Ashok Agarwal, J.
1. By the present election petition the petitioner has prayed for a declaration that the election of the first respondent to the Vidhana Sabha Elections from the 41 Andheri Assembly Constituency held on 27th February 1990 is null and void and/or illegal on the ground that the first respondent and this agents and other persons with his consent have committed corrupt practice as defined under section 123 of the Representation of Peoples Act as well as for violation of the other provisions of the said Act. The petitioner has further prayed for a declaration that he has been duly elected in the said election. The said petition was filed on 16th April 1990. By my order passed on 7th June 1990 the petition was accepted and was made returnable on 23rd July 1990. The first respondent who is the returned candidate was served on 31st July 1990. On 28th August 1990, the first respondent appeared and applied for four weeks time to file the written statement and the same was granted. The first respondent filed his written statement dated 28th September 1990, on 1st October 1990. After all the respondents were duly served, the petition was placed on board for hearing on 8th October 1990. After the pleadings in the case were perused with the assistance of the learned Counsel appearing on behalf of the petitioner and the first respondent, by my order dated 10th October 1990 the issues in the case were settled. I further posted the petition for arguments on Issue Nos. 1 and 2 for being heard and decided today. The said issues are as under :-
1. Whether the petitioner proves that the pleadings in the written statement of the first respondent at para No. 3(i) to 3(viii) are abusive, scandalous, vexatious and irrelevant and has been made with the sole intention of delaying the trial of the petition and/or embarasses the petitioner and hence is liable to be struck out under the provisions of Order VI, Rule 16 of the Code of Civil Procedure?
2. Whether the petitioner proves that the pleadings at Para 3(xix) as well as Paras 4, 5and 6 of the Written Statement of the first respondent are liable to be rejected and/or the first respondent is not entitle to take up the said pleas on the ground that he has not filed a Recrimination Petition as provided under section 97 of the R.P. Act, 1951?
2. Shri Bhandari learned Counsel appearing on behalf of the petitioner has contended that the averments contained in para No.3(i) to 3(viii) are irrelevant for the decision of the issues arising in the present petition. According to him, the save have been made in order t protract and/or delay the hearing of the petition. The same are unnecessary, irrelevant , firevolour and embarassing and are put forth for the purpose of confusing or protracting the trial. According to Shri Bhandari, the averments contained in the aforesaid paragraphs are liable to be struck off under the provisions or Order VI, Rule 16 of the Code of Civil Procedure.
3. Shri Bhandari further submitted that the averments contained in paragraphs 3(xix), 4, 5 and 6 are also liable to be struck off on the ground that the first respondent has not filed recrimination as provided under section 97 of the Representation of Peoples Act. The present petition contains a prayer not only for a declaration that the election of the first respondent be declared as null and void but a further declaration that the petitioner has been duly elected. Since the first respondent has failed to file recrimination he is debarred from claiming or leading evidence to prove that the elections of the petitioner would have been void if he had been the returned candidate. The first respondent in paragraphs 3(xix), 4, 5 and 6 of the written statement has pleaded facts which seek to challenge the validity of the petitioner's election on the ground inter alia that he is guilty of corrupt practices. Since section 97 of the Representation of Peoples Act bars the first respondent from leading evidence in this behalf the averments contained in the aforesaid paragraphs are liable to be struck off.
4. Shri Vashi, the learned Counsel appearing on behalf of the first respondent on the other hand submitted that this is not the stage where the Court should be called upon to decide upon the aforesaid issues. According to him, these issues would be relevant during the course of leading of evidence. He further submitted that the facts pleading in the aforesaid paragraphs in the written statement would be relevant in the matter of appreciation of evidence. According to him, these issues could well be settled at the final hearing of the petition.
5. It would be convenient at this stage to reproduce the relevant paragraphs contained in the written statement which are the subject matter of the present controversy. They are as follows :-
"3(i) This respondent started his career as a social worker at a young age of 25 years. In the year 1968 he contested as a Congress Party candidate for the Municipal Election from Ward No.(sic) covered the area of Mogra, Gundivli, Andheri (East), and he got himself elected. In the said election, he was elected with a higher margin because of his interest in the educational activities of the Corporation.
(ii) This respondents say that in the year 1973 he again got elected to the Municipal Corporation.
(iii) In the year 1978 this respondent again was elected as a Municipal Councillor to the Municipal Corporation.
