GUL MUHAMMAD KHAN, J.-The petitioner, who was elected against a special interest seat of a peasant, from Zila Council Jhang, was de-seated by the Election Tribunal vide order dated 22nd July, 1980, on the grounds that-
(i) he had failed to appear to make a statement under Order X, rule 4, C. P. C.
(ii) he was disqualified for having owned more than 5 acres of agricultural land ;
(iii) election of the special interest seat could not be held under rule 49 of the Punjab Local Councils (Election) Rules, 1979, prior to the election of non-Muslim seat.
He has challenged that order through this petition.
2. The facts giving rise to it are that the petitioner was elected against the special interest seat of a peasant, to the District Council Jhang, on 12th December, 1979. It was notified in the Gazette on 16th March, 1980. Earlier, on 21st January, 1980, respondent No. 2 challenged the said election in Writ Petition No. 570-81, but that was dismissed, on the ground that he had an alternative remedy open to him.
3. Consequently, on 21st February, 1980, respondent No. 2 filed an election petition under section 24 of the Punjab Local Government Ordinance, 1979. In his written statement, filed on 15th May, 1.980, the petitioner denied all the allegations raised against him. On the same day, the Tribunal desired to record his better statement under Order X, rule 4 of the C. P. C., and adjourned it to 22nd May, 1980. The Tribunal observed on the next date i. e. 22nd May, 1980, that no better statement had been filed. It is to be noted that there was no direction as to on what point such a statement was to be made generally, a better statement is to be recorded by the Presiding Officer. Anyway, the Tribunal directed for the appearance of the petitioner in person. On the next date i. e. 5th June, 1980 the petitioner did not appear and an objection petition was filed on his behalf. The Tribunal asked the respondent to file first his reply before recording better statement. He also directed both the parties to appear in person. The reply of the respondent wag received on 22nd June, 1980. It was then stated by the petitioner's counsel that the better statement of the parties may be necessary only if their counsel were not in a position to answer the questions put to them. Consequently, an adjournment was allowed to let the counsel go through the reply and other documents.
4. On 1st July, 1980, when the case came up, the Tribunal heard arguments of the parties and overruled the plea of the petitioner. He directed that it was necessary in order to speedily dispose of the matte that better statements of both the parties were recorded. He, therefore, directed them to appear on 10th July for the purpose. Parties with their counsel appeared on that day. A request was made on behalf of the petitioner for adjournment as he wanted to procure certain documents.
It was allowed by the Tribunal and the case was adjourned to 22nd July for production of documents and recording better statements. The counsel for the petitioner alone appeared on that date and made a request for adjournment, on the ground that the petitioner was not able to appear, as his sister had fallen ill and he had to take her to Nishter Hospital, Multan.
5. The learned counsel for respondent No. 2 objected to the request and filed an affidavit, supported by two affidavits of two others to the effect that the petitioner was seen in Jhang at 8-00 a.m. On that day. The Tribunal accepted the affidavits on the ground that there was no counter- affidavit. He further observed that even the request for adjournment had not been made by regular application and added as under :- "I have been led to believe that it is a deliberate attempt on the part of the respondent to avoid appearance in the Court for as long as it is possible for him, since he knows that be has no case and is bound to lose."
After noting another plea of the respondent, the Tribunal further observed; "As the respondent has persistently and obstinately defied the direction of the Court about personal appearance for making a better statement, I proceed to pronounce judgment against him, acting under Order X. Rule 4(2), C. P. C. Absence of Safdar Sial may be treated to imply that he is unable to repel the petitioner's claim and is unable to establish that he is a peasant (within the meaning of section 3 (XXVIII) of the Ordinance) qualified to contest election respecting the seat in question. According to document (Annex. `A') placed on record by the petitioner the agricultural land still standing in the name of Safdar Ali Sial is 40 kanals and 6 marlas."
6. The Tribunal also went into the merit of the case, considered the material on record and held that the petitioner was a Journalist and not a peasant. 1n addition, he found that as the election to a special interest seat could not be held before the minority seat election, the petitioner's election was bad in law. He therefore, set aside the entire election and refused to declare the respondent No. 2 elected.
7. The main grievance of the learned counsel for the petitioner is that the Tribunal; in fact did not and in law could not proceed to announce judgment against the petitioner without relying on any proved material on record. He has also produced a certificate from the Deputy Commissioner showing that he is holding 39 kanals 9 marlas of land and; therefore, is not disqualified even on that score. The learned counsel laid much emphasis on this point for the reason that the.
Document relied upon by the Tribunal showing that the petitioner had just over 40 kanals of land had neither been proved on record nor was the same authentic in any other way. It does nor even show who prepared it and when. He further submitted that the petitioner had not been given any opportunity to file a counter-affidavit to rebut the baseless allegation of the respondent about his absence. A certificate of Dr. Ch. Muhammad Saleem, Medical Officer, Rural Health Centre, Ahmad Pur Sial dated 21st July, 1980, about the illness of wife of Qamar Abbas (petitioner's sister) and an affidavit of Zahoor Ahmad Qureshi, Advocate, that the petitioner was present at Ahmad Pur on 22nd July because of illness of his sister, have been placed on record in support.
