PLJ 2009 Lahore 1
Present: Hasnat Ahmed Khan, J/E.T.
Syed FAKHAR IMAM--Petitioner
versus
MUHAMMAD RAZA HAYAT HIRAJ and 5 others--Respondents
Election Petition No. 157 of 2008 and Civil Misc. No. 2 of 2008,
decided on 8.9.2008.
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 76 & 64--Election petition--Dismissal in default--Restoration--Powers of the Tribunal--Held: Election Tribunal has the power to restore the petition dismissed in default, provided there are genuine and sufficient reasons in support of such application. [P. 10] A
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 76 & 64--Election petition--Dismissal in default--Restoration petition--Held: Returned candidate despite service did not come forward to contest the petition, so there was no counter affidavit to rebut the contention of petitioner or his counsel--Petition was filed promptly--Case was still at initial stage and the trial had not yet been commenced--Petition accepted. [P. 10] B, C & D
2007 CLC 610; 2003 MLD 57; NLR 1982 CLJ 23; 1983 CLC 2965; PLD 1969 SC 65; PLD 1972 Lah. 603; PLD 1975 SC 331; 2002 SCMR 1076; PLD 1987 SC 512; 1983 CLC 3031; 1996 SCMR 426 & AIR 1961 Bom. 21.
M/s. Maqbool Elahi Malik & Muhammad Umar Riaz, Advocates for Petitioner.
Kh. Haris Ahmed, A.G. Punjab with Ch. Muhammad Sadiq, Addl.A.G. for Respondents.
Date of hearing: 1.8.2008.
Order
Through this application, a prayer has been made to restore the main Election Petition, which was dismissed on 20th of June, 2008 due to non-appearance of the petitioner.
2. It has been averred in the application, in hand, that on the eventful day, i.e. 20th of June, 2008, Mr. Muhammad Umar Riaz, one of the learned counsel for the applicant/election petitioner, came to this Court at 8 a.m. and he was told by the Reader of this Tribunal that the Election Petitions would be taken up after the conclusion of the proceedings of the Full Bench of which the undersigned was a Member. It has further been asserted that after an hour or so, the said counsel once again came to the Court-room but was surprised to know that the Election Petitions had already been taken up by this Tribunal before the commencement of the proceedings of the Full Bench and due to the absence of the petitioner as well as his counsel, the election petition had been dismissed.
3. The application, in hand, which is supported by an affidavit of Mr. Maqbool Elahi Malik, learned counsel for the petitioner, was filed on 24th of June, 2008. Subsequently, the application was supplemented by an affidavit of Syed Fakhar Imam-the applicant--petitioner himself. On 25th of June, 2008, the application was put up before this Tribunal and after hearing the learned counsel for the applicant, the office was ordered to issue notices to all the respondents through all modes of service. The notices, issued in consequence of the said order, were duly served on the respondents but none of them opted to appear before this Tribunal to contest this application. So much so, that Respondent No. 1- returned candidate-who was served with the notice personally, failed to appear before this Tribunal. Consequently, all the respondents were proceeded against, ex parte. However, in view of the law laid down in the case of Asif Nawaz Fatiana v. Walayat Shah and others (2007 CLC 610), wherein it had been held that an election petition dismissed in default, cannot be restored, a notice was issued to the learned Advocate-General in terms of Section 60 of the Representation of the People Act (LXXXV of 1976) (hereinafter referred to as the Act).
4. Mr. Maqbool Elahi Malik, learned counsel for the applicant/election petitioner has contended that, though, there is no provision in the Representation of the People Act (LXXXV of 1976) empowering this Tribunal to restore the election petition, dismissed in default, but the same can be restored on the analogy of the relevant provisions of Civil Procedure Code, especially, when Section 64 of the Act lays down that the Tribunal, constituted under Section 52 of the Act, shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure; that under Section 76 of the Act, the election petition cannot be dismissed before the start of the trial but, surprisingly, in this case the election petition, which had not reached the stage of trial, was illegally dismissed under the said provision of law. In this respect he has relied upon the case of Muhammad Amjad v. Muhammad Anwar and 10 others (2003 MLD 57). He further submits that there is no specific bar in the Act against the restoration of an election petition, dismissed in default; that if there is no provision in any law to do a certain thing, then there are incidental powers to perform such an act and those powers are actually inherent; that the provisions of the Representation of the People Act (LXXXV of 1976) are pari materia to the provisions of the Punjab Local Government Elections Rules, 2000, which also do not contain any provision for the restoration of an election petition-dismissed in default, but while deciding a writ petition, it was held by Lahore High Court in the case of Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge, Hafizabad and 4 others (2001 YLR 336) that an election petition, dismissed in default, can be restored despite the fact, that there is no express provision in the said Rules permitting the said recourse. In this regard he has further placed reliance on the cases of Sardar Saleem Haider v. Rao Muhammad Afzal (NLR 1982 CLJ 23), Muhammad Hanif v. District Judge/Election Tribunal, Multan and others (1983 CLC 2965). He adds that in the case of Asif Nawaz Fatiana (supra), the Hon'ble Election Tribunal was not properly assisted, inasmuch as, the law laid down by the Hon'ble Supreme Court in the case of H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 Supreme Court 65)-wherein it was held that the Court should proceed on the principle that every procedure, which furthers the administration of justice, is permissible even if there is no express provision permitting the same - was not brought to the notice of the said Hon'ble Tribunal. He further maintains that there is always an implied and inherent power in every Tribunal to set aside the orders passed in default of the appearance of the parties. In this regard, he has placed reliance on the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603). To augment his contention, learned counsel has further relied upon the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).
