The learned counsel has filed this writ petition against order of the learned Election Tribunal consisting of a learned Single Bench of this Court in Election Petition No. 231/2008, Rana Muhammad Aftab v. Muhammad Ajmal and others. The impugned order was passed on 17.7.2009 which reads as under:- "The matter was adjourned on the last date of hearing, viz. 10.7.2009, on the request of the learned counsel for respondent No. 1, with a clear direction that no further opportunity shall be granted and in case of non-compliance penal consequences shall follow, it also was clearly indicated that the counsel and witnesses should be present on the next date of hearing. Mr. Nadeem Khalid, a cousin of respondent No. 1, states that the counsel for respondent No. 1 is not available today and prays for adjournment.
(2) Section 67(1A) of the Representation of the People Act, 1976, ordains that a Tribunal shall decide the election petition within four months of its receipt, the present matter is languishing much beyond the stated period primarily on the dilatory tactics adopted by respondent No. 1.
(3) In the present matter the affirmative evidence of the petitioner was concluded on 19.3.2009, and thereafter the proceedings adjourned for evidence of respondent No. 1, he was specifically directed on 27.3:2009, to file affidavits of the witnesses arrayed and also produce them on the next date of hearing, despite eight opportunities, including last opportunity granted on 10.7.2009, wherein it was specifically indicated, that in case of non-compliance penal provisions shall follow, no affidavits, as directed, have been filed, neither are the witnesses present, as such the order has not been complied with. Therefore, exercising powers under Section 64 . Of the Representation of People Act, 1976, by invoking provisions of Order XVII, Rule 3, C.P.C. The right of respondent No. 1 to produce evidence in defence is struck off."
Prior to the above order, an order was passed on 10.7.2009. In order dated 10.7.2009, the learned Election Tribunal held: "perusal of the file reveals that seven adjournments have been granted to the respondent (present petitioner) and no substantial progress has been made, it therefore, appears prima facie matter has been delayed. In this view of the matter, the proceedings are adjourned for the last time to 17.7.2009, on which date, matter shall be heard and in case, respondent (petitioner) or his counsel or witnesses are not present, penal consequences as enunciated in law will follow." The above relevant portion of order dated 10.7.2009 highlights few points; one that seven adjournments were granted to the present petitioner and the election petition was not making progress. The adjudication was being delayed by the petitioner and for the same reason, the proceedings were adjourned for the last time for the purpose of recording evidence of the petitioner. For the above purpose, date was fixed as 17.7.2009. The Court warned that on the said date, the matter would be heard and in case the counsel or witnesses were not present, penal consequences, as enunciated in law, will follow. Penal consequences were described as enunciated in law i.e. The Representation of People Act, 1976 and Civil Procedure Code. In other words, the learned Election Tribunal made it very clear to the present petitioner that in case he followed the old practice, specific action/penal consequences as enunciated in the Representation of People Act/ C.P.0 would follow.
2. On 17.7.2009, one Nadeem Khalid, a cousin of petitioner was present who stated that the counsel of present petitioner was not available and request for adjournment was made. It shows, and according to the learned counsel for the petitioner also, that neither petitioner was present, nor his counsel was present and even witnesses were also not present. It means, on 17.7.2009, deliberately order of the learned Election Tribunal dated 10.7.2009 was flouted. If the witnesses had any genuine cause and could not be produced, at least, petitioner could have appeared and explained the situation or his counsel could have done the same. Seeing the conduct of the petitioner, the learned Election Tribunal in the impugned order held as under:--- "Therefore, exercising powers under Section 64 of the Representation of People Act, 1976, by invoking provisions of Order XVII Rule 3, CPC, the right of respondent No. 1 (petitioner) to produce evidence in defence is struck off."
The present writ petition has been filed against the .Above order.
3. According to the learned counsel for the petitioner , the petitioner's counsel was on adjournment on ground of sickness on 17.7.2009; evidence of petitioner was closed without fulfilling the requirement of Rule 3 which requires presence of parties; and under Rule 3, no penal consequences can follow. In support of his contentions, the learned counsel referred to 2006 M LD 1577, 1990 CLC 1743, PLD 1969 SC 270, 1999 SCM R 105 and 1999 M LD 818. - 4. On the other hand, the learned counsel for the respondent contended that evidence of respondents was concluded on 19.3.2009 and since then, the election petition remained pending in view of adjournments sought by the petitioner on different context. According to him, order dated 10.7.2009 expressly made it clear that if petitioner failed to produce witnesses, his right of defence would be struck off. He referred to PLD 2003 SC 180, 2008 SCM R 568 and PLD 2004 SC 452. He supported the impugned order.
5. We have considered the above contentions of the learned counsel and also examined the relevant provisions of Representation of People Act, 1976 and provisions of Order XVII. We have also examined the precedent judgments cited by the learned counsel.
6. The learned counsel for the petitioner referred to 1990 CLC 1743. In the said judgment, a learned Division Bench of this Court discussed Rule 3 of Order XVII, CPC as under:- "Therefore, in addition to the conditions already mentioned above for the application of Rule 3 of Order XVI it is necessary that the defaulter party must be present or deemed to be present before the Court."
