ORDER KHALID PAUL KHAWaJA, J.- In the General Elections held in October, 1993 Naeem Hussain Chattha petitioner was a candidate for a seat (N.A. 104) in the National Assembly of Pakistan from Sheikhupura. Tawakkal Ullah respondent No. 1 and Nazir A. Ourka, hereinafter also referred to as respondent No. 2, were the other candidates. Alter the conclusion of the election respondent No. 1 who secured 60917 votes was declared successful as against the petitioner and Nazir A. Nourka respondent No. 2, who got 60459 and 605 votes respectively (Annexure- R.2). The success of respondent No. 1 was duly notified through a Notification.
Feeling aggrieved the petitioner lodged an election petition under Section 52 of the Representation of People Act, 1976 contending that respondent No. 1 had been guilty of corrupt and illegal practices, and, therefore, instead of him he (the petitioner) should be declared as the returned candidate. He maintained that, in fact, he had secured more voles than the said respondent.
3. Notices were issued to the respondents. Respondent No. 2 could not be served and, therefore, as is apparent from the following order dated 19-1-1994 passed by my learned pred6cessor-in-office Zia Mahmood Mirza, J. As his Lordship then was, learned counsel for the petitioner requested the Court to delete the name of respondent No. 2 from the array of the respondents:- "Learncd counsel for the petitioner states that respondent No. 2 was not a contesting candidate and there are no allegations against him of any corrupt or illegal practices and, therefore, he is not a necessary party. He seeks permission to delete his name from the array of the respondent."
4. Pursuant to the above order the name of respondent No. 2 was deleted.
5. On 31-1-1994 respondent No. 1 filed his written statement vehemently contesting the election petition. In one of the preliminary objections he contended that since Nazir A. Nourka had not been joined as a party to the election petition the same was liable to be dismissed under Section 63 of the Representation of People Act, 1976, hereinafter referred to as the Act. On the pleadings of the parties my learned predecessor in office framed as many as eight issues on 2-3- 1994 and adjourned the case to 9-4-1994 for the petitioners' evidence.
6. On 29-3-1994 the petitioner moved C.M. No. 2 of 1994 requesting that the written statement filed by respondent No. 1 be struck out as it was violative of para No. 3 of Notification No. F,l(7)-85-Cord: whereby the Election Commission had laid down the procedure for the trial of election petitions.
7. On the same day he moved yet another application C.M No. 3/94 under Section 64 of the Act read with Section 151 and Order. I rule 10 CPC for permission to rcslorc/implcad the name of Nazir A. Nourka as respondent No. 2 in the election petition. Both the above-mentioned- applications were stoutly contested by respondent No. 1. . '
8. Before proceeding further,,it may be poointed out that on 8-2-1996 the learned counsel for the petitioner withdrew C;M. No. 2/94 which was accordingly dismissed as withdrawn. By this order, therefore, I propose to dispose of C.M No. 3/94 only.
9. I have heard the parties' learned counsel at length and have also gone through the record with their assistance.
10. Learned counsel for the petitioner has made the following submissions:
(i) that respondent No. 2 was not a contesting candidate within the ' meaning of Section 54 of the Act and therefore, his impleadment was not necessary nor was his absence from the array of respondents fatal to the petitioner's election petition;
(ii) that the name of respondent No. 2 was deleted by an order of the Tribunal which had been passed in exercise of its discretionary powers unde Order 1 rule 10(2) CPC and therefore, no act of the Tribunal or a Court could be construed to non-suit the petitioner;
(iii) that the discretionary order dated 19-1-1994 was passed in the presence of respondent No. 1 and his learned counsel who in order to gain illegal advantage deliberately suppressed from the Tribunal that the order was illegal and should not be passed and therefore, now they were estopped from raising the plea that the petition was liable to be dismissed on the basis of the order dated 19-1-1994; and
(iv) that since the name of respondent No. 2 had been deleted by the Tribunal through inadvertence, the said respondent may be allowed to be impleaded as a party so- that ho right of the petitioner is jeopardised due to technicality.
