Holding

A recount of votes may be ordered only if a prima facie case is established, material facts are pleaded with sufficient particulars, the court does not conduct a roving inquiry, and the objection has been taken to the Returning Officer; the High Court failed to meet these criteria.

Summary

In the 1999 Karur parliamentary election the returned candidate won by 2,847 votes. The defeated candidate filed an election petition alleging irregularities in the counting of about 15,000 rejected votes across five categories, but the petition disclosed only vague, general allegations without the required particulars. The Madras High Court, ignoring the lack of specific material facts, accepted the testimony of several witnesses and directed a full recount of the ballot papers. On appeal, the Supreme Court held that a recount can be ordered only when a prima facie case is established, the material facts are pleaded with sufficient particulars, the court does not embark on a roving inquiry, and the objection has been taken to the Returning Officer. The High Court had erred by directing a recount without satisfying these conditions and by admitting evidence beyond the pleadings. Consequently, the Supreme Court set aside the High Court order and allowed the appeal.

Issues considered

Whether the election petition satisfied the pleading requirements of Section 83(1) of the Representation of the People Act, 1951
Whether a prima facie case of irregularities in counting was made out to justify a recount
Whether the High Court erred in admitting evidence that was not pleaded and in directing a roving recount
Whether the secrecy of ballot papers can be compromised without strict compliance with statutory safeguards

Legislation cited

Code of Civil Procedure, 1908s. Order VI Rule 2
Conduct of Election Rules, 1961s. Rule 56 (sub‑rules 3 & 4)
Indian Evidence Act, 1872
Representation of the People Act, 1951s. 83

Subjects

election petitionrecountballot paper inspectionRepresentation of the People Actpleading requirementsprima facie casesecrecy of ballotevidence beyond pleadingshigh court error

Judgment

M. CHINNASAMY A
v.
K.C. PALANISAMY AND ORS.

NOVEMBER 21, 2003

[V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.] B
Election Laws :

Representation of the People Act, 1951; Section 83:

Parliament Election-Allegation of irregulatities in counting of votes C
in a constitutency-Rejected by Returning Officer-Election petition-
High Court directed Election Authorities to allow inspection, recounting
of ballot papers and to pass appropriate orders-On appeal, Held :
Requirement of material facts in pleadings should have been followed
strictly-Findings of Returning Officer not supported by material D
particulars-Since documents in support of evidence not produced, High
Court ought to have drawn adverse inference against election petitioner-
High Court erred in directing recounting without satisfying itself whether
magnitude oferrors in scrutiny/recounting ofballot papers would materially
affect election results and whether prima facie case has been made out and E
to take into consideration consequences emanating thereji·om-High Court
ought to have proceeded cautiously with circumspection having regard to
maintaining secrecy ofballot papers-Civil Procedure Code, 1908-0rder
VI Rule 2.

Evidence Act, 1872 : F
Election petition-Allegation of irregularities in counting of votes-
Onus to prove-Held : Lies on the Election Petitioner-Degree· of proof
must be of a very high standard and has to be discharged before issuing
direction for recounting. G
Evidence at variance with or beyond pleadings-Adducing of-Held:
Neither permissible nor admissible in evidence.

The question which arose for consideration in this appeal was as
/

to what extent an election Tribunal could exercise its jurisdiction to H
17
18 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A direct inspection of the ballot papers and recounting of votes polled
while disposing ofan election petition in terms of Representation of the
People Act, 1951.

It was contended for the Appellant-Returned candidate that
B allegations made in the election petition were general, vague and
evidence submitted in support thereof were wholly inadmissible; that
a manifest error has been committed by the High Court in accepting
the evidence of the prosecution witnesses in absence of material
particulars in the election petition; that the High Court did not follow
the correct test while directing recounting of votes; and that the
C Election Tribunal can not direct a roving enquiry on the basis of
general and bald allegations.

On behalf of Respondent-Election Petitioner, it was submitted
that it is not necessary to disclose the particulars of material facts but
D material facts in concise form in an Election Petition;.and that since
election agent of the petitioner alleged h regularities in counting of
votes in all the segments of the Parliamentary constituency, 'he rule
of pleading would not require disclosure of the detailed particulars.

Allowing the appeal, the Court
E
HELD : I.I. It is trite that an order of recounting of votes can be
passed only when the following ingredients are satisfied, viz: (1) If there
is a prima facie case; (2) material facts therefor are pleaded; (3) the
Court shall not direct recounting by way of roving or fishing inquiry;
F and (4) such an objection had been taken recourse to. (28-q

1.2. The parties are bound by the rule of pleadings and verifica-
tion thereof having regard to the facts that an election may not be set
aside on hyper-technical grounds although no factual foundation
therefor had been laid in the pleadings as the elected candidate may
G not ha\'e any hand therein. But in a case where a direction for
recounting of ballot papers has been prayed for, the Court must
proceed cautiously and with circumspection having regard to the
requirement of maintaining secrecy of balJot papers. The requirement
of rule of pleadings containing material facts are salutary in nature.
H (28-E-F)
M. CHINNASAMYv. K.C. PALANISAMY 19

