JUDGMENT : S.K. Mishra, J. 1. The Election Petition has been filed by Kishore Kumar Mohanty, who was the un-successful candidate for General Election of the State Assembly of the year 2014 (hereinafter the said Kishore Kumar Mohanty will be referred to as the “Election Petitioner” for brevity). He has filed this Election Petition, inter alia, assailing the election of Naba Kishore Das, who is opposite party no.1 in the Election Petition and petitioner in the Misc. Case (hereinafter referred to as the “Returned Candidate” for brevity) on the ground that the difference between the vote cast in favour of the Returned Candidate and the Election Petitioner is 11, 551 whereas the 3rd candidate namely, Anand Pradhan, i.e. opposite party no.2, who shall be referred to as respondent no.2 in the order, has secured 21,060 votes. It is further alleged by the Election Petitioner that respondent no.2 has secured disproportionately high percentage of votes from the margin of votes cast in favour of the Election Petitioner and the Returned Candidate, the Court should pronounce a verdict in favour of Election Petitioner and the acceptance of wrong/erroneous nomination of respondent no.2 has materially affected the result of the election under Section 100 (1)(d) (i) of the Representation of Peoples Act, 1951 (hereinafter referred to as the “R.P. Act” for brevity). After appearance of the parties and filing written statement, the Returned Candidate filed an application under Order-VI, Rule 16 and Order-VII, Rule-11 of the Civil Procedure Code, 1908(hereinafter referred to as the “Code” for brevity) to strike out certain portion of the pleading i.e., paragraphs 6(A) to 6(C) and to declare that the Election Petition does not constitute a cause of action and for absence of cause of action, the Election Petition should be rejected. 2. Mr. Upendra Kumar Samal, learned counsel for opposite partyno.1, would argue that in paragraph-6(A) of the Election Petition, it has been stated that on verification of the electoral roll it was found that the name of respondent no.2 has been deleted and the acceptance of nomination is improper. In paragraph-6(B) it has been stated that the Election Petitioner has secured 63, 152 votes, Respondent No.1(Returned Candidate) has secured 74,703 votes and Respondent No.2 has secured 21,060 votes. Respondent No.1(Returned Candidate) has declared as elected by defeating the Election Petitioner with a margin of 11,551 votes. In paragraph-6(B) it has been stated that the Election Petitioner has secured 63, 152 votes, Respondent No.1(Returned Candidate) has secured 74,703 votes and Respondent No.2 has secured 21,060 votes. Respondent No.1(Returned Candidate) has declared as elected by defeating the Election Petitioner with a margin of 11,551 votes. In pargagraph-6(C) of the Election Petition, it has been stated that the vote got by Respondent No.2 as a BJP candidate would have gone in favour of the Election Petitioner, as he contested the election on behalf of Biju Janata Dal (hereafter referred to as the “BJD Party”). 3. The main ground on which the Election Petitioner challenges the election of the Returned Candidate is that Respondent No.2 is not an elector of 7-Jharsuguda Constituency and the electoral roll filed by him revealed that he is an elector of the said constituency, but later on that entry in the electoral roll has been deleted. Therefore, it was argued that the nomination of Respondent No.2 has been accepted improperly and such improper acceptance has led to a situation that the votes cast in his favour would have gone in favour of the Election Petitioner as those votes are anti-congress/Indian National Congress. On the basis of those two aspects, the Election Petitioner challenges the election of the Returned Candidate. 4. Mr. Samal, learned counsel for respondent no.1, would argue that sub-section (1)(d)(i) of Section 100 of the R.P. Act provides that the result of the election, in so far as it concerns a Returned Candidate, has been materially affected by improper acceptance of any nomination. Moreover, paragraphs-6(A) to 6(C) of the Election Petition do not satisfy the requirement of Section 100 (1)(d)(i) in order to declare the election of the Returned Candidates to be void. It has been specifically pleaded in the Election Petition that the result of the election in so far as it concerns to the Returned Candidate has been materially affected. Mr. Samal, learned counsel, drew attention of the Court to Section 83 of the R.P.Act especially Section 83 sub-section (1)(a) and (2). It is contended that an Election Petition shall contain a concise statement of the material facts on which the petitioner relies and in sub-section (2) any schedule or annexure to the petitioner shall also be singed by the petitioner and verified in the same manner as the petition. It is contended that an Election Petition shall contain a concise statement of the material facts on which the petitioner relies and in sub-section (2) any schedule or annexure to the petitioner shall also be singed by the petitioner and verified in the same manner as the petition. He also drew attention to Order 6, Rule 