Judgment: MUHAMMAD NAEEM ANWAR, J.- This petition filed u/s 115 of the Code of Civil Procedure, 1908 (C.P.C) has been directed against order of the learned Additional District Judge/Izafi Zila Qazi-III, Swat dated 31.05.2023, whereby his appeal against order of the learned Civil Judge/Illaqa Qazi, Swat dated 19.05.2023 issuing notice of the temporary injunction to the respondents without granting ad-interim status quo, was dismissed.
2. On 19th May, 2023, the petitioner filed a suit against the respondents, being their employee, for declaration to the effect that his correct date of birth is 01.01.1967, being based upon his Computerized National Identity Card (CNIC) and age certificate issued by the Medical Board whereas, in the record of the respondents, his date of birth has incorrectly been mentioned as 1963, which is ineffective upon his rights and thus, requires correction. Alongwith the plaint, an application for grant of temporary injunction was also filed that the respondents be restrained from issuing retirement order of the petitioner till final decision of the suit. The learned trial Court issued only notice of this application to the respondents without granting ad-interim status quo vide order dated 19.05.2023, against which, he filed an appeal which too was dismissed in limine by the learned Appellate Court vide order dated 31.05.2023, hence, this petition.
3. C.M No.1216-M/2023: Through this application, the petitioner intends to place on record draft letter regarding the history of his service alongwith the application of one Dawa Khan who was Chowkidar in Forest Development Corporation Swat on the ground that these documents are necessary for just decision of this petition. Keeping in view the contents of the application qua the affidavit of the petitioner, this application is allowed and the documents annexed therewith are hereby read as part and parcel of the instant petition.
4. Arguments heard and record perused.
5. It is not disputed that the technical issue pertaining to rectification or for that matter correction of date of birth of the petitioner remained controversial with respondents, however, it is reflected from the record of the respondents that he was appointed as Driver on 01.12.1992 and as per his National Identity Card and Medical Certificate, his date of birth has been maintained in his service book as 1963. It is further reflected from the draft letter annexed with the petition that the petitioner has approached to Government High School (GHS) and Government Primary School Mingora, Swat
(GPS) on directive of NADRA Authorities for obtaining the certificate of his date of birth as per school record but both the schools could not issue any such certificate to him and thereafter, on the application of the petitioner the matter was referred to Medical Board by NADRA authorities and his medical examination was conducted on 01.12.2021, when he was found to be of the age of 54 years and his date of birth was reported as 01.01.1967, thus, new CNIC was issued to him. It is undisputable that the petitioner's date of birth was registered in the record of respondents as 01/01/1963 whereas the suit was filed on 19th of May, 2023 and as per the record of respondents the petitioner has reached to the age of superannuation on 31st of December, 2022 much earlier to the institution of suit. In such circumstances, the petitioner will have to establish his case through recording of evidence even for issuance of injunction temporary or at the final stage of his suit. The statute provides that before issuance of ad interim injunction notice is issued to the respondents and only in exceptional circumstances, issuance of notice is dispensed with. For convenience order XXXIX rule 3 substituted vide Civil Procedure and Limitation (Amendment) Ordinance, 1961 (IX of 1961), is reproduced as under: "3. Before granting injunction Court to direct notice to opposite party. The Court shall in all cases, before granting an injunction direct notice of the application for the same to be given to the opposite party: Provided that, except in the case of sale of goods for default in paym ent, at the stipulated time, of a debt in respect of which the goods were pledged with any bank, or where the injunction is to be granted against Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government in any case not involving the ejectment of any person from, or the demolition of, any premises, the Court may, where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice: Provided further that the period of notice under this rule to Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government shall not be less than two days nor exceed seven days."
Undoubtedly, the Court has the power to issue ad-interim injunction in consonance with the above reproduced order and the principle laid down in the case of "Gaisuddin Ahmed versus Province of East Pakistan and Others" (PLD 1966 DACCA 163) where it was held that the Appellate Court below has given no reason for coming to such a decision except a reference to a decision of this Court in the case of Dr. Ahad Ali Khan v. Enayetullah Mandal (PLD 1964 Dacca 624). In that case, it was held that the Court had no jurisdiction to pass such an ad interim injunction under the provisions of Order XXXIX, rule 3 of the Code of Civil Procedure as amended by Ordinance IX of 1961. The amended provisions of Order XXXIX, rule 3, of the said Code read as follows: "3. The Court shall in all cases, before granting an injunction, direct notice of the application for the same to be given to the opposite-party"
But in order to get such a discretionary relief the petitioner is required to show a good prima facie case for grant of relief through ad interim order. The petitioner could not point out exceptional circumstances for grant of ad interim injunction without issuing of notice to respondents. In order to dispense with the notice, the petitioner was required to place before the Court special circumstances over and above to prima facie case but the case which requires recording of evidence could never be considered a good subject for ad interim injunction. In this respect, reliance is placed on the case of "Chairman Municipal Committee Taxila Vs. Muhammad Jan and 04 others" [1987 CLC 2416 Head Note (B)], relevant portion whereof is reproduced as under:
(b) Civil Procedure Code (V of 1908). O.XXXIX, Rule 1 & 2.- Temporary injunction--A case standing in need of evidence having to be led for being established, cannot be considered a proper subject for issuing temporary injunction."
