IJAZ AHMAD CHAUDHRY, J. - During the pendency of the main election petition, the petitioner filed C.M. No. 1 under Order 16, rule 1 read with all enabling provisions of the Representation of People Act, seeking permission to file the list of witnesses and their affidavits whereas respondent No. 1 filed C.M. No. 2 of 2010 under Section 63 of the Representation of Peoples Act, 1976 read with Order VII, rule 11, C.P.C, for rejection of the main election petition. Both the parties have filed replies to the applications filed against each other.
2. I have heard the learned counsel for the parties and perused the documents attached with the main petition as well as the relevant law on the subject. The petitioner and respondent No. 1 had contested the elections of PP 159- Lahore-XXIII alongwith others and respondent No. 1 was declared the returned candidate. The petitioner being aggrieved of result of the elections filed this election petition on various grounds including malpractices. On the other hand respondent No. 1 contested the same by filing written reply and keeping in view the controversial pleadings of the parties, six issues were framed on 22.5.2009.
3. Then during the pendency thereof, the election petitioner filed C.M. No. 1 of 2009 and learned counsel for the petitioner made .The submission that "* if a conclusive decision is passed in this C.M., the petitioner would not insist upon other points raised in his election petition."
Then on 10.7.2009 the preliminary objection raised by learned counsel for respondent No. 1 that the election petition was not maintainable in view of non-compliance of the petitioner with the mandatory provisions of Section 55(3) of the Representation of People Act, 1976 was dismissed.
Later on C.M. No. 1 of 2009 filed by the petitioner for recounting of votes has also been dismissed as not pressed by this Court vide orders dated 29.1.2010.
4. It is an admitted position that the petitioner had failed to append the list of witnesses alongwith their affidavits duly attested by the Oath Commissioner alongwith the election petition, which was requirement of Section 55(3) of the Representation of People Act, 1976. No doubt paragraph (6) of Notification No. F.1(7)85-Cord, which is reproduced as under:- "(6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal."
Empowers this Tribunal to summon and examine any witnesses, who is found to be necessary, but in the present case the petitioner has failed to show any plausible reason for omission to furnish the list of witnesses alongwith their gist of evidence to give notice thereof to the opposite party for preparing their defence. Although earlier the preliminary objection raised by learned counsel for the petitioner for dismissal of the election petition for non-compliance of the provisions of Section 55(3) of the Representation of People Act, 1976 was turned down, but at that juncture it was not taken into consideration that the list of witnesses or their affidavits were not appended with the election petition. The relevant portion of the order dated 10.7.2009 is reproduced as under:- "3. ***Para 6 of the election petition clearly points of that counting of Union Council No. 63 which according to the allegation of the learned counsel for the petitioner was incorrect. He has already taken stand that he would only press this issue whether counting of polling station in Union Council No. 63 was conducted in accordance with law or not? He categorically mentioned in this regard a part of Court, order dated 5.6.2009 and contents of C.M. No. 1/2009.
4. I have considered the above contentions following which I do not find any force in the objection of the learned counsel for the respondent/applicant, particularly in view of contents of the petition.
Consequently, the objection of respondent No. 1 on the maintainability of this election petition is dismissed.
5. The learned counsel for the parties shall address the Tribunal on C.M. No. 1/2009 on 24.7.2009. "
The said order cannot be considered a bar for reconsideration of the preliminary objection as CM No. 1/2009 filed by the petitioner has already been dismissed as withdrawn for the reasons best known to the petitioner.
5. In Ch. Muhammad Ashraf v. Rana Tariq Javed and others (2007 SCM R 34) the election petition was dismissed taking into consideration the technical defects by the Election Tribunal and the august Supreme Court of Pakistan maintained the same. The relevant portion is reproduced as under:- "The Election Tribunal, was thus, justified in holding that no affidavit was annexed to the election petition which admittedly was not verified in accordance with law. As such-refusal of the Election Tribunal to place reliance on the pronouncement of this Court in the case of Bashir Ahmad Bhandbhan and another v. Shaukat Ali Rajput and others PLD 2004 SC 570 and relying on the pronouncement made by this Court in the cases of Engineer Zafar Iqbal Jhagra and others v.
