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2016 DIGILAW 329 (ALL)

RAJKUMAR SINGH v. VIJAY KUMAR MISHRA

2016-01-25

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—This is an election petition under Section 80, 80-A and 81 of the Representation of People Act, 1951 (hereinafter referred to as the ‘Act’). The petitioner had contested the election of 375, Ghazipur Legislative Assembly constituency of district Ghazipur in U.P. held on 11.2.2012 as per the election programme notified by the Election Commission of India and had lost the same to one of his rivals, respondent No. 1 by a margin of 241 votes. Apart from the various grounds on which the result of the aforesaid election has been impugned, the main ground on which emphasis has been laid is one said to be covered by Section 100(1)(d)(iv) of the Act i.e. non-compliance with the provisions of the Constitution or of the Act or of any Rule or Order made under the Act. 2. Sri N.K. Pandey, learned counsel for the petitioner during the course of hearing had made a statement that he would be pressing his petition only on the aforesaid ground with regard to non counting of the Postal Ballots of the “voters on election duty”. On notice, the returned candidate, respondent No. 1 had put in appearance through Shri K.R. Singh. He filed a written statement and an application under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) for rejection of the election petition on the allegation that it does not contain the material facts disclosing any cause of action for the petition on the above ground. 3. I have heard Sri K.R. Singh, learned counsel for respondent No. 1 and Sri N.K. Pancdey, learned counsel for the petitioner on the merits of the application filed under Order 7 Rule 11 C.P.C. 4. It may not be out of context to mention that by virtue of Section 87 of the Act every election petition is triable by the High Court, as nearly as may be, in accordance with the provisions applicable under the Code to the trial of the suits. Order 6 Rule 2 of the Code provides that the pleadings shall contain a statement in concise form of material facts on which the party pleading relies for his claim or defence as the case may be. 5. Order 7 Rule 1(e) of the Code also mandates that the plaint shall contain the facts constituting the cause of action and when it arose. 5. Order 7 Rule 1(e) of the Code also mandates that the plaint shall contain the facts constituting the cause of action and when it arose. Section 83 of the Act provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies. 6. In view of the above provisions the disclosure of materials facts constituting a cause of action for the suit/petition is a mandatory part of the pleadings. It makes Order 7 Rule 11 of the Code more relevant as it provides for rejection of the plaint (hereinafter referred to as the “election petition”), inter alia, where it does not discloses a cause of action. 7. In deciding an application filed under Order 7 Rule 11 of the Code in an election petition, it is important to first consider the meaning of the two terms i.e. “cause of action” and “material facts”. The expression “cause of action” is not specifically defined anywhere and it is difficult to define in a concise manner, but a group of facts giving rise to one or more reasons for suing generally constitutes a “cause of action”. The fact or facts which give rise to a right of action or which entitles a party to seek redress in a Court of law is/are “cause of action”. Therefore, a “cause of action” is antecedent to the institution of a suit. A bundle of facts put together which entitles a party to maintain an action in a Court of law constitutes a “cause of action”. 8. In Bloom Dekor Limited v. Subhash Himatlal Desai, (1994) 6 SCC 322 , it has been observed that a bundle of facts which are necessary for the plaintiff to prove in order to succeed in the suit would constitute a “cause of action”. 9. In Hari Shanker Jain v. Sonia Gandhi, 2001(8) SCC 233 , it has been held that the expression “cause of action” has been compendiously defined to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court and omission of a single material fact leads to an incomplete cause of action. The expression “cause of action” thus refers to the entire bundle of facts that gives rise to an enforceable claim. The expression “cause of action” thus refers to the entire bundle of facts that gives rise to an enforceable claim. It means every fact which, if traversed, would be necessary to prove or establish a right to succeed in a suit but does not comprise of every piece of evidence which is necessary to prove the said fact or facts. 10. The term “Material facts” refers to such facts which support the allegations constituting the cause of action. All facts which are material or necessary for constituting a cause of action would be material facts. 11. In Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 , the Court dealing with the term “material facts” as used in Order 6 Rule 2 of the Code and Section 83 of the Act laid down that all primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts. In an election petition, whether a particular fact is material or not and is required to be pleaded, is a question which depends on the nature of the charge levelled, the grounds relied upon and the special circumstances of the case. 12. In Samant N. Balakrishna v. George Fernandez and others, AIR 1969 SC 1201 , it has been laid down that Section 83 of the Act is mandatory in nature. The entire and complete cause of action must be stated in the election petition in the shape of “material facts”. The word ‘material’ shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action. 