2 of the Code regarding the provision of pleading to state material facts and not evidence. Mr. Samal, learned counsel, therefore argued that as per mandatory requirement of Section 83 of the R.P. Act, the Election Petition shall furnish alls the materials facts with the supporting documents which give rise to the cause of the action. Merely quoting the words of the Section like chanting of a mantra does not amount to stating materials facts. It is also argued that material facts shall include positive statement of facts as also positive averments of a negative fact, if necessary. The Election Petition do not disclose the material facts rather the facts alleged are based on surmises and conjectures and that pleading cannot be put to trial as there are no triable issues. Hence he argues that the Election Petition should be dismissed by allowing his application under Order-VII, Rule 11 of the Code. 5. The Election Petitioner, who is opposite party no.1 in the Misc. Case represented by Mr. B.Mishra, learned Senior Counsel, admits that the Election Petitioner was the candidate from 7Jharsuguda (General) Assembly Constituency in the last Assembly Election, 2014. He contested the said election as the official candidate of BJD party. He has challenged the election of respondent no.1, i.e. Returned Candidate-Naba Kishore Das, who was the official candidate of Indian National Congress. It is also admitted that the ground of challenge as taken in the Election Petition is that respondent no.2-Anand Pradhan, who had contested the said election as the official candidate of BJP was not qualified to be chosen as a member of the Legislative Assembly as prescribed under Section 5 of the R.P. Act. The specific assertion of the election petition is that on verification it is found that the name of respondent no.2 has been deleted from the finally published electoral roll as its relevant Part i.e. Part-28 Sahoo Pada, J. Memorial Primary School, Sl.No.128 of 7-Jharsuguda Assembly Constituency as disclosed by him in his nomination filed in Form2B. The specific assertion of the election petition is that on verification it is found that the name of respondent no.2 has been deleted from the finally published electoral roll as its relevant Part i.e. Part-28 Sahoo Pada, J. Memorial Primary School, Sl.No.128 of 7-Jharsuguda Assembly Constituency as disclosed by him in his nomination filed in Form2B. Learned counsel for the Election Petitioner, therefore, argues that respondent no.2 was not an elector in 7-Jharsuguda Assembly Constituency nor had filed the certified copy of any other electoral roll along with his nomination paper showing to be an elector of any other Assembly Constituency within the State of Odisha. The omission is a substantial defect and the nomination of respondent no.2 is liable to rejection and not acceptable on the ground that he was not having qualification to make himself eligible to contest the said election has prescribed under section 5 (c) read with Section 33(4) & (5) of the R.P. Act. It is contended that the Returning Officer improperly accepted the nomination of respondent no.2 in contravention of section 36(2) of the R.P. Act while scrutinizing his nomination. 6. Mr. Mishra, learned Senior Counsel, would argue that there were total nine number of contesting candidates. Out of total 166178 votes polled in the Constituency, the Returned Candidate has secured 74703 votes, the Election Petitioner has secured 63152 votes and Respondent No.2 has secured 21060 votes whereas other six candidates have secured 5255 votes in total. Therefore, learned Senior Advocate argued that the margin of difference between the Returned Candidate and the Election Petitioner is 11551 votes. The further assertion of the Election Petitioner is that respondent no.2-Anand Pradhan has secured 21060 valid votes which is disproportionately large in number than the margin of difference between the returned candidate and the Election Petitioner who is the nearest rival and in the event the nomination of respondent no.2 in place of improperly accepted by the Returning Officer would have been rejected almost all these votes said to have been polled in favour of respondent tno.2 would have gone in favour of the Election Petitioner as the entire electorate of 7-Jhjarsuguda Assembly Constituency was sharply divided between voters supporting congress philosophy and congress candidate and voters supporting anti congress philosophy and anti-congress candidates. Therefore, Mr. Therefore, Mr. Mishra, learned Senior Counsel, argued that the result of the election in so far as it concerns the Returned Candidate under the facts and circumstances of the case was bound to have been materially affected leading to the further conclusion that the election of the Returned Candidate is to be declared void under Section 100 (1)(d)(i) of the R.P. Act. 7. Thus, on the basis of these factual aspects of the case, this Court take notes of the fact that admittedly, the Returned Candidate has secured 74,703 valid votes and the Election Petitioner has secured 63,152 valid votes. The Returned Candidate has defeated the Election Petitioner by