The petitioner has challenged election to the Provincial Assembly for Constituency No. PS-82 in which the respondent No. 1 was declared elected. The result of the election was gazetted on 28 3- 1985 though announced earlier. The respondents Nos. 1 and 4 appeared to contest the election petition and filed their written statements. During the pendency of this petition the respondent No. 1 filed an application under section 64 of the Representation of the People Act, hereinafter referred to as "the Act" read with Order VI, Rule 17, C.P.C. And section 151, C.P.C for amendment of his written statement by adding the following paragraph:- "16-A. It is further submitted that although in the Provincial Election to Constituency No. PS-82. There were in all 10(ten) contesting candidates including the petitioner and respondent No. 1 to whom election symbols were allocated, the petitioner has made only 5 (five) contesting candidates as parties to her election petition and in the circumstances there has been non-compliance of the provisions of section 53 of the Representation of the People Act, 1976, and as such on this ground alone her election petition is liable to be dismissed under section 63 of the Representation of the People Act, 1976."
2. The objection sought to be pleaded is that petitioner has not joined all the contesting candidates as respondents, therefore, for non-- compliance with section 54 of the Act, the petition is liable to be dismissed under section 63 of the Act. The petitioner filed her counter affidavit, in which it was pleaded that by amendment, no new ground can be added and that the petitioner has been scrutinised by the Election Commission and it was forwarded for trial by the Tribunal only after it was found in order. It was also pleaded that the petitioner has joined only those candidates as respondents who were mentioned in Form V supplied to her. A copy of the Form V has been filed with the petition showing the names of six candidates including the petitioner. An affidavit-in- rejoinder was filed by the respondent No. 1 in which apart from the legal objections taken by him, it was denied that Form V which was supplied contained only six names. According to the respondent No. 1 it contained the names of all the candidates who were contesting the election. He also annexed a photo copy, of the daily "JANG", Karachi, dated 28-2-1985 in which the names and symbols of all the candidates for the Sind Provincial Assembly had been published constituency- wise. The petitioner then filed an application on. 30-9-1985 under section 62(3) to the Act, read with Order I, Rule 10, C.P.C. And S. 15, C.P.C. Praying that the following four persons may be joined in the petition as respondents No. s 8 to 11: -
(1) Subedar Abdur Rehman.
(2) Zia Haider Jaffery.
(3) Abid Hussain Khan.
(4) Muhammad Akhtar.
3. The petitioner filed her affidavit in support of this application stating that Form V was supplied to her by the Returning Officer containing the names of six candidates including herself, therefore, she has joined these five candidates, as respondents. On 16-9-1985 for the first time, she came to know that there were more contesting candidates, and immediately application for joining them has been filed. According to the petitioner joining them as respondent is a mere formality.
4. Mr. Hassan Shah Rashidi, the learned counsel for the petitioner while pressing his application for joining the four candidates as respondents and opposing the application of the respondent No. 1 has contended that the non-compliance of section 54 and non-joinder of these four persons was due to the mistake of the Returning Officer who had supplied Form V containing six names and, therefore, the petitioner cannot be allowed to suffer due to mistake of the Returning Officer. He further contended that it is the statutory duty of the Returning Officer to supply a list of all the contesting candidates in Form V and as this obligation has not been performed in a proper and legal manner, the petitioner should not be allowed to suffer. The procedure for the election had been regulated by the provisions of the Act, and rules framed thereunder. Under section 14 the candidate may attend the scrutiny of the nomination papers, and the Returning Officer is required by section 15 to publish a list of validly nominated candidates. Thereafter, if any withdrawal is made then again under section 16(4) the Returning Officer shall prepare and publish a list of contesting candidates, and a copy is to be supplied to each of the candidates. After the list of contesting candidates is prepared, under section 21 the Returning Officer arranges it in alphabetical order and allocates one of the prescribed symbols to each contesting candidates by drawing of lots which is again publicly notified. The names and symbols of the candidates are prominently exhibited at each polling station. In the ballot paper also the names of all the candidates are printed 'Immediately after the close of polls the Returning Officer shall count the votes in the presence of such candidates, election agents and polling agents as may be present. On completion of the count the Presiding Officer shall prepare a statement of count in the prescribed Form XIV and give a certified copy to the candidates or their election agent, or polling agent who may be present there. It may be noted .Hat Form XIV contains the names of all the candidates and number of votes polled by them. Finally the election results are declared by the Commission by public notice and published in the gazette. The election petition is to be filed within 45 days of the publication of the gazette. In the present case, the gazette was published on 28-3-1985 and petition was filed on 18- 4-1985. It is, therefore, clear that from the date of filing the nomination paper till the publication of the result in the gazette a candidate has several opportunities to know the names of the candidates. The period of limitation for filing the petition is to be calculated with reference to the gazette It, therefore, becomes necessary to look in the gazette and Form V cannot be made a basis for filing the petition. It is expected that a candidate should know the names of all the contesting candidates. The petitioner has nowhere stated that she was not aware of the gazette or that she has not seen the gazette, therefore, merely because Form V, even if supplied in an incomplete manner cannot afford a ground to the petitioner for joining 4 candidates as respondents.