8. As regards the findings of the Tribunal under rule 49, it is submitted that there was no evidence whatever on record to "support the plea that no election of minority seat took place earlier. He pleaded- that the said plea had never been raised in the election petition and could not be gone into by the Tribunal. This part of the contention" of the learned counsel is correct though we find that an objection to that effect had been taken in replication of the respondent.
9. We have heard the learned counsel for the parties at length and find that this case must be sent back for a fresh decision in accordance with law. It is to be noted that the Tribunal was persuaded to exercise his discretion under Order X, rule 4, C. P. C. Only for the reason that "the petitioner had "persistently and obstinately" defied the direction of the Court about personal appearance, to make a better statement". The record as discussed in paras. 3 and 4 above, shows that this observation is incorrect. On 22nd May, the petitioner was directed to appear in person. On 5th June, he filed his written objection. This objection was not found frivolous and so the respondent was asked to file reply. The Tribunal also thought it necessary to resolve the objection. It was finally settled on 1st July against the peti--tioner. The petitioner then did appear on the next date i. e. 10th July, 1980 when the case was adjourned to the fateful day.
10. It is to be noted that an order under this provision can be passed only if the Court finds that there is a material question relating to the suit that has to be answered by such party or his pleader. In the order dated 1st July, 1980, what the Tribunal wanted to know from better statement was `whether the land in petitioner's name exceeded the limit fixed for a peasant.' The petitioner had denied that in his written statement. Undoubtedly, he would have to rely on documentary evidence to answer that question in giving exact area. It is also in the order that he had sold or transferred a part of his holding. According to the document relied on by the Tribunal, the holding of the petitioner fell just on the margin. In the circumstances, a better statement could not be a substitute for documentary evidence.
11. The above provision was considered in Sadeshwar Narain v. Qadir Bakhsh and others (1) a Division Bench held that before a legal order can be passed against a party directing him to appear under the provisions of Order X, rule 4, it is necessary that Court should find, in the first place, that there are material questions relating to the suit which must be answered either by such party or by his pleader and when such party has a pleader it is only when-the pleader is unable or refuses to answer those questions that the Court. Under the provisions of Order X, rule 4, may direct the party to appear in person, to, answer. The record shows that the question was not put to the counsel and as disclosed later it was erroneously presumed that the original counsel was some one else. Again in Sodhi Sadhu Singh & Sons and others v. Dal Chand Tulsi Ram and another (2) a Division Bench of this Court held that when several adjournments were given for appearance to a party and each time he was warned that in case the party fails to appear, action may be taken under Order X, rule 4, if neither the party nor its pleader or agent appeared to answer the question.
The Court felt the necessity of putting the question before taking action but ignored it in the circumstances of that case.
(1) AIR 1918 Oudh 429(2) AIR 1933 Lab. 922
12. Again, the Court is bound to hold that the party failed to appear without lawful excuse. In that view of the matter, the Tribunal should have first ascertained if the absence of the petitioner on 22nd July, 1980 was without lawful excuse. Obviously, this needed an inquiry as, on the face of it, his excuse that he had to take his ailing sister to Nishter Hospital was not unlawful. Further, the petitioner had a right to produce evidence or at least file counter-affidavit, the necessity of which was felt by the Tribunal also.
13. It was held in Pearee Mohun . Bose v. Hurish Chunder Ghose and others (1972) 17 Suth W R 141by a Division Bench that the dismissal of a suit for the plaintiff's non-attendance is a highly penal matter and the punishment ought not to have been inflicted unless a distinct order and open proof is there that the plaintiff has deliberately disobeyed the Court's order. The Court further observed that, instead of dismissing the plaintiff's suit, on account of his pleader's disability, on the day of the trial, to answer and absence of his witnesses, against whom issuance of further process had been applied for, the proper course for the Judge was to grant the plaintiff certain time to produce certain evidence on the point, upon payment of all the defendant's costs of adjournment. Thus the decision by the Tribunal on the same day, while relying merely on the affidavits produced by the respondent, was against the principles of natural justice and in violation of rule 4(2) of Order X, C. P.
C. The impugned order thus cannot be maintained on that short score.
14. The observation by the Tribunal : "I have been led to believe that it is a deliberate attempt on the part of the respondent to avoid appearance in Court for as long as it is possible, since he knows that he has no case and is bound to lose" may be in appropriate and unwarranted, particularly when there was no authentic or admissible material on record and he could not apply his mind to the facts of the case. Another observation of the Tribunal after noting the presence of Mian Muhammad Zahoor Lali, Advocate that "absence of original counsel has not been explained" is also incorrect. We have gone through the two power of attorneys of the two counsel for the petitioner and find that Mian Zahoor Lali was the original counsel and it was under his signatures, that the written statement was filed on 15th May, 1980. His power of attorney is dated 17th April, 1980 while that of the other counsel Mr. Muhammad Manzoor Khan, the other learned counsel is dated 26th May 1980. Consequently, the question should have been put to him for an answer.
