SAYED ZAHID HUSSAIN, J. --- On 10.10.2006 the election petition was dismissed as none appeared for the petitioner despite the presence of the witnesses summoned by the respondent. This is application under Section 151 of the Code of Civil Procedure, 1908 for seeking restoration of the same. The reason sought to be advanced is that the petitioner was present in the Courtroom and had rushed to fetch his counsel when the case was called and that the absence was neither intentional nor deliberate and that the petition may be decided on merits. It is accompanied by the affidavit of the applicant as also of the learned counsel. By filing reply to the same, the assertion of the petitioner is controverted and denied that the petitioner was present in the Court An objection to the competency of such an application has been raised to the effect that there is no provision in the Representation of the People Act, 1976 for restoration of election petition having been dismissed in default and that even an application under Section 151 of the Code of Civil. Procedure, 1908 does not lie. The reply is supported by the counter-affidavit of the respondent.
2. The learned counsel for the applicant has endeavoured to invoke the inherent powers-of the Court and equitable principles for seeking restoration of the election petition and makes reference to Khan Bahadur and others v. Mst. Salima and others (PLD 1986 SC. 150), Hudabia Textile Mills Ltd.
And others v. Allied Bank of Pakistan Ltd. And others (PLD 1987 SC 512), Emirates Bank International Ltd., Karachi v. Adamjee Industries Ltd., Karachi and 14 others (1993 CLC 489), Ghulam Hussain and another v. Faiz Muhammad and 7 others (PLD 1991 SC 218), Maqbool Rehman's v. The State and others (2002 SCMR .1076), Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284), Asif Nawaz Fatiana v. Walayat Shah (2003 CLC 1896) and The Chief Settlement Commission, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). It is contended that when there is no specific prohibition to adopt any procedure, the procedure prescribed by the Civil Procedure Code, 1908 can be followed and that the law favours adjudication of matters on merits.
3. The learned counsel for the respondent on the other hand relies upon Notification dated 17.03.1985 issued under Section 62 of the Representation of the People Act, 1976 and contends that a self-contained procedure for trial of election 'petitions has been laid down by the Representation of the People Act, 1976 and the Notification which is to be followed by the Tribunal and the provisions of the Code of Civil Procedure, 1908 are to be applied only when or where they are made applicable to the extent mentioned. It is contended that whereas S. 76 enables the Tribunal to dismiss the petition for default, there is no provision or power given to restore the same and the only remedy is of appeal against such an order. According to him, even the inherent powers are not available to a Tribunal of specified jurisdiction. It is contended that in matters of fraud committed with the Tribunal only, the power to recall or undo an order can be exercised otherwise no order passed by the Tribunal can be reviewed or recalled as no such power has been conferred by the law-makers upon the Tribunal. Reference has been made by him to Jam Mashooq Ali v.
Shahnawaz Junejo (1996 SCMR 426). It is further contended that even no sufficient ground has been shown for non-appearance on 10.10.2006.
4. The precedents cited by the learned counsel lay down the principles mentioned therein in view of the peculiar facts prevailing in each of those cases. The scope and ambit of powers of the Tribunal is to be discovered from the provisions of the relevant law constituting the same. A distinction between a "Court" and a "Tribunal" is also not to be overlooked. In the instant case the provisions of the Representation of the People Act, 1976 under which an election Tribunal functions, have to be given primacy. The Tribunal is constituted and appointed under S. 57. Of the Representation of the People Act, 1976. In view of S. 62 of the Representation of the People Act, 1976 the procedure to be followed by the Tribunal is the one "laid down by the Election Commission". This amendment was made vide Ordinance XVIII of 1985, in the Representation of the People Act, 1976 on 10-03-1985 (PLD 1985 Central Statute 539). It was thus that Notification .Dated 17.03.1985 was issued by the Election Commission of Pakistan prescribing the procedure for trial of election petitions (PLD 1985 Central Statute 677).
5. The Representation of the People Act, 1976 (Act No. LXXXV of 1976) lays down . The procedure in sufficient detail. S. 52 and S. 53 prescribe the method of presentation of the election petition, S. 54 as to the parties to be joined, S. 55 about the contents of the election petition, S. 56 procedure to be followed by the Commissioner after receipt of the election petition, S. 57 entrustment of the petition to the Election Tribunal, S. 58 deals with powers of transfer of petition vesting in the Commissioner, S. 59 place of trial. S. 61 appearance of parties/pleaders before the Tribunal. S 62 procedure before the Tribunal. S. 63 dismissal of the petition for non-compliance of certain requirements during trial by the Tribunal. S. 64 is about the powers of the Tribunal. It lays down that "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 [4761 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)". [Due to its importance it will be discussed in the later part of the order]. S. 65 prescribes the procedure for evidence and examination of witnesses, S. 66 Recrimination, S. 67 the decision of the Tribunal upon conclusion of the trial. S. 73 about withdrawal of the petition. S. ,75 deals with effect of death or withdrawal of respondent and giving ex parte decision. Then is an important provision, which is S. 76. It is about failure of petitioner to appear and dismissal of petition for default. It reads as follows:- "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."
