JUDGMENT J. Sahai, J. - The petitioner Sri B. P. Maurya and the respondents Nos. 2 to 6 were candidates in the last general elections from the Parliamentary Constituency 77 district Aligarh. The petitioner Sri B. P. Maurya was declared elected, whereupon the respondent No. 2 Sri Shiv Kumar filed an election petition before the Election Commission. An election tribunal was appointed to try this election petition. First Sri S. P. Roy, who was the then District Judge, and thereafter the present incumbent of that office Sri Bir Singh was appointed as Presiding Officer of this tribunal. The recording of the evidence for the parties on 15-7-1963, and continued from day-to-day. On July 24, 1963, neither the petitioner Sri Shiv Kumar nor his counsel were present. The tribunal at 2.25 p.m. passed an order dismissing the petition in default without mentioning the provision under which he acted. An application purporting to be under Order IX, Rule 9, read with Section 151, C.P.C., was made the same day soon after the order of dismissal for default was passed. Notice of that application was issued to Sri B.R. Dhawan, the learned counsel for Sri B. P. Maurya, only and not to Sarvsri Jagan Nath, Jarrar Haider, Nahar Singh and Basant Rao, though they were arrayed as respondents in the election petition. The next day (25-7-1963) Sri B. R. Dhavan the learned counsel for Sri B. P. Maurya, made an application praying that the application made by Sri Shiv Kumar under Order IX, Rule 9 read with Section 151, C.P.C. be dismissed. The same day the tribunal passed an order setting aside the dismissal order dated 24-7-1963 on payment of Rs. 25/- as costs. It is against this order that the present writ petition has been filed. 2. We have heard Sarvsri Ambika Prasad and K. L. Grover for the petitioner Sri B.P. Maurya and Sri Varshni for the respondent No. 2 Sri Shiv Kumar. On behalf of the petitioner the following two submissions have been made:- (1) That having dismissed the election petition even for default of the petitioner the tribunal became not only functus officio but ceased to exist. It had, therefore, no jurisdiction to pass the impugned order and to continue the proceedings arising out of the election petition. On behalf of the petitioner the following two submissions have been made:- (1) That having dismissed the election petition even for default of the petitioner the tribunal became not only functus officio but ceased to exist. It had, therefore, no jurisdiction to pass the impugned order and to continue the proceedings arising out of the election petition. (2) That in any case the tribunal had no jurisdiction to pass the impugned order without issuing notice of the application to the respondents (i.e. Sarvsri Jagan Nath, Jarrar Haider, Nahar Singh and Vasant Rao). We will take the submission seriatim. 3. It is well settled that the Representation of the People Act is a self-contained Code which deals with all the matters relating to elections: See Inamati Mallappa Basappa v. Desai Basauaraj Ayyappa, A.I.R. 1958 S.C. 698. The submission on behalf of the petitioner is that the tribunal is not a regular and permanent court functioning intermittently but an ad hoc tribunal appointed only to decide the particular election petition and once it had put an end to the petition by dismissing it even for default it had completed the function for which it was appointed and automatically ceased to exist thereafter, with the result that it could pass no further orders or continue the proceedings. Section 90 of the Representation of the People Act provides the procedure for trial before the tribunal. The relevant portion of that section reads as under :- "Procedure before the Tribunal :- Subject to the provisions of this Act and any rules made thereunder, every election petition shall be tried by the tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908), to the trial of suits." In view of the fact that the Act does not provide its own procedure for trial the power for dismissal for default can only be culled out from the provisions of the Code of Civil Procedure. The tribunal, therefore, when it dismissed the election petition for default on 24-7-1963 did so presumably under Or. IX, Rule 8, C.P.C. If the Code of Civil Procedure is applicable so as to confer on a tribunal the power of dismissing an election petition for default such of its provisions which permit the setting aside of that order would and should also be applicable. IX, Rule 8, C.P.C. If the Code of Civil Procedure is applicable so as to confer on a tribunal the power of dismissing an election petition for default such of its provisions which permit the setting aside of that order