1988 MLD 956 (PLP)

MUHAMMAD ILYAS, J.‑‑The facts giving rise to this writ petition are that there were three candidates for election as Councillor from Unit No 10, Municipal Committee Chishtian District Bahawalnagar. They were, the Petitioner, Shah Muhammad, and respondents Nos. 3 and 4, namely, Muhammad Tahir Mahmood and Faiz Ahmad. Respondent No.

2. Miss Kaniz Fatima, acted as Presiding Officer for the said election. When the election was over, the petitioner was declared to have been elected. His election was challenged by respondent No.3 by means of election petition. It was filed before respondent No.2, Mr. Shafey Ali Khan, Civil Judge, First Class, Chishtian, with powers of Election Tribunal, hereinafter referred to as the Tribunal. It was alleged by respondent No. 3, hereinafter referred to as the respondent that two ballot papers were found to be unsigned by the Presiding Officer when the ballot box of the petitioner was opened at the time of counting and these ballot papers were illegally signed by the Assistant Presiding Officer and then counted despite the protest of the said respondent and his agent. It was also urged by him that one tendered ballot paper cast in his favour was not counted. The respondent had prayed for interim relief whereupon the Tribunal directed that the petitioner shall not take oath and function as a Councillor for 45 days. Feeling aggrieved by the stay order granted by the learned Tribunal, the petitioner has invoked the Constitutional jurisdiction of this Court.

2. It was contended by Mian Allah Nawaz, Advocate, learned counsel for the petitioner, that the Tribunal had no jurisdiction to grant interim relief inasmuch as there was no provision in the Punjab Local Government Ordinance, 1979, hereinafter referred to as the said Ordinance, or in the Punjab Local Councils (Election Petitions) Rules, 1979, hereinafter referred to as the said rules, conferring powers on a Tribunal to allow such relief. It was also maintained by him that there was no existing right in favour of the respondent and, therefore, he was not entitled to the grant of temporary injunction. Additionally it was submitted by learned counsel for the petitioner that no irreparable injury would have been caused to the respondent if the restraint order had been refused to him. He cited Abdul Wahid and another v. Din Muhammad and others (P L D 1982 Lahore 168) to contend that before the election petition against an elected representative succeeds, he cannot be restrained from performing his functions.

3. In reply, it was pleaded by Ch. Abdul Sattar, Advocate learned counsel for the respondents, that although there was no express provision in the said Ordinance or the said Rules empowering a Tribunal to grant interim relief yet the same can be allowed by the Tribunal under sections 94 and 151 of the Code of Civil Procedure read with rules 1 and 2 of Order XXXIX of the said Code. In this connection, reference was made by him to rule 8 of the said Rules which is to the effect that every election petition shall be tried, as nearly as may be, in accordance with procedure for trial of suits under the Code of Civil Procedure. He also invited our attention to rule 10 of the said rules in which it has been laid down that the Tribunal shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure. He placed reliance on Moulvi Muhammad Yaqoob v. Chairman, Election Tribunal, N.‑W.F.P. and others (P L D 1976 S.C. 625) to support his contentions.

