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Writ Petition No. 1018 of 1966, decided on 9th May 1967.
r. 7‑Election of Chairman‑Election petition not required to be verified.
All that is necessary under Rules 7 of the West Pakistan Basic Democracy (Election of Chairman) Rules, 1960 is the presentation of an election petition by a member of the Basic Democracy and neither verification nor any particular form or mode of signing is specifically provided for in the Rules. The rule of course requires the presentation of the petition by a member of the Basic Democracy, but it does not preclude its presentation by his duly authorised agent.
Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, does not make any provision for verification or signatures of the petitioner. Though of course when the rule requires that an election petition may be presented by any member of the Basic Democracy it means that it should be instituted by him and at his instance and no one else. If it be signed by him or by a duly constituted agent or attorney it would be by him and it could be presented by his duly authorised agent. In this case, since the rules do not particularly require the signatures of and verification by the petitioner on it, the election petition could not have been thrown out on the ground that it was not signed and verified by his petitioner, but was signed and verified by his agent. Of course, if the petition is not signed by a member or by his duly authorised agent it is not a petition by him, and it could not be deemed to be a petition presented by him.
The rules framed for the election of Basic Democracies can have no application whatever to the election of Chairman.
The omission to verify it is a mere irregularity, which could be cured even at a later stage. Merely on the ground of such a defect the petition cannot be treated an altogether invalid.
Ghulam Dastgir v. The Collector of Thatha and another P L D 1961 Kar. 607 ref.
O. VI, rr. 14 & 15 Signing and verification of plaints mere matters of procedure.
Even in the case of Order VI, rules 14 and 15, C. P. C. there is ample authority for the view that signing and verification of plaints are mere matters of procedure, and even if a plaint is not properly signed and verified, but it is admitted and entered in the register of suits, it does not cease to be plaint, and the suit cannot be said not to have been instituted, because of the defect or irregularity in the matter of signing and verification of the plaint.
All India Reporter Bombay v. Ramchandra Dhondo Dater A I R 1961 Bom. 292; Ganpati Nana Powar and another v. Jiwanabai Kom Subanna A I R 1923 Bom. 44 (1); Bandi Portland Cement Ltd. v. Abdul Hussain Essaji A I R 1936 Bom.418; Nanjibhai Jethabhai v. Popatlal Shriraj and others A I R 1932 Bom: 367; Shib Deo Misra and others v. Ram Prasad and others A I R 1925 All. 79; Secretary of State for India v. Dinshaw Navroji and another A I R 1925 Sind 275; Mohiuddin and others v. Pirthi Chand Lal Chaudhary A I R 1915 Cal. 444 and Rajabali v. Messrs Gujrat Bus Service, Karachi P L D 1961 Kar. 486 ref.
r. 7‑Name of Advocate not recorded in body of Vakalatnama‑‑‑Omission not material‑Civil Procedure Code (V of 1908), O. III, r. 4.
The election petition, though not signed by the petitioner, was signed by the attorney and the question, for considera tion was whether, by reason of the name of the Advocate not being recorded in the body of the Vakalatnama, he was not a duly constituted agent of the petitioner, and the presentation was not valid.
Held: The emission in the Vakalatnama was only a clerical error and since the intention of the parties was quite clear, there was sufficient compliance with the provisions of the law and the presentation of the suit, application or appeal is not invalid.
The provisions of the Code of Civil Procedure or of the Basic Democracies Election Rules are not really attracted in the case of an election petition filed under rule 7, and the interpretation of Order III, rule 4, C. P. C. is not directly in point, but the principle derivable from it shows that even where the rule requires an appointment by a document in writing by name of the Vakil or Advocate, the Courts have regarded an omission of his name in the document as a mere irregularity. On a careful analysis it will be found that where a power‑of‑attorney is signed by a party, and is accepted by a Vakil there is a conscious appointment of the Vakil as agent by the party, and the relationship is established as soon as both sign the Vakalatnama. The omission of the name of the pleader in the body of the Vakalatnama is not really material for the intention of the parties to create relationship of principal and agent is clear and manifest from the act of signing by both the power‑of‑attorney.