margin of 11,551 votes. Respondent No.2-Anand Pradhan has also secured 21,060 votes. The total margin of vote between the Returned Candidate and the Election Petitioner is more than half of the total valid votes cast in favour of respondent no.2. Moreover, it is also not disputed that the total valid votes cast in favor of respondent no.2 is less than 1/3rd of the total votes polled in favour of the Returned Candidate. In fact, this Court has calculated the same as the proportion of vote polled in favour of the Returned Candidate: the proportion of votes cast in favour of Respondent No.2 is three point five is to one (3.5:1). In other words the total votes cast in favour of the Returned Candidate is more than 3.5 times of the total vote cast in favour of the Returned Candidate. The above facts are not disputed. 8. The disputed facts are whether Respondent No.2 is the enrolled voter of 7-Jharsuguda (General) Assembly Constituency or not and whether he is the elector of any other Constituency of the State and whether on face of the record the Court should entertain the Election Petition only on the ground that the total votes cast in favour of the candidate whose candidature has been improperly accepted is disproportionately large than the difference between the votes cast in favour of the Returned Candidate and the Election Petitioner. 9. 9. On such factual background and argument advanced by the learned counsel appearing for the parties, this Court would consider that the following facts which, allegedly, constitute the cause of action for the present election petition; they are:- (I) Whether respondent is enrolled as a voter of 7-Jharsuguda (General) Assembly Constituency or whether he is an elector of any other legislative constituency of the State of Odisha? (II) The assertion that the vote cast in favour of respondent no.2 would have been cast in favour of the election petitioner, the same being anti-congress votes, had the Election Officer not accepted the nomination of respondent no.2. It is also contended that the electorals of 7Jharsuguda (General) Assembly Constituency is sharply divided as Pro-Congress and Anti-Congress and all anti-congress votes were cast in favour of respondent no.2 would have been cast to the election petitioner ? (III) Improper acceptance of nomination of respondent no.2 has materially affected the election inasmuch as the Hon’ble Supreme Court in CHHEDI RAM Vs. JHILMIT RAM AND OTHERS; (1984) 2 Supreme Court Cases 281 has laid down that whenever the margin of vote between the Returned Candidate and Election Petitioner who has secured the next highest number of votes in his favour is disproportionately less in comparison to the vote secured by the 3rd candidate will lead to the inference that the election of the Returned Candidate is materially affected by such improper acceptance ? 10. As far as the first question is concerned, it cannot be decided without recording the evidence from both the sides. Only on proof of the fact by preponderance of evidence, this aspect can be determined. But the questions that remain to be determined are whether only on the basis of the pleading that respondent no.2 whose nomination has been improperly accepted will lead to the inference mentioned in paragraphs II and III and that aspect has to be decided at this stage. 11. Section 100 (1)(d) (i) of the Act provides for the situation that is arises in this case. It is profitable to take note of the exact provision:- “Section 100. Grounds for declaring election to be void. 11. Section 100 (1)(d) (i) of the Act provides for the situation that is arises in this case. It is profitable to take note of the exact provision:- “Section 100. Grounds for declaring election to be void. (1) Subject; to the provisions of sub-section (2), if the High Court is of opinion xxxxx xxxxx xxxxx (d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected – (i) by the improper acceptance of any nomination, or xxxxx xxxxx xxxxx.” 12. Thus, even if it presumed for the purpose of consideration of the case that respondent no.2’s nomination has been improperly accepted, then it will not give rise to the cause of action unless other two aspects are satisfied. So it is the duty of the Court to address itself to determine whether the Election Petition does reveal a cause of action and if any part of the pleadings in the Election Petition should be struck down under Order 6, Rule 16 of the Code. 13. While determining this aspect of the case, this Court first takes note of the judgment delivered by the Hon’ble Supreme Court in the case of AZAR HUSSAIN Vs. RAJIV GANDHI; 1986 (Supp) Supreme Court Cases 315; where at paragraph-12 of the judgment, the Hon’ble Supreme Court while rejecting the contention raised by the learned counsel for the appellant that whether the cause of action is made out in the Election Petition should be decided at the stage of final disposal of the case after taking evidence has held that the whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The Hon’ble Supreme Court further held that the sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexations parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexations parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The Hon’ble Supreme Court further held that the powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relived of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. The Hon’ble Supreme Court further held that the Court in an Election proceeding can dismiss an Election Petition in exercise of the powers conferred under the Code. 14. Coming to the second factual assertion giving rise to the cause of action, according to the Election Petitioner, is that the entire vote cast in favour of respondent no.2 would have gone to the Election Petitioner, the same being entirely anti-congress votes. 