' NAIMUDDIN, J.-This Constitution Petition under Art. 199 of the Constitution is directed against the order dated 10th January, 1980, passed by the Election Tribunal in the following circumstances.
2. The petitioner, Respondent No, I and 10 other persons contested election for a Seat in the Karachi Metropolitan Corporation from Constituency No, 37-U. C. 88, Karachi. Respondent No, 1 by the Gazette Notification dated 3rd October, 1979, was declared successful from the said constituency.
3. The petitioner on 7th October, 1979, filed an election petition, being Petition No, 29 of 1979, challenging the election of respondent No, 1 who was declared to have 830 valid votes as against his 828 valid votes on the ground of count of votes, as according to the petitioner, some of his valid votes were not counted and some of the invalid votes of respondent No, 1 were counted.
4. The Election Authority, respondent No, 3, after hearing the petitioner admitted the petition and in terms of provisions of rule 68 (2) of the Sind Local Council (Election) Rules, 1979 (hereinafter called the Rules) passed on the petition for trial to the Election Tribunal, respondent No, 2.
5. Before the Election Tribunal respondent No, 1 raised the objection that the election petition was not maintainable on the following grounds :-
(i) That the provisions of rule 66 of the Rules were not complied with inasmuch as the remaining contesting candidates were not joined to the election petition as respondents,
(ii) That the Election Petition and Schedules annexed were not verified by the petitioner as required under rule 67 of the Rules.
6. To meet the objections raised by respondent No, 1, the petitioner on 25th October, 1979, filed an application under 0. 1, r. 10, C. P. C. Praying for permission to join the remaining candidates as respondents to the election petition and to sign the memorandum of petition, although according to the application, the annexures to the election petition was signed by the petitioner. A copy of the application was permitted by us to be brought on record of this petition by consent.
7. The Election Tribunal however, by the Order dated 10th January, 1980 dismissed the election petition, holding the same not maintainable due to non-compliance of the mandatory provisions of rules 66 and 67 of the Rules. As regards the application, the Tribunal stated in the order that the same stood dismissed.
8. Aggrieved by the aforesaid Order the petitioner has filed the present petition.
9. We have heard Mr. Ibadad Yar Khan Advocate for the petitioner, Mr. Usman Ghani Rashid Advocate for respondent No, 1 and Mr. Anwar Qadri, Advocate for respondents Nos. 2 and 3.
10. It was contended by Mr. Ibadat Yar Khan that the Election Tribunal had no jurisdiction to dismiss the petition for non-compliance of rules 66 and 67 of the Rules for the authority to dismiss the petition for non-compliance of the said rules vests in the Election Authority under rule 68 ibid once the Authority under sub-rule (2) of rule 68 of the Rule had referred the election petition to the Election Tribunal for trial, the same could not be dismissed on the grounds on which the Election Authority only could dismiss the same. It was further contended the provisions of C. P. C. Were made applicable to the proceedings before Election Tribunal and accordingly, the petitioner had made an application under Order I, rule 10, C. P. C. For joining the remaining contesting respondents and for signing the election petition. But the Election Tribunal did not consider the application at all and thus failed to, exercise jurisdiction vested, in him.
11. In reply to the first contention it was submitted by Mr. Usman Ghani Rashid that the power of dismissal of application for non-compliance of the mandatory provision of rules 65, 66 and 67 of the Rules could also be exercised by the Election Tribunal and accordingly the Election Tribunal had exercised the same. It was argued by him that since at the stage of admission of petition no notice was issued to respondent No, 1, therefore, if any objection was available to him to the maintainability of the election petition then same could be raised only before the Tribunal. In support of the submission he relied on an unreported judgment of a Division Bench of this Court in Constitution Petition No, D-594 of 1980 (Muhammad Hanif v. Provincial Election Authority and others). He particularly referred to the following observations :- "The close study of section 39(2) and (3) of the Sind Local Government Ordinance, 1979 clearly shows, that the Legislature has made applicable the law and procedure laid down by Respresntatives of Peoples Act, 1976 to the Election Tribunal, under the Sind Local Council Election Rules, 1979 and as such the Election Tribunal even on the basis of the above-mentioned provisions of the Representatives of Peoples Act, 1975 is fully competent to consider the objection raised under rule 66 of the Sind Local Council Election Rules, 1979 and disposed of such objection in accordance with rule 68(1), which empowers the Election Authority to dismiss the election petition for non- compliance with rule 66 of the Sind Local Council Election Rules, 1979."
' As regards the second contention it was submitted by Mr. Usman Ghani Rashid that once the Election Tribunal had upheld the objection to the maintainability of the petition it was not necessary for it to consider the application under 0. I r. 10 on merits and, therefore, there was no failure of exercise of jurisdiction vested in the Election Tribunal. Now taking up the first contention we may state that in view of the judgment of this Court in Muhammad Hanif's case, we were not inclined to agree with the learned counsel for the petitioner. However, while going through the judgment in Petition No, 594/1980, we found a copy of the Order of the Supreme Court dated 11th April, 1981 passed in C. P. S. L. A. No, K-48 of 1981 available on the file, which was filed against the said judgment. From this order it is clear that the above-quoted view of the Division Bench was not accepted and the contention of the learned counsel for the petitioner before us which was also advanced in that Petition had prevailed there. We may here quote the relevant observation from the judgment of the Supreme Court :- "The learned counsel for the petitioner contends that the High Court was in error in giving its opinion, as it did, as to the non-maintainability of the election petition ; and in support of it he relies on rule 68 which reads :- "68. Procedure on receipt of petition by the Collector. -(1) If the Election Authority is satisfied that all or any of the preceding provision have not been complied with, the Petition shall be dismissed forthwith.
(2) If an election petition is not dismissed under sub-rule (1), the Election Authority shall refer it for trial to a Tribunal.
He, therefore, contends that it was not open to the Election Tribunal to go into the question of maintainability of the petition as that objection had to be considered anu decided by the Election Authority ; and if the Election Authority did not dismiss the petition for this reason, the Election Tribunal had no jurisdiction to review that decision. A bare reading of this Rule leads us to conclude that this "submission has substance. It was for the Election Authority to consider whether the Election Petition was or was not properly constituted in accordance with rule 66 but once it held that it was so properly constituted then in terms of sub-rule (2) it was 'obligatory to ,refer it for trial to the Election Tribunal."
12. In view of the above dictum of the leaped Judges of the Supreme Court, the first contention of the counsel prevails and therefore, the order of the Election Tribunal impugned in this petition is declared to have been passed without lawful authority and is consequently declared to be without legal effect.
' Since the application under 0. I, r. 10, C. P. C. Was not considered at all it will be open to the Election Tribunal to consider and decide the same if pressed. The Election Tribunal is now, therefore, directed to dispose of the petition on merits after giving the parties opportunity of hearing.