PAYYAVULA KESHAV V/S Y. VISWESWARA REDDY & OTHERS

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PAYYAVULA KESHAV V/S Y. VISWESWARA REDDY & OTHERS, decided on Friday, September 3, 2010.
[ In the High Court of Andhra Pradesh, Application No.876 of 2009 in Election Petition No.5 of 2009. ] 03/09/2010
Judge(s) : G. BHAVANI PRASAD
Advocate(s) : B. Adinarayana Rao. R1 L. Prabhakar Reddy.
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judgment - The application is for striking off paragraphs 4 and 5 of the election petition as not disclosing the material facts and cause of action and consequently reject the election petition as not disclosing any cause of action under Section 87 of the Representation of the People Act 1951 read with Order VI Rule 16 and Order VII Rule 11(a) of the Code of Civil Procedure.The election petitioner filed the election petition No.5 of 2009 to call for records and material for inspection and scrutiny of the votes polled at 268-Uravakonda Assembly Constituency of Anantapur District to recount the votes polled including postal ballot votes to set aside the election of the returned candidate declaring it to be void and to declare the election petitioner as duly elected. The election petitioner contended that elections to the Andhra Pradesh Legislative Assembly and the Lok Sabha were simultaneously conducted in Andhra Pradesh in two phases and No.268-Uravakonda Assembly Constituency went to poll on 23-04-2009. The election petitioner contested the election as a candidate of Indian National Congress with the symbol ‘hand’ and the 1st respondent contested as a candidate of Telugu Desam with the symbol ‘cycle’. The other contesting candidates with their respective symbols are respondents 4 to 13. During the counting on 16-05-2009 many irregularities were alleged to have been committed firstly by taking up the counting of votes polled on electronic voting machines without first completing the counting of postal ballots as required under Rule 54-A of the Conduct of Elections Rules 1961 in spite of objections. The votes secured by the candidates by way of postal ballots were declared by the Returning Officer only during the 14th round of counting of votes polled in electronic voting machines. The counting agents were hence confused and the Returning Officer did not verify the authenticity of the identification made by the Gazetted Officer on the postal ballots polled in favour of the returned candidate and about 200 invalid postal ballots were counted in favour of the returned candidate in spite of objections as most of the postal ballots were attested on the same day and the Gazetted rank of Grade-II Head Master who attested the postal ballots was questioned but not decided by the Returning Officer. About 50 postal ballots cast in favour of the election petitioner were claimed to have been illegally deleted and added to the returned candidate and about 10 valid postal ballots in favour of the election petitioner were claimed to have been wrongly invalidated and rejected. About 5 postal ballots with writings on them were alleged to have been wrongly added to the returned candidate instead of rejecting them and if the counting had been fair the election petitioner would have been elected having secured majority of votes in rounds 1 to 17 out of total 18 rounds. This had materially affected the result of the election and a recount will bring the irregularities to light. The election petitioner claimed to have submitted a written request at 3.30 P.M. on 16-05-2009 before declaration of the result for a recount in view of the narrow margin. But the Returning Officer declared the result as if the returned candidate was elected by a margin of 229 votes. The signatures of the election agent were not obtained as required and no orders were passed on the application for recount. The election petitioner claimed to have represented to the higher election authorities for a recount. The election petitioner complained that only on account of the mischief committed by the Returning Officer with regard to counting of postal ballot votes the result was materially affected and a CD of video recording of counting process was also not furnished in spite of a written request in the letter dated 23-05-2009. Hence the election petition.Only the returned candidate/respondent No.1 and the Returning Officer entered appearance in the election petition and the returned candidate filed this application contending that Rule 54-A of the Conduct of Elections Rules 1961 contains no further requirement that until completion of counting of postal ballots the Returning Officer is debarred from counting of the votes from the electronic voting machines. The rule either expressly or impliedly does not contain any such prohibition and hence paragraph 4 disclosing neither any cause of action nor any triable issue has to be struck off. No material fact was given in support of the alleged irregularity in counting about 200 invalid postal ballots and the name or other material particulars of the Gazetted Officer were not stated. The statements about the postal ballots were too vague and general without any particulars and the figures were only specified to match the difference of votes between the election petitioner and the returned candidate. Hence paragraph 5 containing these allegations also does not constitute any cause of action and is liable to be struck off. Irregularities in counting alleged in paragraphs 4 and 5 alone form the whole basis for the election petition and if those paragraphs are struck off the remaining contents of the election petition do not constitute any cause of action for maintaining an election petition and in the absence of any triable issue the election petition has to be rejected. The representations referred