1.3. The allegations contained in the Election Petition are abso- A
lutely vague and lack material particulars. Details as regard commis-
sion of alleged irregularities had not been disclosed. It goes to show that
the Chief Election Agent of the Election Petitioner did not raise any
objection before the Returning Officer and the counting staff as and
when such irregularities purported to have been found out. The said B
Agent of the Election Petitioner had not been examined. Besides, no
material has been brought on record to show that the factual findings
of the Returning Officer are incorrect. Even PWs 2 to 7 in their
evidence accepted that they had been supplied with notebooks wherein
they allegedly noted such irregularities. Such notebooks had not been C
produced before the High Court and, thus, an adverse inference
against the election petitioner ought to have been drawn. The High
Court should not have accepted the evidence of PWs 2 to 7 when there
are no particulars in the election aild the names of counting agents had
not even been mentioned in the pleadings. [29-A-B-C-D; 30-B-C)
D
1.4. It was all the more necessary for the Election Petitioner to
plead the material facts with certain precision having regard to Ex.
P/9 in terms whereof the recounting was prayed having regard to
alleged rejection of 15000 votes. Furthermore although a distinction
exists in terms of clauses (a) and (b) of Section 83(1) of the Representation E
of the People Act, but it should be borne in mind that pleading of
material fact would include disclosure of a all such information which
if not rebutted would result in allowing the petition. (30-E-FI

1.5. Inspection of ballot papers can be ordered when in the facts F
and circumstances obtaining in the case, the Tribunal finds it necessary
to so direct in the interest of justice. Discovery and inspection of
documents with which the Civil Court is invested with power under
the Code of Civil Procedure when trying a suit may be applied but such
an order would not be granted as a matter of course having regard
to the insistence upon the secrecy of the ballot papers. (31-C.·D) G
Ram Serak Yadav v. Hussain Kami! Kidwai & Ors., (1964) 6 SCR
238; Km. Shardha Devi v. Krishna Chandra Pant & Ors., 11982) 3 SCC
389 (II); D.P. Sharma v. Commissioner and Returning Officer & Ors.,
11984( Supp. SCC 157; Satyanarain Dudhani v. Uday Kumar Singh <t H
20 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
·.i,. •
A Ors., [19931 Suppl. 2 SCC 82; Ram Rati (Smt.) v. Saro) Devi & Ors.,
1199716SCC66; Mahant Ram Prakash Dass v. Ramesh Chandra & Ors.,
11999] 9 SCC 420; P.H Pujar v. Kanthi Rajashekhar Kidiyappa & Ors.,
120021 3 SCC 742 and Mohan Rawale v. Damodar Tatyaba Alias
Dadasaheb & Ors., 119941 2 SCC 392, referred to.
B
1.6. Apart from the clear legal position as laid down by the
Supreme Court in several decisions, there cannot be any doubt or
dispute that only because a recounting has been directed, it would not
be held to be sacrosanct to the effect that although in a given case the
C 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
D be entitled to reject the evidence wherefor there does not exist any
pleading. [40-D-E-FJ

Dr. Jagjit Singh v. Giani Kartar Singh & Ors., AIR (1966) SC 773
and TA. Ahammed Kabeer v. A.A. Azeez & Ors., 120031 5 SCC 650,
E referred to.

1.7. It is well-settled that prima facie case must be made out for
scrutiny and recounting of ballot papers where the High Court is of
the opinion that the errors are of such magnitude as to materially affect
F the election. In the instant case, 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. [40-G-H)

MP. Gopalakrishan v. Thachady Prabhakaran, 11995) Supp. 2 SCC
101, referred to.
G
1.8. 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
H standard and is required to be discharged. [41-A-BJ
M. CHINNASAMYv. K.C. PALANISAMY [S.B. SINHA, J.] 21
. ;-
TH Musthaffa v. MP. Varghese & Ors., (19991 8 SCC 692 and A
Mahender Pratap v. Krishan Pal & Ors., [20031 1 SCC 390, referred to.

1.9. In the instant case, even in the recount it was found that the
returned candidate has not secured majority of the votes, the result
could not have been disturbed, unless prima facie case of high degree B
of probability existed for recount of votes. However, keeping in view
the fact that the election petition is pending for a long time, the High
Court may consider the desirability of disposing of the same
expeditiously. (41-C-D; E-F)

P.K.K. Shamsudeen v. K.A.M Mapillai Mohindeen, (1989) 1 SCC C
526, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 33 of2003.

From the Judgment and Order dated 7 .11.2002 of the Madras High
Court in E.P. No. 7 of 2000. D
)
'M.N. Rao, C. Paramasivam, S. Thananjayan and Rakesh K. Sharma
for the Appellant.

- K.K. Mani, Ms. Manika Pandey and Atishi Dipankar (NP) for the
Respondents.

The Judgment of the Court was delivered by
E

S.B. SINHA for himself and CJ! :
F
) To what extent an election tribunal should exercise its jurisdiction
to direct inspection of the ballot papers and recounting of votes polled
while detennining an election petition in terms of the provisions of the
Representation of the People Act, 1951 (hereinafter referred to as 'the Act',
for the sake of brevity) is in question in this appeal which arises out of G
a judgment and order dated 07 .11.2002 passed by the High Court of
Judicature at Madras in Election Petition No.7 of 2000.

BACKGROUND FACTS :

An election took place for Karur Parliamentary Consti.tuency (26) H
22 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A consisting of six assembly segments on 05.09.1999. Eleven candidates
contested the said election. Total number of votes polled was 719705 and
the appellant herein who is the returned candidate having the election
symbol of 'two leaves' secured 334407 votes whereas Respondent No. I
herein (the election petitioner) who contested the said election on the
B election symbol of'rising sun' secured 331560 votes. The margin ofvotes
between the returned candidate and the election petitioner was, thus, 2847.

It is also not in dispute that 16906 votes were rejected. The chief
election agent of the election petitioner on or about 06.10.1999 lodged a
complaint alleging irregularities in counting of votes. The said counting of
C votes took place on 6.10.1999 and the result thereof was declared at
5.10 A.M. on 7.10.1999.

