One of the points involved in this case relates to the interpretation or rule 3A or Order XVIII of the Code of Civil Procedure and since the opposite party challenged the correctness of the decision of this Court in Shri Ram Maharaj V. Raj Kishore Bhagat1 this revision application has been placed before Division Bench for hearing.

2. The petitioner has been elected Municipal Commissioner from ward No. 4 of the Lalganj Municipality and the opposite party filed an election petition before the District Judge, Muzaffarpur, who is the Election Commissioner under the Bihar Municipal Elections and Election Petition Rules, 1953 (hereinafter referred to as 'the Rules'). The appellant, after examining five witnesses, wanted to examine himself. Relying upon Order XVIII Rules 3A of the Code of Civil Procedure, the petitioner objected to the prayer. The Court below held that the Rule 3A does not apply to the present case which is being heard under the Election Rules. The opposite party was accordingly, permitted to examine himself. The petitioner has filed the present revision application challenging the said order.

3. Mr. A. N. Chatterjee. appearing for the petitioner, has first contended that the provisions of the entire Code of Civil Procedure will apply to election petition cases under the Rule and he relied upon Rule 82 for this purpose, Sub-rule (2) of Rule 82 (omitting the proviso) is in the following terms ;-

"Subject to the provisions of these rules, every election petition shall be tried by the Election Commissioner, for Municipal Elections, as nearly as ma) be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits,"

The contention as pressed on behalf of the petitioner appears to be too wide to be accepted. However, since it is not necessary to decide in this case as to whether the entire Code of Civil Procedure will apply or not, we do not consider it expedient to deal with this aspect, The powers of the Election Commissioner has been enumerated in Rule 94 In the following terms -

"The Election Commissioner shall have the powers, which are vested in a court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters,-

(a) enforcing the attendance of witnesses;

(b) compelling the production of documents;

(c) examining witnesses on oath;

(d) granting adjournments;

(e) reception of evidence taken on affidavit; and

(f) issuing summons for examination of witnesses;

and may summon suo motu any person whose evidence appears to him to be material, and shall be deemed to be a civil court within the meaning of sections 489 and 482 of the Criminal Procedure Code, 1898,"

The Election Commissioner, therefore, undoubtedly has got power to examine witnesses on oath under clause (c) quoted above, Rule 82 appears to provide for the procedure for the exercise of the powers mentioned under Rule 94. It follows that in matter of examination of witnesses, Order XVIII of tile Code of Civil Procedure including Rule 3A must apply.

4. Mr. Yogendra Mishra appearing for the opposite party, argued that in any event, the Election Commissioner has been expressly given the power to act suo motu for summoning any witness whose evidence may appear to the Election Commissioner to be material and the order passed by the court below Is covered by this power. We do not find ourselves in a position to agree with the learned counsel. It was not the Election Commissioner in the present case who had directed the opposite part, to be examined as a witness nor did he express an opinion that examination of the opposite party would be, in his view, material for the case. The opposite party wanted to examine himself as witness and the Impugned order merely permits him to do so. It is, therefore not covered by the suo motu power of the Election commissioner and the order cannot be supported on that ground.

5. Mr. Yogendra Mishra next contended that the decision In Shri Ram Maharoj's case (Supra