would and should also be applicable. Consequently, Order IX, Rule 9, C.P.C. would apply to the trial of an election petition. The objection of the learned counsel for the petitioner, however, is that provisions would not be applicable in view of the circumstances that the petition having been dismissed for whatever cause, including dismissal for default, the tribunal ceased to exist. For this reliance is placed upon the Lloyds Banks v. Lloyds Bank and Indian Staff Association, A.I.R. 1956 S.C. 746, which was a case under the Industrial Disputes Act and was decided in 1953 though reported in 1956. In this case it was held by the Supreme Court that when a tribunal has ceased to exist and its members are subsequently engaged in the performance of other official duties, the tribunal cannot be said to continue in a sort of suspended animation. It is contended on behalf of the petitioner that Sri Bir Singh, the District Judge, Aligarh, once having dismissed the case for default ceased to function as the tribunal though he continued to function as the District and Sessions Judge, Aligarh. In Hari Vishnu Kamath v. Ahmad Ishaque, A.I.R. 1955 S.C. 233 which was a case under the Representation of the Peoples Act, the original judgment in Lloyds Bank A.I.R., 1956 S.C. 746 case was considered and it was stated that certain aspects had not been placed before the Court at the time when that case was decided. In Bhikaji Keshao Joshi v. Brijlal Nand Lal Biyani, A.I.R. 1955 S.C. 610 which was also a case under the Representation of the Peoples Act, the question with regard to the reconstitution of the tribunal arose. The Supreme Court held in Hari Vishnu Kamath's, A.I.R. 1955 S.C. 233 case as also in Bhikaji Keshao Joshi's, A.I.R. 1955 S.C. 610 case that an election tribunal could be reconstituted in order to re-decide the election petition. The Supreme Court held in Hari Vishnu Kamath's, A.I.R. 1955 S.C. 233 case as also in Bhikaji Keshao Joshi's, A.I.R. 1955 S.C. 610 case that an election tribunal could be reconstituted in order to re-decide the election petition. It is difficult to see how reliance can be placed on the Lloyds Bank's, A.I.R. 1956 S.C. 746 case in the face of the subsequent decisions in Hari Vishnu Kamaths, A.I.R. 1955 S.C. 233 and Bhikaji Keshao, A.I.R. 1955 S.C. 610 Section 90 (1) of the Act no doubt uses the words "as nearly as may be." But these words do not render Order IX, Rule 9, C.P.C., inapplicable. If Order IX, Rule 8 could apply, it is difficult to see why the application of Order IX, Rule 9, C.P.C. would be inconsistent with the word "as nearly as may be" occurring in Section 90 of the Act. Under the Act an election tribunal even after deciding the case has to perform certain statutory duties. It has to communicate to the Election Commission the result of its decision under the provisions of Section 103 of the Act. Consequently it cannot be said that the mere decision of the case brings about the termination of the Tribunal for all purposes. The view that Order IX, Rule 9, C.P.C. would be applicable finds support from Bhuvanesh Bhushan v. Election Tribunals, A.I.R. 1958 All. 587 a decision of our court and Sunder Lal v. Nandramdas Dwarkadase, 14 E.L.R. 68 where the Madhya Pradesh High Court in the circumstances similar to those before us held that the tribunal had jurisdiction to set aside an order dismissing the petition for default. This Court in Raja Bahadur Kishore Raman Singh v. G.C. Agarwala, 19 E.L.R. 164 had to deal with the question as to whether an election tribunal can take proceedings under Section 476, Cr.P.C. after the conclusion of the trial of the petition and it was held that the tribunal was competent to do so, and the fact that it had already decided the election petition does not divest it of the jurisdiction to take proceedings under Section 476, Cr.P.C. 4. In Sangram Singh v. Election Tribunal, AIR 1955 SC 425 their Lordships observed as follows :- "Now a code of procedure must be regarded as such. In Sangram Singh v. Election Tribunal, AIR 1955 SC 425 their Lordships observed as follows :- "Now a code of procedure must be regarded as such. It is `procedure,' something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to `both' sides) lest the very means designed for the furtherance of justice be used to frustrate it." In this case their Lordships held that the provisions of Order IX, Rule 6, C.P.C. are applicable to the trial of an election petition and that an order for ex parte hearing can be set aside if sufficient cause is made. In support of the proposition that the tribunal ceases to exist for all purposes once an order of dismissal of a petition is passed, reliance was placed upon Section 121 of the Act to show that even for purposes of recovery of costs awarded by the tribunal the application has got to be made to the Election Commission and not to the tribunal. 