The relevant portion of the said complaint reads thus :

"Today (6.10.1999) during counting of the votes in all the
D
Six Segments of Karur parliamentary constituency about 15,000
votes polled in Rising Sun Symbol of the Candidate K.C.
Palanisamy has been rejected in violation of the Act and Rules
without reason by the Assistant Returning Officers. The oral and
written objections raised by the Agents were not accepted. So our
E candidate winning prospect was prevented.

In Election each and every vote is important and even one
vote difference decides the result. Therefore, I kindly request you
to recount the rejected invalid votes and thereafter election result
F may be declared."

It is also not dispute that upon holding an inquiry in relation to the
aforementioned complaint (Ex.P9), the returning officer who examined
himself as CW! rejected the same holding :

G "... The Assistant Returning Officer who were incharge of the
Counting of Ballot Papers in all the 6 Assembly Segments
comprised in 26 Karur Parliamentary Constituency were enquired
about the issue raised by the Objection Petitioner. All of them
have reported that they have decided the rejected Ballot Papers
H only in the presence of the Counting Agents deputed by the
M. CHINNASAMY v. K.C. PALANISAMY [S.B. SINHA, J.) 23

. r contesting Candidates for this purpose, and the decisions were A
taken only in the presence of such counting Agents and with their
concurrence. No one raised any objection to the decision taken
by Assistant Returning Officers in the matter ofrejection of Ballot
Papers. In fact, all of them had appreciated the fairness in the
rejection of Ballot Papers by the Assistant Returning Officers.
B
The Assistant Returning Officers have stated that no Objection
Petition was presented to them at the time of Counting over the
Rejection of Ballot Papers. Even the Poll Observers deputed by
the Election Commission had been campaigning in the Counting
Centres and no Objections were made to them over this issue. The
Objections were analysed to find out whether they are substan- c
! tiated. It is brought to my notice by the Assistant Returning
Officers that most of the Ballot Papers were rejected on the ground
"No Marking" and "Multiple Voting". The analysis of the votes
polled and Votes rejected during the present Poll and the previous
polls reveals that the total rejected votes during the previous poll D
was 25,292 as against the total valid votes of6,49880 whereas the
Ballot Papers rejected in the present election is only 16,906 as
..>
against the total valid Votes of 7,19,705.

I find no reason to Order Recounting of rejected Ballot
Papers as requested by the Petitioner and accordingly his request
E
is rejected."

The election petitioner thereafter filed the election petition before the
High Coutt which was marked as Election Petition No.7 of2000. Besides
raising a question of corrupt practice, allegations were also made as regards F
_J irregularities in counting of votes, which were divided in five different
heads, namely :

Category I : Rejection of valid votes cast in favour of the petitioner by
considering inadvertent thumb impression.
G
Category 2 : Rejection of valid votes on the basis of Polling Officer's
rubber stamp impression found on ballot paper apart from voter's instrument
mark.

Catego1y 3 : Rejection of valid votes cast on border. H
/i4 SUPREME COURT REPORTS (2003) SUPP. 6 S.C.R.
A Category 4: Rejection of valid votes on ground that wrong instrument used
by voter.

Category 5 : Rejection of postal votes cast in favour of the petitioner.

Evidences were led to the effect that the number of votes which
B are alleged to have been illegally rejected in Category-I : 750 votes; in
Category-2 : 250 votes; in Category-3 : 1500 votes; in Category-4 : 5000
votes and in Category-5 : 300 votes.

The allegations made in the election petition were denied and
C disputed by the elected candidate. He further raised a plea that the
allegations made in the said election petition as regard illegal rejection of
votes suffered from vagueness. It was pointed out that no particulars had
been disclosed in the election petition as to at which centre and at what
time the alleged irregularities took place. The details of the tables at which
the objections were raised had also not been disclosed. Even the names
D of the counting agents had not been mentioned in the election petition.

Such objections had been raised having regard to the fact that the
Parliamentary Constituency consisted of six assembly segments and the
counting was done at four different centres. It had further been contended
E that the election petition also does not disclose as to how and in what
manner the provisions of sub-rules (3) and (4) of Rule 56 of the Conduct
of Election Rules, 1961 had been breached.

ISSUES :

F On the pleadings of the parties, the High Court framed, inter alia, the
following issues :

(I) Whether the petitioner has proved acts of serious irregulari-
ties in the manner of conduct of election and or in the
counting of votes vitiating the entire election process as well
G as results?

(2) Whether the first respondent and/or his agents are guilty of
corrupt electoral practices or electoral malpractice contem-
plated under Section 123 of the Representation of the People
H Act, 1951?
M. CHINNASAMYv. K.C. PALANISAMY [S.B. SINHA, J.) 25

(4) Whether the petitioner is entitled to an order of scrutiny and A
recounting of the ballot papers in respect of No.26, Karur
Parliamentary Constituency as sought in prayer No.(i) of the
Election Petition?

