2012 PLP 1685 (CLC)

MUNIR AHMED CHAUDHARY, J.

The petitioner Sardar Muhammad Hussain Khan filed an election petition against Dr. Muhammad Najeeb Naqi Khan (returned candidate) and others before the Hon'ble Chief Election Commissioner Azad Jammu and Kashmir. The petition was made over to this tribunal for disposal under law.

2. Notices were issued to non-petitioners. Non-petitioner No.1 appeared before the court along with his counsel, while ex parte proceedings were ordered against all of the remaining non-petitioners. On 2-4-2012, non-petitioner No.1 submitted an application under section 59 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. It was stated in the application that the verification of the election petition was not in accordance with Rule 3 of section 51 of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance 1970, therefore, the election petition was liable to be dismissed summarily under section 59 of the said Ordinance. The petitioner Sardar Muhammad Hussain Khan submitted objections on the application stating therein that non-petitioner has filed a frivolous application under section 59 of the Ordinance for dismissal of petition. The petition has duly verified the contents of the petition as well as the annexures and other documents relied upon by the petitioner. Furthermore, an affidavit in support of the contents of the petition has also been submitted, so the requirements of Rule 3 of section 51 of the Ordinance have been fulfilled. It was further stated that non-petitioner has filed the said application just to prolong the matter.

3. Arguments were advanced by the petitioner in person and the learned counsel for the parties. Kh. Muhammad Naseem Advocate, the learned counsel for non-petitioner No.1 argued that the petitioner was bound to verify the contents of the petition in accordance with Order VI, Rule 15 of Code of Civil Procedure. The petitioner was bound to verify the petition on oath or solemn affirmation. The said verification was neither made on oath nor on solemn affirmation, so the election petition was liable to be dismissed under section 59 of the Ordinance because the verification was not endorsed in accordance with section 51 of the Ordinance. The learned counsel requested to dismiss the petition and referred the following precedents in support of his arguments. 1987 MLD 1372, 1995 CLC 150-394, 1997 CLC 1167, 2003 YLR 2784.

4. While controverting the learned counsel for the applicant/non-petitioner No.1, the petitioner Sardar Muhammad Hussain Khan, Advocate, contended that verification of the contents of the petition has been endorsed in accordance with provisions of law. An affidavit has been appended as well with the petition, which is in support of the contents of the petition. An affidavit is a part and parcel of the pleadings. So, the election petition and attached affidavit shall be read in juxta position. The learned Advocate requested to dismiss the application filed by non-petitioner No.1 and referred the following precedents in support of his arguments. (1) PLD 2005 SC 600. (2) Ch. Arshad Hussain v. Rukhsar Ahmed and others (an unreported case decided by the apex Court under Civil Appeal No.90 of 2006 dated 19-11-2009). After hearing the arguments, I have gone through the record, the relevant provisions of law and the precedents referred minutely. Under section 51(3) of the Ordinance, the verification of the election petition, schedules or annexures attached thereto have to be verified in the manner laid down by Order VI, Rule 15 of the Civil Procedure Code. The Election Tribunal has got all the powers of the civil court trying the suit under the Code of Civil Procedure, under section 60 of the Ordinance. So, the Code of Civil Procedure and the Ordinance are simultaneously applied during trial of an election petition. It is pertinent to reproduce Order VI, Rule 15 of Code of Civil Procedure, which is as under:

"

15. Verification of pleadings.

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." So, the verification renders a responsibility on the party making different averments in the petition. The verification made in the present petition at the foot of it is reproduced as under:

"Verification:- Verified that the contents of petition para No. 1 to 17 along with prayer clauses are correct to the best of my knowledge and belief and nothing has been concealed and kept secret. Dated: 7-7-2011 Petitioner Pallandri, Sardar Muhammad Hussain Khan Advocate." An affidavit duly attested by the Oath Commissioner has been appended with the petition, through which the deponent/petitioner has sworn that the contents mentioned in the petition are correct to the best of knowledge and belief of the petitioner and nothing has been concealed. Through the verification, the petitioner takes upon him the responsibility of the truth of the pleadings and version taken by the petitioner before the court/tribunal. The Code of Civil Produce does not provide any penalty for non-compliance and substantial compliance is made in verification. The penal provisions mentioned in sections 59 and 60 of the Ordinance shall not be strictly applicable. The Tribunal acts as a civil court under section 60 of the Ordinance and it has to try the election petition as a suit under section 59(2) of the Ordinance. An amendment can also be allowed under section 59(3) of the Ordinance to cure the defects of the formal nature at any stage to determine the real controversies in issue. In the present case, the words "on oath or solemn affirmation" have not been written in the verification. In a case titled Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600, it was held that there is no material difference between the verification on oath at the end of the election petition or through an affidavit given separately, as both would meet the requirement and when the affidavit is attested by the competent authority to administer oath. This/principle was also reiterated in the precedent 2007 MLD 153.

6. If there is a complete absence of the verification in accordance with Order VI, Rule 15, it may be fatal to the election petition. But in the present case, there is a sufficient compliance with the requirements though not a literal compliance. The defect to this extent may be treated as one of a minor character and it will be too technical and unreasonable to dismiss the election petition. This principle has been laid down in the precedent AIR 1984 Patna

167. For the reasons mentioned above, it is crystal clear that there is no material difference between a verification on oath and a verification through an affidavit separately appended with the petition. Both shall be read and treated in juxtaposition. So, the mandatory provisions of the Ordinance have duly been complied with and there is no reason for the tribunal to dismiss the petition on the objection raised. The instant application filed by Dr. Mohammad Najeeb Naqi Khan/non-petitioner No.1 stands dismissed. HBT/42/ET(AJ&K) Petition dismissed.