' SYED NAJAM-UL-HASSAN KAZMI, J.--- This Intra-Court Appeal arises from order, dated 16-7-1978 of the learned Single Judge of this Court, in Writ Petition No,14208 of 1998 by which the Constitutional petition filed by the appellant, challenging order, dated 13-7-1998 of Election Tribunal No,3, Gujranwala was dismissed.
2. Appellant contested the election of District Council, Gujranwala from Halqa No,110, Khvewala and was declared elected. Respondent No,1 (Nasrullah Khan) a rival candidate in the election, filed election petition on 26-5-1998, to challenge the election of the appellant. During pendency of the cases, an application dated 4-6-1998 was moved to withdraw the election petition with permission to file fresh one, of which reply was submitted by the appellant. It appears that the case was adjourned to 9-6-1998 and thereafter to 15-6-1998.
3. Election petition was pending when respondent No, .l filed another election petition on 5-6-1998 which was adjourned to 9-6-1998 and on this date order for production of election record for re- counting was passed. On 15-6-1998, respondent No,1 made a statement before the Election Tribunal respondent No,4), to the effect that he had filed another election petition and, therefore, the earlier petition be allowed to be withdrawn. In view of this statement, respondent No,4 dismissed the first election petition dated 24-5-1998 as withdrawn.
4. On 6-7-1998 appellant moved an application for dismissal of second election petition which application was dismissed by respondent No,4 on 13-7-1998. The order was challenged in Writ Petition No,14208 of 1998 which was dismissed vide impugned order.
5. Learned counsel for the appellant argued that the election rules provide special provisions of dealing with election and construction of these rules did not allow filing of second petition. Learned counsel submitted that the rules visualize only one election petition. It was added that in any case, the second petition, containing the previous and additional grounds could not be maintained.
Reference was made to the rules given in Raja Noor Muhammad v. Raja Muhammad Sadiq and another PLD 1984 Lah. 239 and 1987 SCMR 458.
6. Learned counsel for the contesting respondent, in reply, submitted that the election was held on 20-5-1998, it was declared on 23-5-1998, notification was gazetted on 5-6-1998, the Tribunal was constituted on 18-5-1998 while the notification was published in the Gazette on 28-5-1998 and on the basis of this data, it was contended that the election petition could only be filed after the Gazette Notification was published and since previous petition was premature, the second petition could be competently filed within 30 days from the date of publication of notification to which no valid exception could be taken. It was added that in view of the subsequently instituted competent petition, the earlier petition was withdrawn. Learned counsel submitted that no new ground was taken and the necessity of second petition arose as the earlier petition had been filed without notice and there was likelihood of its dismissal on account of noncompliance of Rules 3 to 5 of the Election Petition Rules, 1979. Lastly, it was maintained that withdrawal of the earlier petition after the institution of second one would neither bar maintainability of second petition nor it would be deemed to be a case of res judicata. On a close scrutiny of Punjab Local Councils (Election Petition)
Rules, 1979, it appears that an election petition can be presented within 30 days next after the publication of result in the official gazette. Rule contemplates that the election petition will be only competent, if the result has been published in the official gazette. For the purposes of commencement of period of limitation to file election petition, the material date is of the notification in the official gazette and not the date on which Deputy Commissioner declared the result. In this context, reference can be made to James Ilyas Masih v. Punjab Local Councils Election Authority and three others 1981 CLC Lahore 237, where a Division Bench of this Court observed that an election petition could only be presented before the Election Tribunal within 30 days next after the publication of result in the official gazette. It was ruled that the date when the Returning Officer announced the result is not material and in fact the material date is the one when notification is published in the official gazette. The operative part is to the following effect:-- "Admittedly, no notification pertaining to result of the election was issued in the instant case. Rule 3 of the Election Petitions Rules lays down that an election petition shall be presented within 30 days next after the publication of result in the official gazette. Since no election petition could be preferred by respondent No,3 at the stage, before the Election Tribunal, the provisions of section 17(2) of the Ordinance were not attracted to the case. The only case left open, in the circumstances, for respondent No,3 was to prefer a petition under section 17(1) of the Ordinance before the Election. Authority."
