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‑‑Ss. 52, 54, 55 & 63‑‑General Clauses Act (X of 1897), S.27‑‑Notice‑ Mode of service‑‑Notice of petition alongwith copy of petition and. Annexed documents posted to elected candidate‑‑Address given on registered envelope was not same as given in gazette Notification declaring names of successful candidates‑‑Registered envelope addressed to elected candidate on address other than that given in gazette Notification returned undelivered‑‑Postman and despatcher though important witnesses but petitioner not producing them‑‑Petitioner failing ‑to send notice of petition alongwith copy thereof and annexed documents at correct and proper address even after return of same as undelivered Pedtioner, held, failed to discharge onus of service of notice alongwith copy of election petition as well as annexed documents, as required under law‑‑Non‑service of notice alongwith requisite documents, held, would render election petition liable to be dismissed under S.63 of Act LXXXV of 1976.

Muslim Commercial Bank Ltd. v. Akhlaq Ahmed Khan 1982 PLC 863 rel.

Government of West Pakistan through Collector, Gujranwala v. Land Acquisition Collector, District Gujranwala etc. P L D 1979 Lah. 5 4 ref.

Qazi Muhammad Jamil for Petitioner.

M. Zahoorul Haq and Tariq Parvez for Respondents.

Date of hearing: 14th May, 1986.

Fazle Mabood son of Tasbiullah of Rajjar, Tehsil Charsadda, District Peshawar, has filed this election petition for declaring election of PF‑11 Peshawar‑XI as a whole to be void wherein respondent No.1, Ihsanullah son of Akbar Shah, resident of Gulabad,. Tehsil Charsadda, District Peshawar was officially declared as elected. The petitioner 'has mentioned in his petition certain corrupt and illegal practices, alieged by abetted and committed by respondent No.1 in the election, which, according to him, rendered the whole election as void. Alongwith respondent No.1, the petitioner has also joined Fawad Khan and Sher Muhammad as respondents 2 and 3. This election petition was filed before the Election Commission of Pakistan at Islamabad on 20‑4‑1985, whereafter the same was sent to this Tribunal for adjudication. On 28‑9‑1985, i.e. the first date of hearing before the Tribunal respondent No.1's counsel stated at the Bar that his client has not received copy of the petition as well as other documents. On the other hand, learned counsel for the petitioner stated that the petitioner has sent the same through registered post but the same were returned by respondent No, l. Anyhow, learned counsel for the petitioner was directed to supply the said copies to the learned counsel for respondent No. 1 subject to all just' and valid objections, which he did. On 9‑10‑1985, respondent No.1 submitted his written statement taking three preliminary objections viz. that the petition is not in accordance with law and the prescribed procedure; that the petition did not serve notice alongwith copy of the petition with annexed documents upon the answering respondent No. 1 before institution of the present petition and hence the petition is not competent; and that the petition is not within time. Respondent No.1 also raised factual pleas as against the grounds mentioned in the petition. It may be mentioned here that respondents 2 and 3 in spite of, service failed to appear before the 'tribunal and thus were proceeded against ex parte. On the pleadings of the parties, the following three preliminary and one regular issues were framed in the petition:‑‑

(1) Whether the petition is not in accordance with the law and the prescribed procedure as provided under section 54 of the Representation of the People Act, 1976

(2) Whether the petitioner did serve notice alongwith copy of the petition and annexed documents upon respondent No. 1 before institution of the present petition,, personally or by registered post _

(3) Whether the petition is within time

(4) Whether respondent No.1 was guilty of illegal practices as alleged in the petition, if so, what is its effect on the election of respondent No.1 and on the election as a whole

(5) Relief

Both the learned counsel for the parties wanted to lead evidence on the preliminary ,issues first, accordingly they were allowed to do so. Petitioner appeared as his own witness only and then closed his evidence on the preliminary issues. Respondent No.1 however, did not produce any evidence in rebuttal.

2. I have heard the learned counsel for the parties at length and have also perused the record. Learned counsel for respondent No.1 vehemently argued that the petitioner has failed to serve a notice of the petition alongwith copy of the petition coupled with annexed documents upon the answering respondent before the institution of this petition in compliance with section 53 of the Representation of the People Act. 1976, therefore, the petition was 'liable to be dismissed under section 63 of the said Act. He further argued that section 54 of the said Act requires that a petitioner shall serve personally or by registered post on each respondent a copy of petition, as such, this section is mandatory in nature. As such, the petition in hand may be dismissed accordingly.

