1984 PLP 3263 (CLC)

‑‑ Art. 9‑Punjab Local Council (Election Petitions) Rules, 1979, r. 3(4)‑Security for costs of petition‑‑Election petition dismissed for non‑compliance with order of deposit passed by Election Tribunal‑Stress laid on form of bank receipt rather than sub stance of it in terms of r.3(4), Punjab Local Council (Election Petition) Rules, 1979‑Manager of Bank where security amount deposited appearing on being summoned by Court and stating on basis of bank record that security deposit amount stood deposited to credit of Election Authority‑Provisions of R. 3(4), held, com plied with faithfully ,in factual aspect and Election Tribunal committed a patent error of law in losing sight of principle that right of a party could not be allowed to be defeated for failure to comply with form where substance has in fact been complied with. Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin P L D 1983 S C 693 rel. (b) Punjab Local Council (Election Petitions) Rules, 1979‑ ‑‑Rr.3(4) & 24‑Provisional Constitution Order (1 of 1981), Art. 9‑Right to move Election Petition, held, a valuable right and same ought not to be lightly allowed to be defeated merely on hypertechnical plea based on forms rather than substance. (c) Punjab Local Councils (Election Petitions) Rules, 1979‑ ‑‑--Rr. 3(4) & 9, cl. (a)‑Provisional Constitution Order (1 of 1981), Art. 9‑Security deposit‑Election Tribunal without advert ing to relevant provisions of law to discover true purpose behind it and without making an effort to find out true nature of deposit feeling obliged in very initial stages to non‑suit petitioner on plea of non‑deposit of security amount‑Error of approach by Election Tribunal patent on face of record‑Petitioner in fact depositing amount of security but for acts of officials of bank which was acting as an agent of Election Authority in terms of r. 3(4), there occurred an ambiguity in bank receipt‑Proper course for Election Tribunal in such situation, held, was to send for record of bank or summon its manager in order to ascertain true position‑Election Tribunal failing to make visible effort for its judicious satisfaction, order of dismissal of election petition passed by Election Tribunal declared without lawful authority and of no legal effect‑Case remanded to Election Tribunal for fresh disposal in accordance with law. FAZL‑I‑MAHMOOD, J.‑These three Constitutional Petitions being Nos. 79/84, 1514/83 and 1525/83 are directed against the impugned orders of the Deputy Commissioner/Election Tribunal, Multan whereby be ordered each election petition to be filed on the ground of non compliance with the requirement to properly deposit Rs.500 as security for the costs of the petition. The petitions involve common question of law and are based on almost similar facts and, therefore, they are being disposed of together by a single judgment.

2. Writ Petition No. 79/84 has been filed by Muhammad Rafiq who contested election to Ward No. 3, Khooyanwala, Union Council Summra, Tehsil Lodhran, District Multan held on 28th September, 1983. He lost the election and respondent No. 2 Ghulam Hassan was declared as a returned candidate. The petitioner then challenged the election of the returned candidate by way of an election petition filed under section 24 of the Punjab Local Government Ordinance VI of 1979 on 2nd November, 1983. In para. 8 of the election petition, it was stated that the petitioner had deposited a sum of Rs.500 in the National Bank of Pakistan Main Branch, Multan on 1st November, 1983 in favour of the Election Authority as security for the costs of the petition; Together with the petition, the receipt issued by the National Bank of Pakistan Main Branch, Multan, dated 1st November, 1983 was also appended. The receipt is of not transferable cast deposit and it is signed for National Bank of Pakistan by the Accountant as well as the Manager. This receipt recites ‑ "Received from Election Authority A/c Muhammad Rafiq the sum of Rupees five hundred only which is placed to‑‑credit with the National Bank of Pakistan as a deposit repayable at call."

3. Next Writ Petition No. 1514/83 has been filed by Abdul Shakoor who was a contesting candidate for a local council seat from Ward No. 12, Union Council Monganwala, Tehsil Kabirwaia, District Multan field on 28th September, 1983. Respondent No. .2 Syed Haider Raza Shah was declared the returned candidate. The petitioner then filed au election petition before the Deputy Commissioner as Election Tribunal on 25th Goober, 1983. He filed together with the election petition a call deposit receipt issued b, the National Bank of Pakistan Main Branch, Multan, dated 24th October, 1583 for meeting the costs of the petition. This receipt ire its contents is similar to the one abovenoted with the only difference that it recites 'received from Election Authority A/c Abdul Shakoor the sure of rupees five hundred only'.