5. Conversely, learned Advocate-General Punjab has contended that there is no cavil with the proposition that under Section 76 of the Act, election petition can only be dismissed after the start of the trial; that it is equally true that provisions of C.P.C are not applicable to the trial of the petitions filed under Section 52 of the Act, which by virtue of Section 62 of the Act has to be tried according to the Procedure for Trial of Election Petitions enacted/provided vide the Notification dated 16th March, 1985 issued in pursuance of powers conferred by sub-section (1) of Section 62 of the Act; that in view of the said provisions, the trial of the election petitions commences when a written statement is filed by the respondent or respondents; that due to the failure of the respondent to file the written statement, it would be deemed that the trial in this case had not started on the eventful day, meaning thereby that the election petition could not have been dismissed under Section 76 of the Act. Learned Advocate-General has further contended that as under Section 64 of the Act, this Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, therefore, at least inherent powers are available to this Tribunal to restore the Election Petition - dismissed in default. In nutshell, the learned Advocate-General has not opposed the prayer made in the application, in hand.
6. Before dilating upon the question involved in this case, a survey of the relevant provisions of the Act would be expedient. An Election Petition is filed under Section 52 of the Act. Procedure of filing an Election Petition has been given in ¦Section 53. As far as the procedure before the Tribunal is concerned, the Legislature has given the same by enacting Section 62, which was amended in 1985 through Ordinance No. XVIII of 1985. The amended sub-section (1) of S. 62 is reproduced as under:
"(1) Subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission."
In pursuance of the powers conferred by sub-section (1) of Section 62 of the Act, a Notification laying down the procedure for the trial of Election Petitions, was issued and published in the Gazette of Pakistan Extraordinary, Part-III, 17th of March, 1985 published in PLD 1985 (Central Statutes) 677. A perusal of the said Notification would reveal that a summary procedure has been provided for the decision of the election petition to obviate the delay in the disposal of the same. For the purposes of decision of this application, a perusal of Section 64 of the Act would also be necessary. The same is reproduced as under:
"The Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure 1908, (Act V of 1908) and shall be deemed to be a civil Court within the meaning of Sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
A perusal of the provisions of the said section reveals that the Election Tribunal has been bestowed with all the powers of a civil Court trying a suit under the Code of Civil Procedure, but when this section is read along with the provisions of Section 62 of the Act, one would gather that the procedure for the trial given in CPC, would not be followed, rather, the election petition would be decided in view of the procedure laid down by the Election Commission, in exercise of powers, conferred on it vide Section 62 of the Act. Nevertheless, the Tribunal would be having the powers of a civil Court trying a suit under CPC in view of the provisions of Section 64 of the Act, which obviously is later in the sequence of number than Section 62.
7. Insofar as the consequence of non-appearance of the petitioner or his counsel during the trial of the election petition is concerned, the Legislature made a specific provision to meet with such situation by enacting Section 76 of the Act, which is reproduced as under:
"Where, at any stage of the trial of an election petition, no petitioner makes an appearance, the Tribunal may dismiss the petition for default and make such order as to costs as it may think fit."
Interestingly enough, on the one hand, a power was bestowed upon the Election Tribunal to dismiss the election petition in case of non-appearance of the petitioner, but on the other, no provision, whatsoever, was made to decide the fate of application for restoration of the election petition on the move of the defaulting petitioner. In the said backdrop, an Election Tribunal presided by his lordship Syed Zahid Hussain, J., was pleased to hold that in absence of such a provision, the Election Tribunal, which does not ipso facto become a civil Court, cannot restore the election petition, dismissed in default, considering the fact that the Legislature has not given such a power to the Tribunal.