11. Copversely learned counsel for the respondent No. 1 has contended: -
(i) that respondent No. .1 was a contesting candidate within the meaning of the term given in clause (viii) of Section 2 of the Act and therefore, omission to join him in the proceedings in an election petition was fatal under Section 63 ibid, '
(ii) that the order dated 19-1-1994 was not an order passed in exercise of - the discretion of the Tribunal but had been passed on the request and asking of the petitioner;
(iii) , that the order dated 19-1-1094 was not illegal and therefore, respondent No. I was under no obligation to ask the Tribunal not to pass that order or ask the pelilioneiMo.Relrain from giving up the name of respondent No. 2 and thus in view of the circumstances of the case the principle of estoppel would apply to the petitioner and not to respondent No. I;
(iv) that the omission to join respondent No. 2 as a respondent has created a right in favour of the petitioner and therefore, he should not be deprived of the said right: and
(v) that the petitioner was not ^enlitled to the permission to rcimplead . Respondent No. 2 especially when the period of limitation had expired and therefore his application was liable to be dismissed.
12. Firsi of all I take up the question if Na/ir A. Nourka wfas a necessary party in the present election petition. Section 54 of the Act reads as follows:- "54. Parties to the petition.- The petitioner shall join as respondent to his election petition.-
(a) all contesting candidates; and
(b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shrill serve personally or by registered post on each such respondent a' copy of the petition.
Explanation:- In this Section and in the following provisions of this chapter, "corrupt or illegal practice" means a "corrupt practice" or an "illegal lyaclicc" within the meaning of Chapter VIII."
13. The case of respondent No. 1 is that since Nazir Ahmad Nourka was a contesting candidate, therefore, he w'as a necessary party to the election petition. On the other hand (he contention of the learned counsel for the petitioner is that he was not a contesting candidate and in fact, had not participated in the election.
The Act gives a definition of the'term "contesting candidate" in Section 2(viii) which reads as follows: - 2(viii) " contesting candidate" means a validly nominated candidate who has not withdrawn his candidature".
14. There is nothing on record to show that Nazir A, Nourka had ever withdrawn his candidature rather the material on record shows that during the election he had secured 60S votes 'and as such for all intents and purposes he was a contesting candidate and thus a necessary party to the election petition.
15. This brings me to the next question as to what would be the effect of the non-joinder of the said Nazir A. Nourka. Section 63 of the Act lays down:- "63. Dismissal of petition during trial.- ( . The Tribunal shall dismiss an election petition, if-
(a) the provisions of Section 54 or Section 55 have not been complied with; or . .
(b) if the petitioner fails to make the further deposit required under sub-section (4) of Section 62".
16. It is abundantlydear from the above provision of law that non-joinder of a necessary party would entail dismissal of the election petition. The provisions contained in Sections 54 and 63 are mandatory in nature and not merely directory. I, therefore, have no hesitation in concluding that non-joinder of Nazir A. Nourka in this case would result in the dismissal of the election petition.
17. Learned counsel for the petitioner has argued that the petitioner had complied with the mandatory provisions of Section 54 by joining Nazir A. Nourka as respondent No. 2 at the time of the filing of the election petition and therefore the deletion of his name from the said petition at subsequent stage would be of no consequence. The argument is without force and is repelled because it is dearly against the spirit of the Statute. Section 54 of the Act requires a petitioner to join every contesting candidate as respondent to his election petition. This requirement is not merely cosmetic and will be considered to have been fulfilled only if all the contesting candidates continue to be respondents to 4th election petition till it is finally disposed of. It will not be considered to be due compliance of the provision if a contesting candidate is joined as respondent for a few days and then is dropped. . t
18. The next question which comes up for consideration js as to whether the order dated 19-1-1994 was passed by the Tribunal on its on. Motion or the same was made on the request of the petitioner. The said order has been reproduced in para No. 3 above and it is manifestly ,clcar that it was the petitioner's learned counsel who had sought permission of the Tribunal to delete his name from the array of the respondents. A bare reading of the said order does not even suggest, that the statement which the learned counsel for th petitioner had made was prompted by the Tribunal. In this view of the matter it is held that the name of Nazir A. Nourka had been deleted from the array of the respondents on the request of the petitioner's learned counsel and not by the Tribunal in exercise of its discretionary powers under Order I*rule 2 CPC. In this view of the matter the contention of the learned counsel for the petitioner that the petitioner could not be compelled to suffer on account of an error on the part of the Court/Tribunal, is misconceived. This was not a mistake of the Tribunal but a blunder of the petitioner.
