This application. Has been filed by the petitioner for restoration of the main Petition No. 125 instituted under section 21-A of Ordinance VI of 1979 which was dismissed for non-prosecution by our order, dated 1-3-1980. This miscellaneous application was filed on 2-3-1980 i.e. The day following the date on which the main petition was dismissed.
2. The reasons given for seeking restoration are that the petitioner could not reach the Court on account of the fact that on 1-3=1980 he had to attend the funeral of one of his relations, whilst his learned counsel in the early part of the day had gone to the Cathedral High School for admission of his child where he was delayed on account of the absence of the Principal and as he returned back to Court he was called in the Court of his Lordship Mr. Justice Zakiuddin P.1 and then in the Supreme Court .In another case where he remained busy for a considerable time and on reaching this Court he learnt that the case had already been dismissed . For non-prosecution. It has also been averred that the Clerk of the learned counsel was suffering with fever and was not attending the Court on that day. Reason of absence, of the petitioner though indicated in the application has been substantiated by his affidavit subsequently filed by the petitioner to the reply filed by the respon-- dent to this application. In support of the application as originally instituted the learned counsel filed his own affidavit and also annexed therewith the extract from his diary to show the list of his cases fixed before the High Court and Supreme Court on 1-3-1980.
3. This application has been resisted by the respondent and in his reply he has not only controverted the contents of the application on merits but has also raised preliminary objection to the effect that the application for restoration is not competent there being no provision in the Ordinance to that effect and on the ground that it was neither submitted by the petitioner nor signed by him.
4. Rejoinder to this reply was filed by the petitioner as already indicated above. On 27-4-1980 the following two issues were framed :-
(1) Whether the Election Authority has jurisdiction to restore a petition dismissed for non- prosecution ?
(2) Whether there are sufficient grounds for restoration of the petition ?
Both the learned counsel had agreed that these are the only two issues which arise in the controversy and that they do not want to lead evidence and would place reliance on the affidavits and documents already placed on the record. Detailed arguments have been heard on the controversy involved extending to a number of days.
5. The learned counsel for the petitioner contended that the Election Authority having dismissed the petition for non-prosecution and the applica--tion for its restoration having been filed on the day following the day of dismissal, the Election Authority has not only statutory power to restore the same, but it can do so even in the exercise of inherent powers which vest in every Tribunal to deal with the situation like the one that has arisen in the case in hand. Elaborating his contention the 'earned counsel submitted that soar as the statutory powers are concerned, these can be spelt out from the provisions contained in section 15 (7) and section 17 of the Ordinance read with section 141 and section 151 of the Code of Civil Procedure.
6. The learned counsel also argued that if it be assumed that the Election Authority cannot restore the petition since there is no specific provision in the Ordinance in that behalf, then equally the Election Authority could not have dismissed the petition for non-prosecution as there is no provision to that effect either. He continuing the argument submitted that since the Election Authority had dismissed the petition for non-prosecution it would be deemed to possess, all incidental powers including that of restoration thereof on sufficient case being shown. He relied upon Hussain Bakhsh v. Settlement Commissioner (PLD1970SCI) to submit that Civil Procedure Code regulates civil proceed--ings before every forum, and the proceedings before the Election Authority also are of civil nature as there is an assertion or enforcement of a civil right therein.