Khalil-ur-Rehman and others 2000 SCM R 250 and Sardar Zada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 (supra) that an election petition not having been filed in compliance with the provisions of Section 55(3) of the Act, not accompanied by an affidavit would be liable to be dismissed under Section 63 of the Act as the requirement of both the sections were held by this Court as mandatory."
Similarly in the case titled Malik Omar Aslam v. Sumaira Malik and another (PLD 2007 SC 362) an application was filed by election petitioner to place on record certain documents which could not be appended with the election petition. The august Supreme Court of Pakistan held that these are mandatory provisions of the Act, 1976 where the non-compliance of provisions of law is penalty, In the said case the returned candidate also filed Civil Misc. No. 1 of 2003, praying therein for dismissal of election petition for want of compliance of Section 55(3) of the Act, 1976 on stated allegations that annexures appended with the election petition had not been attested in the manner prescribed in the Civil Procedure Code for the verification of the pleadings. The Supreme Court of Pakistan has concluded that, Court of law may pass judgment declaring that the non-fulfilment of mandatory provisions of law is sufficient to dismiss the Election Petition. The relevant portion is re- produced here as under:- "The Section 63 of the Act, 1976 and Section 67 of the Act, 1964 are corresponding to each other namely empowering the Tribunal to dismiss the petition for non-compliance of the provisions of Sections 58 and 59 of the Act, 1964 as well. Learned counsel for appellant is right in pointing of that Sections 62 and 63 of the Act, 1976 are independent of each other. So far as grant of amendment in the petition or verification clause is concerned, it depends upon the nature of amendment sought in the pleadings, on case to case basis, In the case in hand, the appellant knowing well, the mandatory provision of Section 55(3) of the Act, 1976 did not apply for amendment within the prescribed period of limitation for filing of Election Petition. Undoubtedly, if during period of limitation for filing of petition such an amendment is sought, the Court may consider the request according to the settled principle relating to amendment in the pleadings but once limitation period has already expired, then it is the duty of the Court to examine whether a right, which has been created 0n account of bar of limitation in favour of opposite side can be snatched by allowing amendment in the pleadings, enabling the plaintiff (petitioner) to put up a better/perfect case against defendant (respondent), In this behalf the consistent practice of the Courts is that amendment in such matters, where limitation creates a hurdle, is not to be allowed on condoning the delay, particularly where no request has been to enlarge the period of limitation. For the above proposition we are fortified by the judgments in the cases of Bhagwanji v. Alembic Chemical Works (AIR 1948 PC 100) AND Saeed Sehgal v. Khurshid Hassan (PLD 1964 SC 598).
The application for amendment in the pleadings filed by the election petitioner was dismissed with the following observations:- "Therefore, we are of the opinion that amendment in the verification clause of the petition was not permissible, as the application was submitted much after the period of limitation i.e. 45 days as provided in Section 52(2) of the Act, 1976 for filing of Election Petition, In addition to it, a right in favour of the respondent has been created, as such we are not persuaded to subscribe the view point of the learned counsel for the appellant."
6. I am of the view that in the context of election laws the non-submission of list of witnesses and their affidavits and verification of annexures was not merely a formality, which could be cured later on by allowing amendment. Section 63 of the Act leaves no option to the Tribunal to allow any such amendment and its absence entails in dismissal of the election petition.
7. For the foregoing discussion, I have no hesitation in holding that the preliminary objection taken by respondent No. 1 has prevailed and it is a case of sheer non-compliance of an imperative provisions pointed of above and its consequence evidently was nothing but dismissal of the main election petition. Hence, C.M. No. 1 of 2010 filed by the Election Petitioner is dismissed whereas C.M.
No. 2 of 2010 filed by respondent No. 1 stands accepting and the main election petition is dismissed accordingly.