' SARDAR FAKHRE ALAM KHAN, J.-Habibullah Khan petitioner contested Electoral Ward No, 1 seat of Municipal Committee Tank and won the election. The result of election was notified on 4-9-1983.
Qureshi Muhammad Umar Shah respondent No, 2 on 25-9-1983 filed an election petition challenging the election of the petitioner. On 10-10-1983 petitioner herein filed a written statement and denied all the allegations levelled against him. Respondent No, 1 the Election Tribunal on 12-10- 1983 framed the following four issues :- "(1) Did the respondent threaten the voters at the time of polls and to what effect ?
(2) Did the respondent remove his box from the election booth for half an hour ?
(3) W,as the respondent a Contractor of Municipal Committee, Tank at the time of nomination ?
(4) Relief."
' The petition was adjourned to 20-10-1983 for tee evidence of the parties. On 20.10-1983 respondent No, 2 moved an application before respondent No, 1 under section 39-D of North-West Frontier Province Local Government Ordinance, 1979 read with Order VI, rule 17 of the C. P. C. For permission to amend paragraph 4 of his petition to the effect that petitioner herein and respondent before the Tribunal had other pecuniary interest in the affairs of Municipal Committee Tank. The permission was granted and additional issue "Whether respondent has any pecuniary interest in the Municipal.
Committee, Tank" was framed; respondent No, 1 the Election Tribunal decided all the issues except the additional issue in favour of petitioner, the elected candidate, but on additional issue it was held that as the petitioner had instituted a suit against the Municipal Committee, Tank and others for recovery of. Rs, 2,14,088 he had pecuniary interest in the affairs of Municipal Committee, Tank and, as such, the election of the petitioner was declared as void and fresh election ordered.
2. It was vehemently contended by the learned counsel for the petitioner and it was so specifically mentioned in the petition supported by an affidavit that the application for the amendment of the petition was moved on 20-10.1983 after the evidence of the parties was closed ; that no notice of this application or an opportunity to furnish a reply was given to the petitioner. A perusal of the record requisitioned from the Election Tribunal shows that no separate order was passed on the application which was moved on 20-10-1983, the date fixed for evidence of the parties. On the application, the Tribunal had passed the order.
"Allowed subject to R. 44-D."
' No written statement was filed in this Court by any of the respondents to rebut the contention of the petitioner that the application was filed after the close of evidence. Further there is no indication from the record that a notice of this application was given to the petitioner or he was afforded an opportunity to furnish his reply. The Election tribunal was of the view that by allowing the amendment and flaming the additional issue in substance no new ground of attack to the election of the petitioner was permitted and the same was in conformity with the provisions of clause ( f ) of section 28 of the N.-W. F. P. Local Government Ordinance No, IV of 1979. For the better understanding of the matter reproduction of the relevant provision appears' to be necessary :- "28. Disqualifications of candidates and members.-A person shall be disqualified to be a candidate or a member of a Local Council,-
(1) if he is under contract for work to be done or goods to be supplied to the Local Council concerned or has otherwise any pecuniary interest in its affairs."
The Election Tribunal while dealing With Issue No, 3 der that on the nomination date i,e, 1-8-1983 the petitioner was no longer a Contractor with Municipal Committee, Tank, Accordingly the issue was decided in favour of the petitioner. But because earlier he was Contractor with Municipal Committee, lank and for; the recovery of his claim against Municipal Committee, Tank for that period he had filed a suit which was pending adjudication in the Court of Senior Civil Judge, D.
1. Khan, therefore, he had pecuniary interest in the affairs of the Municipal Committee of which he was declared as an elected member. The other provision which deals with the amendment of the petition is contained in sub-rule (2) of rule 44-D of the N.-W. F. P. Local Councils Election Rules, 1979.
It is in the following terms :- "The Election Tribunal may, at any time upon such terms and on payment of such fee as it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issues, so however that no new ground of challenge to the election is permitted to be raised."