4. In the case cited by learned counsel for the respondents Moulvi Muhammad Yaqub was elected to the N.‑W.F.P. Provincial Assembly. Mashal Khan one of the contestants, assailed before the Tribunal the election of Moulvi Muhammad Yaqub. The Tribunal declared the election of Moulvi Muhammad Yaqub as well as the election as a whole void. Aggrieved thereby, Moulvi Muhammad Yaqub filed an appeal in the High Court under subsection (3) of section 63 of the National and Provincial Assemblies (Elections) Ordinance, 1970, challenging the correctness of the Tribunal's finding. He also prayed for a stay of operation of the Tribunal's order but his prayer was not acceded to by the High Court on the ground that it had no jurisdiction to grant the stay order. Consequently, fresh election was ordered by the Election Commission. On this, Moulvi Muhammad Yaqub moved a petition for special leave to appeal which was allowed by the Supreme Court and operation of the order passed by the Tribunal was stayed. His appeal was also eventually accepted. While deciding the appeal, it was observed by the Supreme Court that the High Court had the jurisdiction to grant the stay order prayed for by Moulvi Muhammad Yaqub. The observations made in this behalf read as follows: "As seen, section 59 of the National and Provincial Assemblies (Election) Ordinance, 1970, provides that subject to provisions of the Ordinance and rules, every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of suits under the Code of Civil Procedure. Section 61 confers on the Tribunal all the powers of a Civil Court while trying an appeal from the decision of the Tribunal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure. Section 107 of the Civil Procedure Code inter alia provides that an appellate Court has the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Court of original jurisdiction, in respect of suits instituted therein. Order XXXIX, rules 1 and 2 empower the trial Judge to grant an Interim injunction or pass a stay order. Order XLI, rule 5, confers on the appellate Court the jurisdiction to suspend the operation of the order in appeal before it. These provisions of the Code and the National and provincial Assemblies (Elections) Ordinance, 1970, when read together plainly yield to the result that the High Court when seized with an appeal under section 64 has the power to suspend under Order XLI, rule 5, the operation of the order passed by the Tribunal pending the decision of the appeal." The provisions of rule 8 of the said Rules, upon which reliance was placed by learned counsel for the respondents, are similar to those of section 59 of the National and Provincial Assemblies (Election) Ordinance. Therefore, respectfully following the dictum in the case of Moulvi Muhammad Yaqub, we hold that the Tribunal in the instant case had also the power to grant interim relief and as such the stay order granted by the learned Tribunal cannot be taken exception to on the ground of jurisdiction.

5. Like a Civil Court the learned Tribunal was obliged to satisfy itself, before issuing the interim injunction under review, that the respondent, who was petitioner before it, had a prima facie case, that he was likely to suffer an irreparable injury in the absence of the stay order and that the balance of convenience was in his favour. In view of the allegations levelled by the respondent we would not say that the respondent did not have a prima facie case but he was certainly not going to suffer an irreparable loss in the absence of the restraint order. Instead, an irreparable injury would be caused to the petitioner the temporary injunction is allowed to stand. In making these remarks we have in mind the fact that the respondent cannot act as a Councillor unless the election o the petitioner is set aside and he (respondent) is declared to have been elected in his place. As against this the petitioner can perform the functions of the Councillor due to announcement of the result of the disputed election in his favour but if he is restrained from so doing, many events, such as election to special seats and election of the Chairman, would take place without his participation therein. The restraint order has put the petitioner to great inconvenience inasmuch as he cannot act as a Councillor which he would have done if the said order had not been made. It has also exposed him to lot of mental agony and embarrassment for not being able to perform the functions of a Councillor despite his election as such. On the other hand, no such inconvenience or worry would have been caused to the respondent if the stay order had been withheld because he, cannot act as a Councillor until his election petition succeeds and he is declared to have been elected to the said office. Thus, the balance of convenience is in favour of the petitioner. .

6. There is yet another important consideration for which the learned Tribunal should not have granted the stay order. If that order is allowed to hold the field, no one would be representing the constituency (Unit No. 10) in then matter of election to special seats, election of the Chairman, and other affairs to be attended to by the Councillors of the Municipal Committee as stay order would not allow the petitioner to do so and the respondent cannot do the needful until he is declared to have been elected in place of the petitioner. In this view of the matter, the stay order would result in a void qua the said constituency and would have the effect of disfranchising its voters. The injury to be thus caused to the said voters would be beyond repair. In the case of Abdul Wahid and others, relied upon by learned counsel for the petitioner, it was held by a Division Bench of this Court that the elected office‑holders are not to be restrained from performing their functions without final judgment and no interim injunction should be issued against them.

7. What emerges from the above discussion is that the restraint order, issued by the learned Tribunal offends against the law declared by the superior Courts, and therefore, the said order merits interference. It has been ruled by the Supreme Court in Muhammad Sharif and another v. Muhammad Afzal Sohail, etc., P L. D 1981 S C 246 that in exercise of its Constitutional jurisdiction the High Court can interfere with the order passed by any subordinate Court or Tribunal if it has failed to follow the law as laid down by the superior Courts. Accordingly, we accept this petition and set aside the impugned order. There shall be no order as to costs. M.Y.H. Petition accepted.