' MUHAMMAD NAWAZ ABBASI, J.---The petitioner, namely, Muhammad Saeed Ahmad Butt, contested the election from Ward No:52,of the Municipal Corporation, Rawalpindi and upon securing 682 votes was declared successful. Respondent No,2, namely, Babu Muhammad Riaz, a contesting candidate secured second position by obtaining 584 votes, whereas respondents Nos.3 to 5 could get 55,234 and 130 votes respectively. Respondent No,2 being dissatisfied with the result of election challenged the same through election petition under the Punjab Local councils (Election Petition) Rules, 1979 inter alia on the grounds that the returned candidate, the petitioner herein, was guilty of corrupt and illegal practice. The petitioner, while filing written statement to the election petition controverted the contents thereof. In the meanwhile, respondent No,2 preferred as application before the Punjab Local Council Election Authority at Lahore for the transfer of election petition from the Tribunal of Ward No,52 to some other Tribunal and consequently the prayer having allowed, the Punjab Election Authority vide order, dated 15-7-1998 withdrew the election petition from Mr. Perwaiz All Chawla, Additional District Judge/Election Tribunal, Rawalpindi and entrusted the same to Mr. Ata Rasool Joyia, Additional District Judge/Election Tribunal, Rawalpindi.
' The Election Tribunal after framing the issues adjourned the matter for recording the evidence of the parties. In the meanwhile, respondent No,2 filed an application on 29-7-1998 for the amendment of the election petition, whereas the petitioner moved an application under rule 9 of the Punjab Local Council (Election Petition) Rules, 1979 for dismissal of the election petition. The Tribunal dismissed both the applications through a consolidated order dated 24-9-1998.
Respondent No,2 being aggrieved of dismissal of his application for amendment of the election petition preferred a Writ Petition numbering 2116 of 1998 before this Court which, was allowed by a Division Bench of this Court vide order dated 5-11-1998 and the said respondent was permitted to amend the election petition, while Writ Petition No,2370 of 1998 filed by the present petitioner against the order dated 24-9-1998 assailing rejection of the election petition, was dismissed by this Court vide order dated 10-11-1998. Respondent No,2 thereafter filed an amended election petition before the election Tribunal. The copy of which was delivered to the learned counsel foi the petitioner on 23-11-1998 and the case was adjourned to 25-11-1998 for filing the amended written statement. On the said date, the petitioner moved an application for adjournment on the ground that his counsel was not available and the case was accordingly adjourned to 26-11-1998, on which date, the petitioner again sought adjournment and the matter was postponed to 27-11-1998 and then it was adjourned to 28-11-1998, when learned counsel for the petitioner moved an application for grant of further adjournment on the ground that the order passed by the High Court in Writ Petition No,2370 of 1998 was under challenge in a Petition for Leave to Appeal before the Supreme Court of Pakistan and the case was adjourned to 30-11-1998, on which date the petitioner sought postponement of the election petition till some order is to be passed by the apex Court on the Petition for Leave to Appeal. The request of the petitioner having strongly opposed on behalf of respondent No,2, the Election Tribunal striking off the defence of the petitioner under Order VIII, rule 10, C.P.C. Read with rule 8 of the Punjab Local Council (Election Petition) Rules, 1979, allowed the election petition with the observation that the present petitioner despite availing four opportunities for filing of the written statement to the amended election petition failed to do the needful.
Respondent No,2 who secured the second position in the election was declared as elected member from Ward No,52 of the Municipal Corporation, Rawalpindi, by the Tribunal vide order dated 30-11-1998.
2. The petitioner being aggrieved of the order of striking off his defence and acceptance of the election petition by the Tribunal through the impugned order, has preferred this Constitutional Petition before this Court which came up for hearing on 2-12-1998 when this Court passed the following order at liming stage:-- ' "The learned counsel contends that after filing the written statement to the election petition, the defence of the petitioner could not have been struck off on the ground that the reply to the amended petition was not filed and that in any case the Tribunal without proceeding further could not pass order forthwith in such manner. Learned counsel further contends that the amendment sought in the election petition was not at all required for the purpose and that -the written statement available on file could have been treated sufficient for just decision of the matter. The contention raised needs examination.
2. Admit. Notice.
C.M. No, 4725 of 1998.
3. This is an application for exemption of filing of certified copies of the Annexures. Allowed and disposed of subject to all just exceptions. C.M. No,4726 of 1998.