13. In Virender Nath Gautam v. Satpal Singh and others, 2007 (3) SCC 617 , it has been held that whether the averments in the election petition contains material facts or not is dependent upon the facts of each case and no rule of universal application can be applied in finding if the statement of facts made in the election petition amounts to disclosure of material facts or not. It further lays down that “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. It further lays down that “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. The object and purpose of stating material facts is to enable the opposite party to know the case he has to meet with. In the absence of primary pleading, a party cannot be allowed to lead evidence. Therefore, failure to state even a single material fact will entail dismissal of the suit or petition. 14. In Jaipal Singh v. Sumitra Mahajan and another, AIR 2004 SC 2066 , the question before the Court was whether the election petition filed was lacking in material facts as required under Section 83(1)(a) of the Act. The petitioner therein was aged about 59½ years and was a Member of Indian Administrative Service having 40 years of service to his credit. He sought voluntary retirement vide letter dated 13.3.2001 with immediate effect with a request to waive the notice period of three months and his request was duly received by the Government of India, Ministry of Personnel, appointing authority and also by Government of Haryana at Chandigarh. He filed his nomination for a seat in Rajya Sabha. On 15.3.2002 the returning officer rejected the nomination papers on the ground that he was holding an office of profit as the rules required three months previous notice to the appointing authority before quitting the service. 15. The election petition despite the above pleading was rejected by the High Court. The Apex Court upholding the rejection held that the petitioner in addition to the above pleadings ought to have stated that the appointing authority has received the notice on the specified date and that his request for waiver stood granted on the date of scrutiny and he had seized to be a Government servant. 16. In Pothula Rama Rao v. Pendyala Venkata Krishna Rao, (2007) 11 SCC 1 , the nomination of a candidate was rejected on the ground that the person concerned was a dummy candidate set up by the party. The election petition filed by him was rejected as lacking with material facts as there was no averment that he was set up as a candidate by the TDP. 17. The election petition filed by him was rejected as lacking with material facts as there was no averment that he was set up as a candidate by the TDP. 17. In Udhav Singh (supra) it has been laid down that pleadings has to be read as a whole to ascertain its true import. It is not permissible to call out a sentence or a passage and to read it out of the context, in isolation. The pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention’ of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole. It also lays down that failure to plead even a single material fact leads to an incomplete cause of action. 18. In short, all those facts which are essential to clothe the petition with a complete cause of action, are “material facts” which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act. 19. In the instant case, the ground for challenge to the election of the returned candidate is that the Postal Ballots Papers were not counted which violates the mandate of the provisions of Rule 54-A of the Conduct of Election Rules, 1961 framed under the Act and the circulars and guidelines issued by the Election Commission of India from time to time. 20. Now in order to appreciate as to what would be “material facts” constituting a “cause of action” for assailing election of the returned candidate on the above ground it is important to have a birds eye view of the certain relevant statutory provisions and guidelines contained in the Hand Book of the Returning Officer as well as the instructions contained in the Letters of the Election Commission of India. 21. The Conduct of Election Rules, 1961 (hereinafter referred to as the ‘Rules’) in Part III provides for “Postal Ballot”. It by Rule 17 defines, inter alia, “voter on election duty” to mean any polling agent, any polling officer, presiding officer or other public servant, who is an elector in the constituency and is by reason of his being on election duty unable to vote at the polling station where he is entitled to vote. 22. It by Rule 17 defines, inter alia, “voter on election duty” to mean any polling agent, any polling officer, presiding officer or other public servant, who is an elector in the constituency and is by reason of his being on election duty unable to vote at the polling station where he is entitled to vote. 22. Rule 18 of the Rules provides for the list of persons entitled to vote by post at an election in a Parliamentary or Assembly constituency and includes “voter on election duty”. Rule 20 of the Rules provides that voter on election duty who wishes to vote by post at an election shall send an application in Form 12 to the returning officer so as to reach him at least seven days or such shorter period as the returning officer may allow before the date of poll, and the returning officer if satisfied that he is an voter on election duty, shall issue a Postal Ballot paper to him. If such a person i.e. voter on