7. The view taken in the above case was also affirmed by the Honourable Supreme Court in 1981 SCMR 919, where it was held as follows:-- "The view that as prevailed with the High Court, is unassailable for Rafique Paul had challenged the order of rejection of his nomination papers by the Returning Officer on two occasions, firstly before the Deputy Commissioner in appeal which was accepted and it was only when the Returning Officer had refused to comply with the order of the appellate authority that he moved the election petition under section 17 of the Ordinance even before the result of Election was not notified in the Gazette. Since the order of Returning Officer rejecting nomination papers of Rafique Paul was manifested erroneous under the law, the Election Authority rightly directed fresh election to be held and we, therefore, see no just and proper ground for interference in this case."
8. From the rules given in the precedent case, it is discernible that the election petition can be competently filed under Rule 3 of the Punjab Local Councils (Election Petitions) Rules, 1979, only after the result has been published in the official Gazette and before that proceedings before the election authority would not be competent. On deeper consideration of the facts of case under reference, one finds that the first election petition was filed on 26-5-1998 when result of election had not been published in the Gazette. A misleading situation was sought to be created by making reference to declaration of result by the Deputy Commissioner, Gujranwala which declaration was purportedly made on 23-5-1998. This declaration is not deemed to be publication of notification in the official Gazette within the meanings of terms as referred to in Rule (3) ibid, and, therefore, the date of declaration of result by the Deputy Commissioner has no nexus with the commencement of the date for the purpose of limitation to file election petition or for the purpose of maintaining the election petition. The result in the present case was admittedly published in the official Gazette, on 5-6-1998 which would obviously mean that the first election petition was not maintainable or competent as it was filed before the publication of result in the official Gazette.
9. It is true that if a premature petition is filed and the cause matures during pendency of the proceedings, the litigant has a right to insist that the case be decided on merit instead of returning it on technical objection of having been filed before the accrual of cause of action yet this option enures for the benefit of petitioner/appellant who had instituted a premature cause but if instead of exercising this option he opts to file a fresh competent petition, after the maturity of cause, the second petition cannot be said to be not maintainable in law. The word pending' would mean a validly pending lis and not a premature or incompetent petition. In this view of the matter, respondent No,4 could file a competent petition, within 30 days next from the date of publication of result of election in the official Gazette.
10. The matter can be viewed from another angle. There is a definite provision in the rules which speaks of withdrawal of petition with permission of the Election Tribunal but there do not appear to be any bar in the filing of the second petition, if the previous petition was incompetent or premature. Under Rule 18 of the Election Petition Rules, the election petition may be withdrawn with leave of the Tribunal at any time, during course of the trial and the only requirement is that the petitioner/appellant who filed the election petition, can be required to pay cost incurred by the other side. The application of provisions of the Code of Civil Procedure is excluded to the extent of availability of particular provision in the Punjab Local Councils (Election Petitions) Rules, 1979, Punjab Local Government Ordinance, 1979 or the Punjab Local Councils Election Rules, 1979. In case of inconsistency between the provisions of the Code of Civil Procedure and the provisions of Ordinance or Rules, former will yield to the latter, but the provisions of Code of Civil Procedure will, of course, apply as nearly as possible, in the area, during trial of election petition, where there is no specific provision or rule to the contrary. In case, there is a prohibition in the rules, the same will take precedent over the provision of C.P.C., notwithstanding any provision to the contrary contained in the C.P.C. As noted supra, there is no provision in the rules which prevents or bars filing of second petition, competently filed, after the maturity of cause of action and, therefore, no possible exception could be taken to the view upholding the maintainability of the second petition filed by respondent No,4.
11. On account of absence of any bar and any other provision to the contrary, if the matter is examined in the light of Order 23, Rule 1 of C.P.C., it will be observed that the respondent has been given a right to withdraw the suit with permission to file fresh one and if permission is not granted, the second suit or proceedings will not be competent. The subject-matter of grant or refusal to grant permission to file fresh election petition is not covered by the Election Petition Rules, 1979. This being so, in the unoccupied field, the principle of Order 23, Rule 1 of C.P.C. Can be taken care of.
