ATIR MAHMOOD, J.---Brief facts of the case are that on 19.01.2017, the petitioner challenged the declaration of respondent No,2 (hereinafter called "the contesting respondent") as returned candidate through Election Petition No,9/2016 (hereinafter referred to as "the first petition"). After filing of the said petition, the petitioner noticed the omission of proper attestation on the verification clause of the election petition, therefore, he filed application under Section 73 of the Representation of the People Act, 1976 (hereinafter called the "ROPA") read with Order XXIII, rules 1 and 2 of the Civil Procedure Code, 1908 for withdrawal of the petition with the permission to file fresh one. The said application was dismissed by the Election Tribunal, Lahore (hereinafter called as "the tribunal") vide order dated 25.01.2017. On 27.01.2017, the petitioner filed another application under Section 73 of the ROPA for permission to withdraw the petition which was allowed subject to payment of cost of Rs,5,70,000/- vide order dated 22.02.2017. In the meanwhile, the petitioner filed second election petition on 26.01.2017 which was dismissed by the Election Commission (hereinafter called "the Commission") vide order dated 15.03.2017 holding that second petition was not maintainable. Hence this writ petition has been instituted.
2. Learned counsel for the petitioner inter alia contends that Election Commission has fallen in error in holding that the second petition was barred under Section 52 of the ROPA; that first petition of the petitioner was not decided on merit, therefore, no question of res judicata arises; that the second petition was filed within the time prescribed in the ROPA and that too, during the pendency of the earlier petition before the election tribunal, therefore, the bar contained in Order XXIII, rule 1 of the C.P.C. was not fatal to the right of the petitioner to re-file the election petition; that the Election Commission has trespassed its jurisdiction while passing the impugned order, therefore, this writ petition be allowed, the impugned order be set aside and the Election Commission be directed to transmit the election petition to the tribunal for its adjudication in accordance with law.
3. On the other hand, learned counsel for the contesting respondent has hotly opposed this writ petition and fully supported the impugned order.
4. Arguments heard. Record perused.
5. The moot point in this case is as to whether the second petition during the pendency of the earlier petition was barred.
6. Admittedly, the petitioner filed application under Section 73 of the ROPA for withdrawal of the Election Petition which was dismissed by the tribunal vide order dated 25.01.2017 with the observation that it had no authority under the ROPA to grant permission to file fresh one. During the pendency of the first election petition, the petitioner, on 26.01.2017, filed another election petition.
After filing the second petition, the petitioner again filed an application under Section 73 of the ROPA for withdrawal of the first petition. On this application, notice was issued to the respondent for 30.01.2017 but the same remained pending till 22.02.2017 when it was allowed by the election tribunal subject to payment of cost of Rs,570,000/-. In the meanwhile, the Commission dismissed the second election petition vide impugned order dated 06.02.2017 on the sole ground that the second petition was not maintainable in the presence of the first petition.
7. In this case as well, the petitioner after having the first election petition noticed that proper attestation from the Oath Commissioner on the verification clause of the petition was omitted, therefore, he resorted to filing the application for filing fresh petition. The tribunal, however, presumed that it did not have power to grant permission to file fresh one as no such power or authority has been given to the tribunal under Section 73 of the ROPA. I have gone through the said provision which undoubtedly does not mention availability of any such power with the tribunal. But at the same time, no bar by the said provision has been imposed upon the tribunal to grant such permission. The. ROPA is a special statute. In the special statutes, when there is something not barred, it is presumed, that there is an implied- permission. In this regard, I am fortified by the dictums laid down in case Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCM R 1). Furthermore, if the petitioner has made some errors in filing the petition, he cannot be stopped from correcting such errors within the applicable law.