HIGH COURT JUDGMENT :
B
Issue No. 2 was decided against the election petitioner. The allegation
as regard irregularity of counting of votes in relation to Category-4
aforementioned, had also not found favour with the High Court. The High
Court, however, having regard to the evidences adduced on behalf of the
election petitioner being PWs 1 to 7 held : C
" ... Having regard to the entire evidence, I am of the view that the
petitioner had made out a prima facie case for re-count of the
votes. The evidence of P.Ws.1 to 7 clearly established the
counting i1Tegularities relating to category 1, namely, rejection of D
valid votes cast in favour of P.W.1 by considering inadvertent
thumb impression, Category II, rejection of valid votes on the
basis of polling officer's rubber stamp impression found on the
ballot papers apart from voter's instrument mark, category III -
rejection of valid votes cast on the border and category V relating E
to rejection of postal votes which went in favour of the petitioner.
Apart from that, as adve1ted to, the Returning Officer had failed
to carry out the mandatory reqllirements provided under the
Guidelines issued by the Election Commission. The objections
given under Ex.P.9 have not been properly considered and the
alteration made in the date in Ex.P.10 coupled with the evidence F
of P.W.l and also the delay in declaring the result of about 7
hours, would only lead to the irresistible conclusion that recount
of the entire votes is a must to decide the intention of the electoral.
Simply because under Ex.p/9 only a request was made for recount
of the rejected votes, it cannot be made use of presently ,and G
prevent the recount of entire voters. In the case cited above, it
is made clear that it is not necessary that there should be a request
for recount and if the Returning Officer comes to know about the
1,,. irregularities, it is his duty to order recount of the votes. Moreo-
ver, neither P.W.I nor his Chief Election Agent is qualified in law H
26 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A to expect that they would be able to give a petition for recount
in accordance with law pointing out all irregularities one by one.
When there is substantial compliance in the request under
Ex. P/9 coupled with the irregularities highlighted and established
by adducing positive evidence on the side of the I st respondent,
it is just and necessary that the entire ballot papers have to be
B
inspected and recounted to pass further and appropriate orders in
the case. Hence, these issues are answered accordingly."

SUBMISSIONS :

C Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the
appellant, inter alia, would submit that allegations made in the election
petition being general and vague in nature, the purported evidences on the
basis whereof the impugned judgment has been passed were wholly
inadmissible. The learned counsel would submit that a manifest error has
D been committed by the High Court in accepting the evidences of PWs 2
to 7 when neither particulars in relation to the alleged irregularities nor the
names of the counting agents who examined themselves as PWs 2 to 7 had
L
been mentioned in the election petition. In any event, the evidences
adduced by PWs 1 to 7 could not have been accepted by the High Court
E as they failed and/or neglected to produce the notebooks in which they
had allegedly been making notes which admittedly had been supplied to
them as regard details of alleged irregularities in counting of votes. The
learned counsel would contend that even no detailed particulars had been
mentioned in the complaint filed by the chief election agent of the election
petitioner marked as Ex.P/9. Mr. Rao would submit that while making an
F inquiry on the objections filed by the chief election agent of the election
petitioner, it was not necessary for the returning officer to record oral
evidence and in that view of the matter the High Court committed an error
in arriving at a finding that the objections under Ex.P/9 had not been
properly considered. Mr. Rao would argue that in an election petition, the
G Tribunal cannot direct a roving or fishing inquiry and more so when only
general and bald allegations were made. It was pointed out that whereas
the High Court adopted the correct test in not directing recounting in
relation to alleged irregularities in counting votes falling within Category-
4, it failed to apply the same test in relation to other categories. In any
H event, contended the learned counsel. when the prayer in Ex.P/9 revolved
M. CHINNASAMY v. K.C. PALANISAMY [S.B. SINHA, J.] 27

round the 15000 rejected votes, all the votes could not have directed to be A
recounted.

Mr. K.K. Mani, learned counsel appearing on behalf of the respondents,
on the other hand, would submit that in an election petition, it is not
necessary to disclose the particulars of material facts in terms of sub- B
section (I) of Section 83 of the Act. The learned counsel would contend
J. that what is necessary to be stated is the material fact in a concise form
as is required in terms of clause (a) of sub-section (I) of Section 83 of
the Act and no particulars of such material facts are required to be pleaded
as in the case of corrupt practice. According to the learned counsel, the C
chief election agent of the election petitioner having made serious allegations
as regard irregularities in counting of votes in relation to all the six
segments of the Parliamentary Constituency, the rule of pleadings would
not require disclosure of the detailed particulars. The learned counsel
would submit that as the High Court has passed the impug~ed judgment
upon consideration ofrhe evidences adduced by the parties, the same does D
not warrant any interference .by this Court. ,

STATUTORY PROVISIONS :

Chapter II of Part VI of the said Act provides for the presentation of E
election petitions to the Election Tribunal. Section 80 provides that no
election shall be called in question except by an election petition presented
in accordance with the provisions of the said Part. The material part of
Section 83 of the said Act reads as under :
F
"83. Contents of petition.- (1) An election petition -

(a) shall contain a concise statement of the material facts
on which the petitioner relies;
G
(b) shall set fo1th full particulars of any corrupt practice
that the petitioner alleged 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;"
H

' '
28 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A MATERIAL FACTS :

It is not in dispute that in relation to an election petition, the
provisions of the Code of Civil Pr9cedure apply. In terms ofOn.Jer VI Rule
2 of the Code of Civil Procedure which is in pari materia with clause (a)
of sub-section ( 1) of Section 83 an election petition must contain concise
B statement of material facts. It is true as contend~d by Mr. Mani that full
particulars are required to be set fo11h in terms of clause (b) of sub-section
(I) of Section 83 of the Act which relates to corrupt practice. The question
as to what would constitute material facts would, however, depend upon
the facts and circumstances of each case. It is trite that an order of
C recounting of votes can be passed when the following ingredients are
satisfied: (1) If there is aprimafacie case; (2) material facts therefor are
pleaded; (3) the cou11 shall not direct recounting by way of roving or
fishing inquiry; and (4) such an objection had been taken recourse to.

D The necessity of 'maintaining the secrecy of ballet papers' should be
kept in view before a recounting is directed to be made. A direction for
recounting shall not be issued only because the margin of votes between
the returned candidate and the election petitioner is narrow.

