Brief facts of the case are that the petitioner filed a declaratory suit on 12-5-1993, claiming his correct date of birth as 5-12-1942 and sought correction of his date of birth mentioned in his matriculation certificate issued on 2-11-1955, against the Roll No,39614 to be entered as 9-6-1939. It is further prayed that the respondents, Pakistan Railway be directed to correct his date of birth in the petitioner's service record maintained by them. It is to be noted that at the time when the instant suit was filed, the petitioner was serving as Superintendent of Police (Railway), however, presently he stands retired from his service.
2. It is submitted by the learned counsel for Respondents Nos.1 and2 that during pendency of the suit, the petitioner's date of birth was corrected by the said respondents in accordance with law as prayed by him through the instant suit.
3. The suit was contested by Respondent No,3 only. However, the learned trial Court vide judgment and decree dated 8-4-1997, decreed the suit of the petitioner. This judgment and decree was assailed through an appeal by Respondent No,3, Pakistan Railway, which was allowed by the learned Additional District Judge vide order dated 17-7-1998 and the case was remanded to learned trial Court for summoning the original record of the petitioner and thereafter giving findings on Issue No,1 again. The learned trial Court vide Judgment and decree dated 27-11-1998, however, again decreed the suit of the petitioner. This judgment and decree was again assailed through an appeal by the Pakistan Railway. During the hearing of appeal, the learned Appellate Court sent back the file to the learned trial Court for recording its findings on Issues Nos.2 to 4. The learned trial Court on 20-6-2000, recorded the directed findings and sent the file to the learned Appellate Court. The learned lower Appellate Court vide, judgment and decree dated 23-1-2001, accepted the appeal and dismissed the suit. This judgment and decree is being assailed through the instant civil revision.
4. Learned counsel for the petitioner contends that although thedate of birth of the petitioner as prayed through the instant suit already stood corrected by Respondents Nos.1 and 2 on their own, therefore, Undoubtedly, his first prayer for the correction of date of birth had fructified but at the same time, his second prayer for the incorporation of the correct date of birth in his service record, a direction of the Civil Court was needed. It is further submitted that the correction of date of birth in the service record does not relate to the terms and conditions of a Civil Servant and a Civil Court can pass an appropriate decree issuing such a direction to the Department. Relies on PLC 1997 SC 1122. It isfurther argued that the appeal filed by Respondent No,3 Pakistan Railway before the learned lower Appellate Court was barred by time, inasmuch as, the judgment of the trial Court was dated 27-11-1998. Respondent No,3 applied for certified copies on 30-11-1998, the same were prepared on 15-12-1998 and delivered to Respondent No,3 on 17-12-1998 but the appeal was filed on 4-2-1999. Respondent No,3 along with the appeal filed an application under section 5 of the Limitation Act for condonation of delay. In the said application it was pleaded that their learned counsel Sh. Raheem Nawaz, Advocate had obtained the copies according to the above-referred schedule but had misplaced the same, therefore, fresh copies were obtained and appeal was filed beyond the period of limitation. It is thus contended that in support of this plea no affidavit of the learned counsel was placed on record to substantiate their contention. The affidavit, which was placed on record and relied by the learned Appellate Court was of one Ghulam Murtaza Haider, Litigation Assistant of the Pakistan Railway, who by no means could state the facts narrated in the application for condonation of delay. Therefore, the appeal should have been dismissed on this ground as well.
5. Learned counsel for Respondents Nos.1 and 2 does not contested this petition on the ground that the said respondents have already made necessary correction in date of birth of the petitioner, therefore, they are no more interested to contest instant petition.
6. Learned counsel for Respondent No,3 was present in Court in the earlier hours of the day. The case was taken up before break and was partly heard. It was again taken up after the break but the learned counsel for the Respondent No,3 does not appear to be very much interested in this case as he has not turned up despite the fact that it is about 12.00 (Noon) by now.
7. I have considered the arguments of the learned counsel for the parties present.
8. Undoubtedly, the prayer to the petitioner to the extent of hiscorrection of date of birth to be made by Respondents Nos.1 & 2 had fructified during the pendency of the suit as stated by the learned counsel for Respondents Nos.1 & 2, therefore, no decree was required to be passed by the Civil Court in that regard as Respondents Nos.1 and 2 are legally competent to correct the date of birth of any applicant.
9. So far as second prayer of the petitioner for incorporation of his date of birth in his service record is concerned, appears to be correct, keeping in view the law laid down by the Hon'ble Karachi High Court reported as PLC 1997 CS 1122, as to this extent the prayer as held by the Karachi High Court does not relate to the terms and conditions of civil servant.
10. So far as the question of limitation of appeal in the lower forum is concerned, the contention of the learned counsel for the petitioner appears to be correct inasmuch as according to application under section 5 of the Limitation Act, the certified copies originally obtained by the Respondent No,3 were misplaced by their learned counsel Sh. Raheem Nawaz, Advocate, therefore, Respondent No,3 had to obtain a fresh copy for filing an appeal. To substantiate this plea, the only relevant person was the learned counsel for Respondent No,3, who had obtained these copies i.e, Sh.
Raheem Nawaz, Advocate. His affidavit was not placed on record to establish. Their this contention.
The affidavit of Ghulam Murtaza Haider, Litigation Assistant relied by the learned Appellate Court was of no assistance for the purpose of condonation of delay in filing the appeal before the learned lower Appellate Court, therefore, the appeal filed by Respondent No,3 before the learned lower Appellate Court was also barred by time as Respondent No,3 could not successfully make out a case for its condonation.
11. For what has been stated above, this civil revision is allowed, the Judgment and decree passed by the learned Appellate Court dated 23-1-2001 is set aside. No order as to costs.