' SYED JAMSHED ALI, J.---The dispute in this case relates to election to Town Committee Saray Sidhu from Electoral Unit No,10 which was held on 20-5-1998. The petitioner and respondents Nos.2 to 4 were candidates for the said election. The petitioner pond 91 votes while respondent No,2 polled 96 votes. Accordingly, respondent No,2 was declared as elected.
' The election of respondent No,2 has been challenged by the petitioner by way of an election petition on a number of grounds which is pending. On 4-7-1998, the petitioner made an application for summoning of record and recounting of the votes. On 7-7-1998, the learned counsel for the petitioner made statement that he will press the election petition only to the extent of recounting.
3. This application was disposed of vide order, dated 31-7-1998. The learned Election Tribunal framed a preliminary issue i,e, ' Whether the petitioner is entitled to recounting of votes polled? OPA and the case was posted for evidence of the petitioner for 3-9-1998.
4. This order has been assailed in the present constitutional petition. Relying on Abdul Majid v.
Election Tribunal (1993 M LD 2523) and Wilayat Khan v. Rehman Dad and others (1983 SCM R 532), the learned counsel submitted that since the only dispute raised in the election petition was recounting of votes, the prayer for recounting of votes ought to have been granted instead of framing an issue and calling upon the petitioner to adduce evidence.
5. On the other hand, learned counsel for respondent No,2 submitted that it was within the discretion of the learned Election Tribunal and if, the petitioner has been called upon to adduce evidence to justify the recounts, no exception can be taken thereto. He further contended that it was an interim order and. Therefore, not amenable to the constitutional jurisdiction.
6. Mr. Muhammad Zafar Sayal, Advocate, appearing for respondent No,3 has supported the request of the petitioner for recount.
7. We have considered the submissions made by the learned counsel for the parties. An election dispute is not stricto sens9 a dispute inter-parties because it affects the entire constituency, who have a right to insist that they are represented by a person who commands the will of the majority of electorate. Therefore, it is in the public interest that the election disputes are expeditiously resolved and parties are not put to a protracted trial. Although rule 8 of the Punjab Local Council (Election Petitions) Rule, 1979 permits trial of an election in accordance with the procedure prescribed for the trial of a suit, yet an election petition is not to be treated as suit. Otherwise, protracted trial might defeat the object of the Election Laws i,e, representation of the constituency by a duly elected person. Rule 44-A of the Punjab Local Council (Election Petition) Rules, 1979 empowers the learned Election Tribunal to inspect the counted ballot papers. This rule has been enacted to advance the aforesaid object i,e, expeditious resolution of an election dispute, purpose of this rule is to shorten the litigation also.
8. We may also refer to the instructions of the learned Punjab Local Council Election Authority contained in their Circular letter, dated 20-1-1992 which are reproduced hereunder:-- ' "No,EAP-LO-18/19, dated 20-1-1992 Subject: Disposal of Election Petitions.
' It has been represented to the Election Authority that the election petitions filed before the election Tribunals are invariably treated as civil suits without reference to the pleas set up and relief claimed by the petitioners. This obviously results in the delay in the disposal of election petitions.
The particular instance that has been cited in this regard is where petitioner seeks only recounting of votes after summoning of record of election and the consequential relief, if any, as a result of such recounting.
(2) The Election Tribunal may, therefore, consider the desirability of deciding the question of recounting as a preliminary issue.
(3) The above position may please be brought to the notice of all the Election Tribunals in your district for information.
9. According to the aforesaid instructions, an election petition is not to be tried as suit. The direction to treat recounting as preliminary issue does not visualize framing of an issue as required under Order XIV of the Code of Civil Procedure. In this case, the petitioner has given up all other grounds and claims only recounting. We may add that the relevant election record is, in fact, best evidence to resolve such a dispute. It appears, that the learned Election Tribunal, while framing an issue and directing the petitioner to produce evidence to justify recounting, was not mindful of its powers under Rule 44-A of the Punjab Local Councils Election Rules 1979. We are, accordingly, of the view that although recount cannot be claimed as of right yet if proper foundation is laid in the election petition or the application for recount and the learned Election Tribunal is satisfied that the request for recounting is reasonable, power under Rule 44-A can be exercised by summoning relevant election record, its inspection and recount. We are, accordingly, of the view that the application moved by the petitioner for recounting has not been decided in accordance with law and for this reason we repel the objection of the learned counsel for respondent No,2 that the impugned order being interim was not liable to be interfered with.
10. We, therefore, allow this petition and direct the learned Election Tribunal to decide the application of the petitioner afresh in the light of the above observation. There will be no order as to costs.