8. I have gone through the able and exhaustive judgment of my lord the Hon'ble Chief Justice Syed Zahid Hussain as Election Tribunal, for whose knowledge of law and experience, I have always had a great respect and admiration. However, with great humility and utmost respect, I am not in a position to subscribe to the view taken by my learned brother with regard to the questions involved in this case, which are as follows:--
(i) Whether in absence of any provision, empowering the Tribunal to restore the election petition, dismissed in default, it can restore the election petition or not?
(ii) Whether the Tribunal can exercise the powers given under Section 151 CPC?
(iii) Whether inherent powers are available to the Tribunal to restore the election petition, dismissed in default?
Undoubtedly, there is a provision in the Act to cater with the situation where the petitioner does not appear and by virtue of Section 72 of the Act, the election petition can be dismissed on account of non-appearance of the petitioner but the Legislature has not made any provision to give the power to restore the election petition, dismissed in default. Ex facie, it appears that the intention of the Legislature was/is that the election petition once dismissed in default should not be restored, but on a closer scrutiny, it appears that this omission cannot be taken or treated as an un-surmountable hurdle to provide a remedy to a litigant, who for some genuine reasons or circumstances beyond his control fails to appear before the Election Tribunal to pursue his Election Petition. For example, an election petitioner due to some unavoidable circumstances reaches the Tribunal just after five minutes of dismissal of his Election Petition due to his non-appearance, can he be left remediless. The answer would definitely be an emphatic no. For providing relief to such an applicant the provision of Section 64 of the Act, which gives the Tribunal all the powers of a civil Court, trying a civil suit under the Code of Civil Procedure, can be validly employed.
9. Besides, it is an established law that every Court in absence of any express provision, be deemed to possess in its very Constitution all such powers as are necessary to do right and undo a wrong in the course of administration of justice, as has been held in the case of Maqbool Rehman v. The State and others (2002 SCMR 1076) as under:
"The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non-separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provisions in the Code of Criminal Procedure be deemed to possess in its very Constitution all such powers are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle "when the law gives a person anything, it gives him that, without which it cannot exist".
Even if it is assumed that CPC is not attracted to the proceedings of Election Petitions filed under Section 52 of the Act, the equitable principles underlying the provisions of the said Code, can be invoked in such proceedings, as has been laid down by the Hon'ble Supreme Court in the case of Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others (PLD 1987 Supreme Court 512). However, the question that; whether in absence of specific provision to empower the Election Tribunal to restore the election petition, dismissed in default, can it restore the same, stands answered in the case of H.M. Saya (supra), wherein it was laid down as under:
"A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
10. Relying on the dictum laid down in the said case, an order of Election Tribunal, dismissing the application for restoration of election petition-filed under the Punjab Local Government Elections Rules, 2000- was set aside by His Lordship Maulvi Anwarul Haq, J., in the case of Rana Zulfiqar Ali Khan and another (supra), after holding as under:
"It is true that unlike said Rule 88 there is no specific provisions in the said Rules for restoration of election petition dismissed for non-prosecution. However, this cannot mean that learned Tribunal would be bereft of authority to restore an election petition even if sufficient cause is made out for absence of the petitioner."
Similar view was taken in the case of Sardar Saleem Haider (supra). In the case of Muhammad Hanif (supra), a Division Bench of Lahore High Court, while considering the effect of omission of provision to seek restoration of Election Petition, dismissed in default and interpreting the provisions of Punjab Local Councils (Election Petitions) Rules, 1979, held as under:
"In procedural law, what is not expressly excluded, is impliedly permitted."
11. While endorsing the same view, another Division Bench of Lahore High Court in the case of Muhammad Shafi and another v. Election Tribunal, Multan and another (1983 CLC 3031) held as under:
"4. We agree with the learned counsel for Respondent No. 2 that it is within the inherent jurisdiction of a Court or a Tribunal to take up the matter again, if it has been dismissed for non-prosecution if the non-appearance is justified in the circumstances of the case. The matter can be illustrated by means of a simple example. A case is called for. The party does not appear. It is dismissed in default. Soon thereafter the party appears and states that it stumbled on the way and was late only by a fraction of a minute. It will be open to the Court to say that it will recall its order of dismissal in default and hear the party. It cannot be said that the Court has no such power. Such an authority vests in an adjudicating body to determine the matter on merits. Unless it is expressly taken away by statute, the Court or Tribunal will have power to do all that is necessary to do justice between the parties."
The question, whether like a Court, civil or criminal, a Tribunal can also enjoy the inherent powers, has been answered by a Full Bench of Lahore High Court in the case of Muhammad Aslam Mirza (supra) wherein at page 654 of the judgment it was held as under:
"Also see Haji Zakeria Suleman v. The Collector, Yeotmal and others (1), Aijaz Ahmad v. Nazirul Hassan and another (2), Muhammad Hanif and others v. Ali Raza (3) and Manohar Lal L. Nadarchand v. Mohan Lai Gian Chand (4) for the proposition that there always exists an implied and inherent power in every tribunal to set aside orders passed in default of appearance of the parties. In view of the above, I do not want to take a different and narrow view so as to hold that the Rent Controller had no jurisdiction to recall an ex parte order where the party concerned can show a formidable cause for non-appearance on the relevant date." (underlining is mine).
