' M.A. ZAFAR, J.--- The present petition under Article 199 of the Constitution of Islamic Republic of Pakistani, 1973 is directed against the order, dated 24-9-2008 passed by the learned Election.
Tribunal, respondent No,6, dismissing the application for setting aside the order dated 28-7-2008 proceedings ex parte. The learned Tribunal held that application submitted by the petitioner is not maintainable, and also dismissed the same on the ground that petitioner was well-aware about the pendency of election petition filed against him by respondent No, 1.
2. The brief facts of the case are that petitioner and respondents Nos.1 to 5 contested election for the seat of Provincial Assembly Punjab PP-63, Faisalabad-XIII. As a result of the said election held on 18-2-2008, petitioner was declared to be returned candidate and the notification in this regard was issued by Election Commission of Pakistan. That respondent No,1 who allegedly lost the election by 455 votes filed a petition under section 52 of the Representation of the People Act, 1976 which was entrusted to the learned Tribunal by the Election Commission of Pakistan, notices were issued to the respondents vide order, dated 2-5-2008 through ordinary mode, by registered A.D., courier service and by publication in the newspaper "Daily Dawn" and "Daily Pakistan" for appearance on 19-5-2008. On the said date of hearing Mr. Muhammad Asif Ismail, Advocate entered appearance on behalf of the petitioner and the remaining respondents arrayed in the election petition did not turn up so they were proceeded ex parte. Case was adjourned to 18-6- 2008 for filing reply on the request of learned counsel for the petitioner. On the said date learned counsel for the respondent No,1 was present but no one appeared on behalf of the petitioner, therefore, the learned Tribunal as a matter of abundant caution issued fresh notice for 2-7-2008 to the petitioner and his counsel to file reply. On the said date Mr. Muhammad Asif Ismail, Advocate once again entered appearance on behalf of the petitioner and prayed for adjournment of three weeks to file reply which was granted and the proceedings were adjourned to 28-7-2008 but on the said date no one appeared on behalf of the petitioner and even Mr. Muhammad Asif Ismail, Advocate who had been earlier appearing on his behalf absented himself, therefore, the learned Tribunal directed to proceed ex parte against the petitioner.
3. The petitioner moved an application under Order XII, Rule 2 read with section 151, C.P.C. For setting aside the order, dated 28-7-2008 regarding ex parte proceedings. The learned Tribunal vide order, dated 24-9-2008 dismissed the said application holding that the Representation of the Peoples Act, 1976 is special statute and all provisions contained therein are to be adhered to in letter and spirit and strictly construed and anything not mentioned in the same cannot by implied implications be added to the same by placing reliance on a case of Asif Nawaz Fatima v. Walayat Shah and others 2007 CLC 610, decided by a learned Judge of this Court in the capacity of Election Tribunal and also on the ground that petitioner was well aware about the pendency of election petition and petitioner's assertion that on 2-7-2008 petitioner was in jail has not been pleaded in application for setting aside_ order, dated 28-7-2008 regarding ex parte proceeding.
4. Learned counsel for the petitioner submits that petitioner has not authorized Mr. Muhammad Asif Ismail, Advocate to appear on his behalf before the learned Tribunal and thus, his act of appearing as his counsel was not justified. He further submits that petitioner was never served in person and he was not in the knowledge of the pendency of the election petition before the learned Tribunal and the petitioner was in custody on 2-7-2008 for which date notice was issued to him by the learned Tribunal. He remained in custody from 25-6-2008 till 14-7-2008 when on the said date he was granted bail by the learned Special Judge, Anti-Terrorism Court, Faisalabad, in case F.I.R.
No,472, dated 24-6-2008 under sections 324, 148, 149, P.P.C. 7, A.T.A. And 13/20/65 (Arms Ordinance) registered at Police Station Thikriwala District Faisalabad. He placing reliance on an order, dated 1- 8-2008 passed by another learned Judge of this Court/Tribunal in Election Petition No,157 of 2008 titled Syed Fakhar Imam v. Raza Hayat Hiraj and others submits that application for setting aside ex part order was maintainable.