5. Mr. Sharaf Faridi, the learned counsel for the respondent No. 1 has contended that after the expiry of period of limitation no one can be joined as respondent.
6. The learned counsel for the petitioner, however submitted that the period of limitation should not be taken into consideration and in the circumstances, the delay may be condoned. He further contended that the respondent can be impleaded at any stage as provided by Order 1, Rule 10, C.P.C. In this regard the learned counsel relied on Ramchandar Chaudhry v. Sadaslyn Tirpath and others, 1952-53 (2) Election Law Report 450 an order passed by the Election Tribunal Niagarh (India) under the provisions of the Representation of the People Act, 1951. In this case, the petitioner had not joined certain candidates as respondent. After expiry of the period of limitation an application to implead them as respondents was filed which was allowed. According to the learned counsel for the petitioner, this order equally applies to the present case, and, therefore, irrespective of the fact that period of limitation for filing the petition have expired, in the 'interest of justice the application should be granted. A bare reading of this order will show that the provisions of law in the Indian Act are completely different from the provisions of the Representation of the Peoples Act, 1976. Although the provision of the Indian Act have not been quoted in the order, nor they have been produced by the learned counsel for the petitioner, a summary to such relevant provisions is mentioned in the order from which it can be concluded that the provisions regulating the procedure before the Tribunal joining of the parties, and amendments of petition in both the Acts are materially different. Under the Indian Act, all the contesting candidates are required to be joined as respondent, but for its non-compliance the Tribunal is not empowered to dismiss the petition as provided in our Act. Further more under the India Act, the provisions of Code of Civil Procedure are applicable which automatically attracts the provisions of Order 1, Rule 10, C.P.C. In our Act, section 62(1) which provided for application of the provisions of C . P. C . During trial of the case has been deleted. Instead section 62(1) now provides that the procedure shall be laid t,.. The Election Commission which has been published in the Gazette, dated 17-3-1985. It does not provide for addition of parties as provided by C . P . C . I n my view the order relied upon by the learned counsel for the petitioner is completely distinguishable and is not at all applicable to the facts and law of the present case.
7. Section 52 provides that no election shall be called in question except by an election petition and the election petition is to be presented to the Commissioner within 45 days of the publication of the result in the gazette. This provision, therefore, gives an exclusive jurisdiction to the Tribunal to decide the petition which has been presented before the Commissioner, along with a receipt showing deposit of security. Section 53 provides the rule for computing the period of limitation.
