IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 5420 of 2010 1. AFROJ ALAM S/O SAMIUR RAHMAN R/O VILL.- BUDHAILI, P.O. GOASI, P.S. K.NAGAR, DISTT.- PURNIA Versus 1. THE STATE OF BIHAR THROUGH THE STATE ELECTION COMMISSION, SONE BHAWAN, BORING CENNAL ROAD, PATNA 2. SRI RAN VIJAY SINGH S/O LATE RAJESHWAR SINGH R/O VILL.- SATKODARIA TOLA DUMARIA, P.O. GOASI, P.S. K.NAGAR, DISTT.- PURNIA 3. SRI AJOY KUMAR BHAGAT S/O LATE KESHAV BHAGAT R/O VILL.- SATKODARIA PURAB TOLA, P.O. GOASI, P.S. K.NAGAR, DISTT.- PURNIA 4. SRI ATAUR RAHMAN S/O SAFIUR RAHMAN R/O VILL.- BUDHAILI, P.O. GOASI, P.S. K.NAGAR, DISTT.- PURNIA 5. SRI ABHINANDAN SINGH S/O KALI PRASAD SINGH R/O VILL.- SATKODARIA MARAR TOLA, P.O. GOASI, P.S. K.NAGAR, DISTT.- PURNIA 6. SRI BHIM LAL GOSWAMI S/O SRI BHOLA GOSWAMI R/O VILL.- SATKODARIA PURAB TOLA, P.O. GOASI, P.S. K.NAGAR, DISTT.- PURNIA 7. SRI ARVIND KUMAR, RETURNING OFFICER, VILLAGE PANCHAYAT ELECTION, K.NAGAR BLOCK-CUM-B.D.O. K.NAGAR, P.O. AND P.S. K.NAGAR, DISTT.- PURNIA 8. DISTRICT VILLAGE PANCHAYAT ELECTION OFFICER-CUM-DISTRICT MAGISTRATE, PURNIA 9. SRI RAM NARESH BHAGAT, ASSISTANT TEACHER ZILA SCHOOL, PURNIA, P.O. AND DISTT.- PURNIA. POLLING OFFICER OF BOOTH NO. 195, WARD NO. 2, ANGANBARI KENDRA ALI NAGAR NORTH SIDE UNDER VILLAGE PANCHAYAT SATKODARIA, P.S. K.NAGAR, DISTT.- PURNIA 10. SRI KEDAR LAL DAS, HEAD MASTER GIRLS PRIMARY SCHOOL, DHOKARDHARA BANMANKHI, P.S. BANMANKHI, DISTT.- PURNIA POLLING OFFICER OF BOOTH NO. 196, WARD NO. 3, PRIMARY SCHOOL, ALI NAGAR UNDER VILLAGE PANCHAYAT SATKODARIA 11. SRI MD. NOOR ALAM, ASSISTANT TEACHER, HIGH SCHOOL, HAPHINIYA, P.O. HAPHINIYA, VIA AMOUR, DISTT.- PURNIA POLLING OFFICER BOOTH NO. 197, WARD NO. 3, ANGANBARI KENDRA, ALI NAGAR SOUTH SIDE UNDER VILLAGE PANCHAYAT SATKODARIA 12. SRI GAYANSHWAR JHA, ASSISTANT TEACHER, ADARSH MADHYA BIDAYALYA ANUP NAGAR, BELOURI, P.O. BELOURI, P.S. SADAR, DISTT.- PURNIA POLLING OFFICER BOOTH NO. 198, WARD NO. 5, KRISHNA MISSION DEOKI MOHANPUR UNDER VILLAGE PANCHAYAT SATKODARIA *** For the petitioner : Mr S A Narain, Sr Advocate with M/s S Firoz Raza & Khatim Raza, Advocates For the Commission : Mr Sanjeev Nikesh, Advocate *** 2 13.05.2010 By this writ application, the petitioner challenges the order 2 dated 16.03.2010 passed by the Munsif, Sadar Purnea in Election Suit (Miscellaneous) No 11 of 2006. By the said order, the learned Election Tribunal has refused to entertain the prayer of the election petitioner, the writ petitioner for ordering recount of votes at that stage. Mr S A Narain, learned Senior Counsel appearing in support of the writ petition submits that in the plaint itself, in paragraph-12 thereof, it has been clearly mentioned that finding irregularity in counting, petitioner had protested and sent fax letter to the Election Commission apart from protesting before the Returning Officer. That being so, it was a fit case in which recount ought to have been done. On the other hand, the contesting party, in the Election Petition, took a preliminary objection that the petition was premature as evidence was still to be led in the trial. The Election Tribunal has virtually accepted the plea of the opposite parties. Having heard the learned Senior Counsel, in my view, the order requires no interference. An order of recount is an order final in nature which could only be passed at the conclusion of trial upon facts brought on record by evidence. Plaint or pleadings are only foundation for the evidence to be led in trial and the judgment or the order is to be based on evidence brought on record. Thus, unless these sequences of events are completed, no final order can be passed much less an order requiring recount of votes. Thus, there is no merit in this writ application. It is dismissed accordingly. M.E.H./ (Navaniti Prasad Singh)