JUDGMENT MUNIR A.SHEIKH, J.--ln this constitutional petition, Abdul Rashid the petitioner has called in question order dated 9.2.1988, passed by Rao Sultan A.I Tahir, learned Election Tribunal/Civil Judge lst Class, Narowal, dismissing the Election Petition of the Petitioner under rule 9 of the Punjab Local Councils (Election Petition) Rules 1979 for non-compliance of rule 4 of the said rules.
2. The facts forming the background of this case in brief are that the petitioner and respondent No. 5 contested Local Councils Election held on 30.11.1987 for the membership of Chak Rabbani and Mandranwala in Union Council Kot Lakha Singh of Halqa No.5. After the count of the votes in favour of each of them the Returning Officer declared respondent No. 5 a successful candidate having secured 195 Votes as against 185 votes polled by the petitioner. The petitioner challenged the election of respondent No.5 by filing Election Petition before Respondent No.1. The respondent No.5 contested the election petition by filing the written-statement in which the allegations made in the election petition were denied. A preliminary objection was raised that the election Petition was liable to be dismissed summarily under rule 9 of the Punjab Local Councils (Election Petitions) Rules 1979 for non-compliance of rule 4 of the said Rules in that the copy of the election petition alongwith the attached documents were not supplied to respondent No. 5 as required by the said rule simultaneously with the filing of the election petition through registered post or personally. This objection was upheld by the Election Tribunal as a result thereof the election petition has been rejected by the Election Tribunal through impugned order dated 9.2.1988.
3. Leamed counsel for the petitioner maintained that no time is prescribed by rule 4 of the said Rules within which a copy of election petition and documents annexed therewith are required to be supplied to the contestents therefore order of rejection of election petition has been passed on the erroneous assumption that the law required that it had to be supplied simltaneously with the filing of the election petition which has rendered the impugned order as without lawful authority as the Election Tribunal-failed-to exercise jurisdiction vested in it under the law to decide the election petition on merits. He argued that on the first date of appearance i.e.15.12.1987 the Election Tribunal directed the petitioner, to supply copy of the election petition to respondent No.5 Which direction was complied with as such the requirement of rule 4 stood subtantially complied with. Learned counsel next argued that rule 9 of the Election Petition Rules conferred discretion on the Election Tribunal which had to be exercised judicially on application of judicial mind to the attending circumstances and could not be applied mechanically which has been done in this case. Learned counsel in-support of his contentions relied upon judgments delivered by Election Tribunal reported as Ch.Muhammad Hussain Versus Muhammad Nawaz alias Dilawar Khan and another (P.L.D. 1968 Election Tribunal. 95) and Abdul Aziz Khan Versus Abdur Rehman and other (P.L.D. 1985 Lahore.203).
4. On the other hand, leamed counsel for respondent No. 5 supported the impugned order by arguing that according to rule 4 of the said Rules it was the requirement of law that copy of election petition alongwith annexures be delivered to the contesting respondents either personally or by registered post simultaneously with the filing of election petition therefore, the Election Tribunal was justified in applying rule 9 for rejecting the election petition. He has placed reliance on a judgment of this Court reported as Akbar A.I Versus Muhammad Ibrahim Sardar and another (1984 C.L.C.1454). To amplify his arguments he maintained that rule 4 of the Election Petitions Rules is so Placed that the intention of the rule maker appears to be that it was required that copy of the election petition be simultaneously supplied to the contesting respondents with the filing of the election petition.
5. The sole question which requires consideration in this case is whether under rule 4 it is the mandatory requirement of law that copy of election petition should be supplied to the contestent simulitaneous with the filing of the election petition. The decision of this crucial point centres around the interpretation of rule 4. Ln order to appreciate the contentions raised from both the sides it will be beneficial to reproduce rules 4 and 9 of the Punjab Local Councils (Election Petitions)
Rules 1979. Rule 4 of the said Rules is as under:- "Parties to the petition- The Petitioner shall implead as respondents in the election petition;(a) all contesting candidates in the electoral unit concerned;and(b) any other candidate against whom any allegation of anycorrupt or illegal Practice is made; and shall deliver a copy of the petition to the respondents either personally or by registered post".THe relevant provision of rule 9 thereof is as under:-"Dismissal of petition during trial-.The Tribunal may dismiss an election petition if;(a) the provisions of rules 3,4 and 5 have not been compliedwith; or(b) the allegations contained there in are vague or do notdisclose the commission of any corrupt practice,material irregularity or other illegal, act;(c) the petitioner fails to make the further deposit requiredunder sub-rule (5) of rule 3"
6. A bare reading of rule 4 shows that in this rule no time has been fixed by the rule making aurthority for delivering the copy of the petition to the respondents. Since non-compliance of rule 4 may be visited with the penalty of dismissal of the election petition in the discretion of the Electional Tribunal under rule 9, therefore on the well established principle regarding interpretation of statures, such a penal provision is to be construed strictly, ln interpreting such a rule the provision of law or the rule as it exists has to be applied and word can be imported therein which rule maker has not used. While interpreting such a provision of law no intention can be attributed to the law maker by implication, which could be manifested by use of appropriate expression in the relevant provision of law. Keeping in view this principle, had it been the intention of rule maker that copy of petition as a requirement of law should be delivered to the respondents simultaneously with the filing of the election petition, the expression to that effect could very easily be used in rule
4. The provision of rule 4 has not been framed for the first time as a similar Provision was enacted in the National and Provincial Assemblies (Election) Act VII of 1964). According to section 58 of this Act if was required that copy of election petition be served on respondents either personally or by registered post. This section 58 is reproduced in extenso as under for reference:- Section 58 "Parties to the petition.- The petitioner shall join as respondents to his election petition-
(a) all contesting candidates; and(b) any other candidate against whom allegations, if any, of any corrupt or illegal practice are made,and shall serve Personally or by registered post on each such respondent a copy of his petition".
