Instant constitutional petition assailed the order dated 18.11.2006 passed by the Election Tribunal, Ferozewala District Sheikhupura to be declared illegal avoid and of no legal consequence, whereby application filed by petitioners under Order VII Rule 11 CPC for rejection of election petition was dismissed.
2. Precisely relevant facts are that petitioners and Respondents No, 2 to 11 contested the last local bodies elections held on 25th of August, 2005 for the offences of Nazim/Naib Nazim of Union Council No, 134 Bostan Colony Nishtar Town Lahore. Nomination papers of the contestants were not objected by any body and all of them contested the election. Petitioners were declared as returned candidates and after their notification Respondents No, 2 and 3 filed an election petition before the notified Election Tribunal on 17.9.2005. Pending Election petition, Respondents No, 8 and 9 filed an application/complaint before the learned Member, Election Commission of Pakistan urging disqualification of Petitioner No, 1 in terms of Section 152 (E) of the Punjab Local. Government Ordinance, 2001 that he is not matriculate and the "Sanad" appended with his nomination papers is not recognised.
3. Petitioners contested the election petition filed by Respondents No, 2 and 3 by filing their written reply and out of divergent pleadings of the parties, 9 issues were farmed by the Election Tribunal/Respondent No,
1. Petitioners firstly moved an application before the Election Tribunal for amendment rectification of Issue No, 1 which was dismissed on 18.11.2006 and thereafter, they filed another application under Section 10 of the CPC for staying the proceedings on the ground that another application/complaint by Respondents No, 8 and 9 under Section 152 of the Punjab Local Government Ordinance, 2001 has been taken cognizance by the Election Commission of Pakistan.
Their case was that Respondents No, 2 and 3 have also pleaded in the election petition the same disqualification as asserted by Respondents No, 8 and 9 before the Election Commission, and both these matters cannot proceed, simultaneously.
4. Though the petitioners have levelled allegations of bias against the learned Presiding Officer of the Election Tribunal yet this matter is not relevant to the controversy brought before this Court hence, the same need not be dilated upon in detail. Election Tribunal Respondent No, 1 took up the application of the petitioners filed under Section 10 CPC and after hearing the parties, dismissed the same on 18.11.2006 with a finding that Election Tribunal, while dismissing the application under Order VII Rule 11 CPC on 17.6.2006 had declined the request of staying the proceedings. Petitioners thereafter filed instant petition with the relief noted above and respondents in response to notice, by this Court, have appeared and were represented through their counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners did not produce order dated .17.6.2006 passed by the Election Tribunal whereby their application under Order VII Rule 11 CPC was dismissed but this order has been appended with reply filed by the Respondents No, 2 and 3. It shows that. the question of taking cognizance of the alleged disqualification of Petitioner No, 1 by the learned Member, Election Commission of Pakistan and stance of the petitioners was repelled. The petitioners being aggrieved of dismissal of their application under Order VII. Rule 11 CPC on 17.6.2006, filed constitutional petition before this Court (Writ Petition No, 7738 of 2006) but without any success, as the same was dismissed on 18.7.2006.
6. It is floating on the face of the record that election petition was' filed by Respondents 2 and 3 on 17.9.2005 whereas Respondents No 8 and 9 filed their applications before the learned Member, Election Commission on 3.10.2005. It shows that the election petition was filed earlier to the application before the Election Commission of Pakistan Section 10 CPC envisages that no Court shall proceed with the trial of any suit in which the matter in issue is also directly involved in previously instituted suit. For convenience and ready reference Section 10 CPC is reproduced and the same reads as under:- "10. Stay, of suit.--No Court shall proceed with the trial of any suit in which the, matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigation, under the same title where such suit is pending in the same or any other Court in (Pakistan) having jurisdiction to grant the relief claimed or in any Court beyond the limits of (Pakistani established or continued by (the Central Government) and having jurisdiction or before (the Supreme Court)."
7. The above-reproduced provision of law make it clear that Court where the subsequent suit is filed, will not proceed with its trial. Now, the election petition was filed earlier to the application before the learned Member, Election Commission as noted above hence petitioner's application before the Election Tribunal Respondents No, 1 can not proceed and the proceedings on the election petition could not be stayed being earlier in time. It goes without saying that Respondents No, 2 and 3 who have filed the election petition before Respondent No, 1, are not party to the application complaint initiated by Respondents No, 8 and 9 and thus they cannot be deprived of adjudication of their election petition. In this manner, as well the Election Tribunal rightly dismissed the application of the petitioners. Scan CT record and impugned order revealed that controversy was correctly put to rest without committing any error of law facts.
8. For the reasons noted above no case for interference in constitutional jurisdiction was made.
Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on the petition which being devoid of any merit, is dismissed.