The petitioner Board through this civil revision has assailed the impugned judgment and decree of learned Additional District Judge, Lahore dated 13.3.2015 whereby allowing appeal of the respondent against judgment and decree of learned Civil Judge, Lahore dated 11.6.2013, the declaratory suit filed by the respondent earlier dismissed by the trial court has been decreed.
2. Brief facts of the case are that respondent/plaintif f Azeem Sarwar filed a suit for declaration and mandatory injunction against the petitioner/defenda nt Board of Intermediate & Secondary Education, Lahore through its Chairman and public at large before Civil Court, Lahore, and it was averred in the plaint that his correct date of birth was 6.7.1995 as per his birth certificate and computerized National Identity Card of his father but in his Matriculation certificate issued by the petitioner Board his date of birth was wrongly noted as 6.7.1994 and the name of his father was also mistakenly noted as Muhammad Sarwar instead of Muhammad Sarwar Khan. It was further stated that date of birth of the petitioner in his Matriculation certificate was required to be corrected for another reason that there was an unnatural gap of difference of birth of his elder brother namely Umar Shahzad and the petitioner , which was only one month and four days. In the above situation, the respondent approached the petitioner Board authority for correction of his date of birth and the name of his father in the Matriculation certificate but they refused, hence, need arose to file the declaratory suit and mandatory injunction to the above effect. The suit was contested by the petitioner Board, who controverted the claim of the respondent as false and baseless because the particulars regarding date of birth and parentage of a candidate appearing in Board examination are recorded in their testimonials as per details provided by them. The petitioner Board also challenged the jurisdiction of Civil Court as per Section 29 of the Punjab Board of Intermediate & Secondary Education Act, Lahore, 1976. Out of the divergent pleadings of the parties issues were framed. Evidence of the parties was recorded and after conclusion of trial, the suit was dismissed by the learned trial Judge vide judgment and decree dated 11.6.2013 but in appeal the said judgment was reversed and suit decreed by the learned Additional District Judge, Lahore vide judgment and decree dated 13.3.2015. Hence, this civil revision.
3. The learned counsel for the petitioner has argued that the impugned judgment of the learned appellate court is against law and facts as result of misreading and non-reading of record and evidence because the respondent without availing remedy before the petitioner Board straightaway approached the Civil Court seeking correction of his date of birth on the basis of a birth certificate, which was got issued few months prior to the institution of the suit in the year 2012 and on the basis of a fake story of difference of his age from his elder brother, which was a self-serving plea. Further argued that the respondent nowhere pleaded in his plaint any malafide on the part of Board authority for recording incorrect date of birth or name of his father in the Matric certificate. Further argued that the learned trial court after proper appraisal and scrutiny of oral and documentary evidence of the parties dismissed the suit rightly, which has been unduly and illegally reversed by the learned appellate court by misinterpreting the law, hence, civil revision be accepted. Reliance placed on "Muhammad Arshad and another Vs Mian Noor Ahmad and others" (2008 SCMR 713), "Muhammad Ilyas Vs Bahauddin Zakariya University, Multan and another" (2005 SCMR 961), "Waqas Akram Vs Dr. Muhammad Tahirul Qadri and others" (2003 SCMR 145) and "Board of Intermediate & Secondary Education, Gujranwala through Chairman Vs Sohaib Abbas and 2 others"
4. The respondent was issued notice of this civil revision but he has not appeare d inspite of personal service on notice, hence proceeded against ex parte.
5. Ex-parte arguments of the learned counsel for the petitioner considered. Record perused.
6. In support of his plea, the respondent examined his father Muhammad Sarwar Khan as PW-1 and an acquaintance PW-2 Abdul Razzaq and in documentary evidence produced original birth certificate issued by the Secretary Union Council Mananwala Karpal Singh, District Sheikhupura Ex.P-1, copy of Computerized National Identity Card of his father Exh.P-2, B-Form Exh.P-3 and Matriculation certificate Exh.P-4, while the petitioner Board tendered admission form copy of the respondent as Exh.D-1 and closed its evidence. Appearing as PW-1 the father of the respondent in his examination-in-chief tried to reiterate and support the version of his son while in cross examination frankly conceded that as per petitioner Board rules, he had not approached the said Board authorities for correction of date of birth of his son and his name nor deposited any fee. Further frankly conceded that the petitioner Board has no personal grudge or malafide against his family.
Further conceded that Matric result card was issued on the basis of particulars mentioned in the Admission form.
Statement of PW -2 is just replica support of an acquaintance usually expected from such type of witness.
7. Undisputedly the respondent prior to approaching the Civil Court never exhausted remedy before the petitioner Board for seeking desired correction of his date of birth and name of his father as per requirement of Rule 5 of amended Act and Regulations of the Punjab Board of Intermediate and Secondary Education Act, 1976, which reads as under: - "The date of birth of a candidate who has either applied for appearing in the Secondary School Examination or has already passed the examination, may be corrected; provided that: 1) The application is made within 2 years from the declaration of the result of Secondary School Examination on payment of Rs.1,000/-; or from 2 to 5 years on payment of Rs.2,000/-, or within ten years on payment of Rs.3,000/-; or after ten years on payment of Rs.4,000/- as a special fee; provided further that the fee once received shall not be refunded.
2) The Board is satisfied after enquiry and inspection of School records pertaining to the first admission of a particular candidate in a recognized school that the mistake was due to a clerical error in transferring the date of birth from one record, register or document to another record, register or document.
