1. This civil revision petition is still at pre-admission stage, thus, with the concurrence of learned counsel for the parties, the same is being heard as PACCA case today and arguments of both the sides have been heard.
2. 2.The findings so arrived at, firstly, by the learned trial Court on 25.01.2007, when plaint of the suit of the present petitioners was rejected and, secondly, when appeal filed against such rejection of plaint was dismissed by learned first appellate Court on 16.04.2009,. are challenged by means of the present civil revision petition.
3. 3.The petitioners were declared pass in matriculation examination held in 1992 and such result became under threat and on receipt of notice intimating the initiation of an inquiry in the year 2003, the same was called in question by the petitioners by filing a declaratory suit on 05.12.2003 highlighting the background of initiation of such inquiry proceedings in the Board of Education by specifically alleging mala fides as against the defendants/respondents in the suit/petition and termed the same as conquerable exercise in collusion with the private respondents, who had a dispute with respondent over issue of lumberyard in the village.
4. Learned trial Court proceeded to reject the plaint of suit holding the same as barred under the provisions of Sections 29 and 31 of The Punjab Boards of Intermediate and Secondary Education Act, 1976 and such findings in appeal, when were called in question by the present petitioners were affirmed by the learned first appellate Court.
5. 4.For ready reference, Sections 29 and 31 of The Punjab Boards of Intermediate and Secondary Education Act, 1976 are reproduced herein below:-- Section 29:--"No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court.
6. Section 31.-No suit for damages or other legal proceedings shall be instituted against Government, the Controller Authority, a Board, a Committee, a member of a Committee or an officer or employee of a Board in respect of anything done or purported to have been done in good faith in pursuance of the provisions of this Act and the regulations and rules made thereunder ".
5. Perusal of the above said provisions of law clearly indicates that the jurisdiction of Civil Courts is absolutely not barred and an aggrieved, person from any act purportedly based on mala fides on the part of a Committee, Board, etc., can competently invoke the plenary jurisdiction of the Civil Courts. The plaintiffs in Paragraph No.4 of their plaint have clearly alleged the mala fides on the part of the defendants.
7. The Honorable Supreme Court of Pakistan in case of Hamid Husain versus Government of West Pakistan and others (1974 SCMR 356) in a matter relating to the Displaced Persons (Land Settlement) Act, 1958, while dealing with the question of bar of jurisdiction of civil Courts has held that even if jurisdiction of Civil Courts is barred and conferred upon special tribunals, Civil Courts being Courts of ultimate jurisdiction still would be competent to examine the acts of such forums by eventuality if such acts are in accordance with law, or illegal or even mala fide.
8. In another case of Board of Intermediate and Secondary Education and others versus Khalil Ahmad and others (2008 PLC (C.S) 270) while dealing with the effect of Sections 29 and 31 of The Punjab Boards of Intermediate and Secondary Education Act, 1976, the Hon'ble Supreme Court of Pakistan has authoritatively held that such provisions did .not oust the jurisdiction of civil Courts generally but only barred suits against the officials of Board acting in good faith, as such, jurisdiction of civil Courts was not completely ousted preventing the civil Courts to examine as to whether action taken was within the framework of law.
9. This Court in a matter relating to the provisions of The Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), in case of Board of Intermediate and Secondary Education through Chairman and 4 others versus Shahid Javed Shaheen and 2 others' (2006 YLR 687) has held that Civil Court is competent to examine the validity of the proceedings being carried out before any administrative committee of the Education Board and to see as to whether any act also done by such committee is in accordance with law or otherwise.
10. 6.Learned counsel for the respondent-Board has argued that after filing of suit by the petitioners, the result of petitioners stood cancelled by the Board and, therefore, the suit was rightly held having become infrastructure and plaint of the suit was rightly rejected.
11. Such act on the part of the Board is in clear violation of a restraint order passed by the learned Civil Judge, Layyah on 05.12.2003, whereby, the Board Authorities were specifically restrainled from cancelling the matriculation certificates of the petitioners. The said conjunctive order was never specifically recalled at any subsequent stage and, thus, the rejection of plaint on the ground that on account of such cancellation of result, the suit had become infrastructure, was, in fact, not an order covered under any eventuality provided in the provisions of Order VII Rule 11 CPC.
12. 7.Learned counsel for the petitioners has rightly pointed out towards an order passed by this Court on 28.02.2005 while disposing of Writ Petition No.2445 of 2004 holding that the question involved in the suit of the petitioners did require the recording of evidence.
8. Depriving the petitioners to establish their stance taken in the plaint by non-suiting them at initial stage Without providing opportunity to produce evidence and that too on a consideration, which is not available in the penal provisions of Order VII Rule 11 CPC are acts on the part of the Courts below, which have no legal Sanction. The suit of the plaintiffs deserve a fledged trial and technical knock out was not the appropriate answer. Both the judgments under challenge are not sustainable and the same are, therefore, set aside by accepting this civil revision petition.
13. 9.The suit titled "Akbar Ali and another versus Board of Intermediate and Secondary Education and others" would be deemed to be pending before the learned trial Court and it will be decided on merits after affording complete opportunity to the parties to adduce their respective evidence.