5. There is no provisions in the Act which directly points out at what time the tribunal cease to exist. Both the parties have used the provisions of the Act in order to show the implied intention of the Legislature. There is a difference between an application for the recovery of costs and an application under Or. IX, Rule 9, C.P.C. A dismissal for default is not an adjudication on merits and if the tribunal had the power to dismiss a case for default invoking the provisions of the Code of Civil Procedure we see no reason why it has no power under Or. IX, Rule 9, C.P.C. to restore the petition to its original number by setting aside the order of dismissal for default. The normal rule is that once an adjudication is made on merits the Court loses jurisdiction to deal further with the matter; but it is well settled that a dismissal for default is not an adjudication on merits; See Abdul Majid v. Jawahar Lal, ILR 36 ALL. 350 (P.C). 6. Learned counsel for the petitioner next places reliance upon the provisions of Section 116-B of the Act. 350 (P.C). 6. Learned counsel for the petitioner next places reliance upon the provisions of Section 116-B of the Act. We do not see how that provisions helps the petitioner. The section reads as under: "The decision of the High Court on appeal under this Chapter and subject only to such decision, the order of the Tribunal under Section 98 or Section 99 shall be final and conclusive." This provision, to our mind, does not exclude the exercise of the powers conferred by Or. IX, R. 9, C.P.C. It is trite that a decree passed by a regular civil court is final subject to its being reversed but no one has so far argued that the civil court has no power to set aside an ex parte decree under Or. IX, Rule 9, C.P.C. Besides the words "the order of the Tribunal under Section 98" obviously mean an order on merits. Section 98 reads: "At the conclusion of the trial of an election petition the Tribunal shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; Or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected; Sec. 116-B only makes an order passed under Section 98 to be final and no other order. Obviously Section 98 does not contemplate an order of dismissal for default. 7. On behalf of the petitioner, reliance was placed upon O.P. Jain v. Gyan Chand, AIR 1959 SC 837 . In that case an application had been made by the respondents to the election tribunal for dismissing the petition under Section 90(3) of the Act. The tribunal did so on the finding that the election petition did not comply with the provisions of Section 117 of the Act. The learned judges, repelling the submission that the word "trial" in Section 98 means that stage of the trial where evidence is tendered and arguments are addressed, held that inasmuch as an order under Section 90(3) brings to an end the proceedings arising out of a petition, and thereafter nothing remains to be done, it would be an order under Section 98 of the Act. If an election petition does not comply with the provisions of Sections 81, 82 or 117 it must be dismissed and the tribunal has no other option. In the case of a dismissal for default the order dismissing the petition is passed subject to its being set aside under Or. IX, R. 9, C.P.C. and the Court has a discretion. This case is therefore clearly distinguishable. The dismissal order was even according to the learned counsel for the petition made under the provisions of Or. IX, R. 8, C.P.C. which reads as follows:- "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." The provision of Rr. 8 and 9 of Or. IX are interlinked and R. 8 is subject to the provisions of R. 9. Rule 9 reads as follows:- "9 (1) Where a suit is wholly or partly dismissed under R. 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day or proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." Rule 9 makes it a mandatory duty upon the Court or tribunal, whichever is dealing with the case, to set aside the order of dismissal if sufficient cause for non-appearance is made out. That provision is not merely directory but mandatory. Consequently, it is not possible to read Rule 8 apart from rule 9. That provision is not merely directory but mandatory. Consequently, it is not possible to read Rule 8 apart from rule 9. The two have got to be read together and when a tribunal passes an older under R. 8 dismissing a petition it does so in the belief and on the condition that on sufficient cause being made out the order passed under Or. IX, R. 8, C.P.C. would