The requirement of rule of pleadings containing material facts are
E salutary in nature.
The parties are bound by the said rule of pleadings and verification
thereof having regard to the fact that an election may not be set aside on
hyper-technical grounds although no. factual foundation therefor had been
F laid in the pleadings as the elected candidate may not have any hand
therein. So far as requirement of pleadings in a case where a direction of
recounting of ballot papers has been prayed for, the court must proceed
cautiously and with circumspection having regard to the requirement of
maintaining secrecy of ballot papers. It is not disputed that the counting
was done at four centres. ft is further not disputed that the material facts,
G as regard as to which category of irregularities as enumerated in the
election petition occurred, at which centre and at what time, had not been
pleaded. It has further not been disclosed the details as regards tables at
which such objections were raised, nor the names of the counting agents
had been disclosed. The very basis of the election petition centres round
H the objections of the Chief Election Agent of the election petitioner dated
M. CHINNASAMYv. K.C. PALANISAMY [S.B. SINHA, J.] 29

6.10.1999 (Ex.P/9). We have set out the said objections in extenso A
herein before. A bare perusal thereof would clearly show that the allegations
contained therein are absolufely vague and lack material particulars.
Details as regard commission of alleged irregularities police stationwise,
assembly segmentwise, polling counterwise or tablewise had not been
disclosed. The same by itself goes to show that the Chief Election Agents B
of the election petitioner did not raise any objection before the returning
officer anc! the counting staff as and when such irregularities purported to
have been found out. It may be relevant to.note that even ifthe said Agent
of the election petitioner had not been examined, inter alia, on the ground
that he after declaration of the election result has changed the sides.
c
It is also relevant to notice that no material has been brought on
records to show that the factual findings of the Returning Officer as
contained in his order dated 6.10.1999 are incorrect.

Furthermore, even PWs 2 to 7 in their evidences accepted that they D
had been supplied with notebooks wherein they allegedly noted such
irregularities. Such notebooks had not been produced before the High
Court and, thus, an adverse inference against the election petitioner ought
to have been drawn. lt appears from the records that the votes which had
allegedly not been counted even according to PWs l to 7 would not cross E
five hundred marks. Although in Ex.P/9 it has been contended that "the
oral and written objections raised by the agents were not accepted", but
no such written objection was brought on record.

In relation to the allegations contained in Paras 13 and 14 of the

- election petition regarding bundling of ballot papers and purported wrong F
transfer of valid votes polled in favour of Respondent No. I, the High Court
has disbelieved the evidence of PWs 2 to 7 on the ground that they could
not give the details of the counting centres and other proper particulars,
but accepted their evidence as regard alleged irregularities covered by
Categories I, 2, 3 and 5 for no valid or cogent reason. G
The High Court while considering the objections raised in the election
petition in relation to Category-4, inter alia, held such allegations cannot
be considered as the same are based on general and vague allegations
without any particulars, observing :
H
30 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A " ... Even in the complaint given under Ex.P.9, there is no whisper
that wrong instrument has been used by any voter in particular
. booth of Constituency, which resulted in invalidating the votes ... "

Despite the fact that in relation to the allegations made under
B Categories- I, 2, 3 and 5, similar general and vague allegations had been
made, the High Court proceeded to accept the evidences of the said
witnesses.

The High Court should not have accepted the evidence of PWs 2 to
7 when there are no particulars in the election petition and the names of
C counting agents had not even been mentioned in the pleadings.

The High Curt furthermore applied a wrong legal test in passing the
impugned judgment insofar as it proceeded to hold that the first respondent
would not be prejudiced, if a recounting is ordered. The test required to
be applied for directing a recounting being well-settled, the High Court
must be held to have misdirected itself in law. The question of prejudice
of the election petitioner would not be a relevant factor keeping in view
the constitutional and statutory scheme involving holding of an election
and the consequences emanating from the direction of recounting which
may lead to identification of voters as the same is not at all desirable.
E
In the instant case, it was all the more necessary for the election
petitioner to plead the material facts with certain precisions having regard
to Ex.P/9 in terms whereof the recounting was prayed having regard to
alleged rejection of 15000 votes. Furthermore although a distinction exists
p in terms of clauses (a) and (b) of Section 83(1) of the Act, but it should
be borne in mind that pleading of material fact would include disclosure
of all such information which if not rebutted would result in allowing the
petition. A distinction between 'particulars' and 'full particulars' should
also be borne in mind.

G Had the election petitioner in his pleadings, as noticed hereinbefore,
disclosed the details of the names of polling stations, counting centres, the
tables, particulars of round of the counting of votes in relation whereto
alleged irregularities had taken place under all the four categories and basis
of material facts and particulars, the High Court, if finds, that election
H petitioner has made out prima facie case for scrutiny of ballot papers and
M. CHINNASAMY v. K.C. PALANISAMY [S.B. SINHA, J.] 31

recount, it may direct for recount of ballot papers in respect of the said A
votes only and not the entire votes. The High Court further failed to notice
that in para 12 of the election petition it has merely been pointed out that
irregularities in respect counting had materially affected the election and
in that view of the matter, the High Court should not have directed
recounting of all the votes which would amount to going beyond the said B
election.

CASE LAWS:

The law operating in the field is no longer res integra. Inspection of
ballot papers can be ordered when in the facts and circumstances obtaining C
in the case, the Tribunal finds it necessary to so direct in the interest of
justice. Discovery and inspection of documents with which the civil court
is invested with power under the Code of Civil Procedure when trying a
suit may be applied but such an order would not be granted as a matter
of course having regard to the insistence upon the secrecy of the ballot D
papers. Such an inspection may be ordered when two conditions are
fulfilled :

(i) that the petition for setting aside an election contains an
adequate statement of the material facts on which the
petitioner relies in support of his case; and E