4. The third connected Writ Petition No. 1525/83 has been filed by Ch. Abdul Ghafoor who was a contesting candidate for the local council seat from Electoral Unit No. 4 of Union Council No. 134, Tehsil Lodhran, District Multan held on 28th September, 1983. Respondent No. 2 Ali Muhammad was declared elected from the said electoral unit. Ch. Abdul Ghafoor filed an election petition before the Deputy Com missioner as Election Tribunal, Multan on 25th October, 1983 to call in question the election of respondent No.

2. He filed with the election petition call deposit receipt issued by the National Bank of Pakistan Main Branch, Multan to show that the petitioner had already deposited a sum of Rs.500. The contents of this receipt are slightly different from the earlier two cases inasmuch as it recites‑ "Received from D. C., Multan ant) Election Authority A/c Ch. Abdul Ghafoor the sum of Rupees Five hundred only." while the remaining entries are similar to the ones earlier noted.

5. The Deputy Commissioner/Election Tribunal filed the election petition of Muhammad Rafiq on 26th November, 1983 while those of Abdul Shakoor and Ch. Abdul Ghafoor were filed on 16th November, 1983. The Election Tribunal was of the view that the mandatory requirement of rule 3(4) of the Election Petitions Rules, 1979 was presentation of a receipt showing that the election petitioner had deposited a sum of Rs.500 in any branch of the National Bank of Pakistan in favour of Election Authority as security for the costs. According to the learned Tribunal, the receipts in question‑ in each case showed that the deposit was non‑transferable and in the relevant column instead of entering the nacre of the election petitioner the words written were `received from Election Authority'. The Tribunal there from, drew the conclusion that this was a wrong entry because the amount was not deposited by the Election Authority. The Tribunal was, however, of the view that a sum of Rs.500 deposited in each case represented the correct amount. He was further influenced by the fact that the blank space occurring after the words "which is placed to"‑"credit with the National Bank of Pakistan as deposit repayable at call" was not filled in with the result that the receipt did not show that the amount was deposited in favour of the Election Authority. He accordingly felt that he had no power to condone or waive the rigours of rule 3(4) of the Election Petitions Rules, 1979.

6. In Writ Petition No. 79/84, the petitioner has produced a certi ficate from the Assistant Vice‑President of the National Bank of Pakistan Main Branch, Multan, dated 16th January, 1984 certifying that on 1st November, 1983 Muhammad Rafiq deposited a sum of Rs.500 in Call Deposit Account in favour of Election Authority. The amount was lying with the bank in the name of the Election Authority vide Call Deposit Receipt No. C.D.A. 653849, dated 1st November, 1983 for Rs.500. This is Annexure 'E' to the writ petition. In Writ Petition No. 1514/83, the petitioner has produced a certi ficate issued by the Manager of National Bank of Pakistan Main Branch, Multan certifying that the amount of Rs.500 vide Call Deposit No. C.D.A. 653819, dated 24th October, 1983 was deposited by Abdul Shakoor. The amount was held by the bank in Call Deposit Account in the name of Election Authority Account Abdul Shakoor. This is Annexure 'F' to the petition. However, in Writ Petition No. 1525/83 no such certificate is annexed to the petition.

7. In order to resolve the questions in controversy, we felt it necessary in the interest of justice to summon the Manager, National Bank of Pakistan Main Branch, Multan to appear before this Court alongwith the relevant record on 19th March, 1984. He appeared in the Court in the presence of the counsel for both the sides and stated that notwithstanding these small accidental omissions and the apparent form of the receipt prepared by his staff the fact of the matter was that the amount of Rs.500 in each case was deposited with the bank in the account of the Election Authority, Punjab. He further stated that. omission to fill in the blanks by the inexperienced staff of the bank was of no practical consequence as the amount was factually credited to the account of the Authority. The learned counsel for the contesting respon dents did not question this statement of the Bank Manager.

8. In Writ Petition No. 79/84, no written statement has been filed on behalf of the respondents. However; written statement has been filed on behalf of respondent No. 2 in Writ Petition No. 1514/83. There is also no written statement filed by the respondents in Writ Petition No. 1525/83.

