Mst. Surriya Andleeb Plaintiff/Respondent No. 1, had on 21.10.2000 filed a suit for declaration to the effect that the letter dated 17.1.2000 issued by the Board of Intermediate and Secondary Education, Sargodha (defendant/Petitioner No. 1) was illegal and without lawful authority and thus, inoperative against her rights and further that the show-cause notice issued by the Medical Superintendent, DHQ Hospital, T.T.Singh (Defendant No. 3/Respondent No. 2 herein) vide No. 4828/MS dated 30.9.2000 was likewise without, any legal consequence. As a consequential relief, the three defendants/two petitioners and Respondent No. 2 herein, were sought to be restrained permanently from giving effect to the aforesaid orders dated 17.1.2000 and show-cause notice dated 30.9.2000.
2. Earlier to the filing of the present suit, Respondent No. 1 had filed Writ Petition No. 15540/1999 challenging the memo. No. 3113 dated 16.3.1991 of the Responderit/Petitioner No. 1 mainly on the ground that she was not heard; that the notices were issued on her previous address and that the Board was obliged to give a proclamation in the newspaper before passing any adverse order against her. The writ petition was accepted vide judgment dated 16.9.1999 rendered by a learned Single Judge of this Court. The decision of the Board dated 16.3.1991 was set aside with the direction that a fresh order be passed after hearing the writ petitioner Mst. Surriya Andleeb. To that extent, the matter presented a fait accompli.
3. In pursuance of the aforementioned judgment of this Court, the petitioner Board passed fresh orders after taking report dated 23.12.1999 (Ex.D.17) from a private handwriting expert, namely, Muhammad Ashraf Mallick. It was thereupon that the present suit was filed by Mst. Surriya Andleeb/Respondent No. 1 as mentioned in Para 1 of this judgment.
4. Defendants Nos.1 and 2 i.e. Board of Intermediate and Secondary Education, Sargodha and the Controller of Examination, Board of Intermediate and Secondary Education, Sargodha, (the petitioners herein) filed a joint written statement on 12.3.2002, pleading estoppel, bad form of the suit, lack of jurisdiction and vexatiousness of the suit as preliminary objections. On facts, it was averred that the Board had received a complaint that the Plaintiff/Respondent No. 1 had appeared in place of Mst. Shahnaz Akhtar Roll No. 5477 in the Matriculation examination held in Autumn 1986 and for Mst. Safia Begun Roll No. 16935 for Matriculation examination held in Spring (Annual) 1987. It was alleged that Mst. Surriya Andleeb had committed impersonation and cheating. However, Defendant No. 3 (M.S. DHQ Hospital, TT Singh) allowed the proceedings of the suit to go ex parte against him. Accordingly, from 12.3.2002 on-wards, the proceedings continued ex parte against him.
5. On the pleadings of the contesting parties, the learned Civil Judge, Sargodha framed the following issues on 22.4.2002:-- "ISSUES:--
1. Whether the plaintiff is, entitled to the decree for declaration and permanent injunction as prayed for? OPP
2. Whether the civil Court lacks jurisdiction to try the suit in hand? OPD
3. Whether the suit is not maintainable in its present form? OPD
4. Whether the plaintiff is estopped by her own words and conduct to file the instant suit? OPD
5. Whether the suit of the plaintiff is incorrect and liable to be dismissed? OPD
6. Whether the suit of the plaintiff is quite baseless and answering defendants are entitled to special costs u/S. 35-A CPC and the same is also time barred? OPP
7. Relief."
6. The parties led evidence for and against the above issues. On behalf of the plaintiff Azhar Iqbal Junior Clerk, Government College for Women, Karkhana Bazar, Faisalabad was examined as PW. 1.
He produced authority letter Ex.P.1 and the certificate Ex.P.2 showing that Mst. Surriya Andleeb was regular student of Government College for Women, Karkhana Bazar, Faisalabad. Miss Surriya Andleeb Plaintiff/ Respondent No. 1 herself appeared as PW.2 and supported the averments in the plaint. She denied having appeared for Mst. Shahnaz Akhtar or Mst. Safia Begum in the Matriculation examination of Autumn 1986 and Annual examination 1987. She claimed that the Matriculation certificate issued to her under Roll No. 15949 in the year 1986 could not be cancelled anywise. She examined Kh. Iftikhar Hussain as PW.3/Superintendent Board of Intermediate and Secondary Education, Sargodha who stated that he had not found the plaintiff having ever committed impersonation during the conduct of relevant examination and that no inquiry was ever held in that context by way of comparison of the handwriting of the plaintiff (PW.2) with the alleged writings on the papers relating to Mst. Shahnaz Akhtar and Mst. Safia Begum. He further stated that neither the Superintendent Examination nor the Investigators were ever examined.
