.A. Ahammed Kabeer v. A.A. Azeez [ AIR 2003 SC 2271 ], Sadhu Singh v. Darshan Singh [(2006)6 SCC 255], and Virender Nath Gautam v. Satpal Singh [ (2007)3 SCC 617 ]. In view of the foregoing it is urged that upholding the order passed by the Election Tribunal and learned Single Judge, writ appeal filed by the appellant may be dismissed. 5. Heard learned counsel for the parties at length and also perused the record of the writ Court and the documents so filed by the parties carefully. However, looking to the facts of the present case, it is required to be seen that as per the material facts and the particulars brought before the Election Tribunal and also before learned Single Judge, whether satisfaction has rightly recorded directing for recount of votes, bringing necessary ingredients in the petition filed by him. It is to be seen that the relevant fact to prove prima facie case as required to plead supported by the documents is made out by respondent No.1. It is to be seen that the relevant fact to prove prima facie case as required to plead supported by the documents is made out by respondent No.1. But before examining the contentions of the parties first of all, the position set out to direct recount by various judgments of Hon’ble the apex Court as well as of this Court may be looked into, and on such basis, it is to be further seen that whether the order passed by the Election Tribunal and by learned Single Judge is in departure of maintaining the secrecy of the ballot papers. 6. In the said context, first of all in the judgment of Ram Sevak Yadav v. Hussain Kamil Kidwai [ AIR 1964 SC 1249 ], the Hon’ble apex Court has set out the circumstances when an order of inspection of ballot papers can be directed. Wherein it has been held that the order of inspection cannot be directed as a matter of course merely on the insistence upon by one of the party. The secrecy of the ballot papers is sacrosanct which ought to be maintained while passing the order of recount. The Court must look into and satisfy that the petition for setting aside the election contains an adequate statement of material facts on which the appellant relies in support of his case. It is to be further seen that on the basis of material so produced, the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It has been observed that on the basis of vague pleas made in the petition, not supported by material or to fish out evidence to support such pleas, the order of recount should not be passed. 7. In the case of Jitendra Bahadur Singh v. Shri Kirshna Behari [ (1969)2 SCC 433 ], it is held that challenge on the ground of irregularity in scrutinizing and counting of votes can be permitted when the petition for setting aside the election contains the adequate statement of the material facts, and the Tribunal must prima facie satisfy on it. It has further been held that when judicial order is based on reasons, those reasons must be disclosed in the order itself. It has further been held that when judicial order is based on reasons, those reasons must be disclosed in the order itself. However, the order if any passed, ignoring the secrecy of the ballot papers without having material facts is not permissible under the law. 8. Thereafter, in the case of Bhabhi v. Sheo Govind and others [ AIR 1975 SC 2117 ], the apex Court has laid down six conditions those are (i) 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 (ii) before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (iii) the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (iv) the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (v) the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (vi) on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. In the case of Beliram Bhalaik v. Jai Behari Lal Khachi [ AIR 1975 SC 283 ], it is held that mere submitting an application stating that the candidate is not satisfied with the counting without specifying any irregularity and illegality, the order of recount should not be directed. 9. In the case of the R.Narayanan v. S.Semmalai, reported in (1980)2 SCC 537 , it was held that merely on the basis of the possibility of error in counting, cannot be a ground to direct recounting. Simultaneously it has further held that small margin of victory is not a sufficient ground for Court to direct recounting. 9. In the case of the R.Narayanan v. S.Semmalai, reported in (1980)2 SCC 537 , it was held that merely on the basis of the possibility of error in counting, cannot be a ground to direct recounting. Simultaneously it has further held that small margin of victory is not a sufficient ground for Court to direct recounting. Then, in the case of S. Raghubir Singh Gill v. S. Gurucharan Singh Tohra [1980 Supp SCC 53], the Hon’ble the apex Court has held as under : “A petition for recount after inspection of some ballot papers must contain an adequate statement of material facts on which the petitioner relies in support of his case. The Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. Only on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials.” 10. In the case of P.K.K. Shamsudeen v. K.A.M.Mappillai Mohindeen [ AIR 1989 SC 