M.C. Jain, J.
1. In this election petition, the petitioner has submitted an application for leave to present the replication to the reply filed by the non-petitioner.
2. The non-petitioner has raised a preliminary objection to the filing of the replication. Mr. M.M. Singhvi, learned counsel for the non-petitioner, submitted that there is no provision under the Representation of the People Act, 1951, (hereinafter referred to as 'the Act') permitting filing of replication and thescheme of the provisions on the contrary appears to be that by necessary implication and intendment, filing of replication by the petitioner is excluded even with the permission of the Court. Shri Singhvi referred to the provisions contained in Sections 83, 86(5) and 97 of the Act and submitted that the election petitioner is required to state all material facts on which the petitioner relies and full particulars of the corrupt practice have to be alleged by the petitioner and under Sub-section (5) of Section 86, the Court is empowered to allow the particulars of any corrupt practice to be amended or amplified but the Court is prohibited to allow any amendment which will have the effect of introducing particulars of a corrupt practice not previously alleged. It is only under Section 97 when recrimination is filed, according to Mr. Singhvi, replication is permissible. Mr. Singhvi urged that Section 87 cannot be pressed into service with a view that replication can be submitted with the leave of the Court in the face of the provisions contained in Section 83 and Section 86(5).
3. Shri Mehta, learned counsel for the petitioner, on the other hand refuted the contention of Shri Singhvi, learned counsel for the non-petitioner, and urged that the scope of Section 87 has been considered by the Supreme Court in Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav ((1975) 2 SCC 447). Shri Mehta urged that there is no provision in the Act which may be considered to be inconsistent with the provision contained in Order 8, Rule 9, C. P. C., nor that provision can be considered to be excluded expressly or by necessary intends ment. Thus, 6. 8 Rule 9, C. P. C. will fully apply and the petitioner is entitled only with the leave of the Court, to submit replication. The provisions of the Act do not in any way envisage exclusion of the provision of Order 8 Rule 9, C. P. C.
4. In the light of the submissions made by the learned counsel for the parties, the question that emerges for consideration is as to whether the petitioner can present replication with the leave of the Court under Order 8, Rule 9, C. P. C., as Code of Civil Procedure has been made applicable by Section 87 of the Act for the trial of the election petition. The relevant part of Section 87 of the Act lays down that subject to the provisions of the Act and of any rules made thereunder, every,election petition shall be tried by the High Court, 'as nearly as may be', in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. It may be pointed out that the application of the Code of Civil Procedure has been subjected to the provisions of the Act as well as the rules made thereunder. If any provisions under the Act or under the Rules made under the Act, are inconsistent with the provisions of the Code of Civil Procedure, then to that extent the provisions of the Code of Civil Procedure will have no application that is, overriding effect has been given to the provisions contained in the Act, as well as in the Rules, over the provisions of the Code of Civil Procedure. But where there is no inconsistency between the provisions of the Act and the Rules, and the provisions of the Code of Civil Procedure, then the Code of Civil Procedure will have application. It may be mentioned that the words, 'as nearly as may be', may suggest that they curtail the scope of application of the Code of Civil Procedure. To the extent, the application of Code of Civil Procedure is possible, the Code of Civil Procedure will apply, and the whole of the Code of Civil Procedure will not apply, where it is not possible. What is to be seen, is as to whether by necessary intendment it can be said that the provisions of Order 8, Rule 9, C. P. C. have been excluded from application. It cannot be denied that there is no express exclusion. I have not been referred to any provision in the Act whereby it can be said that the provision of Order 8, Rule 9, C. P. C., has been excluded. Reference to the provisions contained in Section 83 and Section 86(5) of the Act does not in any way lead to this conclusion that by virtue of these specific provisions relating to the contents of the petition, the provision of Order 8, Rule 9, C. P. C., stands excluded. These provisions simply lay down that the material facts have to be stated concisely and as regards corrupt practice, the petitioner is required to set forth full particulars, as full a statement as possible as mentioned in Clause (b) of Section 83 of the Act. The scope of the replication may be different than the contents of the election petition. Whether a necessity for replication arises on account of any pleas taken in the reply, has to be judged in a particular case in the light of the avernments made in the reply, but onthe basis of what is required to be pleaded in the election petition, it cannot be said that the provision relating to filing of subsequent pleading with the leave of the court has been done away with, In the case cited by Shri Mehta the provision contained in Section 87 of the Act, came up for consideration before the Hon'ble Supreme Court and their Lordships of the Supreme Court were pleased to observe as under:--
'A bare perusal of this section leada to the irresistible conclusion that election petitions shall have to be tried in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. In other words, election petitions would be tried like ordinary civil suits,'
'In fact we are clearly of opinion that Section 87 of the Act is of the widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions --(i) where the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code: and (ii) where a particular provision of the Code of Civil Procedure is either expressly or by necessary intendment excluded by the Act. Subject to these two exceptions, Section 87 is very wide in its connotation.'
5. In that case the question was whether Order XI of the Code of Civil Procedure is either expressly or impliedly excluded by Section 87 of the Act. The question was answered in the negative.
6. In my opinion the present case is not covered under any of the two exceptions, as considered above. As such the preliminary objection deserves to be overruled and it is hereby overruled.