' SYED TAHIR ALI SHAH, J.--- We had granted the petition for leave to appeal on 14-4-2006.
Muhammad Hanif. Appellant, along with respondent No,4 and one Muhammad Shafa, who is not a party in the instant petition, as well as before the Election Tribunal and Chief Court, contested the election to the Local Council Askordas, Nagar Sub-Division, held on 13-10-2004. The results were consolidated. According to the consolidated statements the petitioner had polled 64 votes while respondent No,4 had polled 90 votes. The Returning Officer vide election return dated, 16-10-2004 declared the petitioner and one Shafa as returned candidates from Askordas constituency on 16- 10-2004. Subsequently notification was also issued to this effect by the Election Commissioner, Northern Areas (respondent No,1) on 2-11-2004.
2. Felt aggrieved with the notification issued by the Election Commissioner, Northern Areas, respondents Muhammad Hussain filed an election petition under rule 55 of the Northern Areas Local Government Election Rules, 1979 (hereinafter called the rules) challenging the notification referred above, which was registered as Election Petition No,20 of 2004.
3. During the proceeding before the Election Tribunal respondent Muhammad Hussain, who was petitioner in Election Petition No,20 of 2004 managed to approach the Election Authorities for the correction of election result declared by the Returning Officer concerned and .Notified by the Election Commissioner. The Election Authorities being apprised of the fact that election results have been challenged before the Tribunal became so sweet and sympathetic towards the said Muhammad Hussain that they spent no time in issuing a corrigendum declaring him as returned candidate in place of Muhammad Hanif. Muhammad Hussain petitioner having in possession of the said corrigendum filed an application before the Election Tribunal for withdrawal of his election petition on the score of the said corrigendum. The learned Election Tribunal without wastage of his precious time allowed the said application on the same date i,e, 13-6-2005. The episode to Election Petition No,20 of 2004 thus came to an end on 13-6-2005.
4. The second round of litigation started when Muhammad Hanif challenged the validity of the corrigendum issued by the Election Commissioner through Petition No,2 of 2005.
5. After necessary proceeding the Election Tribunal framed issues, received evidence from the parties and granted graciously a decree in favour of Muhammad Hussain who was respondent No,4 in Election Petition No,2 of 2005. The learned Election Tribunal has not dismissed the petition but declared respondent No,4 (Muhammad Hussain) as true returned candidate.
6. Not contended with the findings so returned the present appellant invoked the jurisdiction of the Chief Court under section 115 of Civil Procedure Code, which is now impugned before us. The learned Judge of Chief Court, vide his order, dated 15-3-2006 partially accepted the revision, set aside the decree of the Election Tribunal dated 21-12-2005 and the corrigendum dated 28-2-2004.
The learned Judge exercising his supervisory jurisdiction recalled the order passed on 13-6-2005 by the Election Tribunal in Petition No,20 of 2004 and directed the parties to appear before the Election Tribunal.
7. Before us the learned counsel appearing for the appellant assailed the judgment of the Chief Court on the following grounds:--
(1) That recalling the order by the Chief Court, dated 13-6-2005 passed by the Election Tribunal is without proper jurisdiction and authority.
(2) That the Election Petition No,20 of 2004 being apparently time-barred, the learned Chief Court erred in restoring the same petition which amounts to an erroneous one.
' That the findings given by Chief Court based on erroneous reasoning and incorrect exposition of law.'
8. The learned counsel for the respondent No,4, met the objection so raised, contending that there is no provision in the Election Rules to challenge an order like the corrigendum in hand. He further contended that the Chief Court lacks jurisdiction to entertain revision petition under section 115, C.P.C. As the provisions of C.P.C. Have not made applicable to election petition in totality, except certain specific provisions.
9. We have given a patient hearing to the argument advanced by the respective counsel of the parties, gone through the record available on the file and relevant provisions of the general law and the Election Rules.
10. Since the learned Member of Chief Court has discussed elaborately the facts as well as law points involved in both Petitions Nos.20 of 2004 and 2 of 2005, we avail the opportunity to tackle first the points involved in Petition No,20 of 2004.
(i) It is evident on record that Petition No,20 of 2004 has been filed under Rule 55 of the Election Rules on 2-12-2004 challenging the Notification dated 2-11-2004. Reference can be made of rule 48 of the Election Rules to understand the time frame for filing election petitions.
