' Constitutional Petitions Nos, 6869/79 and 6892/79 emanate out of the election held to Wards Nos, 2 and 3 of the Cantonment Board, Sargodha, on 6-10-1979. After election respondent No, 1 in W. P.
6869/79 was declared to have been elected from Ward No, 2 and respondent No, 2 was declared to have been elected from Ward No, 3, and the petitioners in these writ petitions having secured lesser votes than the respondents afore referred stood defeated.
2. On 13-10-1979 the petitioners presented Election Petition No, 1 of 1979 (in W. P. 6869/79) and Election Petition No, 4 of 1979 (in W. P. 6892/79) to the District Judge, Sargodha who after notice to the parties summarily dismissed them by his short orders both of 17-10-1979, which are impugned in this petition. As the issues raised in these two petitions are identical, they were heard together and are both being disposed of by this order.
3. An examination of the impugned orders as well as the election petition and the List accompanying the election petition, copies of which have been filed, shows that election petitions and the Lists have not been verified as required under rules 69 and 70 of the Cantonments (Election and Election Petition) Rules, 1979 (hereinafter called the Rules). In these 'circumstances, after hearing the arguments the learned District Judge came to the conclusion in Election Petition No, 1 of 1979, that though the Code of Civil Procedure does not provide for summary dismissal of a plaint for want of verification yet rule 72 of the Rules provides to the contrary and affords a valuable right on the respondent to get a petition which is either not verified or not signed, dismissed. In Election Petition No, 4 of 1979 he concluded that rule 72 prevented him from allowing amendment for the purpose of rectifying the omissions and further authorized him to dismiss a petition not complying with the provisions of rules 69 and 70. He accordingly summarily dismissed the petition.
4. Learned counsel for the contesting respondents do not question the proposition that by virtue of the provisions of rule 75 of the Rules, the District Judge, as Inquiry Officer has "all the powers of the civil Court trying a suit under the Code of Civil Procedure, 1908", and that as a result the Code of Civil Procedure will apply to proceedings before the Inquiry Officer unless there are provisions to the contrary in the Rules. Learned counsel for the petitioners also did not dispute the proposition that if a special procedure has been provided by the Rules the same will apply notwithstanding the procedure provided by the Code of Civil Procedure. In these circumstances it only remains for me to examine whether in the matter of verification of the petition and the list, the Rules make it mandatory upon the Inquiry Officer to reject an election petition not verified in accordance with the provisions of rules 69 and 70.
5. For this purpose it will be convenient to examine the scheme of Part V of the Rules which relates to "Election Petitions and Disputes". According to rule 65," no election shall be called in question except by an election petition presented in accordance with these rules". Further by virtue of rule 69, "the election petition shall contain a statement in concise form of the material facts on which the petitioner relies, and shall where necessary be divided into paragraphs numbered consecutively, be signed by the petitioner and verified in the manner prescribed for the verification of pleadings in the Code of Civil Procedure, 1908". According to rule 70, "the petition shall be accompanied by a list signed and verified as in rule 69, setting forth full particulars of any corrupt practice which the petitioner alleges, etc". Rule 71 vests the Inquiry Officer with powers to allow amendment of the particulars mentioned in the list filed under rule 70. According to rule 72, "if the provisions of rule 66, 67, 69 and 70 are not complied with the Enquiry Officer may dismiss the petition". If the petition is not dismissed under rule 72, then rule 74 requires the enquiry officer to cause a copy of the petition to be served on each of the respondents. It appears that in this case however that the petition was dismissed after the issuance of notice to the respondents under rule 74.
6. A reference to the orders of the Enquiry Officer shows that he was rightly of the view that the Code of Civil Procedure is not inapplicable to the proceedings before him, but that its applicability was subject to the provisions of rule 72, but was of the further view that rule 72 conferred a right on the respondents to get summarily dismissed the petition not complying with the provisions of rule
69. Accordingly he came to the conclusion that he had no power to allow amendment of the petition for the purposes of rectifying the defects therein including omission to verify the petition.
The decision of the issues raised in these petitions therefore necessarily turns on an interpretation of rule 72.
