Civil Appeal No 104 of 1975 Appeal by special leave from the judgment and order dated the 12th December 1974 of the Allahabad High Court in Application Paper No A 53 in Election Petition No 30 of 1974
Yogeshwar Prasad and Rani Arora for the appellant K C Agarwala and K M L Srivastava for respondent No 1
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by special leave involves an interpretation of the scope and ambit of section 87 of the Representation of the People Act 1951 as amended by Act 47 of 1966
The short point that fails for determination in this appeal is as to whether or not the provision of O XI of the Code of Civil Procedure can be applied to the trial of election petitions in the High Court by force section 87 of the said Act
For the purpose of brevity the Representation of the People Act 1951 shall be referred to as the Act of 1951 shall the Representation of the People Act as amended by Act 47 of 1966 as the Act 
The circumstances under which this appeal arises may be succinctly stated as follows
An election for the UP Legislative Assembly for 275 Allahabad North Assembly Constituency was held on February 6 1974 In this election the appellant was a candidate put up by the Congress Ruling party and his election was contested by the first respondent Ram Adhar Yadav who was set up by the Samukta Socialist party
The appellant was declared duly elected in the said election and the respondent No 1 was defeated
The respondent No 1 filed an election petition being Election Petition No 30 of 1974 in the High Court of Allahabad some time in April 1974 challenging the election of the appellant on various grounds
The appellant filed a detailed written statement denying all the allegations made by the first respondent in his petition
The election petition was assigned to J M L
Sinha J who framed a number of issues on October 4 1974
In October 1974 respondent No 1 filed all application being Paper No A53 under O XI r 1 of the Code of Civil Procedure for grant of leave to respondent No 1 to deliver interrogatories in writing for the examination of the appellant and filed certain interrogatories along with his application
The appellant filed her objections being Paper No A54 to the said application contending inter alia that the procedure prescribed under OXI relating to interrogatories was not applicable to the trial of election petitions in the High Court and was not covered by section 87 of the Act
The application filed by the first respondent and the objections of the appellant came up for consideration before the learned Single Judge who by his order dated December 12 1974 held that the provisions of OXI fully applied to the election petitions and accordingly rejected the objections filed by the appellant
Hence this appeal by special leave
257 It appeals that under the Act of 1951 the power to try election petitions was conferred on the Tribunal and section 92 of that Act expressly conferred powers under OXI of the Code of Civil Procedure on the Tribunal
The relevant portions of section 92 of the Act of 1951 may be extracted thus The Tribunal shall have the powers which are vested in a court under the Code of Civil Procedure 1908 Act V of 1908 when trying a suit in respect of the following matters a discovery and inspection x x x x g issuing commissions for the examination or witnesses and may summon and examine suo motu any person whose evidence appears to it to be material and shall be deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure 1898 Act V of 1898
 By the Amendment Act 47 of 1966 this section was however deleted and section 90 of the Act of 1951 was replaced by section 87 of the Act which was the same as section 90 of the Act of 1951
Mr Yogeshwar Prasad counsel appearing for the appellant has submitted two points before us
In the first place he contended that the provisions regarding inspection and discovery and interrogatories as contained in OXI of the Code of Civil Procedure are not an integral part of the procedure in a civil suit but are special powers contained in the Code and cannot therefore be made applicable to election petitions which are proceedings of a special nature
In simplification of this argument it was argued that the history of the English Law as also the Election Law of our country before independence would show that the procedure contained in OXI of the Code of Civil Procedure was not made applicable to the trial of election petitions
It is however not necessary for us to examine the history of this matter because the Act of 1951 settles the issue
When the Parliament expressly conferred powers contained in OXI on the Tribunal under the statutory provision of section 92 of the Act of 1951 it must he presumed to have made a drastic departure from the old law on the subject and particularly the English Law
In view of this enactment therefore it cannot be said that the provisions of our Election Law particularly in regard to section 92 of the Act of 1951 were in pari materia with the provisions of the English Law on the subject