"Rule 48 Declaration of Result.--- When the votes of all the contesting candidates have been counted the names of candidates shall be arranged in the order of the number of valid votes obtained and the candidates in that order equivalent to the number of seats to be filed shall be declared elected.
(ii) If for the purpose of the declaration of result there is a tie between two or more candidates who have obtained an equal number of votes, the Returning Officer shall decide the issue by drawing lots, in the presence of such candidates and counting agents as may be present, and the decision of the Returning Officer as a consequence of the drawing of lot shall, subject to review on an election petition, be final.
(iii) The Returning Officer shall prepare a statement in form (XIII) 9 "
"Rule 55. Election petition.--- (1) No election shall be called in question except by an election petition presented in accordance with these rules.
(2) An election petition shall be presented within thirty days next after the declaration of result under rule 48.
(3) Where a petitioner has been contesting candidate, he shall join as respondent to his petition all the other contesting candidates and a copy of the election petition shall be served upon each respondent."
11. The combined effect of provisions of the rules quoted above explicitly understandable that an election petition would lie against a declaration alone made under Rule 48 and not against a notification. It is also evident that a petitioner should file his petition within thirty days of the declaration made under the umbrella of Rule 48. The record revealed that petitioner Muhammad Hussain filed his election petition before the learned Election Tribunal on 2-12-2004 whereas the declaration under Rule 48 was made on 16-10-2004. The Election Rule has not recognized the application of any provision of Limitation Act, therefore, the petition on the face of it is barred by the time schedule by Rule 55(2) and Rule 48. Unfortunately the facts of the relevant provisions of the rules escaped from the consideration of the learned Election Tribunal as well as the learned Member of Chief Court.
12. Coming to the point of withdrawal on the basis of corrigendum, which led the foundations of Petition No,2 of 2005, it is suffice to say that the withdrawal of Election Petition No,20 of 2004 was on the basis of the said corrigendum. It is also not disputed that the said corrigendum was issued when the matter was sub judice before the learned Election Tribunal. There was no occasion for the Election Commissioner to be so generous to issue such corrigendum if there had been no election petition subjudiced before the Tribunal. It appears to us that the Election Commissioner to absolve himself from the charges levelled against him in the election petition, issued the corrigendum incompetently and beyond his jurisdiction. In similar like circumstances, without applying his mind on the consequence to be spelled out from the said withdrawal the learned Election Tribunal was not justified to allow the withdrawal of the election petition.
13. Adverting to the facts of the second petition which is now impugned before us there exists no provision available in Election Rule to challenge the orders made by the Election Authority after the declaration of result whether competently or incompetently. The only provision contained in the Election Rules is regarding the declaration of the result after the Election so held. As provided in Rule 48 the declaration by Returning Officer is final subject to review through an election petition.
The Election Tribunal seemingly, has no authority to entertain matters outside the preview of Rule
48. Petition No,2 of 2005, is, therefore, misconceived and not maintainable in the form it has been filed.
14. The usurpation of powers on the part of Election Commissioner regarding issuance of corrigendum seems the unawareness of the relevant provisions of Election Rules/order. Had the Election Commissioner gone through the rules he would have never issued such corrigendum which is t foreign to the Election Laws after declaration of election result by Returning Officer.
Likewise the way in which, the result prepared under Rule 48 and the issuance of notification are indicative of the facts as how the election staff deals with the right of people. This also reflects their responsibility towards the duties they are assigned.
15. Before parting with the order some words about the decree granted by Election Tribunal in favour of the respondent No,4 in Election Petition No,2 of 2005. The Election Laws do not recognise of passing a decree in an election petition. It is suffice to declare a petitioner as returned candidate if he comes to such conclusion or dismiss petition otherwise. A respondent is never granted a decree except in matters of set offs and compromises.
16. The result of the above elaborate discussion is that the order passed by the Election Tribunal dated 13-6-2005 in Election Petition No,20 of 2004 and 21-12-2005 in Petition No,2 of 2005 and order passed in revision by the learned Member of Chief Court dated 15-3-2006 are set aside. Election Petition No,20 of 2004 dismissed as time-barred while Petition No,2 of 2005 being incompetent in its present form also stands dismissed. Corrigendum issued on 28-4-2005 stands ineffective and without jurisdiction. Copy of this order be sent to the Election Commissioner Northern Areas for his future guidance.