' ZIA-UR-REHMAN KHAN, J.---Petitioner Hasnain Faraz being aggrieved of the concurrent findings recorded by the two courts below dated 25-3-2010 and 3-12-2010 whereby his appeal and suit both have been dismissed respectively and his plea for the correction of his date of birth has been declined.
2. Facts of the case in a precise manner are that the petitioner being minor sued the respondents by filing a suit for declaration through his next friend before the court of Senior Civil Judge Peshawar to the effect that his correct date of birth is 12-2-1990, but mistakenly the same has been recorded as 12-2-1989 in the record of the respondents. In the body of the plaint the dates of birth of his other sisters and brother are also mentioned by further averring therein that proper correction with regard to the date of birth be made in the relevant record according to the date of birth mentioned in the birth certificate. After being summoned respondents sought to contest the claim of the petitioner by filing their written statement, wherein they raised many legal and factual objections and the learned trial Court after framing issues and recording pro and contra evidence dismissed the suit of the petitioner. Still dissatisfied, he filed an appeal, but the same also did not bear any fruit, thus the instant revision petition.
3. Learned counsel for the petitioner argued with great vehemence that it is an inalienable and vested right of the petitioner to seek a declaration regarding the change of his date of birth in the relevant record of the respondents, but the courts below without applying their judicial mind, while recording the impugned judgments and decrees, have non-suited him without any justification; that the petitioner through his cogent and overwhelming evidence has duly succeeded in proving his standpoint in a crystal manner, but the courts below through erroneous exercise of their jurisdiction so vested in them have declined the requisite relief to him; that as the petitioner at the time of institution of the suit was minor and has filed the suit through his father as next friend and as he has not derived any worldly gain from the incorrect date of birth, hence his suit for the change of his date of birth can never be held to be tainted with any mala fide; that as all the relevant documents having been produced by the petitioner in support of his respective claim have been exhibited without any objection from the opposite side, thus the same carry presumption of truth, but the courts below have illegally discarded the same from consideration.
Reliance in this regard is placed upon the judgments reported as 2009 YLR 1296, 1997 CLC 262 and 1994 MLD 2008.
4.On the contrary Miss Shakila Advocate while repelling the said contentions of the learned counsel for the respondents supported the impugned judgments and decrees maintaining that the same are the result of due administration of justice and as the petitioner under the law was not entitled to any relief, thus the said judgments being concurrent in nature are impenetrable. In order to vigourate her arguments she further contended that making correction in the date of birth is not a vested right and being so the petition in hand is liable to be dismissed. In order to further augment her arguments she placed reliance upon the judgment of the apex court reported as 2008 SCMR 713.
5. Arguments heard and record perused.
6. As discussed above the sole claim of the petitioner is that his real and correct date of birth according to the birth certificate is 12-2-1990, but in the record of the respondents his date of birth through inadvertence was mentioned as 12-2-1989, which was the sheer negligence of the staff of the school, where he was initially admitted. In this regard he besides declaration has also asked for the grant of mandatory and perpetual injunction. This court is supposed to resolve the controversy in the light of the material available on the record in order to ascertain as to whether the petitioner is entitled to the said relief and whether his pursuit in this regard is based on bona fide or it is tainted with mala fide coupled with the fact as to what type of benefit the petitioner intends to derive from the said correction. In this regard the father of the petitioner as guardian has recorded his statement as P.W.1 The statement of Said Wali Shah Junior Clerk BISE as P.W.2 and Rahmanuddin Clerk Town-I Peshawar as P.W.3., P.W.1 in his court statement has narrated the relevant facts by referring to the birth certificate by exhibiting the same as Exh.P.W.1/1 and Exh.P.W.1/2. Likewise he has also exhibited during the course of his statement the relevant certificates of the rest of his children. It is further averred that when in the year 2006 he acquired knowledge about the incorrect entry of the petitioner's date of birth, he contacted the respondents and asked them for its rectification, but they instead of acceding to his request .Advised him to file a civil suit. He was subjected to lengthy cross-examination in order to prove that it was he, who got his son admitted in the School by telling the School staff about the date of birth of the petitioner. At the same time it was also suggested to him that he and the petitioner both while filling the form for Matric Examination had gained knowledge. This question has been answered in negative, rather the said exercise has been attributed to the School staff. Similarly the statement of P.W.2 is to the effect that the Matric Examination Form was in English and the petitioner or his other sisters being not fully conversant with English language filled their forms through different persons and in different hand writing. Nothing beneficial in nature could be extracted from his mouth.' The last witness P.W.3 has produced the birth certificate and its copy as Exh.P.W.3/2, but no objection whatsoever at that time regarding its admissibility was raised on behalf of the respondents' side.
However, the said certificate pertains to the year 1991. Astonishingly P.W.2 Said Wali Shah has once again appeared, but as D.W.1. In his cross-examination he in categorical terms has admitted that there is no documentary piece of evidence to rebut the claim of the petitioner that 12-2-1990 is not his correct date of birth. He has further admitted that the entry form to "Edwards High School Peshawar City" was filled by the School Administration. The respondents did not produce any other evidence.
