The brief facts out of which the present writ petition arises are that the petitioner and respondents Nos.4 to 14 contested elections held in 2001 on peasant seat from Halqa No.8, Union Council Kotli Rai Abubakar, Tehsil and District Kasur. The petitioner was declared returned candidate by securing 517 votes whereas respondent No.4 secured 515 votes. Respondent No-4 tiled election petition before the Election Tribunal, Kasur. Learned Election Tribunal issued notice to the respondents on 4- 8-2001 for 24-9-2001. The Election Tribunal passed ex parte order against the petitioner on 24-9- 2001 and finally accepted the election petition vide order dated 23-5-2002. The petitioner being aggrieved tiled this writ petition.
2. Office was directed vide order dated 24-6-2002 to send notice to respondents Nos.4 to 14 for 10- 7-2002. Operation of impugned order of Election Tribunal was also suspended till the next date of hearing. The service of respondent No.4 was effected as is evident from the report of Process Server dated 9-7-2002 which was duly certified by the Civil Judge 1st Class. The case was fixed on 3-10- 2002. In the interest of justice and fair play office was directed to send fresh notice to the respondents. The service of respondent No.4 was effected by affixing the notice on the outer door of the house of respondent No.4. Thereafter the case was fixed on 6-2-2003. Office was again directed to fix this case after notice to the respondents. The service of respondent No.4 was effected by affixing the notice on the outer door of his house as is evident from the report of Process Server dated 19-2-2003. The aforesaid report is certified by the Civil Judge concerned. In this view of the matter I have no other alternative except to pass ex parte order against respondent No.4. It is pertinent to mention here that respondent No.4 is only contesting respondent.
3. Learned counsel of the petitioner submits that service of the petitioner was not effected and ex parte order passed by the Election Tribunal on 24-9-2001 is without lawful authority. He further submits that Election Tribunal passed the order in haste. He further submits that principles of C.P.C.
Are applicable in the election proceedings. Therefore, it is the duty of Election Tribunal to send notice to the petitioner as prescribed under Order V, C.P.C. He further urges when the basic order is without lawful authority then the superstructure shall have to fall on the ground. He further urges that even final order, is not sustainable in the eyes of law as respondent No.4 did not adduce evidence in terms of the allegations levelled by him in paras. 4 and 5 of the election petition. He further submits that there are certain marks on the ballot papers which appear to be affixed after filing the election petition by respondent No.4 with connivance of the staff of the Returning Officer and the Presiding Officer. He further submits that it is the duty and obligation of the Election Tribunal to count the votes of Polling Stations Nos.80 and 81 but the same was not counted on the request of respondent No. 4 as is evident from order dated 23-5-2002.
Learned Additional Advocate-- submits that the impugned order is not sustainable in the eyes of law. In the interest of justice and fairplay Chauhry Khurshid Ahmad, Senior Advocate who was present in the Court in connection with some other case, was asked to appear as amicus curiae.
He after seeing the report of the Process Server which was produced by the learned counsel of the petitioner during the arguments submits that it is not proper service of the petitioner.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:--
(i) Respondent No.4 filed election petition on 4-8-2001.
(ii) Learned Election Tribunal issued notice to the respondents for 24-9-2001.
(i.e) Ex parte order was passed by the Election Tribunal on 24-9-2001.
The report of the Process Server reveals that it does not contain affidavit of the Process Server coupled with the fact that Election Tribunal passed the ex parte order on the very next date. The order dated 24-9-2001 passed by learned Election Tribunal is in violation of the mandatory provisions of the Election Laws and the provisions of C.P.C. Therefore, the same is not sustainable in the eyes of law as per principle laid down in Mian Shabbir Ahmad v. Muhammad Iqbal (1991 CLC 1830) and Feroze Khan v. Muhammad Shoaib (1994 CLC 1462). It is settled principle of law that when basic order is without lawful authority then the superstructure shall have to fall on the ground automatically as per principle laid down by the Division Bench of this Court and Hon'ble Supreme Court in the following judgments:-- Crescent Sugar Mills v. C.B.R. (PLD 1982 Lahore 1) and Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104).
7. In view of what has been discussed above, this writ petition is allowed, order, dated 24-9-2001 and order dated 23-5-2002 are set aside. Meaning thereby the election petition filed by respondent No.4 before the concerned Election Tribunal shall be deemed to be pending adjudication. The learned Election Tribunal is directed to proceed in the matter after notice to respondent No.4, petitioner and other respondents mentioned in the election petition and shall decide the election petition strictly in accordance with law. Parties are directed to appear before the Election Tribunal on 4-3-2003. Learned Election Tribunal shall decide the election petition after notice to the parties.