15. Order 6, Rule 16 of the Code provides for striking out of pleadings. It is profitable to take note of the exact words used in the said provision. “16. 15. Order 6, Rule 16 of the Code provides for striking out of pleadings. It is profitable to take note of the exact words used in the said provision. “16. Striking out pleadings–The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading- (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court.” 16. It is argued on this context that the factual aspect of the case is not only based on any particular reasoning but also it is vexatious and delay the fair trial of the Election Petition. 17. In this connection, this Court takes note of the reported case of Roop Lal Sathi Vs. Nachhattar Singh; AIR 1982 SUPREME COURT 1559; wherein the Hon’ble Supreme Court has held that a portion of the pleading can be struck out only in terms of Order 6, Rule 16 of the Code only if it is held that the averments in the said paragraph of the Election Petition are either unnecessary, frivolous or vexatious or that they are as such may tend to prejudice, embarrass or delay the fair trial of the Election Petition. Otherwise the pleadings cannot be struck down. In applying this principle to the case in hand, this Court is of the considered view that the pleading giving rise would show the cause of action that the entire votes cast in favour of respondent no.2 being 21,060 would have been cast in favour of the Election Petitioner as those votes are anti-congress votes are unfounded, impracticable, imaginary, without any basis and unreasonable. This Court is also of the opinion that this pleading is vexatious. In other words, it is not only annoying to the returned candidate, but also to the Court as it is not the case of the Election Petitioner that a survey was held or statistical study was done in that area from which it is borne out that those 21,060 votes are anti-congress votes and obviously the identity of 21,060 voters cannot be revealed. It is also the settled principle of law that secrecy of ballot is sacrosanct in a democracy. So stating that 21,060 votes are anti-congress itself is vexatious. It is also the settled principle of law that secrecy of ballot is sacrosanct in a democracy. So stating that 21,060 votes are anti-congress itself is vexatious. There is no pleading to the effect that those votes are anti-congress because of any particular reasons. There is also every possibility of the voters changing their minds and casting votes in favour of a particular candidate depending upon his personality, his social work and so many other factors. It cannot be predicated that certain votes are anti-congress and certain votes are pro-congress. The electorate of India are very intelligent. They have shown over the period of time that they have ability to elect a person who will truly represent their interest and uphold the rule of law and secular democracy. Moreover, if this pleading is not deleted and the matter is taken to trial, it will be impossible on the part of the Election Petitioner to establish that 21,060 votes would have cast in his favour. Firstly, it is not possible to identify the voters and it is also not possible to examine the group of persons to show that 21,060 voters would have cast vote in favour of the Election Petitioner. Thus a protracted trial involving examination of too many witnesses, who can have no knowledge about the pattern of voting of these 21,060 votes, it will only delay the trial of the Election Petition. Moreover, it is further argued by the Returned Candidate that there is no pleading as to the basis of such imaginary and speculative pleading. There is no pleading leading to the source of knowledge of the Election Petitioner that the votes polled in favour of respondent no.2 would have gone in favour of the Election Petitioner. 18. In that view of the matter, this Court is of the opinion that the pleading at paragraph-6(B) of the Election Petition is not only vexatious, but also it will delay the fair trial of the Election Petition unnecessarily lingering the proceeding. Hence, this Court is of the opinion that it is appropriate to strike out paragraph-6(B) of the Election Petition and, accordingly, the same is done. 19. Once paragraph-6(B) is deleted form the pleading that leaves the so called factual assertions that respondent no.2 has secured disproportionately high percentage of vote to the margin of difference of votes polled between the Election Petitioner and the Returned Candidate. 