1982 PLP 398 (SCMR)

Date of hearing: 13th February, 1982. SHAFI‑UR‑REHMAN, J.‑The petitioner, an elected Councillor, seeks leave to appeal against the dismissal of a constitutional petition filed by him by the Lahore High Court on 19‑9‑1981.

2. The petitioner was elected as a member of the Multan Corporation from Halqa No. 32 in September, 1979. Two election petitions were filed one by Abdul Jabbar, respondent No. 2, and the other by Rana Wajid Ah, respondent No. 4, which came up for disposal before the Tribunal (The Additional District Judge, Multan). Both the petitions were consolidated by the Election Tribunal. Issues were framed on 14‑12‑1980 and evidence was called for on 17‑3‑1981. The concluding portion of the order of the Election Tribunal required :‑ "Submission of lists of witnesses of the parties, summoning of witnesses, deposit of diet money etc. in accordance with the provisions of C. P. C." No lists were filed. On 10‑1‑1981 Abdul Jabbar moved an application or petition for summoning the witnesses. No orders by the Election Tribunal were passed on this application but nevertheless the application was placed on the file and summons were issued to the witnesses. When the case came up for hearing on 17‑3‑1981, the petitioner took objection to the examination of witnesses on the ground that mandatory provisions of Order XVI, rule 1 were not observed inasmuch as list of witnesses was not filed within time. The objection was rejected on 20‑7‑1981, It was this order of rejection of the objection of the petitioner to the examination of the witnesses that prompted him to file the constitutional petition.

3. The learned Judge in the High Court held that Order XVI. rule 1 C. P. C. was not applicable, as specific provisions existed on the subject in the Election Petition Rules. It was also held that it was within the discretion of the Election Tribunal to summon a witness or to refuse summon in terms of rule 8 of the Punjab Local Council (Election Petitions) Rules, 1979.

4. The learned counsel for the petitioner urged that the provisions of Order XVI, rule 1 were applicable by reference under rule 8 of the Election Petition Rules. The failure of the respondents to file the list of witnesses within time disentitled them to examine their witnesses and the Election Tribunal could not extend them the benefit as was conferred in the case.

5. The very rule which applies by reference the provisions of the Cod of Civil Procedure, provides that "every election petition shall be tried, a nearly as may be, in accordance with the procedure of the trial of suits under the Code of Civil Procedure, 1908 (Act V of 1908)" The language of this rule makes it clear that the strict enforcement of the provisions can be dispensed with by the Election Tribunal in appropriate cases. This aspect of the power of the Election Tribunal and the applicability of the provisions of the Code of Civil Procedure is further highlighted by the express provisions made in clause (d) of rule 8 (1). It empowers the Election Tribunal to "refuse to issue any summons for the appearance of any witness unless, within three days following the date on which the parties are called upon to produce their evidence, any party intimates the Tribunal that it desires a witness to be summoned through the Tribunal and the Tribunal is satisfied that it is not possible for such party to produce the evidence." The view taken by the High Court with regard to the applicability of these provisions and the power of the Tribunal in the matter suffers from no legal infirmity. Leave to appeal is therefore, refused. Leave refused.