' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---This appeal, under section 67(3) of the Representation of the People, Act, 1976 [hereinafter referred to as "the Act, 1976"] read with Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the judgment of the Election Tribunal/Lahore High Court, Lahore dated 2nd October, 2003 passed in Election Petition No,101 of 2002.
2. Precisely stating facts of the case are that respondent defeated the appellant in General Elections, held on 10th October, 2002, from Constituency N.A.69 Khushab-I, for the seat of Member National Assembly of Pakistan, by securing 71,500 votes whereas the appellant secured only 58,500 votes. Accordingly, the Election Commission of Pakistan issued notification declaring the respondent No,1 to be the successful candidate' for the seat of Member National Assembly of Pakistan. The appellant alleged illegalities and irregularities in the election of respondent No, I therefore, on 2nd December, 2002 he filed Election Petition under section 52 of the Act, 1976 before the Election Commission of Pakistan which was forwarded to the Election Tribunal for adjudication.
The respondent contested the petition repudiating the allegations and prayed for its dismissal. The Election Tribunal proceeded with the matter and out of the pleadings of both the sides, framed as many as 4 issues for determination. Subsequently, respondent No,1 submitted a Civil Misc.
Application No,1 of 2003, praying therein for dismissal of Election Petition for want of compliance of section 55(3), of the Act, 1976 on stated allegations that annexures appended with the Election Petition have not been attested in the manner prescribed in the Civil Procedure Code (C.P.C.) for the verification of the pleadings. The application was contested by the appellant. It was pointed out during arguments on the application that not only the annexures but the contents of the Election Petition itself have not been verified on oath before the Oath Commissioner or of a person authorized to administer oaths. In view of such objection, an application seeking amendment in the verification clause was submitted by the appellant. The Election Tribunal, however, dismissed the Election petition by means of impugned judgment dated 2nd October, 2003. Hence this appeal.
3. Learned counsel appearing for appellant ,contended that under section 55(3) of the Act, 1976 the appellant was not obliged to verify the contents of the Election Petition on oath before a person, who is authorized to administer the oath and the verification on oath made by the appellant himself would be sufficient to meet the requirement of the law.
4. On the other hand, learned counsel appearing for respondent No,1 contended that this Court in the case of Zafar Abbas v. Hassan Murtaza (PLD 2005 SC 600), has already decided against the proposition, being canvassed by the appellant.
5. We have heard parties' counsel at length and have also taken into consideration the material so made available on record. A perusal of the scheme of the Act, 1976 relating to filing of Election Petition under Chapter VII reveals that the lawgivers, to ensure expeditious decision of election disputes, has authorized the Election Tribunal to regularize the A proceedings itself, instead of following the technicalities of C.P.C. Except application of some provisions specifically made applicable for limited purposes. Under section 55(3) of the Act, 1976, it has been made obligatory upon the person, who has challenged the Elections, to verify the same in the manner prescribed for verification of plaint by C.P.C., thus by reference, the provisions of Order VI, Rule 15, C.P.C. Have been made applicable, As per its provision, every pleading is required to be verified on oath or solemn affirmation at the foot by the party or by one of the parties to pleadings or by some other person to the satisfaction of the Court acquainted with the facts of the case. It may not be out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oaths Act, 1873,, by adding the words "on oath or solemn affirmation" after the word verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the, Court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. Without calling for an affidavit in ex parte proof. We believe that there is no point to address ourselves on this question namely if verification on oath has not been made before the person authorized to administer the oath, the same would not be considered to be valid verification because for the purpose of taking oath one has to bind down himself to speak the truth otherwise he or she would be liable for the curse of Almighty Allah if the truth is not spoken. Under section 6 of the Oath Act, 1873, the procedure has been prescribed for taking the oath duly attested by an authorized person. Admittedly in instant case, verification has not made on oath before an authorized person, therefore, the appellant, on realizing the major defect in the Election Petition, submitted an application seeking amendment in the petition, to the extent of verifying it on oath, accordingly.
6. On our query, learned counsel appearing for appellant stated that without prejudice to his above argument such application was moved on behalf of appellant by way of abundant caution. Be that as it may, we are of the considered opinion that as per admitted position the oath has not been administered to appellant by a person authorized to do so, as per requirements of Order VI Rule 15 read with section 139, C.P.C. Thus, the pleadings shall be deemed not duly verified on oath. This Court had an occasion to examine identical provision in a corresponding law i,e, Section 36 of the Senate (Elections)' Act, (LI of 1975), in the case of Iqbal Zafar Jhagra v. Khalil-ur-Rehman (2000 SCM R 250) and on having taken into consideration the implications of Order VI, Rule 15, C.P.C. Read with section 139, C.P.C., the larger Bench comprising of seven honourable Judges, opined as follows:--- "Subsection (3) of section 36 (ibid) clearly requires that every petition and every Schedule or Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order VI, Rule 15, C.P.C. Which when read with section 29, C.P.C. Clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of section 36 of the Act, 1976 were complied with. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Iftikhar Hussain Jillani did not comply the provisions of section 36 of the Act, 1976 and are of the view that these reasons do not suffer from any legal infirmity."
The above view has been reiterated in the case of Zafar Abbas (ibid). In this report, this Court has also examined another aspect of the, case relating to directory nature of verification of pleadings on oath vis-a-vis, the provisions of section 63 of the Act, 1976, which prescribes penalty for non- compliance of the provisions of section 55(3) of the Act, 1976. As according to latter provision of law, Election Petition shall be dismissed during trial if the provisions of sections 54 and 55 of the Act, 1976 have not been complied with. As non-compliance of the provision of section 55, particularly, subsection (3) of the Act, 1976 with reference to the instant case, prescribes a penalty, therefore, verification on oath and its attestation by an authorized person to administer the oath has become mandatory.
