C.M. No,1 of 2008.
' HASNAT AHMAD KHAN, ELECTION TRIBUNAL---Through this application a prayer has been made to restore the main Election Petition, which was dismissed vide order dated 10-10-2008.
2. The facts ,giving rise to the filing of the instant application were/are that the applicant filed an Election Petition under section 52 of the Representation of People Act, 1976, against the respondents. The said petition came up for hearing before me on 30th of May, 2008, oh which date an order was passed to issue notices to the respondents at the expense of the petitioner through registered post along with A.D. For 20-6-2008. However, the petitioner failed to deposit the expenses for issuance of process against the respondents. Nevertheless, on the request of the learned counsel for the petitioner, another opportunity was granted to the election petitioner for payment of necessary expenses within two days, and the hearing of the case was put off till 4th of July, 2Q08. On the said date of hearing respondent No,2 was proceeded against ex parte.
3. Insofar as rest of the respondents are concerned, an order was passed for their service through substituted means, i,e, publication in 'Daily Khabrain' at the expenses of the petitioner.
4. It appears that the petitioner failed to comply with the said order. Nevertheless, a Power of Attorney was filed on behalf of respondent No,1 on the next date of hearing, i,e, 12-9-2008. On the said date of hearing no one appeared on behalf of the petitioner, rather learned counsel for the petitioner sent a written request for adjournment on the ground of his preoccupation before the Hon'ble Supreme Court at Islamabad, but considering the office report regarding the failure of the petitioner to deposit the necessary expenditures for service of respondents through publication, the petitioner was granted one last opportunity to do the needful in terms of order dated 4th of July, 2008. However, once again the petitioner failed to deposit the necessary expenditure for issuance of process fee. Adding to his difficulties, when the case came up for hearing on 10-10- 2008 no one appeared on behalf of the petitioner before this Tribunal, and once again an application was submitted by the learned counsel for the petitioner for an adjournment on account of- his preoccupation before the Hon'ble Supreme Court the petitioner himself, however, failed to appear before this Tribunal, and hence failed to provide any explanation for his failure to pay the necessary expenses for citation. As the petitioner had failed to avail the last opportunity for depositing the process fee, I declined the request for adjournment and Proceeded to dismiss the election petition under Order IX, rule 2 and Order XVII, rule 3, C.P.C. Read with section 64 of the Representation of People Act, 1976 due to non-compliance of the orders dated 4th of July, 2008 and 12th of September, 2008.
5. In the said backdrop the instant application was filed by the petitioner.
6. In support of this application learned counsel for the petitioner has contended that the provisions of Order IX, rule 2 and Order XVII, rule 3, C.P.C. Are not applicable to the Proceedings being conducted by the Election Tribunal, hence the order dated 10-10-2008 is coram non judice; that failure of the petitioner in depositing the expenses for publication was not a wilful default rather it occurred due to the lack of petitioner's contact with his counsel; that non-compliance of the order was not a deliberate act.
7. This application was duly contested by respondent No,1, according to whom, after dismissal of the Election Petition, this Tribunal has no power to restore the same. Respondent No,1 further averred that, from day one the petitioner showed irresponsible attitude and the main Election Petition was never pursued diligently; that considering the fact that the petitioner had failed to comply with the orders passed by this Tribunal time and again, this Tribunal had no option but to dismiss the election petition.
8. While supplementing the averments made in the instant application, learned counsel for the petitioner has contended that it is wrong to contend that this Tribunal has no jurisdiction to restore the Election Petition after its dismissal on the technical grounds. Learned counsel has placed reliance on the case of Fakhar Imam v. Muhammad Raza Hayat Haraj 2009 CLC 1. Learned counsel for the applicant further adds that though the provisions of C.P.C. Are not stricto sensu applicable to the Election Petitions, but the principles of C.P.C. Can be followed during the trial of Election Petitions, therefore, according to learned counsel for the petitioner, the application in hand, which has been filed under section 151, C.P.C., is fully maintainable.
9. While controverting the said arguments, learned counsel for the respondent has prayed for dismissal of the application in hand.