3. For the sake of convenience, I would like to reproduce sections 53, 54 and 63 of the Act referred to above. Section 53 runs as under:‑

"53. Presentation of petition.‑(1) An election petition shall be presented by a petitioner and shall be deemed to have been presented‑‑

(a) when it is delivereth in person to the Secretary to the Commission or to such other officer as may be appointed by the Commission in that behalf

(i) by the petitioner; or

(ii) by a person authorised in writing in this behalf by the petitioner; or

(b) when delivered by registered post to the Secretary to the Commission or to such other officer as aforesaid.

(2) An election petition, if sent by registered post, shall be deemed to have been presented in time if it is posted within the period specified in subsection (2) of section 52.

Section 54 lays down:

Parties to the petition.‑‑The petitioner shall pin as respondents to his election petition:‑‑

(a) all contesting candidates; and

(b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition.

Section 63 is as follows:‑

Dismissal of petition during trial.‑‑The Tribunal shall dismiss an. election 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."

Keeping the abovequoted sections of law, I will now proceed to discuss the merits of the case. It is the main grievance of respondent No. 1 that no notice alongwith copy of the election petition in hand together with annexed documents was received by him or served on him under the law, therefore‑ this petition may be dismissed. Petitioner has appeared as his own witness as P.W. 1 and stated that he has seat the copies of the election petition to respondents 1, 2 and 3 through registered post before the filing of the election petition with the Commission at Islamabad and a certificate to that effect was incorporated in the election petition and the postal receipts were also attached, which are Exh. P.W. 1/1, Exh. P.W. i/2 and Exh P.W. 1/3. He also produced the registered envelope in original alongwith acknowledgment due card, which was addressed to respondent No. 1 and which was returned unserved. The same are Exh.. PA. 1/4 and Exh. P.W. 1/5 respectively. He also stated in this statement that the registered letter was received back unserved because respondent No. 1 had refused to accept it. In cross‑examination he admitted it to be correct that alongwith. the election petition he had appended the. Gazette of Pakistan, extraordinary, dated 6th March, 1985, in which Gazette names of the successful candidates including the name of respondent No. 1 aiongwith his address, have been given.. He further admitted it to be correct that in the said Gazette Notification the address of respondent No. I is given as "Gul Abad (Maira), tehsil Charsadda, district Peshawar". He also accepted it to be correct that on the registered envelope, Exh. P.W. 1/4, he has given the address of respondent No. 1 as under:‑

"Ihsanullah Khan, Chairman, District. Council, Peshawar".

This address'‑has also been given on Exh. P.W. 1/i, and Exh. P.W. 1/5. Now a look at the envelope addressed to respondent No.1 clintches the matter that the address given thereon is not the one as given in the Gazette Notification appended with the petition by the ‑petitioner and the one given in the body of the petition' in hand, therefore, the presumption goes in favour of respondent No. 1 that the notice alongwith the copy of the petition was not served upon him. Section 27 of the General Clauses Act, 1897 clearly lays down the meaning of service by post and the same is applicable to the case in hand. It is as follows: ‑1

Meaning of service by post.‑‑ Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless"a different intention appears, the service shall be deemed to be effected by properly addressing. pre‑paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

4. Exh. P.W. 1/4 contains a report of the postman, dated 23‑4‑1985 that." As stated earlier, this envelope is addressed in the name of rr p ndent No. 1 but at the address of Chairman, District Council, Peshawar. It .is also important to note that neither the postman who recorded the said report on Exh. P.W. 1/4 nor the Dispatcher concerned were named or produced by the petitioner as his witnesses. Therefore, under the law the petitioner has failed to prove that he has served the notice alongwith the copy of the petition and annexed documents on respondent No. 1 because the address given on the envelope,. Exh. P.W. 1/4, was not the correct and proper address as required by law. Muslim Commercial Bank Ltd. v. Akhlaq Ahmed Khan 1982 P L C 863 is an authority which lays down as under:‑

"Charge‑sheet‑‑Service through post‑‑Presumption of service‑ Requirements for presumption‑‑Concerned document must be put in a cover on which correct address of person to whom it is despatched must be recorded, correct postage stamp must be affixed on cover and cover should be despatched through registered post‑‑Postal receipt stated as not available‑‑Signature on acknowledgement receipt not of person concerned (accused) nor any suggestion of such signature being of some inmate of house of accuser‑‑No presumption, in circumstances, held, could be raised that cover containing charge‑sheet must have been delivered to accused in due course of postal ' business‑‑General Clauses Act (IX of 1897)."