8. While adjudicating upon the election petitions, the tribunal has to adopt the procedure of the Civil Procedure Code, 1908. The election tribunal is also at liberty to adopt any course of action to regulate the proceedings aimed at to promote the justice instead of following the technicalities of the C.P.C. Where there is any clash between the provisions of the special statutes and that of the C.P.C, the provisions of the former will definitely take precedence over that of the latter. However, the unoccupied fields of the special statutes can be filled in by the C.P.C., as nearly as possible. Any prohibition given specifically in the special statute or any express provision of the special statutes will be given preference to that of the C.P.C. Undisputedly, there is no bar on filing of fresh petition in the ROPA. Under Order XXIII, Rule 1(2)(b) of the C.P.C., the court has been given power to grant permission to withdraw the suit with permission to file fresh one. To my mind, this provision has been provided just to facilitate the plaintiff of a certain suit to rectify the defects in his plaint but this is subject to question of time limitation or any other limitation provided by law. The same principle can be applied in the election matters as well because no provision in contravention thereto has been provided in ROPA. Therefore, the tribunal could, in my view, allow the petitioner to withdraw the first election petition with permission to file fresh one subject to question of limitation of time or any other limitation provided by law and it has wrongly held that it had no such power.
Reliance is placed on the dictums laid down in cast, Muhammad Afzal v. Niaz Ahmad and another (1999 M LD 1744 Lahore).
9. The procedure of filing of the election petition has been given in Sections 52 to 56 of the ROPA.
Procedure regarding forthwith dismissal or referring the election petition to the election tribunal has been given in Section 56 of the ROPA which reads that: "56. Procedure on receipt of petition by the Commissioner.--
(1) If the Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with, the petition shall be dismissed fOrthwith.
(2) If an election petition is not dismissed under subsection (1), the Commissioner shall refer it for trial to a Tribunal.
It is absolutely clear from the clause (1) of Section 56 that if the Commissioner finds that the petitioner, while filing the election petition, has not fulfilled the requirements of Sections 52 to 54 of the ROPA, he may dismiss the election petition forthwith. The only thing which would call the Commissioner to dismiss the election petition is the contravention of the provisions of Sections 52 to 54 of the ROPA. No other ground has been given in Section 56 of the ROPA which may provide basis for immediate dismissal of the election petition. It has been noted in clause (2) of Section 56 that if no such fault is noted by the Commissioner, he will refer the petition to the tribunal for the trial. In the instant case, there is no allegation upon the petitioner that he could not fulfill any of the requirements mentioned in Sections 52 to 54 of the ROPA and only ground which has been taken by the Commission to dismiss the second election petition filed by the petitioner is that the second petition is not maintainable. There is no such bar provided in Section 56 or anywhere in the ROPA on filing the second election petition. Even, no such embargo has been put in the C.P.C. on filing of the second suit wherein under Section 10 has been desired by the legislature that the proceedings in the second suit will be stayed until and unless the first suit on the same subject is decided by the court. Meaning thereby the second suit can be filed by the plaintiff in presence of the first suit but the proceedings in the second suit will be kept in abeyance till decision of the first suit. Keeping this ratio as well as non-provision of any bar on filing of the second petition in the ROPA in view, I am of the opinion that the second petition was not barred and the same could be filed in presence of the earlier petition. Therefore, the Commission has erred in law while holding that the second petition in presence of earlier one is not maintainable.
10. Another aspect of the matter is that under Section 56 of the ROPA, it is the only jurisdiction of the Commissioner to dismiss the election petition in case of contravention of any provision of Sections 52 to 54 of the ROPA but in the instant case, such power has been used by the Commission which cannot be said "the Commissioner" in any manner as the Commission and the Commissioner have separately been defined in Sections 2(v) and 2(vi) of the ROPA respectively. Therefore, the Commission has trespassed its powers and dismissed the election petition using the jurisdiction of the Commissioner, therefore, the impugned order is against the law, as such, it cannot sustain.
11. For what has been discussed above, this writ petition is allowed, the impugned order is set aside and the Commissioner is directed to refer the matter to the election tribunal for its trial where the question of limitation will be looked into.