4. Notice. At this stage, Mr. Mansoor Ahmad, learned counsel appearing on behalf of respondent No,2 producing the copy of the notification dated 1st of December, 1998, with a copy of oath of the officer administered to the respondent No,2, today opposed the grant of interim relief sought by the petitioner.
5. In view of the above situation, we restrain respondent No,2 from functioning as member till the next date of hearing.
6. Notice on behalf of respondent No,2 has been accepted by Mr. Mansoor Ahmad, Advocate. The service of the remaining respondents shall be effected through special measures for 10-12-1998 in the main petition as well as in the Civil Miscellaneous."
3. The election for the seat of Mayor and Deputy Mayor of Municipal Corporation, Rawalpindi were scheduled to be held on 15-12-1998 and the parties were interested in disposal of this petition before the said date, therefore, on the joint request of their learned counsel, this petition was fixed for today. On 3-12-1998, Mr. Mansoor Ahmad, Advocate, counsel for respondent No,2 presented a miscellaneous application before the Court containing the request for permission to submit the nomination papers to respondent No,2 for the election of Mayor. As per contents of the application, the nomination papers were to be filed on 5-12-1998 and the scrutiny of the same was to be made on 7-12-1998 and in the meanwhile, there would be no Division Bench functioning. Since the writ petition was fixed for 10-12-1998 and the election of the Mayor was scheduled to be held on 15-10- 1998, this Court passed the following order on 3-12-1998:-- ' "This application has been presented in Court before us today containing the request that the petitioner may be allowed to submit nomination papers for contesting the election of the Mayor and Deputy Mayor scheduled to be held on 15-12-1998 for which the nomination papersare to be submitted on 5-12-1998.
2. Since the petitioner has already been notified as member and has also taken oath of the office, we, therefore, modifying the order dated 2-12-1998 direct that without functioning as member of the Municipal Committee, in the meanwhile, he is allowed to submit the nomination papers. This order, however, shall be subject to the decision of the writ petition. Civil Miscellaneous stands disposed of."
4. The Civil Petition No,1374 of 1998 titled Muhammad Saeed Akhtar v. Babu Muhammad Riaz' against the order passed by this Court in Writ Petition No,2116 of 1998 was fixed before the Hon'ble Supreme Court of Pakistan on 4-12-1998 and the apex Court suspended the operation of order dated 3-12-1998 of this Court with the following observations:-- "However, it seems that upon an application (C.M.A. No,4793/98) filed by the respondent No,1, the learned Division Bench, vide order dated 3-12-1998, without issuing notice to the petitioner modified its above earlier order dated 2-12-1998 and allowed the respondent No,1 to function as a member and to be a candidate for the Mayorship. We would suspend both the above orders dated 3-10- 1998 . "
' We may clarify that the order dated 3-12-1998 passed by this Court was only to the extent of giving permission to respondent No,2 to file the nomination papers without permitting him to function as member of the Municipal Committee and the order dated 2-12-1998 was, therefore, not modified adverse to the interest of justice and the petitioner.
5. Learned counsel appearing on behalf of respondent No,2 stressed for the postponement of this petition till the disposal of the leave petition by the apex Court, whereas, learned counsel appearing on behalf of the petitioner strongly opposed the postponement of the hearing of the case as the petitioner is ceased to act as member in consequence of the judgment of the Election Tribunal, whereas respondent No,2 (Babu Muhammad Riaz) has also been restrained from functioning as member by this Court as well as the apex Court and the election of the Mayor, Municipal Corporation, Rawalpindi' is scheduled to be held on 15-12-1998 and thus if this petition is not disposed of before the said date, the constituency shall remain unrepresented in the election of Mayor. Both the learned counsel have conceded that the apex Court has not passed any restraint order and this petition being independent to the matter before the Supreme Court can be disposed of. The order in the present petition is not subject-matter of the petition before the Supreme Court and further without the decision of this petition, the disposal of the matter by the Supreme Court will not change the position. We, therefore, in the circumstances deem it proper to dispose of this petition.
6. Learned counsel for the petitioner has raised the following contentions:--
(i) That the learned Tribunal allowed the election petition readily on a technical ground that the written reply to the amended election petition was not filed despite the grant of four opportunities, with the motive to prolong the proceedings.