(iv) In the year 1973-75 this respondent was elected as the Chairman of the Education Committee unopposed. Thereafter he was also elected as a leader of the Congress Party in the Municipal Corporation as also the leader of the opposition in the Congress Party. Apart from the from the above positions, this respondent was elected on the statutory committees, namely, the BEST Committee, Improvement Committee, Standing Committee, Special Committee and Works Committee and Medical Health Committee etc.
(v) This respondent was also appointed as Chairman of the Minimum Wages Committee for Milk Producers Labour, which was appointed by the Government of Maharashtra.
(vi) This respondent says that during his tenure as a Municipal Corporator, he proposed and carried out the works of civic amenities in the slum areas namely, Mogra, Gondivli, Ambawadi and other Slums. This respondent says that at his initiative the Municipal Corporation carried out the work of repairing the roads drainage, Nallahs, widening of the roads, provide more water for the slum dwellers, Municipal Schools, Best Bus Services and the electricity supply for the slum dwellers and public conveniences.
(vii) This respondent says that in the year 1985, he contested the election for the Vidhan Sabha from 41 Andheri East Constituency as a Congress (I) candidate and he got elected by a thumping majority and by a margin of 30,000 votes.
(viii) During his tenure as MLA from 1985 he discharged his duties and functions to the best of his ability and to the satisfaction of the people. In his constituency there are 70 p.c. slum dwellers. In order to improve the livings lot of the slum dwellers, this respondent utilised the MLA funds from time to time as mentioned below. These funds are meant to be spent on small amenities in the areas which are declared as slums by the Government.
(xix) This respondent says that the petitioner himself in his election speech in the meeting held within the MIDC Police Station on 17-2-1990 said to the effect that "for the other communities and religions there are separate laws and for the Hindus there are separate laws. The votes of non-Hindus always go to the Congress Party. The petitioner further made allegations in the same meeting that similarity the Prime Minister V.P. Singh has kept an eye on the elections and adopted Green Colour for the Janta Dal to appease the Muslims". This respondent says that on the other hand, the petitioner was so communal that his agents, Khatu, Dandekar, Khadekar and others gave the slogans at Shamnagar, Jogeshwari factory for Hindutva. This respondent craves leave to refer to and rely on the Police Election Diaries, news paper reports and other materials when produced. This respondent submits that in fact the petitioner himself has not come to the Court with clean hands.
4. This respondent says that the petitioner was a candidate of BJP-Shiv Sena alliance. During the election campaign the petitioner resorted to corrupt practices by appealing by himself, his agents, and supporters with his consent and knowledge that the alliance claims to protect Hindu Religion and Hindu Culture. A prominent strategy adopted by the petitioner was that as majority of voters from the Andheri Constituency belonged to Hindu religion, the petitioner projected himself as the sole champion of Hindus and projected that Hindus should cast their votes to him alone. The inaugural campaign meeting for the said assembly election, was held at Girgaun Chowpatty on 29th January 1990. The said meeting was addressed amongst others by leaders like Shri Balasaheb Thackerey, and Shri Pramod Mahajan, General Secretary of BJP. Various other leaders of the said alliance and 34 candidates, alliance of the said for the said assembly election from Bombay City were present on the dias. In the said meeting, Shri Thackeray said that the alliance will win the election on the plank of Hinduism and the Bombay Citizens will have no other alternative but to elect the candidates of the said alliance. This respondent relies upon the news paper reports, other materials, brouchers, leaflets etc. and the police diaries when produced.
5. This respondent says that during the Assembly election campaign the said alliance had taken video cassets for the purpose of campaigning for their candidates. This respondent submits that the petitioner has used the said Video Cassets and had shown them in the various parts of Andheri Constituency. This respondent relies upon the same when produced. The said Video Cassets were objectionable inasmuch as it offended the various provisions of the Representation of Peoples Act in the sense that it sought to make an appeal in the name of religion.
6. This respondent submits that the petitioner is one of the prominent union leaders of Bhartiya Kamgar Sena. The petitioner has got his units working in the prominent hotels like Centaur, Leela Kampinski and Hotel Imperial Palace. The petitioner, therefore, took extensive advantage from the management of these hotels by getting thousand of food packets on the day of the election."
6. A perusal of the aforesaid paragraphs 3(i) to 3(viii) would show that the first respondent in the said paras has dwelt upon his past career as a social worker and a politician. He has dwelt upon the achievements which he has acquired during the period 1968 upto date. The question that falls for consideration is whether the facts pleaded in the said paragraph are relevant or germane for the decision of the present election petition.
