M.L. Visa, J.
1. This is an order on the application filed on behalf of respondent No. 1 raising preliminary objection regarding the maintainability of election petition and reply thereto filed by the election petitioner.
2. The case of respondent No. 1 is that the copy of election petition which has been served on him is not true copy of election petition and pages concerning verification and affidavit have not been served on him and, therefore, the election petition is fit to be dismissed under Section 86(1) of the Representation of the Peoples Act, 1951 (hereinafter referred to as the Act) for non-compliance of Section 81(3) of the Act. The another objection of respondent No. 1 is that the petitioner in his election petition has made reckless and imaginary allegations of commission of irregularities and illegalities in the counting of ballot papers but he has failed to furnish material facts and relevant particulars regarding these allegations and there is no contemporaneous document to support the baseless and imaginary allegations of commission of irregularities and illegalities in the counting of ballot papers and merely giving some figures regarding improper acceptance of some invalid ballot papers as valid ballot papers in favour of
returned candidate cannot be said to be giving material facts and the entire election petition simply makes allegation for improper acceptance of invalid ballot papers but does not contain any material fact supporting these allegations and in this view of the matter the election petition is liable to be dismissed summarily under Order 7, Rule 11 of the Code of Civil Procedure (in short, CPC) read with Section 83 of the Act. According to respondent No. 1 he has already raised this objection in his written statement and this Court while framing issues has framed issue regarding maintainability of election petition and, therefore, this issue be decided first before proceeding further. Respondent No. 1 has prayed for dismissing the election petition on the ground of maintainability.
3. The petitioner in his reply to the petition of respondent No. 1 challenging the maintainability of election petition has stated that he had filed the election petition accompanying additional true copies of petition for service as the numbers of respondents (sic) and true copies for service to respondent No. 1 were returned unserved by the process server/postal peon with endorsement that respondent No. 1 refused to accept the same and respondent No. 1 appeared only after publication of notice In the newspaper and respondent No. 1 has not stated anywhere that from where he obtained the copy of election petition. Regarding objection of respondent No. 1 as to material facts the petitioner has stated that he has already given material facts showing irregularities committed in the counting of ballot papers and not only the figures of numbers of illegally counted ballot papers have been given but details of rounds of counting of ballot papers and booth numbers have also been mentioned in the petition and question of contemporaneous evidence raised by respondent No. 1 in this petition will come only when evidence will be recorded by the Court and absence of giving details of evidence in the petition cannot be a ground for dismissing the election petition under Order 7. Rule 11, CPC. The petitioner has prayed for rejecting the prayer of respondent No. 1 for dismissing the election petition at preliminary stage.
4. During the course of argument the learned counsel of respondent No. 1 did not press the objection raised by respondent
No. 1 regarding non-supply of true copies of election petition and fairly withdrawn this objection terminating it as gallant retreat. Now the only allegation remains for consideration as alleged by respondent No. 1 is that the petitioner has not given full material facts as required under Section 83(1)(a) of the Act in the election petition which has been filed with the allegation of irregularities committed in the counting of ballot papers and in which prayer for recounting of ballot papers has been made.
5. Learned counsel appearing on behalf of respondent No. 1 relying upon a decision of the Apex Court in the case of Loknath v. Birendra Kumar, AIR 1974 SC 505, has submitted that if in an election petition no relief can be granted the Court should not engage itself in deciding it because in that case, it will amount to trying an academic issue and in such circumstance the Court should dismiss the election petition on account of its being only academic and meaningless. In the case which has been relied upon by the learned Counsel of respondent No. 1 election of a successful candidate to the Orissa Legislative Assembly was challenged on the ground that elected candidate was disqualified to be a candidate on the date of nomination (sic) was pending. The election petition was dismissed by the High Court and, thereafter, the election petitioner preferred appeal before the Apex Court and while appeal was pending the Orissa Legislative Assembly was dissolved. In that situation the Apex Court after holding that even if it is found that respondent was disqualified for filing nomination even then in view of dissolution of Orissa Legislative Assembly the finding will have no practical consequences and it will neither benefit the appellant nor any way affect the respondent in any practical sense and it would be wholly academic to consider whether respondent was disqualified on the date of nomination. Here it is not the case of respondent No. 1 that Bihar Legislative Assembly of which respondent No. 1 has been declared as elected member has been dissolved. I, therefore, find that this decision is not applicable to the facts of the present case.