At the same page of the judgment, it was held as under:
"(i) Continuing the subject of inherent and implied powers, first of all a question arises as to whether matters under the Ordinance can be decided in the absence of the parties. A perusal of the Ordinance will show that there is no provision in it anywhere for dismissing a matter in default or to proceed ex parte if, therefore, any such recourse is adopted by a Rent Controller, it is obvious that he adopts it by virtue of the inherent power vested in him to choose any procedure he likes. If once he has chosen such a procedure, then to carry the matter to its logical end, he must retain the power to recall or set aside orders passed ex parte or in default."
At page 644 of the judgment, it was held as under:
"(a) Legislature is supposed to know the Rules of Natural Justice and where no contrary procedure is prescribed, it is to be assumed that the Legislature intended that the procedure of natural justice is to be followed."
12. Now looking at the case from another angle, I have noticed that, though, there is no provision in the Procedure for the Trial of Election Petitions given in pursuance of Section 62 of the Act regarding the framing of issues, but by and large all the election petitions are decided after the framing of issues. One can argue that in the absence of any procedure for the framing of issues, the Tribunal cannot frame the issues, because there is no specific provision in this regard. Therefore, if a strict view is taken, that in absence of specific provision, the Court cannot frame the issues under its inherent powers, then, obviously, the framing of issues by the Election Tribunal would also become illegal. However, though, the Election Tribunal can dispense with the framing of issues but the decision of the election petition after framing of issues cannot be termed as illegal. Reliance in this regard is placed on the case of Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426) wherein it was held at Page-434 as under:
"The perusal of Section 62, before the aforementioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that for the trial of Election Petitions the legislature intended to do away with lengthy procedure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). Reading Section 62 as amended and Section 64 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure except for the trial of Election Petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission. It means that framing of issues emanating from the pleadings of the parties is not mandatory requirement of law, the Election Tribunal, however, for the facility of the proper trial of the Election Petition and bringing the contesting parties to controversial points may strike issues for resolution of the dispute."
There is yet another angle on the basis of which the application, in hand, merits acceptance, i.e, that proceeding of setting aside an election is one in which the entire electorate is interested, as has been held in the case of Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another (AIR 1961 Bombay 21) to the following effect:
"By S. 116, an election proceeding may be continued even after the death of the original respondent against a substituted respondent. There can be no doubt, therefore, that once a proceeding under the Representation of the People Act has reached the Election Commission or the Tribunal, those authorities must hear and dispose it of on its merits."
For the reasons given above, it is held that this Tribunal has the power to restore the election petition, dismissed in default, provided there are genuine and sufficient reasons in support of the said application.
13. Now considering the case, in hand, on merits, the application for restoration is supported by an affidavit of the learned counsel for the petition/applicant as well as that of the petitioner himself. The returned candidate-contesting respondent, despite service, did not come forward to contest the application, in hand, so, there is no counter affidavit belying the contents of this application. Therefore, there is no material to controvert or discard the assertions made by the petitioner. Besides, the application, in hand, was filed promptly. There is another ground for acceptance of this application, i.e., the election petition was dismissed under Section 76 of the Act, which lays down that the election petition can be dismissed at any stage of the trial of an election petition. However, on the eventful day, the case, in hand, was at initial stage and was fixed for appearance of the respondents. The contesting respondents had not even filed the written statement, therefore, it can be held validly that on the date on which the election petition was dismissed, the trial had not commenced, because the trial commences after the framing of issues, as has been held in the case of Muhammad Amjad (supra). Be that as it may, as there is no provision for framing of issues during trial of election petitions, it can be gathered that the trial of an election petition filed under Section 52 of the Representation of the People Act (LXXXV of 1976), would commence after filing of written statement, which in this case, had not been filed on the date when the election petition was dismissed, therefore, on this ground also, this application merits acceptance. Moreover, it is a settled law that litigants should not be knocked out on technical grounds, rather, the cases should be decided on merits.
15. Consequently, this application is accepted and the main election petition is restored to its original number, which shall come up for hearing on 19-09-2008.
16. The office is directed to issue notices to all the respondents through all modes of service subject to the deposit of necessary expenses by the petitioner.
17. Before parting with the order, I would like to acknowledge and appreciate the able assistance rendered to this Tribunal and the hard labour put in this case by Mr. Maqbool Elahi Malik, learned counsel for the applicant and the learned Advocate-General, Punjab.