640 ], it was held that justification for an order for examination of ballot papers and recounting of the votes is not to be derived from Hind-sight and by the result of recount of votes. On the contrary justification for an order to recount for votes should be passed as per the material placed by an election officer, on the threshold before an order for recount of votes is actually made. The reason of the said salutary rule is that the preservation of the secrecy of ballot papers is a sacrosanct principle which cannot be lightly or hastily broken unless there is a prima facie genuine need for it. The right of a defeated candidate to assail the validity of the election result seeking recounting of votes has to be subject to basic principles that the secrecy of the ballot is sacrosanct and mandatory. However, unless the affected party is able to allege and substantiate any acceptable measure by means of evidence that a prima facie case of a higher degree of probability existed, recount of votes may be ordered by the Election Tribunal or by the Court. 11. However, unless the affected party is able to allege and substantiate any acceptable measure by means of evidence that a prima facie case of a higher degree of probability existed, recount of votes may be ordered by the Election Tribunal or by the Court. 11. In the case of Satyanarayan (supra), it was held that on submitting a cryptic application claiming recount without specifying the details for it or showing irregularity or illegality would not be proper to direct for recount on the basis of the bare allegations in the petition. The pleadings and evidence brought before the Election Tribunal do not justify grounds for recount allowing inspection and secrecy of the ballot papers ought to be maintained and it cannot be permitted to be tinkered with lightly. 12. In the case of M.R. Gopalkrishnan v. Thachady Prabhakaran [1995 Supp.(2) SCC 101], the Hon’ble apex Court has held that if on the basis of allegations that counting has been conducted illegally and improperly not in congenial atmosphere, it is held that such allegations are vague without specifying any particular irregularity in counting. No complaint oral or in writing to the Returning Officer or any official concerned during the course of counting was substituted merely stating the fact that invalid votes in favour of the returned candidate and rejection of valid votes in favour of the election appellant has materially affected the result of election as alleged without raising any objection, merely on such vague allegations, recount cannot be directed. In paras 20 and 21 it has held as under : “20. We now come to the third ground advanced by the learned counsel for the appellant that invalid votes were counted in favour of the returned candidate respondent No.1 and that out of the total rejected votes of 1375, quite a large number of valid votes in favour of the appellant were rejected, which materially affected the result of the election. We now come to the third ground advanced by the learned counsel for the appellant that invalid votes were counted in favour of the returned candidate respondent No.1 and that out of the total rejected votes of 1375, quite a large number of valid votes in favour of the appellant were rejected, which materially affected the result of the election. Learned counsel for the respondent submitted that the appellant has not set forth the concise statement of material fact with regard to the allegation of counting invalid votes in favour of the respondent No.1 nor has given any particulars of such invalid votes which are alleged to have been counted in favour of respondent No.1 He also submitted that similarly there are no particulars with regard to the rejection of valid votes in favour of the appellant nor number of such votes in order to support the allegation that such rejection of valid votes in favour of the appellant materially affected the result of the election. In our opinion there is no substance in these submissions made by the learned counsel for the appellant. In fact the appellant has neither pleaded the details and the number of such invalid votes which were counted in favour of respondent No.1 nor has given the particulars of the number of such valid votes in favour of die, appellant which were wrongfully rejected during the course of counting. This apart, the Returning Officer, Supervisors and other officials were also present in the counting hall throughout the process of counting and the observers also visited the counting hall, but neither the appellant nor any of his counting agents pointed out or objected either orally or in writing that invalid votes were counted in favour of the respondent No.1 or valid votes in favour of the appellant were rejected. The evidence of the Returning Officer, PW16 clearly goes to show that no such complaint was made by any one during the course of counting. In these facts and circumstances it is difficult to accept the allegations made by the appellant which seem to be only an after thought and without any evidence or material to support the same.” 21. The evidence of the Returning Officer, PW16 clearly