' ZIA MAHMOOD MIRZA, J.--Facts forming the background of this Constitutional petition, briefly stated, are that Muhammad Arif Chaudhry petitioner and Rao Talib. All Khan respondent No,3 along with four others, respondents Nos.2 and 4 to 6 herein contested election for the membership of Municipal Committee, Okara, from Electoral Unit No,26. The election took place on 30-11-1987.
According to the result of the counting made by the Election authorities, petitioner secured 917 votes as against 854 votes of respondent No,3. Other contestants obtained no vote at all. Petitioner was accordingly declared elected with a lead of 63 votes. He was later on elected as Chairman of the Municipal Committee. Election of the petitioner was called in question in two election petitions: one filed by Rao Talib Ali respondent No,3 and the other by Bashir Ahmad respondent No,2. In his petition, respondent No,3 challenged the validity of the petitioner's election, inter alia, on the ground that valid votes cast in his favour were wrongfully rejected and excluded from the count whereas patently invalid votes were counted in favour of the petitioner. Both the election petitions were consolidated and the Election Tribunal framed a comprehensive issue which is reproduced hereunder: -- "Whether the election is liable to be set aside on the grounds mentioned in the Election Petition?
OPP."
' Before producing evidence on the aforementioned issue, respondents/ election-petitioners moved separate applications on 27-4-1988 for recounting the votes. Rao Talib All respondent in para. 2 of his application (Annex. RE) stated "that the allegations made in the election petition about the exclusion of valid votes from the counting of the peitioner, inclusion of invalid votes taken into account in favour of respondent No,1 and wrong statement of count by the Returning Officer could only be proved by recounting of rejected ballot papers and ballot papers of respondent No,1"
(petitioner herein). Bashir Ahmad respondent in his application submitted that in case of recounting of votes, he would not press other grounds. Petitioner resisted these applications for recounting of votes by filing a written reply thereto. Learned Election Tribunal after hearing the parties allowed the prayer of the respondents by his order dated 24-5-1988 holding that "the allegation made in the election petition regarding the exclusion of valid votes cast in favour of applicants and inclusion of invalid votes in favour of respondent can only be determined by recounting of votes. In my view it would be better in the eyes of law if this question is decided at preliminary stage."
2. The aforementioned order of the Election Tribunal permitting recounting of votes was brought under challenge by the present petitioner in two constitutional petitions viz. W.P.Nos.2830/1988 and 2831/1988. Both the writ petitions were dismissed in limine by a consolidated order dated 1-6-1988 taking the view that since the respondents had admittedly made definite allegation in the election petitions "that valid votes cast in their favour were wrongfully excluded from count and invalid votes were counted in favour of the petitioner", no evidence was needed for proving or disproving this allegation and the question as to whether the votes excluded from or included in the count of a particular candidate were valid or invalid could well be determined from bare examination of the ballot papers. It was accordingly held that the learned Tribunal did not commit any illegality in ordering the recount of votes at a preliminary stage as it could decide the fate of the election petition.
3. It appears that during the course of recounting of tallot papers on 27-6-1988, Rao Talib Ali respondent made an application (Annex. A) wherein he took the stand that his valid ballot papers could not be inspected during recounting "because neither the respondent No,1 has taken this plea in his written statement nor he claimed recrimination." The Tribunal then stopped further counting and adjourned the proceedings to examine the point raised by the said respondent. Petitioner refuted the stand of Rao Talib Ali respondent by filing a written reply (Annex. B). His plea was that the recounting was to be done as a whole. According to the petitioner, the Tribunal's earlier order dated 24-5-1988 itself contemplated recounting of all the ballot papers of the whole of the ward. It was thus maintained by the petitioner that there no need for filing any formal recrimination though he filed it alongwith the reply and also deposited the security amount of Rs,500. Petitioner claimed that at least 70 invalid votes were illegally counted in favour of the applicant/respondent Rao Talib Ali and, therefore, if he had been a returned candidate, his election would be declared void in case of it being challenged.
