G.M. LODHA, J.—Recrimination in Panchayat election petition whether permissible, in the absence of provision for the same, is the important question of juristice debate ? "Yes", as a weapon of defence, spelled out from "counter claim, set off under order 8 C.P.C. is the answer". Knocked down, at the polls, Narana Ram challenge Anoop Singh, in a legal dual, and wants that Anoop Singh should be first disarmed being deprived of weapon of recrimination, like Abhimanyu of Mahabharat. 2. Petitioner, Naranaram, is a defeated candidate in the general elections of Gram Panchayat Siriasar Kalan, which took place on 9th February, 1978. The contestees were the respondents No.2 and 3. Polling took place on 9.2.1978 and the result was declared by the Returning Officer on the same day. Respondent No. 2 Anoop Singh was declared elected by a majority of 3 votes against the respondent No. 3. Anoop Singh respondent No. 2 got 672 valid votes while Parsa, respondent No. 3 secured 669 valid votes. 3. An application was filed by the petitioner on 28-2-1978 before the Munsiff& Judicial Magistrate, Jhunjhunu, under Rule 78 of the Rajasthan Pan-chayat and Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as the Rules of 1960). The election of respondent No. 2 was challenged on the various grounds, including improper reception, and rejection of votes. 4. Respondent No. 2, Anoop Singh, elected Sarpanch, in his written statement alleged corrupt practices against the respondent No. 3 Parsa. It was stated that the election of respondent No. 3 would have been void, if he had been the returned candidate and if an election petition had been presented calling in question his election. He also pleaded the wrongful reception and rejection of votes. 5. The learned Munsif framed issues No. 9 to 16 on the allegations pleaded by way of recrimination in his written statement. Issue No. 17, was framed on the objection of the petitioner, that since there is no provision of making recrimination in the election rules of Panchayat, issues No. 9 to 16 cannot be treated, and enquired into by the Tribunal. 6. Issue No. 17, was framed on the objection of the petitioner, that since there is no provision of making recrimination in the election rules of Panchayat, issues No. 9 to 16 cannot be treated, and enquired into by the Tribunal. 6. Issue No. 17 was decided as preliminary issue, and the learned Tribunal, held that although there is no provision in the Rules of 1960 which provides to plead counter allegation against the defeated candidate by way of recrimination, but there is no prohibition also, and therefore, respondent No. 1 can plead counter allegation of corrupt practice etc., against respondent No. 3 by way of recrimination. 7. It is this order of the Election Tribunal dated 17th August, 1978 permitting the inquiry into the counter allegations, which has given rise to this writ petition. No one has appeared on behalf of the respondents to oppose this writ petition. 8. The learned counsel for the petitioner has argued that the election law, is a special law and election as well as election petition are creation of statutes. There is no common law right either for contesting the election or for the rights in the election petition as such. It was pointed out that since election petitions are creation of statute and they are not governed by the common law, as there is no analogous provision to Sec. 97 of the Representation of Peoples Act, 1951, a recrimination cannot be entertained. 9. During the course of the arguments, learned counsel was confronted with the judgment of this Court in Shiv Kishan Vs. Radha Kishan(l) wherein the question of recrimination in an election petition, so far as it relates to the counting of ballet papers is concerned, was considered by this Court. The learned counsel submitted that it is true that this is the nearest case to the point, but in this ease, exact and precise point, whether the recrimination in an election petition is maintainable has not been adjudicated upon. It was argued that the provisions of Code of Civil Procedure for counter claim contained in Order 6 and Order 8 of C.P.C. cannot be availed of by a non-petitioner in an election petition. The submission was that election petition is granted by a special law and the election petition procedure as provided in the Rajasthan Rules only says that Code of Civil Procedure is applicable, so far as possible. The submission was that election petition is granted by a special law and the election petition procedure as provided in the Rajasthan Rules only says that Code of Civil Procedure is applicable, so far as possible. Reliance was placed upon the judgment of Honble the Supreme Court in Jabar Singh vs. Genda Lal (2). 10. It was vehemently argued, that since the principles of common law are not applicable to the election petitions and as there is no place for equity, this Court should infer that the legislature never wanted to permit recrimination and it was on account of this intention, that, provisions like sec. 97 of the Representation of Peoples Act, were not made in the Panchayat Election Rules. 11. The above submissions of the learned counsel for the petitioner are plausible but on a close scrutiny, I find, myself, unable to accept them. Undoubtedly, the well established law is that there is no place for equity or common law, in the adjudication of election disputes by the Election Tribunal. Again it is settled law that election and election disputes, both, are creation of statutes and there is nothing like fundamental right or common law rights in these matters. I am also conscious of the established principle, that strict compliance of law is necessary in election petitions, and petition can be dismissed if they fail to comply with the requirements of the election law, because they are not civil disputes as such, or common law disputes. 