5. On the other hand, learned counsel for the contesting respondent No,1 has controverted the contentions of the learned counsel for the petitioner and submits that petitioner was well-aware about the pendency of the Election Petition, before filing the election petition petitioner was served with notice and copy of the petition by registered post in accordance with provision of section 54-B of the Representation of the Peoples Act, 1976 which is equivalent of a summons and is govetned by the Code of Civil Procedure as to the manner of service by referring words and phrases by Nephew Nystagmus (page 479), he further submits that notice was also published in two national dailies Daily "Pakistan" (Urdu) and Daily "Dawn" (English) on 10-5-2008 and respondent No,1 was personally served on 13-5-2008 with a notice for appearance on 19-5-2008 issued by the learned Tribunal and his counsel had been appearing on his behalf before the Tribunal and seeking adjournments. He further submits that the provisions of law mentioned in the application for setting aside ex parte proceedings relates to notice to admit documents and thus in the eye of law there was no application before the Court for considering the request of the petitioner for setting aside the ex parte proceedings.
6. After hearing the learned counsel for the parties and perusing the documents we have observed that in the heading of the application Order XII(2) read with section 151, C.P.C. Has been mentioned but in the prayer petitioner has requested to set aside the order, dated 28-7-2008 regarding the ex parte proceeding. Suffice it to say that wrong mentioning of the correct provision of law does not disentitle the litigant for the proper relief available to him because it is the duty of the Court to apply the correct law and to grant the proper relief. Reliance is placed on case of Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal PLD 2007 Lah.
377.
7. For purpose of decision of this application reference of section 64 of the Representation of the Peoples Act would be necessary, the same is reproduced as under:- "The Tribunal shall have all the powers of a Civil Court trying a suit under the Code of Civil Procedure 1908, (Act V of 1908) and shall be deemed to be a Civil Court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)."
8. A perusal of the aforesaid section reveals that the Election Tribunal has been bestowed with all the powers of a Civil Court trying a suit under the Code of Civil Procedure but when this section is read along with the provision of section 62 of the Act, one would gather that the procedure for trial given in C.P.C. Would not be followed, rather, the election petition would be decided according to the procedure laid down in section 62 of the Act. Nevertheless, the Tribunal would be having the powers of a Civil Court trying a suit under C.P.C. In view of the provisions of section 64 of the Act, which obviously is later in the sequence of number than section 62. Reliance is placed on a case of Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others PLD 1987 SC 512 in which it has been held that wherein a, Code of Civil Procedure is not attracted by its own force in any procedural matter before a Court seized of proceeding of a civil nature, the equitable principles underlying the provisions of the said Code can be invoked in such proceedings. However, the question that, whether in absence of specific provision to empower the Election Tribunal to restore the election petition, dismissed in default, can it restore the same stands answered in the case of H.M. Saya & Co. v. Wazir Ali Industries and others PLD 1969 SC 65, wherein it was laid down as under:--- "A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
9. Relying on the dictum laid down in the said case, an order of Election Tribunal dismissing the application for restoration of election petition filed under the Punjab Local Government Election Rules, 2000 was set aside by the learned Single Judge of this Court in the case of Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge Hafizabad and 4 others 2001 YLR 336, after holding as under:--- "It is true that unlike said Rule 88 there is no specific provisions in the said Rules for restoration of election petition dismissed for non-prosecution. However, this cannot mean that learned Tribunal would be bereft of authority to restore an election petition even if sufficient cause is made out for absence of the petitioner."
' In the case of Muhammad Hanif v. District Election Tribunal, Multan and others 1983 CLC 2965 a learned Division Bench of this Court, while considering the effect of omission of provision to seek restoration of election petition, dismissed in default and interpreting the provisions of Punjab Local Councils (Election Petitions) Rules, 1979 held as under:--- "In procedural law, what was not expressly prohibited, stood impliedly permitted."
' The same view as endorsed by another learned Division Bench of this Court in the case of Muhammad Shafi and another v. Election Tribunal, Multan and another 1983 CLC 3031.
10. In a rent matter a learned Full Bench of this Court in case of Muhammad Aslam Mirza v. Mst.
Khurshid Begum PLD 1972 Lah. 603 held as under:--- "There always exists an implied and inherent power in every Tribunal to set aside order passed in default of appearance of the parties. In view of the above, it is not proper to take a different and narrow view so as to hold that the Rent Controller had no jurisdiction to recall an ex parte order where the party concerned can show a formidable cause for non-appearance on the relevant date. A perusal of the Ordinance will show that there is no provision in it anywhere for dismissing a matter in default or to proceed ex parte. If, therefore, any such recourse is adopted by a Rent Controller, it is obvious that he adopts it by virtue of the inherent power vested to him to choose any procedure he likes. If once he has chosen such procedure, then to carry the matter to its logical end, he must retain the power to recall or set aside orders passed ex parte or in default."
