JUDGMENT : Alok Singh, J. Present petition has been filed assailing the judgment and order dated 20.1.2015 passed by the Election Tribunal/Additional District Judge, Vikas Nagar, District Dehradun in Election Petition No. 76 of 2013, Harphool Chand v. Neeraj Aggarwal & others, whereby learned Election Tribunal was pleased to direct recounting of votes. 2. Brief facts of the present case, inter alia, are that election of the President of Municipal Board, Vikas Nagar, District Dehradun was held on 28.04.2013, wherein present petitioner and respondent nos. 1, 2, 3, 4 & 5 were the candidates. Counting of votes was held on 30.04.2013, wherein present petitioner was declared elected by the margin of 6 votes. Election petitioner/respondent no. 1, herein, has filed Election Petition No. 76 of 2013, under Sections 19 - 20 read with Section 28 of the U.P. Municipalities Act stating therein that in the election so held total 11 postal ballots were received, however, postal ballots were not authenticated by the Head of the Department, therefore, could have not been counted while 5 such invalid postal ballots were counted in favour of the returned candidate illegally; there was a big difference in the total ballots/votes casted in a particular ballot box, as mentioned by the election officer at the time of polling and taken out from the ballot boxes at the time of counting, as mentioned by the Returning Officer; tabulations prepared by the Returning Officer of few tables do not contain either initial or signature of the Returning Officer; cuttings/over-writings were made in the entries without there being any initial; initially the election petitioner was declared elected, however, all of a sudden, the petitioner, herein, was declared elected by the margin of 6 votes under the pressure of the ruling party by making manipulation in the election record; election petitioner has moved an application at the time of counting itself pointing out the illegality being made during the counting, whereupon only invalid ballot papers were re-counted and second application moved for re-counting was rejected. Petitioner, herein, has filed the written statement refuting the allegations made by the election petitioner. 3. Learned Election Tribunal was pleased to frame four issues in the light of the pleadings of the parties, as under : (1) As to whether counting of the votes was illegal and incorrect? (2) As to whether election of the returned candidate is liable to be declared void? 3. Learned Election Tribunal was pleased to frame four issues in the light of the pleadings of the parties, as under : (1) As to whether counting of the votes was illegal and incorrect? (2) As to whether election of the returned candidate is liable to be declared void? (3) As to whether election petitioner has cause of action for the present election petition? (4) As to what relief election petitioner is entitled for? 4. Election petitioner has placed on the record of the Election Tribunal copies of the Matganana Prapatra No. 4 of different tables as well as tabulation prepared by the Presiding Officer at the time of polling, obtained by the election petitioner under the Right to Information Act. 5. While appearing in the witness box, election petitioner has got examined himself as PW1, Sri Vinod Kumar Virdi, who was a candidate for BSP, as PW2 and Sandeep Barthwal as PW3. While appearing in the witness box, election petitioner (PW1) and another candidate for the post of President of the Municipality concerned, Sri Vinod Kumar Virdi (PW2) have stated on oath that total 11 postal ballots were received and none of them was authenticated by the Head of the Department, therefore, were liable to be rejected; however, 5 ballot papers were counted in favour of the returned candidate illegally. It was further stated that initially the election petitioner was declared successful by the margin of 13 votes, whereupon the Party workers of the election petitioner started celebrating the success of the election petitioner, however, all of a sudden the returned candidate/ petitioner, herein, was declared elected by the margin of 6 votes by making manipulation in the election record. It was further stated that to facilitate the success of the returned candidate, over-writings and cuttings were made in the tabulation prepared by the Election Officer/Returning Officer and matganana prapatras were manipulated; neither matganana prapatras nor the over-writings/cuttings made thereon have initial of any authorized officer. It was further stated that there was a difference in the total votes casted in a particular ballot box and the ballot papers taken out from the ballot boxes i.e. either less or more ballot papers were taken out from the ballot boxes. 6. Returned candidate/petitioner, herein, did not dare to appear in the witness box. However, Sri Mohan Singh Barniya, Returning Officer was examined as DW1. 6. Returned candidate/petitioner, herein, did not dare to appear in the witness box. However, Sri Mohan Singh Barniya, Returning Officer was examined as DW1. Sri Mohan Singh Barniya, Returning Officer (DW1), while appearing in the witness box, has admitted that few Matganana Prapatras, true and correct copies of which were placed on record, do not contain the signature of the Returning Officer; over-writings and cuttings thereon do not bear initial or signature of the Returning Officer. He has further stated that it is correct that from certain ballot boxes either less or more ballot papers were taken out than the actual ballots casted. DW1 Sri Mohan Sing Barniya has further stated that it is correct to suggest that if postal ballot paper does not contain the authentication and signature of the Head of Department, such ballot paper should have been declared invalid. 