' Learned Election Tribunal by his order dated 10-7-1988 allowed the application of respondent No,3 and directed that his ballot papers shall not be inspected. View taken by the Tribunal was that since the petitioner had not made any allegation either in his written defence or by way of recrimination that invalid votes were included in the count of respondent No,3, his ballot papers were not liable t be subjected to recount. Learned Tribunal held that the notice of recrimination filed by the petitioner was of no help to him as it was barred by time and was also not accompanied by a statement of the case nor was it verified according to law. In fact, the said notice had been dismissed by the learned Tribunal by a separate order. It was also noted by the Tribunal that the application filed by the petitioner for amendment of his written statement so as to take up the plea regarding invalidity of the votes of respondent No,3 was also dismissed by a saparate order. Learned Tribunal also repelled the petitioner's contention that his earlier order dated 24-5-1988 contemplated the recount of all the ballot papers. According to the learned Tribunal his previous order in so far as it specifically took note of the respondent's allegation made in the election petition regarding the wrongful exclusion of his valid votes and illegal inclusion of invalid votes in the count of the petitioner really envisaged only the recount of the votes objected to by the respondent and, therefore, accepting the respondent's prayer not to recount his votes "would not be a review of my previous order dated 24-5-1988 but would be a compliance of that order."
4. The aforementioned order of the Election Tribunal dated 10-7-1988 has been brought under challenge in this Constitutional petition.
5. Learned counsel appearing in support of this petition has raised the following points:--
(i) that the Election Tribunal has misconstrued and misapplied rule 11 of the Punjab Local Councils (Election Petitions) Rules, 1979. The penalty envisaged in the proviso to sub-rule (1) of rule 11, namely, that the returned candidate shall pot be entitled to give evidence to prove the recrimination reffered to in the sub-rule, can only be invoked when the trial of an election petition commences on the issues framed on merits. In the instant case, that stage had not yet reached as the Tribunal was only proceeding with the recounting of the votes as a preliminary issue. The penalty has thus been prematurely applied against the petitioner. Cases relied upon by the Election Tribunal are distinguishable on facts;
(ii) that Rao Talib Ali respondent had himself opted and applied for recounting as a preliminary issue when the main petition was fixed for evidence on merits and in his application, he did not pray that the recounting be confined only to the ballot papers of Muhammad Arif, the present petitioner. The prayer of the respondent having been granted by the Election Tribunal vide order dated 24-5-1988, it did not lie in his mouth to turn round and plead that his votes be not recounted.
This was hit by the doctrine of approbation and reprobation. Reliance is placed on PLD 1986 S.C.
542; and
(iii) that by his previous order, the Election Tribunal had directed the recounting of all the ballot papers of both the parties, whereas by the impugned order, it has been directed that the ballot papers of respondent No,3 shall nct be recounted. This amounts to reviewing the previous order which power did not vest in the Election Tribunal. It is well settled that a Tribunal of limited jurisdiction has no power of review unless it is expressly conferred by Statute. Reliance is placed on PLD 1970 SC 1, PLD 1981 SC 49, 1986 SCM R 808 and 965, and 1987 CLC 23.
6. Learned counsel appearing for the respondent, on the other hand, supported the impugned order of the Election Tribunal and submitted that the petitioner had not questioned the validity of the votes counted in favour of respondent No,3 by taking any such plea in his written statement or by filing recriminatory proceedings within the prescribed time. On the contrary, case of the petitioner throughout was that the result of the Court made by the Election authorities was valid and correct. Reference in this behalf was particularly made to the averments made in paras. 4, 6, 8, 10 and 17 of the written statement filed by the petitioner before the Election Tribunal. That being so, it was argued, the Election Tribunal was right in ordering that the votes of respondent No,3 shall not be recounted. It was contended that the recount of the ballot papers could be allowed on making a good and reasonable case therefor, whereas in the case of respondent No,3, it was not even barely alleged by the petitioner that his ballot papers were wrongfully accepted. Reliance was placed on 1987 SCM R 324; 1987 CLC 861; PLD 1986 SC 483; PLD 1986 SC 542; 1986 CLC 1784; 1987 CLC 535 and AIR 1964 SC 1200.
