JUDGMENT 1. - respondent No. 1 was declared elected as a Member of the Rajasthan Legislative Assembly on 28th of September, 1993. He defeated his nearest rival candidate - Nathulal, the petitioner, by a difference of 15. votes. The result of the said election is under challenge. 2. The election petition was filed on January 10, 1994. The Judge, who was nominated to hear the matter, issued notice on January 21, 1994, to the respondents, fixing February 17, 1994. In pursuance of this order, summons were issued by the office under the signature of the Superintendent, Rajasthan High Court, requiring the respondents to appear on February 17, 1994 and file the reply. But there was no sitting of the Court on Feb. 17th. 3. In spite of service, the respondent No.1 did not appear on February 17, 1994. The next date fixed was March 7, 1994. On that date, the Court passed an order, after being satisfied that summons were duly served, the petition to be heard ex-parte. The Court proceeded strictly in accordance with the provisions of O.IX, R.6(a) of the Civil Procedure Code. 4. The respondent No.1 appeared in Court through Mr. N.K. Joshi, as his counsel, on March 17, 1994, alongwith an application for setting aside the order dated March 7, 1994. It was allowed vide order dated April 4, 1994, on payment of Rs. 500/- as cost. The next date fixed was April 19, 1994. In the mean-time, the recrimination petition, under Section 97 of the Representation of the People Act, 1951 (for short, 'the Act, 1951'), was filed by the respondent No.1 on March 21, 1994. 5. Mr. Rastogi, appearing on behalf of the election petitioner, has raised two preliminary objections against this recrimination petition:- (1) It was barred by limitation. (2) Along with the recrimination petition, the required number of copies were not filed. There was non-compliance of Section 81(3) of the Act and Rule 11. 5. Mr. Rastogi, appearing on behalf of the election petitioner, has raised two preliminary objections against this recrimination petition:- (1) It was barred by limitation. (2) Along with the recrimination petition, the required number of copies were not filed. There was non-compliance of Section 81(3) of the Act and Rule 11. Section 97 provides that when in an election petition a declaration, that any candidate other than the returned candidate has been duly elected is claimed, the returned candidates 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 has been presented calling in question his election; provided that the returned candidate or such other party, as aforesaid shall not be entitled to gave such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security. Petitioner's objection regarding limitation. 6. According to the mandatory provision, the recrimination petition was to be filed within 14 days from the date of the commencement of the trial. According to the petitioner, it was 17th February, 1994, whereas, the respondent's case is that the trial commenced on March 7, 1994. The Court has to find and record a finding as to when did the trial actually commence. According to Section 97, the recrimination petition is to be filed within 14 days of the commencement of trial. The trial of the election petition and the recrimination petition is governed by the provisions of Section 86 of the Act. The Explanation to sub-section (4) of Section 86 runs as follows:- "Explanation. - For the purpose of this sub-section and 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 in the petition." According to this provision, the trial shall be deemed to commence on the date fixed in the summons for appearance. In the instant case, February 17, 1994 was the date fixed in the summons.7. In the instant case, February 17, 1994 was the date fixed in the summons.7. A combined reading of Section 97 and the Explanation to sub-section (4) of Section 86 of the Act shows that the recrimination petition is to be filed within 14 days from the date of commencement of the trial. The trial will be deemed to commence on the date fixed for the respondents to appear before the Court and answer the claim. This Court is called upon to interpret the meaning of the words "commencement of the trial."8. According to respondent's counsel, if a harmonious interpretation is given to these two provisions, then, the trial would not be deemed to commence on February 17, 1994, as there was no sitting of the Court. The commencement of the trial takes place only when there is an application of mind by the Court. The trial never commences in vacuum.9. In support of his contention, he has relied upon the decision reported in Sajjan Singh and Another v. Bhogilal Pandiya & Others, AIR 1958 Rajasthan 307 . In that case, the 1. AIR 1958 Rajasthan 307 Election Commission had fixed a date for appearance of the respondent and not the Tribunal. The question to be decided by the Division Bench was whether the date by the Commission could be taken to be a date fixed by the Tribunal. It came to the conclusion that if it was not the date fixed by the Tribunal, it will not be deemed to be the commencement of the trial. However, while concluding the case, in paragraph 15, it was casually observed "even otherwise, we do not find it possible to hold that the trial actually began in this case on July 23, 1957. Nothing substantial happened on 23rd or even on 30th July, 1957". It was just an obiter. The Court was not called upon