No provision in the Representation of the People Act, 1976 (Act No. LXXXV of 1976) has been brought to my notice enabling or empowering the Tribunal to set aside such a dismissal for default or restore the petition once it has been dismissed under this section. That is, perhaps, why the whole emphasis of the learned counsel for the petitioner was to invoke the provisions of the Code of Civil Procedure, 1908 on the strength of S. 64 of the Representation of the People Act, 1976 (ibid). The contention however cannot be countenanced for multiple reasons. It has been noticed above that though there is S.. 64 (that the Tribunal will have 'all the powers of a Civil Court, trying a suit under the Code of Civil Procedure"), yet some specific provisions have been made by the legislature in its wisdom in the Representation of the People Act, 1976. One of them is S. 76 specifically empowering the Tribunal to dismiss the petition for default. This was despite that fact that Order IX of the Code of Civil Procedure, 1908 empowers the. Civil Court to dismiss a suit for default and take proceedings ex parte against the absenting party, restore the suit and set aside ex parte orders/decrees on showing sufficient cause. The enactment of S. 76 of the Representation of the People Act, 1976 is this clearly a conscious departure from the procedure prescribed by the Code of Civil Procedure, 1908 otherwise there would have been no need to specifically empower the Tribunal to dismiss a petition for default as envisajed by S. 76 of the Representation of the People 'Act, 1976. The second part of S. 64 that the Tribunal "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)" is also to be construed in the restricted sense for the purpose of the provisions mentioned therein. The Tribunal does not ipso facto become a Civil Court by virtue of this provision. The later amendment made in sub-section (1) of S. 62 in the year 1985 and issuance of Notification dated 17.03.1985 (laying down the procedure for trial of election petitions) is also indicative of the same intention of the legislature viz that, certain procedure was specifically laid down to be followed by the Tribunal and some specific powers were also conferred on it to the extent mentioned therein. It shows the special status of a Tribunal under the Representation of the People Act, 1976 who being the creation of such special law is to exercise only such power and jurisdiction as may be available within the parameters of that law. It needs no mention that such a Tribunal while functioning under such a special law cannot claim to have nor can exercise any power inherent or otherwise except to the extent conferred upon it by law. By empowering the Tribunal to dismiss the petition for default of appearance and in making no provision for its restoration, the intention has been made absolutely clear that the order of the Tribunal becomes final as there is no power of review even given to the Tribunal. The special status of the Tribunal is also discernable from Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 S.C. 542) wherein it was held that "The contention that the Election Tribunal, was possessed of the power of review on the strength of. Section 64 of the Act, is untenable because the power of review is possessed and exercised not as a necessary adjunct of the power to try a cause but as an exception to the principle of finality firmly embedded in the judicial system". In Brijmohan Lal v. Election Tribunal Allahabad and others (AIR 1965 Allahabad 450) similar observations appear that is "(9) An Election Tribunal constituted under S. 86 of the Act is not a.Court; it is a creature of statute. "An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to common law and the Court" - K..Kamaraja Nadar v.
Kunju Thevar (AIR 1958 SC 687 (693)). Therefore an Election Tribunal has only such powers as are conferred on it by statute - expressly or by necessary implication. It has none of the inherent powers of an ordinary Court." The reliance of the learned counsel for the petitioner upon The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 S.C. 331) is misplaced inasmuch as the ratio of the said judgment is that where an order has been obtained from a Court, Authority or Tribunal by practicing fraud, the same can be recalled by the said Court, Authority or Tribunal. The reason is quite obvious because fraud vitiates the proceedings and order so obtained is nothing but null and void. Likewise reliance upon Abdul Hafeez Khan's case (Supra) is inapt as the power of the Tribunal as Civil Court was mentioned in the context of S. 64 of the Representation of the People Act, 1976. From nowhere it is discoverable that the Tribunal was vested with any power beyond the one vested in it by law. It may be mentioned that if the whole of the. Code of Civil Procedure was intended to be made applicable by the legislature then the remedy of review as provided by S. 114 read with Order 47 of the Code of Civil Procedure, 1908 would also have been available, but it is not so. The reason being that Representation of the People Act, 1976 is a special law and the adoption of the provisions of Code of Civil Procedure, 1908 by reference operate within that limited sphere only. In Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 S.C. 600) a question had arisen as to the provisions relating to verification of petitions as contained in S. 55(3) of the Representation of the People Act, 1976 and those of R. 15 of Order VI of the Code of the Civil Procedure, 1908. It was observed that "So far as, the provisions of civil law are concerned, such verifications generally are of directory nature: An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election law such verification on oath is mandatory because of being followed by penal consequences under Section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of Sections 54 and 55 of Act have not been complied with". This was appeal against the judgment in Asif Nawaz Fatiana v.