19. Once paragraph-6(B) is deleted form the pleading that leaves the so called factual assertions that respondent no.2 has secured disproportionately high percentage of vote to the margin of difference of votes polled between the Election Petitioner and the Returned Candidate. It may be noted here that the total margin between the total votes polled by the Election Petitioner and the Returned Candidate is 11,551 and the total votes polled in favour of respondent no.2 is 21,060. The total vote polled being 166178. This Court takes note of the fact that the total votes polled in favour of the Returned Candidate is 44.95%. The trump card played by the Election Petitioner is the ratio decided in the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (supra). 20. Having gone through the said judgment, this Court takes note of the reported case of the case of Vashist Narain Sharma V. Deb Chandra; 1955 SCR 509 : AIR 1954 SC 513 ; wherein the Hon’ble Supreme Court has held that the mere fact that the total wasted votes are greater than the margin votes between the Returned Candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected is not acceptable. The Hon’ble Supreme Court further held that it is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other candidates. The Hon’ble Supreme Court further held that while it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100 (1) (c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the court to find in his favour on this point the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. 21. Should the petitioner fail to adduce satisfactory evidence to enable the court to find in his favour on this point the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. 21. The said ratio has been followed by the Hon’ble Supreme Court again in the case of Samant N. Balakrishna V. George Fernandez, (1969) 3 SCR 603 : (1969) 3 SCC 238 : AIR 1969 SC 1201 ; wherein the Hon’ble Supreme Court has held that the Election Petition cannot be considered on possibilities. Following the Vashist Narain Sharma’s case (supra) the Hon’ble Supreme Court held that if the margin of votes were small something might be made of the points mentioned by the learned counsel for the petitioner may be taken into consideration. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge, then there can be no room for a reasonable judicial guess. 22. However, taking into consideration these two aspects of the case, the Hon’ble Supreme Court in the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (supra) held that because the vote obtained by the third candidate is 20 times of the difference between the number of votes secured by successful candidate and the candidate securing the next highest number of votes. The Election Petition should be allowed. This judgment has been considered by the Hon’ble Supreme Court in a number of later cases. 23. In the case of SANTOSH YADAV Vs. NARENDER SINGH; (2002) 1 Supreme Court Cases 160, a three Judge Bench of the Hon’ble Supreme Court has examined this aspect thoroughly. The Hon’ble Supreme Court has also the occasion to examine the applicability of the three Judge Bench in the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (supra). In the case of SANTOSH YADAV Vs. NARENDER SINGH (supra), the total wasted vote cast in favour of the 3rd candidates was 59 times of the margin of votes between the vote secured by the Election Petitioner and the Returned Candidate. Still the Hon’ble Supreme Court did not, following the ratio decided in the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (supra), set aside the election of the Returned Candidate. It is appropriate to take the relevant observation of the Hon’ble Supreme Court in the case of SANTOSH YADAV Vs. Still the Hon’ble Supreme Court did not, following the ratio decided in the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (supra), set aside the election of the Returned Candidate. It is appropriate to take the relevant observation of the Hon’ble Supreme Court in the case of SANTOSH YADAV Vs. NARENDER SINGH (supra). At paragraph-8 of the aforesaid judgment, the Hon’ble Supreme Court has ruled that it is well settled by a catena of decisions that the success of a winning candidate at an election should not 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 some one 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 avoided unless and until it was proved that the result of the election, insofar as it concerns a returned candidate was materially affected. At paragraph-12 of the said judgment the Hon’ble Supreme Court has taken into consideration the ratio decided in the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (supra). At paragraph-13 the Hon’ble Supreme Court has held that at the first blush the submission appears to be attractive but is found to be devoid of merit on closer scrutiny. Chhedi Ram’s case came up for the consideration of the Hon’ble Supreme Court at least on three occasions. In the cases of Shiv Charan Singh v. Chandra Bhan Singh, (1988)2 SCC 12 : AIR 1988 SC 637 : Tek Chand v. Dile Ram, (2001) 3 SCC 290 