While considering the effect and implication of Order 23, Rule I of C.P.C., it was ruled by the Honourable Supreme Court in Ghulam Nabi and another v. Seth Muhammad Yaqoob and another PLD 1983 SC 344 that if previous suit is withdrawn after the institution and during the pendency of second suit, the second suit will not be barred under this provision of law. Reference can also be made to Commissioner of Income-tax v. Ashfaq Ahmad PLD 1973 SC 406. In the present case too, the first petition, which was instituted premature, was withdrawn after filing of the second petition and, therefore, even the principle of Order 23, Rule 1 of C.P.C., barring the filing of second suit without permission of the Court will not adversely affect the maintainability of second petition.
12. The next question for determination will be if respondent No,4 can be permitted to introduce new grounds of challenging election of the appellant, by filing a fresh petition, particularly when the insertion of new grounds to challenge the election will be prohibited by Rule 8(4) of the Punjab Local Councils (Election Petitions) Rules, 1979. Deeper analysis of Rule 8 (4) of Punjab Local Councils, (Election Petitions) Rules, 1979 makes it obvious that the Tribunal is competent to allow a petition to be amended in such a manner which may be necessary for ensuring a fair and effective trial and for determining the real questions in controversy but in any case, the Tribunal cannot allow new ground of challenge to the election, by way of amendment. The scope and effect of Rule 8(4) (ibid), in the matter of amendment of election petition was considered by the Supreme Court, in the case of Rai Mehmood Sultan v. Election Tribunal Zila Council/District Judge, Gujranwala and others 1987 SCMR 458 where it was ruled that though an amendment can be allowed to permit better and fuller particulars to be added to the grounds already contained in the election petition yet no power exist to permit addition of entirely new ground on which the election can be challenged. The operative part of the judgment is to the following effect:- "It is true that the Tribunal has been empowered to allow amendment of an election petition in such a manner as may be necessary for ensuring a fair and effective trial of the case and for determining the real questions in controversy but we find that this power is subject to an important limitation, namely, that no new ground of challenge to the election can be permitted to be raised by way of an amendment. The intention of the rule appears to us to be that all the grounds on which an election is sought to be challenged must be given in the election petition, though an amendment can be allowed to permit better and fuller particulars to be added to the allegations already contained in the grounds given ;n the election petition. In other words, the power conferred by sub-rule (4) of Rule 8 of the Election Petitions Rules, 1979, is a limited one whereby the Tribunal is empowered to allow amendment to the extent that better and fuller particulars can be furnished by the election petitioner but no power exist to permit the adding of entirely new grounds on which the election may be challenged. Thus, a restricted power of amendment only is conferred by sub- rule (4) of Rule 8."
13. In the precedent case, new grounds to challenge the validity of the election were sought to be added, in the election petition, unconnected with the grounds already taken in the election petition, which was not allowed as it was observed that the same was beyond the powers of the Tribunal.
14. In view of the settled rule that no amendment can be allowed in the election petition to add new grounds of challenge, it will have to be seen if the new grounds can be taken, in the second petition by withdrawing the first one. It is true, that there is no specific provisions in the Election Petition Rules, baring the filing of second petition by withdrawing the first one, after the filing of the second petition, yet it would not mean that in doing so, the objector will be entitled to introduce different or additional grounds than the one he had raised in the earlier petition. If doing of something is not permissible by way of amendment, in view of Rule 8(4) of the Election Petitions Rules, then the same objective cannot be achieved through back door by filing of second petition and withdrawing the first one. If such permission is accorded, it will tantamount to circumvent a specific provision of law which is not visualized or permissible under the rules. This being so, the objector can maintain the second petition, only on the grounds which were initially taken in the incompetent petition. The second petition to the extent of grounds already urged in the first petition, can be maintained while the additional or different grounds, taken in the second petition, not raised earlier, can neither be allowed nor entertained or taken into consideration in deciding the second petition.
In this view of the matter, while upholding the maintainability of the second petition of respondent No,4, in the circumstances noted supra, we are of the view that the second petition of respondent No,4 will only be maintainable to the extent of grounds, previously taken in the first petition. Subject to this modification, the remaining objection of the appellant, against the maintainability of the second election petition being devoid of merit were rightly repelled by the Election Tribunal and the order in the writ petition, upholding the same to the said extent, needs no interference.
15. For the reasons above, this appeal is decided in the terms that the second election petition of respondent No,4 will be maintainable and be decided on merit by the Tribunal, only on the basis of the grounds, initially taken in the first petition while the other grounds will not be entertained nor be considered. We also direct that the Tribunal shall decide the election petition, within two months.