JUDGMENT Madan Mohan Prasad, J. This application under Articles 226 and 227 of the Constitution of India is for issue of an appropriate writ quashing the order dated the 27th April, 1971, passed by the District Magistrate of Monghyr as the Election Tribunal, dismissing the petitioner's election petition on the ground of his non-appearance. 2. It appears that the petitioner filed an election petition challenging the election of Opposite Party No. 1 as the Mukhiya of Jhundo Gram Panchayat and prayed for a declaration that Opposite Party No. 2 was the duly elected Mukhiya at the election held in respect of the said Gram Panchayat. This election petition, was filed before the Additional District Magistrate. It appears to have been transferred to the District Magistrate, who transferred it to the Sub Divisional Magistrate of Jamui, but on being pointed out the Sub Divisional Magistrate, Jamui, could not be appointed the Election Tribunal in respect of this case, he withdrew the aforesaid order and transferred it to the Additional District Magistrate. Again this case came to the District Magistrate himself and he was the Election Tribunal for this case. It is said that all the requirements of law in respect of the filing of the present election petition had been complied with and it had reached the stage for issue of notices to the respondents named in the election petition. On the 27th April, however, the petitioner was absent from the Court of the District Magistrate and, accordingly he passed an order striking off the election petition on account of the default of the petitioner. Hence this application. 3. Learned counsel for the petitioner has urged that on the date fixed in the case, the petitioner did not have to take any step because he had done all that he had to do before issue of notices to the opposite party and on that date it was for the Tribunal to issue notice to the opposite party fixing a date for the hearing of the election petition. The dismissal for default on the ground, it is said, is without jurisdiction and in violation of law. 4. Looking at rule 78 of the Bihar Panchayat Elections Rules, 1959, hereinafter called the "Rules", one finds one of the procedure prescribed in respect of the hearing of the election petition. The dismissal for default on the ground, it is said, is without jurisdiction and in violation of law. 4. Looking at rule 78 of the Bihar Panchayat Elections Rules, 1959, hereinafter called the "Rules", one finds one of the procedure prescribed in respect of the hearing of the election petition. It will be relevant to state that the earlier rules, beginning with rule 70, provide that an election shall be challenged by an election petition, an Election Tribunal shall be appointed, an election petition must contain certain things, there should be a deposit of certain amount with the election petition, certain requirements have to be fulfilled by a person who seeks a declaration that he is the duly elected candidate, and the persons who should be impleaded as respondents in such a case. Rule 77 of the Rules provides for summary dismissal of an election petition in case of failure to comply with some of the provisions of rules 72, 73 and 75. The relevant rule 78 of the Rules is as follows: "If the election petition is not dismissed under Rule 73 or 77 the Election Tribunal shall fix a date for the hearing of the petition and shall not less than ten days before the date so fixed, cause a notice of the presentation of the petition and of the date fixed for hearing of the same together with a copy of the petition to be served on each respondent and on the Sub-divisional Magistrate, and shall forthwith forward a copy of the petition to Government." Rule 79 relates to the manner of trial of an election petition and the relevant portion of the rule are as follows. "(1) The trial shall be held at such place or places as may be appointed by the Election Tribunal. (2) Subject to the provisions of these rules, every election petition shall be tried by the Election Tribunal, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. "(1) The trial shall be held at such place or places as may be appointed by the Election Tribunal. (2) Subject to the provisions of these rules, every election petition shall be tried by the Election Tribunal, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Reading rule 78, it is quite clear that where an election petition has not been dismissed under rule 73 or 77, the Tribunal has to fix a date for the hearing of the petition and it has to cause a notice of the presentation of the petition and of the date fixed for hearing of the same, to be served on each respondent and the Sub-divisional Magistrate and has to forward a copy of the petition to Government also. In the circumstances of the present case, upon the statement of the petitioner, which is not disputed it appears that the Election Tribunal had not issued notices to the opposite party, nor fixed a date for hearing of the election petition. Obviously, therefore, there was a violation of the provisions of rule 78. 5. The next question which arises is whether it was open to the Tribunal to pass an order of dismissal for default, irrespective of rule 78. In my view, the answer must be in the negative. Sub-rule (2) of rule 79 clearly makes the procedure of the Code of Civil Procedure, subject to the provisions of these rules, applicable to the trial of an election petition. Therefore, even though the Tribunal may have powers under the Code of Civil Procedure, it would not be able to exercise that power until it had complied with the requirements of rule 78 of the Rules. 6. It will be appropriate to state that even under the Code of Civil Procedure, it was not open to the Election Tribunal to dismiss the election petition for default on the relevant date. Order 5, rule 1 of the Code of Civil Procedure, hereinafter referred to as the "Code", lays down that after the institution of a suit, a summons shall issue to the defendant to appear and answer the claim on a date fixed. Thus after the filing of the present election petition and after it being duly registered, a notice had to go to the respondents named therein. Thus after the filing of the present election petition and after it being duly registered, a notice had to go to the respondents named therein. Turning to Order 9 of the Code, again one finds that rule I provides for the appearance of the parties on the day fixed in the summons for the defendant to appear and answer. It is well settled that it relates to the date of hearing fixed in the case. Rule 2 of Order 9 provides for dismissal of a suit for non payment of court-fee or charges resulting in non-service of summons on the defendant. But this situation arises only when summons has been issued to the defendant fixing a date for hearing. Rule 3 of Order 9 provides for dismissal of a suit where neither party appears when the suit is called on for hearing. It is not necessary to refer to the other rules and multiply instances to show that an order of dismissal of a suit for default of a plaintiff can be passed only after the date of hearing has been fixed. I may not be meant to say, however, that the Court cannot dismiss a suit even earlier on the ground of non-prosecution or non-compliance. But once a suit has been duly instituted, the dismissal is under Order 9 of the Code. Applying these principles to the trial of an election petition, it is quite clear that at the earlier stages, the Election Tribunal has the jurisdiction to dismiss an election petition for certain defects as provided for in rule 77 of the Rules. But after that stage, it is obligatory for the Election Tribunal to fix a date for hearing and issue notices to the opposite party. In other words, the Tribunal had no jurisdiction at that stage to dismiss it for default or non-appearance of the petitioner. 7. It is thus clearly an error of law apparent on the face of the record which has been committed by the Election Tribunal in the present case. He appears to have been under the impression that it was within his jurisdiction to dismiss the election petition on the ground of absence of the petitioner. He does not seem to have applied his mind to the provisions of rule 78 of the Rules and, in any view of the matter, the impugned order cannot be sustained. 8. He appears to have been under the impression that it was within his jurisdiction to dismiss the election petition on the ground of absence of the petitioner. He does not seem to have applied his mind to the provisions of rule 78 of the Rules and, in any view of the matter, the impugned order cannot be sustained. 8. I would, accordingly, quash the order dated the 27th April, 1971, passed by the Election Tribunal, (the District Magistrate of Monghyr) dismissing the election petition presented by the petitioner and direct him to proceed in accordance with law. This application is, therefore, allowed. There will, however, be no order for costs. Application allowed.