' MUHAMMAD ILYAS, J.-The facts giving rise to this Constitutional petition are that the petitioner, Khuda Bakhsh, and respondent No, 1, Malik Mushtaq Ahmad, hereinafter referred to as the respondent, contested election to the office of Councillor from Electoral Unit No, 1 of Union Council Janpur, Tehsil Liaquatpur, District Rahimyar Khan, and the petitioner was declared to have been elected as Councillor. His election was challenged by the respondent by filing an election petition before the Deputy Commissioner, Rahimyar Khan, exercising powers of the Election Tribunal, hereinafter referred to as the Tribunal. It was urged by the respondent that the petitioner was aged 23 years and 8 months and was therefore, not qualified to contest the election inasmuch as the minimum age for so doing was 25 years. The respondent also made an application for grant of temporary injunction restraining the petitioner from acting as a Councillor. Notice of the said application was given to the petitioner and ad interim status quo orders was also issued.
Subsequently, the said order was confirmed after hearing both sides. The petitioner, therefore, invoked the Constitutional jurisdiction of this Court to assail the temporary injunction granted by the learned Tribunal.
2. The respondent relied on school leaving certificate of the petitioner (copy Annexure 'G) to plead that he was underage. It was on the basis of the said certificate that the restraint order was issued by the learned Tribunal. In this connection, it was argued by learned counsel for the petitioner that the certificate in question was not conclusive evidence of the age of the petitioner. It was pointed out by him that in the electoral roll (copy Annexure `E') the petitioner's name appeared at serial No, 32 and his age was recorded as 25 years. He also invited our attention to copy of his Identity Card (Annexure 'F') according to which he was born in 1957. In addition, he placed on record a medical certificate (Annexure 'F/1') in which it has been opined that the petitioner was about 26 years of age. The submission made by learned counsel for the petitioner was that school leaving certificate was a weak type of evidence and it could not be given preference over other documents mentioning the age of the petitioner such as the electoral roll. He relied on Muhammad Nawaz Khan v. The Collector, District Gujranwala and another (1) ; Asa Nand v. Gian Chand (2) ; Raja Janaki Nath Roy andothers v. Jyotish Chandra Acharya Chowdhury and others (3) and Abdul Majeed (Meera Sahib) v. Bhargavan (Krishnan) Member Legislative Assembly and others (4) to support his arguments.
(1) PLD 1960 (W. P.) Lah. 1123 (2) AIR 1936 Lah. 598
(3) AIR 1941 Cal. 41 (4) AIR 1963 Ker. 18
3. Another plea raised by learned counsel for the petitioner was that the learned Tribunal acted as civil Court while issuing the temporary injunction but had failed to follow the guiding principles enunciated by the superior Courts for the grant of such injunction. According to him, the respondent did not have a prima facie case nor the balance of convenience was in his favour. It was also maintained by him that the respondent was not likely to suffer an irreparable injury in the absence of the stay order. Reliance was placed by him on Muhammad Sharif and another v.
Muhammad Afzal Sohail etc. (1) to contend that the circumstances of the present case justified interference by this Court in exercise of its writ jurisdiction.
4. In reply, it was canvassed by learned counsel for the respondent that this Constitutional petition was not competent inasmuch as it was directed against an interim order. He submitted that the Tribunal had the jurisdiction to issue the order under review and, therefore, its order could not be interfered with even if it was erroneous. His feeling was that lot of complications will arise if the petitioner is allowed to take part in proceedings of the Union Council without being qualified to be elected as such.
5. Learned counsel for the respondent did not cite any law or authority to substantiate his plea that an interim order could not be attacked by means of a writ petition. The order assailed in the present petition is interim in the sense that the election petition in which it has been made is still pending before the Tribunal. It is, however, final in the sense that thereby the stay matter has been finally decided. Sub-paragraph (ii) of parapraph (a) of clause (1) of Article 9 of the Provisional Constitution Order whereunder the present petition has been made does not make any distinction between a final order and an interim order. In fact, in the above sub-paragraph the A word "order" has not at all been mentioned. What can be challenged thereunder is "any act done or proceedings taken" by any public functionary. And the temporary injunction issued by the learned Tribunal is surely an act done by it. In a large number of cases the superior Courts have interfered with, and instances are also not lacking in which they have declined to interfere with orders like the one in hand, in exercise of their extraordinary jurisdiction, depending on the facts and circumstances of each case brought before them and the nature of the order impugned therein.