7. It is not necessary here to examine the provisions of the Code of Civil Procedure in relation to errors, defects and omissions in the signing and verification of pleadings, and their amendment for the purpose of rectifying defects therein (Ref. Order VI, rule 15). Suffice it to say that under the Code of Civil Procedure, the Court is empowered to and indeed in certain circumstances bound to allow errors and defects in the pleadings, including omissions to sign or verify pleadings, to be rectified for the purpose of determining the real matters in controversy. (Ref. Section 153 and Order VI, rule
17. See also Order 1, rule 10, Order XIV, rule 14 and Order, XLI, rule 3). It is settled law that in such circumstance the procedural provisions should not be allowed to defeat the substantive rights. The same would be the position in relation to the trial o election petitions under the Cantonments (Election and Election Petitions Rules, 1979, to which the provisions of the Code have been mad applicable, subject of course to there being anything to the contrary contain in the Rules afore referred.
8, Malik Ashiq Hussain, learned counsel for the petitioners argued that a bare reading of rule 72 afore referred shows that it is not mandatory for the Enquiry Officer to dismiss a petition not complying with the provisions of rule 69 and in this context he laid great stress on the use of the word "may" in rule 72. Learned counsel in this context drew attention to the parallel provisions of laws in pari materia. He referred to the National and Provincial Assemblies (Elections) Act, 1964, section 59 of which requires that every election petition shall be signed and verified and to section 67 thereof which stipulates that the Tribunal "shall" dismiss the election petition, if it does not comply with the provisions of section 59. He also invited attention to the Representation of Peoples Act, 1976, section 55 of which requires that every election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure and to section 63 thereof which stipulates that the Tribunal "shall" dismiss an election petition if the provisions of section 59 have not been complied with. Learned counsel then referred to rule 5 of the Punjab Local Council (Election Petitions) Rules, 1979, rule 5 of which provides that the Election petition shall be signed by the petitioner and verified in the manner as laid down in the Code of Civil Procedure, 1908, and to rule 9 whereof which provides that the Election Tribunal "may" dismiss the election petition if the provisions of rule 5 have not been complied with. It has already been noted earlier that in rule 72 of the Cantonment (Election and Election Petitions) Rules, 1979, the word 'shall' has not been used.
Instead it is similarly provided that a petition which is not verified 'may' be dismissed.
9. Learned counsel for the petitioners argued that the use of the word `may' instead of, word 'shall' which was used in the earlier enactments referred to, indicates a conscious departure on the part of the rule-making authority in the matters of verification of election petitions and the consequence of failure to verify. He pointed out that in the circumstances, there was no occasion to interpret the word 'may' as 'shall'. In this context he referred to judgment of this Court in the case of Sajawal Khan v. D. C. (1), which was a case under the West Pakistan Basic Democracy (Election of Chairman) Rules, 1960, which did not require an election
(1) PLD 1968 Lab. 527 petition to be verified, and where it was observed that an omission to verify is a mere irregularity which could be cured at a later stage and that merely on the ground of such defect the petition should not be treated as altogether invalid. Learned counsel also drew attention to the case of Ch. Muhammad Hussain v. Muhammad Nawaz (1), decided by the Election Tribunal constituted under the National and Provincial Assemblies (Elections) Act, 1964, where after examining the provisions of sections 59 and 67 of the Act of 1964, aforenoted, the Tribunal came to the conclusion that omission to sign or verify pleadings should be allowed to be rectified for the purpose of ensuring fair and effective trial. The issue was also examined by the Supreme Court in the case of S. M. Ayub v. Yousaf Shah (2) which was a case arising out of elections to the West Pakistan Provincial Assembly and where after examiming the provisions of section 59 and section 67 of the aforenoted Act of 1964, it was observed that the provisions of section 67 of the Act should receive reasonable interpretation such as to advance the cause of adjudication of the substantial dispute between the parties falling within the purview of the Act, rather than to shut out the decision of even genuine cases.