12. In Jagan Nath vs. Jaswant Singh(3), it was observed by Honble the Supreme Court as under :— "The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements, of the law." 13. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements, of the law." 13. However, the crucial question which is to be considered in this case, is whether the defendant-non-petitioner, a returned candidate, in an election, petition, is prohibited from challenging, that if the defeated candidate would have been declared elected then also his election would have been void and liable to be quashed, because of commission of corrupt practice or because he was not eligible or qualified to be elected or because he was disqualified to be elected or because the votes which were counted, in his favour, were illegal or void and there was wrongful rejection or wrongful acceptance of votes. This precise question which requires interpretation of Rule 78 of the Rajasthan Panchayat & Nyaya Panchayat Election Rules, 1963, which is as under : "78. Manner of challenging an election or co-option under Rules — The election or co-option of any person as the Panch or a Panchayat or the election of any person as the Sarpanch or Up-Sarpanch of a Panchayat or as the member or Chairman of a Nyaya Panchayat may be called in question by presenting by petition to the Munsif, or where there is no Munsif to the Civil Judge, within whose jurisdiction the place of Head quarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds — (d) that the result of the election or co-option as the case may be, in so far as it concerns the returned candidate was materially affected— (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which was void, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or This section is similar to Secs. 100 and 101 of the Representation of the Peoples Act, 1951. 14. The provisions of recrimination are contained in Section 97 of the Representation of Peoples Act, 1951. 100 and 101 of the Representation of the Peoples Act, 1951. 14. The provisions of recrimination are contained in Section 97 of the Representation of Peoples Act, 1951. Section 97 of the Representation of Peoples Act read as under : "Section 97. Recrimination (1) 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 petition had been presented calling in question his election : Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial give notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in secs. 117 and 118 respectively. (2) Every notice referred to in sub-sec. (1) shall be accompanied by the statement and particulars required by sec. 83 in the case of an election petition and shall be signed and verified in like manner." 15. It would thus be seen that, there is no analogous provision like Sec. 97 of the Representation of Peoples Act, 1951 (hereinafter referred to be as the Act, of 1951 ) in the Panchayat Election Rules. In the absence of a specific provision analogous to section 97 of the Act of 1951, can it be presumed that the rule making authority intended that the defeated candidate, if he filed an election petition, enjoys impunity from the challenge to his conduct in the election process. Even if he has committed corrupt practices, they cannot be probed into by the election Tribunal. The learned counsel contended that, that is the intention of the rulemaking authority, is not spelled out by such an omission. 16. In Shiv Kishan vs. Radha Kishan (supra) this Court had occasion to consider the question whether in the absence of any provision regarding re-crimination, a returned candidate can be allowed to plead in his written statement that some invalid votes were counted for the alternative candidate and some valid votes cast in his favour, were improperly rejected. 16. In Shiv Kishan vs. Radha Kishan (supra) this Court had occasion to consider the question whether in the absence of any provision regarding re-crimination, a returned candidate can be allowed to plead in his written statement that some invalid votes were counted for the alternative candidate and some valid votes cast in his favour, were improperly rejected. A similar objection like the one, argued before this Court that in the absence of the provision analogous to Section 97 of the Act of 1951, recrimination in any favour cannot be permitted, was made there and reliance was placed on the judgment of Honble the Supreme Court in Ram Sewak vs. H.K. Kidwai (4) and Jabar Singhs case (Supra), by this Court. Repelling this submission this Court observed as under:— "Even though there is no provision corresponding to that contained in section 97 of the Representation of the Peoples Act, 1951 it is open to the returned candidate to plead in his written statement that invalid votes were counted for the alternative candidate and some valid votes cast in his favour were improperly rejected. If he gives precise particulars so as to make a prima facie case for re-counting the votes of the alternative candidate and his rejected votes the Tribunal will be bound to recount them. He cannot ask for a recount of those votes unless he takes the requisite pleas in his written statement. For the trial of an election petition under the Rajasthan Panchayat and Nyaya Panchayat Election Rules is a judicial trial which has to be conducted in accordance with the procedure provided in the Code of Civil Procedure for the trial of suits so far as it can be made applicable. Rule 2 of Order 8 C.P.C. provides that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality." 