In fact section 92 incorporating the entire provisions of OXI of the Code of Civil Procedure was expressly enacted so that the elected representatives also may be subjected to the same law of the land such as the Code of Civil Procedure as any other citizen
In these circumstances we are unable to apply the English Law to the Act in order to hold that the principles contained in O XI of the Code of Civil Procedure are excluded from the trial of election petitions
The first contention put forward by counsel for the appellant must therefore fail
258 It was then contended that even though express powers for inspection and discovery were conferred on the Tribunal under section 92 of the Act of 1951 yet by virtue of the amendment under Act 47 of 1956 this express provision was deliberately deleted which shows that the Parliament intended to give special protection to the elected representatives so as not to compel them to answer interrogatories
This is no doubt an attractive argument but on closer scrutiny it does not appear to be tenable
The argument completely overlooks the object of the Amendment Act 47 of 1966
By virtue of this enactment a basic change in the trial of election petitions was sought to be introduced
Before 1966 the power to try election petitions was conferred on the Tribunal which was not a civil court and therefore special powers had to be conferred on it
fact clause g of section 92 of the Act of 1951 extracted above clearly shows that the Tribunal was deemed to be a civil court hence there was the necessity of conferring special powers contained in OXI of the Code of Civil Procedure on the Tribunal to avoid further doubts
After the amendment of 1966 as the election petitions were to be tried by the High Court section 87 of the Act which is based on section 90 of the Act of 1951 was considered sufficient to contain the entire procedure to be adopted by the High Court in trying the election petitions which were to be in accordance with the Code of Civil Procedure as far as applicable
Since the High Court is a court of record and a civil court is not it was not at all necessary for the Parliament to have enacted a separate section like section 92 of the Act of 1951 and that is why section 92 was considered to be unnecessary in view of the change of forum and was deleted under the amended Act
From this it cannot be contended that the Parliament intended that the provisions of O XI of the Code of Civil Procedure 1 should not apply to the election petitions tried by the High Court under the Act
Counsel for the appellant was unable to cite any authority directly in point
On the other hand the view which we have taken in this case is amply supported by number of authorities of this Court as well as other High Courts
To begin with this Court as far back as 1951 while considering sections 90 and 92 of the Act of 1951 observed in Harish Chandra Bajpai vs Triloki Singh1 thus The second contention urged on behalf of the appellants is that if the provisions of the Civil Procedure Code are held to be applicable in their entirely to the trial of election petitions then there was no need to provide under section 92 that the Tribunal was to have the powers of courts under the Code of Civil Procedure in respect of the matters mentioned therein as those powers would pass to it under section 902
But this argument overlooks that the scope of section 902 is in a material particular different from that of section 92
While under section 902 the provisions of the Civil Procedure Code are applicable only subject to the provisions of the Act and the rules made thereunder there is no such limitation as regards the powers conferred by section 92
It was obviously the intention of the legislature to put the powers of the Tribunal in respect of 259 the matters mentioned in section 92 as distinguished from the other provisions of the Code on a higher pedestal and as observed in Sitaram vs Yograjsingh AIR  they are the irreducible minimum which the Tribunal is to possess
3 It is then argued that section 92 confers powers on the Tribunal in respect of certain matters while section 902 applies the Civil Procedure Code in respect of matters relating to procedure that there is a distinction between power and procedure and that the granting of amendment being a power and not a matter of procedure it can be claimed only under section 92 and not under section 902
We do not see any antithesis between procedure  in section 902 and powers  under section 92
When the respondent applied to the Tribunal for amendment he took a procedural step and that he was clearly entitled to do under section 902
The question of power arises only with reference to the order to be passed on the petition by the Tribunal
Is it to be held that the presentation of a petition is competent but the passing of any order thereon is not  We are of opinion that there is no substance in this contention either
 The Court pointed out that the object of section 92 was merely to secure powers of the Court in respect of the matters mentioned therein and that there was no antithesis between sections 902 and section 92 of the Act of 1951
