P L D 1967 Supreme Court 486 (PLP)

S. A. RAHMAN, J.‑This is an appeal, by special leave, from an order, passed by the High Court of West Pakistan, Peshawar Bench, on a petition presented under Article 98 of the Consti tution and directed against an order of the Election Tribunal, West Pakistan. The appeal has arisen in the following circumstances. On the 16th of May 1965, for election to the Provincial Assembly of West Pakistan fr9m Constituency No. P. W. 22, Peshawar, a contest took place between three candidates. The appellant, S. M. Ayub secured 108 votes, 115 votes, were cast for the respondent, Syed Yusaf Shah and only one vote was secured by the 3rd candidate. The respondent was, therefore, declared elected. The appellant filed an election petition before the Election Tribunal, West Pakistan, Lahore. The petition was contested, on behalf of the respondent, and the main grounds of objection were that, though allegations of corrupt or illegal practices had been made in the petition, yet, for want of proper particulars, as required by section 59 of the National and Provincial Assemblies (Elections) Act, 1964 (hereinafter referred to as the Act), the petition was liable to dismissal. Another ground of objection was that the annexures to the petition were neither signed nor verified, in accordance with subsection (3) of section 59 of the Act. On these twin grounds, it was claimed that the petition required summary dismissal. The Election Tribunal held that some of the paragraphs of the petition were liable to be struck out, as they contained indefinite and vague allegations not supported by full particulars of the corrupt or illegal practices alleged therein. There were, however, other paragraphs which complied with the require ments of subsection (1) of section 59 of the Act, and it was found that the petition could be proceeded with on their basis. In respect of the second objection, it was decided that the papers attached to the main petition were not really covered by the terms "schedule or annex", as used in subsection (3) of section 59 of the Act and, therefore, the omission to sign or verify them, did not affect the competency of the petition. Quashment of the order of the Election Tribunal was sought by a petition under Article 98 of the Constitution, filed on behalf of the respondent, S. M. Yusaf Shah, in the High Court. The learned Judges of the High Court held that the provisions of section 59 of the Act are mandatory and non‑compliance therewith entailed the penalty of dismissal of the petition under section 67 of the Act. Even if a partial defect was found in the petition, falling within the mischief of section 59, the petition was liable to dismissal as a whole under section 67 of the Act, in the opinion of the learned Judges, even though other parts of the petition were in order. The view was also expressed that the petition could not b.‑ allowed to be amended under section 60 of the Act, in such manner as to defeat the provisions of these two sections. The learned Judges noted that under section 68 (1), the Tribunal had all the powers of a Civil Court, trying a suit under the Code of Civil Procedure, 1908, and that section 66 (3) of the Act expressly empowered the Tribunal to allow a petition to be amended in order to ensure a fair and effective trial and for determining the real questions at issue. This power, according to them, had to be exercised, subject to the provisions of the Act itself and, therefore, the relevant provisions of the Code of Civil Procedure, allowing amendment, could not be availed of, to avoid the penalty, incurred under section 67 of the Act, on the ground of non‑compliance with the requirements of section 59. Reliance was placed mainly in this behalf on certain decisions from the Indian jurisdiction. The failure of the petitioner‑appellant to sign and verify annexures of the petition was also held to be fatal to its competency. The language of subsection (3) of section 59 of the Act was under stood in the absolute sense by the learned Judges, irrespective of the nature of the so‑called annexures. As the questions involved in the case were felt to be of general importance, special leave to appeal was granted to S. M. Ayub, petitioner‑appellant. The first question that falls for determination is whether the view, that prevailed in the High Court that even if the petition failed in part to satisfy the requirements of clause (a) of subsection (1) of section 59 of the Act, it was liable to dismissal as a whole, is correct. To appreciate the reasoning of the learned Judges, it is necessary to set out sections 59 and 67 of the Act. They are reproduced below:‑ "59. Contents of petition.‑(1) Every election petition shall contain:‑ (a) a precise statement of the material facts on which the petitioner relies ; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely:‑ (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other has been duly elected; or (c) that the election as a whole is void. (3) Every election petition and every schedule or annex to that 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." "67. Dismissal of petition during trial.