10. Mr. Sair Ali, learned counsel for the contesting respondents submitted that in the scheme of things and in the context in which the word 'may' is used in rule 72 could only be interpreted to mean `shall', For this purpose he pointed out that rule 65 was couched in prohibitory language and provided that no election could be called in question except by an election petition presented in accordance with the Rules and thereafter rule 72 stipulated that if the provisions of rule 69 were not complied with the Enquiry Officer may dismiss the petition. He then referred to rule 74 which provides that if the petition has not been dismissed under rule 72, the Enquiry Officer shall cause a copy of the petition to be served on each of the respondents and argued that this made it mandatory on the Election Tribunal to first examine a petition to ensure that it complied with the provisions of rule 69, and that where this was not so it was incumbent on the Enquiry Officer to dismiss the same. He further referred to the provisions of rule 71 to argue that the power of allowing amendment was restricted to allowing amendments of the list referred to in rule 70 only. In other words it was argued that impliedly the Enquiry Officer was deprived of jurisdiction to allow the amendment of the election petition. Learned counsel then argued that the negative character of the language used in rule 65 shows that for the purpose of presentation of petitions only the mode prescribed by the Rules could be used and no other mode was permissible. Elaborating he argued that where a law enabled a person to take legal proceedings only under certain specified circumstances and conditions then it was mandatory they be obeyed. For this purpose he relied on the case of Atta Muhammad Qureshi v. The Settlement Commissioner (3). Learned counsel further relying on the judgments in Ghulam Abbas v. Additional Commissioner, Khairpur (4) and West Pakistan Province v. Jamshed Miran (5) to urge that where a statute provided for, the doing of a thing in a particular manner, then it should only be done in the manner laid
(1) PLD 1968 Jour. 95 (2) PLD 1967 SC 486
(3) PLD 1971 SC 61 (4) PLD 1965 Kar. 625 down or not at all. Learned counsel further refes to the judgment in Niaz Muhammad Khan v. Mian Fazal Raqib (1) to urge that where a direction to do a thing in a particular manner is followed by express provision to effect that its disobedience would entail serious legal consequences, the provision has to be construed as mandatory. Finally learned counsel referred to the judgment in Saleem Sons Ltd. v. Second Sind Labour" Court (2) to urge that where new rights and obligations are created by a statute which also prescribes the manner of their enforcement and enjoyment the Legislature intends strict compliance of such provisions and A in such circumstances the word 'may' is to be interpreted as shall. There can be no quarrel with the provisions so painstakingly collected, and elaborated in the precedents afore referred. However, the golden rule of interpretation of statutes is that where the language of an enactment is clear and unambiguous the words thereof should be given their ordinary and dictionary meanings. Ref. Lqbal Khan Niazi v.
Vice-Chancellor (3). It is only when the language of the statute is imprecise or ambiguous that recourse can be had to the external considerations pointed out by the counsel for the respondents.
11. Rule 72 of the Election Rules is couched in clear and unambiguous language and nothing urged by learned counsel for respondents indicates anything to the contrary. The Rules contained in Part V have to be interpreted harmoniously to advance the remedy and to avoid technical frustrations.
A bare reading of rule 72 shows that it does not make it obligatory or mandatory on an Enquiry Officer to dismiss a petition which C does not comply with the provisions of rules 66, 67, 69 and 70.
In fact for the purpose of determining whether to dismiss an election petition which does not comply with the afore referred Rules, an Enquiry Officer having all the powers of civil Court, is to act in accordance with the principles of procedure as enshrined in the Code of Civil Procedure, 1908. As pointed out in Imtiaz Ahmad v. Ghulam Ali (4) the proper place of procedure in any sysem of administration of justice is to help and not to thwart the D grant to the people of their rights, and technicalities have to be avoided unless it to be essential to comply with them on grounds of public policy. I am fortified in my conclusion by the conscious departure made in the language of rule 72 as compared with the language of similar provisions in laws pari materia, as pointed out in paragraph 8 above. If the views of the Enquiry Officer were to be upheld it would mean that even where the Enquiry Officer was of the view that some material facts had not been disclosed in a concise form or that the election petition was not divided into paragraphs or numbered consecutively, he would be bound to summarily dismiss the petition. This would result in an abused state of affairs and for which there is no warrant. The Enquiry Officer has all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908, and this will include the power and indeed the duty to allow corrections of errors and defects in any proceeding in an election petition including E omissions to sign or verify pleadings, for the purpose of furthering the ends of justice and avoiding techanicalities. There is no public policy apparent to me which stipulates' to the contrary. Further even if rule 72 had provided that in the event of the provisions of rule 69 not being complied with the Enquiry Officers hall dismiss the petition, it would have been permissible to examine whether the word 'shall' ought to be
(1) PLD 1974 SC 134 (2) PLD 1973 Kar. 1
(3) PLD 1979 SC 1 (4) PLD 1963 SC 382 interpreted as mandatory or directory, as was done in the case of Sajawal Khan v. D. C. Afore referred.
12. For the above reasons, I am of the view that rule 72 does not deprive the Enquiry Officer of the jurisdiction to allow rectification of defects including omission to sign or verify pleadings.
Accordingly, it is declared that the impugned order is without lawful authority and of no legal effect.
The petitions are accepted and the Enquiry Officer will now hear and dispose of the election petitions in accordance with law.
' In the special circumstances of the case, there will be no orders as to costs.