' This Civil Revision calls in question the judgment and decree, dated 29-10-1983 passed by a learned Additional District Judge, Lahore.
2. Khalid Mahmood respondent appeared in the Secondary School Examination as a regular student from Farooqi Islamia High School, Baghbanpura, Lahore, under Roll Number 61562, held in April, 1963. On 1-6-1963 result was announced and in the official Gazette, published by the petitioner i.e. the Board of Intermediate and Secondary Education, Lahore, his name was not mentioned. On enquiry, he was, allegedly, intimated by the then Headmaster of the aforementioned school that he failed in the subjects of English, Mathematics and Physics. Thereafter, the respondent, allegedly, remained ill on account of the shock he suffered due to his failure in the examination, as he was a bright student.
3. In 1967, after recovery from his ailment, he undertook to appear again in the Secondary School Examination and in that connection, he applied to the petitioner-Board for obtaining detailed marks certificate. The certificate, thus issued, indicated that, in fact, he had passed the examination held in 1963 in first division obtaining 618 marks. Consequently, the respondent applied for certificate which has not so far been issued to him.
4. The respondent instituted the suit in forma pauperis against the petitioner-Board in June, 1969, claiming damages to the tune of Rs.50;000, on account of loss of his six valuable years during which he could build up his career; loss which he incurred on account of having become over-age; loss of mental faculties due to shock which he suffered due to his failure in the educational career; mental agony and torture and loss in the life career. It was alleged that respondent's father happened to be an employee of the petitioner-Board. He was President of the Employees Union. On account of the trade union activities, the Officers of the petitioner-Board bore grudge against him.
They managed his removal from service, but as a result of litigation which culminated into his re- instatement with full back benefits, through an order of the High Court passed in exercise of Writ Jurisdiction. He was re-instated and had to be paid the arrears of his emoluments for the period for which he remained out of job. It was thus alleged that on account of this malice, the officers of the Board manoeuvred to wrongfully show the respondent to have failed in official Gazette as also in the failure statement. But, subsequently, it transpired that, in fact, he had passed the examination by securing good marks in first division. A declaration was also sought by the respondent to the effect that he was successful in the annual secondary school examination held in 1963, with a mandatory injunction directing the Board to declare the respondent to be successful in the above- said examination.
5. The suit of the respondent was resisted by the petitioner-Board and it was maintained, inter alia, that the suit was barred by virtue of sections 27 and 29 of the West Pakistan (Board of Intermediate and Secondary Education, Lahore) Ordinance, 1961, and that the break-up of the damages claimed was not given in the plaint and, therefore, no damages could be awarded. It was further urged that in the Gazette, published for the year 1963, which was headed "Errors and Omissions excepted", the name of the respondent was omitted, but in the failure statement supplied to the Headmaster simultaneously with the gazette,the respondent was shown to have passed the examination, obtaining 618 marks and that, subsequently, a certificate indicating that the respondent-plaintiff has passed the examination was also sent to the Headmaster, under registered cover. It was denied that the Officers of the Board had any enmity with the respondent's father and that the errors in the Gazette occurred due to any mala fides.
6. On the basis of the parties pleadings, the learned trial Court framed the following issues:-
(1) Whether the particulars given in the plaint are incomplete for proper reply. If so, its effect?
(2) Whether the suit is barred by sections 27 and 29 of the West Pakistan (Board of Intermediate and Secondary Education, Lahore, Ordinance, 1961?
(3) Whetner the plaintiff's result was wilfully held back with male fide intention so as to cause mental damage to him?
(4) If issue No.3 is proved, to what amount of damages the plaintiff is entitled on various counts mentioned in para No.18 of the plaint?
(5) Relief.
7. After recording the parties evidence, the learned trial Court, vide its judgment and decree dated 7-11-1979, decided issues Nos. 1 and 2 in favour of the respondent/plaintiff. Regarding issue No.3, it was found that no mala fides were proved and that only on account of omission, his name could not be shown in the Gazette containing the list of successful candidates, while he was shown to have passed the examination in the black list supplied to the Headmaster who was also sent certificate regarding the respondent to have passed the examination. Consequently, it was found that there was no occasion to record any finding on issue No.4. Thus the suit of the respondent was dismissed, leaving the parties to bear their own costs.
