1997 PLP 192 (CLC)

(iii) that the order dated 19‑1‑1994 was not illegal and therefore, respondent No. l was under no obligation to ask the Tribunal not to pass that order or ask the petitioner to refrain from giving up the name of respondent No.2 and thus in view of the circumstances of the case the principle of estoppel would apply to the petitioner and not to respondent No. l; (iv) that the omission to join respondent No,2 as a respondent has created a right in favour of the petitioner and therefore, he should not be deprived of the said right; and (v) that the petitioner was not entitled to the permission to reimplead respondent No.2 especially when the period of limitation had expired and therefore his application was liable to be dismissed.

12. First of all I take up the question if Nazir A. Nourka was a necessary party to the present election petition. Section 54 of the Act reads as follows:‑‑ "

54. Parties to the petition.‑‑The petitioner shall join as respondent to his election petition.‑ (a) all contesting candidates; and (b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition. Explanation.‑ In this section and in the following provisions of this chapter, 'corrupt or illegal practice' means a 'corrupt practice' or an "illegal practice" within the meaning of Chapter VIII."

13. The case of respondent No.l is that since Nazir Ahmad Nourka was a contesting candidate, therefore, he was a necessary party to the election petition. On the other hand the contention of the learned counsel for the petitioners is that he was not a contesting candidate and in fact, had not participated in the election. The Act gives a definition of the term "contesting candidate" in section 2(viii) which reads as follows:‑‑ "2(viii) 'contesting candidate' means a validly nominated candidate who has not withdrawn his candi6ature. "

14. There is nothing on record to show that Nazir A. Nourka had ever withdrawn his candidature rather the material on record shows that during the election he had secured 605 votes and as such for all intents and purposes he was a contesting candidate and thus a necessary party to the election petition.

15. This brings me to the next question as to what would be the effect of the non joinder of the said Nazir A. Nourka. Section 63 of the Act lays down:‑‑ "

63. Dismissal of petition during trial.‑‑The Tribunal shall dismiss an election petition, if‑

(a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62."

16. It is abundantly clear from the above provision of law that non joinder of a necessary party would entail dismissal of the election petition. The provisions contained in sections 54 and 63 are mandatory in nature and not B merely directory. I, therefore, have no hesitation in concluding that non joinder of Nazir A. Nourka in this case would result in the dismissal of the election petition.

17. Learned counsel for the petitioner has argued that the petitioner had complied with the mandatory provisions of section 54 by joining Nazir A. Nourka as respondent No.2 at the time of the filing of the election petition and therefore the deletion of his name from the said petition at subsequent stage would be of no consequence. The argument is without force and is repelled because it is clearly against the spirit of the Statute. Section 54 of the Act requires a petitioner to join every contesting candidate as respondent to his election petition. This requirement is not merely cosmetic and will be considered to have been fulfilled only if all the contesting candidates continue to be respondents to the election petition till it is finally disposed of. It will not be considered to be due compliance of the provision if a contesting candidate is joined as respondent for a few days and then is dropped.

18. The next question which comes up for consideration is as to whether the order dated 19‑1‑1994 was passed by the Tribunal on its own motion or the same was made on the request of the petitioner‑ The said order has been reproduced in para. No.3 above and it is manifestly clear that it was the petitioner's learned counsel who had sought permission of the Tribunal to delete his name from the array of the respondents. A bare reading of the said order does not even suggest that the statement which the learned counsel for the petitioner had made was prompted by the Tribunal. In this view of the matter it is held that the name of Nazir A. Nourka had been deleted from the array of the respondents on the request of the petitioner's learned counsel and not by the Tribunal in exercise of its discretionary powers under Order I, rule 2, C.P.C. In this view of the matter the contention of the learned counsel for the petitioner that the petitioner could not be compelled to suffer on account of an error on the part of the Court/Tribunal, is misconceived. This was not a mistake of the Tribunal but a blunder of the petitioner.

19. Now I come to another interesting argument which the learned counsel for the petitioner had developed and raised before me. According to him the order dated 19‑1‑1994 was passed in the presence of the learned counsel for respondent No. l who deliberately kept quiet and did not point out to the Tribunal that by the deletion of the name of Nazir A. Nourka the petitioner's election petition would be rendered defective and liable to dismissal and since he did not do so he was precluded from saying subsequently that by the dropping of the name _of Nazir A. Nourka the election petition had become liable for dismissal. This argument is totally misconceived. Learned counsel for the respondent was not legally obliged to point out to the Tribunal that by deleting the name of respondent No.2 the petitioner's election petition would become defective and therefore the principle of estoppel would not be applicable to him. It will be presumed that the provisions of sections 54 and 63 of the Act were in the knowledge of the learned counsel for the petitioner and despite that knowledge if he had made the request before the Tribunal for the deletion of the name of respondent No.2 then he was responsible for the consequences and not the learned counsel for respondent No.

1. Why should one stop his enemy from committing suicide? I, therefore, conclude that the principle of estoppel does not apply in this case at all and it is totally irrelevant.

20. This brings us to the question as to whether the petitioner could be allowed to reimplead respondent No.2 in his election petition. There is no dispute between the parties on the point that a Court or an Election Tribunal has ample powers to allow amendment of pleadings and impleadment of necessary parties. In this connection if an authority is needed the case of Ali Ahmad Khan v. Muhammad Qasim Khan and others (PLD 1985 Jour. 277) is cited. It was held therein that the Election Tribunal, in the interest of justice, could allow pleadings to be amended, parties to be added or deleted in election petitions. Both the parties have relied on this judgment.

