The petitioner has preferred this revision application against the judgment dated 17.2.2014 passed by the learned 1st Additional District Judge, Malir in Civil Appeal No,29/2013 and prayed that the appellate judgment be set aside and the order passed by learned IInd Senior Civil Judge, Malir on 7.9.2013 in Suit No, 172/2013 be maintained/restored.
2. The brief facts of the case are that the Respondent No,1 was employed by the applicant on 22.3.1977. He filed a suit No, 172/2013 for declaration & permanent injunction for the correction of his date of birth as 20.4.1955 instead of 11.09.53 and to allow him to perform his duty till 19.4.2015.
3. The applicant had filed its written statement and also filed an application under Order 7 Rule 11 CPC on the ground that the civil Court has no jurisdiction to proceed with the matter and the suit was barred by law. After hearing both the parties the learned trial Court rejected the plaint vide order dated 7.9.2013. On filing appeal against the said order the learned 1st ADJ Malir set-aside the order and remanded the matter back to the trial Court for deciding the case on merits.
4. Learned counsel for the applicant argued that the impugned judgment is unjust, improper and is liable to be set-aside. He further argued that learned appellate Court has failed to apply objective approach which resulted miscarriage of justice. The appellate Court ought to have considered the fact that the respondent has already been retired from his service on 10.9.2013. Learned counsel argued that the suit was time barred and the learned Civil Court had no jurisdiction to decide a matter concerning service of an employee of a public corporation. Learned counsel for the applicant further argued that the learned appellate Court has ignored the official service record of the Respondent No, 1 which remained unchallenged for more than 30 years and at the verge of his retirement he filed application for correction of his date of birth.
5. On the contrary, the counsel for the Respondent No, 1 argued that the trial Court rejected the plaint without considering the Secondary School Certificate of the Respondent No, 1 wherein his date of birth was mentioned as 20.04.1955 and when he came to know this error, he immediately approached to the applicant for making necessary correction. He further argued that no illegality or irregularity has been shown by the applicant in the impugned order for maintaining this revision application. The learned appellate Court after applying its mind properly remanded the matter back to the trial Court for decision on merits. The controversy raised in the plaint as well as the written statement filed by the Pakistan Steel Mills cannot be thrashed out unless the evidence is recorded. He made reliance on various documents which are annexed with the objection/counter affidavit submitted by the Respondent No,
1. He also referred to the order passed by this Court on 23.05.2013 in civil revision Application No, 240/2011 wherein the same controversy was raised and the correction of date of birth was allowed not only in the suit but the order passed in the suit was maintained in the appellate Court also. Against the concurrent findings the revision application was dismissed by this Court in limine thereafter, the same applicant challenged the revisional order in the honourable Supreme Court in Civil Petition No, 360-K/2013 but the leave was refused.
6. Heard the arguments. The Respondent No, 1 has filed his Secondary School Certificate dated 8th December 1973 in which his date of birth is 20.04.1955. He has shown the Pakistan Steel Medical Identity card in which also his date of birth is 20.04.1955 so also the same date is mentioned in the E.O.B.I, registration card. One application dated 31.12.1992 is also attached which shows that he requested for the correction of his date of Mirth on the basis of his matriculation certificate. Two more documents are also available to show that on submission of his matriculation certificate, Pakistan Steel Mills moved for the verification of the matriculation certificate and Board of Intermediate Secondary Education Peshawar on 25.02.2012 verified the matriculation certificate to be true and correct. Even the Respondent No, 1 attached his joining report in which his date was allegedly corrected and shown as 20.4.1955 and he has also attached the copy of list of employees dated 10.03.2011, issued by the Pakistan Steel Mills in which at Serial No, 70, the name of Respondent No, 1 is mentioned with his date of birth as 20.4.1955 and date of retirement is 20.4.2015. The counsel for the applicant disputed the authenticity of this list of employees. Two more documents are available on record to show that the applicant has corrected the date of birth of two employees so the Respondent No,
1. Claims the same treatment.
7. Recently I have decided Civil Revision Application No, 174/2010. (P.N.S.O Versus Seaward Surveyors) in which it was held that the Revisional jurisdiction of High Court is always discretionary and equitable in nature and no party is entitled to it as of right. Object of superior Courts while exercising its discretionary jurisdiction is to foster the ends of justice, preserve the rights of parties and to right a wrong and, keeping the object in view, it may in equity, set aside or annul a void judgment of declined to enforce it by refusing to intervene in the circumstances of the case. To me neither any case is made out in which the appellate Court exercised the jurisdiction not vested in it nor committed any failure to exercise a jurisdiction so vested nor the counsel for the applicant succeeded to demonstrate that the learned appellate Court exercised its jurisdiction illegally or with material irregularity. Moreover, it is also well known principle of law that a civil revision, at the instance of a litigant is maintainable on satisfaction of the following circumstances cumulatively, viz.:--
(a) (i) impugned order amounts to a case decided.
(ii) such order must have been passed by any Court subordinate to such High Court.
(iii) such order must not be appealable one.
(b) there must be allegation of jurisdictional error, i.e., to say:
(i) exercise of jurisdiction not vested in the Court below by law, or
(ii) a jurisdiction vested in it by law was failed to be exercised, and/or
(iii) has acted in the exercise of its jurisdiction illegally or with material irregularity.
8. After considering the pros and cons and the documents available on record, there is no hesitation in my mind to grasp that the controversy involved herein cannot be resolved without leading evidence. The question of limitation if any in this case is also a mix question of law and fact.
The applicant claims that the suit was time barred for the sole reason that the Respondent No, 1 applied belatedly on the contrary, the Respondent No, I tried to demonstrate that his date of birth was corrected much earlier or even at the time of submitting his joining report and he has also attached a list of employees issued by the applicant's H.R Department with the date of birth and retirement. Even this question cannot be decided in isolation unless evidence is allowed to be adduced by the parties as a whole or en masse. Similar controversy was raised by another employee of the applicant and he filed the suit which was decreed. The applicant had filed Revision Application No, 240/2011 in this Court which was dismissed thereafter Civil Petition No, 360- K/2013 (Pakistan Steel Mills Corporation vs. Muhammad Ali) was filed in the Supreme Court but the leave was refused and orders passed for making correction in the date of birth were maintained.
9. This revision application was dismissed by a short order passed on 26.8.2014. The above are the reasons. It is clarified that this order will not affect the merits of the case and the trial Court shall decide the matter in accordance with law.