(ii) That the order of this Court in the writ petition by virtue of which the respondent No,2 was allowed to amend the election petition was under challenge before the Supreme Court of Pakistan and, therefore, the Tribunal was not supposed to proceed further pending disposal of the matter by the apex Court.
(iii) That the Tribunal under rule 8 of the Punjab Local Council (Election Petition) Rules, 1979 is empowered to permit any person to give evidence through affidavit, but this method is followed only in exceptional circumstances.
(iv) That Order VIII, rule 10, C.P.C. Is not mandatory in nature to pronounce the judgment forthwith, but the proper course for the Tribunal in the given situation was to record the evidence of corrupt and illegal practice and decide the election petition on merits, but the Tribunal upon failure of the petitioner to submit written reply to the amended petition, on the basis of affidavits annexed with the election petition without verifying the contents thereof deseated the petitioner. Learned counsel for the petitioner in support of his contentions has placed reliance on the following case law:--
(1) Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160).
(2) Mst. Bilqees Begum v. Syed Ali Turab (represented by legal heirs) and another (1980 CLC 930).
(3) Sh. Abdul Malik v. Sh. Mehboobur Rehman and another (1988 CLC 56).
7. Learned counsel appearing on behalf of respondent No,2 forcefully argued that the petitioner was contumaciously delaying the proceedings and despite getting repeated adjournments did not file the reply purposely. He argued that the pendency of the matter before the apex Court was not a bar to file a written reply to the election petition and, therefore, non-submission of reply to the amended election petition on this ground was not justified. He placing reliance on case Mst.
Haukmat Bibi v. Imam Din and others (PLD 1987 SC 22) argued that non-submission of reply to the amended petition would necessarily result in the nature of striking off defence under Order VIII, rule 10, C.P.C. He argued that although the Punjab Local Council (Election Petition) Rules, 1979 prevailed over the procedure of C.P.C. For the purpose of election petitions, but the said Rules also contain the concept of expeditious disposal of election disputes and thus the application of Order VIII, rule 10, C.P.C. Was not an exception in the present case.
8. We have heard the learned counsel for the parties at length and gave full consideration to the arguments advanced by both sides. The pivotal questions in the facts given in the background would be:--
(i) Whether the provisions of Rule 8 of the Punjab Local Council (Election Petition) Rules, 1979 read with Order VIII, rule 10, C.P.C. Would be applicable as such in case of non-submission of reply to the amended petition, when the written statement to the election petition was already on record?
(ii) Whether the Election Tribunal in terms of rule 10 of the Punjab Local Council (Election Petitions)
Rules, 1979 was not required to record the evidence in proof of the allegation of corrupt and illegal practice and decide the election petition on merits?
9. Rule 8 of the Punjab Local Council (Election Petition) Rules, 1979, provides as under:-- "8. Procedure before Tribunal.---(1) 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 (Act V of 1908): ' Provided that the Tribunal may---
(a) Where the election petition claims a relief a declaration that the election of the returned candidate is void on the ground that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member, decided the question of such qualification or disqualification as a preliminary issue.
(aa) require the parties to file within 15 days of the date on which the case is fixed for evidence, a list of witnesses whom they propose to produce to give evidence or to produce documents, mentioning against the name of each witness as precise of the evidence that each witness is expected to give;
(b) make a memorandum of the substance of the evidence of each witness as his examination proceeds unless it consider that there is a special reason for taking down the evidence of any witness in full;
(c) refuse to examine witness if it considers that his evidence is not material or that he has been called on a frivolous or vexatious ground for the purpose of delaying the proceedings or defecting the ends of justice; and
(d) refuse to issue any summons for the appearance of any witness unless within 3 days following the date on which the parties are called upon to produce their evidence, any party intimates the tribunal that it desires a witness to be summoned through the Tribunal and the Tribunal is satisfied that it is not possible or practicable for such party to produce the evidence.
(2) The Tribunal may permit the evidence of any witness to be given by means of an affidavit: Provided that if the Tribunal deems fit, it may call such witnesses for the purpose of examination before it.
(3) Subject to the provisions of the Ordinance, the Election Rules and these rules, the Evidence Act, 1872 (I of 1872) shall apply to the trial of an election petition.
(4) The Tribunal may, at any time, upon such terms and on payment of such costs as it may direct, allowed a 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."