Walayat Shah (2003 CLC 1896). There can be no cavil that the view expressed by the Hon'ble Supreme Court on a particular point of law prevails and holds the field. .6. There is another aspect of 'the matter to be kept in view that if there had been no provision specifically enacted, like S. 76, in the Representation of the People Act, 1976, it could perhaps be argued that the dismissal in default in itself implies the power to recall such an order. But here the legislature has quite consciously and conspicuously empowered the Tribunal to dismiss the petition for default but did not empower it to set aside or recall such order. Had there been no provision like S. 76 of the Representation of the People Act, 1976. Perhaps the position could have been the one as has been in India, under the Representation of the People Act, 1951. There is no such provision there, as S. 76, on our country. In Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another (AIR 1961 Bombay 21) it was observed that "It is evident from S. 110 of the Representation of the People Act that an application for withdrawal which is not bona fide may not be allowed by the Tribunal or the Election Commission, and, even if the application is granted, any person who, was entitled to present the petition, may upon such terms; as the Tribunal imposes, continue the proceedings. The provision sufficiently indicates that a proceeding' for setting aside an election is one in which the entire election is interested, any may not be abandoned without due notice to the voters. That is further made clear by Ss. 112 to 115, whereby and person, who might himself have been a petitioner, is permitted to come on the record and to prosecute the petition of a person dying before its disposal. 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 here and dispose it of on its merits". The difference of provisions in the laws relating to election petitions and Tribunal's powers in the context there and here is obvious.
7. There is yet another aspect about applicability of well-established principle of interpretation stated in "Understanding Statues" Canons of Construction-Second Ed. At page-274 by S.M. Zafar that:--- "Another general principle with regard to the effect of an enabling Act is expressed in the maxim: "aperssio unis est exclusive altreius" i.e. Express enactment shuts the door to further implication.
Under this principle it has been held that the enumeration of certain powers implies the exclusion of all others not fairly incidental to those enumerated, and that an affirmative description of cases in which certain powers may be exercised implies a negative on the exercise of such powers in other cases. The rule applies even though there are no negative words excluding the things not mentioned." Moreover at page 671; "Where an Act sets out specific remedies, penalties, procedures as that might have been applicable are by implication excluded. This rule has been,applied strictly in Pakistan and superior Courts have excluded any other procedure or form to be adopted other than prescribed by the statute. A few examples from U.K. Are also worth nothing. In Felix v. Shiva ifwas stated "if a power is given by statute, and the statute lays down the way in which that power is to be brought into existence, it must' be brought into existence by that method and none other."
In R v. Hall a particular penalty was held to exclude any other penalty. In Re W (a minor) it was laid down that the High Court cannot exercise its powers, however, were they may be so as to intervene on the merits in an area of concern, entrusted by Parliament to any other public authority."
Thus there can be more than one eventualities which can be visualized i.e. There can be provision like S. 76 of the Representation of the People Act, 1976 empowering the Tribunal to dismiss petition for default but not vesting it with the power to set aside such order or restore it; or no provision is made in the law either to dismiss a cause for non-prosecution or default and it the Tribunal proceeds to dismiss the matter for default it may restore by recalling such order; such power will be exercisable by the Tribunal on the principle that power of doing something may include the power of undoing also; another situation may be where the law constituting the Tribunal makes no specific provision but adopts the provisions of the Code of Civil Procedure, 1908 (Order IX thereof) in that eventuality the powers vesting in the Civil Court in the said order will become applicable and invoke-able by the Tribunal.
8. From the above survey of the legal position it comes out that:---
(a) By enacting special provisions in the Representation of the People Act, 1976 in the form of S. 76, empowering the Tribunal to dismiss a petition for default, the legislature has clearly expressed its intention that the Tribunal had the power to dismiss the petition for such default but no power was given to it to set aside or recall such an order.
(b) The power of review can only be exercised when so conferred by the relevant statute and it does not inhere in the Tribunal merely because of its existence (see Muzaffar All v. Muhammad Shafi (PLD 19d1 SC.94).
(c) A Tribunal like the Rent Controller under the Rent Restriction law is not empowered to dismiss the petition for default or proceed ex parte. He is not bound to follow any particular procedure but if it proceeds to make an ex parte order or dismisses the matter in default by adopting such course it can recall it by following similar course in view of Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603). It was observed therein that "Continuing the subject of inherent and implied powers, first of all a question arises as to whether matter 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." Whereas there is S. 76 in the Representation of the People Act, 1976 there is no such provision in Rent laws, which makes the difference.
(d) In presence of the specia provisions made in the Representation of the People Act, 1976, as to the powers of the Tribunal, the general procedure mentioned in the Code of Civil Procedure, 1908 will not be applicable on the strength of principle that express mention of one excludes the other.
The mention of one (power to dismiss the petition for default) and omission of non-provision for restoration, is tentional and thus the will of the law-maker is to be given effect.
Keeping all such principles in view, the conclusion is quite obvious that the Tribunal is not vested with the power to either set aside or review its order dated 10.10.2006. The application is not maintainable, it does not lie under the law and is dismissed accordingly. .