(ii) the Tribunal is prima facie satisfied that in order to decide
the dispute and to do complete justice between the parties
inspection of the ballot papers is necessary.
F
(See Ram Sevak Yadav v. Hussain Kami/ Kidwai & Ors., (1964]
6 SCR 238)
\
Upon considering the provisions of the Act and the Cond.uct of
Election Rules, 1961, the Court in Ram Sewak Yadav (supra) held :
G
"There can therefore be no doubt that at every stage in the process
of scrutiny and counting of votes the candidate or his agents have
an opportunity of remaining present at the counting of votes,
watching the proceedings of the Returning Officer, inspecting any
rejected votes, and to demand a re-count. Therefore a candidate H
32 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A who seeks to challenge an election on the ground that there has
been improper reception, refusal or rejection of votes at the time
of counting, has ample opportunity of acquainting himself with
manner in which th~ ,bai'lot boxes were scrutinized and opened,
and the votes were counted. He has also opportunity of inspecting
rejected ballot papers, and of demanding a re-count. It is in the
B
light of the provisions of s. 83(1) which require a concise
statement of material facts on which the petitioner relies and to
the opportunity which a defeated candidate had at the time of
counting, of watching and of claiming a recount that the appli-
cation for inspection must be considered."
c
In Dr. Jagjit Singh v. Giani Kartar Singh and Others, AIR (1966)
SC 773, before a 3-Judge Bench of this Court, a contention was raised to
the effect that when a Tribunal considering the evidence in the light of the
allegations made by the election petitioner was satisfied that inspection
D should be ordered, the same should not ordinarily be r~versed in appeal,
this Court held :

"We are not prepared to accept this contention. The order passed
by the Tribunal clearly shows that the Tribunal did not apply its
mind to the question as to whether sufficient particulars had been
E mentioned by the appellant in his application for inspection. All
that the tribunal has observed is that a prima facie case has been
made out for examining the ballot papers; it has also referred to
the fact that the appellant has in his own statement supported the
contention and that the evidence led by him prima facie justifies
F his prayer for inspection of ballot papers. In dealing with this
question, the Tribunal should have first enquired whether the ...
application made by the appellant satisfied the requirements of S.
83(1) of the Act; and, in our opinion, on the allegations made,
there can be only one answer and that is against the appellant. We
G have carefully considered the allegations made by the appellant
in his election petition as well as those made by him in his
application for inspection and we are satisfied that the said
allegations are very vague and general and the whole object of
the appellant in asking for inspection was to make a fishing
H enquiry with a view to find out some material to support his case
M. CHINNASAMY v. K.C. PALANISAMY [S.B. SINHA, J.] 33

that respondent No. I had received some invalid votes and that the A
appellant had been denied some valid votes. Unless an application
for inspection of ballot papers makes out a proper case for such
inspection it would not be right for the Tribunal to open the ballot
boxes and allow a party to inspect the ballot papers, and examine
the validity or invalidity of the ballot papers contained in it. If B
such a course is adopted, it would inevitably lead to the opening
of the ballot boxes almost in every case, and that would plainly
be inconsistent with the scheme of the statutory rules and with the
object of keeping the ballot papers secret."

(See also Bbhabhi v. Shea Govind & Ors., [1976) 1 SCC 687) C

In Km. Shradha Devi v. Krishna Chandra Pant and Others, [1982)
3 SCC 3 89 II, this Court observed :

"If the re-count is limited to those ballot-papers in respect of D
which there is a specific allegation of error and the correlation is
established, the approach would work havoc in a parliamentary
constituency where more often we find 10,000 or more votes
being rejected as invalid. Law does not require that while giving
proof of prima facie error in counting each head of error must be E
tested by only sample examination of some of the ballot-papers
which answer the error and then take into consideration only those
ballot-papers and not others. This is not the area of enquiry in a
petition for relief of re-count on the ground of miscount. True it
is that 'a re-count is not granted as of right, but on evidence of
good grounds for believing that there has been a mistake on the F
part of Returning Officer' (See Hals bury 's Laws of England, 4th
Edn., Vol_. 15, para 940). This Court has in terms held that prima
facie proof of error complained of must be given by the election
petitioner aQd it must further be shown that the errors are of such
magnitude that the result of the election so far as it affects the G
returned candidate is materially affected; then re-count is di-
rected"

In D.P. Sharma v. Commissioner and Returning Officer and Others,
(1984] Supp. SCC 157, this Court laid down the law in the following terms: H
34 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A " ... It is well established that in :-irder to obtain re-count of votes
a proper foundation is required to be laid by the election petitioner
indicating the precise material on the basis of which it could be
urged by him with some ,substance that there has been either
improper reception of invalid votes in favour of the elected
B candidate or improper rejection of valid votes in favour of the
defeated candidate or wrong counting of votes in favour of the
elected candidate which had in reality been cast in favour of the
defeated candidate ... "

In Satyanarain Dudhani v. Uday Kumar Singh and Others, [1993)
C Supp. 2 SCC 82, this Court laid down :

"A cryptic application claiming recount was made by the peti-
tioner-respondent before the Returning Officer. No details of any
kind were given in the said application. Not even a single instance
D showing any irregularity or illegality in the counting was brought
to the notice of the Returning Officer. We are of the view when
there was no contemporaneous evidence to show any irregularity
or illegality in the counting ordinarily, it would not be proper to
order recount on the basis of bare allegations in the election
petition. We have been taken through the pleadings in the election
E
petition. We are satisfied that the grounds urged in the el~ction
petition do not justify for ordering recount and allowing inspec-
tion of the ballot papers. It is settled proposition of law that the
secrecy of the ballot papers cannot be permitted to be tinkered
lightly. An order of recount cannot be granted as a matter of
F course. The secrecy of the ballot papers has to be maintained and
only when the High Court is satisfied on the basis of material facts
pleaded in the petition and supported by the contemporaneous
evidence that the recount can be ordered."