' Order VIII, rule 1, C.P.C. Provides as under:-- "1. Written statement.---The defendant may, and, if so required by the court, shall at or before the first hearing or within such time as the Court may permit, present a written statement of his defence: ' Provided that the period allowed for filing the written statement shall not ordinarily exceed ninety days."
' The proviso to rule 1 of Order VIII, C.P.C. As introduced by Law Reforms Ordinance, 1972 (XII of 1972) provides that ordinarily the period, for filing of written statement should not exceed ninety days. The law in its wisdom provides maximum period of ninety days and thus the Court should not normally proceed ex parte or impose penalty where no prejudice has been caused. The apex Court in case of Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89) held with reference to the proviso as follows: "This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word may here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant. It had further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after- recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially." In the present case, the election petition was allowed forthwith only for the reason that the defence of the petitioner was struck off without visualizing that the dispute could not be decided without recording the evidence. Anyhow, it is not digestible that rule 10 of Order VIII, C.P.C. Is not applicable to amended written statement. Instead, there is a strong view that it applies only in cases of rule 9 of Order VIII, C.P.C. And not rule 1 of said Order. Be that as it may, where the required written statement is not filed, there can be following two alternatives:-
(a) the pronouncement of judgment forthwith or
(b) making of such other orders."
10. It is discretionary with the Court to apply the penal provisions of rule 10 of announcement of judgment without recording the evidence, but still it should be on the basis of evidence. The punitive action should only be taken in severe circumstances and the Court may in the aliernative award costs or proceed to record the evidence ex parte and then pronounce the judgment. A defendant in ex parte proceedings can appear at any subsequent stage until an ex parte decree is not passed, but he would remain debarred from filing the written statement. The right to appear in a suit is different from the right to file a written statement and a party which has failed to file the written statement, still has the right of cross-examining the witness of the other party and where such right is refused, the evidence so recorded cannot be used against such party. The election of the petitioner was challenged on the ground of corrupt and illegal practice and the requirement was to establish this question of fact through the evidence with permission to the petitioner to cross-examine them. The charge of corrupt and illegal practice is of semi-criminal nature and thus unless a person is provided full and proper opportunity to defend himself, no penal action should be taken against him.
11. There can be no denial to the proposition that Order VIII, rule 10, C.P.C. Applies where a specific order is made for filing of the written statement and the defendant fails to make compliance thereof but the normal time for submission of the written statement as provided under Order VIII, rule 1, C.P.C. Can be the ninety days, and the written statement if already on the file, the Tribunal even in strict compliance of the above said rule is not supposed to take penal action of striking off the defence hurriedly.
12. There were three other respondents in the election petition, who being defeated candidates were impleaded as party in the election petition but was proceeded ex parte. Therefore, the Tribunal under the circumstances after applying the provisions of rule 10 of Order VIII, C.P.C. Was required to proceed ex parte and record the evidence. In a nutshell, where a written statement or amended written statement is not filed, the Court is not absolved of its duty to adjudicate and decide the dispute in accordance with the requirement of law.
13. Rule 8 (2) of the Punjab Local Council (Election Petition) Rules, 1979, empowers the Tribunal to permit the evidence of any witness by means of affidavit, but it is not done in the normal course.
This special power is exercised only in exceptional cases, where the witness is not available or cannot appear before the Tribunal. This permission, therefore, cannot be given to a party without establishing the fact that the evidence of a witness except through affidavits is not possible. The same having not done, the decision of election petition on the basis of affidavit which were placed on the record without any specific order of the Court for submission thereof in lieu of oral evidence.
Such affidavits without orders of the Tribunal cannot be considered evidence for de-seating the petitioner particularly in the present case when there are allegations of corrupt and illegal practices which in all circumstances require positive evidence.
14. The Tribunal having all the powers of the Civil Court for the purpose of trial of civil suit is deemed to be a civil Court and can dismiss the election c petition during the trial under rule 9 of the Punjab Local Council (Election Petition) Rules, 1979, for the reasons mentioned therein. Rule 9 (ibid) is read as under:- "9. Dismissal of petition during trial.---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."