election duty wishes to vote in person, he is required to send an application in Form 12-A to the returning officer at least four days or such shorter period as the returning officer may allow before the date of poll, and if the returning officer is satisfied that he is an voter on election duty in the constituency he shall issue to him - (1) an election duty certificate in Form 12-B; (2) mark ‘EDC’ against his name in the marked copy of the electoral roll to indicate that an election duty certificate has been issued to him; and (3) ensure that he is not allowed to vote at the polling station where he would otherwise had been entitle to vote. Rule 23 of the Rules provides that ordinarily Postal Ballot paper shall be sent by post under certificate of posting but in case of a voter on election duty the returning officer may deliver the postal ballot paper and Forms, or cause them to be delivered, to such voter personally together with a declaration in Form 13-A, a cover in Form 13-B, a large cover addressed to the returning officer in Form 13-C and instructions for the guidance of the elector in Form 13-D. 23. Rule 24 of the Rules provides for the procedure for recording of vote by Postal Ballot paper. Rule 24 of the Rules provides for the procedure for recording of vote by Postal Ballot paper. It provides that an elector who has received a Postal Ballot paper and desires to vote personally shall record his vote on the ballot paper in accordance with the directions contained in Form 13-D and then enclose it in the cover provided in Form 13-B. He shall sign the declaration in Form 13-A in the presence of a stipendiary magistrate or such other officer specified, as may be appropriate, to whom he is personally known or to whose satisfaction he has been identified and have his signature attested by such officer. After a elector has recorded his vote and made his declaration under Rule 24, he shall return the Postal Ballot paper and the declaration in accordance with instructions contained in Form 13-D as provided in Rule 27 of the Rules. The returning officer is supposed to keep covers containing Postal Ballot Papers received by him in safe custody until the commencement of the counting of votes. 24. Chapter - X of the Hand Book of Returning Officer’s contains an elaborate procedure regarding Postal Ballot Papers. It provides that voters on election duty are entitle for Postal Ballot Papers. It provides that all polling officials should be provided Form - 12 for applying for Postal Ballot Papers alongwith their appointment letters with the request to submit the said Form duly filled on the first day of the training and it may not be necessary to fill up the address column in Form - 12 as Postal Ballot Papers are issued at the training venue itself and are not be be sent by post. The cover containing the Postal Ballot paper will be handed over to the voter on election duty after obtaining his signature in the register maintained for the issuance of the Postal Ballot Papers and simultaneously an entry shall be made in red ink in the marked copy of the electoral roll of the issuance of the Postal Ballot to the voter on election duty. 25. Once a Postal Ballot paper is issued to the voter on election duty called for training even if he is exempted from election duty subsequently or is kept in reserve, he is supposed to cast the vote only through the said Postal Ballot paper. 25. Once a Postal Ballot paper is issued to the voter on election duty called for training even if he is exempted from election duty subsequently or is kept in reserve, he is supposed to cast the vote only through the said Postal Ballot paper. In order to avoid postal delay and inconvenience to voter on election duty in returning the Postal Ballot Paper after recording the vote, the election commission has encouraged system where under the returning officer has to provide a Postal Ballot Facilitation Centre with facility of recording vote in complete secrecy. The said facilitation centre would have a Government Officer authorised under law to attest Form 13-A. The voter on election duty is required to drop the Postal Ballot Paper in the drop box pertaining to his assembly constituency kept under the supervision of the returning officer/assistant returning officer and the observer of the election commission. 26. Chapter V of the Rules provides for counting of votes and Rule 54-A lays down that the returning officer shall first deal with the Postal Ballot Papers. It provides that no cover in Form 13-C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in such cover shall be counted. The other covers shall be opened one after another and the returning officer shall first scrutinise the declaration in Form 13-A contained therein. If the said declaration is not found, or has not been duly signed and attested or is otherwise substantially defective or if serial number endorsed on the cover in Form 13-B, that cover shall not be opened and the returning officer shall reject the ballot paper contained therein. The returning officer shall then place all the declarations in Form 13-A which he founds to be in order, in a separate packet before opening the cover in Form 13-B. The covers in Form 13-B shall then be opened one after another and the returning officer shall scrutinise each ballot paper and decide the validity of the vote recorded therein. 27. Chapter XIV of the Hand Book of Returning Officers provides for the procedure for counting of the votes received by post i.e. Postal Ballot. It provides that the cover in Form 13-C received in time should be opened one after the another. 