' Learned counsel for the respondent further contended that it was manifest from the application for recounting made by respondent No,3 that he sought the recounting of the votes rejected and excluded from his count and of the votes counted in favour of the petitioner. It was pointed out that the request of respondent No,3 in the aforesaid terms was accepted by the Election Tribunal vide his order dated 24-5-1988. In the circumstances, the impugned order directing that the votes of respondent No,3 shall not be recounted does not suffer from any illegality. It was next urged by the learned counsel for the respondent that the learned Election Tribunal had dismissed the petitioner's notice for recrimination as also his application for amendment of the written statement by two separate orders (Annexs. RC and RD respectively) which orders have not been challenged by the petitioner. He is, therefore, precluded from challenging the impugned order. It was lastly argued on behalf of respondent No,3 that the recrimination filed by the petitioner was rightly held as barred by time since it was not filed within period of fourteen days from the commencement of the trial as provided in the proviso to rule 11 of the Election Petitions Rules. According to the learned counsel, 'trial' qua the election petitioner commences before the Election Tribunal on the institution of the election petition and qua the defendant, it commences when he receives the summons. In the submission of the learned counsel, 'trial' is not the same thing as 'hearing'. In support of his submission, learned counsel relied upon A.I.R.1953 Bombay 293.
' Learned counsel appearing for respondent No,2 adopted the arguments of the learned counsel for respondent No,3 and cited AIR 1957 SC 444, AIR 1958 Raj. 307 and AIR 1958 Madh. Pra. 168 for the purpose of illustrating the meaning of term 'trial'.
7. We will first take up the petitioner's contention that the impugned order amounted to review of the previous order dated 24-5-1988 and since the Election Tribunal was not possessed of any power of review, the order in question suffered from want of jurisdiction. Doubtless, the power of review did not vest in the Election Tribunal under the relevant Statute viz. The Punjab Local Government Ordinance, 1979, and there is also no cavil with the proposition that a Tribunal of limited jurisdiction like the Election Tribunal has no power of review unless it is expressly conferred on it by a Statute. However, we find no substance in the basic contention that the order of the Election Tribunal impugned herein reviewed his earlier order dated 24-5-1988. Learned counsel for the petitioner argued that since the order dated 24-5-1988 was professedly passed "for recounting of votes from electoral unit No,26" and complete record including electoral bags was also summoned, the order clearly intended recounting of all the ballot-papers of both the parties. We are not inclined to accept this interpretation. The order dated 24-5-1988 when read in its proper context quite clearly shows that it permitted the recounting of only the rejected votes of the respondent/election petitioner and the votes included in the count of the present petitioner because the dispute related only to those votes as is manifest from the allegations made in the election petition and the application for recounting. It may be noted that till then, no grievance at all had been made in respect of the votes of the respondent. Petitioner had not made any counter- claim that some invalid votes were cast and counted in favour of respondent No,3. In the circumstances, there was no occasion for the Election Tribunal to have ordered the recount of the valid votes of respondent No,3 and it has now been so clarified A in the impugned order wherein the Election Tribunal has repelled the petitioner's contention that his earlier order dated 24-5-1988 contemplated the recounting of all the votes. Viewed in this light, the impugned order directing that the ballot-papers of the respondent shall not be recounted can by no stretch of reasoning be said to have modified or reviewed the previous order of the Election Tribunal.
8. We also find no merit in the petitioner's further contention that the case of the respondent was hit by the principle of approbation and reprobation. It is true that the respondent moved an application for recounting the votes but there is nothing on the record to show that he sought the recount generally of all the ballot papers used in the election. On the contrary, from the averments made by him in the election petition as also in the application for recounting, it appears that he, in fact, sought the recounting of the ballot papers rejected and excluded from his count and the votes counted by the Election authorities in favour of the petitioner. It cannot, therefore, be said that the respondent took any inconsistent stand when he made an application to the Election Tribunal for not re-counting his valid votes.