15. According to the learned counsel for respondent No. 1, the Tribunal was empowered to pass an order against the petitioner even though the record did not justify. His contention is that the observations of the Tribunal on merit of the case are mere surplusage and must be ignored. This plea is factually as well as legally incorrect. The impugned order shows that though the Tribunal made the above observations yet he did not act as such under Order X, rule 4(2), C. P. C. This provision reads as under :-- "If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
It will be seen that the Court has two ways open to it and is thus not obliged to pass an order under Order X, rule 4(2), C. P. C. A discretion thus vests in it to act one way or the other only in a judicious manner. Thus in order to pronounce judgment, the Court must have the necessary material before it.
16. According to section 2(9) of the Civil Procedure Code, judgment means the statement given by the Judge of the grounds of a decree or order. Order XX, rule 4(2) provides that judgments of a Court shall contain a concise statement of the case, the points for determination and the decision thereon. The above provisions thus make it abundantly clear that the judgment pronounced against the absenting party under Order X, rule 4(2) is not a penalty for his absence but a penal action not to permit him further opportunity so as to decide the dispute on the basis of the facts and the circumstances of the case. In this view of the law, the plea of the learned counsel for the respondent is absolutely misplaced. The Tribunal thus rightly proceeded to discuss the material on record and it was not a surplusage in any way to be ignored.
17. The other way open to the Tribunal was to proceed under Order IX, rule 6, C. P. C. It was held in Thakurain Dhiraj Kuwar v. Sarju Narain Singh (1), by a Division Bench that Order VIII, rule 10 applies only when it is specifically required by the Court to file a written statement and not to a general direction in the summons that such a written statement may be filed. It was, therefore, hell that the proceedings ought to have been taken under Order IX, rule 6, in case of general default. It may be noted here that the penal provision in Order VIII, rule 10 also lays down that in case of default the `Court may pronounce judgment against him'.
18. One may also refer to Order VIII, rule 12 which entitles the Court to strike off defence in case of default. It reads as under :- "Consequences of failure to file address.-Where a party fails to file an address for service as .Provided in the preceding rule, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended."
This provision which is more severe has been considered by the Supreme Court in Shamroz Khan v.
Muhammad Amin (2). The observations of the learned Judges may be reproduced with advantage :- "After reviewing the entire case-law including judgments of the English Courts, the learned Judges of the Full Bench overruled the view taken in Muhammad Akbar's case and held that words "shall be liable to a fine" did not make it incumbent upon the Courts to impose a fine. Whilst we agree with the view of the Full Bench, we have referred to this judgment, because it is not disputed that it has been consistently followed thereafter by the Courts. Now when a Legislature uses in a Statute a legal term which has received a judicial interpretation, it is to be presumed that the term has been used in the sense in which it has been judicially interpreted, unless a contrary intention appears from the Statute. There is no intention to the contrary either in Order VII, rule 19 or in Order XII, rule 8 and further nothing turns on the fact that Karo's case related to the Penal Code whilst the said words are to be found in the Civil Procedure Code. Accordingly, on this ground also, we agree with the view taken by t' High Court."
(1) AIR 1925 Oudh 567(2) PLD 1978 SC 89
19. Another portion of the judgment at page 96 about Order IX, rule 6(1) is as under :- "This means that the Court may proceed ex parts and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes off' the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents."
20. This Court has also considered the effect of Order VIII, rule 10 in Bilqees Begum v. Ali Turab (1), to hold that pronouncement of judgment in the absence of evidence to support plaintiff's .Case is improper. The same view was taken by a Division Bench in Nisar Ahmad v. Habib Bank (2). One of us (Gul Muhammad Khan, J.), also held the same view in Begum Akhlaque Hussain v. Saghir Ahmad (3).
21. As regards the contention about rule 49 we have gone through the record produced before us to see that no such allegation had been raised by respondent No. 2 in his election petition before the Tribunal. The objection came later in the replication. A decision on it, however, could be given only in the present;, of evidence but we do not find anything on the record to support that the election of the present seat took place prior to the elections of a non-Muslim seat. In this view of the matter, we cannot appreciate as to how the learned Tribunal came to the same conclusion though there was no such evidence before him.
For the reasons stated above, we declare the impugned order dated 22nd July, 1980 to be without lawful authority and of no legal effect. This case is, therefore, sent back to be decided afresh by the Tribunal. As it has already taken long time and there is a question of representation in the District Council we direct that it must be disposed of finally within a period of one month from the date when the copy of this judgment is produced before the Tribunal. The parties are left to bear their own costs.
(1) 1980 CLC 931 (2) 1980 CLC 981
(3) 1980 CLC 1892