2017 PLP 557 (YLR)

GHULAM QADIR LEGHARI, J.--Through captioned Election Appeal, the appellant has challenged the impugned order dated 23.5.2016 passed by learned Tribunal/Ist. Additional District Judge, Badin, whereby he dismissed the election petition of the appellant as well as his application for recounting the votes.

2. The appellant has filed this election appeal with the following prayers:-- (a) Set aside impugned order dated 23.5.2016 passed by the learned Ist. Additional District Judge/ Presiding Officer, Election Tribunal, Badin being illegal, unlawful, null and void ab initio as the same has been passed by the learned Ist: Additional District Judge, Badin without applying judicial mind. (b) Direct the learned Ist. Additional District Judge/Presiding Officer, Election Tribunal, Badin to decide the Election Petition No.14 of 2016 and Application for Recounting filed by the appellant on merits. (c) Any other relief(s) which this Honourable Court deems fit, just and proper in favour of the appellant.

3. Mr. K.B. Lutuf Ali Leghari, learned counsel for appellant contended that impugned order was passed by the learned Tribunal without applying judicial mind and judging the difference between verification and affidavit on oath, which indicates that the same has been passed malafidely and such order of the learned Tribunal is not sustainable. He further argued that under no law, mere verification has more value than affidavit sworn on oath in support of Court matter, but the learned tribunal has diminished the value of sworn supporting affidavit, without assigning any cogent reason. He further argued that the learned tribunal has not assigned any cogent, convincing, plausible reason and justification for rejecting the election petition filed by the appellant and the impugned order is liable to be set aside. He further argued that impugned order passed by learned tribunal is based on presumption, suppositions, assumption, conjectures and surmises and the same is liable to be set aside and the matter be remanded to the learned tribunal for deciding the same on merits. In support of his contention, he has placed reliance on the case of Zulfiqar Hussain v. Mirza Haq Nawaz and others (2004 MLD 1331). He further argued that Section 61 of Sindh Local Councils (Election) Rules, 2015 provides that petitioner shall join all the contesting candidate as respondents and Petitioner has joined all the contesting candidate as Respondents. He further argued that according to section 62(3), every election petition is to be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and according to Order VI Rule 17, C.P.C., amendment can be made at any stage. He further argued that superior Courts have held that the technicalities should be avoided and matter should be decided on merits and want of verification does not have the effect of making the plaint void. It does not affect the merits of the case and can be rectified by permitting the party concerned to make good the deficiency by amending the pleadings. He lastly argued that the authorities cited by the learned counsel for the respondent No.6 are not applicable to the facts and circumstances of this case. He further argued that learned Tribunal/Ist. Additional District Judge, Badin has dismissed the election petition and application for recounting filed by the appellant on the ground that the memo of election petition is not signed by the appellant and the same is without verification, whereas the appellant sworn supporting affidavit in support of his election petition, which has more evidentiary value than the verification and signature on memo of election petition and the impugned order is not sustainable under the law and is liable to be set aside. In support of his contention, he has placed reliance on AIR 1964 A.P.164(DB), 1952 AIR Ajmer-44 and AIR 1961 Bom.292(DB).

4. Mr. Jhamat Jethanand, learned counsel for respondent No.6 contended that the result was announced and notification was issued by the Election Commission and the respondent No.6 was declared successful returned candidate as the Member of the Town Committee, Tando Bago. He further argued that Section 61(b) of Sindh Local Councils (Election) Rules, 2015 provides that any person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on each respondent a copy of his petition. In this case, appellant has not produced any such receipt of courier or registered post to show that he had served the copy of petition on the contesting candidate, therefore, it is proved that he has not served the copy of the petition on the respondent, hence on this single ground, the appeal of the appellant is not maintainable. He further argued that Section 62(3) of said Rules provides that every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure under Order VI Rule XV, for the verification of pleadings, but in this case, even the appeal filed by the appellant has not been signed by the appellant, but it was signed by his counsel. He further argued that Section 64 of the same Rules provides that if the tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission. He further argued that verification is to be made under Order VI, Rule XIV provides that every pleadings shall be signed by the party and his pleader (if any); Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or sue or defend on his behalf. He further argued that Order VI. Rule XV, C.P.C. provides that every pleadings shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with facts of the case, but in this case neither the petition is signed by the appellant nor it is verified and affidavit filed by the same it does not verify the contents of the petition. In support of his contention, he has placed reliance on the case Syed Ghazi Gulab Jamal v. Presiding Officer, Election Tribunal and others reported in 2015 CLC (Peshawar)-953 (Placitem-A), Zia ur Rehman v. Syed Ahmed Hussain (2014 SCMR 1015), Inayatullah v. Syed Khursheed Ahmed Shah (2014 SCMR 1477) and Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585).

5. Mr. Allah Bachayo Soomro, learned Addl. A.G. argued that the result was announced and notification was issued by the Election Commission and the respondent No.6 was declared successful returned candidate as the Member of the Town Committee, Tando Bago. He further argued that Section 61(b) of Sindh Local Councils (Election) Rules, 2015 provides that any person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on each such respondent a copy of his petition. In this case, appellant has not produced any such receipt of courier or registered post, therefore, it is proved that he has not served the copy of the petition on the respondent, hence on this single ground, the appeal of the appellant is not maintainable. He further argued that Section 62(3) of said Rules provides that every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. He further adopted the same arguments made by the learned counsel for the Respondent No.6.

6. I have given due consideration to the submissions of learned counsel for the respective parties and have also perused the impugned order as well as R & Ps of the case.

