ORDER Mishra, J. - l. In this election petition, Respondent No.1 is the returned candidate. Respondents No.2 to 9 are the persons whose nomination papers for candidature at the election in question were declared valid. Respondent No. 10 is the Returning Officer and Respondent No.11 Raj Narain is a person who was not a candidate at the election in question. 2. Respondent No.1 and respondent No.11 have, inter-alia raised an objection to the effect that joinder of respondent No.11 constitutes contravention of section 82 of the Representation of People Act. 1951 (hereinafter referred to as the Act) on the basis of the aforesaid objection, issue No.3 has been, framed. It runs as under:- (a) Whether the election petition suffers from the defect of misjoinder of parties on account of joinuer of Respondent No.11 ? & (b) Whether the aforesaid misjoinder is violative of the provision of section 82 of the Act? If so, its effect? or (c) Whether the name of Respondent No. 11 deserves to be struck off from the array of Respondents. 3. Arguments on the aforesaid issues were heard on 15.4.1968. 4. Shri J.P. Goyal, learned counsel for Respondent No. 11 although argued that the petition does not contravene section 82 of the Act because of Joinder therein of Respondent No. 11; yet in view of combined effect of section 82, 84, 86 (4), 87 and 99 of the Act, Respondent No.11, being not a candidate at the ejection, cannot be joined in the petition as Respondent in the hope of his being named by the Court as a person guilty of corrupt practice at the conclusion of trial and at the time of making an order under section 98 of the Act. Therefore, name of respondent No.11 deserves to be struck off from the array of respondents and the relief contained in para No.30 (d) of the petition also deserves to be ordered to be struck out. 5. Shri D.V. Nigudkar, learned counsel for the petitioner contended that although Respondent No 11 is not a necessary party to the petition yet he is a proper party and that the charge of having committed the corrupt practice is made against him in the petition. 5. Shri D.V. Nigudkar, learned counsel for the petitioner contended that although Respondent No 11 is not a necessary party to the petition yet he is a proper party and that the charge of having committed the corrupt practice is made against him in the petition. Therefore, the name of Respondent No. It and relief of his being named under section 99 of the Act do not deserve to be ordered to be struck off from the petition on the ground that they are unnecessary and as such they deserve to be continued. 6. By invoking the principles of Order 1, rule 3 and Order 1, rule 5 read with section 87 on the Act it was also contended that the petitioner is Dominis litis as such has right to frame the petition as he likes, claim reliefs as he deems fit and implead in the election petition persons whom he knows to have committed corrupt practice. It was also contended that petitioner knows that Respondent No.11 has committed corrupt practice. Therefore the petitioner contends that he has been impleaded as Respondent in the case, so that he may participate during the trial of the petition and the necessity of giving him notice as contemplated by proviso to section 99 (1) of the Act may not be necessary. 7. After having heard the learned counsel of both the parties, I am of the opinion that issue No.3(a) and (b)deserve to be decided in favour of the petitioner, but Issue No, 3 (c) deserves to be decided against the petitioner and in favour of Respondent No. 11. 8. Section 82 of the Act provides that:- "82. Parties to the petition- A petitioner shall join as respondents to the 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 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 (b) any other candidate against whom allegation of any corrupt practice are made in the petition. 9. What section 82 lays down is that joinder of persons falling under clauses (a) and (b) thereof is necessary. 9. What section 82 lays down is that joinder of persons falling under clauses (a) and (b) thereof is necessary. This is what is termed by the Lordships of Calcutta High Court in the case reported in Dwijendralal Sen Gupta v. Hare Krishna AIR 1963 Calcutta 218 as necessary minimum requirement in respect of impleadment of parties in an election petition but it does not lay down the maximum. Section 82 does not deal with consequences of a person who is not necessary party being joined in the petition. 10. Where all the necessary parties have been joined in an election petition, the circumstance that a person who is not necessary party, has also been impleaded does not amount to a breach of the mandatory provisions of section 82 of the Act. Therefore, there will be no question of dismissing the petition under sub section (1) of section 86 of the Act. 11. No doubt, the provisions of section 82 of the Act are mandatory, but as stated already, the issue at hand in reality does not concern itself with contravention of section 82 of the Act. Respondent No.11 admittedly being not a candidate at the election, cannot be regarded as a necessary party to the petition. 