JUDGMENT : S.C. SHARMA, J. 1. The petitioner before this Court is aggrieved by order dated 28/07/2015 passed by respondent No.11 Sub Divisional Officer, Khilchipur Jeerapur, District Rajgarh by which Election Petition preferred by respondent No.1 has been allowed. 2. In spite of service of notice, there is no appearance on behalf of the respondent No.1. A reply has been filed on behalf of the State Government. 3. Learned counsel for the petitioner has argued before this Court that elections for the post of Sarpanch, Gram Panchayat No.85, Dariyapur, District Rajgarh (Biaora) took place on 05/02/2015 and result was declared on 09/02/2015. The petitioner was declared as a returned candidate and has received 187 votes. The respondent No.1 has received 186 votes. 4. An Election Petition was preferred and the petitioner's contention is that without framing the issues, the Sub Divisional Officer has passed an order, in Election Petition preferred by respondent No.1, for recounting. He has argued before this Court that as no issues were framed, the order passed by the Sub Divisional Officer is bad in law. He has further argued that the Sub Divisional Officer has directed recounting by observing that the difference between returned candidate and the person who stood second is by one vote and therefore, recounting is necessary. Learned counsel has argued before this Court that merely because difference of vote is one, recounting cannot be ordered in a mechanical manner. 5. It is true that in the present case, initially an appeal was preferred before the Collector and later on a revision has also been preferred before the Commissioner. Learned counsel for the petitioner has fairly stated before this Court that remedy lies only before this Court as there is no provision of appeal or revision. 6. On the other hand, learned Government Advocate has made an attempt to justify the order passed by the Election Tribunal and his contention is that based upon the material produced before the Sub Divisional Officer, he has directed recounting and therefore, the question of interference by this Court does not arise. He has also read out the impugned order. 7. This Court has carefully gone through the impugned order passed by the Sub Divisional Officer. He has also read out the impugned order. 7. This Court has carefully gone through the impugned order passed by the Sub Divisional Officer. Paragraph No.9 of the impugned order passed by the Sub Divisional Officer reads as under:- ^^9- Áfr;kfpdkdrkZ Øekad 01 ckyfd'ku ds vfHkHkk"kd Jh eukst 'kekZ us viuh fyf[kr cgl esa dgk gS fd ;kfpdkdrkZ ds }kjk ÁLrqr ;kfpdk vkosnu i= mfpr vk/kkjksa ij ÁLrqr ugha fd;k gSA ;kfpdkdrkZ ds }kjk ÁLrqr vfHkys[k ,oa lk{kh ds dFku Hkh mlds foijhr tk jgs gSA iqu% erx.kuk djok;k tkuk mfpr ugha gSA ;kfpdk vkosnu i= dks fujLr djus dk fuosnu fd;k gSA mijksDr foospu ds i'pkr eSaus Ádj.k dk voyksdu fd;kA ;kfpdkdrkZ vHk;flag ds }kjk ÁLrqr ;kfpdk vkosnu i= ,oa 'kiFk i= rFkk ;kfpdk vkosnu i= dk tokc] ihBklhu vf/kdkjh Øekad 186 ,oa 187 ds }kjk ÁLrqr tokc] vHk; i{k ds }kjk ÁLrqr lk{; ds dFku ,oa Ádj.k esa layXu vfHkys[k dk ijh{k.k fd;kA mHk; i{k ds fo}ku vfHkHkk"kdksa ds }kjk ÁLrqr fyf[kr cgl dk ifj'khyu fd;k vkSj Ádj.k dk xaHkhjrkiwoZd v/;;u djus ij ik;k fd xzke iapk;r nfj;kiqj esa 2015 esa pquko ds le; ljiap in ds dqy 09 mEehnokj pquko eSnku esa FksA buesa ls vHk;flag dks 186] dUgS;kyky nkaxh dks 104] cæhukFk nkaxh dks 31] ckyfd'ku nkaxh dks 187] ekaxhyky firk nsosUæ dks 80] jk/ks';ke firk dUgS;kyky dks 32] jkedSyk'k firk enuyky dks 142] f'koukjk;.k firk ckiwyky dks 68] fl}ukFk firk cuhflag dks 46 er ÁkIr gq;s gSA lokZf/kd er ckyfd'ku firk f'koflag nkaxh dks 187 er ÁkIr gq;s gSA rFkk ;kfpdkdrkZ vHk;flag dks 186 er ÁkIr gq;s gSA ;kfpdkdrkZ ,oa Áfr;kfpdkdrkZ ckyfd'ku ds chp dsoy 01 er dk vUrj gSA ;kfpdkdrkZ dk dguk gS fd mlds oS/k eri=ksa dks ihBklhu vf/kdkfj;ksa ds }kjk tkucw> dj fujLr fd;k x;k gSA ;fn iqu% erx.kuk djokbZ tkrh rks ;kfpdkdrkZ fot; gksxkA Ádj.k esa layXu nLrkostksa ,oa lk{;ksa ds vk/kkj ij ij esa bl fu"d"kZ ij igaqprk gaw fd ;kfpdkdrkZ ds }kjk ÁLrqr ;kfpdk vkosnu i= U;k;ksfpr gksus ls Lohdkj fd;k tkrk gSA cgqr de vFkkZr~ 01 er ls gkj thr gqbZ gSA vr% og U;kf;d n`f"V ls xzke iapk;r nfj;kiqj ds ernku dsUæ Øekad 186] 187 ij ljiap ij gsrq Mky x;s eri=ksa dh iquZerx.kuk fnukad 30-07-2015 dks U;k;ky;hu le; Ákr% 11 cts ls djus dk vkns'k ikfjr