19. Now I come to another interesting argument which the learned counsel for the petitioner had developed and raised before me. According to him the order dated 19-1-1994 was passed in the presence of the learned counsel for the respondent No. 1 who deliberately kept quiet and did not point out to the Tribunal that by the deletion of the name of Nazir A. Nourka the petitioner's election petition would be rendered defective and liable to dismissal and since he did not do so he was precluded from saying subsequently that by the dropping of the name of Nazir A. Nourka the election petition had become liable for dismissal. This argument is totally misconceived. Learned counsel for the respondent was not legally obliged to point out to the Tribunal that by deleting the name of respondent No. 2 the petitioner's election petition would become defective and therefore the principle of estoppel would not be applicable to him. It .Vill be presumed that the provisions of Sections 54 and 63 of the Act were in the knowledge of the learned counsel for the petitioner and despite that knowledge if he had made the request before the Tribunal for the deletion of the name of respondent No. 2 then he was responsible for the consequences and not the learned counsel for respondent No. 1. Why ^hould one stop his enemy from committing suicide? I, therefore, conclude that the principle of estoppel does not apply in this case at all and is totally irrelevant.
20. This brings us to the question as to whether the petitioner could be allowed to reimplead respondent No. 2 in his election petition. There is no dispute between the parties on the point that a Court or an Election Tribunal has ample powers to allow amendment of pleadings and impleadment of necessary parties. v In this connection if an authority is needed the case of Ali Ahmad Khan v. Muhammad Qasfln Khan and others (PLD 1985 Jour.277) is cited, it was held therein that the Election Tribunal, in the interest of justice, could allow pleadings to be amended, parties to be added or deleted in election petitions. Both the parties have relied on this judgment.
21. : Leamed counsel lor the respondent has however, contended that' neither amendment of pleadings could be allowed nor parties could be added in a suit or election petition after the expiry of the period of limitation, In this connection he has relied upon a number of precedents, a resume of which is being given as follows:- "in Bishambi'rdas Bodhraj v. Brijlal Arord (AIR 1931 Bombay 590) it was held that an amendment in the pleadings wouid not be allowed if it affects limitation, it was further held that where defendant had been impleaded, given up subsequently and then rcimpleaded it would be considered as if he has .Never been impleaded before.
In Jagdiswa r Prasad Misra v*. Hars-aran fi-hiand others (AIR (29) 1942 Patna 270) it was laid down that where a defendant was impleaded, later on given up'and then rcimpleaded it would be * considered that he had been impleaded on the day when he was allowed to be reinstated. : ' v .
In Haveli Shah and another v. Khail Saheb $heikh~ Painda Khan (AIR 1926 Privy Council 88) it was - held that/'where a pafty is discharged and later on reinstated the suit wduld be deemed to have been instituted on the date of the said reinstatement.
In Govind Chandra Ghose y. Jamaluddin Mondal and others (AIR 1933 Calcutta 621) it was'declared that whehe az necessary party was joined after the period of limitation the whole suit would fail.
In Dinesh Chandra Choudhury and others v, Rajendra Chandra Kar and others (AIR 1938 Calcutta 324) and Muhammad Khan v. Abdul Khaliq Khan (PLD 1981 Supreme Court 155) the above view was reiterated. , In support of his contention1 that the petitioner was estopped from challenging the order of the Tribunal, dated 19.1.1994 learned counsel has relied on two cases. In Muhammad Rafique Guzdar v.