12. Now the question which crops up for consideration is that if a person who is not a necessary party, is joined as respondent what is its effect? This question fell for consideration before their Lordships of the Supreme Court in case reported in Murarka Radheshyam Ram Kumar v. Roop Singh Rathor & others AIR 1964 SC 1545 wherein has been laid down that:- "Where all the necessary parties have been joined to an election petition, the circumstance that a person who is not a necessary party in that he was a candidate whose nomination was rejected has also been impleaded does not amount to a brach of the provisions of S.82 and no question of dismissing the petition under sub-section (3) of section 90 arises. It is open to the Election Tribunal to strike out the name of the party who is not a necessary party with in the meaning of S.82 of the Act. The position will be different if a person who is required to be joined as a necessary party under S.82 is not impleaded as a party to the petition. It is open to the Election Tribunal to strike out the name of the party who is not a necessary party with in the meaning of S.82 of the Act. The position will be different if a person who is required to be joined as a necessary party under S.82 is not impleaded as a party to the petition. However, where the name of an unnecessary party to an election petition is not struck out by the Election Tribunal or the Election Commission, it cannot in such a case be said that there is a non-compliance with section 82; AIR 1954 SC 210 Expl. 1963 Raj. LW 56, Affirmed." 13. In view of the ratio of this case the following position emerges;- (a) Joinder of a person not a necessary party does not amount to contravention of section 82 of the Act. (b) To bring that effect the words and no others" will have to be added in the section. This cannot be legally done. (c) It is open to the Court to strike out name of the party who is not a necessary party within the meaning of section 82 of the Act. 14. This brings me to the consideration of the next question whether Respondent No.11 is a proper party in the election petition or not. In United Provicces v. Mst. Atiga Begum & others AIR 1941 Federal Court 16 it has been held as under:- "A person would be a necessary party' if he ought to have been joined that is to say, in whose absence no effective decree can be passed at all He would be a Proper party' to be impleaded if his presence is necessary for an effectual or complete adjudication." 15. The learned counsel (If both the parties do not dispute the position that Respondent No.11 is not a necessary party inasmuch as he does not fall within category of those persons who are mentioned in clauses (a) and (b) of section 82 of the Act. But they differ on the question whether respondent No.11 is a proper party to the election petition or not? Applying the test laid down in the Atiga Begum's case (supra) Respondent No. 11 cannot be regarded even a proper party to the petition. His presence is not necessary for an effectual or complete adjudication of the petition. But they differ on the question whether respondent No.11 is a proper party to the election petition or not? Applying the test laid down in the Atiga Begum's case (supra) Respondent No. 11 cannot be regarded even a proper party to the petition. His presence is not necessary for an effectual or complete adjudication of the petition. Respondent No.11 is a person other than a candidate against whom a charge of commission of corrupt practice has been made in the election petition. Therefore, his impleadment by the petitioner is wholly unnecessary & unwarranted by provisions of the Act. Faced with this position, the learned counsel for the petitioner advanced the contention that the petition has rightly impleaded respondent as the petition contains charge of corrupt practice against him and also because relief of his being named U/s 99 has also been claimed. 16. Before examining this contention. It appears necessary to analyse relevant provisions of the Act. The analysis of the provisions relevant for the present purpose is as under :" Section 79 (b) defines 'candidate' as a person who has been or claims to have been duly nominated as a candidate at any election. Section 81 clothes any candidate at election or any elector with a right to file election petition. Section 82 lays down the parties which a petitioner shall join as respondents to his petition - (a) (i) He has to join where the petitioner in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims further declaration that he himself or any other candidate has been duly elected all the contesting candidates other than the petitioner, shall be joined as respondent, (ii) where no such further declaration is claimed all the returned candidates ; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition. Section 84 provides the relief that may be claimed by the petitioner. It provides that a petitioner may 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. Section 86 (4) provides that any candidate not already a respondent shall, be joined as a respondent upon his application if submitted within time and on such terms as provided therein. Section 