1983 PLP 2965 (CLC)

Moeen-ud-Din Ch. for Petitioner. Nemo for Respondents. Dates of hearing : 23rd and 25th May, 1982. RUSTAM S. SIDRAWA, J.-This is ~a Constitutional Petition filed by Muhammad. Hanif, petitioner, calling in question the order of the Election Tribunal, respondent No. 1, dated 16th July, 1981, by which the said Tribunal held that the application submitted by the petitioner for the restoration of hiss election petition previously dismissed in default was not maintainable.

2. The brief facts of the case are that on 12th December, 1979 Muhammad Hanif. petitioner, filed an election petition against Sardar Sikandar Iqbal, respondent No. 4, challenging the latter's election to Union Council, Ward No. 3, Kabirwala, District Multan. On 13th July, 1980 the said petition was dismissed in default due to the petitioner's absence. On 2nd August, 1980 the petitioner filed an application for the restoration of his petition. On 16th July, 1981 the Election Tribunal, respondent No. 1, dismissed the said application by holding the same to be not maintainable.

3. The only short point involved in this case is whether an application for restoration of an election petition dismissed in default by the Election Tribunal is competent and maintainable in law.

4. Sardar Sikandar Iqbal, respondent No. 4, was personally served for 23rd May, 1982 as is apparent from the receipted copy of the summons which appears on the record, but nobody turned up on his behalf that day. Ex parts proceedings were ordered. against respondent No.

4. We have heard the arguments of the learned counsel for the petitioner. Under sub-rule (1) of rule 8 of the Punjab Local Government (Election Petitions) Rules, 1979, subject to the provisions of the Punjab Local Government Ordinance, 1979, the Election Rules and the Election Petition Rules; every election petition has to be tried, as nearly as may be in accordance with the procedure for the trial of suits under the Code of Civil Procedure, V of .1908. Under rule 10 of the Election Petitions Rules, the Tribunal also has all the powers of a Civil Court trying a suit under the Code of Civil Procedure, V of 1908, and is deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, V of 1898. Certain departures from the procedure and powers of Courts, when trying suits, find mention in the Rules, such as under rules 6, 7, etc. Rule 21 of the Election Petitions Rules provides for the dismissal of an election petition where no petitioner makes appearance before the Tribunal. Rule 21, however, is nothing more than repetition of the power of dismissal for default as given in Order IX, rules 3 and 8, C. P. C., though couched in different language, which power is included in the general powers available to the Tribunal under rule 10 of the Elections Petitions Rules. The fact that rule 21 does not further pro vide for an application for restoration being made, does not mean that the power available under Order IX, rule 9, C. P. C., as provided by rule 10 of the Election Petitions Rules impliedly stands excluded.' In procedural law, what is not expressly excluded, is impliedly permitted. In these circumstances, we have no reason to doubt that the principle of Order IX, rule 9, C.P.C.. is applicable to the election petitions tried by Election Tribunals. In Sardar Saleem Haider v. Rao Muhammad Afzal N L R 1982 C L J 23, the Election Authority held that it, had authority to restore petitions dismissed by it for default, on the ground that proceedings before it were of a civil nature and it had been applying the Code of Civil Procedure in the conduct of its proceedings under section 13 (7) of the' Punjab Local Government Ordinance, 1979. In Mrs. Roshan D. Minwala y, Karachi Development Authority P L J 1978 Kar.

55. Order IX, rule 9, C.P.C. was held to be appli cable. to petitions under Order XXXIX, .rules 1 and 2, C:P.C. dismissed in default, in view of section 141, C.P.C. In Muhammad Aslam v. Khurshld Begum P L D 1972 Lab. 603 a petition for restoration was held to - be permissible on the ground of natural justice, in respect of eviction petitions dismissed for default of appearance by the Rent Controller. In Safdar Ali Khan Syal v. District Judge/Election Tribunal, Zilla Council Jhang P L D 1982 Lab. 63, the Code of Civil Procedure was held to be applicable to all matters before the Election Tribunal. In Muhammad Riaz v. The State P L D 1979 Lab. 155this Court held that in matters of procedure, what was not expressly prohibited, stood impliedly permitted. In these circumstances, we hold that the statute law relating to election matters is silent about applications for restoration and the filed, being unoccupied, stands adequately filled by the language of sub-rule (1) of rule 8 and rule 10 of the Election Petitions Rules, which clearly permits the application of Order IX, rule 9, C. P. C. to the trial of petitions, that provision being in accord with the procedure for the trial of suits and the powers of the Civil Court in respect thereof, as provided in the Code of Civil Procedure, V of 1908.

5. For the 7a foregoing reasons, we accept this petition, set aside the order of the Election Tribunal Multan, dated 16th July, 1981, declare that the application for restoration filed by the petitioner was maintainable before the Tribunal and we hereby remand the case to the Tribunal with the direction that it should proceed to hear the application for restoration on merits, after notice to the parties, and proceed with the disposal o the case from this stage onward. In view of the peculiar nature of the case, there shall be no order as to costs. M. A. K. Petition accepted.