ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) We have heard counsel for the Appellant, State and for Respondent no.8. 2. The present Appeal arises from order dated 16.1.2013 dismissing CWJC No. 23350 of 2012 affirming the judgment/order dated 3. 12. 2012 of the Munsif–cum-Election Tribunal, Gopalganj in Election Petition no. 11 of 2011, filed by respondent no.8. The Learned Munsif set aside the election of the Appellant to the post of Mukhia of the Tivirwa Gram Panchayat, District Gopalganj, and ordered repoll at specified booths. 3. The Learned Single Judge held that the Appellant had been declared as the winning candidate by counting of illegal votes. The Tribunal rightly ordered for repoll on Booth Nos. 136, 140, 141, 141 “k” and 142 in view of the irregularities detected at the said booths. 4. The Tribunal held that only 436 votes were polled at booth 136 but the ballot box returned 444 votes. Likewise 306 votes were polled at booth 140 but 296 ballots were recovered. Similarly 197 votes were polled at booth 141 but 196 ballots had been found. 152 ballots were polled at Booth 141”k” but 151 ballots were recovered. 252 votes were polled at booth 142 but 262 ballots were recovered. The returning officer did not furnish any explanation with regard to the same. Relying on an order passed in CWJC 9840/08 the Learned Munsif simply for the difference in ballots held that it was prima facie evidence of tampering with ballot boxes. Directions have been given for repoll at the aforesaid booths after setting aside the election of the Appellant and results to be declared after fresh counting. 5. Learned counsel for the Appellant submitted that in the Election petition, no allegation of the elections not being fair had been made. There were no allegations that the ballot boxes had been tampered or the number of candidates who had polled at a booth. The prayer made was for recount and not repoll. No relief to set aside the election of the Appellant had been made. The learned Munsif committed gross error by directing repoll beyond the pleadings. There were no allegations that the ballot boxes had been tampered or the number of candidates who had polled at a booth. The prayer made was for recount and not repoll. No relief to set aside the election of the Appellant had been made. The learned Munsif committed gross error by directing repoll beyond the pleadings. The election petition did not plead any corrupt practice committed by the appellant or her agents materially affecting the election including improper reception, refusal or rejection of any vote or reception of any vote which is void as required under section 139 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) for declaring an election to be void. It was not denied that counting of votes was done in presence of respondent no. 8. No application under Section 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as the Rules) was filed by respondent number 8 either during counting or before issuance of the declaration of results under Rule 81 of the rules and the election certificate in favour of the appellant issued under Rule 82. Reliance was placed on 2002(1)PLJR (Samsul Haque v. State of Bihar) in support of the submission that unless a corrupt practice was alleged, the election of the appellant could not be set aside. Further reliance was placed on 2007(4)PLJR 169 (Banwari Yadav v. State of Bihar) to submit that the sanctity of the election process cannot be lightly interfered with and repoll ordered in the manner done. 6. Learned Senior Counsel for respondent no. 8 submitted that the election petition alleged that many ballots had been soaked in water and were incapable of being counted. The respondent had objected at the time of counting but was threatened and her objections in writing rejected. She had been informed that at Booth number 137, she had secured 58 votes and the Appellant only 11. Likewise at booth number 138 she had secured 86 and the Appellant 25. At booth number 137 she was informed to have secured 11 votes and at booth number 132, 25 votes. In this manner 1069 votes were alleged to have been polled in her favour and 1096 in favour of the appellant leading to her being declared as the winning candidate. At booth number 137 she was informed to have secured 11 votes and at booth number 132, 25 votes. In this manner 1069 votes were alleged to have been polled in her favour and 1096 in favour of the appellant leading to her being declared as the winning candidate. At booth number 133, 286 votes were reported to be polled but 284 ballots were recovered from the box. Similarly 308 votes were polled at booth number 140 but 295 ballots emerged. Similarly various other irregularities had been committed. Relief had been sought to set aside the election and issue declaration in favour of the eligible candidate. Reliance was placed on 2005 (1) PLJR 26 (Devendar Yadav v. State of Bihar) to submit that if the number of ballots emerging from the box was more than the number of votes polled it was a valid ground to set aside the election. 7. We have considered the submissions on behalf of the parties. An election petition can be filed under section 137 of the Act. Section 139 specifies the grounds for declaring an election to be void. Relevant for the present is the need for an assertion of a corrupt practice. The definition of corrupt practice is to be found in section 141 and which entails a disqualification under section 142. Rule 106 requires allegations to be made of corrupt practices. Rule 108 requires that the election petition shall contain statement of material facts and details signed and verified by the petitioner in the manner prescribed under Order 6 Code of Civil Procedure. 