86 (4) provides that any candidate not already a respondent shall, be joined as a respondent upon his application if submitted within time and on such terms as provided therein. Section 87 provides the procedure. It states that sub-section (1) thereof provides that subject to the provision of this Act 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. Section 98 provides that at the conclusion of the trial of all election petition the High Court shall make an order dismissing the election petition or declaring the election of all or any of the returned candidates to be void and/or declaring the petitioner or any other candidate to have been duly elected. Section 99 provides that at the time of making an order under section 98, the High Court may also make an order :- (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording :- (i) a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice ; and (b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid; Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless :- (a) he has been given notice to appear before the High Court and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the High Court and has given evidence against him of calling evidence in his defence and of being heard. 17. 17. In view of the aforesaid analysis of the provisions of the Act relevant for the present purposes, it is clear that persons like respondent No.11 i.e. a person other than a candidate against whom the charge is made in the petition of corrupt practice having been committed at the election, cannot be impleaded by the petitioner in his election petition at his whim or volition otherwise all rival political leaders will come to be impleaded as parties to the petition. This is not and cannot be the object of the legislators in enacting section 99 of the Act. It is only the diecretion of the Court to issue the notice at the conclusion of the trial that puts the provisions of section 99 of the Act into operation. Section 99 of the Act does neither confer any right to relief nor does it give him any right to implead such a person in advance in hope that he may ultimately happen to be so named, by the Court at the conclusion of the trial. It is only at the time of making order under section 98 of the Act that the Court shall after observing the procedure prescribed under section 99 of the Act, name the persons who have been proved at the trial to be guilty of any corrupt practice and specify the nature of that practice. 18. From the provisions of section 99 of the Act, it is clear that it is not within the right of a petitioner to implead a person in the hope of being found guilty of any corrupt practice by the High Court at the time of making an order under section 98 of the Act. It is only the power of the High Court to give such a person notice to appear before the High Court and to show cause why he should not be named and if such a person appears in pursuance of the notice, he will be given an opportunity of cross-examining any witness, who has already been examined by the High Court during trial of the petition and has given evidence against him. Such a person will also be given opportunity of calling evidence in his defence and of being heard. Such a person will also be given opportunity of calling evidence in his defence and of being heard. It is only then that the High Court will name such a person to be guilty of any corrupt practice, found to have been committed by him. 19. Section 99 thus deals with three things :- (i) Power of the High Court to name a person who is not a party to the petition; (ii) the procedure to be followed by the High Court in the matter; and (iii) the rights of the person/persons to be so named. 20. It is significant to advert to wordings of sub-section (1) of section 87 of the Act which are to the effect that :- "Subject to the provisions of this Act and 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 (5 of 1908 ) to the trial of the suits (underlining) is by me). The procedure prescribed by the Code of Civil Procedure does not in its entirety apply to the trial of the election petitions. In respect of those matters about which are provision, in the Act or rules made thereunder, procedure provided in C.P.C. will net apply. Therefore, in presence of the special provisions contained in section 99 of the Act, there is no force in the contention of the learned counsel for the petitioner to the effect that a joinder respondent No. 11 is permissible under the provisions of C.P.C. and that he can implead respondent No.11 at the time of presentation of the petition itself because a charge of corrupt practice having been committed at the election by him is made in the petition and the relief of naming him under section 99 can also claimed. 