6. Learned counsel of respondent No. 1 has argued that if a contesting candidate or his election agent or any of his counting agent did not file a petition for recount as required under Rule 63 of the Conduct of
Election Rules, 1961 (hereinafter referred to as the Rules), this Court will not allow recount of ballot papers because such allegation will be considered an afterthought and untrue. According to him, the petitioner in his election petition has simply stated that he filed a petition for recount before the Returning Officer but the same was not entertained but the petitioner has not annexed copy of such petition nor he has annexed copy of any fax message sent to Election Commission of India in this regard. It has been argued on behalf of respondent No. 1 relying upon a decision of the Apex Court in the case of Ram Rati (Smt.) v. Saroj Devi (1997) 6 SCC 66 : (AIR 1997 SC 3072) that by not annexing the copy of petition said to have been filed by petitioner for recount under Rule 63 of the Rules it will be presumed that no such application was ever filed and in absence of such application order for recount of ballot papers cannot be passed and statement in the election petition that such petition was tiled before the Returning Officer but the same was not entertained is an afterthought one. The case relied upon by the learned counsel for respondent No. 1 was regarding filing of a petition for recount of ballot papers under M.P. Panchayat Rules, 1994 and no such application was placed on record till the stage of hearing of appeal by the Apex Court. It was held that because no such application was placed before the Apex Court that indicated that no such application had been made on the date of declaration of result and the allegation of application having been made was an afterthought. In view of these facts, the order of Tribunal and High Court for recounting was set aside.
7. Learned counsel of petitioner has submitted that the petitioner in para 17 of his election petition has clearly stated that after conclusion of counting he filed a petition under Rule 63 of the Rules for recounting of ballot papers but the same was not entertained by the Returning Officer and the election petition has been duly verified and affidavited by the petitioner. About not annexing copy of such petition with the election petition he has argued that petitioner is not required to place evidence which he has to adduce during trial along with the election petition because Section 83(1) of the Act simply requires that an election petition shall contain concise statement of material facts on which petitioner relies and it no-
where states that election petition should also contain the evidence which the election petitioner is to give during trial.
8. The submission made on behalf of the respondent No. 1 that because copy of petition said to have been filed by petitioner under Rule 63 of the Rules before Returning Officer has not been annexed with the election petition, it itself shows that no such petition was filed, does not appear to be sound because the case of petitioner is that after counting of ballot papers he filed such petition before the Returning Officer but that petition was not entertained. Had the petitioner annexed the copy of such petition with the election petition that would not have itself proved that he, in fact, filed such petition and that was not entertained. In that case also it was for the petitioner to prove by adducing evidence that in fact, such petition was filed immediately after the counting of ballot papers and it was not entertained. The petitioner has not entered the stage of adducing evidence on his behalf. At present there is statement of petitioner that he filed a petition under Rule 63 of the Rules before the Returning Officer which was not entertained and petitioner is yet to adduce evidence in support of his case. Learned counsel appearing on behalf of the petitioner has argued that the Returning Officer is yet to be examined as a witness in this case and before recording his evidence it cannot be held that no petition under Rule 63 of the Rules was presented before him and he refused to entertain the same. I find sufficient force in his submission. Whether any petition under Rule 63 of the Rules by the petitioner was presented before the Returning Officer or not can be decided only after giving opportunity to petitioner to prove the same and after considering the evidence on record.
9. The next objection of respondent No. 1 is that petitioner has not given material facts in the election petition. From the perusal of election petition, I find that in para 16 petitioner has given the details of irregularities and illegalities committed in the counting. As per this paragraph these irregularities and illegalities are in respect of counting of 390 ballot papers having no signature of Presiding Officer counted in favour of returned candidate and the details of such ballot papers --round-wise and booth-wise, number of ballot papers found
in the ballot boxes with counterfoils, number of ballot papers found in the bunches and their booth numbers have been given and details of irregularities committed while preparing result sheets giving round number, booth number, total votes polled shown in the result sheet, actual figures of ballot papers and differences have also been given.
10. The learned counsel of respondent No. 1 has further argued that the Apex Court in a number of decisions has held that inspection of ballot papers should be allowed only when the Court is fully satisfied otherwise no inspection of ballot papers can be ordered. He has relied upon a number of decisions of the Apex Court, reported in AIR 1964 SC 1249, AIR 1966 SC 773, AIR 1973 SC 215, AIR 1975 SC 403. AIR 1975 SC 2117 and AIR 1984 SC 396.
11. In the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, it was held that 'But an order for Inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.' In the present case petitioner has given the details of irregularities committed in the counting. It is not that he has merely alleged that he suspects or believes that there has been an improper reception, refusal or rejection of votes. In the case of Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773, it was held that 'vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted, would not serve the purpose which Sec. 83(1)(a) has in mind.......... care must
be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void.' The Court further observed that 'no hard and fast rule can be laid down in this matter; for, attempt to lay down such a rule would be inexpedient and unreason-
able.' In the case of Smt. Sumitra Devi v.Shri Sheo Shanker Prasad Yadav, AIR 1973 SC 215, after considering the evidence of witnesses High Court found that allegations in election petition were vague and that the evidence adduced to prove them was unreliable and thereafter dismissed the election petition. In the present case, as stated above, the election petitioner is yet to adduce evidence. In the case of Chanda Singh v. Choudhary Shiv Ram Verma, AIR 1975 SC 403 : (1975) 4 SCC 393 the appeal was dismissed after considering the evidence including the evidence of Returning Officer adduced during the trial of election petition. In the case of Bhabhi v. Sheo Govind, AIR 1975 SC 2117 : (1975) SCR 202 some conditions under which a Court can grant sample inspection of ballot papers have been set out which are as follows :
'(1). That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and
(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.'
