LEHRASAP KHAN, J.--Malik Muhammad Shafi, the petitioner herein, and Malik Farzand Ali respondent No.1, hereinafter referred to as the respondent, contested Local Councils Election held in October, 1983, from Ward No.5 of Union Council Sheikhum, Tchsii Chunian, District Kasur. As a result of the poll, the petitioner was declared elected.
2. The respondent challenged the election of the petitioner by filing an election petition .Before the Election Tribunal, under section 24 of the Punjab Local Government Ordinance, 1979. The election was challenged on the ground of irregularities having been committed by the polling staff and corrupt practices having been allegedly exercised by the petitioner. The election petition was, of course, resisted by the petitioner, through a written reply. Issues arising out of the parties' pleadings were framed; but before the commencement of the parties' evidence, the petitioner submitted an application seeking permission to amend the written reply so as to raise an objection that while filing the election petition the respondent in disregard of the provisions of rule 4 of the Punjab Local Councils (Election Petitions) Rules, 1979, failed to deliver a copy of the election petition to the petitioner either personally or through post and thereby his election petition was liable to be dismissed under rule 9 ibid. The application for amendment of the written reply was opposed by the respondent and the learned Election Tribunal, Mr. Lkram-ul-Haq Chaudhry, the then Civil Judge First Class, Chunian, after hearing the parties, dismissed the petitioner's application for amendment of the written reply on 17-4-1984, mainly on the ground that there was no provision in the Punjab Local Government Ordinance, 1979, the Punjab Local Councils (Election) Rules, 1979, and the Punjab Local Councils (Election Petitions) Rules 1979, authorising the Tribunal to allow amendment in the written reply. It was also observed that the application for amendment of the written reply was filed at a late stage.
The aforementioned order dated 17-4-1984, passed by the learned Election Tribunal has been impugned through the present Constitutional petition.
3. It has been mainly urged that provisions of the Code of Civil Procedure were applicable in case of election petitions and, therefore, by virtue of Order VI, rule 17 of the said Code, the Tribunal could competently allow the amendment. It has thus been urged that the Tribunal has failed to exercise jurisdiction vesting in him.
4. Under sub-rule (4) of rule 8 of the Punjab Local Councils (Election Petitions) Rules, 1979, the Tribunal has been authorised to allow the election petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions in controversy between the parties. There is no such provision in the Punjab Local Councils (Election Petitions) Rules, 1979, permitting amendment in the written reply. It has, however, been provided in sub-rule (1) of rule 8 ibid that subject to the provisions of the Ordinance, the Election Rules and the Election Petitions Rules, every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908 (Act V of 1908). Rule 10 ibid further provides that the Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), and shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
It is thus evident that under rule 8 of the Elections Petitions Rules 1979, in the absence of provisions to the contrary in the Punjab Local Government Ordinance, 1979, Punjab Local Councils (Election)
Rules 1979 and the Punjab Local Councils (Election Petitions) Rules, 1979, provisions of the Code of Civil Procedure shall be applicable in case of election petitions. Admittedly, there is no provision in.
The Punjab Local Government Ordinance 1979, the Punjab Local Councils (Election) Rules 1979 and the Punjab Local Councils (Election Petitions) Rules, 1979, prohibiting amendment in the written replies expressly or impliedly. We are, therefore, of the view that under Order VI, rule 17 of the Code of Civil Procedure, amendment in case of written replies to the election petitions can be allowed, if otherwise warranted.
5. The learned counsel for the respondent, however, has urged:
(a) Code of Civil Procedure is not applicable to the election petitions and, therefore, amendment cannot be allowed in the written reply; and
(b) Even if it is assumed that Code of Civil Procedure is applicable, the Tribunals' orders being discretionary ones and based on sound judicial principles could not be challenged by invoking the writ jurisdiction of the High Court.
