2007 PLP 559 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Writ petitioners had lost local bodies election for the offices of Nazim/Naib Nazirn of Union Council-24, Daftoo, District Kasur and filed an election petition before the notified Election Tribunal. They were refused impleadment of the contesting candidates namely Maj. (R) Muhammad Munir Ahmed and Ghulam Rasul who according to them, were covering candidates of respondents Nos.2 and 3 were initially not impleaded in the election petition because they were not in the run. They pending election petition moved an application under Order I, rule 10, C.P.C., which was opposed by respondents Nos.2 and 3 and was ultimately dismissed by the Election Tribunal vide its impugned order, dated 19-12-2005, necessitating filing of instant constitutional petition. Respondents Nos.2 and 3 in response to notice by this Court appeared and were represented through their counsel.

2. I have heard the learned counsel for the parties and have examined the record, appended herewith. The main stance in support of refusal to the impleadment prayed was that proceedings before the Election Tribunal were being conducted under a special law and thus had to be concluded according to the prescribed provisions. The election petitions have to be filed under Rule 65 of the Punjab Local Government Election Rules, 2005 and procedure to be followed on such petitions has been prescribed by these Rules. The learned Presiding Officer overlooked the provisions of Rules 71(4) and 73 of the Rules (ibid) whereunder the Tribunal was to act as a Civil Court, equipped with all powers available while trying a suit under the Code of Civil Procedure, 1908. The Tribunal was also conferred jurisdiction to allow amendments which were necessary for ensuring fair/effective trial of the election petitions and for determination of real questions in controversy, thus, it was not correct to urge that the Election Tribunal was denuded of jurisdiction to allow impleadment of any of the left out contesting candidate. Provisions of Order I, rule 10, C.P.C. which were available to the Election Tribunal, clearly equipped it with the powers to implead/delete any necessary/proper party. The above noted left out contestants though were said to have not really participated in the elections and their presence before the Election Tribunal may not be necessary but they being proper parties, should have been impleaded in the array of the respondents to the election petition. As regards impleadment of those respondents beyond the period of limitation prescribed for filing of election petition, this objection will still be available to respondents Nos.2 and 3 for its decision by the Election Tribunal at the time of decision of the case and for this reason, point of limitation is not being touched lest the same may not prejudice case of respondents Nos.2 and 3 at the time of final decision or the matter. Another factor which prompted impleadment of the left out contestants is that the law-makers have not provided any penalty for non-compliance of Rule 66 of the Rules (ibid) which would make the same only a directory in nature. Above all petitioners have approached the Election Tribunal through election petitions and they being masters of their litigation should not have been refused the impleadment which should have been allowed subject to all just and legal exceptions to be taken at the time of final decision.

3. For the reasons noted above, impugned order, dated 19-12-2005 is not only unlawful but is also opposed to the specific provisions in this behalf/principles of natural justice, thus, the same is not sustainable. This petition is accordingly accepted and order, dated 19-12-2005 passed by the Election Tribunal, District Kasur, is declared to be void and non-existent in the eye of law with the result that petitioners' application under Order I, rule 10, C.P.C. shall be deemed to have been accepted and Messrs Maj. (R) Muhammad Munir Ahmed and Ghulam Rasul, shall be permitted to be impleaded as respondents to the election petition pending before respondent No.1. There will be no order as to costs. S.A.K./T-42/L Petition accepted.