6. Moreover, it is reflected from record that the ad interim injunction sought by the petitioner pertains to the direction to the respondents not to issue retirement order of the petitioner, however, as per his date of birth he has attained the age of superannuation earlier to the institution of the suit and thus he has already been retired and in such an eventuality, no injunction could be granted in favour of petitioner in accordance with the principle laid down by this Court in the case of "Salahuddin Khan & 3 others vs. Sultan-e-Rome and 10 others" (PLD 1973 Peshawar 95).
7. Furthermore, it is well settled principle of law that for grant of temporary injunction co-existence of all three essential ingredients, prima facie, balance of convenience and irreparable loss, are sine-qua-non as held by the apex Court in the case of "Puri Terminal Ltd. vs. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others", (2004 SCMR 1092), wherein it is held that:- "21. No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. For grant of such relief, it is mandatory to establish that in order to obtain an interim injunction, the applicant has not only to establish that he has a prima facie case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit."
Reliance may be placed on the case of "Supreme Court Employees Co-Operative Housing Society, Islamabad Versus Messrs. Marshal Construction Management through Managing Partner and another" (2022 SCMR 366) where it was observed that: "Respondent No.1 has failed to make out prima facie case for grant of injunction. The balance of convenience does not lie with the Respondent No.1 to allow them to continue after termination of the contract for which they can otherwise approach the Court for damages in case if it is established that the termination of the contract was unwarranted in law."
8. Another intriguing aspect of the case is that the petitioner was at the verge of retirement when he has filed the suit and ad interim injunction was in term of direction not to issue retirement order of the petitioner. Not only for civil servants but the government servants who have been appointed are required to get correct or rectify date of birth within two years from the date of appointment but as against that the petitioner, at the tail end of his service, is desirous of change of his date of birth, therefore, no reliance could be made either on the age certificate issued being based upon his medical examination or CNIC issued to him on 20.01.2022. Reliance is placed on the case titled "Haq Nawaz Kayani Vs. The Province of Punjab" (1998 SCMR 801), wherein it was observed by the Supreme Court that: "We have noticed that service rules regarding correction of age within two years from entry into service are apparently sound and logical. Government servant cannot be normally permitted to rise from deep slumber and dramatically announce change in the date of birth; when about to retire. The Service Tribunal has properly considered all facts and aspects of the case and has assigned cogent reasons for declining the relief. In our opinion, legal position discussed and conclusion drawn by the Service Tribunal for passing impugned judgment do not suffer from any defect, illegality or impropriety. We wish to observe that lately a tendency has developed whereby unwarranted claims, attempting to show errors in "date of birth" are asserted towards retiring age by fabricating or manipulating documents in that behalf. Obviously, such practice must be discouraged and effectively curbed."
9. Therefore, without going into the discussion as to whether the civil Court would be competent to entertain the suit and whether the process initiated by the petitioner is in consonance with directive of the respondents being based upon notification No.SO (Estt)/Envt/I-16(B)/2K12/1893 dated 25th October, 2012, letter No.SO (Estt)/Envt/I 16/05/1165 dated 06th February, 2006 and circular letter dated 15th February, 1989? shall be decided by the learned trial Court after recording of evidence. At this juncture balance of convenience as against the petitioner, favours the respondents because of the institution of the suit at the tail ends of service. Reliance is placed on the cases of "Director General, Pakistan Rangers Vs. Federation of Pakistan and 3 others" (2013 SCMR 887), "Mr. Khalid vs. Chief Secretary, Punjab" (1994 SCMR 1633), and "Ali Azhar Khan Baloch and others Vs. Province of Sindh and others" (2015 SCMR 456), in which, it was held by the apex Court that: "The mode of correction in the date of birth of a Civil Servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is part of terms and conditions of service of a Civil Servant and cannot be resorted to through the Civil Suit. It has also been well established by now that a Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit."
10. Thus, for the reasons discussed above, both the learned Courts below have rightly refused to issue ad-interim injunction against the respondents, as such, this petition, being devoid of any substance, is hereby dismissed in limine.