The learned counsel for the respondent, however, has not been able to show that Civil Procedure Code was not applicable in case of election petitions. While referring to rule 8 of the Election Petitions Rules, 1979, he maintained that under this rule, provisions of the Code of Civil Procedure were applicable in case of election petitions as nearly as may be and not in entirety.
It is true that the provisions of the Code of Civil Procedure have been applied in case of election petitions subject to the provisions of the Ordinance, Election Rules and the Election Petitions Rules, as nearly as may be, but in the absence of provisions to the contrary in the Ordinance, the Election Rules and the Election Petitions Rules, provisions of the Code of Civil Procedure would be applicable in case of election petitions. As already observed, there is no provision in the Ordinance, the Election Rules and the Election Petitions Rules, expressly or impliedly prohibiting amendment in the written reply. In such circumstances, in case of written replies to election petitions, amendmet can be sought under Order VI, rule 17, C.P.C.
6. Regarding the second objection it has been urged that while dismissing the petition for amendment of the petitioner, the learned Tribunal has observed that the application for amendment has been moved at a belated stage and a right had already accrued to the respondent which was sought to be taken away. Reliance on behalf of the respondent has also been placed on Executive Engineer, 5th Provincial Buildings Division, Lahore, etc. v. Messrs Combined Traders, Lahore (1980 SCMR 961), wherein it has been ruled that the question whether a party can be permitted to amend its pleadings was within the discretion of the trial Court and that exercise of such discretion could not be interfered with unless the same be perverse.
Regarding the plea of delay, it may be .Observed that amendment of the pleadings, if considered necessary for the determination of the real question in controversy between the parties, can be allowed at any stage. In Muhammad Rafiq v. Arif Ali and another (1983 CLC 1683) it was held that amendment of written statement enabling the defendants to raise plea of limitation was rightly allowed by the trial Court and that it could not be said that the proposed amendment was belated, because amendment was sought after framing of the issues. In Mst. Waiir Begum v. Mst. Sardar Begurn and 7 others (1979 CLC 72), it was observed that there was no universal principle that when an application is made at a belated stage it cannot be considered. 1t was further held that application seeking amendment in written statement so as to incorporate plea of limitation could be allowed at any stage. In Syed Akhlaque Hussain and another v. Water and Power Develpment Authority, Lahore (1977 5-C M R 284), it was ruled by the Supreme Court of Pakistan that amendment, if considered necessary for determining real question of controversy between the parties, should be allowed liberally, except when the proposed amendment amounts to setting up an altogether different cause of action. In Mst. Zubeda Begum and another v. Wali Muhammad Khan and 2 others (1974 SCMR 181) amendment was allowed by the Supreme Court to amend the plaint suitably, to enable the plaintiffs to confine their suit to the mortgaged properties alone. In Muhammad Sulaiman and another v. Javed lqbal and others (PLD 1982 SC (A J & K ) 64), an authority relied upon by the learned counsel for the respondent, it has been held that powers of Court to allow amendment of pleadings is very were, but amendment involving setting up of a new case in pleadings cannot he allowed.
It is for the learned Tribunal .To see as to whether the proposed amendment amounts to setting up of a new case or is otherwise opposed to the law of pleadings, as contained in Order VI, rule 17, C.P.C. We do not consider appropriate to express our opinion in this behalf at this stage.
7. In the light of the above discussion, we have come to the conclusion that while passing the impugned order, the learned Tribunal has failed to exercise jurisdiction vesting in it and the other grounds taken, being clouded under the umbrella of the illegal view earlier held, the whole order deserves to be set aside In this view of the matter, we allow this writ petition and declare the impugned order to be without lawful authority and of no legal effect. Consequently, the case is remanded to the learned Election Tribunal with the direction to decide the petitioner's application for amendment of the written reply afresh, in the light of above observations, in accordance with law after hearing the parties. There shall be no order as to costs. The parties shall appear before the Tribunal on 22nd of December, 1934.