Section 67 of the said Act provided a penalty of dismissal of election petition among others on the ground of non-compliance of provision of section 58. This section reads as follow: - Section 67 "Dismissal of petition during trial.-
(a) the provisions of section 58 or section 59 have not been complied with".
These two sections came up for interpretation before Election Tribunal consituted under the said Act in a election petition filed by one Chaudhry Muhammad Hussain which judgment has been reported as Ch. Muhammad Hussain Versus Muhammad Nawaz alias Dilawar Khan and another (P.L.D. 1968 Election Tribunal. 95) .On a close scrutiny of these provisions of law the Election Tribunal took the view that "no time fixed in section 58 of the Act, for serving a copy of election petition on the respondent and if the intention of the Legislatute had been that such a copy should be served at the same time when it is presented to the Chief Election Commissioner it would have been quite appropriate for the Lagislature to add a few words to section 58 of the Act to make that intention clear". The learned members of the Election Tribunal have also held that;- "It was not done and as the language used in section 58 is not capable of any such interpretation, the Tribunal did not feel inclined to held that a copy of the election petition should have been served on the respondents at or about the same time when it was presented to the Chief Election Commissioner of at-least before the first date of hearing", ln the view of the Election Tribunal the petitioner in such a case was not under an obligation to serve a copy of election petition on contesting respondents before the first date of hearing or at or about the same time when he filed the election petition.
7. The comparison of rules 4 and 9 with sections 58 and 67 of the said Act reveals that both the provisions are absolutely identical except that in section 67 it is mandatory requirement to dismiss the election petition as the word used is " shall" whereas under rule 9 it has been left to the discretion of the Election Tribunal by using the word "may". The view taken by the Election Tribunal in Ch.Muhammad Hussain' case referred to above according to our view is rational and is in accord with the plain language of the relevant provisions of the statute. The essence of the interpretation of the Election Tribunal is that according to general rule of literal construction nothing is to be added to or be taken out from a statute unless there are adequate ground to justify the- inference that the Lagislature inteded something which it omitted to express. This interpretation according to our humble view is based on well recognized and fairly settled principles of interpretation of statute, ln the instant case also if the rule making authority in its wisdom did not takin it proper to provide expressly in the rule that copy of election petition should be delivered to the respondents simultaneously with the filing of the election petition, on no rule of interpretation of statute or good reasons it can be held that it was intended to be supplied simultaneously. We endorse the view expressed by the Election Tribunal, ltmay be mentioned here that in that case such a provisions were enacted in the main Act which stands on higher padestal then rules which is subordinate Legislation. Even in the presence of mandatory provisions of section 67 of the said Act it was held that supply of copy of election petition simultaneously with its filing was not the requirement of law. We do not feel persuaded to hold that under rule 9 which is not mandatory, the Tribunal could dismiss the election petition in its discretion on erroneous assumption that supply of copy of election petition simultaneously with the filing of the same was requirement of law which has resulted in failure by the Election Tribunal to exercise its jurisdiction to try the election Petition on merits.
8. Now we proceed to examine the judgment relied upon by learned counsel for the respondent No.5 reported in 1984 C.L.C.P. 1464. Lt may be pointed out that this is a case in which the writ petition was dismissed in limine. Though in the order the Court observed that the petitioner had not complied with rule 4 by delivering copy of petition of the respondents either personally or by registered post simultaneously with the filing of the election petition, it appears that this question was not raised in the said case as an issue and as such was neither argued nor datermined in this manner as it has been done in the present case. It appears that their Lordship in the said case did not find it a fit case for interference as a view was formed that the petitioner fought fairly and squarely and has lost election by the lead of 10 votes. This case therefore is of no help to the respondent No.5 and does not advance his case.
