A recrimination petition under the election law is in the nature of a counter-claim subject to the Code of Civil Procedure. While notice is procedurally required for such counter-claims, the court may defer its issuance if the petition is consequential to the primary election dispute's outcome.

JUDGMENT :

MANISH MATHUR, J.

Order On C. M. Application No.IA/43 of 2024.

1. Application has been filed for issuance of notice on I.A. No.32 of 2024 filed by respondent No.1 of Election Petition. The said application has been filed pertaining to Recrimination Petition which has been numbered as I.A. No. 32 of 2024 in the Election Petition.

2. Heard Mr. Anupam Mehrotra, learned counsel for recriminator/ respondent no.1 to the Election Petition, Mr. Sudeep Seth, learned senior counsel assisted by Mr. Rajnish Ojha, learned counsel for Election Petitioner and Mr. Sudhir Pandey, learned counsel for respondent no.4 in the Election Petition.

3. Mr. Anupam Mehrotra, learned counsel for recriminator/ respondent no.1 has submitted that earlier subsequent to filing of Election Petition, recrimination petition had been filed under Section 97 of the Representation of People Act, 1951 with the said recrimination petition initially being registered as Writ C No.4613 of 2022 in which notice was issued vide order dated 21.07.2022 whereafter the said recrimination petition was directed to be listed as an interim application in the election petition itself resulting as application no.32 of 2024.

4. It is submitted that since notice was issued initially in the writ petition and not in a recrimination petition, fresh notices are required therefore to be issued in the recrimination petition to all the respondents particularly since even when the recrimination petition was registered as writ petition, despite issuance of notices, such notices have not been served upon all the respondents.

5. Elaborating upon his submissions, learned counsel has placed reliance on Chapter XV-A, Rule 5 of the Allahabad High Court Rules pertaining to special provisions relating to the trial of election petitions and submits that the said provision clearly indicates the provision for issuance of notices in an election petition. It is submitted that such a notice is required to the respondents to put up their defence, file the written statement and for purposes of leading evidence.

6. He has also referred to Chapter XV-A, Rule 12 of the Allahabad High Court Rules to submit that the Court has power to give directions in matters of practice and procedure which is consistent with the provisions of Section 87 of the Act of 1951 including recording of evidence.

7. He has also adverted to Section 87 of the Representation of People Act, 1951 to submit that before the High Court, every election petition has to be tried as nearly as may be, in accordance with procedure applicable under the Code of Civil Procedure 1908, to the trial of suits.

8. It is therefore submitted that since provisions of Code of Civil Procedure are applicable, provisions of Order V Rule 9, Order VII, Rule 9 and Order VIII, Rule 6A (4) of the Code are required to be followed.

9. It is submitted that in terms of Order VIII, Rule 6-A, procedure in case of a counter claim by defendant has been indicated and submits that in case of such a counter claim in respect of cause of action accruing to the defendant against the plaintiff, the same procedure is required to be followed as applicable to plaints & consequently as indicated in Order V and Order VII of the Code.

10. It is submitted that Order VII, Rule 9 of the Code indicates proc