9. The learned counsel appearing on behalf of the petitioners have argued that they had approached the bank nominated under the Election Petitions Rules for the purpose of deposit of a sum of Rs.500 as security for the costs of the petition. The amount had factually been deposited and received by the bank. According to them the requirement of rule 3(4) of the Election Petitions Rules, 1979 thus stood fulfilled inasmuch as the required amount had been deposited and the election petition was accompanied by the receipt showing the said deposit in a branch of the National Bank of Pakistan in favour of the Election Authority. It was in the alternative submitted that the entries in the receipts were in the handwriting of the officials of the bank and 'even if there was some accidental or clerical omission on their part that would not render the deposit invalid or could be made a ground for blaming the petitioners for non‑compliance with the requirement of sub‑rule (4) of rule 3 of the Election Petitions Rules, 1979. It was further argued that the learned Election Tribunal had taken similar action in respect of about 55 election petitions of Multan District without making any inquiry or visible effort to ascertain from its own agent bank the factual position. It was submitted that the petitioners were not in breach of sub‑rule (4) of rule 3 and thus the impugned orders being arbitrary, fanciful and based on patent misappropriation of law and misreading of the bank receipts were rendered void and without jurisdiction.

10. The learned counsel appearing for the respondent in each case replied that the order of the Election Tribunal suffered from no infirmity because the requirement of rule 3(4) was mandatory in character which had not been fulfilled inasmuch as security of Rs.500 was not shown to have been deposited in favour of Election Authority in a branch of the National Bank of Pakistan and instead a Call Deposit was made which was absolutely distinguishable from a simple security deposit. It was submitted that as per the requirement of the aforesaid rule, the amount so deposited should pass on to the Election Authority and the person making deposit of the security should perpetually divest himself of the money and in case a liaison of the depositor stays on in any form on the deposit and the money does not absolutely pass on to the Election Authority then the requirement of the rule would be defeated. It is further eluci dated that a fixed deposit call is repayable at call of the depositor.

11. We would, first, like to examine the question from the point of view of the respondents' objection raised before us which is similar to the one urged before the Election Tribunal and found favour with it. The plea of the respondents is based upon the form of the Bank Receipt rather than the substance of it in terms of requirements of rule 3(4) of the Election Petitions Rules, 1979. The objection of the respondents is to the effect that the lien of the depositor on the amount deposited in call deposit account stays and it is repayable by a bank when a demand to that effect for its encashment by depositor is made.

12. Taking the argument on its face value, on deep thought it is found to suffer from an inherent fallacy and misconception. If the amount stood deposited by the Election Authority/Election Tribunal and this amount was payable on the demand of the depositor, then the depositor as per receipt was none else than the Election Authority. There is thus no scope for the insinuation and no merit in the plea that the election petitioners had kept their own lien on this amount and the purpose of law was not fully accomplished and consequently there was a non‑compliance with a mandatory requirement. Apart from this aspect of the matter, we have the unquestioned statement of the Manager of the National Bank of Pakistan who appeared on being ‑summoned by us and stated on the basis of the Bank record that the security deposit amount in each case stood deposited to the credit of the Election Authority. The position, thus, admits of no doubt that sub‑rule (4) of rule 3 stands complied with faithfully in factual aspects. In such a situation, therefore, the Election Tribunal committed a patent error of law in losing sight of the principle enunciated by the superior Courts to the effect that the right of a party cannot be allowed to be defeated for failure to comply with the form where substance has, in fact, been comp lied with. We wish to advantageously rely on the enunciation made by the Supreme Court of Pakistan in the case of Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (P L D 1983 S C 693). At page 701 of the report, the following observations appear :‑ "Thus, in this case, all the objects for which rule 3 was inserted in Order XLIII of the C. P. C. were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtain ing of the justice and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilised as "stepping stones" rather than we might add, as stumbling blocks; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied With. See Imtiaz Ahmad v. Ghulam Ali and others (P L D 1963 S C 382) and Manager,F & K States Pro perty in Pakistan v. Khuda Yar (P L D 1975 S C 678)."

13. We would like to observe here that the right to move an election petition is a valuable right conferred by section 24 of the Punjab Local Government Ordinance and such a right ought not to have been lightly allowed to be defeated merely on hyper-technical pleas based on the e form rather than substance of the Bank receipt for the purposes of comp liance with a statutory rule framed under the same Ordinance. More over, the purpose behind the enactment of sub‑rules (4) and (5) of rule 3 was designed to ensure availability of adequate funds to meet the costs to be awarded by the Election Tribunal in each case. We have gone through the scheme of the Rules and we find that the earliest situation where such a need can arise is that contemplated by rule 18 of the Elec tion Petitions Rules which lays down that an election petition may be withdrawn by the petitioner by leave of Tribunal at any time during the course of the trial and where such leave is granted by the Tribunal, the petitioner shall be ordered to pay the costs incurred by respondents to the election petition or such portion thereof as the Tribunal may direct. This situation admittedly had not arisen in any of these cases. Therefore, there was no damage done or prejudice caused and equally no infringement of the policy of law by the present petitioners in the given facts of these cases.