to record any finding on this point. It was not in issue. It was not the case of the parties even.10. The case of Sajjan Singh was a case prior to Representation of the People Act (Amendment Act, 1966). By this amendment, the word "Tribunal" has been substituted by the "High Court".11. Mr. Joshi's contention further was that as on February 17, 1994, there was no sitting of the Court, fresh notices should have been issued, fixing another date for hearing of the election petition. By this amendment, the word "Tribunal" has been substituted by the "High Court".11. Mr. Joshi's contention further was that as on February 17, 1994, there was no sitting of the Court, fresh notices should have been issued, fixing another date for hearing of the election petition. In the eyes of law, the election petition will be deemed to have been listed for the first time, after service on respondent No.1, on March 7, 1994. The ex-parte order passed on March 7, 1994, was set aside, at the instance of the respondent No.1, on April 4, 1994. According to him, 4th April should be treated as a date for commencement of the trial. Even 7th of March, 1994, if accepted to be the date of commencement of the trial, the recrimination petition was filed on March 21, 1994, very much within 14 days, as provided in Section 97 of the Act. It was within time.12. Referring to the proviso to sub-section (4) of Section 86, his contention was that the words "to appear before the High Court to answer the claim or claims in the petition" pre-suppose the presence of the Judge/Judges to whom the election petition has been assigned for hearing. If the petition has not been taken up for hearing by the Judge, the limitation for the purposes of submitting recrimination petition cannot be said to have commenced. The trial of the election petition did not commence on 17.2.94. According to him, the phrase "to appear before the High Court and answer the claim or claims" automatically requires the presence of the judge.13. In support of his contention that the provision of the Statute should be given harmonious interpretation, he has referred to decisions reported in Madanlal Fakirchand Dudhediya V. Shree Changdeo Sugar Mills, AIR 1962 SC 1543 and Sanjeevayya v. Election Tribunal, Andhra Pradesh and others, AIR 1967 SC 1211 . Provisions of one section cannot be used to defeat those of another unless reconciliation is impossible. The election petition was never taken up for hearing on February 17, 1994, so, the deeming clause of Explanation to sub-section (4) of Section 86 cannot be attracted.14. It was further contended that the Explanation to sub-section (4) of Section 86 was only meant to give clarity to the provisions of Sections 86 and 97 of the Act. The election petition was never taken up for hearing on February 17, 1994, so, the deeming clause of Explanation to sub-section (4) of Section 86 cannot be attracted.14. It was further contended that the Explanation to sub-section (4) of Section 86 was only meant to give clarity to the provisions of Sections 86 and 97 of the Act. But, it would not govern the situation, where the trial did not actually commence on the date fixed for appearance of the respondent. The limitation of 14 days will arise only when the trial of the election petition had actually commenced and the deeming provision can be made applicable only then and not otherwise.15. Mr. Rastogi, appearing on behalf of the election petitioner, contended that according to the summons served on the respondents, they were required to appear before the Court and answer the claim in the petition by February 17, 1994. The period of 14 days limitation for filing recrimination petition had started running.16. In the exercise of the power conferred by Section 46 of the Rajasthan High Court Ordinance, 1949 read with Article 225 of the Constitution of India, the Rajasthan High Court had made Rules in regard to the election petitions under the Representation of the People Act. Rule 9, which is relevant for this case, runs as follows:- "Rule 9. Immediately after the time fixed for the removal of objections, the petition shall be placed before the Judge for such orders as may be required to be passed under section 86 of the Act. If the petition is not dismissed under section 86(1) of the Act, a summons, on the direction of the Judge, shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issue and shall be served on the respondents through the District Judges in the manner provided for the service of summons. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issue and shall be served on the respondents through the District Judges in the manner provided for the service of summons. The District Judges will make their best endeavour to serve the summons on the respondents and make a return of the service of the summons with the greatest expedition." According to this Rule, as well, the respondent No. 1 was required to put in appearance and file a written-statement February 17, 1994, but nothing was done.17. The case of Sajjan Singh (supra) was considered and clarified by the High Court of Jammu and Kashmir in the case reported in Hariom Singh v. Dr. Karan Singh, AIR 1980 J&K 57 in which it was held that the trial of the election petition commences on the date fixed for the respondents to appear in the High Court to answer the claim. Similar views have been expressed in the cases reported in