2009 PLP 795 (CLC)

JUSTICE NADEEM AZHAR SIDDIQI (ELECTION TRIBUNAL).

Through C.M.A. No.72 of 2008, the petitioner prays that he may be allowed to add (i) Abdul Rehman son of Abdul Karim Rahimoon and (ii) Akhtar Pervaiz son of Abdullah Rahimoon, as respondents Nos.9 and 10 to this petition. Learned counsel for the petitioner submits that due to oversight, the names of the above mentioned two contesting candidates were not added as respondents to this petition. He also submits that since the Election Commission has not dismissed the petition summarily and the same has been referred to this Tribunal for trial, therefore, evidence is to be recorded to dispose of the same. Learned counsel for the respondent No.1 submitted that non-compliance with the provisions of section 54 of the Representation of the People Act, 1976 ("the Act") is fatal and this petition is liable to be dismissed on this ground alone. He also submits that apart from the said contesting candidates, the petitioner was also required to array any officials against whom allegations of corrupt practices have been made as respondents. Mr. Raza Hashmi, learned counsel for the petitioner, denies that any such official is to be made a party to this petition. So far as the application filed by the petitioner for impleading the remaining candidates as party to this petition is concerned, it may be mentioned that an election petition is to be filed within 45 days of the publication in official Gazette of the name of the returned candidate as prescribed in section 52(2) of the Act. The Notification was published on 3-3-2008 and this petition was filed on 8-3-2008 while the present application for adding the names of the said persons as respondents was filed on 3-9-2008. Accordingly, while this petition was presented within the limitation period as prescribed above in respect of those candidates who were arrayed as respondents by him in the memo. of petition, the same is hit by limitation against the two candidates who were not so joined as respondents originally. In case the petitioner had approached this Tribunal or the Election Commission within the time limit provided by the Act for filing of such petition, it would have been a formality to allow such request of the petitioner. However, at this juncture when such period has expired, vested interest has accrued to the said persons and at this stage such application cannot be allowed. In view of the above C.M.A. No.72 of 2008 is dismissed.

2. By C.M.A. No.15 of 2008 the respondent No.1 prays that since the petition filed by the petitioner does not fulfil the requirements of the law under which it has been filed, therefore, it merits dismissal. It is submitted by the learned counsel for the respondent No.1/applicant that (i) the Annexures to the petition have not been verified as per law and (ii) some of the contesting candidates have not been made party to the petition. Learned counsel for the applicant/respondent No.1 submits that as per provisions of subsection (3) of section 55 of the Act, every Annexure to a petition is to be signed and verified by the petitioner in the manner as laid down in the Code of Civil Procedure for the verification of the pleadings which has not been done in the present case. He also submits that it is a mandatory requirement of law to array all the contesting candidates to an election petition but two of the contesting candidates, namely, Abdul Rehman and Akhter Pervaiz, have not been joined as respondents to this petition. He has relied on the reported case of 2007 SCMR 1776 and 2007 SCMR

34. On the other hand, learned counsel for the petitioner submits that this Tribunal cannot go into question of verification. He also submitted that since the Election Commission has not dismissed the petition summarily and the same has been referred to this Tribunal for trial, evidence is to be recorded. He has relied on the case reported as PLP 2005 SC

600. He further submits that the Annexures to the petition were not verified by him but by the petitioner himself. A perusal of the Annexures to this petition shows that only "T.C." has been written on each and every document with initials underneath the same of some unidentifiable person. The requirement of the law is that every Annexure to a petition "shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings". The relevant provision for verification of pleadings is contained in Order VI, Rule 15, C.P.C., which reads as under:

"

15. Verification of pleadings.

(1) Save as otherwise provided by any law for the time being in force, every pleadings shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleadings or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." Thus, if rule 15 of Order VI, C.P.C. and subsection (3) of section 55 of the Act are seen in juxtaposition, it would emerge that a petitioner should sign each and every document annexed by him with his petition on oath or solemn affirmation at the foot and also state the date on which and the place at which it was signed. None of these requirements has been fulfilled by the petitioner. So far as non-joinder of the some of the contesting candidates as respondents to this petition is concerned, section 54 of the Act narrates as to who shall be joined as party to an election petition, which reads as under:

"54 Parties to the petition.

The petitioner shall join as respondents 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 petitioner. Explanation .not relevant...." A perusal of the above quoted section 54 of the Act clearly shows that by using the mandatory word "shall" the Legislature has made it mandatory for a petitioner to (i) join all the contesting candidates to the election petition filed by such petitioner, and (ii) any other candidate against whom any allegation of any corrupt or illegal practice is made. Section 63 of the Act states the consequences for non-compliance of the provisions of sections 54 and 55 of the Act, which read as under:

"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." From the perusal of above two provisions it appears that due to consequences for non-compliance of section 54, provided in section 63 of the Act, provisions of section 54 are mandatory and in its non-compliance the petition can be dismissed. In view of the above quoted section 63 of the Act, a duty has been cast upon the Tribunal to dismiss an election petition if provisions of section 54 or section 55 have not been complied with. Thus, the argument advanced by the learned counsel for the petitioner that this Tribunal cannot go into the question of verification of documents has no force and is accordingly repelled. I am also not inclined to agree with the contention of the learned counsel for the petitioner that since the Election Commission has not dismissed the petition summarily and the same has been referred to this Tribunal, therefore, evidence is to be recorded to decide the petition on merits as this Tribunal would be failing in its duty if the provisions of the Act are not followed and acted upon if there is any lacuna in the petition which is fatal and the Tribunal ignores the same. In view of the above C.M.A. No.15 of 2008 is allowed and this petition is dismissed in limine. Before parting with the order it may be mentioned that there exists some ambiguity in clause (b) of section 54 of the Act. When it has been made mandatory to join "all contesting candidates" as envisaged under clause (a) of section 54 of the Act, the word "any other candidate" in clause (b) of section 54 of the Act makes no sense. When all the contesting candidates are already required to be made party to an election petition there remains nobody to whom the words "any other candidate" caters. Although the argument of Mr. Suresh Kumar, learned counsel for the respondent No.1 has some force that "any other candidate" includes officials against whom some allegations of corruption has been levelled in the petition and has to be made party, but since there is nothing to this effect in the law, no finding in the affirmative can be given on this point. M.H./D-5/K Petition dismissed.