Mohiuddin and others v. Pirthiehand Lal Chaudhary A I R 1915 Cal. 444 ; Mahfuzal Haq and others v. Mazharul and others A I R 1918 Cal. 482; Shambhu Nath v. Badir Das A I R 1921 All. 210; V. Muni Krishna Reddi v. Ramraju A I R 1946 Mad. 482; Official Receiver Aligarh and others v. Hira Lal A I R 1935 All. 727; Chhita v. Mst. Jaffo and others A I R 1931 All. 767; Mst. Masumbi v. Dingar Singh and others A I R 1920 Nag. 110; Banwari Rai v. Chethru Lal Rai A I R 1924 Pat. 114; Jhumarmull Sethia v. Champalal Bothra A I R 1960 Cal. 61; Dahyabhai Girdhardas v. Bobaji Dahyaji A I R 1935 Bom. 28; Pokhpal Singh v. Dambar Singh (1909) 6 A L J 110n; Muhammad Qamar Shah Khan v. Muhammad Salamat Ali Khan A I R 1930 All. 112; Wall Muhammad Khan v. Ishak Ali Khan and others A I R 1931 All. 507 and Mohini Mohun Das v. Buddan Saha Das (1890) 17 Cal. 580 ref.
O. VII, r. 1 (c) Wrong parentage of respondent‑Mistake can be corrected‑West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, r. 7.
The question of the wrong parentage of the respondent is of no consequence as the Controlling Authority has not held that the election petition was not filed against respondent No. 2. There was no doubt as to the identity of the person, who was elected as Chairman, and whose election was challenged by the petitioner. The challenge in the election petition was to the election of respondent No. 2, and if by mistake his father's name was not correctly mentioned in the election petition, it could have been corrected. In fact, it was not necessary that his father's name should have been mentioned in the election petition, since the rule does not require it.
Dost Muhammad Aware for Petitioner.
Raja Muhammad Anwar for Respondent No. 2.
Dates of hearing: 18th April and 1st May 1967.
This petition under Article 98 of the Constitution of Islamic Republic of Pakistan is by Malik Sajawal Khan who, prays that the order of the Controlling Authority dated the 1st of June 1966 dismissing his election petition be declared to be without lawful authority and of no legal effect and that the Controlling Authority may be directed to decide his election petition on its merits.
2. Malik Sajawal Khan petitioner and Malik Muhammad Khan, respondents No. 2, contested the election to the officer of Chairman of Union Council Kund, Tehsil Khushab, District Sargodha, held on the 18th of January 1966. The respondent No. 2 having polled 3 votes against 2 polled by the petitioner, was declared elected. The sixth vote alleged to have been polled in favour of the petitioner, it is alleged, was not counted in his favour on the ground that it was not in the appropriate chamber but on the dividing line. On the 11th of February 19(6, the petitioner filed an election petition under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, challenging his election. The Controlling Authority by its order dated the 1st of June 1966 rejected the election petition en the technical ground that the name of Malik Ghulam Nabi, Advocate who filed the election petition, not having been mentioned in the body of Vakalatnama, he was not validly appointed and the presentation and institution of the election petition by him was neither authorised nor valid. The second objection, which found favour with the Controlling Authority, was that the parentage of the respondent in the petition was not correctly mentioned, and thirdly that the petition bad neither been signed, nor verified by the petitioner himself. The election petition in question was instituted under rule 7, which as amended, reads:‑
"7. Election petition.‑(1) No election of a chairman shall be called in question except by an election petition presented to the Controlling Authority or such other officer as Government may appoint in this behalf within ninety days of the declaration of the result.
(2) The election petition under sub‑rule (1) may be presented by any member of the Basic Democracy and in the election petition the petitioner may claim any of the following declarations:‑--
(a) that the election of the returned candidate is void, or
(b) that the election of the returned candidate is void and fat the Petitioner or some other person has, been duly elected
(c) that the election as a whole is void.