9. We now advert to the first and the crucial point raised on behalf of the petitioner which has been noted in para. 5 above. It involves the interpretation of rule 11 of the Election Petitions Rules and particularly of the expression "the commencement of the trial" in the proviso to sub-rule (1) thereof.
Rule 11 reads as follows:- "11. Recrimination where seat is claimed-(1) Where in an election petition a declaration is claimed that a candidate other than the returned candidate has been duly elected, the returned candidate or any other party may produce evidence to prove that election of such other candidate would have been declared void had he been the returned candidate and had a petition been presented calling his election in question: ' Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he or it has, within fourteen days next following the commencement of the trial given notice to the Tribunal of his intention so to do and has also deposited the security referred to in rule 3.
(2) Every notice referred to in sub-rule (1) shall be accompanied by a statement of the case, and all the provisions relating to the contents, verification, trial procedure of an election petition or to the secruity deposit in respect of an election petition shall apply to such a statement as if it were an election petition."
' Under the aforementioned rule, a returned candidate has been given the right to recriminate against the election petitioner or any other candidate for whom the seat is claimed and prove that if he (i.e, the election petitioner or other candidate) had been elected and his election called in question, it would have been declared void. This right will, however, be available to the returned candidate only if he has given notice to the Tribunal of his intention to recriminate and also deposit the requisite security, within 14 days of the commencement of the trial. Now in the instant case, admitted position is that the election petition was presented on 20-12-1987; petitioner filed the written statement on 23-2-1988; issues were framed on 8-3-1988 and the case was thereafter fixed on fifteen different dates until 4-7-1988 when the petitioner gave notice of recrimination. In fact, the petitioner filed the said notice alongwith the written reply which he gave to the respondent's application submitted on 27-6-1988 for not recounting his valid votes. It is also not denied that the petitioner did not make any counter-claim either in his written statement (Annex. RA) or in the reply to the respondent's application for recounting (Annex. RG) that some invalid votes were included in favour of respondent No,3. Such a claim was made by the petitioner for the first time on 3-7-1988 when submitting his reply to the application of respondent No,3 for not recounting his votes as also in his application for amendment of his written statement. Notice of recrimination, too, was given on that date. In the circumstances, learned Election Tribunal held that the petitioner having failed to take any objection regarding the invalidity of the votes of respondent No,3 in any appropriate proceedings within the time prescribed by rule 11(1), validity of those votes could not be questioned and as such they were not liable to be re-counted. Learned counsel for the petitioner has taken exception to this finding and contended that the trial of the election petition had not yet commenced when the petitioner gave the notice of recrimination and took objection regarding the invalidity of the votes of respondent No,3. According to the learned counsel, trial commences for the purpose of the proviso to rule 11(1) when the Election Tribunal starts taking evidence on the issues framed on merits and not at any preliminary stage. Learned counsel argued that since the evidence had not yet started, trial of the election petition could not be said to have commenced with the result that the period of limitation prescribed in the proviso for giving the notice of recrimination etc. Was not at all attracted. The Election Tribunal was, therefore, wrong in rejecting the petitioner's notice of recrimination and his plea about the invalidity of the votes of the respondent on the ground of limitation. Learned counsel further argued that even if it be assumed that the petitioner had failed to recriminate within the time limit and in the manner prescribed therefor, he would be precluded from leading evidence to prove the recrimination when that stage reached but his plea regarding the invalidity of the votes of respondent No,3 could not be shut out summarily at a preliminary stage.
