TARIO MAHMOOD BAJWA vs MUHAMMAD AFZAL SAHI And OTHER

The petitioner and the respondents contested the general elections held on 9th October, 1993 for the Provincial Assembly from Constituency No.PP-54 (Faisalabad-XII). Respondent No. 1 secured the highest number of votes and was declared elected. Notification of his election was issued on 17-10-1993. The petitioner has challenged the election of respondent No. 1 through this election petition. It is prayed that the petitioner be declared having been elected instead of respondent No.

1. The petition was filed with the Election Commission of Pakistan and the same has been assigned to this Tribunal vide order dated 12th December, 1993 by the Election Commissioner for decision in accordance with law. The petition was placed before this Tribunal on 20-12-1993 when notices were issued to the respondents for 9-1-1994. Learned counsel for the petitioner appeared on this date while the respondents remained unserved, They were ordered to be served through publication of notice in Daily 'Nawa-e-Waqt' in addition to notices through registered post acknowledgment due.

Notice was duly published but only respondent No. 1 appeared while the rest of the respondents still remained absent, therefore, they were proceeded ex parte. The petition was adjourned to 22-2- 1994 on the request of the learned counsel for respondent No. 1 but on the latter date learned counsel for the petitioner requested for time to study the procedure to be adopted in the trial of the election petition. The same was accordingly adjourned for today.

2. Respondent No. 1 moved an application under section 63 of the Representation of the People Act, 1976 (hereinafter to be- referred as the Act of 1976) for the dismissal of the election petition. The petitioner has filed reply thereto.

3. 1 have heard the learned counsel for the applicant and the petitioner on this application. The learned counsel for the applicant/respondent No. 1 argued that the election petition is liable to be dismissed for failure of the petitioner to comply with the provisions of section 55(3). It is added that the verification is not in accordance with the provisions of Order VI, rule 15, C.P.C. therefore, the election petition is liable to be dismissed. The learned counsel in this behalf has referred to J- Abel v. Emmanual Zafar (1987 M LD 1372), Sardar Khalid Nawaz.v. Mian Manzoor Ahmad Wattoo (1987 CLC 1167), Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253) and Ch. Muhammad Aslam v. Mian Waheed- ud-Din (1990 ALD 170).

4. On the other hand, learned counsel for the petitioner argued that the election petition is properly verified and in any case the verification can be corrected. He added that the defective signing or verification does not render the election petition void or a nullity. This is merely an irregularity and curable through amendment of the election petition. Learned counsel in this behalf has referred to the judgment in the case of Shafiq Metal Works v. Bank of Bahawalpur (PLD 1973 Note 33 at p.41). It is maintained that the defect, if any, is not fatal and the election petition cannot be dismissed for this procedural defect.

5. Learned counsel .for the applicant/respondent No. 1 while replying, submitted that the decision of the case of Shafiq Metal Works v. Bank of Bahawalpur (Supra) is not relevant in the present context as it was a decision in a civil suit.

6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and the precedent cases. Before proceeding any further, it is relevant to refer to the verification made by the petitioner at the end of the election petition. The same reads as under:-- "Verification 1, Mr. Tariq Mahmood Bajwa, petitioner humbly verify that contents of the petition may kindly be deemed to be true to my personal knowledge and information collected by me and on the basis of legal advice, information and available sources, are true to the best of my knowledge and belief.

Nothing has been concealed."

The relevant provision is contained in subsection (3) of section 55, which reads as under:-- "55.Contents of petition.--(1) * * * (2).* *.* * *..

(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the. Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."

The election petition, every schedule and annexures to the petition shall be signed and verified in the manner prescribed in the Civil Procedure Code for the verification of the pleadings. Order VI, rule 15, C.P.C. which prescribes the manner of verification of the pleadings, reads as under:-- "15. Verification of pleadings.---(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."

The following are the main features of the verification in accordance with the above provision of the Code of Civil Procedure:--

(i) It has to be on oath or solemn affirmation;

(ii) the person verifying shall specify the paragraphs, which he verifies of his own knowledge and the paragraphs, which are believed to be true by him separately;

(iii) the verification shall be signed by the person making it; and (iv)it shall contain the date and place when and where the signatures were appended.