27. Chapter XIV of the Hand Book of Returning Officers provides for the procedure for counting of the votes received by post i.e. Postal Ballot. It provides that the cover in Form 13-C received in time should be opened one after the another. On the opening of the cover the declaration in Form 13-A and the cover in From 13-B should be taken out and the declaration should be scrutinised. If the declaration in Form 13-A is in order it should be kept in a separate docket and thereafter the cover in Form 13-B should be opened one after the another. The Postal Ballot Paper contained in the cover 13-B should be rejected only for the reasons mentioned in clause 14.4 and thereafter the valid votes should be counted and each candidate credited with the votes given to him. The total number of postal votes received by each candidate should then be calculated and entered in the result sheet in From - 20 in the appropriate place and announced for information to the candidate. 28. The Election Commission of India in addition to the Hand Book of the Returning Officer’s has issued several letters from time to time regarding arrangement for counting and laying down instructions for counting votes. In this connection the letter of the Election Commission of India dated 5th May, 2011 addressed to the Chief Election Officers of some of the States is relevant as it lays down instructions for the counting of Postal Ballot Papers. It apart from laying down the counting procedure and the ground for rejection of the Postal Ballots as contained in the hand book, vide paragraph 29 emphasises that where the victory margin is less than total number of Postal Ballots received then there should be a mandatory re-verification of all Postal Ballots. All the Postal Ballots rejected as invalid as well as the postal votes counted in favour of each and every candidate shall once again be verified and tallied in the presence of Observers. The Returning Officer shall record the finding of re-verification and satisfy himself before finalization of the result. The entire proceedings of reverification should be video-graphed without comprising with the secrecy of the ballot. 29. The election commission’s letter dated 21st October, 2008 addressed to all Chief Electoral Officers of all States/Union Territories lays down the guidelines for management of Postal Ballot Papers. The entire proceedings of reverification should be video-graphed without comprising with the secrecy of the ballot. 29. The election commission’s letter dated 21st October, 2008 addressed to all Chief Electoral Officers of all States/Union Territories lays down the guidelines for management of Postal Ballot Papers. It provides that voters on election duty shall be issued Form - 12 on the first day of training and before second round of training all applications received in Form - 12 shall be processed so that on the day of second round of training Postal Ballots are issued to them after verifying their identity. It also provides that election duty staff voting through Postal Ballot Paper either at the facilitation centre or otherwise should follow all instructions contained in Form 13-D. 30. The letter of the Secretary, Secretariat of the Election Commission of India dated 5th March, 2012 to the Chief Election Officer, U.P., Lucknow in relation to the U.P. Legislative Assembly - 2012 with regard to counting of Postal Ballots in the assembly constituency comprised in district Pratapgarh reiterates and directs that the District Election Officer be directed to read carefully paragraphs 27 and 28 of the instructions dated 5th May, 2011 and paragraph 14.3 of Chapter 14 of the Hand Book of the Returning Officer’s and not to device his own system and mechanism for the counting of Postal Ballots. It further states that only such Postal Ballot Papers which have been issued and received back as per statutory requirements shall be counted and these instructions be reiterated to all districts of the State. It is in the light of the above procedure for casting and counting of Postal Ballots that one has to consider the pleadings contained in this election petition to record any conclusion as to the sufficiency of material facts constituting a cause for action for this petition. 31. The petitioner in paragraph 19 of the petition in challenging the election of the respondent No. 1 from 375 - Ghazipur Assembly Constituency has emphasised that the result of the election was materially affected as the Returning Officer/Assistant Returning Officers acted in contravention of the provisions of the Rules, guidelines and instructions contained in the Hand Book of Returning Officer’s and orders and instructions issued by the Election Commission of India from time to time viz. 21st October, 2008, 5th May, 2011 and 5th March, 2012 in respect of counting of the Postal Ballots. A total of 1030 votes were cast by Postal Ballot Papers by the polling personnel on election duty i.e. electors on election duty of the aforesaid assembly constituency and the Postal Ballots were dropped in the “Drop Box” kept at Postal Ballot Facilitation Centre. These Postal Ballots were not counted. The pleadings apart from elaborately dealing with the procedure prescribed for the issuance of the Postal Ballot Papers to the voters on election duty and regarding casting of votes by Postal Ballots by dropping them in the “Drop Box” pertaining to the concern assembly constituency at the Postal Ballot Facilitation Centre, deals with the complete procedure relating to the counting