17. I am in respectful agreement with the view taken by this Court in Shiv Kishans case (supra). I am in respectful agreement with the view taken by this Court in Shiv Kishans case (supra). Where-ever there is no specific prohibition or express provisions covering particular subject, under the Act of 1951, the Code of Civil Procedure applies to the trial of the election petition, though the rule making authority has used word, as far as possible. 18. In view of this, the provision of the Code of Civil Procedure, more particularly Order 6 & Order 8 have got application, so far as written statements are concerned. Order 8 Rule 1 provides for written statement. Order 8 R. 6, 6(a), 6(b), and 6(c) provide for particulars of set off to be given in written statement, counter claim by defendant. Order 8 Rule 6 & Rule 6A: R.6. PARTICULARS OF SET OFF TO BE GIVEN IN WRITTEN. (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant, may, at the first hearing of the suit, but not after wards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off. (2) Effect of set-off. The written statement shall have the effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. "6A. COUNTER-CLAIM BY DEFENDANT. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. "6A. COUNTER-CLAIM BY DEFENDANT. (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not : Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints." 19. The above provisions of the Code of Civil Procedure, are applicable and the non-petitioner elected candidate, who has got status of the defendant, to defend his election is within his legal limits to file counter claim in the form of recrimination by setting off a case, that the defeated candidate; even if he succeeds on the point pleaded in the plaint, is liable to be defeated or cannot be declared elected, as Sarpanch, because he is guilty of corrupt practice or because he was disqualified to be a candidate or was not qualified to be a candidate or because votes which he secured, were not valid on account of wrongful acceptance. These, all, defences are permissible defences and they can be taken in written statement, by defeated candidate, even though there is no similar provision for recrimination, under the relevant rules. 20. It is true that whatever is not prohibited, need not be inferred as permitted. However, this is too wide preposition of law and what is permissible in the given case would, depend upon the scheme of the Act under rules. 20. It is true that whatever is not prohibited, need not be inferred as permitted. However, this is too wide preposition of law and what is permissible in the given case would, depend upon the scheme of the Act under rules. 21. The crucial question in an election dispute, raised by the election petitioner is that though the Returning Officer declared respondent Anoop Singh to be Sarpanch but in fact, and in law he was entitled to be declared elected by the Returning Officer, because of various reasons which are contained in the scope of corrupt practices or qualifications of disqualification or improper acceptance or rejection of votes. This being the crucial dispute, the provision of the Code of Civil Procedure in so far as they relate to the filing of the written statement, do apply sudject, of course, to the riders contained in the Election Rules. 22. That being so, I am convinced that in a Panchayat Election dispute governed by the Rajasthan Panchayat & Nyaya Panchayat Election Rules, a defeated candidate is entitled to plead in the written statement, all those grounds, by which he can show that the defeated candidate, should not be declared elected. It is not very material, what terminology is to be used for this purpose, and it is properly described as "recrimination" or "-counter-claim* or plea of "defence". 23. In substance, he is defending, himself, from being unseated and further is placing and proving before the Election Tribunal, that likely returned candidate is responsible and liable for corrupt practices or was not eligible for being elected as Sarpanch, on account of being disqualified or not qualified or that he never secured more votes than the returned candidate All these are permissible, logical & legitimate grounds, on which he can defend himself. 24. As discussed above, inspite of technical nature of the election petition, basic fact remains that the legislatures intention in providing the adjudication of the election disputes and challenge to the election results, is that the purity of the election should be maintained and the corrupt and unscrupulous practices should not be allowed for getting elected to adorn the public offices. As discussed above, inspite of technical nature of the election petition, basic fact remains that the legislatures intention in providing the adjudication of the election disputes and challenge to the election results, is that the purity of the election should be maintained and the corrupt and unscrupulous practices should not be allowed for getting elected to adorn the public offices. This being the basic intention, I am firmly of the view that the returned candidate cannot be deprived of legal right to defend himself by that weapons of defence as well as counter offence which can be termed as a counter claim or recrimination. In view of this, the view taken by the Election Tribunal calls for no interference in this writ petition, and writ petition deserves to be dismissed. 25. The result is that this writ petition fails and is hereby dismissed without any order as to costs.