fd;k tkrk gSA iquZerx.kuk djokus gsrq ernku ny dk xBu fd;k tkosA erx.kuk ds le; i;kZIr iqfyl O;oLFkk gsrq Fkkuk ÁHkkjh NkihgsM+k dks fy[kk tkosA ihBklhu vf/kdkjh rglhynkj f[kyphiqj dks fy[kk tkos fd og xzke iapk;r nfj;kiqj ds ljiap in gsrq Mkys er i=ksa dks iquZerx.kuk gsrq erx.kuk ny dks miyC/k djkosaA ,oa le{k esa viuh mifLFkfr esa iquZerx.kuk djkosA iquZerx.kuk ds ckn fof/kor~ lokZf/kd er ÁkIrdrkZ vH;FkhZ dks fot; ?kksf"kr fd;k tkosxkA** The Sub Divisional Officer in the aforesaid paragraph has furnished details of the votes received by various candidates. It is certainly true that petitioner has received 187 votes and respondent No.1 has received 186 votes. The Sub Divisional Officer has observed that difference of votes between two candidates is only by one vote and in those circumstances, he has ordered recounting. No other reason has been assigned in the impugned order, however, the grounds raised by the respondent No.1 finds place in the impugned order. 8. The apex Court in the case of Smt. Ram Rati Vs. Saroj Devi and Others reported in, (1997) AIR SC 3072 has dealt with the issue of recounting and it was again an election under the Madhya Pradesh Panchayat Raj Adhiniyam Avam Gram Swaraj Adhiniyam, 1993. In paragraph No.6 of the aforesaid judgment, the apex Court has held as under:- "6. It is difficult to give acceptance to the contention that the respondent made an application to the Returning Officer and the Returning officer had not recounted. In the light of the mandatory language of Rule 76 of the Rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking recounting. If it is not done, then the Tribunal of the court is not empowered to direct recounting even after adduction of evidence and consideration of the alleged irregularities in the counting. The essential condition-precedent is that an application in writing should be made and the Returning Officer should pass an order with reasons in support thereof either to recall the order or otherwise, in writing. The fact that the officer had not passed any order in writing would indicate that the respondent had not made any application. Obviously, some subsequent had hot made any application. Obviously, some subsequent manipulation, as contended by the appellant, would have taken place, as a result of which the election petition was filed and the arguments were addressed for recounting. It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot or the court is required to order recount, that too on giving satisfactory grounds for recounting. It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot or the court is required to order recount, that too on giving satisfactory grounds for recounting. In view of the fact that the rule itself provides that, as soon as the result of the election is announced, an application in writing must be made at the first instance and the fact that no such application has been placed before us does indicate that no such application had been made on the date of the declaration of the result. The allegation of an application having been made, would bean afterthought. The Tribunal, therefore, has committed manifest error in directing recount." In light of the aforesaid judgment as in the present case also there was no application for recounting before the Returning Officer, the impugned order deserves to be quashed. 9. Learned counsel has placed reliance upon a judgment delivered in the case of Beliram Bhalaik Vs. Jai Behari Lal Khachi and Another reported in, (1975) AIR SC 283. In the aforesaid case, again the apex Court has dealt with the contingencies warranting recounting. In the aforesaid case, an application was preferred at a belated stage and rejection of the application which was preferred before the Returning Officer was the subject matter of challenge. The Court has upheld the election and the order passed by the Returning Officer. 