' An election petition filed by respondent No,1 against the petitioner and other private respondents was dismissed for non-prosecution by the learned Tribunal on 2-11-2001. On 12-11-2001 an application was filed for restoration of the election petition. Vide order dated 11-3-2002 the election petition was restored.
2. Learned counsel for the petitioner with reference to the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447) argues that the learned Tribunal has proceeded to restore the application without recording any evidence and as such has not acted in accordance with law and consequently the orders suffer jurisdictional defect and cannot be sustained.
2-A. I have gone through the copies of the records appended with this writ petition, with the assistance of the learned counsel. I find that in the application (Annexure D), it was stated that the case was last fixed on 26-10-2001 for reply for the application filed by the respondents in the case under Order 7, rule 11, C.P.C. And that the reply was filed and the next date was noted as 12-11-2001. It was further stated that an election petition pertaining to the same constituency and inter se the same candidates is also pending which is being fixed alongwith the said election petition and in the said election petition date given was 12-11-2001 and this was the reason for absence on 2-11- 2001. It was also stated that the date was got changed later with connivance of the Reader. The learned Tribunal heard the parties and after perusing the record found the said contention to be plausible and accordingly found it to be case of misunderstanding of the date and proceeded to restore the election petition subject to payment of Rs,5,000 as costs.
3. Coming to the said contention of the learned counsel, there can be no cavil with the proposition that all Courts and Tribunals in this country are to act within four corners of law. However, for the purpose of restoration of a matter dismissed for non-prosecution the Court or the Tribunal has to be satisfied that sufficient cause exists for the absence of the parties on the date fixed for hearing.
It is also settled that a main matter when it be a suit, application, appeal or revision can be dismissed only on a date on which hearing to take place in the said matter, for non-prosecution because of absence of a party. It is matter of record that on 26-10-2001 the election petitioners filed reply to the application filed under Order 7, rule 11, C.P.C. And it was this application, which was fixed for hearing for arguments on 2-11-2001. To my mind, the election petition itself was not to be heard on the said date. In other words no c date of hearing was fixed in the election petition itself. If at all the learned Tribunal could have proceeded ex parte against the election petitioners in the said application under Order 7, rule 11, C.P.C. And thereafter to have considered the said application reply whereof was already on record.
4. Learned counsel draws my attention to rule 88 of the P.L.G. E. R. , "2000, to urge that wording of the Rule are somewhat distinguishable from the wording of Order 9, rule 9, C.P.C. I do find that the wordings are different inasmuch the words "date of hearing" are not used. However, absence of the words would not make any difference. I may, here, reproduce the said Rule:-- "88. Failure of petitioner to appear.--Where, at any stage of the trial of an election petition, no petitioner makes any appearance the Tribunal may dismiss the petition for default and make such order as, to costs as it may think fit."
' A reading of the said Rule does disclose the intent of the Rule-maker. Reference is to "stage of the trial of election petition" needless to state that trial commences after framing of issues and when parties are called upon to lead evidence. I may also here refer to rule 79 of the said Rules where reference has been made qua filing a recrimination vis-a-vis "commencement of the trial". A reading of rules 79 and 88 would clearly show that the dismissal envisaged in rule 88 for default of appearance has to be at a stage when trial has commenced. Now in the present case the respondents in the election petition had not even filed a written statement and instead on the very first date of appearance on 2-10-2001 had filed an application under Order 7, rule 11, C . P . C . , Thus still matter was at a stage of examination of the election petition itself and as such the election petition could not have been dismissed for non-prosecution on 2-11-2001. The order dated 2-11-2001 was, therefore, liable to be set aside on the short ground that it had been passed without jurisdiction. Be that at it may, as noted by me above, learned Tribunal heard all the parties and since the cause shown in the application for restoration of election petition stood made out, upon examination of the relevant records, it cannot at all be said that the learned Tribunal has acted in violation of law muchless without lawful authority in restoring the election petition. I may further add here that there is no dearth of authorities of Hon'ble Supreme Court as also of all the High Courts of the country that an order which in DR very nature promotes ends of justice and is otherwise fair ought not to be interfered with in the exercise of constitutional jurisdiction merely for the reasons that, in the process, law has not been strictly followed, which in any case is not the case here. The writ petition is without any force and is accordingly dismissed in limine.