Muhammad Ibrahim Qasmi vs Syed Aqil Shah

2011 C L C 606

[Election Tribunal Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD IBRAHIM QASMI----Petitioner

Versus

Syed AQIL SHAH and 5 others----Respondents

Civil Miscellaneous No.6 in E.P. No.257 of 2009, decided on 25th January, 2010.

(a)Representation of the People Act (LXXXV of 1976)---

----Ss. 52, 64 & 76---Civil Procedure Code (V of 1908), O.IX, R.9---Application for restoration of election petition dismissed in default of appearance---Wrong noting of date of hearing in case diary by petitioner's Counsel, ground of---Such application accompanied with relevant pages of case diary of Counsel supported by un-rebutted affidavit---Validity---Record showed that petitioner and his counsel had been pursuing his case regularly---Such ground for being un- rebutted seemed to be genuine and sufficient---Decision of case on merits was cherished goal of law---Superior Courts, had discouraged technical knock-out of litigants---Election Tribunal restored election petition to its original on payment of costs of Rs.10,000 in circumstances.

(b)Representation of the People Act (LXXXV of 1976)---

----Ss. 52, 64 & 76---Civil Procedure Code (V of 1908), O.IX, R.8---Restoration of election petition dismissed in default of appearance---Powers of Election Tribunal---Scope---Election Tribunal having all powers of' a civil court under C.P.C., would be deemed to be a civil court, thus, could pass order for restoration of such petition under relevant provisions thereof and also in exercise of its inherent powers--Principles.

As per section 76 of the Representation of the People Act, 1976, Election Tribunal under its authority can dismiss the petition, if the petitioner makes no appearance. However, the entire Act and its rules contain no provision for setting aside or restoration of the election petition dismissed in default. From the bare reading of section 64 of the Act regarding the powers of Election Tribunal, it becomes absolutely clear that Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and shall be deemed to be a civil court. While keeping in view powers under section 64, it can safely be held that Election

Tribunal while assuming the jurisdiction under the Act, has all the powers under the C.P.C., and as such can pass any order according to the circumstances of the case including dismissal of application and restoration of the same under the relevant provisions of C.P.C., and no such bar or embargo is there in the Act. There always exists an implied and inherent power in the Election Tribunal to set aside the order passed in default of appearance of the parties unless any specific provision of law barring such exercise of power is there in the relevant law.

The Election Tribunal has got vast powers under the Code of Civil Procedure for making an order for restoration of a petition dismissed in default.

(c)Administration of justice---

----Decision of case on merits being cherished goal of law, technical knock-out of litigants to be discouraged by courts.

Naveed Maqsood and Nek Nawaz Khan for Petitioner.

Qazi Muhammad Anwar for Respondent No. 1.

ORDER

MAZHAR ALAM KHAN MIANKHEL, J.--- Through the instant petition, the petitioner herein, seeks the restoration of election petition dismissal for non-prosecution on 18-5-2009.

2.The learned counsel in support of his petition contended that absence of the petitioner as well as counsel for the petitioner was not intentional and on 6-4-2008, the next date of hearing was inadvertently noted as 25-5-2009 instead of 18-5-2009 as is reflected in his diary maintained by him, so the absence of petitioner was not intentional but was the result of a bona fide inadvertent mistake. In support of his application and submissions he also annexed the photo copies of his diary along with an affidavit to this effect and requested for the restoration of the same.

3.As on the other hand, learned counsel appearing on behalf of respondent at the very outset objected to the maintainability of present application by submitting that under the Representation of People Act, 1976 no provision for such-like application has been provided and being a special law, the provisions of the special law will prevail. He further submitted that against the order of the Tribunal the remedy provided for is the remedy of appeal before august Supreme Court. As no such appeal has been filed before the competent forum, the order of dismissal has attained finality and the same cannot be restored through such like petition. So the order passed by the Tribunal in the circumstances cannot be set aside.

4.Learned counsel for the parties were heard at length and record of the case was perused through their valuable assistance.

5.Record of the case reveals that the previous date in the main election petition was 6-4-2009 and case was then adjourned to 18-5-2009 on the request of both the parties for further proceedings. On the next date of hearing i.e. 18-5-2009, the election petition was dismissed for non-prosecution because of absence of the petitioner as well as his counsel. As per submissions of the learned counsel for petitioner that the next date for hearing was inadvertently noted by him as 25-5-2009 instead of 18-5-2009. To support his version photo copies of the relevant pages from the diary of the counsel has also been attached and this application for restoration is supported by an affidavit, whereas no counter-affidavit to this effect has been filed by the respondent.

6.As per section 76 of the Representation of People Act, 1976 (hereinafter to be called as the Act) the Tribunal under its Authority can dismiss the petition if the petitioner makes no appearance. However, the entire Act and its rules contain no provision for setting aside or restoration of the election petition dismissed in default. If on the other hand the bare reading of section 64 of the Act regarding the powers of the Tribunal is seen, it becomes absolutely clear that a 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. While keeping in view powers under section 64 then it can safely be held that this Tribunal while assuming the jurisdiction under the Act, has all the powers under the C.P.C. and as such can pass any order according to the circumstances of the case including dismissal of application and restoration of the same under the relevant provisions of C.P.C. and no such bar or embargo is there in the Act. There always exist an implied and inherent power in the Tribunal to set aside the order passed in default of appearance of the parties unless any specific provision of law barring such exercise of power is there in the relevant law.

7.The record of the case further reveals that the main election petition is pending disposal since 9-5-2008 and in almost 17/18 dates of hearing, the petitioner through his counsel remained present which reflects his punctuality and conduct to be present before the Tribunal for the progress of the case.

8.So the nutshell of the above discussion is that this Tribunal has got vast powers under the Code of Civil Procedure for making an order I for restoration of a petition/dismissed in default. It has now become settled that decision on merits is the cherished goal of law and technical knock out of the litigants has been discouraged by the superior courts of the land.

9.So, in view of the above discussion, this Tribunal is of the opinion that the grounds mentioned in the application supported by a separate un-rebutted affidavit seems to be genuine and sufficient. So, having no option but to accept the petition and order the restoration of Election Petition to its original number on the payment of costs of Rs.10,000.

S.A.K./38/P Petition accepted.