7. As to merits of the case the learned counsel for the petitioner con--tended that sufficient reasons have been advanced for non-appearance of the petitioner and the counsel on the date the petition was dismissed. It was urged that the petitioner could not appear as he was to attend the funeral of a relation and was under the bona fide impression that the learned counsel would himself appear especially when the case was fixed only for filing written statement and petitioner's presence was not required in the ordinary course even. As regards the absence of the learned counsel for the petitioner it was submitted that initially he was busy in his personal matter up to which time otherwise also the case was not to be taken up and that in the latter part of the day, when the case was called out he was busy before the High Court in connection with his professional engagements and having been called immediately on arrival in the Court he could not inform the Election Authority about his occupation especially when his clerk was also indisposed and not attending the Court. He referred to the following judgments of the Supreme Court and submitted that absence of the party's counsel on account of profes--sional activities has been held to be a reasonable and sufficient ground for restoration of a petition dismissed for non-prosecution or for setting aside ex parte proceedings, as such abs--nce can occur due to the exigencies of the profession
(1) Muhammad Halim and others v. H. H. Muhammad Naeem and others (PLD 1969 SC 270) ;
(2) Babu Khan Muhammad and others v. Dr. Abdul Ghafoor and others, (PLD 1969 SC 461);
(3) Salamat Bibi and others v. Settlement 8c Rehabilitation Commissioner, Multan (PLD 1966 SC 467) ;
(4) Malik Mumlaa 4hmad and others v. Ummat-ul-Mojeeb and others (PLD 1955 FC 178).
8. On the other hand the learned counsel for the respondent submitted that it cannot be said that inherent jurisdiction can be exercised by the Election Authority as none is vested in it. So far as the application of Code of Civil Procedure or its principles is concerned, it was submitted on behalf of the respondent that the same would not apply as it has not been made applicable to the proceedings before the Election Authority contradistinctively to proceedings before the Election Tribunals where C. P. C. Has been applied specifically.
9. The learned counsel for the respondent also argued that it would in fact amount to a review of an order and the power of review being not specifically available to the Election Authority, the restoration of the petition cannot be made. Reliance was placed in support of the above contention on Msl. Maqsoodan Bibi v. Mst. Bano (PLD 1965 Lah. 183).
10. The learned counsel for the respondent further contended that restoration of a petition is not a matter of procedure and that it cannot be so urged on a legal plane. For the proposition the C. P. C.
Is not applicable, reliance was placed on Abdul Hamid v. Malik Karam Dad, P. C. S. Election Tribunal, Rawalpindi and 2 others (PLD 1966 Lah. 16).
11. The learned counsel for the respondent next contended that otherwise also inherent powers could not be exercised after dismissal of the case. He submitted that With the passing of the order dismissing the petition for non---prosecution, the petition stood finally disposed of and as such inherent power for restoring the same cannot be exercised. He referred to Bashir Begum v. Mian Abdul Rehman's (PLD 1963 Lah. 408).
12. As regards tie merits of the case the learned counsel for the respon--dent submitted that no sufficient ground has been advanced. He argued that the name of the relative of the petitioner whose funeral was allegedly to be attended by the petitioner has not been given and as such his ab3ence is not adequately explained. In this behalf reliance was placed on Messrs Conforce Limited v. Syed Alt Shah, etc. (PLD 1977 SC 599) to contend that neither inherent powers could be invoked to defeat the provisions of Code nor to further injustice or to condone gross negligence.
13. In respect of absence of the petitioner's counsel the learned counsel for respondent submitted that it shows the neglect of the learned counsel to attend to this case, although he was in the same precincts and could con--veniently communicate his pre-occupation to the Election Authority. It was argued relying on Biru Ram v. Radha Mal and others.( AIR 1927 Lah. 224) and Chunni Lal v.
Gandu Mal and others (AIR 1927 Lah. 791)'that absence of counsel on account of preoccupa--tion elsewhere was not a ground for restoration.
14. The crux of the arguments of the learned counsel for the respondent as regards issue No. l is that there being no specific provision in the Punjab Local Government Ordinance VI of 1979 and the Rules framed thereunder empowering the Election Authority to restore a petition dismissed by it for non---prosecution and the Civil Procedure Code having not been specifically applied, the Election Authority is not possessed of the jurisdiction to restore the present petition, and the restoration of petition if ordered would amount to review of its order by the Election Authority which again the Election Authority cannot do there being no provision in law whereby it can review its own orders.