' The perusal of the above referred provisions of law shows that the noncompliance of any provision of the Punjab Local Council (Election Petition) Rules, 1979, required to be fulfilled at the time of filing the election petition or at a subsequent stage as is directed by the Tribunal, the election petition can be dismissed, but there is ample law that the matter should be decided on merits instead of disposing of the same on technical grounds. Similarly, in case of challenge of the election of a returned candidate on the ground of corrupt and illegal practice, instead of adopting the summary procedure for disposal of election petition, penalty to a defaulter cannot be allowed to him to do what he could do earlier. There is settled principle that in ex parte proceedings, the party who is being proceeded ex parte can join the pending proceedings at any subsequent stage.
15. Rule 8 of the Punjab Local Council (Election Petition) Rules, 1979 provides that every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of the suits under the Code of Civil Procedure. The rule in question as well as the Civil Procedure Code do not permit summary decision of disputed questions of fact. Sub-rule (2) of rule 8 of the Punjab Local Council (Election Petition) Rules, 1979 provides that the Tribunal may permit the evidence of any witness to be given by means of an affidavit with the proviso that if the Tribunal deems fit, may call such witness for the purpose of examination before it. Similarly, the Tribunal is empowered under sub-rule (4) of rule 8 (ibid) to allow amendment in the election petition for ensuring a fair and effective trial for the determination of issue in controversy. Thus, unless there is a rule contrary to some provisions of Civil Procedure Code, the procedure provided therein is to be followed and the Tribunal in such circumstances instead of proceeding summarily is required to record the evidence and dispose of the election petition on merits. This is noticeable that the Order under Order VIII, rule 10, C.P.C. In the civil suit is appealable, whereas in the election petitions, no such remedy is provided and, therefore, the Tribunal should be more careful and conscious about the matter before him.
16. Under rule 10 of Order VIII, C.P.C. The Court upon failure of defendant to file the written statement, so required by it, has been given the discretion to pronounce the judgment or make such other suitable order in relation to the suit, but the power of announcing the judgment forthwith, does not debar the Court from taking any further step for decision of the matter on merits. The judgment in case of Mst. Hakumat Bibi (supra) cited by the learned counsel for respondent No,2 may not be applicable to the present case as such, as the written statement in the present case was already on record and only a formal reply to the amended election petition was required to be filed. The petitioner was not guilty of not filing the written statement. Thus, in the case of controversial facts, the party alleging a fact is under legal obligation to discharge his onus of proof through the evidence and, thus, the striking off the defence of the petitioner would not automatically result in acceptance of election petition without proof of corrupt and illegal practice. Therefore, the declaration of election of the petitioner void in such manner would not be legal.
17. The Tribunal in the present case while proceeding day-to-day provided only four days' time to the petitioner for submission of the written reply to the amended petition and despite a specific request for adjournment on the ground that the matter is sub judice before the apex Court, the defence was struck off. We find that there was no extraordinary circumstances to proceed so hurriedly and struck off the defence of the petitioner. The direction of the Election Authority for the expeditious disposal of the election petition would not mean to deprive the petitioner from the legitimate right of making his defence. The petitioner, an elected member, was entitled to be given a reasonable opportunity to meet the charge of corrupt and illegal practice through the evidence in rebuttal and unless that was to be done, the charge could not be proved merely on the basis of affidavits. The correctness of the contents of the affidavits made basis for the disposal of election petition being under challenge, the charge of corrupt and illegal practice was not prossed without calling counter affidavits from the petitioner. The argument of the learned counsel for the respondent that the Tribunal was empowered to decide the election petition and also treat the affidavit as sufficient evidence may be in the light of the plain language of the ibid rules, correct, but these rules being not mandatory in nature, the Tribunal has to adjudge the circumstances for the penal operation of these rules. Thus, the discretionary powers under the said rules is necessarily to be exercised judicially and if the same is not done, the order will suffer from jurisdictional defect.
The decision of the Tribunal being not challengeable through appeal or revision before any forum, in case of failure of Tribunal to exercise its jurisdiction 6 properly, the interference in the matter by this Court is not against the principles of judicial review under the Constitutional jurisdiction.
18. We, therefore, for the aforesaid reason, in confirmation of our short order of even date, allow this writ petition and declare the impugned order dated 30-11-1998 passed by the Election Tribunal, Municipal Corporation, Rawalpindi to be without lawful authority and of no legal effect with the observation that the election petition shall be deemed to be pending before the election Tribunal, which will proceed in accordance with law from the stage, it was on 30-11-1998, when the impugned order was passed and the petitioner is deemed to be restored in office. There will be no order as to costs.