7. Learned Election Tribunal having perused true and correct copies of the polling/counting record filed by the election petitioner, having obtained under the RTI Act, has observed that as per the record, on the few tables ballot papers taken out from the ballot boxes were found either less or more than the actual votes casted. Election Tribunal has also opined that over-writings and cuttings in the Matganana Prapatra without there being any initial or signature of the Authorized Officer prima facie demonstrate that illegality was committed during counting. Election Tribunal has also opined that prima facie it seems that postal ballot papers were not authenticated by the Head of the Department, therefore, seems to have been counted wrongly in favour of the returned candidate. Having recorded prima facie opinion, learned Election Tribunal has directed re-counting of the votes. Feeling aggrieved, returned candidate has preferred present writ petition. 8. I have heard Mr. Sharad Sharma, learned Senior Counsel assisted by Mr. Ramji Srivastava, learned counsel for the petitioner, Mr. V.K. Kohli, learned Senior Counsel assisted by Ms. Rajni Supyal and Mr. Kanti Ram Sharma, Advocates for respondent no. 1 and Mr. A.K. Joshi, learned Addl. C.S.C. for respondent nos. 6, 7, 8 & 9, and have carefully perused the record. 9. Hon’ble Apex Court in its recent judgment in the case of Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and another reported in (2014) 5 SCC 312 , in paragraph nos. 13, 14, 15, 16 & 32, has observed as under: “13. C.S.C. for respondent nos. 6, 7, 8 & 9, and have carefully perused the record. 9. Hon’ble Apex Court in its recent judgment in the case of Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and another reported in (2014) 5 SCC 312 , in paragraph nos. 13, 14, 15, 16 & 32, has observed as under: “13. It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and courts have a duty to enforce the same with all rigours and not to minimize their operation. A right to be elected is neither a fundamental right nor a common law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute. The result announced by the Returning Officer leads to formation of a government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if recounting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow. "Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results". However, a genuine apprehension of miscount or illegality and other compulsions of justice may require the recourse to a drastic step. 14. However, a genuine apprehension of miscount or illegality and other compulsions of justice may require the recourse to a drastic step. 14. Before the court permits the recounting, the following conditions must be satisfied: (i) The court must be satisfied that a prima facie case is established; (ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes; (iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes; (iv) An opportunity should be given to file objection; and (v) Secrecy of the ballot should be guarded. 15. This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been "materially affected". There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, can not be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering recounting of ballots just to enable the election Petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the Petitioner sets out his case with precision supported by averments of material facts. (Vide: Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. AIR 1964 SC 1249 ; Bhabhi v. Sheo Govind and Ors. The order of recounting can be passed only if the Petitioner sets out his case with precision supported by averments of material facts. (Vide: Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. AIR 1964 SC 1249 ; Bhabhi v. Sheo Govind and Ors. AIR 1975 SC 2117 ; and M. Chinnasamy v. K.C. Palanisamy and Ors. (2004) 6 SCC 341 ). 16. There may be an exceptional case where the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions, but in refutation of the case set up by the other side. Only in such circumstances, absence of an issue may not be fatal and a party may not be permitted to submit that there has been a mistrial and the proceedings stood vitiated. (Vide: Kalyan Singh Chouhan v. C.P. Joshi AIR 2011 SC 1127 ). 32. It is a settled legal proposition that the instructions contained in the handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal AIR 2010 SC 1227 ; and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil AIR 2009 SC 2975 . Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case.” 10. In view of the judgment of Hon’ble Apex Court, it is now settled position of law that the instructions contained in the Handbook for Returning Officer issued by the Election Commission in exercise of its statutory functions are binding on the Returning Officers and the Returning Officers are bound by the Rules and such instructions in counting the ballot. It is also settled position of law that before the court permits the recounting, the court must be satisfied that prima facie case is established; the material facts and full particulars have been pleaded stating the irregularities in counting the votes; a roving and fishing inquiry should not be directed by way of an order to recount the votes; an opportunity should be given to file objection and; secrecy of the ballot should be guarded. It has further been held by Hon’ble Apex Court that where the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions, but in refutation of the case set up by the other side, in such circumstances, absence of an issue may not be fatal and party may not be permitted to state that there has been a mistrial and the proceeding stood vitiated. 11. Rules 61 and 65 of the Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1983 read as under : “61. Form, etc. of Petition. (1) An election petition shall specify the ground or grounds on which the election of the returned candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds. (2) The person whose election is questioned and where the petition claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition. 