Similarly in Sitaram Hirachand Birla vs Yograjsingh Shankarsingh Parihar and others1 Chagla CJ clearly pointed out that the distinction between the power and procedure was completely artificial and a distinction without any difference
The learned Chief Justice speaking for the Court observed as follows In our opinion Mr Kotwal is right because on principle it is difficult to make a distinction between procedure and the powers of a Court as suggested by Mr Patwardhan
The whole of the Civil Procedure Code as its very name implies deals with procedure
In the course of procedure the Court always exercises powers and when the Court is exercising its powers it is exercising them in order to carry out the procedure laid down in the Code
Therefore procedure and powers in this sense are really interchangeable terms and it is difficult to draw a line between procedure and powers
The powers conferred under section 92 is not any substantive power it is procedural power a power Intended for the purposes of carrying out the procedure before the Tribunal
 In a recent decision of the Full Bench of the Allahabad High Court in Duryodhan vs Sitaram and others2 the Court held that the matters mentioned in section 92 appertain to the procedure for trial and are also attracted by virtue of section 90l
The Court observed as follows 260 In my opinion the matters mentioned in Section 92 appertain to the procedure for trial and are also attracted by virtue of Section 901
They were separately stated in Section 92 to make them operate inspite of any provision to the contrary in the Act or the Rules and not with a view to curtail the amplitude of Sec
901
The provisions of O9 Rr 8 and 9 Civil PC even if they deal with powers would be procedural powers and be attracted by virtue of Section 90 1  
 While dealing with the scope and ambit of s90 of the Act 1951 this Court in Dr Jagjit Singh vs Giani Kartar Singh and others1 observed as follows 
The true legal position in this matter is no longer in doubt
Section 92 of the Act which defines the powers of the Tribunal in terms confers on it by Cl
a the powers which are vested in a Court under the Code of Civil Procedure when trying a suit inter alia in respect of discovery and inspection
 A Full in Bench of the Punjab High Court in Jugal Kishore vs Dr Baldev Prakash2 while construing the provisions of section 87 of the Act clearly pointed out that the High Court was a Court of record and possessed all inherent powers of a Court while trying election petitions
In this connection Grover J observed as follows It is quite clear that there is no distinct provision in the Act laying down any particular or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecuting the petition
The provisions of the Code of Civil Procedure would therefore be applicable under Section 87 of the Act
I am further of the opinion that any argument which could be pressed and adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of record and possesses all inherent powers of a Court while trying election petitions
 We fuly approve of the line of reasoning adopted by the High Court in that case
The Rajasthan High Court in Keshari Lal Kavi and another vs Narain Prakash and others3 followed the Punjab case and has taken the same view
Some reliance was placed by the learned counsel for the appellant on the decision in Inamati Mallappa Basappa vs Desai Basavarai Ayyappa and others4 where this Court held that the procedure contained in O 23 r 1 of the Code of Civil Procedure did not apply to election petitions and therefore on a parity of reasoning O CPC also could not be applicable to the trial of election petitions
261 We are however unable to agree with this argument
The provision contained in O 23 r 1 cannot be equated with the provisions of o XI because the election petition being a matter of moment and concerning the entire costituency there could be no question of the election petition being withdrawn by the petitioner who had filed the same
This was highlighted by this Court in that case when the Court observed as follows Order 23 r1 sub rule 2 provides for liberty being given by the Court to a party withdrawing or abandoning a part of his claim to file a fresh suit on the same cause of action if so advised
in the very nature of things such liberty could not be reserved to a petitioner in an election petition
x x x x x x On a due consideration of all these provisions we are opinion that the provisions of o 23 r 1 do not apply to the election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission
 Having regard to the nature of the election Petition the notion of abandonment of the claim or withdrawal is absolutely foreign to the scope of such proceedings and must therefore be held to be excluded by necessary intendment of section 87 of the Act itself
This authority therefor does not appear to be of any assistance to counsel for the appellant
The matter however seams to be concluded by a recent decision of this Court in Virendra Kumar Saklecha vs Jagjivan and others1 where the Chief Justice speaking for the Court interpreted section 87 of the Act and observed as follows Under Section 87 of the Act every election petition should be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits
