FAO No.2352 of 2010 - 1 - ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2352 of 2010 Date of decision:10.09.2010. Sukhpreet Singh ...Appellant Versus Jatinder Kumar and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Sandeep Arora, Advocate, for the appellant. Mr. Sushil Saini, Advocate, for respondent No.1. Mr. Vikasdeep Singh, Advocate, for Mr. NPS Mann, Advocate, for respondent No.3. ***** RAKESH KUMAR JAIN, J. This appeal is directed against order of the Additional Deputy Commissioner – cum – Election Tribunal, Gurdaspur dated 23.02.2010 by which an application for recalling of the order dated 04.03.2009 by which election petition has been dismissed in default of appearance, has been dismissed. The facts are not much in dispute. The appellant challenged the election of respondent No.1 by way of an election petition filed under the Punjab State Election Commission Act, 1994 FAO No.2352 of 2010 - 2 - ***** [for short “the Act”] and the Punjab Nagar Palika Election Rules, 1994. After the pleadings, issues were framed and the case was fixed for evidence on 04.03.2009. On that date, the appellant could not appear and election petition was dismissed in default of appearance. The appellant filed an application on 15.04.2009 for recalling of the order dated 04.03.2009 and deciding the election petition on merits. In the said application it was alleged that counsel for the appellant was present on 04.03.2009 who had come to the court firstly at 2.00 pm and thereafter at 4.00 pm and on inquiry it was learnt that the election petition has been dismissed in default of appearance sometime between 2.00 pm to 4.00 pm. The application was contested by the respondents on the ground that the application is not maintainable as it has not been signed by the appellant. It was alleged that the appellant was given 9 opportunities but no witness was produced. Learned counsel for the appellant has argued that issues were framed by the learned Election Tribunal on 10.12.2008 and the only effective date for leading evidence was given on 02.03.2009. The application for restoration was filed on the same day i.e. on 04.03.2009. However, the learned Tribunal dismissed the application vide impugned order on the ground that neither the application is signed by the election petitioner nor there was an affidavit in support thereto. Against the impugned order, the appellant has filed the present appeal and has also filed an affidavit FAO No.2352 of 2010 - 3 - ***** of the appellant, his Advocate who had been regularly appearing before the learned Election Tribunal and had filed the application for restoration on the same day i.e. on 04.03.2009. He has relied upon a decision of this Court in the case of Sayian Singh v. Bishan Singh, 2001(1) PLR 770 and a judgment of the Rajasthan High Court in the case of Om Parkash Vaswani v. Municipal Board, Chittorgarh and others, 2007(5) R.C.R. (Civil) 456 to contend that even if the application for restoration is not supported by an affidavit, the Court should be lenient to dispense justice instead of scuttle the bona fide rights of the appellant and secondly, if the application is signed by the Advocate and not supported by an affidavit of the appellant, it cannot be dismissed on the ground that it is not signed by the party as the Advocate is a duly authorized agent of the appellant who has explained his non-appearance in the application. On the contrary, learned counsel for the respondents has submitted that filing of an affidavit in support of the application for restoration is a must in terms of the provisions of law. In order to decide the present appeal, I have tried to trace the law. Since the present appeal has arisen out of an election petition, it would be pertinent to note that Section 81 of the Act provides that every election petition shall be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure contained in the Code of Civil Procedure, 1908 [for short “CPC”]. Order 9 Rule 3 of the CPC empowers the Court to dismiss FAO No.2352 of 2010 - 4 - ***** the suit/election petition for non-prosecution and Order 9 Rule 4 of the CPC, in turn, empowers the plaintiff or the election petitioner to file an application for restoration of the suit/election petition on showing his bona fide to the satisfaction of the Court about his non- appearance. However, Order 9 Rule 4 of the CPC is silent about the filing of an affidavit in support of the application. In the absence of any provision in the CPC, this Court has scanned the provisions of the Rules and Orders of Punjab & Haryana High Court [for short “Rules & Orders”] which are framed under Section 122 of the CPC. Rule 11, Volume I, Chapter 14, Part E of the Rules and Orders deals with the dismissal in default and ex-parte proceedings but it is also silent about the filing of an affidavit along with an application for restoration of the suit/election petition. However, Rule 6(c), Volume 5, Chapter 1, Part E provides that evidence has to be given by way of an affidavit along with applications to readmit an appeal or application which has been dismissed for default or to re-hear the appeal decided in the absence of the respondent, but these Rules are only meant for the applications to be filed in the High Court, and there is no Rule which provides for an affidavit to be filed along with an application for restoration of a suit or election petition. It is also pertinent to mention here that Order 19 Rule 1 of the CPC says that any Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such FAO No.2352 of 2010 - 5 - ***** conditions as the Court thinks reasonable, which means that if one fact is alleged, the Court can always ask the applicant to support that fact by filing an affidavit. In the present case, however, two affidavits have been filed by the learned counsel for the appellant, namely of Sukhpreet Singh and his Advocate Shri Inderjit Sharma dated 10.05.2010 in which the reason has been assigned that the case was taken up for hearing on 02.03.2009 and was adjourned to 04.03.2009 for the evidence of the parties, but due to some communication gap, the appellant was not aware of the date fixed i.e. 04.03.2009. On the other hand, learned counsel appearing for the appellant before the Election Tribunal has also said in his affidavit dated 04.03.2010 that he had appeared before the Election Tribunal, Gurdaspur at 2 pm and thereafter at 4 pm on 04.03.2009 and it was learnt at 4 pm only that the election petition was dismissed in default sometime between 2 pm to 4 pm when the counsel was busy in some other Court. Thus, there was no intentional absence from the Court. In the case of Sayian Singh (supra), this Court had held that even if the application for restoration is not supported by an affidavit, the Court should not interpret the Rule in such a manner which would scuttle the bona fide rights of the parties. In the case of Om Parkash Vaswani (supra) it was held that the affidavit is one of the mode of proving the fact but when facts are available on the record itself, the Court should not have demanded FAO No.2352 of 2010 - 6 - ***** further proof in the form of affidavit. It is also held that even if the application is signed by the Advocate of the party and is not supported by an affidavit it cannot be dismissed for the reason that it was not signed by the party as the Advocate is a duly authorized agent of the party, who had sufficiently explained the reason for absence from the Court as he was busy in some other Court. After hearing both learned counsel for the parties and keeping in view the facts and circumstances of the case, I am of the view that if the application for restoration is not signed by the appellant but it is signed by his Advocate, then that will be sufficient because an Advocate is an authorized agent of the party and is also authorized under the power of attorney in his favour to sign the applications. Of course, where the party to the suit is filing pleadings in the Court namely the plaint or the written statement, it is required to be signed by the said party and not only by the Advocate because the party had to verify the facts contained in the plaint of the suit or the written statement. I also hold that though neither the CPC nor the Rules and Orders of Punjab and Haryana High Court provides for filing of affidavit in support of an application for restoration of the suit/election petition which has been dismissed in default, yet under Order 19 Rule 1 of the CPC, the Court can always demand an affidavit and if despite the order of the Court the affidavit is not filed, then the said application deserves rejection. In the present case, since the appellant has filed his affidavit as well FAO No.2352 of 2010 - 7 - ***** as affidavit of his Advocate on the asking of the Court, I am satisfied with the explanation given in the affidavits and as such, the present appeal is allowed and the impugned order is set aside. The matter is remanded back to the learned Election Tribunal for decision on merits. The parties, through their learned counsels, are directed to appear before the learned Election Tribunal on 11.10.2010. September 10, 2010 (RAKESH KUMAR JAIN) vinod JUDGE