10. We regret, we are unable to accept the submissions of the learned counsel for the petitioner. We do not agree that the trial of the election petition commences only when the Election Tribunal proceeds to examine witnesses and not before. This limited interpretation of trial, if accepted, would create an anomalous situation because in that case, there will be no warrant for various proceedings taken and orders passed by the Election Tribunal before the evidence stage such as calling for the written statement and Cettling of issues. It may be noted that according to the Election Petitions Rules, an election petition is tried substantially in accordance with the procedure laid down in the Code of Civil Procedure for trial of suits. Rule 8 of the said Rules provides that every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of suits laid down in the Code of Civil Procedure, of course, subject to the provisions of the Punjab Local Government Ordinance, the Election Rules and the Election Petitions Rules. Again, Rule 10 of the Election Petitions Rules confers on the Election Tribunal all the powers vested in a Civil Court trying a suit under the Code of Civil Procedure. Reference to various provisions of C.P.C. Would show that a Court trying a suit takes a number of steps like issuing summons to the defendant, calling for the written statement, discovery and inspection, admissions and denials, compelling the production of documents, framing of issues and enforcing attendance of witnesses before the stage is set for what is 'described in Order XVIII C.P.C. As hearing of the suit and examination of witnesses. It may pertinently be observed that all the aforementioned steps are constituent stages of the trial which term ordinarily covers the entire process of litigation from the beginning to the end i.e, from the time the suit is instituted until the pronouncement of final judgment. Hearing of the suit involving examination/cross-examination of witnesses, production of documents and address by the counsel, of course, forms part of the trial but it is not quite correct that the trial is confined only to the hearing as such and the proceedings taken prior thereto do nct constitute trial.
Reference to the provisions of Election Petitions Rules would also demonstrate that the word 'trial' therein has been used in a broader sense covering the entire proceedings from the presentation of the election petition upto its final disposal. Sub-rule (5) of rule 3 empowers the Election Tribunal to order the deposit of additional amount of security "at any time during the trial of the election petition". Rule 6 lays down that "the trial of an election petition shall be held at such place or places as the Tribunal may think fit". Again rule 8(4) empowers the Election Tribunal to allow amendment of a petition at any time. Rule 9 provides for dismissal of election petition during trial. It lays down "The Tribunal may dismiss an election petition if--
(a) the provisions of rules 3, 4 and 5 have not been complied with; or
(b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act; or
(c) the petitioner fails to make the further deposit required under sub-rule (5) of rule 3."
' All these provisions go to show that the trial of an election petition covers the matters and stages prior to the stage of evidence. For instance, order for deposit of additional security can be made at any stage of the proceedings. Similarly, amendment of an election petition can also be allowed at any time. Same is the position regarding the dismissal of an election petition in terms of rule 9 which. Can well be ordered at any time. All these orders are passed during 'the trial' which expression in the context of the relevant rules would mean and include all the proceedings from the beginning to the final determination and would not necessarily be confined exclusively to the evidence stage onwards as contended for the petitioner. The word 'trial' has not been defined in the Statute but it has been judicially interpreted in some cases from Indian Jurisdiction. Refer AIR 1953 Bombay 293 wherein 'trial' of the suit was distinguished from 'hearing' of the suit. An argument was raised in that case that section 90(2) of the Representation of the People Act which applied the procedure applicable to the trial of suits under C.P.C. To the trial of election petitions would come into play only after the hearing of the election petition had actually commenced and, therefore, the Election Tribunal had only those powers which the Court enjoyed under Order XVIII of C.P.C. This argument was repelled with observation "in our opinion, the trial of suits does not mean the same thing as the hearing of a suit.
