1986 PLP 2474 (CLC)

Today the petitioner has filed an application for adjournment on the ground that his Advocate has not been able to come from Karachi due to change in P.I.A. flights. The request has been vehemently opposed by the learned counsel for the respondents. It has been pointed out by Mr. Tariq Advocate that on the last date of hearing when adjournment was sought by the learned counsel for the petitioner he had taken a date of his choice and even the time which was suitable to him had been granted. In these circumstances and in view of the objection taken by the learned counsel for the respondents the request for adjournment is refused. I have heard Mr. Tariq and Mr. Ayaz Khan, Advocates. The petitioner has filed application for joining Gawaran Das in place of Ram Chand. An affidavit in support of this application has been filed in which it has been stated that Ram Chand has been inadvertently typed as respondent No. 20 instead of Gawaran Das. The only ground for adding Gawaran Das as a respondent at this stage is that his name could not be included due to typing mistake and due to this mistake the name of Ram Chand has been typed. In these facts the only issue for consideration is whether Gawaran Das can be joined as a respondent. If not should the petition be dismissed? The admitted facts are that Gawaran Das has not have made a party. The application filed for joining him as a respondent hardly gives any valid reason. It has been admitted by the petitioner that the name of Gawaran Das has not been typed in the array of respondents inadvertently. Such statement cannot be a ground to treat it a bona fide mistake. There is no resemblence or similarity in these two names which has caused confusion resulting in typing the wrong name. The affidavit filed by the petitioner is so short and scanty that hardly on that basis the application can be granted. The other aspect of the case is that this application for joining Gawaran Das has been made after the expiry of the period of limitation. It is well‑settled that no person can be joined as a party after expiry of the period of limitation. In this regard reference has been made to sections 54, 62 and 63 of the representation of the Peoples Act, 1976 which provide the form of pleading, the time during which it should be presented, the parties which should be joined and the averments made in the petition. The consequences for its non‑compliance have also been provided. I had the occasion to consider these provisions in Petition No. 6 of 1985 (Ali Ahmad v. Qasim Ali) or where similar question of., law arose. The relevant portion is produced as follows‑.‑ "A perusal of the provisions of the Act makes it clear that procedure has been laid down regulating the filing and trial of the election petitions. The Legislature has taken care to even respecify who should be joined as parties and what the contents of the petition should be. It also provides that allegations and averments challenging the election should be specific and by way of amendment no additional grounds should be permitted to be added afterwards. It is also provided that all the contesting candidates and other candidates against whom any allegation of corrupt or illegal pracface is made should be joined as a party. The consequences for non‑compliance have also been mentioned in section 63 of the Act. It is pertinent to note that section 62 which provided that procedure for trial of the election petition shall be as nearly as may be in accordance with the procedure of trial of suit under the Code of Civil Procedure has been deleted and instead the procedure has been laid down by the Election Commission. Therefore, the statutory provision for application of the provision of Code of Civil Procedure has been excluded and in its place a new procedure has been laid down by the Election Commission, which has been notified in the Gazette of 16th March, 1985. now, essentially the procedure is to be governed as laid down by section 62 sub‑clause (1) but occasions may arise, when in the interest of justice equitable principle of C.P.C. not contrary to the prescribed procedure and the Act may be pressed in service. Section 62 subsection (3) of the Act empowers the Tribunal to allow such amendment in a petition which may be necessary for ensuring a fair trial and for determining the real question at issue. It, therefore, follows that in certain circumstances the Tribunal can allow the petition to be amended. In the absence of applicability of Code of Civil Procedure, in my view the Tribunal subject to the limitations provided under the Act, can allow the amendment of pleading and in proper cases even allow the parties to be joined or deleted from the petition. From scrutiny of the provisions of the Act it is plain that the Legislature requires strict compliance of the requirements laid down by the Act. Its non‑compliance will follow dismissal unless it can be remedied by amendment in the petition which the Tribunal is permitted to allow under law I had the occasion to consider Rules 56, 66, 67 and 68 of Sind Local Council Election Rules in Muhammad Hanif v Ghulam Hyder to sections 54, 56 and 62 of the Act and observed that those Rules being procedural should be liberally construed. But such liberal construction cannot be permitted to violate the language of the statute and intention of the Legislature. I have already observed above the extent upto which the mandatory provisions of sections 54 and 63 can be relaxed. If a very technical and strict view is taken and petition is dismissed on such non‑compliance which can be remedied by granting amendment then it will be violative of the intention of Legislature as it will make the provision authorising the Tribunal to grant amendment in the petition redundant and nullify section 62(3) of the Act.. It is now to be considered whether at this stage Hazrat Ali Karbalai 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 fact 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 the no one can be joined as a party to the proceedings after the expiry of the period of limitation. Even the affidavit filed by Hazrat Ali Karbalai does not state that he is prepared to be joined as a party. I, therefore, see no just reason to allow Hazrat Ali Karbalai to be joined as a respondent in this petition." In the present case as the application for joining Gawaran Das cannot be granted, the consequences for non‑compliance with the provisions of section 54 as provided under section 63 has to follow. The petition is, therefore, dismissed. A . A . Election petition dismissed.