' The Election Tribunal was mistaken in interpreting clause (f) of section 28 of the Ordinance by holding that "or has otherwise any pecuniary interest in its affairs" was ejusdem generic with the first part of the clause that he was under contract for work to be done or goods to be supplied to the Local Council concerned. The second part of the clause is much wider in nature and deals with all types of persons who have any pecuniary interest in the affairs of the local council and not only the Contractors. In the election petition as initially framed the challenge to the election of the petitioner was on. The ground that he was under a subsisting contract with the Municipal Committee. This stand was not accepted by the Tribunal. The amendment of the petition which was sought and allowed and as a consequence the additional issue, was framed, brought in totally a new ground of challenge to the election which is not permissible under sub-rule (2) of rule 44-D reproduced. Here before. The disqualification of having any pecuniary interest in the affairs of the Municipal Committee was totally new ground of challenge not taken up in the election petition as initially framed and, as such, A the Tribunal was under sub-rule (2) of rule 44-D legally not competent to allow it to be taken by giving permission to amend the petition. Rule 44-D in an unequivocal manner bars the amendment which would bring in new ground of challenge to the election. The plea that the petitioner had pecuniary interest in the Municipal Committee, Tank was totally a new ground not mentioned in the election petition and that was the reason that any additional issue to this effect was framed after allowing the amendment in the petition. The success of the petitioner in election was notified in the official Gazette on 4-9-1983. Although the election petition was filed within time, I.e. Within thirty days next after the publication of the result under rule 44, but the amendment in the petition was sought on 20-10-190 beyond the specified period of thirty days. On this score too the amendment could not have been allowed. In this view of ours we are supported by a reported judgment of the august court of Supreme Court, Serajul Islam Khan v. Ahsan All Mondal and others (1), wherein the learned Judges were pleased to observe at page 13 :- "We have already noticed that the learned Judges found that the allegation that the respondent No, I did not possess the necessary age qualification for election was not made in the original election petition and the petition for amendment in this regard was filed after the period of limitation. The result of the election was published in the Dacca {{FOOT NOTE}}
(1) PLD 1969 $ C 5 {{FOOT NOTE}} ' Gazette, Extraordinary, on the 11th November 1964. The petition for amendment was filed on the 22nd January 1965. Sub-rule (I) of rule 35 of the Rules lays down that an election petition shall be presented within 30 days next after the publication of the result under subsection (2) of section 45 by the Returning Officer in the official Gazette. The petition for amendment which contained a new allegation was filed after the period of limitation. It could not be entertained and the Tribunal was not justified in going into the allegation contained in the same. The facts that the allegation related to the want of a constitutional qualification and the allegation was gone into by the Tribunal will not make any difference in this case."
3. The allegations against the petitioner were that sometime earlier he had remained a Contractor of the Municipal Committee who had not paid him his dues. He brought a suit in a civil Court which was pending adjudication, therefore he had pecuniary interest in the affairs of Municipal Committee, Tank. Perusal of copy of the plaint dated 23-11-1981 placed on record of the Election Tribunal reveals that the petitioner had sued apart from Municipal Committee, Tank and its Chairman three other defendants i,e, Government of N.-W. F. P. Director-General Local Government of Province N.-W. F. P. And Divisional Director Local Government D. I. Khan for the recovery of Rs, 2,14,088 for the work completed on 7-7-1981. It was averred in the plaint that the payment has wrongly been stopped by the defendants. The suit is being contested by the defendants in a civil Court and none can predict its result. The claim may be decreed or dismissed. By no stretch of imagination can it be held that by bringing such a claim in a civil Court which has yet to be adjudicated upon,.The petitioner was having pecuniary interest B in the affairs of Municipal Committee, Tank. The term "has otherwise any pecuniary interest in its affairs" refer to some subsisting pecuniary interest and could not bring in claim with regard to past and closed transaction.
4. For the reasons referred to hereinbefore we are of the view that the Election Tribunal had exceeded its jurisdiction and on law and facts it was not justified to unseat the petitioner by holding his election void. Accordingly the order dated 23-10-1983, of the Election Tribunal, respondent No, 1 is set aside. Having regard to the facts of this case we direct the parties to bear their own costs.