This authority on all fours is applicable to the facts of the present petition. Here admittedly the envelope containing the notice as well as COPY and other annexures of the petition was addressed at a wrong address of respondent No. 1. As stated earlier, in the Gazette Notification appended .with the petition and in the body of the petition address of respondent No. i has been given as "Ihsanullah son of Akbar Shah, resident o' Gulabad. Tehsil Charsadda, District Peshawar", whereas the envelope contains the address of respondent No. 1 as Chairman, D1 strict Council, Peshawar. Again, despatcher was not named or produced by the petitioner to prove the factum of refusal of the service of Exh. P.W. 1/4 by respondent No. 1. It has also not been brought on record if the so‑called despatcher was an authorised person on behalf of respondent No. 1 to have refused or accept ‑a letter addressed in the name of respondent No. 1. Also Exh. P.W. 1/4 does not contain any writing by the inmate of the house of respondent No. 1,' or the signature of respondent No. 1 refusing the service of the envelope containing the copy of the petition. The most important feature of the case in hand is that the said envelope Exh. P.W. 1/4 was received back by the petitioner on 23‑4‑1885 but till the date when he produced the same in evidence, no effort has been shown by the petitioner to have sent the same again to respondent No. 1 at his correct and proper address, which goes a long way to prove the stand taken by respondent 8 No. 1 that no copy as well as annexed documents of the petition was received by him as provided under section 54 of the Representation of the People Act, 1976, therefore, this petition merits dismissal on this score alone.

5. No doubt, the petitioner has produced the postal receipts showing that the petitioner has sent a copy to all the three respondents by registered post but it is interesting to note that all the three receipts, Exh. P.W. 1/1, Exh. P.W. 1/2 and Exh. P.W. 1/3 did carry the postal stamp showing the date as 20‑4‑1985 whereas there is a certificate given at the end of the instant election petition by Mian Fasihul Mulk, Advocate, Peshawar, dated 18‑4‑1985 to the effect that copies of the election petition have been sent to respondents Nos. 1,2 and 3 through registered post. This certificate of Mian Fasihul Mulk, also counsel for the petitioner, falsifies the receipts, Exh. P.W. 1/1 to Exh. P.W. 113, or for that matter the said receipts negative the certificate, dated 18‑4‑1985. All this nullifies the stand of the petitioner that copy of the petition as well as annexed documents were supplied to respondent No. 1 as required under section 54 of the Act. In Civil Procedure Code, mode for service of summons has been provided in Order V, rules 15 and 17, which run as under:‑

"Summons.‑‑(1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified:

(2) ....................... .

(a) ...............................................................

(b) ...............................................................

(c) ...............................................................

(3) ..............................................................

2. Copy of statement annexed to summons.‑‑Every summons shall be accompanied by a copy of the plaint or if so permitted, by a concise statement."

Rules 15 and 17 of Order V, C.P.C. are also attracted to the facts of the instant petition and the same are also reproduced hereunder:‑

"15. Where service may be on male member of defendant's family‑ Where in any suit the defendant cannot be found and has no coagent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family of the defendant who is residing with him.

Explanation.‑‑ A servant is not a member of the family within the meaning of this rule.

17. Procedure' when defendant refuses to accept service, or cannot be found.‑‑Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a. copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."

No such proof, it may be remarked, was produced by the petitioner or any effort showing on his behalf for the service of the envelope, Exh. P.W. 1/4, has been proved, with the result that he has miserably failed to discharge the onus of service of notice alongwith copy of the election petition as well as annexed documents, as required under the law. He has also faded to show any effort by submitting an application to the Election Tribunal regarding the refusal of service of the envelope, Exh. P.W. 1/4, by respondent No. 1. And also out of abundent caution the petitioner should have given a list of witnesses giving therein the names of the Dispatcher or the postman to prove the factum of service by presumption of law. By not doing so, the petitioner has strengthened the objection that Exh. P.W. 1/4 was addressed to respondent No. 1 with a wrong address and not according to mode of service prescribed by law. In .support of this, I would like to refer to a case reported in Government of West Pakistan through Collector, Gujranwala v. Land Acquisition Collector, District Gujranwala etc. P L D 1979 Lah. 54, wherein the following dictum has been laid down:‑

"Interpretation of statutes‑‑Statute providing a mode for doing a thing in a particular manner‑‑Such thing shall be done in prescribed manner and in no other or not at all."

6. Before parting with the case, I must refer to an unreported judgment of Division Bench of this Court in case Nek Amal Khan v. Muhammad Hanif and others decided on 2‑10‑1974, wherein identical question was before the Division Bench and their Lordships have decided that by not complying with the requirements of law the petitioner has been extremely negligent and in the result a mandatory provision of law has been contravened.

7. In the result, I hold that petitioner has miserably failed to prove that copy of the election petition as well as annexed documents were supplied to respondent No. 1 as required by section 54 of the Representation of the People Act, 1976, which is a manoatory section and has thus made this petition liable for dismissal under clause (a) of section 63 of the said Act. 1 would, therefore, decide the preliminary issues in favour of respondent No. 1 and would dismiss the petition in hand, with no order as to costs.

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