For instance, in the case reported as Ghulam Murtaza v. Muhammad Ilyas and 3 others (2) the order passed by a civil Court relating to the examination of witnesses was annulled by a Full Bench of this Court while accepting a writ petition. In case of Rashid Ahmad v. Soofi Muhammad Saleem and 3 others (3) however, this Court had not interferred with an order made by a Rent Controller for the deposit of arrears rent as the said order was of provisional nature and could be impugned by the petitioner by means of an appeal, if an order of eviction had been passed against him for his failure to comply with the order for the deposit of arrears. We are, therefore, unable to agree with learned counsel for the respondent that the constitutional jurisdiction of this Court can be declined to a patty on the short ground that the order by which he is aggrieved does not dispose of the whole case in which it had been passed.
(1) PLD 1981 SC 246 (2) PLD 1980 Lah. 495
(3) PLD 1976 Lab. 1450
6. What is now to be seen is whether the stay order involved in the present case calls for the interference of this Court. According to rule 8 of the Punjab Local Councils (Election Petitions) Rules, 1979, an election petition is to be tried, as nearly as may be, in accordance with the procedure for the trial of the suits under the Code of Civil Procedure. Rule 10 of the said Rules confers on a Tribunal all the powers of the civil Court trying a suit under the said Code. It has been consistently ruled by the superior Courts, that, in a suit, temporary injunction cannot be issued unless the plaintiff has a prima facie case, the balance of convenience is in C his favour and he is likely to suffer an irreparable injury if such injunction is refused. Even if it is assumed that in view of the school leaving certificate relied upon by the respondent he had a prima facie case, the balance of convenience did not incline in his favour. Instead, it was in favour of the petitioner because the stay order has precluded him from performing functions of a Councillor despite his election as such. As against this, the respondent cannot act as a Councillor unless his petition succeeds and he is declared to have been elected to the said office. Similarly, no injury would be caused to the respondent in the absence of the restraint order because he cannot perform the functions of the Councillor until the petitioner is unseated and the respondent takes his place. On the contrary, an irreparable injury would be caused to the petitioner as he will not be able to take part in the ensuing elections of the Chairman and Vice-Chairman of the Union Council if the stay order is allowed to stand. It will also not be possible for him to participate in the proceedings of the Union Council. The injury to be suffered by the petitioner on account of the temporary injunction would be beyond repair because it will not be remedied even by the dismissal of the election petition inasmuch as the said elections would not be held again nor the proceedings of the Union Council to be taken in the absence of the petitioner would be reopened in the event of the dismissal of the election petition. To put it differently, if the order under review is not interfered with at this stage it will not be possible to liquidate its ill-effects at an subsequent stage. Irreparable loss would also be caused to the constituency from which the petitioner has been elected because there will be none to represent it in the Union Council. It has been ruled in Abdul Wahid and another v. Din Muhammad and others (I) that interim injunction should not be issued against elected office holders without final judgment.
The order of the learned Tribunal is not a speaking order inasmuch as it does not speak at all so far as the questions of irreparable injury and the balance of convenience are concerned. Since both these questions deserved to be decided against the respondent he was' not entitled to the grant of temporary injunction even though he had a prima' facie case.
7. We agree with learned counsel for the respondent that if a Tribunal has jurisdiction to make an order, it cannot be interfered with merely on the ground that it is an erroneous order. In the case before us, however, the order under review is not only a non-speaking order but also offends against the law declared by the superior Courts. It, therefore, merits interference by this Court in exercise of its constitutional jurisdiction. The aforementioned case of Muhammad Sharif and another is the latest authority in point.
8. No complication will arise if the petitioner participates in the proceedings of the Union Council but is eventually unseated on the ground of
(1) PLD 1982 Lah. 168 age. Subsection (3) of section 37 of the Punjab Local Government Ordinance, 1979, takes care of such situations by making provisions to the following effect :- "(3) No proceedings shall be invalid by reason only that some person who was not entitled to do so, sat and voted, or otherwise took part in the proceedings."
' The success of the respondent in the election petition will, therefore, not have any adverse effect on the proceedings taken out by the Union Council with the participation of the petitioner.
9. As explained above, the order under review is going to cause irreparable injury to the petitioner as well as to the constituency represented E by him. It has already done much harm inasmuch as, after his election, the petitioner could not make oath as Councillor and cast his vote in the election to seats reserved for special interests. The nature of the order under review is, therefore. Different from the one involved in the aforesaid case of Rashid Ahmad inasmuch as the latter did not cause any immediate and lasting injury to the aggrieved person and could be taken exception to by him at a later stage by means of an appeal if his defence had been struck off and he had been ordered to vacate the disputed premises but the former is a source of constant injury to the petitioner and his constituency and no adequate remedy other than that of constitutional petition is open to the F petitioner at the present moment, nor it will become available to him in future, to avoid the former and the ill-effects there. We have already noted that the restraint order under challenge is not a speaking order and is also violative of the case-law on the subject. We, therefore, accept this writ petition and set aside the said order. The parties are left to bear their own costs.