(J.R.) Petition restored
Present: Hasnat Ahmed Khan, J/E.T.
Syed FAKHAR IMAM--Petitioner
versus
MUHAMMAD RAZA HAYAT HIRAJ and 5 others--Respondents
Election Petition No. 157 of 2008 and Civil Misc. No. 2 of 2008,
decided on 8.9.2008.
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 76 & 64--Election petition--Dismissal in default--Restoration--Powers of the Tribunal--Held: Election Tribunal has the power to restore the petition dismissed in default, provided there are genuine and sufficient reasons in support of such application. [P. 10] A
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 76 & 64--Election petition--Dismissal in default--Restoration petition--Held: Returned candidate despite service did not come forward to contest the petition, so there was no counter affidavit to rebut the contention of petitioner or his counsel--Petition was filed promptly--Case was still at initial stage and the trial had not yet been commenced--Petition accepted. [P. 10] B, C & D
2007 CLC 610; 2003 MLD 57; NLR 1982 CLJ 23; 1983 CLC 2965; PLD 1969 SC 65; PLD 1972 Lah. 603; PLD 1975 SC 331; 2002 SCMR 1076; PLD 1987 SC 512; 1983 CLC 3031; 1996 SCMR 426 & AIR 1961 Bom. 21.
M/s. Maqbool Elahi Malik & Muhammad Umar Riaz, Advocates for Petitioner.
Kh. Haris Ahmed, A.G. Punjab with Ch. Muhammad Sadiq, Addl.A.G. for Respondents.
Date of hearing: 1.8.2008.
Order
Through this application, a prayer has been made to restore the main Election Petition, which was dismissed on 20th of June, 2008 due to non-appearance of the petitioner.
2. It has been averred in the application, in hand, that on the eventful day, i.e. 20th of June, 2008, Mr. Muhammad Umar Riaz, one of the learned counsel for the applicant/election petitioner, came to this Court at 8 a.m. and he was told by the Reader of this Tribunal that the Election Petitions would be taken up after the conclusion of the proceedings of the Full Bench of which the undersigned was a Member. It has further been asserted that after an hour or so, the said counsel once again came to the Court-room but was surprised to know that the Election Petitions had already been taken up by this Tribunal before the commencement of the proceedings of the Full Bench and due to the absence of the petitioner as well as his counsel, the election petition had been dismissed.
3. The application, in hand, which is supported by an affidavit of Mr. Maqbool Elahi Malik, learned counsel for the petitioner, was filed on 24th of June, 2008. Subsequently, the application was supplemented by an affidavit of Syed Fakhar Imam-the applicant--petitioner himself. On 25th of June, 2008, the application was put up before this Tribunal and after hearing the learned counsel for the applicant, the office was ordered to issue notices to all the respondents through all modes of service. The notices, issued in consequence of the said order, were duly served on the respondents but none of them opted to appear before this Tribunal to contest this application. So much so, that Respondent No. 1- returned candidate-who was served with the notice personally, failed to appear before this Tribunal. Consequently, all the respondents were proceeded against, ex parte. However, in view of the law laid down in the case of Asif Nawaz Fatiana v. Walayat Shah and others (2007 CLC 610), wherein it had been held that an election petition dismissed in default, cannot be restored, a notice was issued to the learned Advocate-General in terms of Section 60 of the Representation of the People Act (LXXXV of 1976) (hereinafter referred to as the Act).
4. Mr. Maqbool Elahi Malik, learned counsel for the applicant/election petitioner has contended that, though, there is no provision in the Representation of the People Act (LXXXV of 1976) empowering this Tribunal to restore the election petition, dismissed in default, but the same can be restored on the analogy of the relevant provisions of Civil Procedure Code, especially, when Section 64 of the Act lays down that the Tribunal, constituted under Section 52 of the Act, shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure; that under Section 76 of the Act, the election petition cannot be dismissed before the start of the trial but, surprisingly, in this case the election petition, which had not reached the stage of trial, was illegally dismissed under the said provision of law. In this respect he has relied upon the case of Muhammad Amjad v. Muhammad Anwar and 10 others (2003 MLD 57). He further submits that there is no specific bar in the Act against the restoration of an election petition, dismissed in default; that if there is no provision in any law to do a certain thing, then there are incidental powers to perform such an act and those powers are actually inherent; that the provisions of the Representation of the People Act (LXXXV of 1976) are pari materia to the provisions of the Punjab Local Government Elections Rules, 2000, which also do not contain any provision for the restoration of an election petition-dismissed in default, but while deciding a writ petition, it was held by Lahore High Court in the case of Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge, Hafizabad and 4 others (2001 YLR 336) that an election petition, dismissed in default, can be restored despite the fact, that there is no express provision in the said Rules permitting the said recourse. In this regard he has further placed reliance on the cases of Sardar Saleem Haider v. Rao Muhammad Afzal (NLR 1982 CLJ 23), Muhammad Hanif v. District Judge/Election Tribunal, Multan and others (1983 CLC 2965). He adds that in the case of Asif Nawaz Fatiana (supra), the Hon'ble Election Tribunal was not properly assisted, inasmuch as, the law laid down by the Hon'ble Supreme Court in the case of H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 Supreme Court 65)-wherein it was held that the Court should proceed on the principle that every procedure, which furthers the administration of justice, is permissible even if there is no express provision permitting the same - was not brought to the notice of the said Hon'ble Tribunal. He further maintains that there is always an implied and inherent power in every Tribunal to set aside the orders passed in default of the appearance of the parties. In this regard, he has placed reliance on the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603). To augment his contention, learned counsel has further relied upon the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).