(3) The Controlling Authority, or the officer appointed by the Government under sub‑rule (1), as the case may be, may, after such enquiry as it or he may consider necessary, uphold the election, or award any declaration prayed for under sub‑rule (2) for any material irregularity, or any other sufficient reason to be recorded.
Explanation.----For the purposes of this rule material irregularity' means any non‑compliance with the provisions of the Order, or these rules, which materially affects the result of an election.
(4) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules.".
All that is necessary under the above rule is the presentation of an election petition by a member of the Basic Democracy and neither verification nor any particular form or mode of signing is, specifically provided for in the Rules. The rule of course requires the presentation of the petition by a member of the Basic Democracy, but it does not preclude its presentation by his duly authorised agent. A great deal of arguments and a number of authorities were cited before the Controlling Authority on the question whether Malik Ghulam Nabi was duly constituted as authority to present the election petition or not, when the petitioner had executed a Vakalatnama in favour of Malilb Ghulam Nabi, who had also signed and accepted it, but In the body of the Vakalatnama his name was not inserted, evidently by oversight. On behalf of the petitioner reliance was placed on Mohiuddin and others v. Pirthichand Lal Chaudhary (A I R 1915 Cal. 444), Mehfuzal Haq and others v. Mazharul Haq and others (A I R 1918 Cal. 482), Shambhu Nath v. Badri Das (A I R 1921 All. 210) and V. Muni Krishna Reddi v. Ramaraju (A I R 1946 Mad 482). On behalf of the respondent were referred .Chhita v. Mst. Jaffa and others (AIR 1931 All 767) and Official Receiver Aligarh and others v. Hira Lal (AIR 1933 All. 727). The Controlling Authority was inclined to the view on the basis of Chhita v. Mst. Jaffa and others that even where the name of the pleader had been omitted through oversight from the body of Vakalatnama, there was no valid appointment and the defect in the instrument could not be cured. In the opinion of the Controlling Authority, even if it be assumed that in view of the conflicting authorities the omission of the name of the Vakil as a defect was not material, the other two defects; namely, that the election petition was not signed and verified by the petitioner and that the parentage of the respondent was incorrectly mentioned, made the case of the petitioner very weak, but in the final conclusion the Controlling Authority filed the petitioner for the reason that the counsel for the petitioner was not validly appointed, and the petition lodged by him was unauthorised and invalid.
3. As indicated above, this was a petition presented under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, and not an election petition presented under rule 35 of the Electoral College Act, sub‑rule (2) of which requires that it shall be presented either by the candidate or by a person duly authorised in writing by him in this behalf. Its sub‑rule (7) requires that it shall be signed and verified by the petitioner in the manner provided for the verification of plaints in the Code of Civil Procedure. This rule cannot be imported into the West Pakistan election of Chairman Rules. Rule 55 of the West Pakistan Basic Democracies Election Rules, which also provides for presentation of election petition by the petitioner or by a person authorised in writing and for signing and verification by the petitioner in the manner provided in the Code of Civil Procedure for verification, pleadings, cannot also be imported into the rules for signing, verification and presentation of the election petition before the Controlling Authority. It has been held in Ghulam Dastgir v. The Collector of Thatha and another (P L D 1961 Kar. 607) that the very fact that two sets of rules were framed one for the election of the Basic Democracies and the other for the Chairman of Basic Democracies shows that the rules framed in each case applied to the cases of election contemplated by them respectively. The rules in either case are a complete Code in themselves and lay down the procedure for the elections of the Basic Democracies and the Chairman of the Basic Democracies. The rules, therefore framed for the election of Basic Democracies can have no application whatever to the election of Chairman. Rule 47 of the West Pakistan Basic Democracies Election Rules was held to have no application and could not be invoked for the purposes of deciding a case of election of Chairman. The same observations apply to rule 35 of the Electoral College Rules, which is intended to apply to the case of election petitions instituted in case of elections to the Electoral College. Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, does not make any provision for verification or signatures of the petitioner. Through of course when the rule requires that an election petition may be presented by any Member of the Basic Democracy it means that it should be instituted by him and at his instance and no one else. If it be signed by him or by a duly constituted agent or attorney it would be by him and it could be presented by his duly authorised agent. In this case, since the rules do not particularly require the signatures of and verification by the petitioner on it, the election petition could not have been thrown out on the ground that it was not signed and verified by the petitioner, but was signed and verified by his agent. Of course, if the petition is not signed by a member or by his duly authorised agent it is not a petition by him, and it could not be deemed to be a petition presented by him, but this is not the case here.