G In Ram Rati (Smt) v. Saroj Devi and Others, [I 997) 6 SCC 66, it was
observed :

" .. .In the light of the mandato~ language o(Ru!e 76 of the Rules,
it is incumbent upon a candidate or an agent, if the candidate was
H not present, to make an application in writi.ng and give reasons
M. CHINNASAMY v. K.C. PALANISAMY (S.B. SINHA, J.] 35

in suppo1t thereof, while seeking recounting. If it is not done, then A
the tribunal or the court is not empowered to direct recounting
even after adduction of evidence and consideration of the alleged
irregularities in the counting ... "

Yet again in Mahant Ram Prakash Dass v. Ramesh Chandra and B
Others, [1999] 9 SCC 420, this Court held :

"So far as round six, which is the last and the final round, is
concerned, the charge made by the appellant in para 6 of the
petition is in the following terms :-
c
"Round No. 6, serial No. 79/9 i.e. table No. 9, there is a
cutting on the· votes secured by the petitioner as 462. None
of these cuttings, alterations has been authenticated by the
Returning Officer or any other officer concerned at any
stage."
D
We have seen the original Form 20 and we do not find any
corrections made therein. It is only in the copies, that were typed
thereafter, that discrepancies have crept in, which have been
sought to be corrected and copies thereof are furnished to the
appellant. On the basis of such copies no case could have been E
made out by the appellant. Thus there is no plea at all so far as
round 6 is concerned pointing out any discrepancy or irregularity
in the matter of counting. Hence we find no case is made out by
the appellant in the course of the petition. In the absence of any
pleading thereof, we find it difficult to accept the case put forth F
by the appellant that there was any irregularity in the 6th round
of counting."

In P.H Pujar v. Kanthi Rajashekhar Kidiyappa and Others, [2002]
3 sec 742, it was laid down as under :
G
" ... The petitioner seeking re-count should allege and prove that
there was improper acceptance of votes or improper rejection of
valid votes. If only the Court is satisfied about the truthfulness of
the said allegations can it order re-count of votes. Secrecy of ballot
has always been considered sacrosanct in a democratic process of H
36 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A election and it cannot be disturbed lightly by bare allegations of
illegality and irregularity in counting ... "

(See also TH. Musthaffa v. MP. Varghese and Others, [1999] 8 SCC
692).

B In D. Ramachandran v. R. V Janakiraman and Others, [1999] 3 SCC
267 this Court held:
"~

"We do not consider it necessary to refer in detail to any part of
the reasoning in the judgment; Instead, we proceed to consider the
c arguments advanced before us on the basis of the pleadings
contained in the election petition. It is well settled that in all cases
of preliminary objection, the test is to see whether any of the
reliefs prayed for could be grantetJ to the appellant if the
averments made in the petition are proved to be true. For the
D purpose of considering a preliminary objection, the averm~nts r-
in
the petition should be assumed to be true and the court has to find
out whether those averments disclose a cause of action or a triable
issue as such. The Court can not probe into the facts on the basis
of the controversy raised in the counter."
E
In Mohan Rawale v. Damodar Tatyaba Alics Dadasaheb and Others, .
[1994] 2 SCC 392 this Court observed:

"12. Further, the distinction between ':material facts" and "full
partk:ulars" is one of degree. The lines of distinction are not sharp.
F "Material facts" are those which a party relies upon and which,
if he does not prove, he fails at the time.

13'. In Brace v. Odhams Press Ltd., (1936) I KB 697 : (1936) I
All ER 287 Scott L.J. said:
G
"The word 'material' means necessary for the purpose of
I..
...
formulating a complete cause of action; and if any one
'material' statement is omitted, the statement of claim is
bad." The purpose of"materral particulars" is in the context
of the need to give the opponent sufficient details of the
H
M. CHINNASAMYv. K.C. PALANISAMY [S.B. SINHA, J.) 37

charge set up against him and to give him a reasonable A
opp011unity.

14. Halsbury refers to the function of particulars thus:

"The function of particulars is to carry into operation the
overriding principle that the litigation between the parties, B
and particularly the trial, should be conducted fairly, openly
and without surprises, and incidentally to reduce costs. This
function has been variously stated, namely either to limit the
generality of the allegations in the pleadings, or to define the
issues which have to be tried and for which discovery is C
required."

(See: Pleadings, Vol. 36, para 38)

15. In Bullen and Leake and Jacob's "Precedents of Pleadings" D
1975 Edn. at p. 112 it is stated:

"The function of particulars is to carry into operation the
overriding principle that the litigation between the parties,
and particularly the trial, should be conducted fairly, openly
and without surprises and incidentally to save costs. The E
object of particulars is to 'open up' the case of the opposite
party and to compel him to reveal as much as possible what
is going to be proved at the trial, whereas, as Cotton L.J. has
said, 'the old system of pleading at common law was to
conceal as much as possible what was going to be proved F
at the trial',"

16. The distinction between 'material facts' and 'particulars'
which together constitute the facts to be proved - or the facta
probanda - on the one hand and the evidence by which those
#
facts are to be proved - facta probantia - on the other must G
be kept clearly distinguished. In Philipps v. Philipps, Brett, [1878]
4 QBD 127, 133 L.J. said:

"I will not say that it is easy to express in words what are
the facts which must be stated and what matters need not be H
38 SUPREME COURT REPOR'.IS [2003] SUPP. 6 S.C.R.

A stated .... The distinction is taken in the very rule itself, -.
between the facts on which the party relies and the evidence
to prove those facts. Erle CJ. expressed it in this way. He
said that there were facts that might be called the allegata
probanda, the facts which ought to be proved, and they were
different from the evidence which was adduced to prove
B
those facts. And it was upon the expression of opinion of
Erle CJ. that Rule 4 [now Rule 7(1)] was drawn. The facts ...
which ought to be stated are the material facts on which the
party pleading relies."