Section 55 specifically provides that the petition should contain precise statement of material facts and full particulars of any corrupt or illegal practice and illegal acts on which the election is challenged. It should specify the names of parties alleged to have committed such practices, and acts with date and place of its commission. After the election petition has been filed before the Commissioner, if on such scrutiny it is found that any provision of sections 52, 53 and 54 has not been complied with, the petition shall be dismissed. But if it is not dismissed, then the Commissioner shall refer it for trial, to the Tribunal section 62 provides the procedure for trial by the Tribunal Section 62 subsection (3) provides that the Tribunal may at any time on such terms as may think fit allow a petition to be amended for ensuring a fair and effective trial and for determining the real controversy, at issue. However, an embargo has been placed on this power of the Tribunal, that no new ground of challenge to the election be permitted to be raised. Section 63 provides that the Tribunal shall dismiss the election petition, if the provisions of sections 52 and 54 have not been complied with. Referring to these provisions the learned counsel for the petitioner has contended that the Election Commission is statutorily duty bound to scrutinise the petition and dismiss it, if the provisions of sections 52, 54 have not been complied with; and as the Commissioner has not dismissed it the presumption is that the petition is in order, and there was no defect of such nature whatsoever. The power under section 56 which authorise the Commissioner to dismiss the petition for non-compliance with the requirements of section 52 and 54 is of administrative and ministerial nature. The Commissioner cannot adjudicate or make inquiry into questions of fact or even such allegations which have been made in the petition. For that purpose similar powers have been given to the Tribunal under section 68 to dismiss the petition if the provisions of sections 54 and 55 have not been complied with. It is possible that in case where non-compliance has been made, it may require further inquiry or evidence, and in that event, it will not be possible for the Commissioner to straight away dismiss the petition. In such situation the best course open is, that the matter may be referred to the Tribunal for proper adjudication after giving opportunity to the parties on such points that may be raised during the trial. The power given under section 56 t , the Commissioner to dismiss the petition for non- compliance with sections 52, 53 and 54 does not take away the jurisdiction of the Tribunal to exercise its jurisdiction, where there is non-compliance with the provisions of sections 54 and 55 of the Act. Therefore, even if, the Commissioner has after scrutiny forwarded the case for trial to the Tribunal the Tribunal has jurisdiction to look into the matter, and give its own decision under section 63 of the Act
9. Mr. Sharaf Faridi, the learned counsel contended that section 62 subsection (3) permits the amendment of the contents of the petition, and not the title. Section 62(3) permits the petition to be amended and is not restricted to pleading only. The petition is a composit document which comprises of the title, the contents and runs upto the verification of the petition. If the words of section 62(3) are compared with the provision of the Order VI, Rule 17 C.P.C. It will be clear that there is a material difference. Order VI, Rule 19, C.P.C. Is restricted to the amendment in the pleading and not the title of the petition, which is covered by Order I, Rule 10, C.P.C. Which provides for adding or deleting the name of the parties. As the provisions of C.P.C. Are not applicable, I am inclined to give a liberal and extended view to section 62(3) and in my view the word 'petition' includes the title, its contents, and verification.
10. But the question is, whether in this view of the matter can the petitioner be allowed to join four persons as respondents. The petitioner wants to join 4 more respondents in the petition after the expiry of the period of limitation. The petitioner has not been able to show any provision or any authority to support her contention. After the expiry of the period of limitation a valuable, right is accrued to a party, which cannot be snatched away without any reasonable cause and justification in law.
11. The reasons given by the petitioner for non-joinder of four candidates is neither valid nor convincing. The non-joinder was due to the negligence of the petitioner in not keeping herself aware of the contesting candidates although several opportunities were available to her to ascertain this fact. The plea is an afterthought to fill the lacuna created by non compliance of section 54 of the Act. The petitioner's application for joining four candidates as respondents is rejected.
12. From the applications filed by the parties, the undisputed fact has emerged that all the contesting candidates have not been joined as respondents. Mr. Sharaf Faridi has submitted that his application may be treated as an application under section 63 of the Act. The provisions of section 54 read with section 63 are to be interpreted strictly as they are mandatory in nature.
Section 54 requires in clear terms to join all the candidates' as respondent and for its non- compliance penalty is imposed by section 63(a) of the Act providing for dismissal of the petition.
The petition is, therefore, dismissed.