and J.Chandrasekhara Rao v. V.Jagapathi Rao, 1993 Supp. (2) SCC 229, the Hon’ble Supreme Court has held that Chhedi Ram’s case rested “on its own facts” and did not overrule the earlier decisions of the Hon’ble Supreme Court, namely, the decisions in Vashist Narain Sharma case and Samant N. Balkrishna case. The Hon’ble Supreme Court has further held that in Chhedi Ram’s case not only the proportion of wasted votes was 20 times of the margin, there were six candidates in all in the election fray. The Hon’ble Supreme Court has further held that in Chhedi Ram’s case not only the proportion of wasted votes was 20 times of the margin, there were six candidates in all in the election fray. The Court formed an opinion that a reasonable probability was raised in favour of holding that the result of the election had been materially affected. The decision in Chhedi Ram’s case does not set out detailed facts and circumstances and the nature of the evidence adduced which may have persuaded the Court in arriving at a finding in favour of the election petitioner. In view of the earlier decisions of the Hon’ble Supreme Court existing before Chhedi Ram’s case was decided, it cannot be held that merely because of votes between the winning candidate and the next highest candidate, an inference must always be drawn that the result of the election was materially affected insofar as the returned candidate is concerned. There must be definite evidence available before the Court enabling an inference being drawn as to how the wasted votes would have been distributed amongst the contesting candidates. The Court cannot conjecturise or return findings on surmises. 24. Though this judgment rendered in SANTOSH YADAV Vs. NARENDER SINGH (supra) on a final hearing of the appeal after evidence is taken, this Court is of the opinion that the observations made therein that there shall not be an inference that disproportionate high wasted votes cast in favour of a 3rd party will materially affect the result of the election as far as the returned candidate is concerned. 25. In the case of SANTOSH YADAV Vs. NARENDER SINGH (supra), the Hon’ble Supreme Court at paragraph-14 also took into consideration that the observation in Shiv Charan Singh case is pertinent and apposite. It is no doubt true that the burden which is placed by law on the election petitioner is very strict; even if it is strict it is for the courts to apply it. It is for the legislature to consider whether it should be altered. While disposing of the appeal the Hon’ble Supreme Court at paragraph-15 of the judgment of SANTOSH YADAV Vs. NARENDER SINGH (supra) took pains to put forth a word about the pleadings. Section 83 of the Act mandates an election petition to contain a concise statement of the material facts on which the petitioner relies. While disposing of the appeal the Hon’ble Supreme Court at paragraph-15 of the judgment of SANTOSH YADAV Vs. NARENDER SINGH (supra) took pains to put forth a word about the pleadings. Section 83 of the Act mandates an election petition to contain a concise statement of the material facts on which the petitioner relies. The rules of pleadings enable a civil dispute being adjudicated upon by a fair trial and reaching a just decision. A civil trial, more so when it relates to an election dispute, where the fate not only of the parties arrayed before the court but also of the entire constituency is at a stake, the game has to be played with open cards and not like a game of chess or hide and seek. An election petition must set out all material wherefrom inferences vital to the success of the election petitioner and enabling the court to grant the relief prayed for by the petitioner can be drawn subject to the averments being substantiated by cogent evidence. The Hon’ble Supreme Court further held that concise and specific pleadings setting out all relevant material facts, and then cogent affirmative evidence being adduced in support of such averments, are indispensable to the success of an election petition. An election petition, if allowed, results in avoiding an election and nullifying the success of a returned candidate. It is a serious remedy. Therefore, an election petition seeking relief on a ground under Section 100 (1)(d) of the Act, must precisely allege all material facts on which the petitioner relies in support of the plea that the result of the election has been materially affected. 26. In the case of SANTOSH YADAV Vs. NARENDER SINGH (supra), the Hon’ble Supreme Court also ruled that merely because wasted votes are more than the difference of votes secured by the returned candidate and the candidate securing the next highest number of votes, an inference as to the result of the election having been materially affected cannot be necessarily be drawn. 