Order XVIII in terms speaks of the hearing of a suit and not the trial of a suit. A Court is concerned with the trial of a suit from the time when it is instituted. The hearing of a suit is only a part of the trial of the suit and the hearing is concerned with what happens in open Court when witnesses are examined and cross-examined, addresses are delivered by counsel and judgment is delivered. But a great many things go on after a suit is instituted which are all concerned with the trial of a suit, and there is no reason why subsection (2) of S.90 should be limited and confined to procedure which applies only at the hearing of the suit and not outside that hearing." Again, the meaning of the word 'trial' in section 90(2) of the Representation of the People Act was examined in the case reported in AIR 1957 SC 444 and it was held that while the word 'trial' standing by itself was susceptible of both the narrow and wider senses, i.e, only the final hearing consisting of examination of witnesses etc. (in the limited sense) and the entire proceedings before the Election Tribunal from the beginning to the final decision (in the broader sense), in the context of the Statute, it was used in the latter sense viz. "meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under section 86, until the pronouncemnt of the award". In yet another case reported in AIR 1958 Madhya Pradesh 168, contention that the word 'trial' means trial after the issues are struck and not the proceedings preliminary thereto was repelled and following the afore-referred Supreme Court Judgment, it was held, "The word 'trial' undoubtedly has two meanings. It may mean the trial of a controversy that arises from an issue. It may equally mean the trial of an election petition or a complaint or an action from beginning to end. In our opinion, the word used in S.90(1) of the Act means the latter. In this sense, which has been approved by their Lordships of the Supreme Court, the word 'trial' covers the entire process of litigation from the acceptance of the election petition for trial to its disposal". Then in AIR 1958 Rajasthan 307, again a case under the Representation of the People Act, definition of the word 'trial' was attempted and it was observed "Broadly speaking, however, a trial is the examination by a competent Court or the facts or law in dispute or put in issue in a case. It is the judicial examination of issues between the parties whether they are of law or of fact. The commencement of a trial, therefore, means, the first date when a Court or a Tribunal starts on such judicial examination."
11. From the foregoing discussion, it is quite clear that trial of an election petition for all practical purposes commences qua the election-petitioner as soon as he presents the election petition and qua the respondent on the date on which he is required to file his written statement. In this view of the matter, we hold that for the purpose of computing the period of limitation prescribed in the proviso to rule 11(1) for filing the notice, of recrimination, trial before the Election Tribunal commenced when the petitioner filed his written statement. That being so, the notice of recrimination filed by the petitioner on 3-7-1988 was hopelessly time-barred and, therefore, the learned Election Tribunal rightly disallowed the petitioner to raise objection to the validity of the votes of respondent No,3. Needless to observe that if the returned candidate has failed to recriminate in the prescribed manner, he cannot be allowed to challenge the validity of the votes cast/counted in favour of the election-petitioner. This proposition was examined by the Indian Supreme Court in AIR 1964 SC 1200 wherein it was held, "In the absence of recrimination, it would not be open to the Election Tribunal to allow the returned candidate to challenge the validity of votes cast in favour of the petitioner or any other candidate in whose favour a declaration is claimed by the election petitioner or to contend that any of his votes were improperly rejected." A Division Bench of this Court also observed in "Ali Mohammad v. Muhammad Bashir and others" (1985 MLD 929) that a plea not taken up by the returned candidate in the written statement or in recrimination could not be allowed to be raised subsequently. Learned counsel for the petitioner has not cited any authority to the contrary. In the circumstances, since the petitioner neither took any objection in his written statement disputing the validity of the votes included in the count of respondent No,3 nor did he file the recrimination in accordance with the relevant provision, he was precluded from agitating at the time of scrutiny of his own votes that the votes of respondent No,3 be also scrutinized so as to determine their validity. View taken by the learned Election Tribunal in this behalf is unexceptionable. We also find little merit in the petitioner's contention that the impugned order was premature. Election Tribunal when recounting the votes of the petitioner was in fact G examining the evidence in the form of ballot papers to find out whether the votes cast in favour of the petitioner were valid or invalid. Petitioner at this stage sought to question the validity of the votes of the respondent which plea, if entertained, would have required the scrutiny of the ballot papers of the respondent. It was, therefore, an appropriate stage for passing the impugned order whereby it was held that because the petitioner had failed to recriminate within the prescribed period, votes of respondent could not be recounted.
12. Apart from what has been said above, since the petitioner has failed to challenge the orders separately passed by the Election Tribunal dismissing the notice of recrimination and the application for amendment of written statement seeking to challenge the validity of the votes of the respondent. He is precluded from questioning the consequential finding in the impugned order that in the absence of the recrimination, votes of the respondent were not liable to be recounted.
' Upshot of the above discussion is that we find no merit in this petition which is hereby dismissed but with no order as to costs.