7. Both the courts below have mainly non-suited the petitioner on the ground that in view of the judgment referred to above the birth certificate in the matter of seeking correction of date of birth cannot be given preference over the date of birth mentioned in the School record, coupled with the fact that father of the petitioner has given certain incorrect facts in the plaint and his court statement. This approach of the courts below' is not based upon the correct appreciation of the relevant material available on the record. The obvious reason is that from the petitioner's side his birth certificate pertaining to the year 1991 duly issued by the Municipal Corporation has been produced and duly exhibited without any legal objection from the respondents' side. Needless to observe that once a document is tendered in evidence and is properly exhibited without any legal objection, the same shall be presumed to be correct and no objection can later on be raised at a subsequent stage. Reliance in this regard is placed upon a Judgment of the apex court reported as 2005 SCMR 152 Citation "B" titled Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs, relevant citation is reproduced as under:- "Documentary evidence---Objection not raised at the time of recording of evidence---Effect--- When no objection was raised on the documents and the same were allowed to be brought on record by the Court, on objection at a subsequent stage, such documentary evidence could not be discarded."
' Another valuable judgment reported as PLD 2005 Peshawar 69 titled Haji Muhammad Amin v.
Messrs Frontier Ceramics Peshawar Ltd. The relevant citation whereof is as under:-- -------- S. 115 and Order XIII, Rr. 1, 4 & 7 Admission of document in evidence---If a document was once admitted in evidence, objection against its admission was not allowed even at appellate stage what to speak of raising objection at revisional stage".
' Similarly the concerned Clerk while appearing as P.W.2 has made it crystal clear that the form of Matric Examination was in English and was not filled by the petitioner. He has also admitted this fact that the respondents cannot produce any counter evidence to disprove the assertion of the petitioner. The same witness while appearing as D.W. IA has also not produced any material piece of evidence from which it may even remotely be inferred that the petitioner had any conscious knowledge about his incorrect date of birth in the school record or in the Examination Form.
Another unignorable aspect of the case is that the petitioner is a young college going boy and so far he cannot be presumed to have instituted the instant suit with the intention to derive any worldly gain therefrom nor his endeavours in this respect are aimed at causing any adverse or illegal harm either to the policy of the respondents or to anybody else. Reliance in this regard is placed upon a judgment cited by the learned counsel for the petitioner reported as 2009 YLR 1296 tiled "Federal Board of Intermediate and Secondary Education v. Junaid Rahmat" In this case concurrent findings recorded in favour of the plaintiff of the reported case were upheld. Likewise the other Judgment cited at the Bar from Lahore jurisdiction reported as 1997 CLC 262 titled "Ch. Muhammad Latif v. Province of Punjab". In the said case the suit and the appeal of the plaintiff were dismissed, but on revision the concurrent judgments were set aside and the decree as prayed for was granted and the date of birth was corrected as 5-9-1936 instead of 5-6-1939. The last judgment cited at the Bar from Lahore jurisdiction is reported as 1994 MLD 2208 titled "Board of Intermediate and Secondary Education v. Muhammad Zaheer Ahmad". This reported case too on all fours supports the version of the petitioner because in the said case it has been held that such like suit for the correction of the date of birth is triable by the Civil Court under section 9, C.P.C.
Being a court of plenary jurisdiction.
' Insofar as the judgment of the august apex court being relied upon by the learned counsel for the respondents is concerned, with due respect the same is not fully attracted to the facts of the instant case and is distinguishable. Because in the reported case the petitioner sought to rectify his date of birth as 1980 instead of 1976, in order to make himself eligible for contesting the Elections, whereas, in the instant case the petitioner has no such designs. Neither so far he has applied for any post nor his intention is to derive some other gain. It would also not be out of context to mention that each and every case has its own peculiar facts and circumstances and the courts are legally bound to make decisions in the light of the said facts.
' Likewise if his father had some prick of conscience, he would have sought such like relief for his other children as well. Moreover, certain factual mistakes committed by the father in the plaint or in his court statement do not create any estoppel against the petitioner, particularly when the non- grant of the requisite relief on such like ground materially affects his precious career.
' The contention of the learned counsel for the respondents that the impugned findings of facts recorded by the courts below being concurrent in nature cannot be interfered with by this Court in exercise of revisional jurisdiction, even if the same are erroneous in nature, is also not tenable. The reason is that once the High Court comes to an irresistible conclusion that the said findings of facts are perverse, arbitrary or fanciful, the same cannot be termed as 'sacrosanct' and the same do not stand in its way. Reliance in this regard can be placed upon a judgment of the apex court reported as 2001 SCMR 1700 titled "Muhammad Akhtar v. Mst.Manna and three others".
' The short and long of the above discussion is that both the courts have failed to exercise their jurisdiction so vested in them, which refusal has resulted into grave miscarriage of justice. As in view of the aforesaid facts the petitioner has made out a case of indulgence of this Court as a court of supervisory jurisdiction within the ambit of section 115, C.P.C., hence the concurrent findings recorded by the courts below are not sustainable. Resultantly, while accepting the instant petition the said judgments and decrees being the product of misapplication of judicial mind, misconstruction of facts, misreading/non-reading of evidence and the same being based on surmises and conjectures are hereby set aside and the suit of the petitioner is decreed as prayed for, leaving the parties to bear their own costs.