of Postal Ballots as contained in the Rules and the Hand Book of Returning Officer’s and the orders and instructions of the Election Commission and clearly pleads that voters on election duty had opted to vote through Postal Ballots papers personally at the Postal Ballot Facilitation Centre. They had duly applied in Form - 12 for issuance of Postal Ballot Papers to them which were received by the Returning Officer/Assistant Returning Officer before second round of the training. The Forms on verification were found to be in order and that Postal Ballots papers were provided to the concern Trainee Officers after obtaining their signatures in the register kept for keeping account of issue of Postal Ballot Papers in the prescribed formate. The pleadings in paragraph 60 clearly state that the Deputy District Election Officer, Ghazipur/Additional District Magistrate (Finance & Revenue), Ghazipur vide order dated 27th January, 2012 informed the contesting candidates of all the seven assembly constituencies of the district Ghazipur that the persons deputed on election duty will proceed for polling duty at 7.00 a.m. on 10.2.2012 from Kshetriya Gramya Vikash Prasikshan Sansthan Ground and on that day the polling personnel will drop their Postal Ballot paper in the “Drop Box” kept with the Returning Officer before leaving for polling place. The aforesaid order dated 27th January, 2012 was partially modified vide order dated 31st January, 2012 stating that in view of paragraphs 9 to 18 of the circular dated 21st October, 2008 issued by the Election Commission of India and in view of paragraph 10.2 to 10.5 of Chapter - X of the Hand Book of Returning Officer’s a Postal Ballot Facilitation Centre has been established at the training venue i.e. Krishi Utpadan Mandi Samiti, Jangipur, Ghazipur where on the date of second training i.e. 4th, 5th and 6th February, 2012 the polling personnel deployed on election duty will cast their vote through Postal Ballot Papers between 8.00 a.m. to 12.00 noon and 1.00 p.m. to 5.00 p.m. in the evening. 32. In paragraphs 64 and 65 of the petition it has been pleaded that on 4th, 5th and 6th February, 2012 polling personnel deployed on election duty and who were also registered elector in the constituency and who have already submitted duly filled up Form - 12 for issuance of Postal Ballot Papers were given Postal Ballot Papers and after marking their choice on it they folded them and then dropped them into the “Drop Box” kept at the Postal Ballot Facilitation Centre. The total number of votes cast by such polling persons were 1030 votes and a total 4 “Drop Box” were used at the Postal Ballot Facilitation Centre. All these votes contained in 4 “Drop Box” were valid votes and were required to be counted according to the provisions of the Act, Rules, Orders and Instructions of the Election Commission of India but the Returning Officer illegally and arbitrarily refused to count these 1030 Postal Ballot Papers which materially effected the result of the election. 33. In addition to the above, the pleadings contained in paragraphs 76, 77, 78, 79 and 80 are also material and relevant in connection with the counting/non-counting of the Postal Ballot Papers. The said paragraphs read as under: “76. That on 6th March, 2012 at about 08.00 a.m., at the R.O. Table where the Returning Officer, Assistant Returning Officers, Election Observer and one counting agent of each candidate and all the contesting candidates and their election agent were sitting, the Drop Boxes which are 4 in number were brought from the strong-room at the R.O. Table in the presence of abovementioned persons. And, firstly the Drop Box which was used on 04th February, 2012, containing votes casted through Postal Ballots by the polling personnel on election duty, were inspected and their seal was found intact and not tempered. 77. That the Returning Officer/Assistant Returning Officers, after satisfying themselves in respect of the seal of the Drop Box used on 04th February, 2012, broken the seal of the Drop Box and found that all the Postal Ballots are duly marked and the declaration of the elector is also duly attested by the competent authority, consequently, started sorting the Postal Ballots candidate-wise. 78. That the Returning Officer/Assistant Returning Officers after sorting the Postal Ballots candidate-wise, counted the Postal Ballots and it was found that the election-petitioner has obtained 58 votes, while Shri Vijay Kumar Mishra - 49 votes, Shri Arun Kumar Singh - 41 votes, Shri Raghvendra Pathak - 1 vote, Smt. Omkala - 12 votes and Shri Mahendra Pratap Singh has obtained 3 votes and other candidates got 00 (Zero) votes, and thus the total votes found in Drop Box used on 04th February, 2012 were 164 votes. 79. That during the progress of the counting of the Postal Ballots of Drop Box used on 04th February, 2012, the District Election Officer/District Magistrate, Ghazipur came at the R.O. Table at about 08.25 a.m. and directed to stop the counting of Postal Ballots on the ground that the Election Commission of India vide its order dated 05th March, 2012 has ordered not to count the votes casted through Postal Ballot Papers by the electors on election duty. And ultimately, on the oral direction of the District Election Officer/District Magistrate, Ghazipur counting of the Postal Ballots were stopped and the Returning Officer announced on loudspeaker that it will be counted later-on. Therefore, the Postal Ballots were again kept in the same Drop Box and subsequently sealed; and the counting of the aforesaid Postal Ballots was not added in the final result-sheet and the final result-sheet was prepared without adding the votes casted through Postal Ballot Papers. 