The election petition must contain a concise statement of material facts on which the petitioner relies, and the material facts disclosed in the petition, read as a whole, should raise a triable issue relatable to S. 100 (1) (d) (iii) and (iv) of the Representation of People Act, 1951.

( 1 ) SHYAM Deurawa Assembly constituency No. 193, in District Gorakhpur went to polls on Mar. 2, 1985. After counting of votes on Mar. 6, 1985 Janardan Prasad Ojha, one of the 17 contesting candidates, who was declared elected by the Assistant Returning Officer, is said to have received 28135 valid votes. Amar Nath, who has challenged his election through the present Election Petition, was a close second having received 28013 votes. The difference of votes between him and Janardan Prasad Ojha, who is the first respondent in the petition, was thus of 122 votes.

( 2 ) THE election petition was presented in this Court on April 11, 1985. In it, the ground of challenge is contained in para. 5. The ground put forward is that the result of the election in so for as it contained Janardan Prasad Ojha, was materially affected by improper acceptance of invalid ballot papers as valid in favour of Ojha, by improper rejection of valid votes cast in favour of petitioner Amar Nath and by non-compliance with the provisions of the Conduct of Election Rules, 1961 and by other mistakes and irregularities committed during the course of counting in favour of Ojha.

( 3 ) THE concise statement of material facts in respect of the ground aforesaid is contained in paras. 7 to 23 of the petition. The prayer of the election petitioner is that, after allowing inspection of used and rejected ballot papers of the Constituency and their re-scrutiny and recount, the election of Ojha be declared void and petitioner Amar Nath be declared elected to the U. P. Legislative Assembly from 193 Shyam Deurawa Assembly Constituency.

( 4 ) ON Sept. 9, 1985 application A-5 was filed on behalf of the first respondent. This application, made under O. VI, R. 16, C. P. C. read with S. 86 (1) of the Representation of People Act. 1951 read with O. VII, R. 11 and S. 151, C. P. C. prays that certain paras. of the petition and schedule appended to it be struck off and the petition be dismissed as disclosing no cause of action.

( 5 ) THE challenge to the election of the first respondent is not on the basis of any corrupt practice. It is confined to a plea relating to Cls. (iii) and (iv) of S. 100 (1) (d) of the Act. Consequently, the petition is to contain only a concise statement of the material facts on which the petitioner relies as enjoined by S. 83 (1) (a ). The material facts disclosed in the petition, read as a whole, should raise a triable issue relatable to S. 100 (1) (d) (iii) and (iv ). Unlike the case where the allegations of corrupt practice are made and where details of the nature mentioned in S. 83 (1) (b) are to be disclosed, a case founded upon the ground mentioned in S. 100 (1) (d) (iii) and (iv) would merit trial, if the general allegations containing a concise statement of material facts raise a triable issue. (Arun Kumar Bose v. Mohd. Furkan Ansari, AIR 1983 SC 1311 and S. N. Balakrishna v. George Fernandez, AIR 1969 SC 1201. Evidence is not to be mentioned in the petition nor particulars to be given. Kidwai Husain Kamil v. Yadav Ram Sewak, AIR 1964 All 86; Birj Sunder Sharma v. Shri Ram Dutt, AIR 1964 Raj 99 and Manphul Singh v. Surinder Singh, AIR 1973 SC 2158.

( 6 ) THE petition is to be read as a whole and the allegations are to be construed properly, gathering the intention of the party concerned primarily from the tenor and terms of the pleadings taken as a whole. Udav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 and K. N. Mani v. P. J. Antony, AIR 1979 SC 234. The question whether some of the paragraphs of the petition deserve to be struck off under O. VI, R. 16, C. P. C. is to be decided on a consideration of the averments contained in the Election Petition on the assumption that they are true and having regard to the language of R. 16 of O. VI, C. P. C. it has to be found out whether the averments sought to be struck off are either unnecessary, frivolous and vexatious or that they are such as may tend to prejudice, embarass or delay f