21. Somewhat similar situation cropped up before the Lordship of Assam High Court in a case reported in Amjad Ali v. B. C. Barua AIR 1958 Assam 17 In the election petition filed under section 80 of the Act for setting aside certain election, the petitioner of that case also prayed for a notice to be issued against certain persons to show cause why they should not be named in the order of the Tribunal as persons guilty of corrupt practices. Along with other parties, a notice was issued to such persons also, who objected that they could not be made parties at the stage. It was held in this case as under :- "(1) the persons did not come under the category of 'candidate' returned or contesting, and as such they could not be made a party to the petition for setting aside the election, within the meaning of section 82. (2) that it was only after the conclusion of the trial that the question of issuing notice on such persons within the meaning of the proviso to section 99 arises, provided the Court held, on the materials produced that they were found guilty of such corrupt practices. (3) that the suggestion that these persons could be made parties to the proceeding at this stage under some residuary provision or even under Order 1, rule 8 Civil Procedure Code could not be entertained in view of the specific provisions of sections 82 and 99. The order of the Tribunal was, therefore, without jurisdiction and not warranted by any provision in the Act" 22. Consequently, the special provision contained in section 99 governs the present situation. Reliance on any provisions of Civil Procedure Code in this matter is not open. 23. Accordingly, reliance on the provisions of Order 1 Rule 3 C.P.C. sought by the learned counsel for the petitioner is not available. Order 1 rule 3 provides that :- "3. Who may be joined as defendants-All persons may be joined in one suit as defendants where :- (a) any right to relief in respect of or arising out of the same act or transaction or series of act or transactions is alleged to exist against such persons whether jointly, severally or in the alternative ; and (b) if separate suits were brought against such persons, any common question of law or fact would arise." (underlining -here italics- is by me) The words 'right to relief' occurring in rule 3 of Order 1 are of great significance. Whether a person can have a relief against particular person or persons is a matter that is governed by substantive law. Right to vote, right be to a candidate at election and right to challenge the election are rights which are creatures of law. Whether a person can have a relief against particular person or persons is a matter that is governed by substantive law. Right to vote, right be to a candidate at election and right to challenge the election are rights which are creatures of law. Section 81 thereof confers a right on any candidate at such election or any elector to call in question the election by filing an election petition. The reliefs which the petitioners has right to claim are specified by section 84 of the Act. The petitioner cannot be said to have right to any other relief than those specified by Section 84. Section 99 not does confer on the petitioner any right in respect of any relief. When Court takes proceeding under section 99, the section talks of the right only of the person to whom notice has been issued. This is the ratio of the case reported in Ramphal Vs. Brahma Prakash AIR 1961 Punjab 129 in which it has been held as under :- "Notice to the persons who are sought to be named as guilty of any corrupt practices under section 99, should issue only at the conclusion of the trial & if the Tribunal choses to examine some witnesses as Court witnesses, the trial should be deemed to conclude only after those witnesses have been examined and cross examined. It may not strictly accord with the intention of the legislature in enacting section 99 to issue such a notice at a stage when some of the witnesses have yet to be examined. But a notice which goes to a person for the purpose of showing cause before the conclusion of the trial, if at all, cannot be held to prejudice the petitioner in an election petition. Under section 99, proviso (b) the right to cross examine any witness who has already been examined by the Tribunal and has given evidence against the person to whom show cause notice has gone is conferred on him alone; so such right is conferred on a petitioner in an election petition. Under section 99, proviso (b) the right to cross examine any witness who has already been examined by the Tribunal and has given evidence against the person to whom show cause notice has gone is conferred on him alone; so such right is conferred on a petitioner in an election petition. Had the legislature intended to confer on a petitioner in an election petition a further right to cross examine the witnesses whom he has already cross examined it would have been so expressly stated in this section." Thus section 99 of the Act cannot be construed to confer or create any right to relief in favour of the petitioner, viz., that of naming any person against whom a charge having committed any corrupt practice is made in the petition. 