MUHAMMAD SADIQ LEGHARI, J.--- Abdul Rahim Khoso, who contested the election from Constituency NA 209, Jacobabad-II, has questioned the election in the constituency and prayed for declaring it void as a whole. In alternate he has prayed for declaring the election of returned candidate, the respondent No. 1, void with further declaration that he (petitioner) had been duly elected from the constituency.
2. The respondent No. 1 filed his written statement controverting therein all the allegations levelled through the petition,. He also challenged the maintainability of the petition. Separate application was filed for dismissal-ofql*e-petition under Section 63 Representation of the People Act, 1976 (hereinafter referred to as "the Act") for the reason that the petition was filed after expiry of 45 days, the period prescribed by the law no receipt of payment of the security for the cost of the petition has been annexed with the copies supplied to him and that the petition had not been verified as required by Section 55(3) of the Act.
3. Issues were framed. Out of them following was treated as preliminary one:- "Whether the petition is liable to dismissal under Section 63, Representation of People Act, 1976?"
4. After receiving the notice of the application under Section 63 of the Act the petitioner's learned Advocate filed an application under Sections 62(3) and '64 of the Act for permission to amend the petition to the extent of adding the verification of the petition either in the original or by way of the amendment in the last page of the petition for compliance with the requirement of Section 55(3) of the Act.
5. The arguments of petitioner's learned Advocate and the learned Advocate representing the respondent No. 1 were heard on the preliminary issue as well as the two applications.
6. Petitioner's learned Advocate contended that in fact the petitioner verified the petition through an affidavit sworn by him before Oath Commissioner and the same has been annexed to the petition. He further contended that if the same is not treated as valid verification then the 'petitioner may be permitted to amend the petition and add the verification of the pleadings to it. In support of his prayer for permission to amend the petition, learned Advocate for the petitioner argued that Section 62(3) of the Act permits the amendment in the petition for- the purpose of amendment in the petition which is necessary for ensuring a fair and effective trial and for determining the real question at issue. According to him the scheme and object of the provision is that the real controversies between the parties should be decided on merits instead of throttling them on technical grounds. He further argued that if the amendment by way of addition of the verification is permitted it would ensure a fair and effective trial and proper determination of the real question at issue.
7. Learned counsel for the respondent No. 1 contended that the affidavit of the petitioner filed with the petition cannot be treated as verification at ail as it does not indicate the verification of the pleadings. The word verification is completely absent in the affidavit wherein the petitioner has stated only that the facts mentioned in the accompanying petition are true to the best of his knowledge, belief and advice received by him which cannot be treated as verification of the pleadings.
8. On the question of amendment learned counsel for respondent No. 1 contended that in fact the proposed amendment is an addition and not amendment. And the purpose of that, addition is to defeat the scheme of Section 63 of the Act, the mandatory requirement whereof is to dismiss the petition if it is not verified as required by Section 55(3) of the Act. According to him such addition cannot be allowed specially when the period of 45 days has expired.
9. It is mandatory requirement of Section 55(1)(b) of the Act that every election petition and schedule or annex thereof shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of the pleadings. The affidavit, which according to the learned counsel for the petitioner, contains the verification of the pleadings, has been examined. Its relevant paragraph No. 1 reads as under:- "That the accompanying Election Petition has been drafted and prepared under my instructions and the facts stated therein are true to the best of my knowledge and belief and the advice received which I believe to be true."
10. It is evident from the reading of the passage reproduced above that petitioner had only sworn an affidavit deposing therein that the facts mentioned in the election petition were true. That by itself cannot he treated as verification of the pleadings as required by Order 6 Rule 15, CPC. In fact, the petitioner has not verified the pleadings and has simply claimed the contains of the petition to be true which cannot be the verification as required by Order 6 Rule 15, CPC. Thus the petition has been filed without verification and as such the requirement of Section 55(3) of the Act has not been complied with. -11. For proper appreciation of the arguments on the question of amendment in the petition the relevant provision i.e. Section 62(3) of the Act is to be examined. It reads as under:- Section 62(3) "The Tribunal may, at any time, upon such terms and on payment of such fee as it may direct, allow 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 at issue., so however that no new ground of challenge to the election is permitted to be raised."
A look at the provision brings it out that it presupposes the presence of a petition which is otherwise complete and competent for trial but the amendments in it are needed for the fair and effective trial and determination of real question at issue. Thus the scope with the Tribunal for permitting the amendment is limited which cannot be widened by permitting the amendment making the petition competent for trial which is absolutely incompetent otherwise. In present case the proposed amendment is evidently for making the petition competent and avoiding the legal consequences on account of its being in complete and incompetent. It is mandatory requirement of Section 63(a) of the Act that the petition should be the dismissed if the requirements of Section 55(3) of the Act have not been complied with. The amendment having effect of getting over the consequences of the mandatory provisions of Sections 54 and 55 of the Act and defeating the scheme of Section 63(a) of the Act is not to be allowed specially when 45 days period of limitation provided by the law for filing the election petition has expired. The view is supported by decision from Indian jurisdiction in K. Venkateswara Rao and another v. Bekkam Narasintha Reddi and others (AIR 1969 SC 872).
12. On the question of limitation the respondent's learned Advocate did not advance arguments for the reason that the question can only be decided on the basis of evidence. He also, did not press the ground of non-supply of the copy of receipt of security amount deposited with National Bank of Pakistan.
13. The result of above discussion is that the petitioner has not complied with the mandatory requirement of Section 55(3) of the Act, therefore, the petition is to be dismissed in compliance with Section 63(a) of the Act which leaves no scope for the Tribunal to exercise .Its discretion in favour of party having not complied with the provisions of Section 55 of the Act. The same question had been dealt with by Election Tribunal Sindh in Khawaja Muhammad Aryan v. Alim Adil and 19 others (1998 CLC 272). It was held that penal consequences as envisaged under Section 63 Representation of the People Act, 1976 must be construed strictly.
14. Consequently, the petition is dismissed without proceeding further. With this order the listed applications stand disposed of accordingly.