5. Conversely, learned Advocate-General Punjab has contended that there is no cavil with the proposition that under Section 76 of the Act, election petition can only be dismissed after the start of the trial; that it is equally true that provisions of C.P.C are not applicable to the trial of the petitions filed under Section 52 of the Act, which by virtue of Section 62 of the Act has to be tried according to the Procedure for Trial of Election Petitions enacted/provided vide the Notification dated 16th March, 1985 issued in pursuance of powers conferred by sub-section (1) of Section 62 of the Act; that in view of the said provisions, the trial of the election petitions commences when a written statement is filed by the respondent or respondents; that due to the failure of the respondent to file the written statement, it would be deemed that the trial in this case had not started on the eventful day, meaning thereby that the election petition could not have been dismissed under Section 76 of the Act. Learned Advocate-General has further contended that as under Section 64 of the Act, this Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, therefore, at least inherent powers are available to this Tribunal to restore the Election Petition - dismissed in default. In nutshell, the learned Advocate-General has not opposed the prayer made in the application, in hand.
6. Before dilating upon the question involved in this case, a survey of the relevant provisions of the Act would be expedient. An Election Petition is filed under Section 52 of the Act. Procedure of filing an Election Petition has been given in ¦Section 53. As far as the procedure before the Tribunal is concerned, the Legislature has given the same by enacting Section 62, which was amended in 1985 through Ordinance No. XVIII of 1985. The amended sub-section (1) of S. 62 is reproduced as under:
"(1) Subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission."
In pursuance of the powers conferred by sub-section (1) of Section 62 of the Act, a Notification laying down the procedure for the trial of Election Petitions, was issued and published in the Gazette of Pakistan Extraordinary, Part-III, 17th of March, 1985 published in PLD 1985 (Central Statutes) 677. A perusal of the said Notification would reveal that a summary procedure has been provided for the decision of the election petition to obviate the delay in the disposal of the same. For the purposes of decision of this application, a perusal of Section 64 of the Act would also be necessary. The same is reproduced as under:
"The Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure 1908, (Act V of 1908) and shall be deemed to be a civil Court within the meaning of Sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
A perusal of the provisions of the said section reveals that the Election Tribunal has been bestowed with all the powers of a civil Court trying a suit under the Code of Civil Procedure, but when this section is read along with the provisions of Section 62 of the Act, one would gather that the procedure for the trial given in CPC, would not be followed, rather, the election petition would be decided in view of the procedure laid down by the Election Commission, in exercise of powers, conferred on it vide Section 62 of the Act. Nevertheless, the Tribunal would be having the powers of a civil Court trying a suit under CPC in view of the provisions of Section 64 of the Act, which obviously is later in the sequence of number than Section 62.
7. Insofar as the consequence of non-appearance of the petitioner or his counsel during the trial of the election petition is concerned, the Legislature made a specific provision to meet with such situation by enacting Section 76 of the Act, which is reproduced as under:
"Where, at any stage of the trial of an election petition, no petitioner makes an appearance, the Tribunal may dismiss the petition for default and make such order as to costs as it may think fit."
Interestingly enough, on the one hand, a power was bestowed upon the Election Tribunal to dismiss the election petition in case of non-appearance of the petitioner, but on the other, no provision, whatsoever, was made to decide the fate of application for restoration of the election petition on the move of the defaulting petitioner. In the said backdrop, an Election Tribunal presided by his lordship Syed Zahid Hussain, J., was pleased to hold that in absence of such a provision, the Election Tribunal, which does not ipso facto become a civil Court, cannot restore the election petition, dismissed in default, considering the fact that the Legislature has not given such a power to the Tribunal.