7. While deciding the above questions, it has to be borne in mind that this Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the statute under which it is conferred the power to hear the election petition. An election petition as has been pointed out again and again is not an action at law or a suit in equity, but is a purely statutory procedure unknown to the common law and the Court possesses no common law power. See P. Malai Chami v. M. Andi Ambalam and others, .
8. In the present election petition, the petitioner has challenged the election of the first respondent on grounds inter alia that he has indulged in corrupt practices. The issue which arises for determination is whether the petitioner proves that the first respondent is guilty of corrupt practices. In my judgment, the facts which the first defendant has pleaded in paragraphs 3(i) to 3(viii) are not germane for deciding the issues which arise in the petition. The achievements and/or distinctions which the first respondent may have acquired in the past are in my view wholly irrelevant for deciding whether the first respondent has or has been guilty of corrupt practices.
9. Under Order VI, Rule 16, the Court is empowered at any stage in the proceedings to order striking out of any pleadings which may be unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarass or delay the fair trial of the suit or which is otherwise an abuse of the process of the Court. Election petitions are required to be decided expeditiously and there is an obligation cast upon the Court to dispose of the same, within the period of six months. It is, therefore, desirable or rather it would be necessary to ensure that the parties and especially the returned candidate is not permitted to unduly protect the hearing of the petition. It is, therefore, necessary to ensure that unnecessary or irrelevant pleadings and evidence are not permitted to be resorted to which may tend to unnecessarily protect the trial. I am, therefore, inclined to reject the contention of Shri Vashi that it is not necessary at this preliminary stage to decide the aforesaid two issues but to leave it at the final disposal of the petition. If the said issues are kept open during the recording of the evidence that would open the floodgates for introducing voluminous evidence which would otherwise be irrelevant. I have, therefore, decided to answer the said issues at this stage itself.
10. In my view, the averments contained in paragraphs 3(i) to 3(viii) of the written statement, to which the plaintiff has taken exception, do not make out any defence to the election petition. In my view, the petitioner is justified in contending that the pleadings contained in the aforesaid paragraphs are unnecessary, irrelevant, frivolous and embarassing. The obvious purpose is to confuse and protract the trial. Order VI, Rule 16 of the Code of Civil Procedure enables a party to apply to strike out any part of the opponent's pleadings which may be unnecessary or scandalous or which may tend to prejudice, embarass or delay the fair trial of the petition. If it is found that a party by reason of its stating immaterial facts, which could not be material, the said pleadings would be liable to be struck out. Where a pleading cannot offer a defence to an action and which if not struck out would unnecessarily delay the petition, it should be struck out.
11. In view of the aforesaid observations, I am clearly of the view that the averments contained in paragraphs 3(i) to 3(viii) of the written statement are liable to be struck off.
12. In paragraphs 3 (xix) and paragraphs 4, 5 and 6 of the written statement, the first respondent has sought to allege facts which impute corrupt practices on the part of the petitioner. By the said facts, the first respondent has sought to contend that the election of the petitioner would be void even if he were to have been the returned candidate. As pointed out earlier, the present petition contains two fold prayers : (1) that the election of the first respondent be declared to be null and void and (2) that the petitioner be declared to be duly elected. It is common ground that the first respondent has not till today filed a recrimination as contemplated under section 97 of the Representation of People Act. It may be convenient to reproduce section 97 which reads as follows :-
"When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election."
The above provision permits a returned candidate, in a case where the petitioner claims a declaration that he is duly elected candidate, to lead evidence to prove that the election of the petitioner is void and hence he is not entitled to the declaration that he be declared as having been duly elected. The said right is subject to the proviso contained in the said section which provides that the said right is subject to his having within 14 days from the date of commencement of the trial given notice of his intention to do so and has also given security and the further security covered under section 117 and 118 respectively. Sub-section (2) provides for the form and the particulars which are required to be accompanied by the said notice. It is common ground that no such notice has been given. Section 86 which appears in Chapter III, deals with the trial of the Election Petition. Sub-section (4) of section 86 provides as under :--
"Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent."