Additional Commissioner, Kgritchi and 3 others (PLD T972 Karachi ll9 (D.B)), it was laid down that where a party asks the Court to do something which is not in accordance with the law the said party is estopped to subsequently challenge the order of the Court passed on his asking.
In KShanmugham Pillai and others v. S.Shanmugham Pillai and others (AIR 1968 Madras 207 (D.B)) it was held that if a party elected to choose a course of action it could not be allowed to go behind it.
Learned counsel for the respondent has qlso relied on Mrs. Syeda Saliida Zaidi i'. Hafiz Muhammad Taqi and others (KLR 1986 Magazine Cases 30 (Election Commission of Pakistan, and AH Ahmad Khan v. Muhammad Qasim Khan and others (PLD 1985 Jour. 277) also reported as NLR 1995 Civil 814 wherein it has been held that provisions of Section 54 of the Representation of People Act, 1976 were mandatory in nature and the election petition was liable lobe dismissed if necessary parly was not joined. In the latter case it was further held that a prayer to join left out contesting candidate after the expiry of the period of limitation in an election petition would not be allowed and the petition would be liable to be dismissed under Section 63 of the Act.
22. Learned counsel for the petitioner maintained that the judgments cited by the learned counsel for the respondent were not applicable in the present case and were wholly irrelevant, In support of his case he relied on Ali Muhammad Kiwn's case referred to above as (PLD 1985 Jour.277). The above- mentioned resume of the cases relied upon the learned counsel for the respondent amply shows that the principles or the law laid down in the said cases was fully applicable in the present case and therefore, they could not be brushed aside by merely saying that they were irrelevant.
The authority on which learned counsel for the petitioner has relied goes against him.
23. According to Section 52 (2) of the Act the period of limitation for filing an election petition is 45 days which was to be counted from the date of the publication in the official gazette of the name of the returned candidate.. It is a common ground between the parties that when C.M. No. 3 of 1994 for the reinstatement of respondent No. 2 was moved i.e bn 29.3.1994 the said period of limitation had expired. As such in view' of the law laid down in the above- mentioned precedents, which J respectfully follow, respondent No. 1 could not be allowed to be reinstated . In this connection J would like to quote the following portion from the judgment in y4/i Ahmad Khan's case on which the learned counsel for the petitioner has relied: "It is now to be considered whether at this stage Hazral Ali Karbala can be joined as a respondent.
The prayer for joining him as a party has been made-after the expiry of the period of limitation. But for this reason in the facts and circumstances of the case, in exercise of power to grant amendment it may have been possible to grant the request. But surely not after the expiry of the pciiod of limitation. If such application would have been made before the expiry of the limitation it would have been just and proper to allow thic contesting candidate to -be joined because if taking a Very strict view the petition would have been dismissed perhaps the petitioner would have had sufficient time to file a fresh petition joining all the contesting candidates. In these circumstances the dismissal would have been an exercise in futility. It is well-settled that no one* can be joined as a party to the proceedings after the expiry of the period, of limitation. Even the ( affidavit filed by Ha/rat Ali Karbala docs not state that he is prepared to be joined as a party. I, therefore, see no just reason to allow. Ha/rat Ali Karbala to be joined as a respondent in this petition".
24. The law laid down on the subject is abundantly clear and 1 have no doubt in my mind that respondent No. 2 carinol be reinstated in this election\ petition because of the fact that his application for reinstatement was moved after the expiry of the period of limitation. Consequently, finding no merit in this application 1 dismiss the same. y
25. Since a necessary party had not been impleaded the election petition as required under Section 54 the same was liable to be dismissed under Section 63 of the Act. In this view of the matter the election petition instituted by the petitioner is dismissed. The parties shall however, bear their on. Costs.