Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 931. In this matter between E.P 25/2024 (S.B.) Sindh High Court, Karachi - Usman Ghani s/o Yaqoob Hingoro (Petitioner) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

COURT: Sindh High Court CASE NO: E.P 25/2024 (S.B.) Sindh High Court, Karachi CITATION: 2024 SHC KHI 931 PARTIES: Usman Ghani s/o Yaqoob Hingoro (Petitioner) ORDER DATE: 22-NOV-24 BENCH: Hon'ble Mr. Justice Adnan Iqbal Chaudhry(Author) A.F.R: Yes ------------------------------------------------------------ Page 1

ELECTION TRIBUNAL HIGH COURT OF SINDH, KARACHI

Election Petition No. 25 of 2024 [Usman Ghani v. Election Commission of Pakistan & others]

Petitioner : Usman Ghani son of Yaqoob Hingoro through Mr. Tasadduq Nadeem, Advocate.

Respondent 1(i) & (ii) : Election Commission of Pakistan through Qazi Abdul Hameed, Deputy Attorney General for Pakistan alongwith M/s. Abdullah Hanjrah, Deputy Director (Law) and Sarmad Sarwar, Assistant Director (Law), ECP, Karachi.

Respondents 2-20 : Nemo.

Dates of hearing : 16-10-2024 & 05-11-2024.

Date of order : 22-11-2024.

O R D E R

Adnan Iqbal Chaudhry J . - Notice of the petition was ordered on 13.06.2024, but cost was not deposited for issuing process . Therefore, on 01.07.2024, the petition was listed for non -prosecution. Since no one was present for the Petitioner, the petition was dismissed for non-prosecution.

2. On 10.07.2024, the Petitioner moved CMA No. 1559 /2024 for restoring the petition. The application is through a fresh counsel. Learned counsel for the Petitioner submitted that even though the Petitioner had paid the professional fee of the previous counsel, he abandoned the case without notice to the Petitioner who was not aware that the petition was listed for non -prosecution on 01-07-2024. He further submitted that the Petitioner suspects that the previous counsel may have been won over by the returned candidate. For restoring the petition, he placed reliance on the case Zulfiqar Ali Khan v. Election Tribunal, Gujranwala (2001 YLR 336). On the other hand, to

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oppose the restoration application the Law Officer of the ECP rel ied on the case of Irshad Ahmed Shad v. Pervez Akhtar (2013 CLC 254).

3. Heard learned counsel for the Petitioner and the Law Officer, ECP.

4. As per section 141 of the Election Act 2017, the Election Tribunal is vested with the powers of a civil court trying a suit under the CPC. That being so, t he dismissal of the petition on 01.07.2024 for failing to deposit cost for issuing summons was essentially a dismissal under Order IX Rule 2 CPC. Against such dismissal, Order IX Rule 4 CPC permits an application for restoration, albeit subject to limitation, if the Petitioner satisfies the Court that there was ‘sufficient cause’ for not depositing the cost for process.

5. The Law Officer, ECP had relied on the case of Irshad Ahmed Shad to submit that the Petitioner was bound by the acts and omission of his counsel, and if the counsel was negligent the n the Petitioner cannot escape the consequence by blaming his counsel. However, that ratio in Irshad Ahmed Shad was in relation to an application to condone delay under section 5 of the Limitation Act in making an application to restore the suit. Though the term ‘sufficient cause’ is used both in section 5 of the Limitation Act and in Order IX Rule s 4 and 9 CPC, in the context of the former it is construed narrowly as limitation confers a valuable defense. On the other hand, the term ‘sufficient cause’ used in Order IX Rules 4 and 9 CPC is construed more libera lly. A more detailed discussion on this aspect appears in Abdullah Khan Usmani v. Securities & Exchange Commission of Pakistan (2022 CLD 821). It is then settled law that ‘sufficient cause’ is something that may vary from case to case.

6. Here, the case is not that the Petitioner or his counsel w ere negligent in depositing cost for the process, but that the previous counsel abandoned the petition for reasons best known to him and without giving notice to the Petitioner of the date fixed by the

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Tribunal. There is also no delay in making the application for restoration. In such circumstances, I am inclined to accept the explanation offered by the Petitioner as sufficient cause for not being able to deposit cost for process within time. Therefore, the application is allowed and the petition is restored along with pending applications. One weeks’ time is allowed for issuing process.

JUDGE Karachi Dated: 22-11-2024

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