65. Procedure before the District Judge. (1) Except so far as provided by the Act or elsewhere in this Order the procedure provided in the Civil Procedure Code in regard to suits, shall, so far as it is not inconsistent with the act or any provisions of this Order and so far as it can be made applicable, be followed in the hearing of election petitions: Provided that – (a) any two or more election petitions relating to the election of the same person may be heard together. (b) the District Judge shall not be required to record or have recorded the evidence in full, but shall make a memorandum of the evidence sufficient in this opinion for the purpose of deciding the case; (c) the District Judge may, at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondents; (d) for the purpose of deciding any issue the District Judge shall be required to order production of or to receive only so much evidence, oral or documentary, as he considers necessary; (e) no appeal or revision shall lie on a question of fact or law against any decision of the District Judge; (f) The District Judge may review his decision on any point on application of any person considering himself aggrieved thereby, being made within fifteen days from the date of the decision. (2) The provision of the Indian Evidence Act, 1872, shall apply in all respects to the trial of an election petition.” 12. As per Rule 61 of the Order 1983, an election petition shall specify the ground or grounds on which the election of the returned candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds. 13. As per Rule 65 of the Order, 1983, the District Judge shall not be required to record or have recorded the evidence in full, but shall make a memorandum of evidence sufficient in his opinion for the purpose of deciding the case and the District Judge shall be required to order production of or to receive only such evidence, oral or documentary, as he considers necessary. 14. A combined reading of Rules 61 and 65 would demonstrate that summary of the circumstances and grounds should be alleged in the election petition on which the election is being questioned and Election Tribunal may permit only such evidence, which he considers necessary for the purpose of deciding the lis. 15. Perusal of page No. 184 of the counter affidavit would reveal that although at the polling station no. 1, Asharam Junior High School, Vikas Nagar, total 494 votes were casted in the ballot box, however, only 493 votes were taken out from the ballot box; likewise, perusal of page nos. 15. Perusal of page No. 184 of the counter affidavit would reveal that although at the polling station no. 1, Asharam Junior High School, Vikas Nagar, total 494 votes were casted in the ballot box, however, only 493 votes were taken out from the ballot box; likewise, perusal of page nos. 170 and 190 of the counter affidavit would reveal that in Room No. 1 of the St. James School, Vikas Nagar, although total ballots casted were 516, however, 517 ballot papers were taken out from the ballot box. Perusal of paper nos. 174 and 196 of the counter affidavit would reveal that in Room No. 2 of St. Paul School, Vikas Nagar, total votes casted were 517, however only 516 ballot papers were taken out from the ballot box. Perusal of page nos. 172 and 198 of the counter affidavit would reveal that in Room No. 5 of St. Paul School, Vikas Nagar, although 495 votes were casted, however, 497 votes were taken out from the ballot box. Perusal of paper nos. 86, 87, 88 and 89, copies of the matganana prapatras, would reveal that they do not contain either the signature or the seal of the Returning Officer. Perusal of paper no. 90 would reveal that initially Neeraj Aggarwal, petitioner, herein was shown having received 450 votes, however, by over-writing, it was made 451 and cutting and over-writing was also made on the number of invalid votes and page no. 90 does not contain the signature of Returning Officer. Likewise, page nos. 92 & 93 would reveal that over-writing was made in the tabulations and it do not contain initial of the officer making over-writing. 16. Rule 31 of the Order, 1983 reads as under : “31. Recounting. – The Returning Officer may, either on his own initiative or at the instance of any candidate recount votes, whether once or more than once when the Returning Officer is not satisfied as to the accuracy of a previous counting: Provided that nothing herein contained shall make it obligatory on the Returning Officer to recount the same votes more than once.” 17. Perusal of Rule 31 would demonstrate that if Returning Officer is satisfied that counting was not done correctly, recounting can be ordered. 18. In the case in hand, election petitioner has admittedly moved an application for re-counting. Perusal of Rule 31 would demonstrate that if Returning Officer is satisfied that counting was not done correctly, recounting can be ordered. 18. In the case in hand, election petitioner has admittedly moved an application for re-counting. Having satisfied that counting was not fair, Returning Officer has directed recounting of invalid votes only. In my humble opinion, if there was doubt in the mind of Returning Officer about the correctness of the counting, he could have directed recounting de novo instead of counting to the invalid votes. 19. In view of the above discussions, I find prima facie force in the submission of Mr. V.K. Kohli, learned Senior Advocate appearing for the election petitioner/respondent no. 1 that few votes casted in favour of the election petitioner were got misplaced deliberately by the counting staff at the time of opening the ballot boxes and few ballot papers in favour of the returned candidate were added at the time of opening of the ballot boxes, therefore, there is a difference in the actual votes casted and taken out and counted at the time of counting. Mr. Kohli, learned Senior Advocate seems to be correct in saying that cutting and over-writing are made in the matganana prapatra to materially affect the election result. Non-signature on matganana prapatra by the Returning Officer goes to demonstrates that some manipulations were got done. 20. In my prima facie opinion, if postal ballots were not authenticated by the Head of the Department, same should have been declared invalid and ought not to have been counted. 21. Election petitioner, while appearing in the witness box, has proved the copies obtained by him under the RTI Act, which prima facie demonstrate that contentions of the election petitioner are correct. Therefore, I do not find any reason to take contrary view to the view taken by the Election Tribunal. 22. Consequently, petition fails and is hereby dismissed.