10. In the case of Ganesh Ram Gayari Vs. Bagdiram and Others reported in, (2013) AIR M.P. 158 recounting of votes was ordered in absence of material facts and pleadings in a mechanical manner as has been done in the present case and order directing recounting of votes was quashed by this Court. Paragraph 14 of the aforesaid judgment reads as under:- "14. In the case of M.Chinnasamy Vs. K.C.Palanisamy reported in, (2004) 6 SCC 341 , the three judges Bench of the Apex Court held that the material facts and material particulars must be pleaded. Evidence at variance with pleadings is neither admissible nor permissible. Prima facie case that at such magnitude as to materially affect the election, must be pleaded. Onus to prove the said allegations is on the returned candidate. Merely making such allegations because of the margin of the votes between the returned candidate and the elected candidate is narrow, recount cannot be directed. Prima facie case that at such magnitude as to materially affect the election, must be pleaded. Onus to prove the said allegations is on the returned candidate. Merely making such allegations because of the margin of the votes between the returned candidate and the elected candidate is narrow, recount cannot be directed. It has further been held that where irregularities in counting of votes were alleged in the election petition, but in detail the names of polling stations, counting centers, tables round of counting of votes in relation to which alleged irregularities have taken place without disclosing the material facts, the appellant has not proved prima facie case of scrutiny of ballot papers. However, rejection has rightly been directed. In the case of Vidyawati Lilhare (Supra) and Birjha Bai (Supra) the Court has held similar preposition of law as thus:- "42. With respect we are not in a position to endorse the views taken therein in its entirety. Unfortunately, the decision of a larger Bench of this Court in Jagjit Singh (supra) had not been noticed therein. Apart from the clear legal position as laid down in several decisions, as noticed herein before, there cannot be any doubt or dispute that only because a recounting has been directed, it would be held to be sacrosanct to the effect that although in a given case the court may find such evidence to be at variance with the pleadings, the same must be taken into consideration. It is now well settled principle of law that evidence adduced beyond the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. The court at a later stage of the trial as also the appellate court having regard to the rule of pleadings would be entitled to reject the evidence where for there does not exist any pleading. 43. Furthermore, the High Court has not arrived at a positive finding as to how a prima facie case has been made out for issuing a direction for recounting. It is well settled that prima facie case must be made out for scrutiny and recounting of ballot papers where it is of the opinion that the errors are of such magnitude as to materially affect the election. [See M.R. Gopalakrishan vs. Thachady Prabhakaran, (1995) Supp2 SCC 101]. 44. It is well settled that prima facie case must be made out for scrutiny and recounting of ballot papers where it is of the opinion that the errors are of such magnitude as to materially affect the election. [See M.R. Gopalakrishan vs. Thachady Prabhakaran, (1995) Supp2 SCC 101]. 44. The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. [See Mahender Pratap vs. Krishan Pal and Others, (2003) 1 SCC 390 ]." 11. In the present case, issues were not framed by Election Tribunal and this Court in case of Ravindra Singh Vs. Sub Divisional Officer-cum-Prescribed Authority, Datia and Others, (2006) 3 MPLJ 570 in paragraph No.11 has held as under:- "11. As far as adverting into the merit with regard to recounting of votes and invalidation of votes are concerned, there is much force in the contention advanced by Shri Jain to the effect that these questions could be decided only after issues are framed and evidence is recorded. Election petition is required to be put to trial. Decision on the election petition without framing of issues and recording of evidence merely on the basis of reply submitted by the respondents to the election petition and after calling for comments from the Returning Officer was not proper. That being so it has to be held that on the merits also the election tribunal ha committed a grave error in deciding the question without framing of issues and recording of evidence." In light of the aforesaid judgment as the issues were not framed in the present case also, the impugned order passed is bad in law. 12. In the case of Birjha Bai Vs. State of M. P. and Others reported in, (2008) 2 MPLJ 591 , the Division Bench of this Court has held that small margin of victory itself is not a ground for ordering recount. This Court in paragraphs No. 8 and 9 of the aforesaid judgment has held as under:- "8. 