4. Even in the case of Order VI, rules 14 and 15, C. P. C. there is ample authority for the view that signing and verification of plaints are mere matters of procedure, and even if a plaint is not properly signed and verified, but it is admitted and entered in the register of suits, it does not cease to be plaint, and the suit cannot be said not to have been instituted, because of the defect or irregularity is the mater of signing and verification of the plaint. In this connection, All India Reporter, Bombay v. Ramchandra Dhondo Dater (A I R 1961 Bom. 292), Ganpati Nana Powar and another v. Jiwanabai Kon Subanna (A I R 1923 Bom. 44 (1)), Bundi Portland Cement Ltd. v. Abdul Hussan Essaji (A I R 1936 Bom. 418) and Nanjibhai Jethabhai v. Popatlal Shriraj and others (A I R 1932 Bom. 367) may be referred. In Shib Deo Misra and others v. Rain Prasad and others (A I R 1925 All. 79) it was held that a plaint is not void merely be cause it dogs not contain the verification clause as required by the Code of Civil Procedure. The omission to verify it is a mere irregularity, which could be cured even at a later stage. Merely on the ground of such a defect the plaint cannot be treated an altogether invalid. In Secretary of State for India v. Dinshaw Navoji and another (A I R 1925 Sind 275), it was also stated that the provisions or Order VI, rule 11, C. P. C. relate to a mere matter of procedure and any mistake or omission therein may be amended at any time subsequent to the institution of the suit. In Mohiuddin and others v. Pirthi Chand Lal Chaudhary, it was held that even an appellate Court should not dismiss a suit on the ground that the plaint was not duly signed and verified, for such a defect does not affect the merits of the case or the jurisdiction of the Court. As a general pro position it was stated in it, that though no hard and fast line could be drawn between a nullity and irregularity, a non‑compliance with every requirement of a statute does not universally make the proceedings a nullity, and when the provisions of a statute have been contravened, if a question arises as to how far the proceedings are affected thereby, it must be determined with regard to the nature, scope and object of the particular provision violated. In Rajabali v. Messrs Gujrat Bus Service, Karachi (P L D 1961 Kar. 486), a Division Bench of this Court held on a consideration of Order VI, rule 14, C. P. C. that the omission of plaintiff No. 1 to sign the plaint was of a minor nature and the objection being of a minor technical nature, which had no bearing on the merits of the case, the Court could even at the appellate stage get the plaint signed from plaintiff' No. 1. The objection was overruled.
5. The election petition, though not signed by the petitioner, was signed by the attorney and the question, which falls to be considered is whether, by reason of the name of the Advocate not being recorded in the body of the Vakalatnama, he was not a duly constituted agent of the petitioner, and the presentation was not valid. As mentioned already, the rule does not specifically require that the agent should have authority in writing to be able to present the election petition. Even where Order III, rule 4 requires a document in writing signed by a person authorising a pleader to act in any Court, it has been held Mst. Masunbl v. Dingar Singh and others (A I R 1920 Nag, 110) V. Muni Krishna Reddi v. Ramaraju and Shambhmath v. Badra Das (AI R 1921 All. 210 (2)) that where a Vakalatnama is signed by a party and is accepted by the pleader or Advocate, but his name is accidentally omitted from the body of Vakalatnama, it would be to technical to hold teat the Vakalatnama was not a valid authority to the pleader to appear because his name did not appear in the body of it. The omission in the Vakalatnama was only a clerical error and since the intention of the parties was quite clear, there was sufficient compliance with the provisions of the law and the presentation of the suit, application or appeal is not invalid. In the first case the reasoning, was that when a party delivers a Vakalatnama to a pleader duly signed by himself, but omits the name of the pleader in the body of tile Vakalatnama, the latter has implied authority to fill in the details, and if the pleader simultaneously accepts the Vakalatnama and signs his name in taken of its acceptance, this is a sufficient compliance with the provisions