FAHIM AHMED SIDDIQUI, J.---The appellant has challenged the verdict of the learned Election Tribunal (Additional District Judge, Kamber-Shandadkot) dated 29.02.2016, whereby the election petition filed by the appellant was by consent disposed of with directions to the Returning Officer for recounting of the ballot papers of polling station G.P.S (male) Warrah Town. Through the aforesaid direction, the Returning Officer has to issue a fresh result sheet after recounting of the total votes cast in the said polling station.
2. The facts of the case are that the appellant contested the Local Government Election, 2015, held on 31-10-2015 and succeeded for the seat of Member of the Town Committee from Ward No. 2. The Election Commission of Pakistan declared him as returned candidate by issuing notification dated 3rd December 2015. The respondent No. 6 filed election petition with the main prayer for the recounting of the ballot papers in respect of polling station G.P.S Warrah for the seat of Member Town Committee Ward-2, Taluka Warrah. During the proceedings, the said election petition was allowed on the basis of the statement of no objection given by the counsel for appellant.
3. The learned counsel for the appellant preferred his arguments at length. His main contention is regarding the maintainability of the election petition. According to him, as per law, the respondent is required to file the election petition against all those candidates who had taken part in the election, but he avoided to do so. The election petition was filed against the appellant only, but four other candidates also ran in the election for the same post. He submitted that the petition and annexures would have been verified before the oath commissioner as required under the election laws but it was not so verified. According to him, the election petition was also not maintainable because before filing . the petition, notice was not served upon the appellant. He submitted that there was a clear-cut violation of Rules 61, 62 (3) and 64 of the Sindh Local Council Election Rules, 2015. According to him, the election petition was required to be dismissed in limine instead of deciding by obtaining consent. In response to a query, he submitted that before the learned Election Tribunal some other counsel was appearing, who have given consent on behalf of the appellant. He alleged that the appellant had not given instructions to his counsel before the tribunal for such consent. He took reliance from the following cases of superior Courts. i) Naeem Hussain Chattha v. Tawakkalullah and another (1997 CLC 192). ii) Malik Umar Aslam v. Sumaira Malik and another (PLD 2007 Supreme Court 362). iii) Zia-ur-Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015). iv) Inayatullah v. Syed Khursheed Ahmed Shah and others (2014 SCMR 1477). v) Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehar Khalid Mehmood Sargana and others (2015 SCMR 1585).
4. Conversely, the arguments of learned counsel for the respondent are based on the consent given before the tribunal. According to him as the order of learned Election Tribunal is a consent order; therefore, it is not appealable. He submitted that if the consent was given without the instructions of the appellant, then appellant had to take action against his lawyer. He pointed out that nothing was said regarding maintainability before the tribunal as such the same cannot be agitated in the appeal now. According to him, the instant appeal is hit by Article 114 of Qanun-e- Shahadat, as the law of estoppel comes in the way.
5. The learned Assistant Attorney General, appearing for the official respondents, submitted that the order passed by the learned Election Tribunal is correct and proper and being a consent order the same is not appealable.
6. I have scanned the relevant record in the light of arguments advanced at the bar. I am also enlightened from the citations relied upon during arguments. In the instant matter, the grave concern of the appellant is that the consent given before the lower forum was without his instructions, as such, he considers that the same is not binding on him. The appellant feels severely prejudiced from the order passed by learned Election Tribunal under the consent given before the learned Election Tribunal on his behalf. He is now trying to get rid of the consent order by challenging the maintainability of the Election Petition before the tribunal below. Now, I would like to examine the consent order and also that after giving consent, what is the legal worth of objection raised by the appellant regarding maintainability of the petition before the tribunal.
