2004 PLP 1549 (YLR)

MUHAMMAD MOOSA K. LEGHARI, J.‑‑‑Through this petition the petitioner has mainly prayed for the following reliefs:‑‑ (a) It be declared that the order dated 19‑7‑2003 passed on application under Order 47, rule 1, C.P.C. and order dated 21‑12‑2002 on application under section 151, C.P.C: passed by the respondent No.4 are illegal, in excess of their jurisdiction and may be set aside and may further be declared as of no legal consequences. (b) The respondent No.4 may be directed to decide the matter on merits on the evidence already brought on record. The facts forming background for this petition are summarized as under.

2. The petitioner contested the elections for the post of Nazim of Union Council‑7 Oderolal village, under Sindh Local Government Ordinance, 2001 and the Rules made thereunder, and was declared as returned candidate. The election of the petitioner was challenged by respondents Nos.1 and 5 through Election Petition No.5 of 2001 (new) 79 of 2001 (old) before the Election Tribunal for Hyderabad District/District Judge Badin. The petitioner appeared and filed his written statement while the other respondents were proceeded ex parte. After framing of the issues, the respective parties adduced their evidence.

3. The respondent No.1 moved an application under section 151, C.P.C. before the Election Tribunal praying therein for calling the record of Polling Stations 89, 90 and 91 and orders for opening the seal and perusal of ballot papers, Form No.XIII and XV and rejected votes and other material contained in the bags for the purpose of determination of valid votes cast in favour of respondent No.1. The counsel for the petitioner recorded his no objection and the application was allowed vide order dated 21‑12‑2002.

4. It seems that after having been perturbed by the aforesaid orders passed by the Election Tribunal, the petitioner moved an application under Order 47, rule 1, C.P.C. on 4‑1‑2003 praying for reviewing and recalling the order dated 21‑12‑2002 with a further prayer that the said application be dismissed. The respondent No.1 filed objections by way of counter affidavit. Learned Election Tribunal, however, declined to review the order passed earlier and dismissed the application vide order dated 19‑7‑2003. Hence this petition.

5. Learned counsel appearing for respective parties as well as learned Additional Advocate General have been heard.

6. It was contended by learned counsel for the petitioner that the order passed by Election Tribunal to the extent of the recounting of valid votes was without jurisdiction being in excess of the powers of the Tribunal. It was next contended that since the application contained no prayer for recounting, learned Election Tribunal travelled beyond jurisdiction by passing such order. It was urged that the petitioner has recorded no objection to the extent of opening of the bags and scrutinizing the valid votes and not beyond that. It was next argued that learned Election Tribunal failed to exercise the jurisdiction by declining to recall the order thus acted illegally.

7. Conversely learned counsel for the respondent No. 1 supported both the orders passed by the Tribunal. He contended that the order passed by the Election Tribunal was within jurisdiction and that the application was rightly allowed, and that too with the consent of the petitioner. Thus by his conduct, the petitioner was estopped from assailing the order as a consent order could not be challenged. It was argued that the review application was not maintainable, dismissal thereof was proper.

8. Mr. Masood A. Noorani, learned Additional A.‑G. on Court notice contended that the order passed by the learned Election Tribunal was just and proper and within the powers vested in the Tribunal. Learned A.A.‑G., referred to 2002 SCMR 1523. It was vociferously contended that .the petition was not maintainable.

9. We have considered the arguments advanced at the Bar and have perused the relevant documents annexed to the petition with the assistance of learned counsel for the parties.

10. Undisputedly, an application was moved on behalf of the respondent No. 1 praying therein that the record of the election of Nazim and Naib Nazim in respect of Polling Stations 89, 90 and 91 be called, and ballot papers, Form No.XIII and XV be perused after opening the seal of the bags for the purpose of determination of reducing the valid votes cast in favour of the petitioner, wherein the forgeries were allegedly committed by respondent No.5. It is also not disputed that the no objection was recorded by learned Advocate for petitioner, and a consent order was passed A by the Election Tribunal. The perusal of the order shows that it was passed in presence of the Advocates for the parties after hearing them. The order reveals that by consent the application was accepted and the bags containing the ballot papers of Polling Stations 89, 90 and 91 were ordered to be called from the Returning Officer. It was further ordered that after desealing the ballot papers be recounted to determine the question of wrong counting of votes in presence of both parties. After recounting the votes the bags be resealed and sent back to the respective Returning Officer. It. seems that after this application was allowed, the petitioner gave a second thought and took a somersault. Subse quently an application for reviewing the order was moved but, as a matter of facts, the petitioner intended to resile from the consent given by him earlier. The application for review, in reality was meant for the purpose of retracting.

11. It hardly needs to be emphasized that by it's nature the scope of review is restricted to some mistake or error apparent on the face of record, discovery of new or important matter or evidence, which despite due diligence, was not within the knowledge of the petitioner when the order was passed. As discussed earlier, since the order was passed by consent of the parties, and in their presence, none of the grounds stated heretofore were available to the petitioner to maintain the review application. The application for review was thus rightly dismissed.

12. It may further be stated that the Election Tribunal has the powers to summon the record and to scrutinize the ballot papers. The purpose behind moving' of the application for summoning the record was, admittedly to determine the valid votes and to segregate the same from invalid votes. Further to check the forgeries if any committed during the counting. The valid ballot papers have to be compared and' tallied with the statement of counts as available on Form No.XIII and XV. In Sheikh Iftikhtar‑ud‑Din v. District Judge 2002, SCMR 1523, it was held by the Apex Court that "In election matters, it will be entirely in the interest of justice and fair play if each ballot paper is scrutinized by the Tribunal to examine and verify as to whether Presiding Officers of all .the Polling Stations had correctly counted the ballot papers or not. " The arguments advanced by learned counsel for the petitioner are absolutely misdirected having no foundation. Needless to reiterate that tile Constitutional jurisdiction is a discretionary jurisdiction and is meant to advance the cause of justice; which in no case is to be exercised to thwart the process of law and to perpetuate injustice. We find that no injustice has been caused to the petitioner, consequently no interference is warranted. The Constitu tional petition fails being devoid of merit and is accordingly dismissed. For the above reasons the petition was dismissed in limine by short order dated 2‑12‑2003. H.B.T./F‑4/K Petition dismissed.