24. Faced with this situation, the learned counsel for the petitioner placed reliance on the ratio of cases reported in AIR 1955 SC 756 and AIR 1955 SC 776 and advanced the argument that since a charge is made in the petition against Respondent No. 11 if he is allowed to be continued, there will be no necessity of following the procedure of issuing notice etc. as contemplated by proviso to section 99. In those cases the position was altogether different. The appellant therein was a candidate at the election and as such it was held that issuance of notice under section 99 will not be necessary to them. But these cases do not lay down the law tint there can be 'anticipatory impleadment' of a person other than a candidate against whom a charge is laid in the petition before the Court decides to issue a notice, as visualised by section 99 of the Act, to him. Therefore, these cases are of no assistance to the petitioner in the matter. 25. Thereafter, the learned counsel relied on dictum of Kishan Chander's case (supra):- "Section 82 differs from the proviso to cl. (b) of sub-section (1) of section 99 in that former contemplates joining of parties who are known to the petitioner at the time of filing his petition, whereas the latter deals with the cases which are discovered during the trial and which were not known to the petitioner at the time of filing the petition." (underlining - here italics-is by me) 26. The learned counsel for the petitioner argued that since the petitioner knew that Respondent No. 11 has committed corrupt practice, therefore, he could according to the aforesaid principles implead him as respondent. This argument is not tenable in view of the fact that what their lordships of the Supreme Court have held, was in respect of candidates who are known to the parties, as is clear from the words "all candidates who are known" Occurring in a sentence preceding the passage relied on by Mr. Nigudkar which runs as under:- "The concept of fair trail requires that all candidates who are known to the petitioner to have indulged in corrupt practices should be made parties, and this is the reason why S.82 (b) has been enacted." Therefore, the words “parties who are known” occurring in the aforesaid dictum are referable only to 'candidates' and not "persons who are not candidates at the election". Use of the word 'parties' in lieu of the word 'persons' is also indicative of legislative intent as construed by me hereinbefore. 27. Thus where charge of corrupt practice is made in the petition against a candidate who is a party, then in that case observance of the procedure of issuance of notice contained in the proviso of section 99 is not necessary, But in case of a person other than a candidate who is not a party to the petition, the petitioner cannot be allowed to implead him in the petition as Respondent although there may be charge of having committed any corrupt practice in the petition. There is no provision enabling impleadment of such a person either in the Act or in the Civil Procedure Code. Consequently, the petition suffers from the defect of mis-joinder of parties inasmuch as Raj Narain has been joined as Respondent in the case. 28. The power to strike out name of a person erroneously impleaded as party from the array of respondents, flows from the provisions of Order 1, rule 10 C.P.C. read with section 87. In absence of specific provision dealing with the situation in the Act or the Rules, in case of misjoinder of a party, the power to strike out name of such a person is exercisable under Order 1 rule 10 CPC. In absence of specific provision dealing with the situation in the Act or the Rules, in case of misjoinder of a party, the power to strike out name of such a person is exercisable under Order 1 rule 10 CPC. The power of striking out unnecessary or vexatious pleadings as provided under Order 6 rule 16 CPC has also been preserved to the Court. 29. Accordingly, it is held that Respondent No.11 is not a necessary party and the provisions of section 82 of the Act are not contravened by his impleadment. Therefore issue No.3 (a) and (b) are decided against Respondent No.11 and in favour of the petition so far as issue No.3 (c) is concerned, it is held that the petitioner suffers from misjoinder of parties inasmuch as Respondent No.11 is not even a proper party and cannot be impleaded in anticipation of his being named by the Court at the conclusion of the trial as contemplated by section 99 of the Act. 30. Consequently, it is ordered that the name of Respondent No. 11 be struck off from the petition. So also the relief contained in para 30 (d) of the Election Petition is also ordered to be deleted as being unnecessary. Since in the election petition the charge can be made against a person other than a candidate (like Respondent No. 11 Raj Narain) of having committed corrupt practice at the election, therefore, allegations pertaining to the charge against him will continue in the petition. However, it is directed that where-ever the words "Respondent No. 11" occur in the petition, they may be amended to read as if the petition speaks of Raj Narain by name. In view of the fact that the plea raised on behalf of Respondent No. 11 in the written statement does not travel beyond contending that his joinder constitutes contravention of provisions of section 82 of the Act. Costs, consequential on his misjoinder are not being awarded to him inspite of the deletion of his name and deletion of the relief as contained in para 30 (d) of the petition.