80. Therefore, the Postal Ballots were again kept in the same Drop Box and subsequently sealed; and the counting of the aforesaid Postal Ballots was not added in the final result-sheet and the final result-sheet was prepared without adding the votes casted through Postal Ballot Papers. 80. That it is also relevant to mention here that the remaining 3 Drop Boxes used on 05th, 06th and 10th February, 2012 containing 344 votes, 481 votes and 41 votes respectively, were neither opened nor the votes contained therein were counted; and, without counting the votes contained in Drop Boxes final result-sheet was illegally prepared and result of the election was declared.” 34. A bare reading of the pleadings reveal that the petitioner in the petition has pleaded all the material facts with regard to the procedure required to be followed for issuing and casting votes by Postal Ballot Papers; the procedure followed for casting of votes by Postal Ballot Papers by the voters on election duty by dropping the Postal Ballots in the 4 Drop Boxes kept at the Postal Ballot Facilitation Centre as per the direction of the Returning Officer/Assistant Returning Officers; and that in all 1030 votes were cast by Postal Ballot Papers but they were not counted as the counting was stopped in between after counting of the votes in the first drop box was completed. The Drop Boxes were brought to the table of the Returning Officer where Returning Officer, Assistant Returning Officer, Election Observer and one counting agent of each candidate was present. The Drop Box used on 4.2.2012 was inspected and was opened. The Postal Ballot Papers therein were found to be in order and were counted. The votes polled by each candidate were recorded. Later District Election Officer came and ordered to stop the counting of Postal Ballot Papers and ultimately the counting was stopped. The Postal Ballot Papers of the first Drop Box counted were not even added in the final result sheet. 35. The submission of Sri K.R.Singh, learned counsel for the respondent No. 1 is that the pleadings do not contain material fact that the votes by Postal Ballot Papers were cast in a valid manner. The pleadings do not contain any averment that the petitioner himself or his representative was present at the time of casting of the votes. 35. The submission of Sri K.R.Singh, learned counsel for the respondent No. 1 is that the pleadings do not contain material fact that the votes by Postal Ballot Papers were cast in a valid manner. The pleadings do not contain any averment that the petitioner himself or his representative was present at the time of casting of the votes. The pleadings are silent as regards the source of information with regard to casting of votes by Postal Ballot Papers. 36. The pleadings state that 1030 votes by Postal Ballot Papers were cast by the voters on election duty after they had submitted application in prescribed Form - 12 and were issued Postal Ballot Papers after due verification and that the votes were dropped in 4 Drop Boxes kept at the Postal Ballot Facilitation Centre. Therefore, the pleadings regarding casting of votes by Postal Ballot Papers in accordance with procedure prescribed are complete. 37. The cause of action in the petition is not with regard non-casting or improper casting of votes by the Postal Ballot Papers in which case it would have been material to state that the votes were cast in a valid manner and to disclose the source of the said information. The cause of action is rather different and is non-counting of the votes cast by Postal Ballot Papers. The counting of Postal Ballot Papers under Rule 54-A is mandatory. Therefore, the material facts in this regard is casting of votes by Postal Ballot Papers and their non-counting. The counting had begun but was stopped and ultimately without counting the votes cast by Postal Ballot Papers the final result sheet was prepared without even adding the votes polled by the candidates as per the counting of Postal Ballots of the First Drop Box. This was all done in the presence of Returning Officer/Assistant Returning Officer, Election Observer and the counting agents of the candidates. This was all done in the presence of Returning Officer/Assistant Returning Officer, Election Observer and the counting agents of the candidates. In the above factual scenario, when the cause of action is limited to the non-counting of the votes cast by Postal Ballot Papers, the pleadings contained in the petition, as referred to above, are more than sufficient and does not lack any material fact to constitute a cause of action for the trial of the election petition on the ground of non-counting of the Postal Ballot Papers which may be in contravention of the provisions of the Act/Rules/Instructions and Orders of the Election Commission of India. 38. In view of the aforesaid facts and circumstances of this case, the pleadings of the election petition cannot be said to be lacking in material facts sufficient to constitute cause of action for the trial of this election petition on the ground of violation of the provisions of the Act, Rules and the orders made under the Act, which may warrant rejection of the election petition either under Section 83 of the Act or under Order 7 or Rule 11 C.P.C. Accordingly, application under Order 7 Rule 11 C.P.C. (Paper No. A-10) is rejected. Office may proceed and list the petition for further progress.