14. The other rule which is relevant for the purpose of the decision of the questions arising before us is rule 22 which lays down that the Tribunal shall, when making an order under rule 12, also make an order determining in its discretion the costs and specifying the persons by and to whom such costs to be paid. A perusal of rule 12 to which reference has been made in the aforesaid rule would show that this comes into play, as is evident from its opening words, upon the conclusion of an election petition.

15. Now, we may advert to sub‑rule (2) of rule 22 which is to the effect that if in any order as to costs under sub‑rule (1) there is a direction for the payment of costs by any party to any person, such costs shall, if they have not already been paid, be payable in full and shall, upon application in writing in that behalf made to the Tribunal within sixty days of the order by the person to whom costs have been awarded, be paid as far as possible out of security for costs deposited by such party. Thereafter, sub‑rule (3) lays down that where no costs have been warded against a party who has deposited security for costs, or where no :application for payment of costs has been made within the aforesaid sixty days, or where a residue remains after costs have been paid out of security, such security or the residue thereof, as the case may be, shall, upon application in writing therefore by the person who made the deposit by his legal representative, be returned by the Tribunal to the person making the application. Then sub‑rule (4) makes provision for an order for costs to be enforced upon an application in writing made to the principal civil Court of original jurisdiction of the district in which the electoral unit to which the disputed election relates is situated, as if such order were a decree passed by that Court. In the present cases, the Election Tribunal without adverting to the relevant provisions as quoted above and without making any effort to find out the true nature of the deposits or to discover the true purpose behind the provisions of rule 3 had felt obliged in the very initial stages to non‑suit the petitioners. The error of approach by the Election Tribunal is patent on the face of the record.

16. We are also minded to observe that for the purpose of accomp lishing the object of law, the Election Tribunal ought to have adverted to provisions of sub‑rule (5) of rule 3 which reads as under :‑ "(5) At any time during the trial of the election petition, the Tribunal may call upon the petitioner to deposit an additional amount as security and the additional amount so required shall be deposited by the petitioner in the same manner as the original deposit. The Tribunal shall refund the balance of the deposit after deducting the costs awarded, if any." In case the Tribunal entertained any doubt regarding the validity of the deposit of a sum of Rs.500, this may have been got cured by passing a, proper order under sub‑rule (5) and if in spite of such an order there was a failure, then it was open to the Election Tribunal to dismiss the election petition in terms of clause (c) of rule

9. We are satisfied that there was no occasion in the facts and circumstances of these cases :o invoke the provisions of clause (a) of rule 9 which is only available where a Tribunal has been satisfied that the provisions of rules 3, 4 and 5 have not been complied with. No visible effort was made by the Tribunal for its judicious satisfaction.

17. The writ petitioners who are the election petitioners in each case before the Election Tribunal in our opinion are to no manner to blame for the acts of the officials of the National Bank of Pakistan, which was acting as an agent of the Election Authority in terms of sub‑rule (4) of a rule

3. However, if the Election Tribunal felt any ambiguity in the receipt, the proper course to be followed by it was to send for the record of the Bank or to summon the Manager as we have done in the course of these proceedings, in order to ascertain the true position. It would have been dawned clear upon the Election Tribunal that the doubts arising in its mind were more artificial than real and that factually the amount stood deposited in favour of the Election Authority as security for the costs of the petition. We are firmly of the view that merely on the basis of doubts the Election Tribunal was not well‑advised is ordering that the election petition in each case be "filed" The word employed by the Election Tribunal is also not very apt. The power was there to dis miss the election petition but not to order that the petition be filed. The two expressions `filed' and `dismissed' in legal parlance carry different meanings and connotations. If, therefore, we have to go by technicalities while ignoring the realities and substance, then even the impugned order of the Election Tribunal would be found to be not strictly in conformity with rule 9 because no order of dismissal of the election petition has clearly been passed.

18. We have considered it unnecessary to go into the question of the 'vires of the Rules or its rigours qua an election petitioner as we are of the view that the petitioners are not guilty of non‑compliance with rule 3 of the Election Petitions Rules, 1979, in the light of the principle that form has to be ignored where the substance has, in fact, been complied with.

19. The net result is that these writ petitions are accepted and the impugned orders are declared to be without lawful authority and of no legal effect. The cases are remanded to the Election Tribunal for fresh dis posal in accordance with law as each election petition will be deemed to be still ,pending disposal. In the circumstances of the case, there shall be no order as to costs. M. Y. H. Petition accepted.