P L D 1989 Lahore 34 (PLP)

MUHAMMAD MUNIR KHAN. J.‑‑Through these Writ Petitions Nos.828, 829 and 830 of 1988/BWP, Sufi Noor Muhammad, petitioner wants this Court to declare the order, dated 20‑7‑1988 of the Election Tribunal, Bahawalpur, to be without lawful authority and of no legal effect. We propose to dispose of them through single order.

2. The facts leading to these petitions briefly are that in the Local Bodies Elections held in the year 1987, Sufi Noor Muhammad petitioner and respondents namely Abdul Ghafoor Shah, Malik Muhammad Khan, Muhammad Hayat Mughal, Muhammad Shafi and Malik Allah Ditta contested election to local council seat No.39, Municipal Corporation, Bahawalpur. Sufi Noor Muhammad was declared elected. Feeling aggrieved thereby, Abdul Ghafoor Shah, Muhammad Hayat Mughal and Malik Allah Ditta respondents called in question the election by filling separate petitions under section 24 of the Local Government Ordinance, 1979 in the Court of Additional District Judge/Election Tribunal, Bahawalpur, challenging the election of Sufi Noor Muhammad as successful candidate. The three election petitions were consolidated, issues were framed in the election petition titled Abdul Ghafoor Shah v. Sufi Noor Muhammad and others and the petitions were adjourned to 11‑6‑1988 for the evidence of the election petitioners: On 11‑6‑1988, neither Sufi Noor Muhammad respondent therein nor his learned counsel appeared before the Election Tribunal, so he was ordered to be proceeded against ex parte. On the same day Mr. Muhammad Masood Khan, the learned counsel for Sufi Noor Muhammad petitioner/ respondent filed three applications for setting aside the order for the ex parte proceedings in the election petitions. After hearing the parties, the learned Election Tribunal, dismissed the three applications through single order, dated 20‑7‑1988, hence these writ petitions.

3. Learned counsel for the petitioner contended that there were more defendants than one, in the writ petitions and one namely Sufi Noor Muharamad petitioner/ respondent did not appear and the others did appear, so, the Election Tribunal had no authority to pass order for ex parte proceedings against the petitioner on that date. Supporting the impugned order of the Election Tribunal, the learned counsel for the respondents relied on Order XVII, Rule 2, C.P. C. to contend that the Election Tribunal was well within its authority to proceed to dispose of the election petitions in one of the modes directed in that behalf by Order IX, C .P. C . or make such other order as it thinks fit.

4. We have considered the submissions made by the learned counsel carefully. We feel persuaded to agree with the learned counsel for the petitioner. The Local Government Ordinance and Election Petition Rules, 1979, do not prescribe any procedure to be followed wherein the sole defendant or one of the defendants does not appear. The rules do not authorise the Election Tribunal to order ex parte proceedings. Under rule 8 of Election Petition Rules, 1979, the election . petitions shall be tried as nearly as may be in accordance with the procedure for trial of suits under Civil Procedure Code. The procedure in case of non‑attendance of sole defendant or one of the several defendants has been stated in rules 6 and 11 of Order IX, C.P.C which read as under:‑ Rule 6 of Order IX: (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then‑‑ (a) if it is proved that the summons was duly served, the Court may proceed ex parte, and pass decree without, recording evidence; . (b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the and shall direct notice of such day to be given to the (2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement." Rule 11 of Order IX: "Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear." An examination of the aforesaid provisions of law reveals that in rule 6, it has been stated that "the Court may proceed ex parte" but these words are missing in rule 11, C.P.C. Under Rule 11, Order IX, C.P.C. when one or more of defendants appear and the others do not appear, the suit shall proceed and the Court shall at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. The omission of the words "the Court may proceed ex parte" in this rule is of great significance. In these election petitions before the Election Tribunal, there were more respondents than one, so rule 6 of Order IX was not applicable and the relevant rule is rule 11, Sufi Noor Muhammad was not present and the other respondents were present, so, the Election Tribunal was not authorised to make order for ex parte proceedings against him on that date. He should have postponed the order with respect to the petitioner/ absentee respondent, till the time of the announcement of the judgment. The wisdom behind the omission of words "may proceed ex parte" in rule 11 is to enable the absentee/respondent/defendant to join the proceedings at subsequent stage. The Code of Civil Procedure also does not authorise the Court to make order for ex parte proceedings against one of the defendants where there are more defendants than one and one or more of them appear and the others do not appear. The words "and the Court shall at the time of pronouncing judgment make such order as it thinks fit with respect to the defendants who do not appear" rather prohibit the Court from making any order against the absentee defendant before pronouncing final judgment in the case. Be that as it may, the fact remains that since the Election Tribunal had not disposed of the election petitions on 11‑6‑1988 and had adjourned the case for evidence of the petitioners therein, therefore, the respondent /petitioner could join proceedings. The application for setting aside ex parte order was filed by the petitioner on the same day. The Election Tribunal has violated the provisions of rule 11 of Order IX, C.P.C. In the circumstances of the case, the election Tribunal should have set aside the ex parte proceedings against the petitioner. Refusal on the part of the Election Tribunal to set aside the ex parte proceedings dated 11‑6‑1988 against the petitioner/ respondent is quite illegal. For what has been said above, the impugned order is declared to be without lawful authority and of no legal effect. The three petitions are allowed, leaving the parties to bear their own costs. A . A . /N‑175 /L Petitions accepted