to by the election petitioner never referred to the allegations made in the election petition and hence the application.The election petitioner filed a counter-affidavit contending that specific irregularities during counting were pointed out in paragraphs 4 and 5 and even the other paragraphs and the entire averments in the election petition constitute the cause of action to be tried and decided. Paragraphs 4 and 5 contain specific allegations and the reference to the attesting Gazetted Officer has to be read together with the other allegations. Material facts and material particulars are evident and clear from the pleadings in the election petition and disclose a complete cause of action and the allegations in the election petition are matters of evidence to be decided after a full-fledged trial. A contested trial causes no prejudice to the returned candidate and the election petition has to be allowed to proceed to uphold the purity of elections as the basic requirement of democratic process. Hence the election petitioner desired the petition to be dismissed.Sri B. Adinarayana Rao learned counsel for the returned candidate and Sri L. Prabhakar Reddy learned counsel for the election petitioner are heard at length and both the learned counsel referred to various precedents which will be referred to in due course. Sri Adinarayana Rao also filed copies of G.O. Ms. No.316 Education (Serv.I-1) Department dated 19-09-1992 and G.O. Ms. No.308 Education (Ser.I-1) Department dated 14-09-1992 to show that the Head Master in question was conferred Gazetted status under the said Government Orders.The points for consideration are:1. Whether paragraphs 4 and 5 of the election petition are liable to be struck off for the reasons claimed by the returned candidate ?2. If so whether the election petition is liable to be rejected/dismissed ?Points 1 and 2:The Representation of the People Act 1951 provides in Chapter II under Part VI for presentation of election petitions to High Court and Section 83(1)(a) mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies and Section 83(1)(b) prescribes that the election petition shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Section 87 applies the procedure applicable under the Code of Civil Procedure 1908 to the trial of suits as nearly as may be and the provisions of the Indian Evidence Act 1872 to the trial of an election petition in all respects subject to the provisions of the Representation of the People Act 1951 and any rules made thereunder. Improper reception refusal or rejection of any vote or the reception of any vote which is void or any non-compliance with the provisions of the Constitution or of the Representation of the People Act 1951 or of any rules or orders made under that Act if the result of the election in favour of the returned candidate has been materially affected thereby lead to the election being declared to be void as per Section 100 and if the election petitioner can be considered to have received a majority of valid votes thereby he may be declared to have been duly elected as per Section 101.While this is the statutory background it should be noted that no request has been made by the election petitioner so far to amend or amplify the particulars of any allegations made in the election petition for ensuring a fair and effective trial of the election petition and therefore this application has to be considered on the allegations in the election petition as they are. The returned candidate and the Returning Officer who alone entered appearance in the election petition have not yet filed their written statements.Coming to the precedents relied on by Sri B. Adinarayana Rao learned counsel for the returned candidate in Hari Shanker Jain v. Sonia Gandhi (2001) 8 Supreme Court Cases 233 the Apex Court pointed out that by a series of decisions of the Supreme Court it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made or in other words they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure 1908. The expression “cause of action” was stated to mean compendiously every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of Court and omission of a single material fact leads to an incomplete cause of action making the statement of claim bad. Failure to plead “material facts” was stated to be fatal to the election petition and no amendment of the pleadings is stated to be permissible to introduce such material facts after the time-limit prescribed for filing the election petition. The Apex Court stated that it is the duty of the Court to examine irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action and to enable a Court to reject a plaint on the ground that it does not disclose a cause of action it should look at the plaint and nothing else. It was also observed that Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence and no amount of evidence can cure basic defect in the pleadings.In Harkirat Singh v. Amrinder Singh (2005) 13 Supreme Court Cases 511 the Supreme Court stated that it is clear that an election petition must contain a concise statement of “material facts” on which the petitioner relies and it should also contain “full particulars” of any corrupt practice that the petitioner alleges including a full statement of names of the parties and the date and place of commission in relation to the alleged corrupt practice. The material facts were stated to be those facts upon which the plaintiff’s cause of action or the defendant’s defence depends and what particulars could be “material facts” would depend upon the facts of each case and no rule of universal application can be laid down. While noting the distinction between the material facts and particulars it was pointed out 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 and “particulars” on