7. On the other hand, the contesting defendants/petitioners examined Hassan Ali, Senior Clerk Board of Intermediate & Secondary Education, Sargodha as D.W.1. He produced documents Ex.D.1 to Ex.D.19.
8. After his examination, evidence was closed on behalf of the contesting defendants/revision- petitioners.
9. On conclusion of the trial, the learned Civil Judge, Sargodha vide judgment dated 17.5.2004 dismissed the suit with costs. While recording. findings on Issue No. 1 he held that impersonation stood proved against the Plaintiff/Respondent No. 1. He found Issues No. 2 to 6 against the contesting defendants for want of "convincing and cogent" evidence.
10.However, in appeal, findings on Issue No. 1 were reversed" while those on Issues No. 2 to 6 were upheld. Issues No. 2 and 3 were taken up together and likewise Issues No. 4, 5 and 6 were also dealt with jointly. Consequently, the suit was decreed vide judgment dated 20.6.2005 recorded by Ch. Anwaar Ahmad Khan, learned Additional District Judge, Sargodha.
11.I have heard learned counsel for the petitioners and learned counsel for the respondents. I have also gone through the evidence and the judgments/decreed rendered by the two Courts below.
12.Taking up Issue No. 1, I find that Mst. Surriya Andleeb while appearing as PW.2 had denied having ever appeared for Mst. Shahnaz Akhtar Roll No. 5477 in Autumn 1986 and for Mst. Safia Begum Roll No. 16935 in Annual 1987, as was alleged against her. During cross-examination she stated that she was employed in Health Department. He denied the suggestion that she had appeared for Mst. Safia Begum in the examination, and volunteered that she did not know her. Her case was that complaint against her was actuated by her maternal uncle whose daughter Mst.
Shahnaz Akhtar had contracted a love marriage, because he entertained a suspicion that she (the plaintiff) was instrumental to the love affair. No suggestion was, put to her during cross- examination as to her appearance for Mst. Safia Begum. To that extent, her statement on oath emerged unscathed. She made a positive statement denying the allegation but she was not cross-examined on material particulars. Kh. Iftikhar Hussain (PW.3) Superintendent, Board of Intermediate and Secondary Education, Sargodha excluded any sort of impersonation on the part of the plaintiff Mst. Surriya Andleeb. He admitted that report of private handwriting expert was obtained on 30.11.1999 after the orders of the Hon'ble High Court.
13.Hassan Ali, Senior Clerk appearing as DW. 1 on behalf of contesting defendants/petitioners had no direct knowledge as to the alleged impersonation. He submitted documents Ex.D.1 to Ex.D.19.
Ex.D.1 was a copy of the complaint on the basis of which proceedings were started against the Plaintiff/Respondent No. 1. However, it was only photocopy. He admitted that in his record, too, there was no original of the complaint and that the same contained only a photocopy. He also admitted that it was an anonymous complaint because it did not disclose the name of the complainant.
D.W.1 further submitted that it was only under the orders dated 16.9.1999 of the High Court passed in W.P. No. 15540/1999 that opinion of handwriting expert was taken. He admitted that handwriting expert was not summoned while conducting proceedings in their office and that a copy of his report was also never given to the plaintiff. He further admitted that the plaintiff was not given any opportunity to meet the said report.
14.I find that report of the handwriting expert is on record as Ex.D.17. It is a photostat and is indeed not legible. The expert Muhammad Ashraf Mallick was a private person and the report submitted by him cannot be held to have been proved on record particularly when he never appeared before the Board or the Court to testify the same with an opportunity to the plaintiff to cross-examine him.
The plaintiff through her evidence as discussed above, had raised a presumption against the alleged impersonation and it then lay upon the contesting defendants/petitioners to have proved the alleged impersonation. In civil matters when entire evidence is recorded, burden of proof does not remain constant. In other words, it remains on being changed. There is no dearth of authority on the point. Except the report Ex.D.17, there was no connecting evidence against the Plaintiff/Respondent No. 1 brought on record by the revision-petitioners. For aforementioned reasons, photocopy of the report Ex.D.17, which was neither testified by its author nor proved by any other method recognized by Qanoon-e-Shahadat Order, 1984, was rightly claimed to have no evidentiary value.
