MEHMOOD SULTAN Versus ELECTION TRIBUNAL ZILA COUNCIL/ DISTRICT JUDGE, GUJRANWALA

1. NASIM HASAN SHAH, J. ‑‑This appeal, by leave of this Court, is directed against the judgment of a Division Bench of the Lahore High Court passed in Writ Petition No. 191 of 1984.

2. The relevant facts are that the appellant and respondents Nos. 2 to 6 contested elections for Seat No.24 of Zila Council Gujranwala which were held on 28‑9‑1983. The appellant was declared elected and the notification declaring him to be the returned candidate was published on 5‑10‑1983. On the same day respondent No.2 filed an election petition challenging his election on various grounds. This petition was put up before the Election Tribunal on 8‑10‑1983 who fixed the matter for preliminary arguments on 27‑10‑1983. On that date, namely, 27‑10‑1983, respondent No.2 filed an application for amending the election petition by adding certain grounds which according to him had been omitted in the original petition as the facts relating to them had come to his knowledge after the filing of the election petition.

3. The election petition as originally submitted was based on the following grounds:‑

(a) that 226 votes cast in favour of the election petitioner (respondent No.2 herein) had been wrongly rejected by the Polling and Presiding Officers;

(b) that the Returning Officer of Zila Council, Gujranwala, had committed mistakes in the preparation of the result of Seat No.24; and

(c) that the Polling Officer of Polling Station Hindwana Union Council had passed an illegal order to stop the polling at 3 p.m. on the ground that no voter was present which illegal order had adversely effected the result of the election in so far as the polling had to continue under the law until 4 p.m. and many voters came to poll their votes before the closing hour, but were deprived of their right of franchise as polling was stopped at 3 p.m.

4. By the amendment sought in the election petition by the application for amendment submitted on 27‑10‑1983 the following further grounds were sought to be added:‑

(a) that in the polling list the names of several voters were entered at more than one place and hence several persons had cast votes more than once;

(b) that the Presiding Officer of Polling Station Machunka had allowed voters to cast votes at two polling booths set up therein, without insisting on the requirement of identity cards; and

(c) that the votes of certain persons had been counted in favour of the returned candidate which could not have been validly counted in his favour.

5. The Election Tribunal (respondent No.1 herein) vide its order dated 27‑10‑1983 accepted this prayer and respondent No.2 was granted permission to amend his petition by adding the above grounds. In its order, the Tribunal observed that since the election petition was in its preliminary stage and the opposite party had not been summoned and even the period of limitation for filing a fresh election petition had not yet expired so that a fresh election petition could even now be filed and that the grounds sought to be added were likely to effect the decision of the case, permission to amend the election petition was being granted.

6. When the appellant received notice of the election petition and became aware of the order dated 27‑10‑1983 he challenged the same by filing a writ petition before the Lahore High Court on the ground that the said order was without jurisdiction.

7. By its order dated 12‑7‑1984 the High Court, however, dismissed the said writ petition observing that the amendments had been allowed in the election petition at a very preliminary stage when notice of election petition was not yet issued to the opposite party and even the period of limitation for filing an election petition was still available; and that the order challenged being an interlocutory order the said Court would not normally interfere with such orders in exercise of its Constitutional Jurisdiction.

8. Leave to appeal against the above order of the High Court was granted by this Court as an important question of law of general public importance arose in the case, namely, whether the language of rule 8(4) of the Election Petition Rules did not completely bar the inclusion of a new ground of challenge to the election and it was immaterial whether this was done within the period of limitation or outside it or could be done by withdrawing the petition and‑refilling it with the permission of the Tribunal or without it and it was desirable that an authoritative pronouncement be made on this issue.

9. Rule 8 (4) of the Election Petitions Rules, 1979 is in the following terms:‑

10. "8(4) The Tribunal may, at any time, upon such terms and on payment of such costs as it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions in controversy, so however that no new ground of challenge to the election is permitted to be raised."

11. In support of this appeal the learned counsel for the appellant brought to our attention a decision by another Division Bench of the High Court in which a contrary view was taken, namely, the case of Raja Noor Muhammad v. Raja Muhammad Sadiq and another PLD 1984 Lah. 239 wherein it was observed:‑

12. "By virtue of sub‑rule (1) of rule 8 of the Punjab Local Councils (Election Petition) Rules, 197.9, an‑election petition is to be tried as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, but this is subject to the provisions of the Ordinance and the Election Rules and the Election Petition Rules. Therefore, wherever the said Election Petition Rules are in conflict with the provisions of the C . P. C .the Election Petition Rules are to prevail and the provisions of the C.P.C. on the subject are to be excluded from consideration. Sub‑rule (4) of Rule 8 of the Election Petition Rules, 1979 gives power to the Election Tribunal to allow a petition to be amended but the power to allow the addition of new ground of challenge to the election has expressly been taken away from the Election Tribunal. By virtue of this sub‑rule as a matter of fact, the party had filed an application for permission to add a new ground but the same had been rejected on account of express provision of sub‑rule (4) of rule 8. Under the law what cannot be allowed to be done directly cannot be allowed to be done indirectly. When a new ground cannot be allowed to be added by way of amendment in an election petition, the same cannot be allowed to be done by the back door of permitting a person to file a fresh petition after including such a new ground while allowing him to withdraw his petition. Permission granted by the Election Tribunal to file a fresh petition is calculated to frustrate the embargo placed on the power of Election Tribunal to allow raising of a new ground of challenge to the election and, therefore, it is wholly illegal."

13. The respondents did not appear to contest this appeal but we have carefully considered the reasoning given by the learned Judges of the Lahore High Court and also all of the relevant rules pertinent to the matter.

14. It is true that the Tribunal has been empowered to allow amendment of an election petition in such a manner as may be necessary for ensuring a fair and effective trial of the case and for determining the real questions in controversy but we find that this power is subject to an important limitation, namely, that no new ground of challenge to the election can be permitted to be raised by way of an amendment. The intention of the rule appears to us to be that all the grounds on which an election is sought to be challenged must be given in the election petition, though an amendment can be allowed to permit better and fuller particulars to be added to the allegations already contained in the grounds given 'in the election petition. In other words, the power conferred by sub‑rule (4) of Rule 8 of the Election Petitions Rules 1979, is a limited one whereby the Tribunal is empowered to allow amendments to the extent that better and fuller particulars can be furnished by the election‑petitioner but no power exists to permit the adding of entirely new grounds on which the election may be challenged. Thus, a restricted power of amendment only is conferred by sub‑rule (4) of Rule 8

15. In the instant case entirely new grounds for challenging the validity of the election were sought to be added which were totally unconnected with the grounds already taken in the election petition and in the view we have taken about the restricted nature of the power of amendment conferred upon the Election Tribunal under sub‑rule (4) of Rule 8 we consider the order dated 27‑10‑1983 passed by the Tribunal was indeed beyond its powers.

16. We would, therefore, allow this appeal and set aside the order dated 27‑10‑1983, as also the order of the High Court dated 22‑7‑1984. But as no one has appeared to contest the appeal on behalf of the respondents there will be no order as to costs.

17. S.Q./4397/S Appeal allowed.