the other hand are details in support of material facts pleaded by the party which amplify refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full more clear and more informative. Referring to the earlier precedents from the Supreme Court it was emphasized that it is absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts which must be stated in the pleadings of the party.To a similar effect is the decision in Jaipal Singh v. Sumitra Mahajan and another (2004) 4 Supreme Court Cases 522 in which it was pointed out that an election petition is a matter of statutory right and material facts are primary facts disclosing cause of action which have got to be pleaded with the failure to do so resulting in rejection of an election petition though the defect in material particulars can be cured at a later stage by amendment. The earlier precedents about the distinction between the material facts and particulars were referred to.M.P. Keshava Murthy v. Narayanaswamy and others AIR 2001 Karnataka 77is about an election petition alleging irregularities in the counting process and the election was not challenged on the ground of any corrupt practice. It was found that the contesting candidates including the election petitioner and the election agents were present throughout at the counting tables supervising the counting process and the allegations in that regard were found to be totally vague and evasive. It was observed—“In fact on going through all the averments and allegations made in paragraph 8 of the petition as a whole I find that the material facts supporting them such as the exact number of polled ballot papers alleged to be improperly received refused or rejected; or the exact number of alleged void votes received as valid votes at the said counting process; the actual number of counting table at which particular number of such votes were either received refused or rejected; the serial number of each of such ballot papers; the name of the particular counting agent who was present at such counting table witnessing and noting down the particulars of such ballot paper/papers; the name/ names of concerned Counting Supervisor/ Supervisors who misconducted himself/themselves; the name/ names of the member/members of the counting staff who unauthorisedly dealt with any polled ballot papers while counting them; the number of the round of counting at which such particular ballot paper/papers were so counted; the details of objections if any made to the counting staff by the candidate/election agent/counting agent at the particular counting table and the details of notes if any made and kept by the particular counting agent of the petitioner in respect of such ballot paper/papers are not at all pleaded in the petition. All these particulars are the essential particulars which constitute the “material facts” to support the petition allegations and none of such facts is pleaded therein by the petitioner. What further aggravates the matter is the fact as pointed out earlier that none of the allegations made in the petition are specifically stated by the petitioner in his said complaint letter at document No.2 which was given by him to R-5 at the earliest opportunity probably when the counting process was nearing conclusion.”With reference to Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure it was hence concluded that no ground under Section 100(1)(d) of the Representation of the People Act 1951 exists in the election petition to maintain the petition and consequently the petition to strike off the relevant paragraphs was allowed and the election petition was dismissed.In Azhar Hussain v. Rajiv Gandhi AIR 1986 Supreme Court 1253(1) the Supreme Court reiterated that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. If the mandatory requirements enjoined by Section 83 of the Representation of the People Act 1951 to incorporate the material facts in the election petition are not complied with appropriate orders in exercise of powers under the Code of Civil Procedure can be passed and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). The Supreme Court rejected the contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording the evidence and opined that there is greater reason why in a democratic set up in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation the controversy is set at rest at the earliest if the facts of the case and the law so warrant. On facts it was found that the pleading did not spell out the cause of action and failed to mention the material facts and material particulars.Ramji Pandey v. Vikramaditya and others AIR 1987 Allahabad 92dealt with an election petition which questioned the result of an election also on the ground of breach of the statutory rules in the matter of counting of ballot papers thereby affecting the result materially. It was found that the averments did not constitute an adequate statement of the material facts for purposes of Section 83(1)(a) and the petitioner was held to be not entitled to indulge in a kind of fishing enquiry in the absence of requisite foundation laid for the claim. Mere possibility of there being an error cannot be a ground for recount.In Ashwani Kumar Sharma v. Yeduvansh Singh and others AIR 1998 Supreme Court 337 the election petition alleged the counting of ballot papers to be unfair improper and not in accordance with law and on facts it was observed that the election petition cannot be considered as not disclosing any cause of action or not containing a concise statement of material facts. However in that case the election petition clearly alleged non-compliance with the specific rules and instructions specific irregularities on specified counting tables in spite of objections by the counting agents contemporaneously orally and in writing and