S. Semmalai v. R. Narayanan & Others, 61 Election Law Reports 116 (Madras High Court) , Patangrao Shripati Kadam v. Sampat Rao Annasaheb Chavan and Others (Bombay High Court), 67 Election Law Reports 175 , AIR 1980 J & K 57, Hari Om Singh v. Dr. Karan Singh and Mahikrao v. Banu Rao, AIR 1973 Mysore 271 , wherein it has been clearly laid down that the trial shall commence from the date mentioned in the summons for appearance of the respondent to answer the claim.18. In another case reported in Duryodhan v. Sitaram, AIR 1970 Allahabad 1 , While considering the application of Order 9 and Order 17, Civil Procedure Code, to the election petitions and examining the scope of the word "trial", used under Section 90(1) of the Representation of the People Act (as it then stood), it was held that the trial commenced from the first Peshi by the Tribunal and concluded when the Tribunal passes an order putting an end to the proceedings.19. The judgment of the Allahabad High Court is based on the judgment of the Supreme Court reported in Harish Chandra Bajpai and Another v. Triloki Singh and Another, AIR 1957 SC 444 wherein, it was held that the provisions of the Act reveal that the word "trial" is used as meaning the entire proceedings before the Tribunal/Court from the time when the petition is transferred to it. In other words, when the petition is filed in the Court. A reference was made to the earlier decision of the Supreme Court in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 .20. In another case reported in Chandrika Prasad v. Shiv Prasad Chanpuria, AIR 1959 SC 827 , the Court affirmed its earlier decision in the case of Harish Chandra (supra) that the word "trial", in Section 90, is used as meaning the entire proceedings before the Tribunal from the time the petition is transferred to it under Section 86.21. In the case of S. Semmalai v. R. Narayanan and Others, reported in 61 Election Law Reports 116 , while interpreting the Explanation to Section 86(4) of the Act, the Court was of the view that the date fixed for the respondent to appear before the High Court and answer the claim or claims made in the petition was held to be the date for commencement of the trial. Same view was expressed by the Bombay High Court in the case of Patangrao Shripati Kadam v. Sampat Rao Annasaheb Chavan & others, reported in 67 E.L.R. 175 and Patangrao Shripati Kadam v. Sampatrao Annasaheb Chavan & others (sic ?) reported in 67 Election Law Reports 175 .22. A bare reading of Section 97 and Explanation to sub-section (4) of Section 86 leads to irresistible conclusion that the limitation of 14 days for filing the recrimination petition will start from the date fixed in the summons for the respondents to appear and answer the claim. Relying on the ratio of these cases, I hold that the trial of the election petition commenced on 17th Feb., 1994. Thus, the objection of the petitioner's counsel that the recrimination petition is barred by limitation, is accepted.23. Relying on the ratio of these cases, I hold that the trial of the election petition commenced on 17th Feb., 1994. Thus, the objection of the petitioner's counsel that the recrimination petition is barred by limitation, is accepted.23. For the reasons given above, I am of the view that in the instant case, the trial commenced on February 17, 1994 and the recrimination petition, filed on March 21, 1994, was barred by limitation.Objection regarding breach of Section 81(3) of the Act and Rule 11 framed therein.24. Section 81(3) provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. The contention of the learned counsel for the petitioner was that the recrimination petition should have been accompanied by as many copies thereof as there were respondents. The law requires that every copy shall be attested by the petitioner under his own signature to be the true copy of the petition. Rule 11 further provides that those of the respondents who file written statements or recriminatory statements as provided under Section 97(2) of the Act shall also furnish copies of such written statement and recriminatory statements for the use of the petitioner and other respondents, as the case may be. Where a recriminatory statement under Section 97(2) alleges any corrupt practice, the statement shall be accompanied by an affidavit in support of the allegation of such corrupt practice and the particulars thereof.25. Admittedly, the respondent No. 1 did not file the requisite copies of the recrimination petition along with it on March 21, 1994. They were filed subsequently on March 24, 1994. The provisions have been held to be mandatory by the preme Court in the case of Hukumdev Nirrain Yadav v. Lalit Narain Misra, reported in AIR 1974 SC 480 and in Sharif-ud-Din v. Abdul Gani Lone, AIR 1980 SC 303 . Since there was a breach of mandatory provisions of Section 81(3) of the Act and Rule 11 of the Rules, the objection of the petitioner sustains.26. Since there was a breach of mandatory provisions of Section 81(3) of the Act and Rule 11 of the Rules, the objection of the petitioner sustains.26. For the reasons given above, I am of the view that the recrimination petition is liable to be rejected on this ground as well.The recrimination petition is hereby dismissed as being barred by limitation and for non-compliance of the provisions of Section 81(3) of the Act and Rule 11.Recrimination Petition Dismissed. *******