have to be set aside under Or. IX, Rule 9, C.P.C. The two are in inverse and reverse sides of a power and if the tribunal had the jurisdiction to pass an order under R. 8 of Order IX it had certainly jurisdiction to pass an order under Rule 9 setting aside the one passed under R. 8. It would be subversive of the scheme of the Representation of the People Act to hold that whereas the tribunal had the power under Rule 8 of Older IX to dismiss a petition, under Rule 9 of that order it has no power to set aside that order. In that view of the matter we are satisfied that the order passed by the Tribunal on 25-7-63 is a perfectly correct order and does not require any interference at our hands. 8. In the end it was contended that if the tribunal continued to exist even after it had dismissed the election petition for default and had jurisdiction to set aside the order of dismissal a provision to that effect have been made in the Act and period of limitation within which such application could be made would also have been provided. In view of the fact that the Code of Civil Procedure which includes Or. IX, Rule 9 was made applicable as a whole it was not necessary to have made a separate provision to that effect in the Act specially when there was no provision in it analogous to Or. IX, R. 8 conferring powers for dismissal for default. With regard to limitation for making the application it would appear that the period of limitation prescribed for making an application under Or. IX, R. 9 in a regular suit would be applicable in this case also. 9. Learned counsel contended that Sri B. P. Maurya was not the only respondent in the election petition. The respondents Nos. With regard to limitation for making the application it would appear that the period of limitation prescribed for making an application under Or. IX, R. 9 in a regular suit would be applicable in this case also. 9. Learned counsel contended that Sri B. P. Maurya was not the only respondent in the election petition. The respondents Nos. 3 to 6, Sarvsri Jagan Nadi, Jarrar Haider, Nahar Singh and Vasant Rao were also arrayed as such. It is contended that in view of the fact that the order dated 25-7-1963 setting aside the order dated 24-7-1963 was passed, without notice to the other respondents it is without jurisdiction, we are unable to agree with it. The respondents other than Sri B. P. Maurya had to be impleaded because of the provisions of Section 82 of the Act which reads as follows:- "82. Parties to the petition-A petitioner shall join as respondents to his petition- (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (2) any other candidate against whom allegations of any corrupt practise are made in the petition." Learned counsel for the petitioner admits that there were no allegations of corrupt practise against the respondents other than Sri B. P. Maurya. The necessity for impleading the other respondents arose because Sri Shiv Kumar claimed the seat for himself. In the present case when the election petition was dismissed for default the only person who was benefited by the order was Sri B. P. Maurya. The other respondents did not gain any thing by the dismissal of the election petition. Inasmuch as by the dismissal of the petition only Sri B. P. Maurya who was the returned candidate gained and not others, no injustice has been done if the other respondents were not served with notice calling upon them to show cause why the expert order dated 24-7-1963 be not set aside. The other respondents have no, grievance also against the order setting aside the order of dismissal. The other respondents have no, grievance also against the order setting aside the order of dismissal. In fact the restoration of the election petition has given them a right of say which they would lose if the election petition stands dismissed. Learned counsel placed reliance upon Rule 9(2) of Or. IX, C.P.C. Which reads- "No order shall be made under this rule unless notice of the application has been served on the opposite party." It is difficult to see how the applicant can rely upon this provision when he admittedly had notice through his counsel. The respondents who were not served made no grievance of it. It is open to them to waive their right of receiving notice. We are saying this on the assumption that notice should have gone to them and have not investigated the question whether Or. 9, r. 9, Clause (2) would apply in respect of respondents other than B. P. Maurya on the ground that such respondents having been impleaded in connection with the claim to the seat are opposite parties in a very limited sense so as not to be included in the expression "the opposite party" occurring