' JUSTICE AZHAR SALEEM BABAR (ELECTION TRIBUNAL)--- This is an application for restoration of election for default on 16-11-2013. The applicant has furnished the following reasons for his non- appearance on the relevant date:---
(a) That applicant could not proceed to the Election Tribunal because of curfew imposed in Rawalpindi and adjoining areas. Travelling during the curfew was obviously not possible because all the roads had been blocked;
(b) That the applicant contacted his counsel on telephone and apprised him of his inability to appear before the Tribunal. An affidavit of counsel in support of the application has been attached.
2. Contesting non-applicant, Raja Naseer Ahmed Khan was issued a notice to file objections on the application for restoration. Learned counsel for the non-applicant has furnished written arguments/objections in support of his version. Order of Tribunal dated 16-11-2013, whereby election petition has been dismissed, reads as under:- {{URDU TEXT}}
3. A perusal of the order of dismissal of election petition transpires that the petition filed by Sardar Muhammad Bashir Pehlwan had been fixed for evidence i,e, hearing but neither the petitioner nor his counsel appeared before the Tribunal, so the order impugned was passed. Order IX, Rule 8 provides procedure where defendant only appears and the plaintiff does not appear. For proper appreciation, Rule 8 of Order IX is reproduced as under:- "Procedure where defendant only appears.--- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
4. Rule 9 of Order IX, C.P.C. Provides procedure for setting aside order of dismissal through an application. Plaintiff in such a case has to furnish 'sufficient cause' for his non-appearance when the suit is called on for hearing. The question arises that whether applicant/petitioner has brought on record sufficient cause for his non-appearance? As reproduced earlier, the petitioner has furnished explanation for his nonappearance in the application that he could not proceed to the court because of curfew imposed in Rawalpindi. Although, the question is factual and questions can be raised that whether the petitioner was in Rawalpindi, when the curfew was imposed and whether the curfew was really imposed? However, if non-appearance of the petitioner is deemed as justified, even then non-appearance of counsel for the applicant/ IB petitioner has not been explained in the application for restoration. An affidavit by Sardar Shamshad Hussain Khan Advocate only verifies the contents of petition to be true to the best of his knowledge and belief and information. However, when Rahat Farooq Advocate for the applicant was confronted with the situation, she managed to bring on record another affidavit of Sardar Shamshad Hussain Khan, Advocate in support of his version of non-appearance. Mr. Shamshad Hussain Khan, Advocate in his 2nd affidavit has stated that on account of death of his real cousin, he could not appear before the Court on the relevant date. This affidavit has been rebutted by a counter affidavit furnished by Sardar Tahir Anwar Khan, Advocate for the non-applicant/nonpetitioner. Mr. Tahir Anwar Khan, Advocate Supreme Court in his affidavit has deposed "that counsel for the petitioner, Mr. Shamshad Hussain Khan, Advocate was present in the Court premises on 16-11-2013." In para 2 of the affidavit, he further deposed "that I personally saw him appearing on 16-11-2013". The explanation for nonappearance furnished by Sardar Shamshad Hussain Khan Advocate has, thus, been rebutted by a counter affidavit presented by Mr. Tahir Anwar Khan, Advocate for the non- applicant/non-petitioner. A perusal of both the affidavits shows that Mr. Shamshad Hussain, Advocate, was present in the Court premises on the date fixed for hearing in the election petition and he appeared in some other cases as well. But he did not make his appearance before the Election Tribunal on the relevant date and even did not bother to intimate the tribunal of his inability, if any. Death of cousin has not been denied by the counter affidavit. It may be inferred that learned counsel proceeded to attend the funeral after making his appearance before the Courts on the relevant date. It may also be mentioned that Mr. Shamshad Hussain Advocate, in his affidavit, has not stated that he did not appear before any court on 16-11-2013 or that he was not present in the Court premises on that date. Non-appearance of learned counsel for the petitioner is, therefore, deliberate and wilful which does not constitute a sufficient cause. 1988 M LD 1143 relied.
Application for setting aside the order of dismissal is, therefore, not worth consideration because learned counsel for the applicant/petitioner could not furnish 'sufficient cause' for his non- appearance.
5. It has been argued on behalf of the contesting non-applicant that an election for default cannot be restored because the Election Tribunal is not vested with such powers under Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 or rules made thereunder. Learned counsel is of the view that Election Ordinance is a special law, which overrides the provisions of C.P.C. He has relied on PLD 1986 SC 542 and 2007 CLC 610. (Election Tribunal Punjab). Their lordships in the Supreme Court of Pakistan in a case titled Haji Muhammad Ass/tar v. Malik Shah Muhammad Awan and others [PLD 1986 SC 542] have laid down as under:--- "The contention that the Election Tribunal, was possessed of the power of review on the strength of section 64 of the Act, is untenable because the power of review is possessed and exercised not as a necessary adjunct of the power to try a cause but as an exception to the principle of finality firmly embedded in the judicial system. A similar question arose recently in S.A. Rizvi v. Pakistan Atomic Energy Commission and another Civil Appeal K-277 of 1980 and Abdul Wali M.J. Makhdoon v. Government of Sindh and another Civil Appeal K-278 of 1980. The law provided that the Service Tribunal "shall, for the purpose of deciding any appeal be deemed to be a civil Court and shall have the same powers as are vested in such Court under Civil Procedure Code.' Power of review was held not to be included in the power to entertain and dispose of the appeal."
