MUHAMMAD MUZAMMAL KHAN, J.--- Instant Constitutional petition assailed the orders dated 18-10- 2005, 25-04-2006, 28-06-2006, 16-11-2006 and 24-11-2006 passed by the Election Tribunal Ferozewala, District Sheikhupura, to be declared illegal, void and of no legal consequence, whereby petitioner was proceeded against ex parte ; recount of ballot papers was ordered and application for setting aside ex parte proceedings was dismissed.
2. Succinctly, relevant facts are that petitioner was notified to have elected as a General Councilor of Union Council No. 64, Mauzia Hair, Nishtar Town, Lahore, in the last Local Bodies Elections held in the year 2005. Respondent No. 2 who had lost the election, filed an election petition before the notified Election Tribunal where he along-with respondents Nos. 3 to 35 was proceeded against ex parte. Pending election petition, an order of recount of ballot papers was passed on 25-4-2006 which was accordingly accomplished ex parte on 16-11-2006 and in result of this exercise respondent Nn. 2 was declared successful in place of the petitioner, vide order dated 24-11-2006.
3. Petitioner on gaining of knowledge of ex parte order dated 24-11-2006 filed an application under.
Order IX, Rule 13, CPC for re-call of all the ex parte orders, above-referred, on the grounds that he was never personally served and that he had no knowledge of pendency of election petition, as no notice was delivered or received by him. He further pleaed in his application that neither the recount of ballOt papers could have been,ordered nor the same was done in accordance with law, as ballot bags of all the polling stations were not summoned/recounted. This application was opposed by respondent No. 2 filing his written reply and the Election Tribunal after hearing the parties, dismissed the same vide impugned order dated 24-11-2006. Petitioner being aggrieved of dismissal Of his application for setting aside the exparte orders filed this constitutional petition with the relief noted above. Respondent No. 2 being the real contestant in response to notice by this Court, has appeared and was represented through his counsel.
4. I have heard the learned counsel for the parties and have examined the record. The election petition by respondent No. 2 was entertained by the Election Tribunal on 20-09-2005 and notice to the respondents was ordered to be issued to the petitioner as well as respondents Nos. 3 to 35 through registered envelope acknowledge due, for 01-02-2005. None of the respondents before the Election Tribunal could be served till. The next date of hearing, consequently fresh notices were orders against under a registered cover acknowledgement due for 18-10-2005. On this date process-server reported that the petitioner refused to accept service and on the basis thereof, petitioner was proceeded against ex parte on 18-10-2005. Interim orders passed by the Election Tribunal revealed that concerned process-server was not summoned examined to testify his inscribed refusal repot in terms of Order V, Rule 19. CPC. It is further evident that no notice by any other mode or through citation in newspaper was got published against the petitioner, for the date on which he was proceeded against ex pate. Contrary to all this, the learned Presiding Officer of Election Tribunal dismissed petitioners' application on the ground that petitioner was personally served through registered post acknowledge due but his finding is apparently contrary to record.
Recount of ballot papers was ordered ex parte on 25-04-2006, on the basis of concessional statement of the learned counsel for respondent No. 36 who himself had filed an election petition to challenge the election in question. Respondent No. 36 being himself an election petitioner, had himself prayed recount of ballot papers thus this status was no better than respondent No. 2. This order of recount of ballot papers is sketch/unreasoned and does not refer to any material justifying the course adopted.
5. Though the petitioner had been proceeded against ex parte and was not present before the Tribunal yet the learned Presiding Officer was not relieved of this obligation not satisfy his judicial conscience, while passing the order of recount dated 25-4-2006 as to whether it was justified as per the law applicable. Under law order of recount could have been passed on the basis of some material/evidence on the record,. In light of the judgments in the cases of Sheikh lftikharud Din and another v. District Judge, Bahawalpur exercising powers of Election Tribunal for Union Council of District Lodhran and 8-others (2002 SCM R 1523), Muhammad Tariq Zakhmi and others v. Election Tribunal and others (2002 SCM R 1995) and Liaqat Ali and another v. Election Tribunal Sialkot and others (2003 SCM R 1313)'. Analysis of above case-law would show that recount of votes could be ordered in light of specific allegations in the pleadings in the election petition that illegality/irregularity was committed while original counting and these allegations must have been supported by some material/evidence, on the file. Party who prays recount should allege and prove that there had been improper acceptance of invalid votes or improper/invalid votes were wrongly counted instead of rejection. Mere bald allegations ,of incorrect count/consolidation of votes, were not enough to disturb the secrecy of ballot papers which has always been considered sacrosanct in any democratic process of election but if purity of the election was pro':ed to have been tarnished materially affecting the election result, this exercise could be justified to remedy the prejudice cause the defeated candidates.
6. No doubt, notice to the petitioner through citation in daily Urdu Newspaper "Pakistan" was ordered to be issued after the order of recount of ballot papers on a subsequent date of 15-6-2006 but it is not clear whether this notice requiring appearance of the petitioner respondent No. 2 on 28-6-2006, the date on which on the basis of. Ex parte order, recount was proposed to be done.
There is nothing on the record to show that the newspaper carrying citation against the petitioner was dispatched at his postal-address given in the election petition, even at a very belated stage.
All this made me to hold that all the impugned orders of proceeding ex parte against the petitioner, order of recount of ballot papers, summoning of the ballot bags and C.L.R. recount of ballot papers were arbitrary/fanciful and were passed without comprehending the controversy and were passed in haste without assigning any lawful reason. Since the petitioner was never personally served for 18-10-2005, the date on which ex parte proceedings were taken against him, his application under Order IX, Rule 13, CPC could not have been decided summarily, as it had raised disputed factual controversy, requiring recording of evidence but this exercise was, not undertaken, opposed to settled propositions of law in this behalf. Similarly order of recount of ballot papers dated 25-4-2006 being contrary to consistent dictum laid down by the apex Court, is not sustainable. There might have been some material justifying the recount of ballot papers but the same was neither considered nor discussed/appraised in the order passed in this behalf. I have deliberately avoided to touch the merits/de-merits of recount of ballot papers as the same may not prejudice the mind of the learned Presiding Officer of the Election Tribunal to whom I intend to remit this case back for fresh decision.
7. For the reasons noted above, instant petition is bound to succeed and is accordingly accepted.
All the orders dated 25-4-2006, 28-6-2006, 16-11-2006 and 24-11-2006, are declared to be void and non-existent in the eye of law, with the result that application of the petitioner under Order IX, Rule 13, CPC shall be deemed to be pending before respondent No. 37 (Election Tribunal) which shall be decided afresh after framing of issues and recording of evidence. The Election Tribunal may again pass an order for recount of ballot papers if the same be justified in light of the judgments by the apex Court. Parties are directed to appear before Election Tribunal on 27-2-2006 for further .
Proceedings. There will be no order as to costs.