in Or. 9, r. 9 (2), C.P.C. 10. However we may observe that even if we had considered that there were any merits in the contention of the learned counsel for the petitioner we would not have felt justified in invoking our extraordinary jurisdiction under Article 226 of the Constitution in a case like the present one and that for two reasons. Firstly, it is well settled that if an order is equitable and stands to promote justice between the parties the Court should not set it aside on technicalities; see Jagdeo Prasad v. Bhola, 1956 A.L.J. 726 A. M. Allison v. B.L. Sen, AIR 1957 SC 227 Pooran Singh v. The Additional Commissioner of Agra, 1957 A.L.J. 193 Laxmi Kant Modwell v. Smt. Chandra Kala Devi, 1957 A.L.J. 891 and Sri Sripat Narain Rai v. Board of Revenue, 1959 A.L.J. 611. Secondly, there is evidence to show that after the order dated 24-7-1963 had been set aside on 25-7-1963 the petitioner continued for some time to take part in the proceedings. In paragraphs 19 and 20 of the counter-affidavit sworn by Sri Shiv Kumar and filed in connection with the application for interim order it was clearly stated- "19. Secondly, there is evidence to show that after the order dated 24-7-1963 had been set aside on 25-7-1963 the petitioner continued for some time to take part in the proceedings. In paragraphs 19 and 20 of the counter-affidavit sworn by Sri Shiv Kumar and filed in connection with the application for interim order it was clearly stated- "19. That after the order for restoration was passed on 25th July 63 Sri S. R. Dhawan duly instructed by Sri Gautam, agent of the applicant, for the conduct of the case, cross-examined Sri K. C. Joshi, Collector and Returning Officer of Aligarh who was a witness for the deponent duly summoned for 25th July 1963. 20. That similarly Sri Dhawan instructed by Sri Gautam cross-examined other 2 witnesses for the petitioner and submitted the petitioner to a lengthy cross-examination on subsequent dates 26th and 27th July 1963." In the counter-affidavit sworn by the same gentleman on 15-9-1963 and which was filed in the main case and not in the proceedings for interim order it has been stated as follows in paragraph 13:- "That Sri B. R. Dhawan has been counsel for Sri B. P. Maurya and continues to be so even after the restoration on the 25th of July 1963. He cross-examined Sri K. C. Joshi, District Magistrate and Returning Officer, Aligarh, a witness produced for me and also cross-examined other witnesses on that day and on the following days. It is wrong to say that he had no authority for Sri B. P. Maurya after the so called disposal of the case on the 24th of July 1963." These facts have been admitted in the rejoinder affidavit filed on behalf of the petitioner and have not been controverted. It is well settled that if a party takes part in a proceeding before the tribunal it cannot be heard to say in the writ petition that the tribunal had no jurisdiction. 11. Lastly, the order of the tribunal is dated the 25th July 1963 and the petition was filed only on the 29th August 1963. It may be that the petition has been filed within 90 days but the rule requiring petitions to be filed within the period of 90 days is not a rule of limitation but a rule to prevent laches. It may be that the petition has been filed within 90 days but the rule requiring petitions to be filed within the period of 90 days is not a rule of limitation but a rule to prevent laches. The result of the filing of this petition late is that the petitioner allowed several witnesses for the respondent to be examined. It was held by the Supreme Court in Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425 that if objection is taken to the constitution of a tribunal at a late stage the writ petition should not be entertained. Similarly in Nain Sukh Das v. U.P. State, AIR 1963 SC 384 their Lordships refused to issue a writ on the ground that the petitioner had allowed the elections to take place. It is the admitted position in this case that after the case had been restored to its original number the petitioner allowed the proceedings to continue and even took part in those proceedings for three days. The only explanation for the delay which Sri Grover gave is that Sri B. P. Maurya was in America and after he returned the petition was filed. It appears that originally there was no intention to move a writ petition in this Court and that is why proceedings were allowed to continue, but after Sri Maurya returned from overseas it was decided to file a writ petition. 12. For the reasons mentioned above, we are clearly of the opinion that there are no merits in this petition. We therefore dismiss it but make no order as to costs.