7. At this juncture, it would be appropriate to attend to the argument of the learned counsel for appellant that the Tribunal should have allowed the application for the amendment, enabling the appellant to submit the Election Petition duly verified or attested on oath and to remove the defect in view of provision of section 62(3) of the Act, 1976 and according to him, amendment in the plaint or petition is permissible at any stage as it has been held in S.M. Ayub v. Yousaf Shah (PLD 1967 SC 486).
8. We have considered the ratio decidendi of the above referred reported judgment. In this case as well, this Court was called upon to examine the, provision of section 59(3) of the National and Provincial Assemblies (Elections) Act (VII of 1964), [hereinafter referred to as "the Act, 1964"] which is in peri meteria to the provision section 55(3) of the Act, 1976. Similarly section 66(3) of the Act, 1964 had empowered the Tribunal to allow amendment at any time, on such terms and on payment of such costs as it may direct. Interestingly, section 63 of the Act, 1976 and section 67 of the Act, 1964 are corresponding to each other namely empowering the Tribunal to dismiss the petition for no- compliance of the provisions of sections 58 and 59 of the Act, 1964 as well. Learned counsel for appellant is right in pointing 'out that sections 62 and 63 of the Act, 1976 are independent of each other. So far as grant of amendment in the petition or verification clause is concerned, it depends upon the nature of amendment sought in the pleadings, on case to case basis. In the case in hand, the appellant knowing well the mandatory provision of section 55(3) of the Act, 1976, did not apply for amendment within the prescribed period of limitation for filing of Election Petition. Undoubtedly, if during period of limitation for filing of petition such an amendment is sought, the Court may consider the request according to the settled principle relating to amendment in the pleadings but once limitation period has already expired, then it is the duty of the Court to examine whether a right, which has been created on account of bar of limitation in favour of opposite side can be snatched by allowing amendment in the pleadings, enabling the plaintiff (petitioner) to put up a better/perfect case against defendant (respondent). In this behalf the consistent practice of the Courts is that amendment in such matters, where limitation creates a hurdle, is not to be allowed on condoning the delay, particularly where no request has been made to enlarge the period of limitation. For the above proposition we are fortified by the judgments in the cases of Bhagwanji v.
Alembic Chemical Works (AIR 1948 PC 100) and Saeed Sehgal v. Khurshid Hasan (PLD 1964 SC 598).
9.Learned Counsel for appellant also relied upon the case of Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345) and Barkat Bibi v. Khushi Muhammad (1994 SCM R 2240). It is to be noted that the language employed in section 62(3) of the Act, 1976 and Order VI, Rule 15, C.P.C. Is identical to each other. This Court in the case of Ghulam Bibi (ibid) observed that the question of limitation can be overlooked, once the Court decides that amendment is necessary for the purpose of determining the real question. Applying this test on the case in hand, even if we were to allow the application for amendment, we have to conclude that as far as the amendment in the verification clause is concerned, it would not essentially determine the real issue i,e, controversy between the parties namely respondent No,1 was not a graduate and as such was not qualified to contest election or she has secured false and fictitious bachelor degree through foul means or she is a loan defaulter, etc. It may be noted that in the case of S.M. Ayub (ibid), which has been heavily relied upon by the learned counsel for appellant, this Court noticed that if defect in the pleadings is of such a nature that same would not be sufficient to non-suit the petitioner, amendment can be allowed, but if defect is of such a nature which if allowed to be cured will change the complexion of the proceedings, then the amendment cannot be allowed. Had the appellant sought amendment in pleadings for determination of real issue, relating to merits of the case, the Court could have considered the request of amendment but verification on oath in absence of administration oath by an authorized person, by no stretch of imagination, is an amendment to determine the real issue between the parties. In the case of Iqbal Zafar Jhagra (ibid) a larger Bench of this Court has held that provision of section 55(3) of the Act, 1976 is mandatory in nature and its non-compliance has been visited with a penalty of dismissal of petition, therefore, the Tribunal had no jurisdiction to allow such amendment and for such reason alone, Election Petition deserves to be dismissed. Thus, the judgment in the case of Ghulam Bibi (ibid) is not attracted. As far as the case of Mst. Barkat Bibi
(ibid) is concerned, it is also not applicable to the facts and circumstances of the case in hand, firstly for the reasons that in this case leave was refused, and secondly it has been observed that the objection on the amendment of the pleadings has to be raised before allowing amendment and once the amendment is allowed, no such objection can be raised. Therefore, we are of the opinion that amendment in the verification clause of the petition was not permissible, as the application was submitted much after the period of limitation i,e, 45 days as provided in section 52(2) of the Act 1976 for filing of Election Petition. In addition to it, a right in favour of the respondent has been created, as such we are not persuaded to subscribe to the view point of the learned counsel for appellant.
10. Lastly, it was contended by the learned counsel that the appellant could not move application for amendment of verification clause immediately after filing of the written statement by respondent No,1 because there was no such objection nor issue was framed in this behalf. In this context, suffice to observe that ignorance of law is no excuse. The appellant who had approached the Election Tribunal was bound to fulfil the requirement of the law including the verification of petition in terms of section 55(3) of the Act, 1976. It may also be added at this juncture that notwithstanding the fact that the defect has been pointed out by the respondent or not, the Court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully particularly in the cases where noncompliance of mandatory provision prescribes a penalty.
' For the foregoing reasons, appeal is dismissed with costs.
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