' FAQIR MUHAMMAD KHOKHAR, J.---The petitioner was notified on 23-5-1998 as a returned candidate from Electoral Unit No,1 of Zila Council, Faisalabad. The respondent No,1 who was a contesting candidate filed an election petition before the learned District and Sessions Judge/Election Tribunal, Faisalabad on 25-5-1998. The learned Election Tribunal refused the temporary injunction on 26-5-1988 whereupon the petitioner took oath of his office. Respondent No,1 made an application for the withdrawal of the election petition with permission to file a fresh one which was allowed by the learned Election Tribunal vide impugned order dated 15-6-1998. A fresh petition was filed before the Election Tribunal on the same day substantially on the same grounds to call in question the validity of the election.
2. Learned counsel for the petitioner argued that Election Tribunal was denuded of any power to permit a candidate to file a fresh petition after withdrawal of the earlier one. It was argued that under Rule 18 of the Punjab Local Councils (Election Petitions) Rules, 1979 (hereinafter referred to as the Rules) a tribunal may permit the withdrawal of an election petition. The said rule does not empower the Election Tribunal to grant a permission to file a fresh petition. Reliance was placed to the case of "Raja Noor Muhammad v. Raja Muhammad Sadiq" (PLD 1984 Lahore 239).
3. On the other hand, learned counsel for the respondent No,1 argued that the subsequent election petition dated 15-6-1998 was on the same grounds of challenge as the earlier one. It was further added that the subsequent election petition was also within time. The withdrawal of election petition was sought on account of non-servive of copies of election petition upon the respondent.
4. We have given our anxious consideration to the arguments addressed by the learned counsel for the parties. Clause (i) of Rule 3 of the Rules lay down that an election petition shall be presented within 30-days next after the publication of the result in the official gazette. Rule 8 of the Rules provides a procedure to be followed by an Election Tribunal for the trial of an election petition.
Clause (1) of the said rule provides that subject to the provisions of the Ordinance, the Election Rules and these 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. Clause (4) of the said rule empowers a Tribunal to allow an 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, so however that no new ground of challenge to the election is permitted to be raised. Under Rule 18 of the Rules, an election petition may be withdrawn by the petitioner by leave of Tribunal at any time during the course of trial. Where leave to withdraw an election petition is granted by the Tribunal, the petitioner is required to pay the costs incurred by the respondents to the election petition such portion thereof as the Tribunal may direct.
5. The above provisions of the rules would make it clear that the application of the provisions of Code of Civil Procedure is excluded to the extent of availability of particular provisions of the Punjab Local Government Ordinance, 1979, the Punjab Local Councils Election Rules, 1979 or the Election Petitions Rules, 1979. In case of inconsistency between the provisions of the Code of Civil Procedure and any of the provisions of the Ordinance or the rules, the former will yield to the latter. But the Code of Civil Procedure continues to be applicable as nearly as possible in an unoccupied field for the trial of an Election Tribunal. If there is any prohibition in the rules, the same will have to be given affect notwithstanding any provision to the contrary contained in the Code of Civil Procedure. A somewhat similar question was examined by the Indian Supreme Court in the case of" Harish Chandra Bajpai and another v. Triloki Singh and another" (AIR 1957 SC 444) wherein the provisions of sections 83(3) and 90 (2) of the Representation of the People Act, 1951, were interpreted. It was held as under:- "The true scope of the limitation enacted in section 90(2) on the application of the procedure under the Civil Procedure Code is that when the same subject matter is covered both by a provision of the Act or the rules and also of the Civil Procedure Code, and there is a conflict between them, the former is to prevail over the latter. This limitation cannot operate, when the subject-matter of the two provisions is not the same. Section 83 (3) relates only to amendment of particulars, and when the amendment sought is one of particulars, that section will apply to the exclusion of any rule of the Civil Procedure Code which might conflict with it, though it does not appear that there is any such rule. But where the amendment relates not to particulars but to other matters, that is a field not occupied by section 83(3) and Order 6, Rule 17, Civil P.C. Will apply. Section 83(3) is not a comprehensive enactment the whole subject of amendment. In this view, there is no scope for the application of the maxim, expression unious exclusion alterius. The provision is section 83(2) for stating the particulars separately in a list attached to the petition is one peculiar to the Indian statute, and the legislature might have considered it desirable ex abundant cautela to provide for a power of amendment in respect thereto. To such a situation, the maxim quoted above has no application. The application of Order 6, Rules 17, C.P.C. To the proceedings before the Tribunal is not excluded by section 83 (3). The Tribunal has power in appropriate cases to direct amendment of the petition under Order 6, Rule 17."