10. Heard. Record perused.
11. A perusal of the order-sheet of this Election Petition would make it crystal clear that, from day one, the Election Petition had not been pursued by the petitioner diligently rather he had been pursuing the case negligently, carelessly, leisurely and indifferently. On the first date of hearing, while issuing notices to the respondents, the petitioner was directed to deposit the expenses for issuance of the notices, but he failed to do so. Nevertheless, he was granted an opportunity to do the needful. Consequently, he furnished the necessary expenses on the basis of which notices were issued to the respondents out of whom respondent No,2 was proceeded against ex parte vide order dated 4th of July, 2008. Since rest of the respondents could not be served through ordinary means, therefore, an order was passed for their service through substituted means, i,e, publication in 'Daily Khabrain', but the petitioner failed to pay the necessary expenses for citation, and instead of doing the needful on the next date of hearing, learned counsel for the petitioner sent a written request for adjournment on the ground of his pre-occupation before the Hon'ble Supreme Court.
No one appeared on behalf of the petitioner on the said date, but in the interest of justice this Tribunal entertained the written request of learned counsel for the petitioner and adjourned the case for 10th of October, 2008. On the said date of hearing the Election Petition could have been dismissed due to default of payment of process fee, but in the interest of justice, instead of dismissing the same on the said ground, the petitioner was afforded one last opportunity to deposit the process fee for citation. However, once again the petitioner failed to do the needful, rather on the next date of hearing once again no one' appeared on behalf of the petitioner and a written request for an adjournment made by the learned counsel for the election petitioner was received: Considering the irresponsible conduct of the petitioner, the election petition was dismissed under Order IX rule 2 and Order XVII rule 3 of C.P.C. Read with section 64 of the Representation of the People Act, 1976, due to non-compliance of the orders dated 4th of July, 2008, and 12th of September, 2008. Even after the dismissal of the election petition the petitioner failed to show any sense. Of responsibility which is clear from the fact that, while submitting A the application in hand, the petitioner failed to submit his own affidavit, so much so the application in hand was not signed by the petitioner himself, rather it was signed by the learned counsel for the- applicant. Another factor, which shows the petitioner's irresponsible attitude of the highest degree, is that while submitting the application in hand an affidavit of one Muhammad Munir Ansri, who claimed himself to be a clerk of the learned counsel for the petitioner was submitted along with this application. The affidavit of the clerk, that too a short one, cannot advance the case of the petitioner either. In this case neither the petitioner nor his learned counsel opted to submit their own affidavits, therefore, I would treat that the instant application is not supported by any affidavit.
12. Insofar as the plea that the election petition could not be dismissed under the provisions of C.P.C., is concerned, it would be interesting to note that on one hand the petitioner is claiming that the provisions of C.P.C., are not applicable in this case, but on the other the instant application by itself has been submitted under section 151, C.P.C. It is true that in view of the case-law cited by the learned counsel for the petitioner the Election Petition dismissed in default can be restored by the Election Tribunal, but that can only be done if the application for restoration of the election petition discloses genuine and sufficient reasons for restoring the same. However, in the instant case, as observed above, the petitioner has failed badly to show any reasonable ground or good cause for allowing this application. The scheme of law, as given by the legislature, reveals that its object is that the Election Petitions should be decided within minimum possible time. The object of the legislature to decide the election petition as expeditiously as possible is that the elected candidate instead of being entangled in the litigation should be allowed to concentrate on serving his constituency and playing his meaningful and effective role in the legislation. The purpose of the legislature is that possibility of losing of his seat should not hang over the elected representatives like the sword of Damocles.
13. Coming to the petitioner's contention that the main petition could not be dismissed under the provisions of C.P.C., suffice it to observe that under section 64 of the Representation of the People Act the Tribunal shall hive all the powers of a civil court trying a suit under the C.P.C., therefore, no illegality was committed by this Tribunal while dismissing the application under the relevant provisions of C.P.C.
14. Insofar as the conduct of the petitioner is concerned, at the cost of repetition it is observed that from day one he failed to pursue this petition diligently. Paragraph 2-A(c) of the application in hand clearly reveals that the learned counsel for the petitioner failed to deposit the requisite expenses in terms of the orders passed by, this court due to the lack of communication between, the petitioner and his counsel, a fact which clearly reflects that the petitioner was not even in touch with his learned counsel for pursuing the election petition. As mentioned above, he did not even bother to sign the application in hand, nor did he submit his affidavit along with this application. Be that as it may the petitioner has failed to show any cause at all, let alone a sufficient cause or even a good cause for acceptance of this application, consequently, the application in hand is dismissed.
15. Office is directed to communicate the instant order to 'the Hon'ble Chief Election Commissioner and also forward the complete record of main petition, as well as this application, immediately under, section 76 of the. Representation of the People Act, 1976.