21. Learned counsel for the respondent has however, contended that neither amendment of pleadings could be allowed nor parties could be added in a suit or election petition after the expiry of the period of limitation. In this connection he has relied upon a number of precedents a resume of which is being given as follows:‑‑ "In Bishamberdas Bodhraj v. Brijlal Arora (AIR 1931 Bombay 590) it was held that an amendment in the pleadings would not be allowed if it affects limitation. It was further held that where a defendant had been impleaded, given up subsequently and then reimpleaded it would be considered as if he had never been impleaded before. In Jagdiswar Prasad Misra v. Harsaran Rai and others (AIR 1942 Patna 270) it was laid down that where a defendant was impleaded, later on given up and then reimpleaded it would be considered that he had been impleaded on the day, when he was allowed to be reinstated. In Haveli Shah and another v. Khan Saheb Sheikh Pain& Khan (AIR 1926 Privy Council 88) it was held that where a party is discharged and later on reinstated the suit would be deemed to have been instituted on the date of the said reinstatement. In Govind Chandra Ghose v. Jamaluddin Mondal and others (AIR 1933 Calcutta 621) it was declared that where a necessary party was joined after the period of limitation the whole suit would fail. In Dinesh Chandra Choudhry and others v. Rajendra Chandra Kar and others (AIR 1938 Calcutta 324) and Muhammad Khan v Abdul Khaliq Khan (PLD 1981 Supreme Court 155) the above view was reiterated. " In support of his contention that the petitioner was estopped from challenging the order, of the Tribunal dated 19‑1‑1994 learned counsel has relied on two cases. In Muhammad Rafique Gazdar v. Additional Commissioner. Karachi and 3 others [PLD 1972 Karachi 119 (D.B)] it was laid down that where a party asks the Court to do something which is not in accordance with the law the said party is estopped to subsequently challenge the order of the Court passed on his asking. In K. Shanmugham Pillai and others v. S. Shanmugham Pillai and others [AIR 1968 Madras 207 (D.B)] it was held that if a party elected to choose a course of action it could not be allowed to go behind it. Learned counsel for the respondent has also relied on Mrs. Syeda Sahida Zaidi v. Hafiz Muhammad Taqi and others 1986 CLC 2066 (Election Commission of Pakistan)] and Ali Ahmad Khan v. Muhammad Qasim Khan and others (PLD 1985 Jour. 277) also reported as NLR 1995 Civil 814 wherein it has been held that provisions of section 54 of the Representation of the People Act, 1976 were mandatory in nature and the election petition was liable to be dismissed if necessary party was not joined. In the latter case it was further held that a prayer to join left out contesting candidate after the expiry of the period of limitation in an election petition would not be allowed and the petition would be liable to be dismissed under section 63 of the Act.

22. Learned counsel for the petitioner maintained that the judgments cited by the learned counsel for the respondents were not applicable in the present case and were wholly irrelevant. In support of his case he relied on Ali Muhammad Khan's case referred to above as (PLD 1985 Jour.277). The above mentioned resume of the cases relied upon by the learned counsel for the respondent amply shows that the principles or the law laid down in the said cases was fully applicable in the present case land therefore, they could not be brushed aside by merely saying that they were: irrelevant. The authority on which learned counsel for the petitioner has relied goes against him.

23. According to section 52(2) of the Act the period of limitation for filing an election petition is 45 days which was to be counted from the date of the publication in the official Gazette of the name of the returned candidate. It is a common ground between the parties that when C.M. No.3 of 1994 for the reinstatement of respondent No.2 was moved i.e on 29‑3‑1994 the said period of limitation had expired. As such in view of the law laid down in the abovementioned precedents, which I respectfully follow, respondent No. l could not be allowed to be reinstated. In this connection I would like to quote the following portion from the judgment in Ali Ahmad Khan's case on which the learned counsel for the petitioner has relied: "It is now to be considered whether at this stage Hazrat Ali Karbala can be joined as a respondent. The prayer for joining him as a party has been made after the expiry of the period of limitation. But for this reason in the facts and circumstances of the case, in exercise of power to grant amendment it may have been possible to grant the request. But surely not after the expiry of the period of limitation. If such application would have been made before the expiry of the limitation it would have been just and proper to allow the contesting candidate to be joined because if taking a very strict view the petition would have been dismissed perhaps the petitioner would have had sufficient time to file a fresh petition joining all the contesting candidates. In these circumstances the dismissal would have been an exercise in futility. It is well‑settled that no one can be joined as a party to the proceedings after the expiry of the period of limitation. Even the affidavit fled by Hazrat Ali Karbala does not state that he is prepared to be joined as a party. I, therefore, see no just reason to allow Hazrat Ali Karbala to be joined as a respondent in this petition. "

24. The law laid down on the subject is abundantly clear and I have no doubt in my mind that respondent No.2 cannot be reinstated in this election petition because of the fact that his application for reinstatement was moved after the expiry of the period of limitation. Consequently finding no merit in this application I dismiss the same.

25. Since a necessary party had not been impleaded in the election petition as required under section 54 the same was liable to be dismissed under section 63 of the Act. In this view of the matter the election petition instituted by the petitioner is dismissed. The parties shall however, bear their own costs. A.A/146/E.C Petition dismissed.