of the law. These observations are fully applicable to tae Vakalatnama executed in favour of Malik Ghulam Nabi, Advocate. In Y. Muni Krishna redid v. Ramaraju, the name of the Vakil was by mistake wrongly recorded in the body of the Vakalatnama and yet the Court had that the application under Order IX, rule 9 was validly presented, because the entry of the wrong name in the body of the Vakalatnama was a clerical error, the, intention of the parties being clear to appoint the presenting Vakil as an agent for the purpose. In Banwari Rai v. Chethru Lal Rai (A I R 1924 Pat. 114), the Vakalatnama was not signed by Banwari Rai, but he had authorised Tilak Dhari Rai to sign the Vakalatnama and to instruct the pleader to file an application to have the sale set aside. The learned Judges had no doubt that what was done by Tilak dhari Rai was done with the full knowledge and acquiescence of and under the instructions of Banwari Rai, who had accepted it and acted upon it, though tie Vakalatnama which had on it Banwari Rai name, was not in fact signed by him. As it was proved that no fraud had been committed and that what had been done, had been done with full knowledge and acquiescence of the party himself, it was held that the irregularity as in that case in presenting the case before the Court, could not be taken as a matter of vital importance, since it in no way affected the merits of the case, and, such an irregularity fell within the purview of section 99 of the Civil Procedure Code. Holding that, the irregularity was a trivial one, the learned Judges came tot he conclusion that the District Judge ought not to have allowed it to affect his judgment in that case. In Jhumarmull Sethia v. Champalal Bothra (AIR 1960 Cal. 61), over six years after the passing of an ex parte decree, the defendant filed an application under Order IX, rule 13, C. P. C. praying that the ex parse decree be set aside on the usual pleading that the defen dant was not aware of the filing of the suit and that summons not having been served on him, he could not contest the suit. The petition and the Vakalatnama which was filed with the petition were not signed by the defendant himself, but by his constituted attorney in whose favour a power of‑ attorney had been executed in Pakistan but was not authenticated before the Indian authorities and was, therefore of no value in India. The signatures on the petition and the Vakalatnama therefore, could not be treated as the signatures of the defendant made by his authorised agent or constituted attorney. The lower Court allowed the defendant to sign the petition and the Vakalatnama after institution of the application and set aside the decree. An objection was is keen before the Calcutta High Court that the petition under Order IX rule 13 was no petition at all, because neither the petition nor the Vakalatnama was initially signed by either the defendant or by his authorised agent. This contention was repelled relying on Dehyabhai Girdhardas v. Bobaji Dahyaji (A I R 1935 Bom. 28), holding that such a defect was merely a formal defect.
6. The case on which the Election Tribunal relied is Chhita v. Mst. Jaffo and others. In this case also the name of the pleader was not entered in tine body of the Vakalatnama. In coming to the conclusion, that the Vakil was not validly appointed and that the plaint presented by him was unauthorised the learned Judges gave the following reasons :‑‑
"It is obviously the intention of the Legislature that the authority of the pleader to act should be contained in an instrument in writing and that the appointment of the pleader could not be made verbally. The word 'shall' in Order III, rule 4 indicates that the rule is of an imperative character. Where the name of the, pleader has through oversight been omitted from the body of the Vakalatnama, there is no valid appointment, and the defect in the instrument could not be cured either; (1) by production of parol evidence, which is inadmissible, or (2) by the circumstances, that the pleader had endorsed his acceptance in writing on the back of the Vakalatnama. Where the Legislature insists upon the execution of a formal document there can be no appointment unless the formality has been duly complied with, and the written authority in favour of a definite individual or individuals by name cannot be dispensed with on the ground that the enacted rule is a mere technical rule of procedure."
