This constitutional petition is directed against the order dated 21.07.2014 passed by learned Additional District Judge, Sheikhupura whereby civil revision filed by Respondent No, 2 was allowed and order dated 30.04.2014 passed by learned Civil Judge, Sheikhupura was set-aside with the result that application under Section 12(2) read with Order IX Rule 13, CPC filed by the petitioner/Board was dismissed.
2. The brief facts of the case are that Respondent No, 2 appeared in Secondary School Certificate examination in 2009 under Roll No, 185714 and passed the examination. Thereafter he applied to the petitioner/Board for change of his name from Syed Amir Shah to Aamir Sajjad and date of birth from 09.04.1992 to 02.04.1990. The petitioner Board changed the name of Respondent No, 2 in its record but refused to change the date of birth. The Respondent No, 2 filed a suit for declaration and mandatory injunction against the petitioner Board and the Punjab Government High School, Chak No, 7/UCC, District Sheikhupura claiming relief that the date of birth of the petitioner be entered in record as 02.04.1990 on the basis of record maintained by concerned Union Council. The suit filed by Respondent No, 2 was decreed ex-parte vide judgment & decree dated 24.06.2013 passed by Civil Judge, Sheikhupura. Subsequently, an application under Section 12(2) read with Order IX, Rule 13, CPC was filed by the petitioner Board for setting aside the ex-parte judgment and decree, which was contested by Respondent No,
2. The said application was allowed by the trial Court on 30.04.2014 and ex-parte decree was set-aside. The Respondent No, 2 filed Revision against the order dated 30.04.2014 which was allowed by the Additional District Judge, Sheikhupura vide order dated 21.07.2014 and order dated 30.04.2014 was set-aside with the result that the ex-parte decree dated 24.06.2013 stood revived. The petitioner Board has now challenged the said order of Additional District Judge, Sheikhupura through this constitutional petition.
3.The learned counsel for the petitioner Board has argued that the ex-parte judgment and decree had been obtained by fraud and misrepresentation by Respondent No, 2 and further the Court lacked jurisdiction under Sections 29 and 31 of The Punjab Boards of Intermediate and Secondary Education Act, 1976 ("Act"), therefore, the Additional District Judge was not justified to set-aside well reasoned order of the trial Court.
4.Conversely, the learned counsel for Respondent No, 2 has argued that the representative of the petitioner Board entered appearance on behalf of the petitioner and thereafter absented himself and hence the trial Court rightly proceeded, against the petitioner Board ex-parte. He has supported the order passed in revision by Addl: District Judge.
5.From perusal of the record, it is observed that representative of the petitioner Board, Muhammad Yaseen appeared in the Court on 16.07.2012, got his attendance marked and thereafter did not file written statement rather absented himself so the Court on 17.11.2012 proceeded ex-parte against the petitioner Board and decreed the suit on 24.06.2013. The ground agitated by the petitioner Board that it had not been served and had no knowledge of the proceedings pending before the Court, is negated by this fact that its representative appeared in the Court as already observed above. Neither in application for setting-aside ex-parte judgment and decree filed under Section 12(2) read with Order IX, Rule 13, CPC, nor in the grounds of Revision the petitioner has mentioned that Muhammad Yaseen who appeared in the Court was not a representative of the Board.
Therefore, it cannot be said that the petitioner Board was not served in the case. Besides, the application does not disclose the particulars of fraud and misrepresentation alleged by the petitioner against Respondent No,
2. It is a settled principle of law that one who alleges fraud or misrepresentation must disclose the particulars of the. same. Only by saying that the petitioner Board was not served and not denying the fact that Muhammad Yaseen was representative of the Board it cannot be said that any fraud or misrepresentation has taken place in the matter. Besides a party cannot be allowed to argue the Matter beyond its pleadings. Reliance in this behalf is placed on Messrs Lanvin Traders, Karachi vs. Presiding Officer, Banking Court No, 2, Karachi and others (2013 SCM R 1419). The relevant portion of the said judgment is reproduced below: "In the present case, the contents of the two applications, as reproduced above, reveal that in none of the two, any grievance of fraud, collusion, misrepresentation, manipulation or mala fide was attributed either by the judgment debtor/petitioner or by objector Younus Habib, though it is an elementary principle of pleadings that where allegations of fraud, misrepresentation, collusion or mala fide are attributed, necessary particulars and details in that context are to be unfolded in the application/pleadings, and any bald or vague statement to this effect is of no legal consequence."