12. In the case of Birjha Bai Vs. State of M. P. and Others reported in, (2008) 2 MPLJ 591 , the Division Bench of this Court has held that small margin of victory itself is not a ground for ordering recount. This Court in paragraphs No. 8 and 9 of the aforesaid judgment has held as under:- "8. On a perusal of the aforesaid paragraph it is quite clear that the election petitioner has really not stated about any irregularity or illegality in respect of the polling in booth No. 20. It is also worth noting that though a bald allegation had been made that she has filed an affidavit before the authority but nothing has been brought on record. It is well settled in law that before the election tribunal evidence can be adduced making a case for recount. The question that emerges for consideration is whether there is adequate pleadings and ample evidence to direct recount of votes. In this regard, we may refer with profit to the decision rendered in the case of Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan etc., (2006) 2 SCC 300 wherein the Apex Court after referring to the decisions rendered in the cases of Mahendra Pal v. Ram Dass Malanger, (2002) 3 SCC 457 , Chandrika Prasad Yadav v. State of Bihar, (2004) 6 SCC 331 and M. Chinnasamy v. K.C Palanisamy, (2004) 6 SCC 341 has expressed the opinion that an order for recount cannot be ordered as a matter of course unless the election petition had laid the foundation and there is clinching evidence to support the case set up by the election petitioner. An election petition seeking a recount must contain a concise statement of material facts and clear evidence in support of the facts pleaded. Small margin of victory by itself is not a ground for ordering recount. A roving and fishing inquiry is not permissible while directing recount of votes. The requirement of maintaining secrecy of ballot papers has to be kept in mind before directing a recount. The requisites for ordering re-count are a prima facie case and pleading of material facts detailing the irregularities in counting of votes. 9. Tested on the touchstone of the aforesaid enunciation of law, we are afraid, the pleadings and material brought on record do not meet the said requirement. The requisites for ordering re-count are a prima facie case and pleading of material facts detailing the irregularities in counting of votes. 9. Tested on the touchstone of the aforesaid enunciation of law, we are afraid, the pleadings and material brought on record do not meet the said requirement. What has been pleaded with regard to polling booth No. 20 does not really specifically state about the irregularities committed in the counting. In the absence of absence of any specific pleading, there cannot be a direction for recount. Hence we concur with the view taken by the learned single Judge. However, the costs imposed by the learned single Judge is made easy." In light of the aforesaid judgment, as there was a only difference by only one vote, it cannot a ground for recounting and therefore, impugned order deserves to be quashed. 13. The Chhattisgarh High Court in the case of Cheti Bai Yadav Vs. Smt. Bhupeshwari Sahu and Others passed in WPC No.490/2016 on 13/07/2016 has held that only remedy available is to file an Election Petition. In the aforesaid case the Chhattisgarh High Court was dealing with Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 and similar Rules are in existence in the State of Madhya Pradesh. 14. This Court has carefully gone through the Rules also as well as Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and is of the opinion that the only remedy available to the petitioner is to file a Writ Petition against the order of the Tribunal and same has been done by the petitioner. Merely because he has approached the Collector or Commissioner, it does not mean this Court is jurisdictionally incompetent to decide the validity of the order passed by the respondent No.11 Sub Divisional Officer dated 28/07/2015. 15. In light of the aforesaid discussion, this Court of the opinion that the impugned order has to pave the path of extinction and is accordingly quashed. No order as to costs. Certified copy as per rules.