goes to show that no such complaint was made by any one during the course of counting. In these facts and circumstances it is difficult to accept the allegations made by the appellant which seem to be only an after thought and without any evidence or material to support the same.” 21. Learned counsel for the appellant, however, submitted that having regard to the size of counting hall which was packed and uncongenial atmosphere prevailing therein as stated earlier it was not possible for the petitioner/appellant or his agents to watch, over-see and check the ballot papers so that they could take note of the particulars of ballot papers which were not correctly placed in the respective bundles of the candidates in whose favour the votes were cast or the particulars of those votes which were rejected as invalid though the same were otherwise valid and, therefore, it was not possible for the, petitioner-appellant to make a mention or plead any more facts and particulars beyond those already stated in paras 4 and 7 of the petition. After giving our anxious consideration to the submissions made above, we are unable to persuade ourselves to accept the same. In the earlier part of this judgment, we have already discussed the evidence and material on record and found that there is absolutely no basis to show that there prevailed any kind of confusion or irregularity in the counting which could have disabled the appellant or his agents from watching the process of counting. As said above no such grievance was ever advanced by the appellant or his agents at the time of counting either orally or in written to the Returning Officer or to the observers or to any member of the counting staff deputed for the purpose. The applications for recount were made only after the counting was over and the result was declared and that too with vague allegations. This submission has no merit and the same is accordingly rejected.” 13. In the case of Chandrika Prasad Yadav v. State of Bihar [ AIR 2004 SC 2036 ], by three Judges Bench of Hon’ble the apex Court, it was held that if the recounting order is not supported by cogent and valid reasons, it is liable to be set aside. In the case of Chandrika Prasad Yadav v. State of Bihar [ AIR 2004 SC 2036 ], by three Judges Bench of Hon’ble the apex Court, it was held that if the recounting order is not supported by cogent and valid reasons, it is liable to be set aside. The Court in paras 25 and 26 has held as under : “25. Rule 79 as noticed hereinbefore enables a candidate to file an appropriate application for recounting of votes. Rule 79 unlike rules framed by other States does not say that such an application would not be maintainable after declarations of the votes polled by the parties or prior thereto. Such an application, therefore, can be filed at any point of time. The very fact that sub-rule (3) of rule 79 provides for amendment of the result relating to the votes polled by the respective candidates and as, such amended result is required to be announced in the prescribed form under sub-rule (2) of rule 79, the same itself is a pointer to the fact that even after announcement of result for recounting an application would be maintainable. It may be true that only because such an application had not been filed before the returning officer by itself may not preclude the Election Tribunal to go into the question of requirement of issuing a direction for recounting but there cannot be any doubt whatsoever that rule 79 serves a salutary purpose. Counting of ballot papers in terms of the rules takes place in presence of the candidate or his counting agent. When an agent or a counting agent or the candidate himself notices improper acceptance or rejection of the ballot papers, he may bring the same to the notice of the prescribed authority. As noticed hereinbefore, in a given case, an application for recounting either before announcement of the result or thereafter, would be maintainable. Once an application is filed by an agent or a counting agent or the candidate himself pointing out the irregularities committed by the officers appointed for the counting the ballot papers, immediate redressal of grievances would be possible. As indicated hereinbefore, while filing such an application the basis for making a request for recounting of votes is required to be disclosed. As indicated hereinbefore, while filing such an application the basis for making a request for recounting of votes is required to be disclosed. The returning officer is statutorily enjoined with a duty to entertain such an application, make an inquiry and pass an appropriate order in terms of sub-rule (2) of rule 79 either accepting in whole or in part such requests or rejecting the same wherefor he is required to assign sufficient or cogent reasons. In the event, such an application is allowed either in whole or in part, he is statutorily empowered to amend the results also. 26. Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is availed of by the election petitioner; he has to state the reasons therefor. If no sufficient explanation is furnished by the election petitioner as to why such statutory remedy was not availed of, the Election Tribunal my consider the same as one of the factors for accepting or rejecting the prayer for recounting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for recounting has been made out.” 14. In the case of M.Chinnasamy v. K.C.Palanisamy, reported in (2004)6 SCC 341 , the three judges Bench of the apex Court held that the material facts and material particulars must be pleaded. Evidence at variance with pleadings is neither admissible nor permissible. Prima facie case that at such magnitude as to materially affect the election, must be pleaded. Onus to prove the said allegations is on the returned candidate. Merely making such allegations because of the margin of the votes between the returned candidate and the elected candidate is narrow, recount cannot be directed. It has further been held that where irregularities in counting of votes were alleged in the election petition, but in detail the names of polling stations, counting centers, tables round of counting of votes in relation to which alleged irregularities have taken place without disclosing the material facts, the appellant has not proved prima facie case of scrutiny of ballot papers. However, rejection has rightly been directed. In the case of Vidyawati Lilhare (supra), and Birjha Bai (supra), the Court has held similar preposition of law as thus : “42. However, rejection has rightly been directed. In the case of Vidyawati Lilhare (supra), and Birjha Bai (supra), the Court has held similar preposition of law as thus : “42. With respect we are not in a position to endorse the views taken therein in its entirety. Unfortunately, the decision of a Larger Bench of this Court in Jagjit Singh (supra), had not been noticed therein. Apart from the clear legal position as laid down in several decisions, as noticed hereinbefore, there cannot be any doubt or dispute that only because a recounting has been directed, it would be held to be sacrosanct to the effect that although in a given case the Court may find such evidence to be at variance with the pleadings, the same must be taken into consideration. It is now well-settled principle of law that evidence adduced beyond the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. The Court at a later stage of the trial as also the appellate Court having regard to the rule of pleadings would be entitled to reject the evidence wherefor there does not exist any pleading. 43. Furthermore, the High Court has not arrived at a positive finding as to how a prima facie case has been made out for issuing a direction for recounting. It is well-settled that prima facie case must be made out for scrutiny and recounting of ballot papers where it is of the opinion that the errors are of such magnitude as to materially affect the election. {See M.R. Gopalakrishan v. Thachady Prabhakaran [1995 Supp.(2) SCC 101]}. 44. The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. {See Mahender Pratap v. Krishan Pal and Others [ (2003)1 SCC 390 ]}.” 15. The similar preposition of law has been laid down by this Court in the cases of Birjha Bai v. State of M.P. [ 2008(2) MPLJ 591 ], Vidhyawati Lilhare v. SDO-cum-Prescribed Officer, Lanji Balaghat [2010(2) JLJ 29], and Kamlesh Bai v. Upper Commissioner Bhopal and Hoshangabad Division [ 2008(2) MPHT 466 ]. 16. The similar preposition of law has been laid down by this Court in the cases of Birjha Bai v. State of M.P. [ 2008(2) MPLJ 591 ], Vidhyawati Lilhare v. SDO-cum-Prescribed Officer, Lanji Balaghat [2010(2) JLJ 29], and Kamlesh Bai v. Upper Commissioner Bhopal and Hoshangabad Division [ 2008(2) MPHT 466 ]. 16. Learned counsel for the respondent has placed reliance on a judgment of Sadu Singh (supra), wherein it was held that on the basis of the material facts and pleadings irregularities in counting of votes for prima facie case must be established, roving and fishing enquiry cannot be directed by an order of recount and the secrecy of the ballot papers should be maintained. Relying upon the case of Virender Nath Gautam (Supra), it is contended, that there is a distinction in the material facts as well as material particulars. However, the Court after considering the pleadings and on considering of the material particulars available on record rightly recorded a finding which do not warrant any interference. Relying upon the observations of Hon’ble the apex Court in the case of T.A.Ahammed Kabeer (Supra) in para 26 reads as under : “26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election Courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only be should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law.” 17. This is the purpose and object of the election law.” 17. In view of the aforesaid, it is submitted that on account of rigidly following the principles, the election Courts are inclined to lean in favour of the returned candidates placing the onus of proof on the person challenging the result of election, but it is the duty of the Court to see that the period of election process needs to be ascertained unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors and this is the purpose and object of the election law. It is further said that the order of recount has rightly been passed and pursuance to the said order, after recounting, appellant has been declared elected by two votes, therefore, at this stage, interference is not warranted. 