‑The Tribunal shall dismiss an election petition, if:‑ (a) the provisions of section 58 or section 59 have not been complied with; or (b) the petitioner fails to make the further deposit required under subsection (4) of section 66." The Tribunal found, in the present case, that some of the paragraphs of the petition omitted to give full particulars of the corrupt or illegal practices alleged therein and these paragraphs were, therefore, struck out, presumably under rule 16, Order VI of the Code of Civil Procedure. Dr. Nasim Hasan Shah, on behalf of the respondent, has taken exception to this procedure adopted by the Tribunal, as according to the learned counsel, this would defeat the mandatory provisions of section 59 read with section' 67 of the Act. The learned counsel attempted to maintain that under section 67, the Tribunal had no discretion in the matter of dismissal of the petition if the petition was found to suffer even in part from want of particulars required by section 59 (1)(a). We note at the outset that section 67 does not, in terms, say that the petition shall be dismissed even if there be a partial failure to comply with the provisions of section 59, ex facie section 67 of the Act would seem to be designed to cover a case where the petition as a whole made allegations of a vague and indefinite character, without being supported by full particulars of the corrupt or illegal practice alleged. On the view contended for by the learned counsel for the respondent even a single defective paragraph in the petition might entail the dismissal as a whole. Learned counsel proceeded to justify his extreme stand on the assumption that the policy of the law was to discourage election petitions. He contended that the rights given by the Act were statutory rights and had to be exercised subject to the limitations imposed by the Act itself, as they were creatures of the Statute and were not common‑law rights. This principle maybe accepted as unexceptionable. Moreover, we are unable to agree with the learned counsel that the policy of the Act is to discourage election petitions even if genuine grounds for challenging an election exist. We can discover no words in the Act which could lead to such a conclusion. On the contrary, subsection (3) of section 66 of the Act, evinces the anxiety of the Legislature to provide for the adjudication of the substantial dispute between the parties in so far as it allows amendment of a petition to bring out the real points at issue. The Act provides the machinery for redress in cases. where an election is vitiated by resort to corrupt or illegal practice or to some other illegalities, of course, subject to the technical restrictions imposed by the provisions of the Act, as regards the form of the petition, its contents and the procedure applicable to it. The provisions of section 67 of the Act should receive a reasonable interpretation such as would advance the cause of adjudication of the sub stantial dispute between the parties, falling within the purview of the Act, rather than shut out the decision of even genuine cases. We are disposed to hold, therefore that the extreme view which found favour in the High Court as to the construction of section 67 is erroneous. There is nothing in the Act to give countenance to the contention that even a single defect in the petition, in respect of one paragraph, would justify its being thrown out as a whole. This construction would amount to reading into section 67 words that do not exist therein. The true construction of this section seems to be that, if the petition, taken as a whole, fails to comply with the provisions of section 59, it shall be dismissed as revealing no cause of action. This conclusion is supported by the language employed in section 72 of the Act. This section provides, inter alia, that the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the election of the returned candidate has been procured or induced by any corrupt or illegal practice, or a corrupt or illegal practice has been committed by the returned candidate or his agent, or by any other person with the connivance of the candidate as his election agent. It clearly follows that, if by evidence it is established that a single corrupt or illegal practice had been resorted to, by or on behalf of a candidate or with his connivance, it would be sufficient for declaring his election to be void. The position is not that, i. several allegations of this character are made in a petition, then it must fail, unless all those allegations are established as a composite whole. The various allegations do not apparently constitute an integral package such as would lose its integrity by the failure of one of its parts. The relief sought in such cases can be granted on a single transaction covered by clause (c) of subsection (1) of section 72, and the mere fact that some of the allegations made in the petition are defective, should not stand in the way of adjudication of other allegations, properly made and substantiated with full particulars in a petition. The law does not appear to display a perfectionist attitude in this behalf and it seems to us, with reason. The law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specially in the mofussil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not be astute to ascribe to the Legislature a desire to be hyper‑technical, so as to smother genuine litigation. Subsection (3) of section 66 of the Act empowers the Tribunal, at any time, upon such terms and on payment of such costs as it may direct, to allow a petition to be amended in such manner, as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue. The learned Judges thought that this provision was controlled by section 67 of the Act, which imposes the penalty of dismissal on an election petition, if it fails to comply in part with the provisions of section 59 of the Act. Having taken this view, of section 67, the corollary drawn by them would seem to follow that no amendment of the petition could be allowed under subsection (3) of section 66, if this would have the effect of avoiding a penalty imposable under section 67. on Learned counsel for the respondents, however, conceded that, if the assumed construction of section 67 be not correct, then the argument that the provisions of section 66 were controlled by section 67, would not be available. It is of some significant that the words "subject to the provisions of the Act" occur specifically in subsections (1) and (2) of section 66 but they art not repeated in subsection (3) thereof. As observed above, the narrow construction of section 67, adopted by the High Court, does not appear to us to be consistent with