Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 21 of 2018

 

Before :

Mr. Justice Muhammad Shafi Siddiqui

 

 

Date of hearing        :           24.01.2019.

 

Date of judgment     :           27.02.2019.

 

 

Mr. Qurban Ali Malano along with Ms. Shahnila Erum, Advocates for the petitioner.

Mr. Sarfaraz Ali Metlo along with Mr. Liaqat Ali Metlo, Advocates for respondent No.1.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

 

O R D E R

 

MUHAMMAD SHAFI SIDDIQUI, J. – Learned counsel for respondent No.1 has challenged the maintainability of this petition on the touchstone of Sections 142, 143 and 144 of the Elections Act, 2017.

2.         The first point raised by learned counsel for the respondent is that since the annexures of the petition were signed after the period of limitation expired, therefore, for all intents and purposes this petition is time barred as the annexures were not signed at the time when it was sent through courier to the Additional Registrar / office of this Tribunal. Learned counsel submitted that in terms of Section 144(4) of the Elections Act, 2017, each annexure attached with the petition is required to be signed by the petitioner. The objections were raised by the office on 24th September 2018, and at the earliest, those could have been complied on the same day, which day was beyond the statutory period of limitation.

3.         The second point, as raised by the learned counsel for the respondent, is in respect of the verification clause. It is claimed that the verification clause is not at par with the requirement of Order VI Rule 15, CPC.

4.         The third point, as raised, is that the petition and its annexures were not served upon the respondent before or at the time of presentation of this petition. It is claimed that it was sent to the office through TCS courier on 19.09.2018 at 09:54 p.m., which could be deemed to be a lawful presentation, had the copy of the petition and its annexures been acknowledged by the respondent on or before the crucial day when it was sent. He submitted that under the law, the copy of the petition is supposed to be “served” upon respondent rather than “sent”, either through registered post or courier. He submitted that previously the courier responsible for the delivery was not recognized under the law, whereas, in the enactment the courier service is considered as a proper agent for the delivery. However, in terms of Section 143(3) of the Elections Act, 2017, the intention of the legislature is clear when it talks about the petitioner to be served with a copy of the petition along with all annexures. Learned counsel has relied upon Section 27 of the General Clauses Act to support his contention that service through registered post may have a presumption but not through courier.

5.         The fourth point, as raised by the respondent’s counsel, is in respect of the prayer clause as it is not in consonance with Section 144(3) (a) (b) (c). The petitioner could have chosen any one of the reliefs which the law has prescribed but not an independent relief which is other than the prescription of law. In substance, he submitted that this petition is liable to be rejected on all or any of the above counts.

6.         In reply, Mr. Malano, learned counsel for the petitioner submitted that the documents were signed on the very day when the objections were raised by the office and, hence, for all intents and purposes it is deemed to have done on the same. With regard to the verification clause, he claimed that all paragraphs of the petition were considered as true and correct to the best of petitioner’s knowledge, belief and information and it cannot be presumed or it cannot be enforced that the petitioner should have segregated such paragraphs according to his belief / information and according to the advice received by him as the petitioner could demonstrate all such paragraphs to be based on his personal knowledge, belief and information. He submitted that the petition was sent along with annexures through courier and it contains the delivery date as 22.09.2018 and the time as 12:00 noon, and a rigid and / or inflexible interpretation cannot be given to these provisions. Similarly, as far as prayer clause is concerned, he submitted that the Court can always mould the relief as deemed fit and proper at the time of conclusion of the trial and the judgment.

7.         I have heard the learned counsel and perused the material available on record.

8.         In the first instance, I have perused the verification clause of the petition, which is also supported by an affidavit in support of the memo of election petition. The verification page, at page 17, provides that the contents of the aforesaid paras No.1 to 19 are true and correct to the best of his knowledge, belief and information. A situation cannot be eliminated / precluded that a petitioner may, on his personal knowledge, verify the contents of the “entire petition” to be true according to his own belief, information and knowledge. Hence, this verification insofar as the paragraph wise verification as required under the law is concerned, stands satisfied. Insofar as the oath is concerned, an additional affidavit in support of the memo of petition is available at page 131. The petitioner claims to have taken oath before the Assistant Registrar of the Affidavit and Identification Branch of the High Court of Sindh, to whom the powers have been delegated. This affidavit also discloses the date and place, and also that the deponent was identified through NADRA Identification Section. I would, thus, score off this objection of the respondent that the verification was not in accordance with law.

9.         This petition was filed / sent through courier. The courier was sent on 19.09.2018 and delivered on 22.09.2018 at 12:00 noon. The documents attached with the petition do not constitute additional pleadings. It is only in support of the pleadings and contentions that these documents were attached. Hence, this count, since the pleadings have already explained the case, the strict application of the rule which requires only signing of the document, is not one on the basis of which alone, a petition could be rejected. Previously in the Representation of People Act, 1976, the documents were required to be verified, whereas, under the present scheme of law, the documents were only required to be signed and that too in support of petition. Even if these documents claimed to have been signed on 24.09.2018 in compliance of the office objection, it would not drag the provisions of Section 145(1) of the Elections Act, 2017 to reject the petition.

10.       The other point that was argued by the learned counsel was that the prayer clause was not in accordance with the prescribed format. It is claimed that now the prayer clause has already been set to be chosen from any prayer and the proposed prayer is alien to prescribed prayers, and hence would amounts to travelling beyond the scope of the Elections Act, 2017, and on this score, the petition is liable to be rejected.

11.       I have perused the prayer clause. Though the prayer clause (i) may not be in strict prescription of the Elections Act, 2017, however, prayer clause (ii), which seeks declaration of the election of respondent No.1 to be void is within the frame. In clause (iii), the petitioner has also claimed that this Tribunal may pass any relief deem fit and proper. I would, thus, score off this ground too for rejection the petition.

12.       The last ground that I would take into consideration is the service to be effected upon respondents before or at the time of presenting the petition. This petition was sent through courier on 19.09.2018 at 09:54 p.m. The receipts are available in the miscellaneous file, which is a part of the main file. The courier was sent to this Tribunal and all other contesting respondents including the returned candidate. No doubt, in Section 143(3) of the Elections Act, 2017, the intention of the legislature is clear as it talks about petitioner to serve a copy of the petition along with annexures to the respondents, however, the record reveals that it was sent to the Tribunal as well as to the contesting respondents at the same time. It was received by the Tribunal at 12:00 noon on 22.09.2018. The agent / TCS courier may have consumed time in preparing different receipts and for that reason, different time is disclosed in the receipts but for all intent and purposes, it was done at the same time. The Tribunal was shown to have delivered this petition, as stated above, on 22.09.2018 at 12:00 noon, whereas, other for other consignees, the date and time of delivery is not disclosed. Although, the presumption is only attached to the registered post in terms of Section 27 of the General Clauses Act, but in view of the above facts and circumstances, it would amount to stretching it too far in case it is presumed that the notices of the petition were not delivered or served presumably at the same time when this Tribunal received the memo of petition along with annexures. It may also be noted that 20th and 21st of September were declared as public holidays being 9th and 10th of Moharram-ul-Haram.

13.       I would score off all the grounds that respondent has raised for rejection of the petition. Since the issues have already been framed on 01.11.2018, therefore, I fix the matter for recording of evidence of the petitioner and witnesses, in case he so desires.

14.       To be fixed in the 2nd week of March 2019 by the office.

 

 

 

 

 

J U D G E

 

 

Abdul Basit