ORDER : APPLICATION IN EP NO.74 OF 2016 IN ELECTIONI PETITION NO.6 OF 2014: (1) The application is filed by respondent No.1 to raise objection that evidence in chief in the election petition filed under the provisions of the Representation of the People Act, 1951 cannot be given on affidavit as provided under Order 18 Rule 4 of the Civil Procedure Code. Heard both the sides. 2. The learned counsel for respondent No.1 took this Court through various provisions of the aforesaid Act and the Rules made by the High Court, Original Side Rules 1980, and also Article 225 of the Constitution of India and Section 129 of the Civil Procedure Code. He placed reliance on two reported cases like (1) AIR 2005 SC 2441 (Kailash v. Nanhku); and, (2) AIR 1982 SC 983 (Jyoti Basu v. Debi Ghosal). 3. The relevant portion of the provision of section 87 of the Representation of the Peoples Act 1951 runs as under :- "87. Procedure before the High Court.-- (1) Subject to the provisions of this Act and 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 (5 of 1908) to the trial of suits: ..." 4. The aforesaid provision is a special provision for election petitions and there is no reference to the rules framed by High Court for such petitions. In Bombay High Court (Original Side) Rules, in Appendix II, there is Rule 28 which is as under : "28. Where no specific provision is made in the Act, the Code or the above rules, the Rules of the Bombay High Court (on the Original Side) 1980 in their application to suits will apply mutatis mutandis or as the Judge may direct. In Appendix II separate rules are made for few things like summons/notice for such petitions. 5. The learned counsel for the respondent No.1 submitted that in view of the provision of Article 225 of the Constitution of India and Section 129 of the Civil Procedure Code, the procedure laid down by the High Court for the purpose of election petition will prevail over the provision of the Civil Procedure Code. This position cannot be disputed. 5. The learned counsel for the respondent No.1 submitted that in view of the provision of Article 225 of the Constitution of India and Section 129 of the Civil Procedure Code, the procedure laid down by the High Court for the purpose of election petition will prevail over the provision of the Civil Procedure Code. This position cannot be disputed. However, the provision of Rule 28, quoted above, does not show that this Court has diverted from the procedure given in section 87(1) of the special legislation. Rule 28 speaks that if there no is no specific provision made in the special Act, Civil Procedure Code and the rules which can be found in Appendix II then only the rules framed by the High Court on Original Side, which may be for trial of suits, can be used as they are and there is other option that the Judge may decide about the procedure. The last part about the power given to the Judge is subject to the provisions of the special legislation, the provisions of the Code and also the rules framed under Appendix II of Original Side Rules for working of this Court. Thus, it cannot be said that the aforesaid rule 28 has provided that the procedure laid down for working of Original Side of the High Court for trial of suits needs to be used for trial of the election petitions. Learned counsel for respondent No.1 submitted that, rule 28 also needs to be read with Rule 274 of the High Court Original Side Rules. This Court has already held that this Court is not expected to go beyond the rules mentioned in Appendix II already mentioned. 6. In the aforesaid two reported cases, on which reliance was placed by learned counsel for respondent No.1, the Apex Court has made it clear that when there is conflict between the provisions of the Civil Procedure Code and the special legislation made about the procedure, the special legislation shall prevail. Learned counsel for the respondent No.1 stressed much on the observations which as sum and substance of the law laid down by the Apex Court in the case of Kailash cited supra at paragraph 45 (III). Learned counsel for the respondent No.1 stressed much on the observations which as sum and substance of the law laid down by the Apex Court in the case of Kailash cited supra at paragraph 45 (III). That portion is as under : "45(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter." 7. Even if the aforesaid portion is read as it is, in view of the discussion made already it cannot said that the rules made by this Court for trial of election petitions are inconsistent with the provisions of the Civil Procedure Code and there is intention of High Court to divert from the procedure laid down in the Civil Procedure Code for trial of election petitions. In the same case at para 45(ii) the Apex Court has laid down that the rules of procedure contained in Civil Procedure Code apply to the trial of election petitions under the Act with flexibility and only as guidelines. These observations can be used in two ways. On one hand, the rules given in the Civil Procedure Code are to be kept in mind as guidelines and they can be treated as flexible. When there is no specific procedure laid down by the High Court for recording the evidence of election petitions and this Court has made it clear in rule 28 quoted above, that procedure given in the Code will be followed, this Court holds that the objection raised by respondent No.1 to the examination-in-chief on affidavit cannot be accepted and the affidavit cannot be rejected. Thus, there is no substance in the objection. The objection stands rejected. The application is rejected. List the main matter on 22nd November 2016 at 2.30 p.m.