In support of the above rule the learned Judges relied on Pokhpal Singh v. Dambar Singh ((1909) 6 A L J 110n) and Muhammad Qamar Shah Khan v. Muhammad Salamat Ali Khan (A I R 1930 All. 112). But in the same volume is to be found at page 507 a Special Bench decision of the Allahabad High Court reported as Wali Muhammad Khan v. Ishak Ali Khan and others (A I R 1931 All. 507) in which the Celebrated Judge, Sulaiman, J. examined a large number of authorities and recorded his opinion. In this case, a suit was instituted in the name of the plaintiff by his mother acting as his guardian and next friend describing him as a minor, while in fact he was of age. The plaint was signed by the mother and by a pleader appointed under a Vakalatnama bearing her signatures. It was not disputed in the Court that the plaintiff was aware of the institution of the suit and that in fact he was prosecuting it. It was, therefore, concluded that the suit had been authorised by him. The learned Judge expressed the following opinion:
"As there is no specific rule either requiring or expressly authorising the plaintiff to present the plaint it is doubtful whether Order III, rule 1 of the Code would apply to such a case. If it does not apply, the presentation by a person orally authorised to do so would be valid. But even if it does we are clearly of opinion that the omission to comply with this provision would be a mere irregularity and not an absence of jurisdiction. The Court receiving a plaint which has not been properly presented would have jurisdiction to dismiss it and pass orders on it. It would not be acting, without jurisdiction if it did so. We do not mean to imply that a plaintiff has the right to get his plaint presented by a man in the street. If the person presenting it was not properly authorised, the presentation would be irregular. The Court would then have the discretion to allow the irregularity to be cured or not. If the plaintiff has acted in good faith and without gross negligence, and it is fair and just to allow the defect to be cured, the Court would undoubtedly do so. It is not absolutely helpless in the matter."
The above conclusion is pertinent to the case in hand. The learned Judge based his conclusion on a Privy Council case Mohini Mohun Das v. Buddan Saha Das ((1890) 17 Cal, 580) and observed:
"This in our opinion is a clear authority for the proposition that the absence of signatures of verification or for the matter of that the absence of presentation on the part of some of plaintiffs out of several does not affect the jurisdiction of the Court and the suit must be deemed to have been duly instituted on their behalf if it was filed with their knowledge and authority."
7. The provisions of the Code of Civil Procedure or of the Basic Democracies Election Rules not really attracted in the case of an election petition filed under rule 7, and the interpretation of Order 111, rule 4, C. P. C. is not directly in point, but the principle derivable from it shows that even where the rule requires an appointment by a document in writing by name of the Vakil or Advocate, the Courts have regarded an omission of his name in the document as a mere irregularity. On a careful analysis it will be found that where a power of attorney is signed by a party, and is accepted by a Vakil there is a conscious appointment of the Vakil as agent by the party, and the relationship is established as soon as both sign the Vakalatnama. The omission of the name of the pleader in the body of the Vakalatnama is not really material for the intention of the parties to create relationship of principal and agent is clear and manifest from the act of signing by both the power of attorney. In this view of the matter, there remains little doubt that the petitioner duly authorised Malik Ghulam Nabi to act on his behalf for the signing, verification and presentation of the election petition, and the omission of the name of the Advocate from the body of the Vakalatnama was a matter of no consequence.
8. In view of the above, as the election petition was signed, verified and presented by the duly appointed Advocate, namely, Malik Ghulam Nabi, the election petition was duly made by the petitioner, and it could not have been treated by the Controlling Authority as not having been duly presented.
9. The question of the wrong parentage of the respondent is no consequence as the Controlling Authority has not held that the election petition was not filed against respondent No. 2. There was no doubt as to the identity of the person, who was elected as Chairman, and whose election was challenged by the petitioner. The challenge in the election petition was to the election of Malik Muhammad Khan, respondent No. 2, and if by mistake his father's name was not correctly mentioned in the election petition, it could have been corrected. In fact, it was not necessary that his father's name should have been mentioned in the election petition, since the rule does not require it.
10. For the above reasons, the order of the Controlling Authority is declared to be without lawful authority and of no legal effect. The result is that the Controlling Authority shall now dispose of the election petition on its merits in accordance with law. There will be no order as to costs.
K.M.A. Petition accepted.
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