1999 PLP 1116 (MLD)

Syed Najaf Hussain Shah for Petitioner. The petitioner though this Constitutional petition has challenged the order dated 13-7-1998 of respondent No.4 The brief background of the dispute is that the petitioner and respondents Nos.l to 3 contested elections for Zila Council seat. The petitioner was declared elected. The respondent filed ate election petition before respondent No.4.

2. The grievance of the petitioner is that the respondent filed one petition on 26-5-1998 and during the pendency of the same made application dated 4-6-1998 to withdraw the election petition with permission to file fresh one. The petitioner filed reply to the application. The same was adjourned to 9-6-1998 and then to 15-6-1998. It is added that respondent No. l filed yet another petition on 5-6-1998 which was adjourned to 9-6-1998 when order for production of election record for recounting was passed. It is added that the petitioner moved application dated 6-6-1998 wherein he prayed for dismissal of the election petition but that petition was dismissed by respondent No.4 summarily. It is argued that there is no provision in the Punjab Local Government Ordinance, 1979 and the Punjab Local Council (Election Petition) Rules, 1979 for withdrawal of the petition. In this behalf reliance was placed on the judgments reported as Rai Mehmood Sultan v. Election Tribunal Zila Council and others (1987 SCMR 458) and Raja Noor Muhammad v. Raja Muhammad Sadiq and another (PLD 1984 Lahore 239). It is argued that respondent No.4 wrongly did not base its decision on the case of Rai Mehmood Sultan and Raja Noor Muhammad (supra). It is argued that the impugned order was illegal, unlawful, arbitrary and contrary to law.

3. I have given my anxious consideration to the arguments and gone through the record, the relevant provisions of law, rules as well as precedents. In this case the notification of the election of the petitioner was issued on 23-5-1998 while the election petition could be filed within 30 days. The respondent No.1 filed election petition on 26-5-1998. Thereafter, moved application for withdrawal of the same but probably, thereafter, realized that limitation for filing the election petition has not yet expired, therefore, proceeded to file second petition on 5-6-1998. Thereafter, he did not press his application for permission to withdraw the first election petition with permission to file fresh and instead proceeded to withdraw first election petition unconditional on 15-6-1998. The petitioner moved application for rejection of the second petition.

4. The election petition is to be decided as nearly as possible in accordance with the provisions of the C.P.C. as per Rule 8 of the Election Petition Rules, 1979. This is of course subject to the specific provision made in this behalf in the Punjab Local Government Act, 1979, Punjab Local Government (Election) Rules, 1979 and Punjab Local Council (Election Petition) Rules, 1979. The provisions of C.P.C. to this extent would be excluded on modified as the case may be. In this behalf reference can be made to the judgment reported as Harish Chandra Bajpai and another v. Triloki Singh and another (AIR 1957 SC 444). The cases Rai Mehmood Sultan and Raja Noor Muhammad (supra) relied by the learned counsel for the petitioner are not relevant for the simple reason that in the said cases the petitioner in the first instance wanted to amend the election petition in order to urge new grounds but that was not allowed in view of the provisions of sub-rule (4) of Rule 8 of the Rules, 1979. Thereafter, he trade application for withdrawing the election petition with permission to file a fresh petition and it was ruled out that as the amendment in the election petition cannot be allowed beyond the scope of sub- rule (4) of Rule 8 of Rules, 1979, therefore, the same object could not be allowed to be achieved by indirect manner i.e. by withdrawing the election petition with permission to file a fresh one. It may be recorded here that permission to file a fresh petition in the precedent case was necessary because by that time the limitation for filing the election petition had expired.

5. On the other hand, in the present case, the second petition was filed within the limitation period. Thereafter, the earlier election petition was withdrawn, therefore, neither it was a case of amendment of the election petition nor achieve the same object indirectly by withdrawing the petition with permission to file afresh. The precedent-cases are clearly distinguishable.

6. Now the question is whether Order XXIII barred the election petition which at the time of withdrawal of the earlier election petition was pending. This question was examined by the Honourable Supreme Court in the case of Ghulam Nabi v. Muhammad Yaqoob (PLD 1983 SC 344). The relevant portion reads as under:- "On the question whether the rule barred a suit which at the time of the withdrawal of the earlier suit had already been instituted and pending, we find that in Ram Mal v. Upendra Datt (AIR 1928 Lah. 710) relying on P.Surja.Reddi v. Subba Reddi ((1916) 39 Mad. 937), it was held that a second suit will not be barred in the case of withdrawal of a previous suit unless conditions of Order XXIII, rule 1, C.P.C. are fully satisfied and that if the subsequent suit was already pending at the time of the withdrawal of the previous suit, the provision could not be attracted. A Division Bench of the Lahore Court in Mungi Lal v. Radha Mohan (AIR 1930 Lah.599) held that: 'Order XXIII, rule 1 refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. It appears to me that the section cannot be read so as to bar a suit which has already been instituted before the other suit-had been abandoned or dismissed.' This judgment had been followed in Abdullah v. Bashiran Bibi (PLD 1981 Lah. 336) and it had been held that a fresh suit which had been pending at the time of withdrawal of a previous suit was not barred. The view taken in Mungi Lal's case had also been followed by this Court in Commissioner of Income tax v. Ashfaq Ahmad (PLD 1973 SC 406), wherein it had been held that where one writ petition had been filed during the pendency of a previous writ petition, the withdrawal of the previous writ petition before reaching the stage of hearing on merit would not affect the maintainability of the second petition which could legally proceed in spite of the withdrawal of the previous petition. The Sindh High Court has also been of the same view which is reflected in its judgments reported as Ashfaq Ahmad Khan v. Custodian of Evacuee Property (PLD 1966 Kar. 597) and Irshad Ali v. Islamic Republic of Pakistan (1981 CLC 111). We are, therefore, not inclined to agree that the suit in question was affected by Order II, rule 2 or Order XXIII, rule 1, C.P.C." The petitioner has failed to make out a case for interference in Constitutional jurisdiction.

7. The upshot of this discussion is that the writ petition is dismissed in limine. The respondent No.4 is directed to decide the election petition expeditiously in any case by 31st of August. 1998 even if he has to proceed day to day. H.B.T./M-773/L Petition dismissed.