8. Rule 53 provides for votes to be cast through ballot papers. Rule 54 provides for ballot box. Rule 58 provides for the presiding officer to regulate number of voters who may enter the polling station at a time and remove other persons. Rule 59 provides for closing and sealing of the ballot box prior to commencement of the poll. Rule 60 provides for the Presiding officer to be satisfied of the identity of the voter. The identity of a voter can be challenged under Rule 61. Ballot papers are issued under Rule 62. Rule 66 provides for sealing of ballot boxes after close of the polls. Rule 70 and 71 provides for adjournment of poll during the period of poll and in case of emergencies. The identity of a voter can be challenged under Rule 61. Ballot papers are issued under Rule 62. Rule 66 provides for sealing of ballot boxes after close of the polls. Rule 70 and 71 provides for adjournment of poll during the period of poll and in case of emergencies. Rule 74 (d) permits the candidate, the election agent and the counting agent to be present at the place of counting. Rule 74 (2) provides that before opening the ballot box the counting agent present there shall be allowed to inspect the ballot boxes and their seals for satisfying themselves that they are not tampered. Rule 75 provides for scrutiny of ballot papers and their rejection. Rule 79 provides for recounting of votes on a written application made to the returning officer by the candidate/election agent/counting agent. Rule 81 and 82 provides for declaration of results and issuance of the election certificate. Rule 97 provides for counting of votes in presence of the members present at the meeting. 9. We have gone through the pleadings of the election petition. Paragraph 7 makes a general statement that a lot of ballots were affected by rain water and despite objection raised they were counted. There are no pleadings of how many ballots were affected by rain water and at which booths. Paragraph 8 states that the respondent objected in writing but which was torn and thrown away. No evidence oral or documentary was led in the Suit in support of the same. Similarly it was alleged that she lodged a complaint over the telephone with the Returning officer for which again no evidence was led. Respondent no.8 did not plead or place any material that objections had been made during polls that under Rule 58 the Presiding Officer did not regulate the number of voters entering the polling station. It was not the case of the respondent that the Presiding Officer permitted persons to enter the booth and cast vote without proof of identification under Rule 60. No challenge was made by the respondent to the identity of any voter under Rule 61. The respondent did not allege at any time that the seal of the ballot boxes were tampered or that after close of the poll, Form 17 and Form 18 with regard to account of ballot papers and papers Seals had been wrongly prepared. No challenge was made by the respondent to the identity of any voter under Rule 61. The respondent did not allege at any time that the seal of the ballot boxes were tampered or that after close of the poll, Form 17 and Form 18 with regard to account of ballot papers and papers Seals had been wrongly prepared. The respondent does not deny access to the place of counting and her presence at the time that the ballot boxes were opened and the votes counted. The respondent did not file any objections under Rule 79 during counting or before issuance of the declaration and winning certificate. 10. The relief sought in the election petition was for a recount of votes and not repoll. A general statement had been made that the respondent had been informed of having secured more votes at particular booths than the number of votes that emerged in her favour from the ballot box. On this basis it was submitted that the elections had not been fair. It was further alleged that 284 ballots were recovered from the ballot box at booth number 133 but 286 votes had been cast. Likewise only 295 ballots were recovered at booth number 140 while 306 awards are alleged to have been cast. It was also alleged that during counting the votes of one candidate had been counted in favour of the other. No details off the same with regard to the booths or the number of such ballots were mentioned. The affidavit annexed to the election petition is not in accordance with Order 6 Rule 15 of the Code of Civil Procedure which requires the pleading to be verified at the foot of the plaint by reference to the numbered paragraphs which she verifies to her own knowledge and which she verifies upon information received and believed to be true. 11. Manifestly the election petition did not contain any material facts alleging irregularities during election, sealing of the ballot box, or during counting leading to the declaration of the result much less did it allege any corrupt practice or tampering with the ballot box. The relief prayed was for repoll and not recount. There was no evidence before the Munsif that the ballot box had been tampered with. The finding to the contrary based on the number of ballots is presumptive, unsubstantiated and perverse. 12. The relief prayed was for repoll and not recount. There was no evidence before the Munsif that the ballot box had been tampered with. The finding to the contrary based on the number of ballots is presumptive, unsubstantiated and perverse. 12. In (2007)3 SCC 617 (Virendra Nath Gautam V Satpal Singh) explaining the difference between material particulars and material facts it was held as follows:- “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 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” 13. Distinguishing between facta probanda (the facts required to be proved i.e. Material facts) and facta probantia (the facts by means of which they are proved i.e. Particulars or evidence) it was held that the pleadings must contain facta probanda and not facta probantia. 