by fax messages and complaining to higher election officials.Sri L. Prabhakar Reddy learned counsel for the election petitioner relied on D. Ramachandran v. R.V. Janakiraman (1999) 3 Supreme Court Cases 267 wherein the Apex Court was dealing with a similar application as herein and it was pointed out that in all cases of preliminary objection the test is to see whether any of the reliefs prayed for could be granted if the averments made in the petition are proved to be true and for that purpose the averments in the election petition should be assumed to be true and correct to find out whether they disclose a cause of action or a triable issue. The facts cannot be probed into on the basis of the controversy raised in the counter.V.S. Achuthanandan v. P.J. Francis and another (1999) 3 Supreme Court Cases 737is a case where the Apex Court found that the trial Judge equated the cause of action with proof in spite of the election petition not suffering from lack of disclosure of material facts. Observing that the absence of material particulars if any could be rectified by resort to amendment of the pleadings in terms of Order VI Rule 17 of the Code of Civil procedure the Apex Court held that the trial Judge had taken a hypertechnical view in the matter which if approved would frustrate the purpose of purity of elections. The Apex Court therefore afforded an opportunity to the election petitioner to prove the existence of circumstances prima facie justifying the existence of grounds requiring recount.In Umesh Challiyill v. K.P. Rajendran (2008) 11 Supreme Court Cases 740 the Supreme Court laid down that Courts have to view whether the objections go to the root of the matter or they are only cosmetic in nature and though an election petition has to be seriously construed it should not be summarily dismissed on small breaches of procedure which could have been rectified.The election petition herein contained the grounds of challenge to the declaration of the returned candidate as elected only in paragraphs 4 and 5 of the election petition while the other paragraphs in the election petition are either introductory or consequential to the allegations made in paragaraphs 4 and 5 of the election petition. The reliefs sought for in the election petition are essentially and solely based on the averments made in paragraphs 4 and 5 of the election petition which are repeated verbatim in paras 5 and 6 of the affidavit in support of the election petition.Annexure-II annexed to the election petition a letter to the Returning Officer from the election petitioner referred to a doubt regarding postal ballots without any elaboration. Annexure-III addressed to the Chief Election Commissioner only referred to the absence of any action on Annexure-II. Annexure-IV addressed to the District Election Officer referred to several doubts in respect of postal ballots which were allegedly brought to the notice of the Returning Officer who did not even receive the representation regarding the same. Annexure-VI shows the returned candidate to have secured 341 votes and the election petitioner to have received 256 votes out of the postal ballots while two other candidates received 4 and 1 votes out of the postal ballots respectively. In Annexure-IX the election petitioner represented on 27-05-2009 about the authenticity of the identification made by the same Gazetted Officer on the same day and signing of some of the ballot papers by the voters. The said letter to the Chief Election Officer from the election petitioner raised specific objections about postal ballots for the first time and it made no reference to the Gazetted status of the attesting Officer or the number of postal ballots doubted with reference to such attestation or any illegal deletion of votes of the election petitioner or any illegal addition of votes to the returned candidate or about any illegal invalidation of any postal ballots or the number of postal ballots on which any writings were seen as later alleged in the election petition and the supporting affidavit. It should also be noted that the earlier allegations made in the Annexures to the election petition about the votes polled in electronic voting machines were not reiterated in the election petition or the affidavit. Annexure-X is an application from the election petitioner dated 29-06-2009 to the District Educational Officer enquiring about the competence of a named Grade-II Head Master to attest the postal ballots as a Gazetted Officer.The election petition and the affidavit in paras 4 and 5 and paras 5 and 6 respectively referred to the irregularities connected with the postal ballots which are sought to be claimed as vitiating the result of the election which was materially affected by such irregularities.While the doubts expressed about the postal ballots on 16-05-2009 the date of counting crystallized into some specifics only in the representation to the Chief Election Officer dated 27-05-2009 that too only about the authenticity of identification of substantial part of postal ballots polled in favour of the returned candidate by one single Gazetted Officer who attested them on the same day and about some ballot papers being signed by the voters Annexure-X letter from the election petitioner to the District Educational Officer referring to one C.Y. Swamy School Assistant promoted as Grade-II Head Master recently being qualified or not to attest the postal ballots clearly implied the said C.Y. Swamy Grade-II Head Master to be the one single Gazetted Officer referred to in Annexure-IX. The election petition in para 5 is referring to about 200 invalid postal ballots being counted in favour of the returned candidate improperly in spite of objections and the Returning Officer not verifying the authenticity of the identification