18. Thus, it is to be seen that what is the meaning of material facts and how it is distinguishable from material particulars. To find out the said meaning, first of all the meaning of the word material is relevant. Thereafter the meaning of material facts and material particulars may be understand. If we see the dictionary meaning of the word “material” it means ‘fundamental’, ‘vital’, ‘basic’, ‘cardinal’, ‘central’, ‘crucial’, ‘decisive’, ‘essential’, ‘pivotal’, indispensable’, ‘elementary’ or ‘primary’. The material facts can be said to be those facts upon which a party relies and his claim rests upon. 19. In the leading case of Phillips v. Phillips, reported in (1874-80) All ER Rep Ext 1684 (CA), Cotton, L.J. Stated : “What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.” Relying upon the aforesaid judgment in the case of Bruce v. Odhams Press Ltd., reported in (1936)1 All ER 287 (CA), Scott L.J. observed as under : “The cardinal provision in rule 4 is that the statement of claim must state the material facts. The word ‘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 R.S.C. Order 25 rule 4 (see Phillips v. Phillips); or ‘a further and better statement of claim’ may be ordered under rule 7.” 20. In view of the foregoing, it is apparent that the material facts in each of the case remains different. However, those material facts must be set out in the pleadings which may be proved on the basis of the material particulars brought on record during trial. The pleadings are necessary to plead, otherwise, the defendant may be embarrassed stating that if the facts have been brought in their notice, then they may be in a position to meet those averments by filing a reply and particulars in defence. However, Scott LJ has rightly explained that the claim must be stated in the material facts indicating the complete cause of action. By omission of the statement of material facts the claim so made is bad. The aforesaid judgments have been accepted in India. In the judgment of Virender Nath Gautam (Supra), the Hon’ble apex Court in paras 34 and 35 observed as under : “34. A distinction between ‘material facts’ and ‘particulars’, however, must not be overlooked. ‘Material facts’ are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. ‘Particulars’, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. ‘Particulars’ thus ensure conduct of fair trial and would not take the opposite party by surprise. 35. All ‘material facts’ must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. 35. All ‘material facts’ must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.” 21. In view of the foregoing preposition of law, it is clear that the material facts are the contents which ought to be pleaded in the election petition, while material particulars is the material in support thereto explaining those facts in detail. Thus, it is clear that material facts ought to be pleaded in the pleadings and it may be supported by material particulars thereby the other side may have a right to put his defence rebutting those facts by pleading and by producing the particulars in support of his defence. Therefore, the material facts are known to be facta probanda and material particulars are known as facta probantia. However, to make out a case seeking direction for recount, the facts must be pleaded and it should be supported by material particulars, there upon the Court should record satisfaction for directing recount . 22. In the context of the legal position discussed above the facts of the present case is required to be examined. In this regard, if the pleadings of the election petition is seen, thereby as per para 6 of the election petition, it is pleaded that on the basis of the datas received from three polling centers, respondent no.1 was declared as elected candidate. While he was busy in preparing for rally of his victory, at that time, appellant by joining hands with the Returning Officers, polling booths No.124 and 126, got cancelled the vote received by respondent No.1, and some of the votes of the appellant which were cancelled has been counted as valid votes to him. However, by two votes, the appellant before this Court was declared elected. However, by two votes, the appellant before this Court was declared elected. In para 7 of the election petition, it is pleaded that when respondent No.1 has reached on relevant polling stations and submitted the application for recount, then it was told that he may go to Sitamau, where the recounting may be ordered, however, denied for recounting. In para 9 it is stated that on the said two polling booth, the respondent no.1 has not received the votes as indicated in Form No.17. 