Now coming back to the verification of this election petition as reproduced above, it would be seen that it does not comply with any of the main requirements noted above, therefore, there is no merit in the plea of the learned counsel for the petitioner that the verification of the election petition is in accordance with law. While the list of documents Annexures `A', `B', `C', list of witnesses, the receipt Annexure `E' and postal receipts Annexure `F, Fard Pata and power of attorney have been verified differently and again not in accordance with law.

7. The next question, which arises for determination is that what are the consequences of this defective verification; whether the election petition is to be dismissed as prayed for by respondent No. 1 or the defect is formal and the application should be dismissed? In this behalf, before proceeding any further, it is worthwhile to note here that the petitioner has also not appended with the election petition his own affidavit or the affidavit of any of his witnesses as required under clause (3) of the procedure notified by the Election Commission vide Notification dated 16-3-1985.

The answers of these questions depend on the nature of the provision i.e. whether compliance with the provisions of section 55 of the Act, 1976 is mandatory or these are directory in nature. In this context we cannot proceed without reference to section 63 of the Act of 1976 which reads as under:-- "63. Dismissal of petition during trial: -The Tribunal shall dismiss an lection petition, if---

(a) the provisions of section 54 or section 55 have not been complied with; or

(b) if the petitioner fails to make the further deposit required under subsection (4) of section 62."

It would be seen from the provisions of Civil Procedure Code that failure to observe the provisions of Order VI, rule 15 is not visited by a penalty. Therefore, the general consensus in the trial of the civil suits is that defect in signing, verification or presentation of the plaint is not fatal. It is curable by amendment at any stage of the proceedings. The learned counsel for the election petitioner has rightly referred to the case of Shafiq Metal Works (supra). However, this argument overlooks the provisions of section 63 of Act of 1976, which has been invoked by the applicant in the application under consideration. The presence of section 63 in the Act of 1976 makes the whole difference as it makes the provision relating to signing and verification of the election petition mandatory. The test whether the provision is mandatory or directory in nature has been laid down by the Supreme Court in the judgment of Mian Muhammad Khan v. Mian Fazal (PLD 1974 SC 134). The relevant portion reads as under:-- "...As a general rule, however, a statute is understood to be directory when it contains matter merely of direction but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."

When this test is applied to the case in hand it is clear that the compliance of the provisions of sections 54 and 55 is mandatory. The Tribunal has no choice but to dismiss the election petition. I. am fortified in my view by the judgment in the case of J. Abel (supra). Precisely the same was the position in the precedent case. The relevant paras. read as under:-- "7. The procedure laid down in the above notification is mandatory and since the election petition itself has not been verified either on oath or solemn affirmation and there is no separate affidavit of the petitioner in support thereof appended therewith, therefore, there remains nothing capable of proof by the petitioner and muchless is there anything which some witness may be competent to depose to.

8. * * * * * * * * * * * * * * There is no reason why legal consequences may not follow upon the defects found in this case. The election petition is liable to be dismissed under section 63 of the Act and is also rendered incapable of being proceeded with on account of its failure to comply with the requirements of the aforecited Notification."

The same was the position in the case of Sardar Khalid Nawaz and the Tribunal dismissed the election petition. The case of Azhar Hussain (supra) relied upon by the learned counsel for the respondent is not strictly relevant on the point under discussion because in that case the election petition was dismissed on account of failure of the petitioner to incorporate in the petition the material facts and particulars relating to the alleged corrupt practices and it was held that the election petition could be dismissed invoking powers under Order VII, rule ii, C.P.C. independent of section 81 of Act LI, which authorises the dismissal of the election petition in certain contingencies.

The next case relied by the learned counsel for the respondents is of Ch. Muhammad Aslam. In this case also the election petition was dismissed because the petition and its enclosures had not been verified by the petitioner in accordance with law. The. question also came for consideration in Election Petition No. 28 of 1990 titled `Air Marshal Asghar Khan v. Mian Nawaz ShariP. The Election Tribunal framed issues. The relevant issue reads as under:-- Whether the Election Petition is liable to be dismissed on account of non-compliance of the provisions of sections 54 and 55 of the Representation of the People Act, 1976 and clause I(1) of the Notification dated 16-3-1985 as contemplated under section 63 of the aforesaid Act? The Tribunal answered the issue in positive and proceeded to dismiss the election petition.

8. The upshot of the above discussion is that this application under section 63 of Act of 1976 succeeds. The result is that the Election Petition is dismissed with no order as to costs.