M.C. JAIN, J.— 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 the scheme 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 (S) of Sec. 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 Sec. 97 when recrimination is filed, according to Mr. Singhvi. replication is permissible. Mr. Singhvi urged that Sec. 87 cannot be pressed into service with a view that replication can be submitted with the leave of the Court in the fact of the provisions contained in Sec. 83 and Sec. 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 Sec. 87 has been considered by the Supreme Court in Dr. Rajendra Kumari Bajpai vs. Ram Adhar Yadav (1) Shri Mehta urged that there is no provision in the Act which may be considered to be inconsistent with the provision contained in Or. 8, Rule 9, C.P.C., nor that provision can be considered to be excluded expressly or by necessary intendment. Thus, Or. 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 Or. 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 Or.8, Rule 9, C.P.C., as Code of Civil Procedure has been made applicable by Sec. 87 of the Act for the trial of the election petition. The relevant part of Sec. 87 of the Act laps 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, over-riding 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

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