15. We are afraid the contention raised has no force. There is of course, no specific provision in the Ordinance and the Rules to meet the situation of the nature that has arisen in this case. But then if specific provision in the Ordinance or the Rules empowering the Election Authority to restore a petition dismissed for non-prosecution is not present there is equally no provision unde the Statute and the rules for dismissal of cases in default or for non-prosecution. This power can be considered to be inherent in all those Courts o A authorities who exercise quasi-judicial powers to dismiss a case for want o prosecution. Obviously if an order dismissing a case for non-prosecution is passed by the Court or an Authority in the absence of a specific provision and by exercise of the*inherent powers it would possess inherent jurisdiction to restore the same to its file in case sufficient cause for the absence is shown.
16. If any authority is needed on this point, reference may usefully be made to Zia-ur-Rehman's v.
Zakaullah Khan, etc. (PLD 1975 Lah. 911) and Muhammad : Aslwn Mirza v. Mst. Khurshid Begum (PLD 1972 Lah. 603).
17. It may also be pertinently observed here that the dismissal of a petition for non-prosecution or restoration thereof or for that matter proceeding ex parte against a party or passing an ex parte order setting aside the be aforementioned orders is merely a procedural matter. The Election Authority has been empowered by section 15 (7) of Ordinance VI of 1979 to regulate its own procedure subject of course to the provisions of the Ordinance and the Rules. The Election Authority has been importing the principles of the provisions of Civil Procedure Code in the conduct of its proceedings and those being in no manner in conflict with the provisions of the Ordinance and the Rules, no valid exception could be raised to the import of the said principles for the purpose of conduct of the proceedings. In fact it is a well-- settled law that provisions of Code of Civil Procedure have to be applied to all proceedings of civil nature. Again the proceedings of civil nature have been held to be such proceedings which entail the enforcement of civil rights and the rights as are being adjudicated upon by the Election Authority are obviously the rights of civil nature.
18. Taking the objection of the learned counsel for the respondent to its logical end it shall be seen that the same is not substainable on yet another well-settled principle of law. The dismissal of a petition for non-prosecution is a penal provision and a penal provision without a remedy being made avail--able can apparently be not put into practice. When a penal provision of law or its principle in invoked in a case in exercise of the inherent jurisdiction, it necessarily follows that the remedial provision or the principle derived there--from shall also be invoked and brought into play to obviate the effect of penalty in appropriate cases. We have, therefore, no hesitation in holding that the Election Authority has ample jurisdiction to restore a petition dismiss--ed for non- prosecution in an appropriate case.
19. Adverting now to the point whether sufficient cause has been shown in the case in band to merit restoration, we may observe that the petitioner's explanation of having gone to attend a funeral on the day the case was dismissed for non-prosecution was an urgent requirement. This affidavit of the petitioner has been filed with the replication to which no rebuttal has been filed by the respondent by way of a rejoinder affidavit. The petitioner's absence, therefore, has to be taken for the reason as explained by him.
20. Otherwise also the presence of the petitioner on the date on which this petition was dismissed for non-prosecution was not necessary. Only written statement was to be filed on that date. It is the commonly known practice that on such dates of hearing the parties do not usually appear if they are represented by a counsel. In the case in hand the record also shows that the petitioner's counsel only was appearing on the previous dates.
21. As regards absence of the learned counsel there is an explanatory affidavit on record wherein the reason of his absence at the time the case ways called has been given.
22. We do not find any justification or reason to disbelieve the same. The exigencies of the profession of a lawyer are well known and his absence in a case on account of his pre-occupation in other cases has consistently been held to be sufficient cause for absence. It is moreso in the case in hand because on that day the Clerk of the learned counsel was also not attending the Court on account of his being indisposed. The argument advanced by the learned counsel for the respondent that the cases of the learned counsel for the petitioner to which he was attending being in the same precincts he could have informed the Election Authority about his pre- occupation can also be not given any weight as the explanation given by the learned counsel for the petitioner in the affidavit shows how urgently he was being called in the other cases without there being hardly any time for him to inform the Election Authority about his pre-occupation. For all that has been said above, we find that sufficient cause has been shown for the absence of the petitioner and his learned counsel on the date the case was dismissed for non---prosecution.
S. Q.Petition restored.