OR If the entry of the date of birth on first joining a recognized school is not available or is reported to be incorrect, then the birth certificate containing all entries pertaining to his name in the Municipal Birth Register be supplied; provided that the name of the candidate and the name of the father of the candidate are clearly mentioned in these entries; Provided further that the Board shall consider only that entry of date in Municipal Birth Register which is made within one year after birth. (Emphasis mine).
OR If the entry of the date of birth of son/ daughter of a military personnel on first joining a recognized school is available but reported to be incorrect, then the Casualty Report (Birth Certificate) containing all entries pertaining to the name in the Central Officer's Record Office (GHQ) Rawalpindi, and in the relevant regimental centres for other ranks be supplied provided that the name of the candidate and the name of the father of the candidate are clearly mentioned in these entries: OR If the entry of the date of birth of son/ daughter of Air Force/Naval personnel on first joining a recognized school is available but reported to be incorrect, then the Casualty Report (Birth Certificate) containing all entries pertaining to the name in the P.A.F. Record Office, Mauripur, Karachi and the Naval Headquarters, Karachi be supplied provided that the name of the candidate and the name of the father of the candidate are clearly mentioned in these entries.
3) The School records are corrected in the same manner as the records in the office of the Board.
4) Notwithstanding anything contained in this regulation, the Chairman may accept a certificate of a School duly attested by the foreign mission of Pakistan in a foreign country".
8. Claim of the respondent was mainly based upon a birth certificate Exh.P-1 and as per its contents, the birth entry of the respondent was reported to the Secretary Union Council concerned on 20.3.2012 while the suit was filed on 17.7.2012. There is no explanation brought in the evidence as to in which background and situation a new self-serving birth entry was got incorporated in the record of Union Council concerned so late whereas in natural course of events people usually seek incorporation of birth entry at the relevant offices promptly in order to inspire confidence. A story was introduced in the plaint regarding short gap between the ages of two sons of PW-1, which according to him was unnatural. This was again a self-serving plea because usually birth entries are got recorded or reported by the parents themselves. If there was any discrepancy of ages of two sons of PW-1, it was on the face of it self-created and not to be readily believed by the Court unless justified through cogent, convincing and unimpeachable evidence, which was almost non-existent in this case.
9. Matric Certificate issued by the petitioner Board in the name of the respondent Exh.P-4 is bearing the date of birth of the respondent as 6.7.1994 and this document was based upon Admission form submitted by the respondent Exh.D-1, which is bearing his photograph as well as date of birth and duly signed by him and attested by an Assistant Controller, Board of Intermediate & Secondary Education, Lahore. Father of the respondent appearing as PW-1 frankly conceded that the petitioner Board has no grudge or malafide against the respondent or his family . In the entire plaint, there was no such assertion pleaded.
10. Sections 29 and 31 of the Punjab Board of Intermediate & Secondary Education Act, Lahore 1976 clearly oust the jurisdiction of the Civil Court in the matter as in this case. In a case of "Board of Intermediate & Secondary Education, Gujranwala through Chairman Vs Sohaib Abbas and 2 others" (2006 YLR Lahore 1271 ), it has been held by this Court that the above ouster shall not apply where there are allegations of mala fide and lack of good faith on the part of the Board but in the instant case, the plaint has been perused, no such case has been made out by the respondent and resultantly , the bar shall squarely apply . In this regard, guidance is also solicited from the cases of "Muhammad Arshad and another Vs Mian Noor Ahmad and others" (2008 SCMR 713), "Muhammad Ilyas Vs Bahauddin Zakariya University , Multan and another" (2005 SCMR 961), "Waqas Akram Vs Dr. Muhammad Tahirul Qadri and others" ( 2003 SCMR 145 ).
11. Keeping in view the above stated circumstances of this case, the legal position and guidelines provided by the superior courts in mind, the impugned judgment passed by the learned Additional District Judge, Lahore dated 13.3.2015 has been seen and the said learned Judge relying upon some rulings of this Court and the Hon'ble Supreme Court of Pakistan went on to assume the jurisdiction of this case without realizing that the facts and circumstances of this case were not falling in the category of cases discussed in the rulings. The learned appellate court Judge shockingly failed to take notice of glaring violation of petitioner Board rules, committed by the respondent while filing his suit, prescribing a procedure to seek correction of Date of Birth or parentage after payment of requisite fee and conduct of necessary inquiry by Board's responsible official. The said Court did not notice that rule 5 of the Punjab Board of Intermediate & Secondary Education Act Lahore, 1976 clearly provided that the Board shall consider only that entry of date in Municipal Birth Register, which is made within one year after birth. This rule being based on rational wisdom to check or discourage errant persons was also required to be followed by the court. The appellate court also did not consider that no where in the plaint the respondent had pleaded that the petitioner Board had any conceivable ill will or malafide against the respondent, and this element was closely linked with the bar of jurisdiction of Civil Court in view of section 29 and 31 of the Punjab Board of Intermediate & Secondary Education Act Lahore, 1976.
12. Viewed in the above context, the impugned judgment of learned Additiona l District Judge, Lahore dated 13.3.2015 structured on erroneous assumptions and replete with manifold legal and factual infirmities and jurisdictional defect is not sustainable, which is resultantly set aside while allowing this civil revision as prayed for. No order as to costs.