7. The appellant does not deny the consent given before the learned Election Tribunal by his counsel, but now he is trying to back out of the said 'consent' by reasoning that the same was not under his instruction. It is worth mentioning that at the time of disposal of the election petition under the consent, the appellant was himself present with his counsel. He did not agitate about such consent before the tribunal at that time even afterwards. If the former advocate of the appellant has given "consent" on his own accord, then the proper procedure was that the appellant has to agitate either at the same time or without further delay by filing a review application before the same Election Tribunal. It is also worth mentioning that the appellant has not taken any action against his former counsel. One of the oldest case of the sub-continent in this respect is the case reported as Ashootosh Chandra v. Tara Prasanna Roy (1884 ILR 10 Cal. 612), and I think it is the leading authority upon the question. In this case, it was ruled by a division bench of Calcutta High Court that for the purpose of setting aside a consent decree, there are two available modes of procedure, namely, first by a suit and, secondly, by review of the judgment sought to be set aside.
After amendment of C.P.C. and insertion of Section 12(2) in the book of the statute, now it can be said that either it can be done by filing an application under Section 12(2) in the same case or through a review application. It is, therefore, safely can be said that without approaching the trial court in the event of any fraud or mistake regarding the consent decree, no appeal or revision can be entertained against a consent order of the learned Election Tribunal. It is an established principle of law that a consent order is not appealable. In this respect, reliance may be taken from a case reported as Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), the Hon'ble Supreme Court held as under:- "We are of the opinion that appeal is a statutoly right that can only be exercised if the Statute has provided so as a matter of right. Section 96 of C.P. C. can be cited for reference, which provides that an appeal lies against all decrees passed by a court in the exercise of original civil jurisdiction, except consent decree, and decree passed in suit filed under section 9 of the Specific Relief Act, 1877, and a final decree, the preliminary decree of which is not challenged."
Similarly, in the case reported as Amjad Arif v. Muhammad Ashraf Shagufta and another (PLD 1996 Lahore 711), it is held as:-- "The appeal against the compromise decree was not competent, and the remedy available to respondent No.2 was through an application under section 12(2), C.P.C., but as it was fully aware of the merits, therefore, the correct remedy was not pursued."
8. The learned counsel for the appellant has raised the question of maintainability on certain technicalities, but I am of the view that it is also raised at a belated stage because such objection was also firstly required to raise before the Election Tribunal. It is my considered view that while passing such consent order, the technicalities raised by the present learned counsel for the appellant were considered but not entertained especially when the respondent (present appellant) has given consent regarding the prayer clause of the petition. The question of maintainability raised on behalf of the appellant are merely technical, and a consent order, if it is patently not illegal on account of jurisdiction etc., cannot be set-aside merely on technicalities. A consent decree or order has in it the element of both a command and a contract, as such obligation to act upon it becomes indispensable legally and morally. While distinguishing a consent order with merely an order of a court, the Privy Council as early as 1929 in a case reported as Charles Hubert Kinch v. Edward Keith Walcott and others (AIR 1929 Privy Council 289) held as:-- "The only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; the second stands until and unless it is discharged on an appeal."
9. In the present case, the consent was given regarding "recounting of votes in a particular polling station", and it is not against the substantive law, therefore, the appellant cannot be allowed to use some technicalities as a tool of refuge from such a 'consent' given on his behalf before the learned Election Tribunal by his counsel in his presence. The only way of getting rid of this consent order is to get another order from the same court either by invoking Section 12(2), or under the agreement of the parties otherwise the same must be acted upon.
10.The learned counsel for the appellant has relied upon a teaming number of case laws in which question of maintainability is discussed in the light of certain provisions the Representation of the People Act, 1976, and Rules made thereunder. Perhaps, he has relied on those citations only because that some of the provisions of the Sindh Local Councils (Election) Rules, 2015, are compatible to the Representation of Peoples Act, 1976. However, I am of the view that the citations referred by the learned counsel for the appellant are not helpful for him because none of them pertains to a situation where Election Tribunal has passed an order under the consent of parties, as such the same are not relevant to the case in hand.
11.In the light of the above discussion, the instant Election Appeal D is declared as meritless, hence dismissed.