The petitioner filed a suit for a declaration that his date of birth according to the birth certificate is 27th May, 1924, with a consequential relief that he is entitled to serve the respondent in accordance with the same. He also prayed for an injunction that the respondents may be directed to correct his service roll accordingly. The respondent in his written statement raised certain preliminary objections about jurisdiction and also stated that the suit was barred by time. It did not challenge the contention of the petitioner in fact but stated that as he had himself given his date of birth as Ist of October, 1922, he should not be allowed to raise this plea after 34 years. The trial Court framed the following issues and after the necessary proceedings decreed the suit, finding all the Issues in petitioner's favour :
(1) Whether the civil Court has no jurisdiction to try the suit ?
(2) Whether the plaintiff is estopped to file the present suit ?
(3) Whether the suit is within time ?
(4) What is the correct date of birth of the plaintiff ?
(5) Relief. .
2. The respondent took an appeal. It came up. Before the Additional District Judge, Faisalabad who reversed the decree by holding that the petitioner was estopped to file the suit. It is that order which has been challenged through the present revision petition in this Court.
3. It is contended by the learned counsel that the trial Court erred in law in holding that the Doctrine of. Estoppel applied to this case. The learned counsel for the respondent on the other hand submitted that as the petitioner had taken advantage by securing a post' at a time when he in fact was not of age and would not have been permitted to join, if he had supplied the birth certificate, now being relied upon, he is estopped from relying on the birth certificate. Section 115 of the Evidence Act reads as under : "Estoppel.-When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
It would be seen that the essential elements of estoppel are :
(1) A representation in any form, a declaration, act or omission
(2) The representation must have been of the existence of a fact and not of premises de future or intention which might or might not be enforceable in contract.
(3) The representation must have been made under circumstances which amounted to an intentional causing or permitting belief in another. The proof of the intent may be direct or circumstantial, e. g. By conduct. It is not necessary that there should be a design to mislead or any fraudulent intention. Representation even when made innocently or mistakenly may operate as an estoppel.
(4) Some person must have believed the representation to be true.
(5) That person must have acted on the belief so induced and been thus led to change his former position thereby to his prejudice.
(6) The misrepresentation, conduct or negligence must have been the proximate and not the remote cause of leading the other party to act to his prejudice.
(7) The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel."
4. The facts as found by the two Courts below are that the petitioner entered the service on the basis of a medical examination. It, therefore, cannot be said that it was he who made any representation which persuaded the respondent to change its position. The respondents thus proceeded to recruit the petitioner not on his representation but on the basis of a medical examination. It was held in Ghulam Rasool v. Chief Administrator of Auqaf (PLD 1971 SC 136) that "It is true that to raise an estoppel here must be something in the nature of a representation by the party against whom it is pleaded as a result of which the party to whom it is made has been induced to take a particular course of conduct, but here the question raised is not strictly one of estoppel."
It cannot be said that the principle of Estoppel would apply to his case.
5. The learned counsel then submitted that even if it be conceded for the sake of arguments that the principle of estoppel did not apply, this Court has no jurisdiction to upset the order of the lower Appellate Court in revisional jurisdiction. He relied on S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 Kar.
149) to say that as the Courts below were empowered to decide the case one way or the other, the impugned order does not fall within the mischief of section 115, C. P. C. He also relied on Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (PLD 1970 SC 288) and Malik Hadayat Ullah and 2 others v. Murad All Khan (PLD 1972 SC 69). It was held in the Karachi case that: "Section 115 of the Code of Civil Procedure does not concern itself directly with justice or injustice. It is not the power to substitute what appears to the revisional Court to be correct view of a merit of a case whether legal or factual for a view of the merits of the case that appears to it to be erroneous-It is on the contrary concerned only with the exercise of jurisdiction. If no jurisdiction that is not vested- is exercised ; if no jurisdiction that is vested is declined, and if in the exercise of a jurisdiction that is vested, no one has acted illegally or with material irregularity the question of using powers under section 115 does not arise, however, gross an error of law or fact might have been committed in the determination of the merits of the claim and however, grave the injustice might be."