In view of the afore-referred judgment and the conclusions drawn therefrom, the learned ADJ rightly concluded that no fraud and misrepresentation has been committed by the Respondent No, 2.
6.The next ground raised by learned counsel for the petitioner is that the Court lacked jurisdiction in the matter as per Sections 29 and 31 of the Act which are re-produced below: "29 Bar of Suit.--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.
31 Protection of acts and order under the Act.--No suit for damages or other legal proceedings shall be instituted against Government, the Controlling Authority, a Board, a committee, a member or 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."
7.Sections 29 & 31 of the Act came into consideration in number of judgments. Reliance in this regard may be placed on Board of Intermediate and Secondary Education, Lahore and another vs. Hassan Sideman (2000 SCM R 1415), the relevant portion of the said judgment is reproduced below: "The only plea 'raised by the learned counsel appearing in support of this petition is that in terms of Sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act, (XIII of 1976), no act done, order made or proceedings taken by a Board in pursuance of the provisions of the Act could be called in question in any Court. Reliance in this behalf is placed on Muhammad Rafique vs. The Board of Intermediate and Secondary Education and others (1983 SCM R 1024).
We are afraid, the precedent case is of no avail to the petitioner-Board in that the jurisdiction of the Civil Courts of plenary jurisdiction is admittedly attracted to the grant of a declaration in terms of Section 42 of the Specific Relief Act (I of 1877). The precedent relates to an unfair means case against the petitioner and the observation read in conjunction with the facts of the said case takes it out of the preview of the argument being advanced by the learned counsel in support of this petition. Moreover, the resolution of Issues Nos, 2 and 3 came about after recording evidence and it was respectively held thereunder by all the Courts below that the date of birth of the respondent/plaintiff was incorrectly recorded being against even the physio-chemistry of birth in the two brothers born on different dates, could not be lumped together for the purpose of determination of their dates of birth."
(emphasis supplied)
8. Reference is also made to the judgment reported as Board of Intermediate and Secondary Education and others vs. Khalil Ahmad " and others (2008 SCM R 116), the relevant portion of which is reproduced below: "The question of ouster of jurisdiction being a mixed question of facts and law in the present case as the provision of Sections 29 and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 would reveal, the objection to the jurisdiction of the Civil Court ought to have been raised before the trial Court. Sections 29. and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 runs as under: "29. Bar of suit.--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.
31. Protection of acts and order under the Act.--No suit for damages or other legal proceedings shall be instituted against Government, the Controlling Authority, a Board, a Committee, a Member or 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 regulation and rules made thereunder."
Bare reading of Section 31 shows that the same does not oust the jurisdiction' of the Civil Court generally but only bars suits against the official of the Board acting in good faith. Section 29 also does not completely oust the jurisdiction of the Civil Court preventing the Courts to examine as to whether the action taken was within the framework of the law. A factual foundation therefore, was required to be laid in order to examine whether the ouster clause would be attracted. Such foundation was only possible if objection to the jurisdiction of the Civil Court was raised in the written statement and issue framed. thereby providing opportunity to the plaintiff to furnish relevant evidence. That not done the said objection cannot be now raised for the first time.
Interestingly the point was not even taken up in the petition for leave to appeal.
(emphasis supplied)
9. 'Reference may be made to Chairman, Board of Intermediate and Secondary Education and 2 others versus Muhammad Umair (2016 YLR 2435) wherein it is held as under: "The Board has given no reason whatsoever as to how the register having entry of date of birth of the respondent was bogus one. It is held that passing such like order without any legal and lawful justification and without any basis is nothing but an act of mala fide, therefore, the objection of the learned counsel for the petitioners that under Sections 29 and 31 of the Act the suit was not maintainable, is repelled. It is a settled principle of law that civil Courts are the Courts of plenary jurisdiction where the rights of any one are infringed, a civil Court has ample jurisdiction to adjudicate upon the matter, within the framework of law."