The learned counsel for the petitioner himself relied upon the above judgment. The order sheet of the learned Single Bench/Election Tribunal dated 10.7.2009 and 17.7.2009 as well as previous orders clearly show that petitioner was directly or indirectly represented. Even on 17.7.2009, when the impugned order was passed, Mr. Nadeem Khalid, a cousin of respondent No. 1 was present in the Court. Therefore, at least, it shall be deemed as the petitioner was present on 17.7.2009. It is further provided that for the application of Rule 3 certain conditions must co-exist;
(i) adjournment must have been granted to the party at his request;
(ii) it must have been granted to it for the purposes mentioned in the rule;
(iii) the party who has taken the time defaulted in doing the act for which he took the time from the Court;
(iv) the party ,must be present or deemed to be present before the Court; and
(v) that there must be some material on record for decision of the case on merits and lastly, that the Court must decide the suit forthwith that is within a reasonable time.
7. The record shows that adjournments were granted to the petitioner at his request on several occasions; the adjournments were granted for the purpose of producing evidence; the petitioner defaulted in producing the evidence; the party was present or deemed to be present on 17.7.2009 as noted above; and the learned Election Tribunal is proceeding with the matter. Therefore, in our view 1990 CLC 1743 is not helpful to the case of the petitioner instead it goes against him. The learned counsel also referred to 2006 M LD 1577. We would like to refer some material from para12 of the same judgment, which reads as under:--- "It may be noted that provisions of Order XVII, Rule 3, CPC are penal in nature and have to be applied with due care and caution. And, if a litigant, is to be visited with a penalty, such as the closure of his evidence, he is at least entitled to put to notice. The perusal of the order, dated 20.9.1987 shows that the petitioner was not even put to a notice that if on the next date of hearing his evidence was not produced, his right to lead evidence shall be closed."
This judgment again does not lend help to the petitioner. This judgment declares Rule 3 as penal in nature. This judgment has also declared penalty under Rule 3 is closure of defaulter's evidence.
Therefore, if the order dated 10.7.2009 had warned petitioner that if he failed to produce witnesses on 17.7.2009, the penal consequences would follow, then the learned Tribunal rightly closed petitioner's evidence in the instant case. The above produced lines from para 12 of the precedent case also disclosed that petitioner was not put to the notice that if on the next date of hearing his evidence was not produced, his right to lead evidence would be closed. Whereas, the order dated 10.7.2009, in the instant case, clearly stated that penal consequences, as enunciated in law, would follow. The relevant law in the instant case is Representation of People Act, 1976, and Code of Civil Procedure.
8. Rule 67(1A) requires Tribunal to complete the trial within four months from receipt of the election petition and if delay in the proceedings is occasioned by any act or omission of a returned candidate or any person acting on his behalf, Tribunal shall refer to the Commissioner that such candidate may be declared by the Commission to have seized to perform the function of his office either till the conclusion of the proceedings or for such period as the Commission may direct.
Section 64 empowers the Tribunal that it can exercise all powers of a Civil Court and when it is read with Order XVII, Rule 3, it is absolutely clear that as a penalty right of petitioner to produce evidence in defence could be struck off. 2006 M LD 1577 has clearly laid down that penalty means closure of evidence. According to the learned counsel for the petitioner, expression "penal" or "penal consequences" refers to imposition of penalty in form of cost or fine. The said expression cannot be construed as striking off right of defence of the petitioner. We want to observe that in the context of Order XVII, Rule 3, the above meanings cannot be ascribed to expression "penal". Firstly, Rule 3 itself has made clear that where any party to suit whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, the Court, notwithstanding such default, proceed to decide the suit forthwith. According to his Lordship Syed Jamshed A.I, Judge Supreme Court of Pakistan (2006 M LD 1577), the provisions of Rule 3 are penal in nature and a litigant can be visited with a penalty, such as the closure of his evidence. According to Advanced Law Lexicon, 3rd Ed. 2005, By P. Ramanatha Aiyar, Vol-III page 3315, 'penal' includes any extraordinary liability to which the law subjects a wrong-doer in favour of the person wronged. According to the same book : "a penal action is one allowed in pursuance of public justice under particular laws". In the instant, case, as noted-above, particular laws are the Representation of People Act, 1976 and Civil Procedure Code, 1908. The penalty in terms of Order XVII, Rule 3 has already been mentioned with reference to 2006 M LD 1577. Thus, we cannot ascribe to strict meaning given to word "penal" by the learned counsel for the petitioner, in the facts and circumstances of the present petition. The other judgments i.e. 1999 M LD 818, 1999 SCM R 105 and PLD 1969 SC 270 are not applicable to the facts and circumstances of the instant case.
9. The provisions of Section 67 of the Representation of People Act, 1976 are of mandatory nature which require that the Election Tribunal shall proceed with the trial of the election petition on day to day basis and decision thereof shall be taken within four months from its receipt. How an Election Tribunal can fulfill this obligation when a party fails to produce evidence despite repeated orders of the learned Election Tribunal as it has happened in the instant case? The order-sheet clearly demonstrates that petitioner kept on playing with the judicial process, his whole conduct smells rata The Constitutional jurisdiction cannot be exercised in aid of injustice and unfair play. The person who invokes Constitutional jurisdiction of this Court is expected to act with clean hands. The behaviour of the petitioner indicates to the contrary. The order dated 10.7.2009 was pertinent and specific yet neither petitioner bothered to appear himself nor arranged production of his witnesses.
In our opinion, in the above circumstances the impugned order cannot be interfered.
10. Pursuant to the above discussion and reasons, this writ petition is dismissed. .