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Writ Petition No. 639 of 1965, decided on 22nd February 1966.

‑Resjudicata--- Principle Applicable to writ petition as well‑Petitioner not entitled to take different pleas at different times so that to file more than one writ petition on same facts‑Civil Procedure Code (V of 1908), S. 11.

Mirza Muhammad Yaqub v. The Chief Settlement Commis sioner, Lahore and another P L D 1965 S C 254 rel.

S. M. Abbas for Petitioner.

Shaukat Ali Khan for Respondent No. 2.

.‑The petitioner Tamizuddin Munshi and respondent Abdul Ghafoor Shikdar filed nomination papers for contesting the election of the Gorai Unit No. 12 of Mirzapur Police Station in the district of Mymensingh. The nomination paper of the said respondent was seconded by one Ashrafuddin Mian but the said nomination was rejected on the ground that there was no voter named Ashrafuddin Miah, though there was one Ashrafuddin. It may be observed here that neither the signature of Ashrafuddin Mia nor the identity of the seconder was questioned at any stage. After the rejection of the nomination paper of the respondent by the Returning Officer on 25th October 1964, the respondent Abdul Ghafoor Shikdar preferred an appeal before the Appellate Authority under section 23 (5) of the Electoral College Act and the same was dismissed by the Appellate Authority on 29^th October 1964 and thereafter the petitioner was declared elected unopposed.

Being aggrieved by the said order the respondent No. 2, namely, Abdul Ghafoor Shikdar approached the High Court under Article 98 of the Constitution. The ground taken in the petition under Article 98 was that the petitioner's nomination paper had been rejected illegally and therefore the order of rejection of the nomination paper of the respondent No. 2 and declaration of election of the petitioner, namely, Tamizuddin Munshi were liable to be declared to have been passed without lawful authority. That petition was opposed by Tamizuddin Munshi, the petitioner before us, on the ground that the application under Article 98 (2) of the Constitution was not maintainable in view of the provision of section 58 of the Electoral College Act which provides that no election shall be called in question except by an election petition under subsection (2) of that section and accordingly the respondent No. 2 Abdul Ghafoor Shikdar should have filed an election petition for setting aside the election of his rival on the ground that his nomination paper was improperly rejected. A Division Bench of this Court accepted that objection by observing that:

"It is, therefore, clear that these petitioners bad an adequate remedy under section 58 of the Electoral College Act against which they moved this Court." It was further observed:

"Though some of these applications were heard on merits, in view of the above conclusions, we do not like to express any opinion on the same. We are, however, holding and all the learned Advocates, for the respondents agree that that should be the position that the present petitioners could challenge the elections by filing petitions under section 58 of the Electoral College Act."

Being placed in such a position, the respondent No. 2 Abdul Ghafoor Shikdar, thereafter filed a petition under section 58 of the Electoral College Act before the Election Tribunal and the Election Tribunal by its order dated 14th November 1965 declared the election of the petitioner Tamizuddin Munshi void. The order runs thus:

"During argument the learned counsel for the petitioner and the learned Advocate for the respondent No. 4, the elected candidate, agreed that the question whether the Tribunal could entertain this petition can no more be enquired into by this tribunal in view of the decision of the Hon'ble High Court."

It appears that the Tribunal in its well‑reasoned judgment set aside the election and declared the same as void. The petitioner thereafter filed an application under Article 98 of our Constitution to this Court and obtained the instant Rule and this Bench has been constituted to dispose of the petition.

Mr. Abbas, the learned Advocate for the petitioner, has contended that the election petition under section 58 of the. Electoral College Act filed by the respondent No. 2 Abdul Ghafoor Shikdar before the Election Tribunal was not maintainable inasmuch as no appeal lies. This argument cannot be entertained because it was he who took a ground before a Division Bench of this Court previously to the effect that the remedy of the respondent No: 2 was not by way of an application under Article 98 (2) of the Constitution but by filing an application under section 58 of the Electoral College Act before the Election Tribunal; which contention was accepted by the High Court and accordingly the Respondent No. 2 Abdul Ghafoor Shikdar preferred an appeal. In the case of Mirza Muhammad Yaqub v. The Chief Settlement Commissioner, Lahore, and another (P L D 1965 S C 254), the Supreme Court observed as follows:

"A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review if such a petition be maintainable. The general principle of res-judicata is applicable to writ petitions also."

We accordingly find no substance in this petition.

The Rule is accordingly discharged with costs to the respondent No. 2 Abdul Gafur Shikdar hearing fee being assessed at ten Gold Mohurs.

‑I agree.

K. B. A.

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