9. To amplify the view which we have taken it may not be out of place here to make reference to the provisions made in the other statute perscribing such a procedure to demonstrate that when intended it expressly provided that a particular act should be performed at a specified time. One of such provisions of Order 43 Rule 3 C.P.C, which was added through amending Ordinance X of 1980.
According to this newly added rule" where an appeal against an order is perferred during the pendency of the suit, the appellant shall before presenting appeal give notice of such appeal to the respondents or his Adovcate by delivering a copy of the memorandum and the grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledgment of receipt thereof for the information of the appellate Court" .The Legislature expressed itself in clear terms what it intended Le.Delivery of notice alongwith copy of memorandum before presentation of the appeal. We therefore hold that copy of election petition etc could be supplied to respondent within reasonable time of its filing. What is reasonable time is a question of fact which would depend upon facts and circumstances of each case.
10. , Apart from what has been discussed above, even if it is assumed that requirement of rule 4 was that copy of election petition should have been supplied to the respondents simultaneously with the filing of the election petition, the next question for consideration is whether under rule 9, the Election Tribunal could mechanically dismiss the election petition or it was required to take into consideration facts and circumstances of the case and apply its judicial mind to determine whether discretion in favour of dismissal of election petition should be exercised or not. We have no hesitation in holding that the Tribunal was bound to apply its judicial mind whether in the facts and circumstances of sort a case it was a fit case to impose the major penalty of dismissal of election petition, lt has consistently been held in a matter where discretion is vested with the Court or the authority it has to exercise this discetion keeping in view the fact and circumstances of case it was a fit case to impose the major penalty of dismissal of the election petition. It has consistently been held that in a matter where discretion is vested with the Court or the authority it has to exercise this discretion keeping in view the facts and circumstances of each case and the spirit of law and the objects for which the law was enacted, ln a case reported as Shamroz Khan and another Versus Muhammad Amin and others (P.L.D. 1978 S.C. 89) while interpreting the provision of Order .8 Rule l2 C.P.C providing penalty of striking of defence of defendant who failed to furnish his address with the written statement for his service during the trial, it has been held that the intention of the said provision was to eliminate the delay in the disposal of the cases and it was keeping in view this object in enacting the said provision that it was so interpretted. This judgment provides sufficient guide lines for interpretation of the procedural law. The legal proposition cannot be disputed that the procedure prescribed for trial of case is always aimed at securing and doing justice in the case and cannot be applied in such a manner which would result in frustration of this object, lt may be clarified that we should not be understood to have held that in no case for non-compliance of rule 4 the Tribunal has jurisdiction to dismiss the election petition, ln a case of extreme negligence, positive contumacy on the part of the petitioner in this regard resulting in delay in the disposal and trial of the election petition or causing prejudice to the contesting respondent that the Tribunal can certainly impose the penalty of dismissal of election petition, lt would however depend upon the facts of the each case whether the Tribunal would resort to rule 9 in its discretion to inflict the extreme penalty of dismissal and before doing that it shall have to apply its judicial mind to the attending circumstances and after recording a finding with reasons compelling him to do so. This view finds support from judgment on which reliance was placed by the learned counsel for the petitioner, ln this judgment reported as P.L.D. 1985. Lahore 203, it has been held that;- In respect of procedural provisions which invite penalty for their violation, the law is that it should not be too technically applied, if its blind appplication would thwart, rather than help, justiceAll technicalities should normally be avoided unless it is essential to comply with them on grounds of public policy. The provisions which provide penalties should not be channelized into traps".
It has further been held in the same judgment that;- The word'may, in rule 9 shows that the Tribunal has the power to deal with each type of violation according to its particular import and to also decide in accordance with the facts and circumstances of each, where the non-compliance can be permitted to be cured or must be visited with dismissal of the petition".
11. Ordinarily we would have remanded the case to the Election Tribunal to decide afresh after considering facts and circumstances of this case whether it would decide to exercise the discretion in favour of dismissal of election petition but no such remand is necessary in the instant case as the facts are admitted. It is in the impugned order that on the first date of hearing i.e.15.12.1987 the petitioner was directed to deliver copy of election according to leamed counsel for the said respondent was complied with and after delivery of copy of the election petition to him, he filed written-statement which contained his defence on merits. Learned counsel for respondent No.5 when questioned frankly conceded that supply of copy of election petition as directed by the Tribunal and its non delivery before filing it has not caused prejudice to the said respondent in defending the electionpetition, or delay in its disposal, ln view of these admitted facts, we do not feel presuaded to remit the case to the Election Tribunal, for this purpose. l2. For the foregoing reasons, we accept the writ petition. The impugned order of Election Tribunal dated 9.2.1988 is hereby declared to have been passed without lawful authority and no legal effect and is quashed, ln the result, the election petition shall be tried and disposed of on merits by the Election Tribunal. The parties are left to bear their own costs.