2008 PLP 264 (CLC)

MUZAFFAR ALI, J.

This election appeal under subsection (3) of section 61 of the Northern Areas Council (Election) Order, 1975, (hereinafter called the Order) assails the order, dated 26-5-2007 passed by the learned Election Tribunal, Skardu, whereby the learned Tribunal has acceded the application filed by the present respondent No.1 and allowed to decide the election petition on Issues Nos.1 to 5 without adducing evidence leaving aside the other issues. The appellant along with the present respondents were contesting candidates for the membership of Northern Areas, Legislative Council Election, held on 12-10-2004 from constituency No.NA-9 Skardu-III and the appellant was declared returned candidates by the Election Authorities. The present respondent No.1 challenged the above declaration through election petition before the concerned Tribunal. The learned Tribunal proceeded the election petition and framed as many as 11 issues including the relief and when the petition was fixed for petitioner's evidence, the petitioner (the present respondent No.1) submitted an application, wherein, the petitioner requested to decide the matter on legal Issues Nos.1 to 5 by abandoning his right to adduce evidence before the Tribunal. The learned Tribunal acceded the above request vide impugned order dated 26-5-2007, Hence this appeal. We have heard the learned counsel for the parties. The learned counsel for the appellant mainly stressed on the points that; (a) the interference drawn by the learned Election Tribunal is the result of misconception of law, as the learned Tribunal termed Issues Nos.1 to 5 to be pure question of law and in the result of the same, reached to the wrong conclusion; (b) that the impugned order is not maintainable, because the election petition is based on both the question of law and facts as such the matter cannot be decided finally without adducing evidence. On the other hand the learned counsel for the respondent No.1 denied the above points and urged that: (a) the Issues Nos.1 to 5 are relating to pure question of law and no evidence required to be adduced to prove the same issues: (b) that the Issues Nos.1 to 5 go into the root of the matter and the case may be decided finally on the same issues. We have gone through the impugned order and also have considered the relevant law, since section 58 of the Order entrusts the Election Tribunal with the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 and section 56 of the Order provides that every election petition shall be tried, as 'nearly, as may, in accordance with the procedure for the trial of the suits under the Code of Civil Procedure, 1908, but subject to the provisions of the Order and Rules, as such the Election Tribunal is well competent to exercise his powers under any provisions of Civil Procedure Code, if the same is not repugnant to any provisions of Election Order and the Rules, therefore, the powers under Orders XIV and XV of C.P.C. may be exercised even in election matters as the same are not repugnant to any provisions of Elections Order and Rules, but the crucial questions before as in the case in hand are that, whether the Tribunal has properly and with due legal diligence, applied the provisions in the case or not and whether the issues Nos.1 to 5 are really relating to pure question of law and no evidence require to adduce to prove them and whether the issues go to the root of the case and the matter may be disposed of finally on them. We are going to discuss these questions in successive paragraphs of this order. From the bare reading of the Order XIV, rule 2, C.P.C., it transpires, that the provisions may be exercised before settlement of issues of facts and if the Court deems fit, may frame issues of law only and determine the same, if the issues of law go into the root of the case then the case can be disposed of finally on the issues. In the case in hand the learned Tribunal has framed all issues of law and of facts and the application has been submitted later on, hence the learned Tribunal has wrongly applied and quoted the provision in the impugned order, but the mater comes within the ambit of Order XV, rule 3, C.P.C. This rule empowers a Court to determine an issue of law at a stage subsequent to the issues stage, if the Court thinks the issues of law to be pure point of law and sufficient to dispose of the matter finally. The perusal of issues framed by the learned' Tribunal it transpires that, the learned Tribunal has failed to frame issues properly and with due diligence, for instance, issue No.1 seems to be pure issue of law, if one looks into it in relation with Para. No.4(a)(i), but it seems to be mixed question of law and facts from the point of view of (ii) and (iii) of the same para. In the like manners issues No.2 is doubtless mixed point of law and facts. The issue No.3 is of course, a pure point of law and goes into the root of the case and tilt matter can be finally disposed of over it, but the burden of which has wrongly been placed. It is also evident from the record that the learned Tribunal has ignored a pure issue of law to include in the impugned order, we therefore, keeping in c view the above legal lacks of the learned Tribunal, reframe the pure issues of law, which require no evidence to lead and which go into the root of the case and the matter can be disposed of finally on the same. Reframed issues.-- (1) Whether the returned candidate (respondent No.1 in the petition) being sitting Member and elected Deputy Chief Executive on the day i.e. 3-9-2004 fixed for filing of nomination paper, was disqualified to file nomination paper to contest the election as such the declaration of the respondent No.1 as returned candidates is void and as a result of the same void declaration, the petitioner is entitled to be declared as returned candidate? OPP. (2) Whether the election petition is liable to be dismissed for not being framed the same in accordance with relevant law? OPR. (3) Whether the election petition is within time? OPP. Last but not the least, we &e of the opinion that the Election Commissioner was either necessary or proper party in the case to array him in the list of respondents, but the petitioner has not included the Election Commissioner as respondent and this legal infirmity' needs .to address. The upshot of the above discussion is that the impugned order of the learned Tribunal is maintained with the direction to dispose of the election petition on the issues as framed above. The Election Commissioner Northern Areas may also be impleaded as party in the petition under law. Appeal disposed of accordingly. H.B.T./44/Glt Order accordingly.