6. Under Order XXIII, Rule I of the Code of Civil Procedure, a plaintiff is entitled as of right to withdraw a civil suit. However, an election petition can be withdrawn only if permission is granted by the tribunal. This is subject to the payment of costs or a portion thereof incurred by the respondents to the election petition. Rule 18 of the rules does not spell out any prohibition against an Election Tribunal to allow the filing of a fresh election petition. The subject matter of the grant or refusal of permission to file a fresh election petition is notcovered by the rules. The same being unoccupied field can be dealt with in an appropriate case under Order XXIII, Rule 1 of the Code of Civil Procedure. However, subsequent election petition cannot be permitted to be filed on the grounds which are totally unconnected with the earlier ones. An election petition is not permitted to amend an election petition on entirely new grounds by virtue of clause (4) of Rule 8 of the rules.
7. In the present case, the Notification of the declaration of result of election was issued on 23-5- 1998 and the subsequent election petition was filed on 15-6-1998 well within the period of limitation prescribed for filing an election petition. The grounds in the subsequent election petition were substantially similar if not same. The withdrawal of the election petition with permission to file another one was sought by the respondent No,1 in order to remove an apparently technical defect of non-supply of copies of the election petition to the other side before filing the same. The filing of the fresh petition could have been objected to by the petitioner if the same was beyond the period of limitation or with altogether new grounds for challenging the election. Needless to say that under rule 8(4) an amendment in an election petition can be allowed for ensuring a fair and effective trial and for determining the real question of controversy provided new grounds of challenge to the election are not added. Thus, where an amendment of petition on the new allegations unconnected with the previous one for setting aside an election was sought beyond the period of limitation, the same was not allowed. Reference may be made to the cases of "Rai Mahmood Sultan v. Election Tribunal Zila Council Gujrat" (1987 SCMR 458), "Ahsan Ali Mandal v. Z.A. Chaudhry, Election Tribunal" (PLD 1966 Dacca 410) as affirmed in "Surajual Islam v. Ahsan Ali Mondal and others" (PLD 1969 SC 5), "Dharti Pakar Madan Lal Agarwal v. Shiri Rajiv Gandh" (AIR 1987 SC 1577 at page 1596), "M.A. Muthiah Chettiar v. Saw. Ganesan and another" (AIR 1958 Madras 187) and "Clark v.
Wallond and others" (52 LJR (1883) Q.B.D.3).
8. An order of withdrawal of an election petition like a civil suit does not amount to a dismissal of the election petition. Even where a civil suit is already pending, filing of another civil suit within the limitation period is not barred and the earlier suit can be withdrawn later. Thus, the election petition filed by the respondent No,1 subsequently within the period of limitation could be treated as if an original petition in the facts and circumstances of the case and would not be hit by Order XXIII, Rule 1, Order 2, Rule 2 or section 12 of the Code of Civil Procedure. We may refer to the cases of Ghulam Nabi and others v. Syed Muhammad Yaqub (PLD 1983 SC 344), Ram Lal v. Upendra Datt and another (AIR 1928 Lahore 710), and Nanad Lal v. Lakhmi and others (AIR 1939 Lahore 414).
9. The case of Raja Noor Muhammad (supra) relied on by the learned counsel for the petitioner is distinguishable from the present one. In the precedent case, a written statement had been filed by the returned candidate. An application for amendment containing a new ground of challenge was made. The same was dismissed by the Election Tribunal. It was thereafter that the election petition was allowed to be withdrawn with liberty to file a fresh one. The fresh petition was filed on an altogether a new ground of disqualification of the returned candidate being a Contractor of the Town Committee. The subsequent election petition contained the grounds which were unconnected with the earlier one. It was in these circumstances that a learned Division Bench of this Court took the view that after an amendment of earlier petition had been refused by an order of the learned election tribunal, the same object could not have been achieved by filing a fresh election petition.
10. For the foregoing .Reasons we do not find any infirmity or any jurisdictional defect in the impugned order in view of the peculiar facts and circumstances of the case so as to warrant any interference. Therefore, this petition fails and is dismissed. There shall, however, be no order as to costs. The learned Tribunal shall decide the petition by 30th of September, 1998.