7. The provision of section 61(b) of Sindh Local Councils (Election) Rules, 2015 is obvious and clear and is mandatory provision of law. It is necessary to reproduce it as under:-- "

61. The petitioner shall join as Respondents to his election petition- (a) all contesting candidates; and (b) any other person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on each such respondent a copy of his petition".

8. From the perusal of the record, it appears that there is no paragraph of verification mentioned or appended with the election petition and petition was signed by the Advocate for the Petitioner. With the memo of petition, the petitioner has produced Photostat copies of form-XI, XIII and XIV, P.S. copy of application moved to R.O. for recounting the votes and order, P.S. Copy of constitution petition filed before this Court, original copy of challan of Rs.2000/- deposited in NBP Badin, Photostat copy of notice and copy of Gazette notification of returned candidates. In the instant case, appellant though has made all the contesting candidates as parties in his petition, but he has not produced any documentary proof i.e. postal receipt and courier service receipt to prove that he had served/sent copy of the petition to all the contesting Respondents before filing petition, therefore, he has not complied with the provisions of Section 61(b) of Sindh Local Councils (Election) Rules, 2015. It is an admitted position that the appellant/petitioner has not signed the petition nor there is verification of the petitioner on the foot of petition as it was observed by the learned tribunal as well as by this Court and too that the annexure to the petition are also not signed by the petitioner and verified the same.

9. It is also an admitted position that the petitioner has filed petition before the tribunal, but neither election petition, nor the annexure (attached) to the petition were signed by the Petitioner and nor the contents of the petition are verified by the Petitioners in the manner as laid down in Order VI, Rule 15, C.P.C. The provision of Section 62(3) of Sindh Local Councils (Election) Rules, 2015 is reproduced as follows:-- "62(3)

Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings."

10. The provision of section 62(3) of Sindh Local Councils (Election) Rules, 2015 is mandatory and provision of law, as mentioned above, has been violated by the Petitioner. The reference is made on a case of Zafar Abbas v. Hassan Murtaza (PLD 2005 SC 600), it is held that "It is, therefore, settled that the verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory."

11. It is pertinent to mention the section 64 of the said Rules for the necessary purpose, which is as follows:-- "

64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission."

12. On careful reading of above rules, it is clear that it was mandatory upon the petitioner to sign the annexures of petition and to verify the same in the manner laid down in the Code of Civil Procedure, 1908 and also service of notice on each respondents personally or by courier service or registered post and enclosed such copy of notice with the petition, but from the perusal of election petition, it is evident that neither the appellant/petitioner has complied with the above provisions of law nor produced any documentary proof of service on each Respondents or signing the memo of the petition in support of his contention.

13. The contention of the learned counsel for the appellant is that appellant/ petitioner has filed affidavit along with its petition and affidavit is more affective then the verification. The contents of affidavit of appellant/Petitioner are reproduced as follows:-- "(1) That I am petitioner in above petition and is well conversant with the facts of the case. (2) That the election petition under rule of Sindh Local Election Rules, 2015 for recounting of polled ballot papers has been moved and drafted under my instruction. (3) That I have good prima facie case and the balance of convenience is also lying in my favour. (4) That the contents of petition may be treated as part and parcel of this affidavit. (5) That the contents of this affidavit have been read over to me in Sindh language which I know and say that the same are true and correct to the best of my knowledge and beliefs."

14. The contents of affidavit of the appellant/Petitioner clearly reflects that the contents of the main petition may be treated as part and parcel of his affidavit, as the same have not been repeated for the sake of brevity and Petitioner has not stated in his affidavit that the contents of his petition are true to the best of his knowledge, information and beliefs, hence the contents of the affidavit of the petitioner cannot be treated as verification, as the above provision is mandatory and the said affidavit does not fulfill the pre-requisite of a valid affidavit as prescribed under the law. The second contention of the learned counsel for the appellant is that according to Order VI Rule XVII, C.P.C., the Court may at any stage allow the petitioner to move application for amendment of the pleadings, therefore, Petitioner/appellant may be allowed to amend the petition and he may be permitted to verify the contents of the petition. In this regard, there is nothing on record to show that appellant/ Petitioner moved any application before the learned tribunal for such amendment or asked for, therefore, in my view that on account of such deficiencies at this stage cannot be allowed to fill the lacunas after lapse of period of limitation prescribed for fling of election petition. In this context, I am fortified with reported case law of Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585), wherein the Honourable apex Court held as follows:-- (a) Representation of the People Act (LXXXV of 1976)

"

S. 55(3)

Civil Procedure Code (V of 1908), O.VI, R.15

Election petition, verification of

Mandatory requirement

Verification of an election petition was mandatory and a petition which lacked proper verification shall be summarily dismissed by the Election Tribunal, even if the respondent had not asked for or prayed for its dismissal

Where the election petition had not been verified in accordance with law, the same could not be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, could not permit the election Petitioner to cure the same".

15. In the case reported as Zia Ur Rehman v. Syed Ahmed Hussain (2014 SCMR 1015), wherein the Honourable apex Court has held that when the law prescribes a certain format of an Election Petition and its verification on oath and entails a penal consequences of its non-compliance, it is a mandatory provision. If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition.

16. The law cited at the bar by the learned counsel for the appellant are distinguishable from the facts and circumstances of the present case, hence the same are not helpful to the appellant's case.

17. Keeping in view the above facts and circumstances coupled with case laws cited at the bar by the learned counsel for the Respondents, I am of the considered view that election petition is incompetent, as the same has not been instituted in accordance with the provisions of law, as stated above. Consequently, the instant appeal being without merit and the same is hereby dismissed and the impugned order of the learned tribunal/Ist. Additional District Judge, Badin is maintained. JK/J-17/Sindh Appeal dismissed.