Explanation---For the purpose of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made is the petition. The above explanation makes it clear that for the purpose of section 97, with which we are presently concerned, the trial of a petition shall be deemed to commence on the date fixed for the respondent to appear before the Court and answer the claim or claims made in the petition. In the present case the returnable date of the petition was first entered to 27th August, 1990 and that would be under the aforesaid explanation be the date of the commencement of the trial. The period within which the first respondent could have given notice of recrimination was 14 days from 27th August, 1990. The first respondent was served on 31st July, 1990. The first respondent on 28th August, 1990 applied for four weeks time to file the written statement. He, however, did not give notice of recrimination within the stipulated period as required under section 97. Even if the commencement of trial were to be held as on 25th September, 1990, which was the further adjourned returnable date, the first respondent did not give the aforesaid notice within a period of 14 days thereafter. In view of the provisions contained in section 97 the first respondent is debarred from giving evidence in respect of the averments contained in paragraphs 3(xix), 4, 5 and 6 of the written statement.
13. It has been held by the Supreme Court in the case of Jabar Singh v. Genda Lal,
"There are, however, cases in which the election petition makes a double claim; it claims that the election of the returned candidate is void, and also asked for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that section 100 as well as section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter petitioner challenging the validity of the election of the alternative candidate. The result of section 97(1) therefore is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by section 97(1) proviso and section 97(2). If the returned candidate does not recriminate as required by section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.
It is true that section 101(a) requires the Tribunal to find that the petitioner or such other candidate for the declaration of the declaration of whose election a prayer is made in the election has in fact received a majority of the valid votes. It cannot be said that the Tribunal cannot make a finding that the alternative candidate has in fact received a majority of the valid votes unless all the votes cast at the election are scrutinised and counted. As result of Rule. 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under Rule. 56 constituted one valid vote and it is on that basis that the finding will have to be made under section 101(a). Section 97(1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by section 97, the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under section 101(1) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate if any, which were rejected, were invalid.
If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate of his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under section 100 and the matter proceeds to be tried under section 101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by section 100(1)(d)(iii) and the late part of the enquiry which is governed by section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under section 97(1)."
The above case was approved and followed by the Supreme Court in the case of P. Malai Chami v. M. Andi Amabalam and others, (supra). As already noted above wherein it was observed as follows :-
"Courts in general are averse to allow justice to be defeated on a mere technically. But in deciding an election petition the High Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the statute under which it is conferred the power to hear election petitions. An election petition, as has been pointed out again and again, is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law and the Court possesses no common law power."
14. Since the first respondent has not filed a recrimination within the stipulated period of 14 days from the commencement of the trial, he is now debarred from leading evidence in support of his plea that the petitioner is guilty of corrupt practices. The period of 14 days provided under section 97 is a statutory period of limitation and the same cannot be extended by the application of the Limitation Act. It has been held in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, , as under :-
"Even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of the provisions of the special law exclude their operation. What the Court has to see is whether the scheme of the special law and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Special Act. The provisions of section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in section 86 of the Representation of the Peoples Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of sections 81, 82 and 117. It for non-compliance with the provisions of sections 82 and 117 which are mandatory, the election petition has to be dismissed under section 86(1) the presentation of election petition within the period prescribed in section 81 would be equally mandatory, the non-compliance with which visits the penalty of the petition being dismissed. Though Parliament has made certain amendments in section 8 of the Act in 1969, it has not considered it necessary till now to amend the Act to confer, on persons challenging an election, benefits similar to those available to them under the proviso to the repealed section 85 of the Act, for it did not want delays to occur in the disposal of election petitions as in the past. Hence the provisions of section 5 of the Limitation Act do not govern the filing of election petitions or their trial."
15. In my judgment, the aforesaid ratio will apply on all fours to the filing of recrimination under section 97. Since the first respondent has failed to give notice of recrimination within the prescribed period of 14 days as provided in the proviso to section 97, the first respondent is barred from giving evidence in respect of the averments contained in paragraph 3(xix) and paragraphs 4, 5 & 6 of the written statement for contending that the petitioner is not entitled to a declaration that he is duly returned candidate on the ground that he himself has indulged in corrupt practices. In view of the above, the avertments contained in paragraphs 3(xix), 4, 5 and 6 of the written statement are liable to be struck off.
16. In view of the above discussion, I answer the above Issue Nos. 1 and 2 in the affirmative and direct that the avertments contained in paragraphs 3(i) to 3(vii) and paragraph 3(xix) and paragraphs 4, 5 and 6 of the written statement be struck off. The first respondent is directed to carry out the necessary amendments to the written statement by deleting the aforesaid paragraphs in the written statement within a period of two weeks and serve a copy thereto upon the petitioner within a period of one week thereafter. On the application of Shri Mulani, the learned advocate appearing on behalf of the first respondent, my order is stayed for a period of two weeks from today. The petition will appear on my board on 5th November 1990 for recording of evidence.