8. I have gone through the able and exhaustive judgment of my lord the Hon'ble Chief Justice Syed Zahid Hussain as Election Tribunal, for whose knowledge of law and experience, I have always had a great respect and admiration. However, with great humility and utmost respect, I am not in a position to subscribe to the view taken by my learned brother with regard to the questions involved in this case, which are as follows:--
(i) Whether in absence of any provision, empowering the Tribunal to restore the election petition, dismissed in default, it can restore the election petition or not?
(ii) Whether the Tribunal can exercise the powers given under Section 151 CPC?
(iii) Whether inherent powers are available to the Tribunal to restore the election petition, dismissed in default?
Undoubtedly, there is a provision in the Act to cater with the situation where the petitioner does not appear and by virtue of Section 72 of the Act, the election petition can be dismissed on account of non-appearance of the petitioner but the Legislature has not made any provision to give the power to restore the election petition, dismissed in default. Ex facie, it appears that the intention of the Legislature was/is that the election petition once dismissed in default should not be restored, but on a closer scrutiny, it appears that this omission cannot be taken or treated as an un-surmountable hurdle to provide a remedy to a litigant, who for some genuine reasons or circumstances beyond his control fails to appear before the Election Tribunal to pursue his Election Petition. For example, an election petitioner due to some unavoidable circumstances reaches the Tribunal just after five minutes of dismissal of his Election Petition due to his non-appearance, can he be left remediless. The answer would definitely be an emphatic no. For providing relief to such an applicant the provision of Section 64 of the Act, which gives the Tribunal all the powers of a civil Court, trying a civil suit under the Code of Civil Procedure, can be validly employed.
9. Besides, it is an established law that every Court in absence of any express provision, be deemed to possess in its very Constitution all such powers as are necessary to do right and undo a wrong in the course of administration of justice, as has been held in the case of Maqbool Rehman v. The State and others (2002 SCMR 1076) as under:
"The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non-separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provisions in the Code of Criminal Procedure be deemed to possess in its very Constitution all such powers are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle "when the law gives a person anything, it gives him that, without which it cannot exist".
Even if it is assumed that CPC is not attracted to the proceedings of Election Petitions filed under Section 52 of the Act, the equitable principles underlying the provisions of the said Code, can be invoked in such proceedings, as has been laid down by the Hon'ble Supreme Court in the case of Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others (PLD 1987 Supreme Court 512). However, the question that; whether in absence of specific provision to empower the Election Tribunal to restore the election petition, dismissed in default, can it restore the same, stands answered in the case of H.M. Saya (supra), wherein it was laid down as under:
"A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
10. Relying on the dictum laid down in the said case, an order of Election Tribunal, dismissing the application for restoration of election petition-filed under the Punjab Local Government Elections Rules, 2000- was set aside by His Lordship Maulvi Anwarul Haq, J., in the case of Rana Zulfiqar Ali Khan and another (supra), after holding as under:
"It is true that unlike said Rule 88 there is no specific provisions in the said Rules for restoration of election petition dismissed for non-prosecution. However, this cannot mean that learned Tribunal would be bereft of authority to restore an election petition even if sufficient cause is made out for absence of the petitioner."
Similar view was taken in the case of Sardar Saleem Haider (supra). In the case of Muhammad Hanif (supra), a Division Bench of Lahore High Court, while considering the effect of omission of provision to seek restoration of Election Petition, dismissed in default and interpreting the provisions of Punjab Local Councils (Election Petitions) Rules, 1979, held as under:
"In procedural law, what is not expressly excluded, is impliedly permitted."
11. While endorsing the same view, another Division Bench of Lahore High Court in the case of Muhammad Shafi and another v. Election Tribunal, Multan and another (1983 CLC 3031) held as under:
"4. We agree with the learned counsel for Respondent No. 2 that it is within the inherent jurisdiction of a Court or a Tribunal to take up the matter again, if it has been dismissed for non-prosecution if the non-appearance is justified in the circumstances of the case. The matter can be illustrated by means of a simple example. A case is called for. The party does not appear. It is dismissed in default. Soon thereafter the party appears and states that it stumbled on the way and was late only by a fraction of a minute. It will be open to the Court to say that it will recall its order of dismissal in default and hear the party. It cannot be said that the Court has no such power. Such an authority vests in an adjudicating body to determine the matter on merits. Unless it is expressly taken away by statute, the Court or Tribunal will have power to do all that is necessary to do justice between the parties."
The question, whether like a Court, civil or criminal, a Tribunal can also enjoy the inherent powers, has been answered by a Full Bench of Lahore High Court in the case of Muhammad Aslam Mirza (supra) wherein at page 654 of the judgment it was held as under:
"Also see Haji Zakeria Suleman v. The Collector, Yeotmal and others (1), Aijaz Ahmad v. Nazirul Hassan and another (2), Muhammad Hanif and others v. Ali Raza (3) and Manohar Lal L. Nadarchand v. Mohan Lai Gian Chand (4) for the proposition that there always exists an implied and inherent power in every tribunal to set aside orders passed in default of appearance of the parties. In view of the above, I do not want to take a different and narrow view so as to hold that the Rent Controller had no jurisdiction to recall an ex parte order where the party concerned can show a formidable cause for non-appearance on the relevant date." (underlining is mine).