6. 1t will be seen from the above that the Court has the jurisdiction in a case where the jurisdiction has been exercised illegally or with material irregularity. This is what is stated in section 115, C. P. C.
In the case in' hand, the Additional District Judge did have the jurisdiction to interfered but he could not do so by interpreting the Doctrine of Estoppel illegally and' against its purport. As the concept of estoppel has been well established' , the Additional District Judge was not empowered to interpret it in violation thereof. His order, therefore, could be interfered with.
7. The rule in the case of Umar Dad Khan referred to, does not apply to the present case. !n that case the appellant having not felt satisfied with the report of the Examiner applied to the trial Court for further comparison of the signatures on the questioned documents. After his prayer was refused. On the ground that it will serve no useful purpose, to call the Expert for further comparison, the appellant filed a revision petition. It was in that situation that the Court held that there was no jurisdiction for the High Court to interfere with the order of the trial Court under section 115 (c) of the C. P. C. The Supreme Court in the case of Malik Hadayat Ullah mentioned above, held that the - High Court could hold under section 115, C. P. C. That the Court below acted illegally or with material irregularity. The Supreme Court found that an order extending time for depositing the pre-emption money was not revisable under the above provision.
8. The case in hand is, however, entirely different. Here the lower appellate Court set aside the decree passed in favour of the appellant on a ground which is not supported by the law relied upon. Consequently, it can be safely said that the lower appellate Court acted illegally in reversing the decree on the basis of the principle of estoppel which in law was not attracted. The contention of the learned counsel for the respondent on this score, therefore, cannot be accepted.
9. The learned counsel for the respondent then referred to Issue No. 1 and stated that though the trial Court could give a judgment with regard to the Ist part of the relief claimed in the suit, it could not issue any injunction that the service book of the petitioner may be corrected accordingly. It is to be noted that the moment it is held that the petitioner was born on 27th May, 1924 and not on Ist October, 1932, he would become entitled to retire on his attaining the age of 60 years, under section 13 of the Civil Servants Act. The petitioner in that situation could also serve on the respondent even a declaratory decree for the correction of the record and the respondent, being a Government, would be obliged to honour the decree of its own Court. In any cage, in the event of denial on the part of the respondent, the petitioner would be entitled to go to the Services Tribunal for a relief. The contention of the learned counsel, therefore, has no merit on that score.
10. At any rate, the question as to who has the power to decide about the age of a person would not fall within the jurisdiction of the Tribunal. The civil Court does have the power to decide it as it is not one of the terms of conditions as such. The date of birth, in service matters acquires a significance, only to determine the ultimate date of retirement and the Tribunal shall be entitled to go into the matter only in accordance with the record. Consequently, if a petitioner has a decree about his date of birth in his favour and has also informed the Government about it, then and only then a petitioner shall be entitled to file an appeal, to say that the decree has not been followed. It will thus appear that the jurisdiction of the Tribunal starts after the decree and not before.
11. The learned counsel then submitted that the very suit was barred by time and ought to have been dismissed under section 3 of the Limitation Act. Even this contention has no force. The petitioner is not challenging the order of his recruitment made on 1st of October, 1940. What he is saying is that his date of birth recorded on the bassis of medical examination be corrected to fall in line with his birth certificate. Article 14 of the Limitation Act reads as under : "14.T o set aside anyOne year.The date of the act or order ofact or order. an officer of Government in his official capacity, not herein other- wise expressly provided for.
12. It will thus be seen that the original action taken was the recruitmen and rest of it were the particulars. No challenge was made against the order of recruitment. The objection was only against the date of birth recorded therein. Consequently, the case is not covered by Article 14, and the residuary Article 120 will apply. The cause of action would also arise after the respondent refused to correct his record. Admittedly, the suit was within time from that date. Even this contention has no force.