6. In yet another case titled Asif Nawaz Fatiana v. Walayat Shah and others (2007 CLC 610), Election Tribunal of Punjab has laid down as under:--- "The Representation of People Act, 1976, (Act No, LXXXV of 1976) lays down the procedure in sufficient detail. Section 52 and section 53 prescribe the method of presentation of the election petition, section 54 as to the parties to be joined, section 55 about the contents of the Election petition, section 56 procedure to be followed by the Commission after receipt of the election petition, section 57 entrustment of the petition to the Election Tribunal, section 58 deals with powers of transfer of petition vesting in the Commissioner, section 59 place of trial, section 61 appearance of parties/pleaders before the Tribunal, section 62 procedure before the Tribunal, section 63 dismissal of the petition for non-compliance of certain requirements during trial by the Tribunal. Section 64 is about the powers of the Tribunal. It lays down that "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 criminal Court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)". [Due to this importance it will be discussed in the later part of the order. Section 65 prescribes the procedure for evidence and examination of witnesses, section 66 Recrimination, section 67 the decision of the Tribunal upon conclusion of the trial. Section 73 about withdrawal of the petition. Section 74 abatement of petition on death of the petitioner. Section 75 deals with effect of death or withdrawal of respondent and giving ex parte decision. Then is an important provision, which is section 76. It is about failure of petitioner to appear and dismissal of petition for default. It reads as follows:--- "Where, at any stage of the trial of an election petition, no petitioner makes an appearance, the Tribunal may dismiss the petition for default, and make such order as to costs as it may think fit."
' No provision in the Representation of the People Act, 1976 (Act No, LXXXV of 1976) has been brought to my notice enabling or empowering the Tribunal to set aside such a dismissal for default or restore the petition once it has been dismissed under this section. That is perhaps, why the whole emphasis of the learned counsel for the petitioner was to invoke the provisions of the Code of Civil Procedure, 1908 on the strength of section 64 of the Representation of the People Act, 1976 (ibid). The contention however cannot be countenanced for multiple reasons. It has been noticed above that though there is section 64 (that the Tribunal will have "all the powers"), yet some specific provisions have been made by the legislature in its wisdom in the Representation of the People Act, 1976. One of them is section 76 specifically empowering the Tribunal to dismiss the petition for default. This was despite the fact that Order IX of the Code of Civil Procedure, 1908 empowers the Civil Court to dismiss a suit for default and take proceedings ex parte against the absenting party, restore the suit and set aside ex party orders/decrees on showing sufficient cause. The enactment of section 76 of the Representation of the People Act, 1976 is thus clearly a conscious departure from the procedure prescribed by the Code of Civil Procedure, 1908 otherwise there would have been no need to specifically empower the Tribunal to dismiss a petition for default as envisaged by section 76 of the Representation of the People Act, 1976. The second part of section 64 that the Tribunal "shall be deemed to be a criminal Court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of I898)" is also to be construed in the restricted sense for the purpose of the provisions mentioned therein.
7. The Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 deals with the election disputes from section 49 onwards. I can find an analogous provision in section 72, which provides that:--- "Where, at any stage of the trial of an election petition, no petitioner makes an appearance, the Tribunal may dismiss the petition for default, make such order as to costs as it may think
8. It is evident that section 76 of the Representation of the People Act, 1976, as enforced in Pakistan is similar to section 72 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The citations referred to by learned counsel for the non-applicants are, therefore, fully attracted in the instant case. The application for restoration of election petition is liable to dismissal, in view of the aforementioned reasons, which may be summarised again in the following manner:---
(i) That the case was fixed for hearing for 16-11-2013 when learned counsel for the applicant/ petitioner failed to appear before the court and the petitioner could not furnish a "sufficient cause" for non-appearance of his counsel;
(ii) Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 is a special law, which overrides the provisions of Code of Civil Procedure. Section 72 of the Ordinance provides powers to the Election Tribunal for dismissal of election petition for non-appearance of the petitioner but no provision to set aside such an order has been stipulated in the Ordinance. I have no reason to disagree wish the wisdom displayed by Election Tribunal Punjab in Asif Nawaz Fatiana's case [2007 CLC 610].
' It is, therefore, concluded that Election Tribunal is not vested with the powers to restore an Election for default of appearance of the election petitioner. The instant application for restoration is, therefore, dismissed. File be consigned to record.