It further appears that the case was remanded to High Court for disposing of the application for inspection of ballot papers in the light of aforesaid observation after finding that solitary circumstance that the appellant had succeeded by a narrow mar-
gin weighed with the High Court for ordering sample inspection. In the case of Hari Ram v. Hira Singh, AIR 1984 SC 396 the main ground put forward by respondent election petitioner in the application for inspection of marked electoral rolls and counter foils was that there were a number of dead persons for whom also votes were cast but despite this allegation no details and particulars were given nor was it mentioned whether the polling agent of respondent had made any note of the fact that votes were actually cast for dead persons and in that view of the matter the appeal was allowed.
12. On the other hand learned Counsel for the petitioner has submitted that according to the provisions of Section 83(1)(a) of the Act an election petition requires to contain concise statement of material facts on which the petitioner relies and no where in this section it has been stated that an election petition should also contain the evidence by which material facts disclosed in the election petition have to be proved and petitioner in his petition has given the details of irregularities committed in the counting of ballot papers such as after the end of 15th round of counting armed forces entered the counting hall and asked the petitioner, his election agent and other contesting candidates to go out of counting hall, oral and written protest filed by the petitioner and his election agent in the counting of ballot papers were not entertained by the Returning Officer, counting supervisor and counting assistants and in para 16 he has given the number of votes giving booth numbers and round numbers of their counting which were illegally counted in favour of returned candidate and sub para 4 of this para also contains the details of mistakes committed while preparing result sheet in tabular form giving round number, booth number and number of votes and in this view of the matter it cannot be said that the election petition lacks of concise statement of material facts and it cannot be rejected under Order 7, Rule 11, CPC. He has relied upon the decision of Apex Court in the case of Ashwini Kumar Sharma v. Yaduvansh Singh, AIR 1998 SC 337. In this case it has been held that in an election petition in which there is no allegation of any corrupt practices the only relevant provision would be Section 83(l}(a) of the Act which requires the petition to contain a concise statement of mate-
rial facts on which the petitioner relies. In that case the appellant was election petitioner and he in his election petition had alleged that on certain counting tables his ballot papers were mixed up with the votes of other candidates and he had given the number of such votes which were not counted in his favour and were wrongly counted in favour of respondent No. 9,. He had given detailed tables showing the wrong counting of votes cast as the votes of respondent No. 9, on a particular round of counting and onwards ballot papers of two different colours were seen but despite his complaint to Returning Officer about the different colours of ballot papers at the counting table no proper attention was paid to his complaint, his counting agents had not been given reasonable opportunity of inspecting ballot papers before they were rejected and in such circumstance it was held that election petition cannot be rejected at a preliminary stage on the ground that it does not contain concise statement of material facts. He has also relied upon a decision of the Apex Court in the case of H. D. Revanna v. G. Puttaswamy Gowda, AIR 1999 SC 768. He has argued that there is clear distinction between the material facts and particulars and an election petition cannot be dismissed in limine for want of particulars and if the court finds that particulars are necessary, opportunity should be given to the petitioner, to amend the petition including the particulars. According to him, the Apex Court in an another case of D. Ramchandran v. R.V. Janaktraman, AIR 1999 SC 1128 has held that a petition under Order 7, Rule 11, CPC can be rejected only when it does not disclose cause of action and if an election petition discloses the cause of action which if rebutted could void the election the provisions of Order 7, Rule 11. CPC cannot be invoked. Another decision relied upon by him is the decision of the Apex Court In the case of Mahendra Pal v. Ram Dass Malanger (2000) 1 SCC 261 : (AIR 2000 SC 16). He has argued that non mention of serial numbers of improperly counted ballot papers will not be a ground to non-suit the election petitioner at the threshold and pleadings have to be read as a whole to ascertain their true import and it has also been held that 'whether or not a case is eventually made out to justify recount/inspection would depend upon the
evidence led by the parties in support of their pleadings at the trial.'
13. Considering the submissions made on behalf of both the parties I find that the decisions which have been relied upon by the learned Counsel for respondent No. 1 were almost in cases which were decided after full-fledged trial meaning thereby that after considering the evidence adduced by the parties. These decisions are not in respect of any case which was decided at the preliminary stage on the point of its maintainability. 1 therefore find that the contention of respondent No. 1 that material facts have not been stated in the election petition and as such election petition does not disclose any cause of action and its liable to be dismissed under Order 7, Rule 11, CPC is without any merit. I find no ground for dismissing the election petition at this preliminary stage.
14. In the result, prayer of respondent No. 1 for dismissing the election petition at this stage is rejected.