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In support of the grounds of challenge, material averments are made in paras 4-5 of the election petition, which were denied in the written statement filed by the appellant. Since the High Court has set out the pleadings of the parties in sufficient details, we consider it unnecessary to repeat them. According to the respondent, Nikka Ram was an active worker of the Rashtriya Swayam Sevak Sangh (RSS) and was closely associated with the cadre and workers of RSS and BJP; the vote bank of the respondent as well as the said Nikka Ram by and large was common as both of them were in contact with the BJP and RSS workers, supporters and well-wishers; having failed to get BJP ticket, Nikka Ram filed his nomination paper as an independent candidate only with an object to cut into the votes of the respondent and damage his chances of election. Hence, the result of the election so far it concerned the appellant had been materially affected.

The appellant denied that nomination paper of Nikka Ram was wrongly and improperly accepted by the Returning Officer. It was also denied that acceptance of his nomination paper had materially affected the result of election insofar as it concerned the appellant. According to him it was wrong to say that a mere margin of votes would determine or would be relevant to determine that result of election has been materially affected. He also pleaded that he was not a member or active worker of BJP or RSS and he did not campaign in the election for votes as belonging to BJP.

As is evident from the election petition, the respondent did not specifically plead that Nikka Ram was a member of RSS and / or BJP except stating that he was an activist or actively associated with them; no documents were produced to establish that he was a member of RSS and / or BJP; similarly nothing was placed on record to show that he applied for and failed to get ticket from BJP to contest the election as a BJP candidate; however it is stated that the vote bank was common for both, the respondent and Nikka Ram. It is further stated that Nikka Ram secured 2287 votes whereas the margin of difference between the votes secured by the appellant and the respondent was only 759. As such the votes secured by Nikka Ram were disproportionately large, being three times more than the margin of difference between the votes secured by the appellant and the respondent; had the nomination paper of Nikka Ram been rejected, the votes polled in his favour would have definitely been polled in favour of the respondent as those were pro-BJP and anti- establishment. The main plank of the campaign of Nikka Ram was asking for votes in the name of Shri Atal Bihari Vajpayee; he being an RSS activist would stand by the side of Shri Atal Bihari Vajpayee if elected as MLA. Hence improper acceptance of nomination paper of Nikka Ram had materially affected election of the appellant so far he was concerned. It is not pleaded as to the pattern or trend of voting so as to show how the wasted votes secured by Nikka Ram could have been distributed. In his deposition the respondent (PW1) has not spoken to as to the trend of voting or possible distribution of votes between the contesting candidates but for Nikka Ram being in the field. He referred to greeting cards said to have been sent to several persons and he received one Exbt. PW1/1 which was marked subject to objection but ultimately that was not admitted in evidence. In examination-in-chief, he also stated that Nikka Ram had connection with RSS and was also associated with BJP. He did not assert or say that Nikka Ram was member of RSS and / or BJP. He admitted in cross-examination that in 1993 also, the appellant contested and won the election as an independent candidate. The respondent lost the election by a margin of 7300 votes. Congress candidate in that election got only 3000 votes. In 1989 election to Lok Sabha, Mr. Maheshwar Singh was the BJP candidate. He secured 5500 votes in this constituency, more than the Congress candidate and the respondent who contested the Assembly election in the year 1990 as a BJP candidate got less votes than the BJP Parliamentary candidate. He has admitted that witnesses cited by him were the BJP activists; they were