11. The Honourable Supreme Court of Pakistan also held in case of Maqbool Rehman v. The State 2002 SCM R 1076 that every Court in absence of any express provision, be deemed to possess in its very constitution all such powers as are necessary to do right and undo a wrong in the course of administration of justice. The relevant part is as under:--- "The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law.
What is inherent is a non-separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provisions in the Code of Criminal Procedure be deemed to possess in its very constitution all such powers as are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle "when the law gives a person anything, it gives him that, without which it cannot exist."
12. In these circumstances, we have no reason to doubt that the provision of Order IX, rule 9 or 13, C.P.C. Are applicable to the election petitions tried by the Election Tribunals. In Sardar Salim Haider v. Rai Muhammad Afzal 1982 CLC 927, the Election Authority held that it had authority to restore petitions dismissed by it for default on the ground that proceeding before it were of a civil nature and it had been applying the Code of Civil Procedure in the conduct of its proceeding under section 13(7) of the Punjab Local Government Ordinance, 1979. In Mrs. Roshan D. Minwala v. Karachi Development Authority PLD 1978 Kar. 55, Order IX, rule 9, C.P.C. Was held to be applicable to petitions under Order XXXIX, rules 1 and 2, C.P.C. Dismissed in default, in view of section 141, C.P.C. In Safdar Ali Khan Syal v. District Judge/Election Tribunal Zila Council, Jhang PLD 1982 Lah. 63 the Code of Civil Procedure was held to be applicable to all matters before the Election Tribunal and in case of Muhammad Riaz v. The State PLD 1979 Lah. 155 it was held that in matters of procedure what was not expressly prohibited stood impliedly permitted. Following the law laid down earlier, we, therefore, hold that though the statute law relating to application for restoration/setting aside the ex parte proceedings is silent C but in view of the discussion made above the same would be competent before the Election Tribunal.
13. As far as the other contention of the petitioner that he did not authorize Mr. Muhammad Asif Ismail, Advocate to appear on his behalf is concerned, no such power of attorney given to him by the petitioner is available on record though the said assertion of the petitioner is controverted by the learned counsel for the respondent No,1 on the ground that Mr. Arif Ismail, Advocate had been appearing on behalf of the petitioner and not only in this case but also in some other cases as well but at the same time learned counsel for the respondent No,1 admits that power of attorney executed by the petitioner is not available on record authorizing him to appear in the case. As far as the third contention of the petitioner that on the day when notice for appearance on 2-7-2008 was issued he was in jail is concerned the same was not accepted by the learned Tribunal on the ground that no such assertion has been made in the application for setting aside ex parte proceedings but it is established from documents annexed with this appeal that on 2-7-2008 when the petitioner was asked to appear in Court in pursuance of order, dated 18-6-2008 he was in jail, he was not personally served, he was admitted to bail on 14-7-2008 by the learned Special Judge Anti-Terrorism Court, Faisalabad. The objection of the learned counsel for the respondent No,1 that petitioner was served personally for appearance on 19-5-2008 as well as through proclamation in two dailies "Daily Dawn" and "Daily Pakistan" is concerned, petitioner's non-appearance on the said date and appearance of Mr. Muhammad Asif Ismail, Advocate on his behalf may be for the reasons of being engaged as a counsel but incidentally no power of attorney executed by the petitioner in favour of Mr. Muhammad Asif Ismail, Advocate is available on record and this is not even the case of the respondent No,1 that power of attorney has been removed from the file of learned Tribunal rather the submission of the learned counsel for the respondent No,1 is that he had been appearing without filing power of attorney and posing himself to be a counsel for petitioner who was respondent No,1 before the learned Election Tribunal.
14. For the foregoing reasons, this writ petition is accepted and the impugned order, dated 24-9- 2008 passed .By the learned Election Tribunal refusing to set aside the order, dated 28-7-2008 for proceeding ex parte against the petitioner is set aside. Resultantly, petitioner may join the proceeding pending before the learned Election Tribunal from the stage of filing written statement.