C 17. Lord Denman, CJ. in William v. Wilcox, [1838] 8 Ad & El
331 said:

"It is an elementary rule in pleading that, when a state of
facts is relied it is enough to allege it simply, without setting
out the subordinate facts which are the means of proving it,
D
or the evidence sustaining the allegations."

18. An election petition can. be rejected under Order VII Rule
l l(a) CPC if it does not disclose a cause ofaction. Pleadings could
also be struck out under Order VI Rule 16, inter alia, if they are
E scandalous, frivolous or vexatious. The latter two expressions
meant cases where the pleadings are obviously frivolous and
vexatious or obviously unsustainable."

Mr. Mani, however, has placed strong reliance on P.K.K. Shamsudeen
F v. K.A.M Mappillai Mohindeen and Others, (1989] l sec 526. A two-
Judge Bench of this Court therein took note of Ram Sewak Yadav (supra)
and R. Narayan v. S Semmalai and Others, (1980] 2 SCC 537 wherein
it was observed :

"Thus the settled position of law is that the justification for an
G order for examination of ballot papers and recount of votes is not .
to be derived from hindsight and by the result of the recount of
votes. On the contrary, the justification for an order of recount of
votes should be provided by the material placed by an election
petitioner on the threshold before an order for recount of votes
H is actually made. The reason for this salutary rule is that the
M. CHINNASAMY v. K.C. PALANISAMY (S.B. SINHA, J.] 39

preservation of the secrecy of the ballot is a sacrosant principle A
which cannot be lightly or hastily broken unless there is prima
facie genuine need for it. The right of a defeated candidate to
assail the validity of an election result and seek recounting of
votes has to be subject to the basic principle that the secrecy of
the ballot is sacrosanct in a democracy and hence unless the B
affected candidate is able to allege and substantiate in acceptable
measure by means of evidence that a prima facie case of a high
degree of probability existed for the recount of votes being
ordered by the Election Tribunal in the interests of justice, a
Tribunal or court should not order the recount of votes."
c
Natarajan, J. having regard to the averments made in the election
petition observed that neither the averments in the pleadings nor the
evidence adduced were of such compulsive nature as could have made the
Tribunal reach a primafacie satisfaction that there was adequate justification
for the secrecy of ballot papers. The said decision, therefore, runs counter D
to the submissions of the learned counsel.

In Jibontara Ghatowar v. Sarbananda Sonowal and Others, [2003]
6 sec 452, wherein a case was made out that 824 ballot papers were
rejected contrary to the provisions contained in Rule 63 of the Conduct of E
Elections Rules and in violation of the law laid down by this Court in Arun
Kumar Bose v. Mohd. Furkan Ansari, [1984] l SCC 91, this Court held
that the High Court was in error in refusing to direct the recounting of
votes. While making the said observations, the Court relied upon an earlier
decision of this in T.A. Ahammed Kabeer v. A.A. Azeez and Others, [2003] F
5 SCC 650, wherein one of the members, Lahoti, J. was also a party
noticing :

"27. Though the inspection of ballot papers is to be allowed
sparingly and the court may refuse the prayer of the defeated
candidate for inspection if, in the garb of seeking inspection, he G
was indulging in a roving enquiry in order to fish out materials
to set aside the election, or the allegations made in support of such
prayer were vague or too generalized to deserve any cognizance.
Nevertheless, the power to direct inspection of ballot papers is
there and ought to be exercised if, based on precise allegations H
40 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A of material facts, also substantiated, a case for permitting inspec-
tion is made out as is necessary to determine the issue arising for
decision in the case and in the interest of justice."

28. It is true that a recount is not to be ordered merely for
the asking or merely because the court is inclined to hold a re-
B
count. In order to protect the secrecy of ballots the court would
permit a re-count only upon a clear case in that regard having been
made out. To permit or not to permit a recount is a question
involving jurisdiction of the court. Once a recount has been
allowed the court cannot shut its eyes on the result of recount on
c the ground that the result of recount as found is at variance with
the pleadings. Once the court has permitted recount within the
well-settled parameters of exercising jurisdiction in this regard, it
is the result of the recount which has to be given effect to."

D With respect we are not in a position to endorse the views taken
therein in its entirety. Unfortunately, the decision ofa 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 hereinbefore,
there cannot be any doubt or dispute that only because a recounting has
E been directed, it would not 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
F 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 wherefor there does not exist any
pleading.

G 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 MR.
H Gopalakrishan V. Thachady Prabhakaran, [1995) Supp. 2 sec 101).
M. CHINNASAMY v. K.C. PALANISAMY [S.B. SINHA, J.] 41

EXTENT OF PROOF : A
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 B
be discharged. (See Mahender Pratap v. Krishan Pal and Others, [2003]
1 sec 390).

In TH. Mustaffa (supra), this Court held that when the pleadings do
not contain the material facts and necessary particulars, any amount of
evidence would be insufficient. C
Even if the recount it was found that the returned candidate has not
secured majority of the votes, the result could not have been disturbed,
unless prima facie case of high degree of probability existed for recount
of votes. (See P.K.K. Shamsudeen v. K.A.M Mapil/ai Mohindeen, [1989] D
sec 526 at 530, 531 ).
For the reasons aforementioned, the· impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. However,
there shall be no order as to costs.
E
However, keeping in view the fact that the election petition is pending
for a long time, the High Court may consider the desirability of disposing
of the same as expeditiously as possible and preferably within a period of
three months from the date of receipt of a copy of this order. The records

.
....
· of the case, if received, be sent down fo11hwith. F
S.K.S. Appeals allowed.