the provisions of the Act, read as a whole. The view, therefore, that section 66 is controlled by section 67, as regards the necessary amendment of a petition, appears to be open to grave question, Indeed no question of amendment of the petition arises in the instant case. The argument of the learned counsel for the respondents that the Tribunal could not suo motu excise certain paragraphs of the petition and thus amend the petition, without a specific prayer to that effect made by the petitioner himself, overlooks the point that an amendment of a petition, at the instance of a party, is regulated by rule 17 of Order VI of the Code of Civil Procedure, but the Tribunal or Court is not fettered at all in the exercise of the power given by rule 16, Order VI of the Code of Civil Procedure. That power may be invoked suo motu by the Tribunal, to strike out unnecessary or prolix pleadings or allegations that suffer from failure to comply with any provision of the Act. The result would not have been, in any way, different, if the Tribunal had not resorted to their power under rule 16, Order VI of the Code of Civil Procedure for the excision of certain paragraphs from the petition, but had merely said that no issue would be framed with regard to the allegations contained in the defective paragraphs and that the issues would be confined to those matters which were set out in properly substantiated paragraphs. On the view that we have taken of the true import of section 67 of the Act, the cases on which the learned Judges chose to rely, from the Indian jurisdiction, in support of their findings in this case, are really not pertinent and we do not consider it necessary to examine them. This brings us to the second question, arising for decision in the case, namely, the effect of the omission of the petitioner appellant to subscribe his signatures or verification to the documents annexed to the petition. The learned Judges of the High Court commented adversely on the finding of the Tribunal that none of these documents was a "schedule or annex," within the meaning of subsection (3) of section 59 of the Act, such as would require to be signed and verified in the manner laid down in the Code of Civil Procedure, under the mandate of subsection (3) of section 59 of the Act. In this connection, they referred to the definition of "annex" as given in the Law Lexicon. The word "Annex" is defined as follows in that book:‑ 'Annex' is to attach at the end, subjoin, affix, as to annex a codicil to a will. In law it implies physical connection which, however, is often dispensed with, when not reasonably' practicable. To unite, as a smaller thing to a greater; join; make an integral part of: as, to annex a conquered province to a kingdom." Having regard to this definition of "annex", the learned Judges thought that whatever is attached to a petition, would fall within the meaning of "annex", and as such, would attract the provisions of subsection (3) of section 59 of the Act. Here again, the learned Judges relied on certain cases, decided in the Indian jurisdiction, on the basis of the Indian Representation of the Peoples Act. This view is strongly contested on behalf of the appellant, by Mr. Rafiq Ahmad Sheikh, It is argued with force, on behalf of the appellant, that the documents attached to the petition in the instant case, were merely newspaper‑cuttings from a paper, called "Hayat", run by the respondent, and contents of those cuttings were said to be malicious untruths, calculated to prejudice the voters against the petitioner‑appellant. These cuttings bad reference to paragraph 10 of the petition, which starts by saying that the respondent to the petition before the Tribunal, had published in the daily "Hayat", Peshawar, false and malicious news items, arousing religious, social and political hatred against the petitioner, details of which were given in that paragraph. Then follow, in serial order, brief description of the nature of the news items with the dates of their publication and the indication that they would be found in what are described as annexures to the petition, marked with letters B', `B‑1', `C', etc. These cuttings do not really amount to allegations on which the petitioner appellant was seeking avoidance of the election but they were in the nature of evidence, cited in support of allegations of corrupt or illegal practices such as, if established, could avoid the election. The main petition, it is conceded, is properly signed and verified. Instead of reproducing the contents of the cuttings in paragraph 10 of the petition itself, they have been briefly described therein and then collected at the end of the petition. The contents of those cuttings having been characterised in the main petition itself, as malicious untruths, it would be too much to expect the petitioner to verify them in the manner contended for. By "schedule or annex" mentioned in subsection (3) of section 59 of the Act, is apparently meant such a schedule and annexure as either makes additional allegations of a substantive character against the opposite‑party, or at least furnishes better particulars of the allegations made in the petition, so as to give them the status of substantive grounds of the petition itself. The documents under consideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of "schedule or annex", mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the) petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signatures or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution, of the petition. The upshot of the above discussion is that, in 'our opinion, the learned Judges of the High Court misdirected themselves on both the points which were canvassed in this case. We, therefore, allow the appeal, set aside the order passed by the High Court and restore that of the Tribunal, but, in the circumstances, make no order as to costs. A. H. Appeal allowed,