At the same page of the judgment, it was held as under:
"(i) Continuing the subject of inherent and implied powers, first of all a question arises as to whether matters under the Ordinance can be decided in the absence of the parties. A perusal of the Ordinance will show that there is no provision in it anywhere for dismissing a matter in default or to proceed ex parte if, therefore, any such recourse is adopted by a Rent Controller, it is obvious that he adopts it by virtue of the inherent power vested in him to choose any procedure he likes. If once he has chosen such a procedure, then to carry the matter to its logical end, he must retain the power to recall or set aside orders passed ex parte or in default."
At page 644 of the judgment, it was held as under:
"(a) Legislature is supposed to know the Rules of Natural Justice and where no contrary procedure is prescribed, it is to be assumed that the Legislature intended that the procedure of natural justice is to be followed."
12. Now looking at the case from another angle, I have noticed that, though, there is no provision in the Procedure for the Trial of Election Petitions given in pursuance of Section 62 of the Act regarding the framing of issues, but by and large all the election petitions are decided after the framing of issues. One can argue that in the absence of any procedure for the framing of issues, the Tribunal cannot frame the issues, because there is no specific provision in this regard. Therefore, if a strict view is taken, that in absence of specific provision, the Court cannot frame the issues under its inherent powers, then, obviously, the framing of issues by the Election Tribunal would also become illegal. However, though, the Election Tribunal can dispense with the framing of issues but the decision of the election petition after framing of issues cannot be termed as illegal. Reliance in this regard is placed on the case of Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426) wherein it was held at Page-434 as under:
"The perusal of Section 62, before the aforementioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that for the trial of Election Petitions the legislature intended to do away with lengthy procedure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). Reading Section 62 as amended and Section 64 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure except for the trial of Election Petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission. It means that framing of issues emanating from the pleadings of the parties is not mandatory requirement of law, the Election Tribunal, however, for the facility of the proper trial of the Election Petition and bringing the contesting parties to controversial points may strike issues for resolution of the dispute."
There is yet another angle on the basis of which the application, in hand, merits acceptance, i.e, that proceeding of setting aside an election is one in which the entire electorate is interested, as has been held in the case of Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another (AIR 1961 Bombay 21) to the following effect:
"By S. 116, an election proceeding may be continued even after the death of the original respondent against a substituted respondent. There can be no doubt, therefore, that once a proceeding under the Representation of the People Act has reached the Election Commission or the Tribunal, those authorities must hear and dispose it of on its merits."
For the reasons given above, it is held that this Tribunal has the power to restore the election petition, dismissed in default, provided there are genuine and sufficient reasons in support of the said application.
13. Now considering the case, in hand, on merits, the application for restoration is supported by an affidavit of the learned counsel for the petition/applicant as well as that of the petitioner himself. The returned candidate-contesting respondent, despite service, did not come forward to contest the application, in hand, so, there is no counter affidavit belying the contents of this application. Therefore, there is no material to controvert or discard the assertions made by the petitioner. Besides, the application, in hand, was filed promptly. There is another ground for acceptance of this application, i.e., the election petition was dismissed under Section 76 of the Act, which lays down that the election petition can be dismissed at any stage of the trial of an election petition. However, on the eventful day, the case, in hand, was at initial stage and was fixed for appearance of the respondents. The contesting respondents had not even filed the written statement, therefore, it can be held validly that on the date on which the election petition was dismissed, the trial had not commenced, because the trial commences after the framing of issues, as has been held in the case of Muhammad Amjad (supra). Be that as it may, as there is no provision for framing of issues during trial of election petitions, it can be gathered that the trial of an election petition filed under Section 52 of the Representation of the People Act (LXXXV of 1976), would commence after filing of written statement, which in this case, had not been filed on the date when the election petition was dismissed, therefore, on this ground also, this application merits acceptance. Moreover, it is a settled law that litigants should not be knocked out on technical grounds, rather, the cases should be decided on merits.
15. Consequently, this application is accepted and the main election petition is restored to its original number, which shall come up for hearing on 19-09-2008.
16. The office is directed to issue notices to all the respondents through all modes of service subject to the deposit of necessary expenses by the petitioner.
17. Before parting with the order, I would like to acknowledge and appreciate the able assistance rendered to this Tribunal and the hard labour put in this case by Mr. Maqbool Elahi Malik, learned counsel for the applicant and the learned Advocate-General, Punjab.
(J.R.) Petition restored
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