office bearers of the party prior to 1991. He has further stated that one Ganga Singh, a former M.P. is a resident of his constituency and his Panchayat. He was not aware whether the said Ganga Singh supported him or opposed him. He was President of the BJP earlier. He has further admitted that it is correct that Nikka Ram never made any request for being made a member of the BJP in Nachan constituency. I have no proof to the effect that the request was made by Nikka Ram for obtaining the BJP ticket for Nachan constituency. I do not have the record indicating that Nikka Ram was the active member of the BJP. The request for being made a member is to be formally accepted by an authority. I am not aware whether the request made by Nikka Ram was accepted. In his evidence, he stated that he never found Nikka Ram canvassing in his presence. He only heard some people telling that he was trying to tell that after winning the election, he would formally join BJP. He was unable to give names or particulars of those some persons who were telling so. Although he made a statement that some members of the BJP joined Nikka Ram, he could not give their names, parentage, village, place, time and their whereabouts. As to Exbt. PW1/1, he admitted that it was not written in his presence; it was not signed by Nikka Ram in his presence and that his name, date and other particulars were also not written in his presence. He stated that this card was received by him through post. However, he did not have the possession of the envelope with him. In the cross-examination, he further admitted that wife of Nikka Ram had defeated the candidate of BJP in Zila Parishad elections and that she secured 3700 votes. The BJP candidate secured 1200 votes only. It is also admitted that wife of Nikka Ram was the President of Chatar Panchayat to which Tek Chand, the appellant, belonged. She defeated both the Congress and BJP candidates for the presidentship of the Panchayat. Nothing was brought on record to show that the relationship between Nikka Ram and his wife were strained or they belonged to different political parties or ideologies. From this evidence of the PW1, it is not at all possible to hold that Nikka Ram was either a member of RSS or BJP or was actively associated with them. One of the cardinal principles of evidence is that the best possible evidence should be placed before the court for establishing a particular fact or a relevant fact. Either to the membership or association of Nikka Ram with RSS or BJP, no documentary evidence was placed on record such as membership register, application form, correspondence or his participation in any of the programmes or activities of RSS or BJP. So much so, no documentary evidence was placed on record to show the trend of voting or distribution of votes between the contesting candidates belonging to different political parties or independent candidates during previous elections of either assembly, parliament or panchayat elections. No other witness for the respondent spoke about the possible distribution of so called wasted votes. Having regard to the evidence and in the absence of positive and cogent evidence lead on behalf of the respondent it is not possible to hold that how many out of the votes secured by Nikka Ram could have gone to the respondent so as to say that the result of the election was materially affected so far as it concerned the returned candidate. Looking to the above evidence it cannot be said that in this constituency all along BJP was leading and that the contest was only between two parties or that it was a strong hold of BJP. There were in all five candidates in the field. Damodar, candidate sponsored by Himachal Vikas Congress secured 9182 votes and Sohan Lal, Janata Dal 328 votes. It is also not possible to say with reasonable certainty or guess that all the votes secured by Nikka Ram or more than 759 votes could have gone in favour of the respondent if Nikka Ram was not in the field that too in the absence of any material to show the trend or probable distribution of wasted votes. Further, there were two other candidates also in the field. In this situation, how these 2287 votes of Nikka Ram could have been distributed among the remaining four candidates cannot be judicially guessed.

