' GHAZANFAR ALI GONDAL, J.-This writ petition is directed against the order, dated 31-10-1983 of Mr. Muhammad Liaqat Ali, Civil Judge First Class, Pind Dadan Khan exercising the powers of Election'
Tribunal, whereby while permitting respondent No, 1 Raja Muhammad Sadiq to withdraw the election petition and dismissing the said petition as withdrawn, he granted him permission to file a fresh one.
2. The facts of the case are that respondent No, 1 Raja Muhammad Sadiq had filed an election petition (E. P. No, 6 of 1983) on 19-10-1963, against the petitioner. Raja Noor Muhammad in the Court of Civil Judge, First Class Pind Dadan Khan, exercising the powers of Election Tribunal praying therein that the election of the petitioner be declared to be void. The petitioner filed written statement. The respondent then filed an application for amendment of the election petition in order to include the plea that the petitioner was a contractor for the Town Committee, Khewra and as such had pecuniary interests in the said Committee and was, therefore disqualified to be a member of the Town Committee, Khewra. This application of the respondent was dismissed by the Election Tribunal vide its order dated 26-10-1983, on the ground that there is an express bar laid down is sub-rule (4) of rule 8 of the Punjab Local Councils (Election Petition) Rules, 1979, against permitting any new ground of challenge to be raised in the election petition by way of amendment.
Thereafter the said respondent filed an application on 29-10-1983, for withdrawal of the said election petition with permission to file a fresh one after including the said fresh ground of attack in the new petition. This-application was resisted by the petitioner, but the Election Tribunal allowed this application, permitted the withdrawal bf the said election petition with permission to file a fresh one subject to the payment of costs of Rs, 500.
3. A preliminary objection has been raised by the learned counsel for the respondent No, I. He has submitted that the impugned order permitting the said respondent to file a fresh election petition while allowing the withdrawal of the earlier petition had been made subject to the payment of costs of Rs, 500 and the fresh election petition having been filed on 1-11-1983, on which notice to petitioner had been ordered to be issued and the counsel for the petitioner in the previous election petition appeared on behalf of the petitioner before the Election Tribunal on 2-11-1983 and received and accepted the said costs on 5-11-1983 and as such the petitioner was now estopped from objecting to the impugned order in this Writ petition.
4. It may be observed that the learned counsel for respondent No, 1 has not filed any written statement, although his learned counsel was present in this Court on 6-12-1983 and 11-12-1983, in Cue present case. His presence is recorded in the interim orders of this Court for the said dates. The preliminary objection, he has raised, is oral one. In proof of the said objection he has sought permission to place on record a photostat copy of a sheet from the file of the Election Tribunal.
5. Learned counsel for the petitioner has, however, submitted that no notice in the new election petition had ever been served upon the petitioner for 2-11-1983 or otherwise nor was be present in person before the said Election Tribunal on 2-11-1983 or on 5-11-1983 and Khan Imtiaz who was his counsel in the previous election petition had appeared on 2-11-1983 and 5-11-1983, without any authority from him and witbout any fresh Wakalatnama having been executed by him in his favour.
No notice having been served upon the petitioner, he had not engaged him yet in the fresh petition and in any way the said counsel had filed an application before the Election Tribunal that he had .Accepted the costs of Rs, 500 without any knowledge that a writ petition has been filed by the petitioner in the High Court and that he was not to receive any costs on that account. Learned counsel has raised the objection that the respondent cannot be permitted to file any document today as under the rules for filing of the writ petition in the High Court, the document on which a respondent relies has to be filed at least two days before the date of hearing and the respondent cannot be permitted today i,e, the date of hearing of the writ petition, to file the said document in support of his said preliminary objection. He has further submitted that the copy sought to be filed is only a photostat copy and not a certified one and cannot be admitted on the record.
6. We have considered the above objection. No doubt, learned counsel for the respondent appeared in this writ petition on 6-12-1983 and 11.12-1983, but in spite of that he has filed no written statement nor has filed any document. Whatever documents he had to file should under the rules have been filed two days before the date of hearing. He cannot be allowed to file the said document today. Even otherwise, the said document is an unattested copy. Learned counsel for the respondent was in know of the pendency of the writ petition in this Court since 6-12-1983. He could have got a certified copy and filed it in time, so that the counsel for the petitioner may have a notice of the same. He has also not been able to establish that the petitioner has been served in the election petition for any date on or before 5-11-1983 when the costs were accepted or that he had engaged the same counsel who was his counsel in the previous election petition, which had been allowed to be withdrawn. In view of this, we overrule this preliminary objection.
7. Having disposed of the preliminary objection, the way is now clear to advert to the question raised in this writ petition on merits.
