' In order to challenge the election of respondents Nos.2 and 3 as Nazim and Naib Nazim of U. C.
No,155, Kamoke, Gujranwala, the petitioner filed an election petition. It was entertained and notices were issued to the respondents therein for 14-5-2001. On this date when case was called for hearing none appeared for the petitioner whereas Muhammad Afzal respondent was present in person. The case was called second time and was dismissed for non-prosecution for the absence of the petitioner. On the same date' anapplication was filed for restoration of the election petition explaining the reasons for absence at the time case was called. The application was taken up on 16-5-2001 when learned Tribunal proceeded to dismiss the same with the observation that there is no provision in Rules framed under the P.L.G.E.O., 2000, for the restoration of an election petition.
2. Learned counsel for the petitioner contends that the Rule 76 an election petition is to be tried as nearly as may be in accordance with the procedure for trial of the suit under C.P.C. Further, relies on Rule 78 which provides that Tribunal shall have all the powers of Civil Court trying the suit under C.P.C. According to the learned counsel the Tribunal has inherent power to restore the election petition dismissed for non-prosecution even in the absence of any specific provisions to the said effect. Learned counsel for contesting respondents on the other hand argues that there being specific provision i.e, Rule 88 providing dismissal of election petition in case the petitioner does not appear and in the absence of any provision for restoration of the petition so dismissed for non- prosecution, learned Tribunal would be having no jurisdiction to restore the petition.
3. I have gone through the copies of the record appended with this writ petition. It is true that unlike said Rule 88 there is no specific provision in the said Rules for restoration of election petition dismissed for non-prosecution. However, this cannot mean that learned. Tribunal would be bereft of authority to restore an election petition even if sufficient cause is made out for absence of the petitioner. A some what similar question came up before the Full Bench of this Court in the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lah. 603). The question raised was that under the Punjab Urban Rent Restriction Ordinance, 1959, there being no specific provision for setting aside of ex parte order whether a Rent Controller was possessed of the jurisdiction to set aside an ex part order. The question was answered in affirmative by the majority. Mr. Justice K.E.
Chauhan (as his lordship then was) quoting with approval some judgments from Indian jurisdiction observed "There always exists an implied and inherent power in every tribunal to set aside orders passed in default of appearance of the parties". Further with reference to the case of H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65). It was observed "the omission of particular kind of procedure cannot be understood to amount to prohibition, and that a Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. It was emphasised that to give such a meaning to the omission would result in grave injustice and that Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same." His lordship then held mere fact that there is no provision or procedure laid down for filing an application for setting aside ex parte orders such application is not barred, because, if it is allowed to be filed, it will further administration of justice in the name of fair play and natural justice." Respectfully following the said dictum I do hold that the learned Tribunal has taken very narrow view of the matter and in the process has proceeded in violation of the said dictum of the Supreme Court in the case of H.M. Saya.
4. For all that has been discussed above, this writ petition is allowed. The impugned order, dated 16- 5-2001 of the learned Election Tribunal, Hafizabad, is set aside. As would be apparent from the record the matter was decided in limine. The result, therefore, would be that the application filed by the petitioner for restoration of the election petition on 14-5-2001 shall be deemed to be pending before the learned Election Tribunal where the parties shall Appear on 30-6-2001 and learned Election Tribunal shall then proceed to decide the application in accordance with law and in case it is satisfied that sufficient cause has been made out by the petitioner for absence at the time the case was called, he shall restore the election petition and proceed further in the matter in accordance with law. No order as to costs.