27. The similar view has been taken by the Hon’ble Supreme Court in the case of P.T. RAJAN VS. T.P. M.SAHIR AND OTHERS; (2003) 8 Supreme Court cases 498. This case is also rendered by three Judge Bench of the Hon’ble Supreme Court. At paragraph 77 the Hon’ble Supreme Court in the case of P.T. RAJAN VS. 27. The similar view has been taken by the Hon’ble Supreme Court in the case of P.T. RAJAN VS. T.P. M.SAHIR AND OTHERS; (2003) 8 Supreme Court cases 498. This case is also rendered by three Judge Bench of the Hon’ble Supreme Court. At paragraph 77 the Hon’ble Supreme Court in the case of P.T. RAJAN VS. T.P.M.SAHIR AND OTHERS (supra) has held that Chhedi Ram’s case therefore is not a decision which can be said to be an authority for the proposition that the number of votes which were liable to be rejected would itself be a barometer for the purpose of arriving at a conclusion that the burden of the election petitioner to prove the legal requirement of Section 100(1)(d) of the Act stands discharged. The said decision was rightly held to have been rendered in the peculiar fact situation of that case in Shiv Charan Singh and Santosh Yadav case. So the Hon’ble Supreme Court has held in P.T. RAJAN VS. T.P. M. SAHIR AND OTHERS case that Chhedi Ram’s case does not constitute a binding precedent. This clear expression is found at paragraph-78 of the judgment rendered by three Judge Bench of the Hon’ble Supreme Court in the case of P.T. RAJAN VS. T.P.M.SAHIR AND OTHERS (supra). 28. In addition to the legal proposition that the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (supra) is not a binding precedent and it has been rendered in the fact situation of the case, this Court also takes note of the fact that the ratio between the vote cast in favour of respondent no.2 is not disproportionately high with respect to the margin of votes between the Returned Candidate and the Election Petitioner. In fact the margin of votes is more than half of the total votes polled in favour of respondent no.2. Moreover, the total votes polled in favour of Returned Candidate is 44.95%. Even if Chhedi Ram’s case is applied to this case, no Court can draw inference that the vote polled in favour of respondent no.2 is disproportionately high with respect to the difference between the votes polled in favour of the Election Petitioner and the Returned Candidate. Moreover, the total votes polled in favour of Returned Candidate is 44.95%. Even if Chhedi Ram’s case is applied to this case, no Court can draw inference that the vote polled in favour of respondent no.2 is disproportionately high with respect to the difference between the votes polled in favour of the Election Petitioner and the Returned Candidate. So this factual assertion and the consequential inference arising out of that in view of the ratio decided in Chhedi Ram’s case is not available to the Election Petitioner in this case and it is impossible to prove that 21,060 votes cast in favour of respondent no.2 would have polled in favour of the Election Petitioner and entering into a trial to examine the witnesses only to find out whether 21,060 votes would have gone in favour of the Election Petitioner will be a futile exercise. 29. Once paragraph-6(B) is struck out of the pleadings and the third factual aspect of drawing an inference and to rule that disproportionately large wasted votes polled in favour of respondent no.2 is not considered by the Court to have materially affected the election, then the only material fact remains in the pleading is that the nomination of respondent no.2 has been improperly accepted. That itself will not constitute a cause of action because as per Section 100 (1)(d)(i) of the Act provides that the Court should form an impression that the improper acceptance of nomination of respondent no.2 has materially affected the election. 30. In the case of AZAR HUSSAIN Vs. RAJIV GANDHI(supra) at paragraph 14, the Hon’ble Supreme Court has held that the material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. This Court has already struck down paragraph-6(B) which speaks about the pattern of voting of electorate on the basis of party loyalty. This court has held that the inference available in favour of the Election Petitioner in Chhedi Ram’s case is not a binding precedent, then there appears to be no ground to allow the Election Petition. This Court has already struck down paragraph-6(B) which speaks about the pattern of voting of electorate on the basis of party loyalty. This court has held that the inference available in favour of the Election Petitioner in Chhedi Ram’s case is not a binding precedent, then there appears to be no ground to allow the Election Petition. Hence, this Court would consider that the application filed under Order 7, Rule 11 of the Code is also a meritorious one and there is no cause of action for filing the Election Petition. Hence the Misc. Case is allowed. It is ordered that the prayer made in the application filed under Order 6, Rule 16 of the Code is allowed in part and paragraph-6(B) is struck out from the pleadings. Application filed under Order 7, Rule 11 of the Code is allowed and it is held that the Election Petition as presented does not disclose a cause of action for further continuance of the case. 31. Hence the Misc. Case is allowed and as a natural consequence thereof the Election Petition is rejected as it does not disclose a cause of action. There shall be no order as to costs. 32. Urgent certified copy of this judgment be given as per rules.