8. In the challenge made by the petitioner in this writ petition to the permission granted to the respondent by the Election Tribunal, the learned counsel has raised the ground and has also urged at the hearing that the Election Tribunal bad no authority while permitting the withdrawal of the election petition to permit the respondent to file a fresh petition after including the said new ground and his order was a nullity in the eye of law. He has relied on sub-rule (4) of rule 8 and rule 18 of the Election Petitions Rules, 1979, in support of his said submission.
9. Learned counsel for the respondent has, however, relied on rule 10 of the said Rules and has submitted that the Election Tribunal had all the powers of a civil Court trying a suit under the C. P. C.
And as such the election tribunal could grant permission to the respondent to fit:. a fresh election petition while allowing him to withdraw the earlier petition pending before him.
10. We have heard the learned counsel for the parties at some length. We have also perused the relevant rules and are of the opinion that the arguments advanced by the learned counsel for the petitioner must prevail. There is no doubt that by virtue of sub-rule (I) of rule 8 of the said Rules an election petition is to be tried as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, but this is subject to provisions of the Ordinance and the Election Rules and the Election Petition Rules. Therefore, wherever the said Election Petition Rules are in conflict with the provision of the C. P. C., the Election Petition Rules are to prevail and the provisions of the C. P. C. On the subject are to be excluded from consideration. Sub-rule (4) of Rule 8 of the Election Petition Rules, 1979 gives power to the Election Tribunal to allow a petition to be amended but the power to allow the addition of new ground of challenged to the election has expressly been taken away from the Election Tribunal by virtue of this sub-rule. As a matter of fact, respondent No, I had filed, an application for permission to add a new ground but the same had been rejected on account of express provision of sub-rule (4) of rule 8. Under the law what cannot be allowed to be done directly cannot be allowed to be done indirectly. When a new ground cannot be allowed to be added by way of amendment in an election petition, the same cannot be allowed to be done by the back door of permitting a person to file a fresh petition after including such a new ground while allowing him to withdraw his petition. Permission granted by the election tribunal to file a fresh petition is calculated to frustrate the embargo placed on the power of election tribunal to allow rising of new ground of challenge to the election and, therefore, it is wholly illegal.
11. We are fortified in this view of ours by another circumstance of almost decisive importance. Rule 18 of the said Rules lays down that an election petition may be withdrawn by the petitioner by leave of the tribunal at any time during the course of trial and where leave is granted by the tribunal, the petitioner shall be ordered to pay the costs incurred by respondents to the election petition or such portion thereof as the Tribunal may direct. In this rule no authority has been given to the Election Tribunal to permit the withdrawal of an election petition with permission to bring a new election petition. It may be taken note of that Order XXIII, rule 1, C. P. C. Which authorises a civil Court to permit the withdrawal of a civil suit with permission to file a fresh suit is obviously not applicable to the trial of election petitions, because rule 18 of the said Rules is in derogation of Order XXIII, rule 1, C.
P. C. Rule 18 does not state that the election petition can be allowed to be withdrawn with permission to file a fresh one. The rule-making authority knew that a provision of permitting withdrawal of a suit with permission to file a fresh suit is available in rule 1 of Order XXIII, C. P. C. If it had wanted to invest the election tribunal with power to grant permission to file a fresh election petition after permitting withdrawal of an election petition, it would not have made a specific provision in rule 18 and would have let rule 1 of Order XXIII, C. P. C. To get attracted on the basis of rule 8 (1) and rule 10 of the said Rules which permit the application of C. P. C. To trial of election petitions. However, the fact that rule-making authority had made a specific provision in rule 18 of said rules permitting withdrawal of an election petition without including in it the power to permit a fresh election petition to be filed shows by clear implication and necessary intendment that power to permit a fresh election petition to be filed was meant to be excluded from the ambit of the jurisdiction of the election tribunal. The Election Tribunal is a special tribunal and cannot travel beyond the four corners of the law and the rules laying down bounds of its authority. It is not a Court of general or plenary jurisdiction. It can perform only such functions as had been allowed to be performed by it under the law and the rules setting down the limits of its jurisdiction. There being no provision in the said Rules authorising the Election Tribunal to grant leave to a suitor to withdraw his election with permission to file a fresh election petition, the permission granted by Election Tribunal to respondent No, 1 to file a fresh election petition after including a new ground of attack, I obviously without jurisdiction and is a nullity in the eye of law.
12. For the foregoing reasons, this writ petition is allowed with costs and the impugned order dated 31-10.1983 of the Election Tribunal granting permission to the respondent to file a fresh election petition while allowing him to withdraw the earlier eleetion petition is declared to be of no legal effect as having been passed without lawful authority.