and attestation of the postal ballots on the same day by a Grade-II Head Master which indicated the said objection to be with reference to such identification and attestation in respect of about 200 invalid postal ballots. Para 6 of the affidavit in support of the election petition is identical.While thus it is alleged that a Grade-II Head Master made the identification and attestation on the same day in respect of about 200 invalid postal ballots counted in favour of the returned candidate and that Head Master was identified in Annexure-X the copies of G.O.Ms. No.316 Education (Serv.I-1) Department dated 19-09-1992 and G.O.Ms. No.308 Education (Ser.I-1) Department dated 14-09-1992 show that under the second G.O. Ms. posts of Head Masters in Government Secondary schools in the scale of 1550–3050 were declared as Gazetted and consequential amendment to the relevant service rules and Presidential Orders were directed to be made and under the G.O. Ms. first cited the posts of Head Masters existing in the secondary schools under the control of Panchayat Raj Bodies in the scale of 1550–3050 also were declared as Gazetted with a further direction for necessary amendments to the relevant service rules and the Presidential Orders. Both the Government Orders were given immediate effect.Section 57 of the Indian Evidence Act 1872 enables the Court to take judicial notice of the titles and functions of the persons filling for the time being any public office in any State if their appointment is notified in any Official Gazette under clause (7) and Section 56 makes such facts judicially noticeable not necessary to be proved. Even if the two Government Orders in question do not strictly fall within the ambit of Sections 56 and 57 the two Government Orders are public documents within the meaning of Section 74 of the Indian Evidence Act 1872. The proof of public documents provided by Sections 77 and 78 and the presumptions as to such documents might not have been strictly complied with but the authenticity and correctness of the copies of the two Government Orders are not questioned by any contrary material and there is no reason to presume that the learned counsel for the returned candidate would have produced such copies without duly verifying the correctness of such copies. The two Government Orders clearly show that the posts of Head Masters in Government Secondary schools and Secondary schools under the control of Panchayat Raj Bodies in the State of Andhra Pradesh were declared as Gazetted with immediate effect from 14-09-1992 and 19-09-1992 respectively and there is neither an allegation nor material to show that such Gazetted status was withdrawn at any subsequent point of time. Conferment of such status by the administrative orders is within the executive power of the State notwithstanding whether any consequential amendments were effected in the relevant service rules and the Presidential Orders as directed in the said Government Orders or not. While it may even be presumed that such consequential amendments would have been effected in due course since then the reference to the scale of pay of 1550–3050 is only a reference to the scale of pay which such posts carry with them.Therefore the two Government Orders relied on by the returned candidate read with the identification of the person who attested the postal ballots in question by Annexure-X show that Sri C.V. Swamy Grade-II Head Master of Zilla Parishad High School Bukkaraya Samudram Anantapur District was qualified and competent as a Gazetted Officer to attest the postal ballots. In the light of the two Government Orders therefore the doubts and objections raised against about 200 postal ballots attested by the Grade-II Head Master are ex facie untenable and unsustainable.It is to be further noted that the election petition and the affidavit themselves do not identify the said Gazetted Officer or person who attested claiming to be a Gazetted Officer or any other material facts or particulars relating to the said about 200 invalid postal ballots allegedly vitiated with reference to identification and attestation. Similarly the statements about illegal deletion from the votes cast in favour of the election petitioner and the illegal addition to the votes cast in favour of the returned candidate in respect of about 50 postal ballots or the alleged wrong declaration of about 10 valid postal ballots polled in favour of the election petitioner as invalid and the writings on about 5 postal ballots wrongly counted in favour of the returned candidate are ex facie too vague and general without any material particulars. The said averments in paragraph 5 of the election petition and paragraph 6 of the affidavit in support of the election petition appear an attempt to cover more or less the margin by which the returned candidate was declared elected as against the election petitioner.Even otherwise if about 200 postal ballots are sought to be claimed as invalid due to any defect in the identification and attestation on the ground of incapacity of the person who so identified and attested and if the person who identified and attested the said votes is undoubtedly found to be a Gazetted Officer competent to so act with reference to the specific Government Orders the remaining objections about 65 votes on three different grounds even if true obviously did not materially affect the result of the election. Any improper reception or refusal or rejection of any vote or reception of any vote which is void can lead to declaration of the election of the returned candidate as void only if the result of the election in so far as it concerns a returned candidate has been materially affected by the same as seen from Section 100(1)(d)(iii).Therefore on the allegations made in para 5 of the election