(emphasis supplied)
10.In this regard, reference has been made to Board of Intermediate and Secondary Education, Lahore through Chairman Versus Sardar Ghias GO Khan (2001 YLR 729). The relevant portion of the said judgment is reproduced as under: "Inaction on the part of the Board coupled with non--application of mind to the application filed by the plaintiff containing a prayer which had been found to be just by the learned Courts below, therefore, does constitute malice in law and consequently the learned Courts below were vested with the jurisdiction to come to the aid of the respondent."
(emphasis supplied)
11.From the perusal of the afore-referred judgments, it is observed that the bar of jurisdiction as mentioned in Sections 29 & 31 of the Act is not an absolute bar. The civil Courts, being the Courts of . plenary jurisdiction where the rights of any one are infringed, have ample jurisdiction to adjudicate upon the matter, within the framework of law. The objection to the jurisdiction of the Civil Court ought to have been raised before the trial Court at the earliest, especially through written statement, which admittedly has not been done in the present case. Section 31 of the Act provides protection to the Board, its members, officers and employees in respect of acts done ti or purported to have been done in good faith but does not bar the jurisdiction of the Court. This provision is not relevant for the present case because neither the Board or its members nor its officers or employees have been personally proceeded against for any of their acts. Section 29 of the Act provides that 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. This bar of jurisdiction of \ - Court to entertain a dispute is not available against proceedings in the Court where any order passed by any authority is corum non judice, beyond jurisdiction or without lawful authority and not based on proper exercise of jurisdiction or infringes rights of any person. In this case the remedy being sought by Respondent No, 2 was for correction of his date of birth on the ground that the same had wrongly been entered in the record. The Court has ample jurisdiction to check the same. Any provision of law that bars a remedy for any party is to be strictly construed and ouster of jurisdiction is not to be lightly presumed.
12. On the basis of afore-referred observations, I am not inclined to agree with contention of the learned counsel for the petitioner-Board that bar provided under Sections 29 and 31 of the Act 1 is an absolute bar and the jurisdiction of the Civil Court is completely ousted and cannot be availed by Respondent No, 2 for correction of his date of birth. The petitioner/Board was required to lay down the foundation of its claim to show, how in the present case the jurisdiction of Courts was barred, which has not been done. The learned trial Court had passed the ex-parte decree after taking into consideration the evidence produced by the respondent no. 2: The petitioner failed to defend the suit at the relevant time Therefore, no reason was available with the learned trial Court to set-aside the exparte judgment passed by the Court itself especially when none of the grounds raised by the petitioner-Board in its application for setting aside decree were made out from the record. The learned Additional District Judge was justified in entertaining civil revision for setting- aside the order on that account especially when the representative of the petitioner had appeared in the Court and did not raise any question of lack of jurisdiction before the Court and absented himself therefrom.
13.The counsel for the petitioner next tried to argue, that the case, of the Respondent No, 2 is not made out even on merits and the decree was liable to be set aside. This might be a ground of appeal but the same cannot be made basis for setting aside a decree by filing an application under Section 12(2), CPC, wherein only the grounds of fraud, misrepresentation and absence of jurisdiction can be agitated and no ground beyond the same can be allowed. Reliance in this behalf is placed on Mst. Nasira Khatoon and another Versus Mst. Aisha Bai and 12 others (2003 SCM R 1050), wherein it has been observed as under:.
"The contention of learned counsel that the exchange agreement, dated 12.2.1948 would not be enforceable through the civil suit in respect of the evacuee property and that the suit was barred by Section 113 of the Limitation Act, 1908 being not relevant for setting aside the judgment and decree under Section 12(2), C.P.C. the same would need no comments. The scope of this special provision can neither be extended beyond the grounds of fraud, misrepresentation and defect of jurisdiction enumerated therein nor the learned Division Bench of the High Court, seized of the matter, could sit over the judgment passed in Letters Patent Appeal."
(emphasis supplied)
14.No illegality, perversity or erroneous exercise of jurisdiction has been pointed out in the order passed by Additional District Judge dated 21.07.2014, whereby the same could be declared to have been passed without lawful authority and be set aside, hence, there is no merit in this petition.
Resultantly, the same is dismissed.