23. The Election Tribunal while passing the order impugned has observed that as per the statements of the Returning Officer of polling booths No.124 and 125, it was admitted that respondent No.1 Bagdiram has submitted the application for recount, where upon the recount was done. However, the denial of respondent No.1 from recount is incorrect. The Returning Officer of the polling booth No.125 has stated that the application for recounting has been taken with him to home and not specified in the diary of the Returning officer. The Returning Officer of the polling booth No.124 has stated that the application for recount may be in the envelope of ballot papers, but in their return they have stated that none of the person have submitted the application for recounting. The Returning Officer were unaware regarding the provisions of Order 6 rule 17 of CPC. It has further been observed that Tahsildar has reached to village Sakhtali, where there was a possibility of breach of peace and law and order, where it was heard that recounting is going on, but nothing is submitted on record. In view of the foregoing it appears that in the polling booths No.124 and 126 there was a mismanagement thereby Tahsildar had reached on the spot. The conduct of the Returning Officer indicates that they have not acted as per law and their statements are contradictory to their reply therefore, recount was directed. 24. In view of the findings as well as the pleadings set forth in the election petition, it is clear that the description of the irregularities in counting of the votes has not been specified. While describing the illegality and irregularity of polling booths No.124 and 126, the pleadings is only of two booth, but no irregularity of polling booth No.125 has been pleaded. While describing the illegality and irregularity of polling booths No.124 and 126, the pleadings is only of two booth, but no irregularity of polling booth No.125 has been pleaded. After recount, two votes were found in excess in polling booth No.125, thereby the respondent No.1 was declared elected. Thus, it is clear that the irregularities of polling booth No.125 has not been stated in the election petition. It has not been stated that while counting the ballot papers, what type of irregularities were seen by the election petitioner or his agent and on which polling booth. Thus description thereof is missing in pleadings, and in absence of bringing the material facts in pleadings of election petition and without explaining it by material particulars recount has been ordered. Merely making an allegation of counting of the invalid votes of the appellant and not counting the valid votes of the returned candidate and vis-a-vis allegation is not sufficient to direct the recount. Thus, findings recorded on the basis of the conduct of the Returning Officer is not sufficient to set aside the election of the appellant or to direct for recount. In this regard, the guidance can safely be taken from the judgments of M.Chinnasamy (supra), Chandrika Prasad Yadav (supra), and M.Gopalakrishnan (supra), as discussed above. Whereby it is clear that if the election petitioner has not set forth sufficient statement of material facts on record with regard to allegations of counting of invalid votes, nor has given any particulars of such invalid votes which has been alleged to be counted, recount cannot be directed. No material particulars with regard to rejection of valid votes nor the number of such votes insupport of the allegations have been brought on record. In absence thereto the Election Tribunal is having no occasion to set at knought the election of the appellant declaring it invalid, and to direct the recount of votes. 25. In the light of the judgment of the apex Court in the case of P.K. K.Shamsudeen (supra), it is clear that the result of recount would not be sufficient to justify the order. 25. In the light of the judgment of the apex Court in the case of P.K. K.Shamsudeen (supra), it is clear that the result of recount would not be sufficient to justify the order. In view of the foregoing discussion it is apparent that in absence of the pleadings of the material facts supported by material particulars, learned Election Tribunal committed error to direct the recount which is not in conformity to the law laid down by the apex Court and also by this Court. The learned Single Judge while passing the order impugned has relied upon the findings recorded by the Election Tribunal without considering the fact that the pleadings and the evidence brought on record are sufficient to prima facie satisfy the Court directing recount or not. In this regard, it can be safely observed that until and unless prima facie satisfaction of the Court is recorded, secrecy of the ballot papers are sacrosanct, and it ought to be maintained. The learned Single Judge has also not considered the aforesaid proposition of law, therefore, the order passed by the learned Single Judge affirming the order of the Election Tribunal stands set aside. In consequence thereto the election petition filed by respondent No.1 stands dismissed. 26. Accordingly, the appeal filed by the appellant stands allowed, dismissing the election petition filed by respondent No.1, by setting aside the order of the Election Tribunal as well as the learned Single Judge. In the facts and circumstances of the case, parties are directed to bear their own costs. .............