The statement of PW1 that all witnesses cited by him were active workers of BJP is to be kept in mind while appreciating their evidence. PW4 is one Ranvir. He stated that he was the President of the BJP of Mandi Sadar and he filled up membership form of Nikka Ram for BJP. In the cross-examination, he has admitted that Nikka Ram never applied for being enrolled as a member from Nachan Mandal; he applied for the membership from the Mandi constituency; membership was never given to him from Nachan constituency. He admitted that PW5, Ram Swarup, was the General Secretary of BJP of Mandi district; PW6, Joginder Singh, was the active member of BJP from Nachan constituency. He also stated that membership register of Nachan would be with its President but the said register was not produced. The evidence of this witness did not help the respondent to establish that Nikka Ram was member of BJP or he was associated with RSS or he was active worker of RSS or BJP. PW5 stated that Nikka Ram was one of the activists of the BJP. He was aspiring for BJP ticket from Nachan constituency. In his cross-examination, he stated that they had the list of the members of the BJP and that the name of Nikka Ram appeared therein but he could not produce that record. He further stated that names of members were received from Mandals and then the list was prepared; the name of Nikka Ram was received from Mandi Mandal. Those records were not produced. He, however, further stated that the membership of the BJP had not been conferred upon Nikka Ram. PW6, is Joginder Singh, proposer of the respondent in the election. He filed objection to the nomination paper of Nikka Ram. In his evidence he stated that he was an active participant in the RSS and Nikka Ram was associated with the activities of the RSS and BJP. The Returning Officer directed him to produce evidence that Nikka Ram was in the active service. He could not produce evidence as the time given was too short. In the cross-examination, he has stated that resignation was given by Nikka Ram in the year 1995. He had no personal knowledge as to whether the resignation was accepted or not. He did not make any written request to the Returning Officer to grant more time to place the record. PW7, Nand Lal, was the President of the Gram Panchayat Bara, from 1990 to 1995. He stated that he was associated with the BJP; Nikka Ram used to come and meet with a request to vote for BJP; when he was unable to get the BJP ticket, he told he was the worker of BJP, therefore, the votes should be given to him; Nikka Ram claimed himself as the man of Shri Atal Bihari Vajpayee on the ground that he belonged to that party. In the cross-examination, he admitted that he had no proof of the fact that Nikka Ram was an active member of the BJP. PW8, Uma Dutt, stated that he became a member of the BJP after his retirement. Nikka Ram was Junior Engineer in his Circle. He had known and seen Nikka Ram as an active member of the BJP. In his cross-examination he said that he helped the respondent in the election. He was not aware as to which Pradhan of Gram Panchayats belonged to which party and for which party they worked. He was also not aware who worked for the BJP or for the Congress or for the independent candidate. His evidence is of no help to the respondent. PW9, Prem Chaudhary, stated that he knew the appellant and Nikka Ram; Nikka Ram belonged to RSS; he received a greeting card; he also belonged to RSS; during election, Nikka Ram was soliciting votes as being member of BJP. In the cross-examination, he stated that he received the card in March 1997. He had not seen any record of membership of Nikka Ram. He stated that Nikka Ram attended training camp of the RSS with him but did not remember the date nor the month nor the year. He further stated that he helped Nikka Ram during the election, as he was one among them. The last witness PW10 examined in support of the election petition was Dhameswar Dutt, Pradhan of Gram Panchayat, Jhungi since 1993. He stated that a meeting was held in the Panchayat. In that meeting, Nikka Ram said that he belonged to BJP and was follower of Shri Atal Bihari Vajpayee. He further stated that the speech made by Nikka Ram did not have any impact on the members of the Panchayat. He denied that he was the active member of the BJP, although PW1 himself had stated that all his witnesses belonged to BJP. From this evidence, it cannot be said that the burden of proof placed on the respondent (election petitioner) was discharged. By this evidence, it was not established that Nikka Ram was either a member or activist of RSS and / or BJP. There was also no evidence to establish that he applied for BJP ticket and the same was denied to him. Similarly, there was no evidence to establish that he campaigned in the election that he belonged to BJP; he would join BJP in case he was elected and that he was supporter of Shri Atal Bihari Vajpayee. Further there was nothing to establish that voters of BJP and Nikka Ram were common. On the other hand wife of Nikka Ram contested an election as an independent candidate and defeated both BJP and Congress candidates. Having regard to the trend of voting in the previous elections, as brought out in the cross-examination of PW1 and in the absence of any evidence as to the distribution of wasted votes, it cannot be said that votes polled in favour of Nikka Ram would have gone in favour of the respondent if his nomination paper had not been accepted. This being the position, it is not possible to hold that the result of the election in so far it concerned the returned candidate was materially affected. Unfortunately, the High Court has recorded a finding otherwise. The High Court has found fault with the appellant saying that there was no rebuttal evidence as against the so called positive and cogent evidence led on behalf of the respondent (election petitioner), even when the respondent failed to establish his case by discharging burden of proof placed on him. Even otherwise the rebuttal evidence is very much there as contained in evidence of RWs 1-13.