14. The difference between material facts and particulars, and the importance of mentioning the material facts as a cause of action in an election petition has been considered in (2009) 9 SCC 310 (Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar) holding as follows : - “57. It is settled legal position that all “material facts” must be pleaded by the party in support of the case set up by him within the period of limitation. 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 will entail dismissal of the election petition. The election petition must contain a concise statement of “material facts” on which the petitioner relies. 58. There is no definition of “material facts” either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as “material facts”. 58. There is no definition of “material facts” either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as “material facts”. All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. “Material facts” in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case tried to give various meanings of “material facts”. The relevant para 48 of the said judgment is reproduced as under: (SCC pp. 526-27) “48. The expression “material facts” has neither been defined in the Act nor in the Code. According to the dictionary meaning, “material” means “fundamental”, “vital”, “basic”, “cardinal”, “central”, “crucial”, “decisive”, “essential”, “pivotal”, “indispensable”, “elementary” or “primary”. [Burton's Legal Thesaurus (3rd Edn.), p. 349.] The phrase “material facts”, therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, “material facts” are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be “material facts” would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.” 15. An election result declaring the will of the people is not to be lightly interfered with. The plaint must not only declare full particulars but also state the material facts. In 1994 Supp (3) SCC 5 (Quamarul Islam v. S.K. Kanta)it was observed :- “65.The maintenance of purity of elections is indeed essential but the court must be clear in its approach and appreciate that the proof of commission of corrupt practices must be clear, cogent, specific and reliable as the charge of a corrupt practice is almost like a criminal charge and the one who brings forth that charge has the obligation to discharge the onus of proof by leading reliable, trustworthy and satisfactory evidence. The learned trial Judge appears to have lost sight of the above salutary principles of election law.” 16. In 2004 (6)SCC331 (Chandrika Prasad Yadav v State of Bihar) it was held that Rule 79 serves a salutary purpose. Counting of the ballot papers in terms of the Rules takes place in presence of the candidate or his counting agent. While filing such an application the basis for making a request for recounting of votes is required to be disclosed. 17. In Samsul Haque(supra) it was held that whether a particular vote was void or it was wrongly accepted or rejected, refused or admitted cannot be decided simply on oral evidence. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532 rejecting hearsay evidence by a candidate or with regard to the elections it was observed as follows: “24. It is well to remember that this Court has laid down in several reported decisions that the election of a returned candidate should not normally be set aside unless there are cogent and convincing reasons. The success of a winning candidate at an election cannot be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially clause (d) of sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to (iv) of clause (d), the election of a returned candidate shall not be voided unless and until it is proved that the result of the election insofar as it concerns a returned candidate is materially affected. The volume of opinion expressed in judicial pronouncements preponderates in favour of the view that the burden of proving that the votes not cast would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate lies upon one who objects to the validity of the election. Therefore, the standard of proof to be adopted, while judging the question whether the result of the election insofar as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond the pale of doubt and not the test of proof as suggested by the learned counsel for the appellant.” 18. Therefore, the standard of proof to be adopted, while judging the question whether the result of the election insofar as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond the pale of doubt and not the test of proof as suggested by the learned counsel for the appellant.” 18. The reliance by the respondent no.8 on Devendar Yadav(supra) is misplaced as it related to lack of free and fair election at specified booths occasioned by violence and repoll at the identified booths without any allegations with regard to excess ballots than that polled at the Booth. 19. In CWJC 9840/2008 (Heman Rai v State of Bihar) relied upon by the learned Munsif, the Learned Single Judge had declined to interfere with the order of the Election Tribunal directing repoll on the ground that there was serious irregularity as ballots in excess of the votes polled were found. The order of the Learned Single Judge was set aside in L P A no. 900/2008 by the Division Bench holding that in absence of any material facts having been pleaded and evidence of corrupt practice which materially affected the result of the election the Tribunal could not have set aside the election result. 20. We therefore find it difficult to sustain the judgment under appeal and set aside the same. 21. The appeal is allowed with costs.