Under Section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their super vision and may by such rules vary alter or add to any of the rules in the First Schedule to the Code
 The relevant part of section 87 runs thus  1 Subject to the provisions of this 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  A bare perusal of this section leads to the irresistible conclusion that election petitions shall have to be tried in accordance with the proce 262 dure applicable under the code of Civil Procedure to the trial of suits
In other words election petitions would be tried like ordinary civil suits
We are unable to agree with counsel for the appellant that O XI does not form part of the trial of suits but is a special procedure
This is repelled by a oreference to O XI of the Code of Civil Procedure itself
It will appear that O X relates to the procedure for examination of parties by the Court and O XI is a part of that procedure because it provides that where witnesses are not able to appear before the Court personally they are examined through interrogatories
In these circumstances therefore O XI is as much a part of the procedure as O X relating to trial of suits in matters regarding summoning of witnesses documents etc
In these circumstances it cannot be said that section 87 of the Act either expressly or impliedly excludes the application of O XI of the Code of Civil Procedure
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 any necessary intendment excluded by the Act
Subject to these two exceptions section 87 is very wide in its connotation We therefore agree with the learned Single Judge who was trying the election petition that the application for interrogatories was one of the logical steps in aid of the prosecution of the petition and was fully covered by section 87 of the Act
The second contention raised by counsel for the appellant thus fails
For the reasons given above there is no merit in this appeal which fails and is accordingly dismissed with costs
VPS Appeal Dismissed


Summary:
An application for delivery of interrogatories is one of the logical steps in aid of the prosecution of an election petition and is fully covered by section 87 of the Representation of the People Act 1951
C1 1 Order XI CPC forms part of the trial of suits and is not a special procedure
Order X relates to the procedure for examination of parties by the Court and o XI is a part of it because it provides for examination through interrogatories when personal appearance is not possible
262A B 2 Before Act 47 of 1966 amended the Representation of the People Act 1951 the power to try election petitions was conferred on the Erection Tribunal
That Tribunal was not a Civil Court but was deemed to be a Civil Court
Though section 90 as it then stood provided that every election petition shall be tried as nearly as may be in accordance with the procedure under the CPC in order to avoid doubts the special powers under O Xl CPC were conferred on the Tribunal by section 92
When Parliament has expressly conferred the powers contained in OXI on the Tribunal it could not be contended that the principles contained therein are excluded from the trial of election petitions on the basis of English Law
257F H 3 After the amendment of 1966 as election petitions are to be tried by the High Court a Court of Record section 87 which is based on the repealed section 90 is sufficient to contain the entire procedure to be adopted by the High Court in trying election petitions
Section 87 is of widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions a when the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code and b when a particular provision of the Code is either expressly or by necessary intendment excluded by the Act
That is why a provision like the repealed section 92 is unnecessary and it cannot be contended that since Parliament repealed that section Parliament intended that the provisions of O XI CPC should not apply to election petitions tried by the High Court
258A E 269C D Sitaram Hirachand Birla vs Yograisingh Shankarsingh Parihar and others AIR 1953 Bom
293 Durvodhan vs Sitaram and others AIR 1970 All 1 Jugal Kishore vs Dr Baldev Prakash AIR 1968 Punj 152 FB and Keshari Lal Kavi and another vs Narain Prakash and others AIR 1969 Raj 75 referred to
Dr Jagjit Singh vs Giani Kartar Singh and others AIR 1966 SC 773 and V K Sakleha vs Jagjiwan   followed
4 Merely because in Inamati Mallappa Basappa vs Desai Basavaraj Ayyappu and others  it was held that the procedure contained in O 23 r 1 CPC does not apply to election petitions it could not be contended that O XI CPC would not also be applicable to election petitions
Order 23 r 1 cannot be equated with the provisions of O XI
Having regard to the nature of an election petition which is a matter of moment and concern to the entire constituency the notion of abandonment of the claim or withdrawal is absolutely foreign to the scope of such proceedings and must therefore be held to be excluded by the necessary intendment of section 87 itself
260H 261 B D E 256