15.The members of the Secondary Board/Petitioner No. 1 had only relied on the report of the expert. Likewise, the learned Civil Judge while non-suiting the Plaintiff/Respondent No. 1 vide judgment dated 17.5.2004 mainly relied on the report Ex.D. 17 of private handwriting expert. They were not justified on placing explicit reliance on Ex.D.17. I have already given reasons for attaching little value to Ex.D.17. The learned Additional District Judge vide his appellate judgment dated 20.6.2005 was right in excluding from consideration the report Ex.D.17 while reversing findings on Issue No. 1. He was final Court of fact and I see no reason to disagree with him in the exercise of revisional jurisdiction.
16.While taking up Issue No. 2, learned counsel for the petitioner referring to the provisions of Sections 29-30 of the Punjab Board of Intermediate and Secondary Education Act, 1976, contended that the Civil Court had no jurisdiction. It may be noted that the learned Civil Judge had decided Issue No. 2 against the Petitioners/Defendants Nos.1 and 2 vide his judgment dated 17.5.2004. The Plaintiff/ Respondent No. 1 had filed appeal but the findings on Issue. No. 2 were not challenged by the revision-petitioners by way of cross-objections. Be that as it may, it may be noted that Civil Court is a Court of ultimate jurisdiction and is always competent to examine whether the orders brought before it for judicial scrutiny were in accordance with legal framework and if those did not suffer from mala fides. Reliance may be placed on Abdul Rauf Vs. Abdul Hameed Khan (PLD 1965 SC 671), Hamid Hussain Vs. Government of West Pakistan (1974 SCM R 356), Abbasia Bank Vs. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 3) and Board of Intermediate & Secondary Education Vs. Shahid Javed Shaheen (2006 YLR 687).
17.Reliance on behalf of petitioners on Muhammad Rafiq Vs. Board of Intermediate & Secondary Education (1983 SCM R 1024), Board of Intermediate & Secondary Education Vs. Ch. Anjum Pervaiz (1989 CLC 1964), Muhammad Yasin Vs. Board of Intermediate & Secondary Education (1997 CLC 587) and Mst. Shahida Vs. Board of Intermediate & Secondary Education (PLD 2001 SC 26) was not much apt. Those authorities were in different situations. The jurisdiction of the Civil Court is only barred if the orders impugned before it are within the framework of law passed with due care and attention.
18.I, therefore, hold that the Civil Court had the jurisdiction to adjudicate upon the present case.
19.Issue No. 3. There was nothing wrong with the, form of the suit. In any case, no claim can be defeated on mere bad form of the suit.
20.Issues Nos. 4, 5 and 6. In purview of evidence recorded on the aforementioned issues, the plaintiff could not be held estopped by her word and conduct. Her suit could not be dubbed as baseless or false. All procedural laws are framed for advancing justice and genuine claims cannot be smothered on technicalities.
21.Nothing substantial was likely to turn upon the argument that while recording judgment. by the learned Appellate Court, provisions of Order XX rule 5 CPC were not followed. It may be noted that Rule 5 ibid only ordains that Court should state its decision on each issue unless the findings upon any one or more of the issues is sufficient for the decision of the suit. In the present case, Issue No. 1 was crucial, which was decided against the petitioners. There being no evidence led on behalf of the Petitioners/Defendants Nos. 1 and 2, monotonous repetition could well be avoided. Moreover, Section 99 CPC directs that no decree shall be reversed or substantially varied ...., on account of any C error or defect or irregularity not affecting the merits of the case or the jurisdiction of the Court.
22.It was ruled in Alla-ud-Din Butt Vs. Qamar-ud-Din Butt (2006 CLC 1863) that a Court of appeal being the superior Court of fact could always disagree with the learned trial Court while recording findings on issues.
23. I do not find any illegality or error in the judgment and decree dated 20.5.2005 rendered by the learned Additional District Judge, Sargodha decreeing the suit of Respondent No. 1 in terms of prayers. There appears to be no justification to interfere with the same in the exercise of revisional jurisdiction of this Court. Resultantly, while upholding the judgment/decree of the learned appellate judgment/decree dated 20.5.2005, dismiss the revision petition with costs.