petition and para 6 of the affidavit in support thereof considered together with the Annexures to the election petition and the two Government Orders in question it is evident that not only the allegations concerning the reception or rejection of the postal ballots are too vague and general and cannot be considered to be stating precisely the material facts and material particulars in that regard as laid down in the various precedents cited but also the said allegations cannot be considered to have probablised any irregularities in the reception or rejection of such votes to have materially affected the result of the election in respect of the returned candidate.Coming to the complaint about non-compliance with Rule 54-A of the Conduct of Elections Rules 1961 the Rule mandates in sub-rule (1) that the Returning Officer shall first deal with the postal ballot papers in the manner provided by that rule. Rule 60 of the said Rules mandates the counting to be continuous. The Handbook for Candidates (at elections where electronic voting machines are used) 2009 edition mentions in Chapter XVI about counting of votes at para 20 that the counting of votes will as far as practicable be proceeded with continuously till it is over. Para 21 deals with counting of postal ballot papers first. At para 21.1 it was specified that the counting of postal ballot papers will be taken up first and the remaining sub-paragraphs refer to the procedure in that regard. Para 22 deals with counting of votes polled at polling stations and para 22.1 clearly specified that while the postal ballot papers are being counted by the Returning Officer at his table the counting of votes recorded at the polling stations by means of voting machines will also be taken up by the Assistant Returning Officer(s) at the other table provided in the counting hall. Identical are the relevant guidelines in the Handbook for Counting Agents 2009 issued by the Election Commission of India or the Handbook for Candidates 2009 issued by the Election Commission of India and Sri B. Adinarayana Rao learned counsel for the returned candidate also referred to the Compendium of Instructions on conduct of elections 2006 issued by the Election Commission of India and specifically brought to notice item No.227 a letter dated 09-05-2004 clarifying an earlier communication dated 25-11-2003 etc. It is thus clear that though the counting of the postal ballots has to be taken up first the counting of votes polled in the electronic voting machines has also to simultaneously proceed and therefore the allegations in para 4 of the election petition and para 5 of the affidavit in respect of non-compliance with Rule 54-A of the Conduct of Elections Rules 1961 are without any substance and what is prescribed is only taking up of the counting of postal ballots first but not any prohibition against counting of votes polled in the electronic voting machines while the counting of postal ballots is in progress.The election petitioner may wish that 341 votes should not have been polled in favour of the returned candidate out of 633 postal votes. But his doubts expressed prior to the election petition and his allegations for the first time in Annexure-X letter dated 29-06-2009 and his further improvement of his allegations in the election petition and the affidavit in support of the same ex facie do not suggest the result of the election in favour of the returned candidate to have been materially affected in any manner by any improper reception or rejection of votes polled through postal ballots and the deficiency in the material facts and material particulars in this regard and the other circumstances pointed out above may show the allegations in paras 4 and 5 of the election petition and paras 5 and 6 of the affidavit to be incapable of making out any cause of action for maintaining and sustaining the election petition or presenting a triable issue for the Court. Proceeding further with the enquiry into the election petition calling for the written statements of the contesting respondents and then the oral and documentary evidence from the parties without the election petition or the affidavit disclosing a triable cause of action will be offending the principles laid down in various precedents cited.The only ground for the challenge to the election being with reference to the reception and rejection of the postal ballots and the same being ex facie within the mischief of Order VI Rule 16 and Order VII Rule 11(a) of the Code of Civil Procedure 1908 more particularly the latter rule the election petition is liable to be rejected/dismissed and Section 87 of the Representation of the People Act 1951 as already stated makes the procedure under the Code of Civil Procedure 1908 in respect of the trial of suits applicable to the election petitions as nearly as may be. As the election petition was already taken on file the election petition has to be therefore ‘dismissed’ striking off paragraphs 4 and 5 of the election petition as not disclosing the cause of action and as pointed out in Azhar Hussain v. Rajiv Gandhi (5 supra) it would make little difference whether the expression used is “rejected” or “dismissed”. The facts in the present case are not dissimilar to the facts under consideration in M.P. Keshava Murthy v. Narayanaswamy and others (4 supra) and Ramji Pandey v. Vikramaditya and others (6 supra) and to adopt the language of the Apex Court in Hari Shanker Jain v. Sonia Gandhi (1 supra) the election petition and the affidavit do not satisfy the requirement statutorily enacted and judicially explained in umpteen number of decisions and hence this application has to be allowed and the election petition has to consequently fail.Application No.876 of 2009 in Election Petition No.5 of 2009 is allowed. No costs.