8. Feeling aggrieved, the respondent preferred an appeal before the learned Additional District Judge whereby he challenged the findings of the learned trial Court on issues Nos. 3 and 4. No appeal or cross objection was filed by the petitioner-Board in regard to trial Court's findings on issues Nos. 1 and 2. The learned Additional District Judge, vide his judgment and decree dated 29- 10-1983, reversed the trial Court's findings on issue No.3. He held that, on account of mala fides, the respondent was shown to have failed in the examination and that he was not shown to have passed the examination in the list provided to the Headmaster. It was further found that no certificate, as alleged by the Board, was sent to the Headmaster concerned. Consequently, the trial Court's judgment and decree were set aside and the plaintiff's suit was decreed in its entirety with costs. Hence the present Civil Revision.
9. It has been argued on behalf of the petitioner-Board that the learned Additional District Judge, while deciding the appeal, has observed that findings of the trial Court on issues Nos. 1 and 2 were not contested, but, nevertheless, he has given his decision on these issues which indicates that objections giving rise to these issues were urged before the learned Additional District Judge. The findings on question of fact recorded by the learned Additional District Judge have also been challenged. It has further been contended that the respondent's suit was time-barred and that objection regarding limitation was raised before the learned Additional District Judge, but he has wrongfully held that this plea could not be raised at the appellate stage.
10. Regarding the petitioner's plea that the respondent's suit was barred under sections 27 and 29 of the West Pakistan (Board of Inter mediate and Secondary Education, Lahore) Ordinance, 1961 (Ordinance XVIII of 1961), it may be observed that all acts done, orders passed and proceedings taken by the Board are treated as final and are not to be called in question in any Court by a suit or otherwise by virtue of section 27 ibid. Similarly, by virtue of section 29, no suit for damages or legal proceedings is competent against the Board or any member of the Board or employee of the Board in respect of anything done or purported to have been done in good faith in pursuance of this Ordinance and the regulations and rules made thereunder. In the present case, the respondent has expressly alleged and has also led evidence to show that on account of enmity of officers of the petitioner-Board with the respondent's father, they acted mala fide and declared the petitioner to have failed in the examination. In such circumstances, protection provided under section 29 ibid, is not available to the petitioner-Board unless its impugned action is held to have been taken in good faith. Similarly, by virtue of section 27, acts done, orders passed or proceedings taken by the Board are sacrosanct only if such acts have been done, orders passed and proceedings taken in accordance with the provisions of the Ordinance, but acts done, orders passed or proceedings taken pursuant to malice and mala fides, cannot be deemed to have been done, passed or taken in accordance with the provisionsA of the Ordinance and thus are not immune from being challenged before the Courts of competent jurisdiction. No exception can, therefore, be taken to the findings recorded on issues Nos. 1 and 2, by the Courts below.
11. As regards, the findings of the learned Additional District Judge on issues Nos. 3 and 4, it may be noticed that in his capacity as appellate Court, the learned Additional District Judge possessed the jurisdiction to come to his own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly, he could competently reverse the findings of the trial Court on the questions of fact involved in issues Nos. 3 and 4. It is an established proposition of law that findings on questions of fact or of law, howsoever erroneous the same may be, recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under section 115, Civil Procedure Code, unless such findings suffer from jurisdictional defect, illegality or material irregu larity. In N.S.Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 P C 26, with reference to section 115, Civil Procedure Code, it has been observed by the Judicial Committee of the Privy Council:-- "This section empowers the High Court to satisfy itself upon three matters; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material, irregularity, that is, by committing some er,ur of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
No jurisdictional defect has, of course, been pointed out in this case and, similarly, no legal infirmity in the impugned judgment has been alleged.
12. It has, however, been urged that on the basis of evidence adduced by the parties before the learned trial Court, the learned trial Judge had rightly concluded that no mala fides were proved and that the respondent was not entitled to any damages.. It has thus been argued that the learned Additional District Judge, while recording an otherwise finding, has not properly appreciated the evidence available on the records.
13. The respondent examined at the trial P.W.1 Abdul Khaliq who served as Headmaster, Farooqi Islamia High School, Baghbanpura, Lahore, from 1956 to 1964. This witness has, categorically, stated that the respondent was declared to have failed in the examination held in 1963 and that on the basis of the black list supplied to the witness, he issued certificate, Exhibit P.1, to the respondent showing that he had failed in three subjects. P .W .2 Gulzar Ahmad Qureshi, another Headmaster, who served in that capacity from 1967 to 1969, stated that on having been approached by the respondent, he issued certificates, Exhs. P.2 and P.3. Certificate, Exh P.1, is dated 3-7-1963. According to this certificate, the respondent appeared in: the secondary school examination held in April, 1963, but failed in the subjects of English, Mathematics and Physics, according to the result statement supplied by the petitioner-Board to the Headmaster of the school. Exh.P.2 is a form which was filled in by the respondent to obtain a duplicate certificate of his having passed the secondary school examination held in April 1963. On this form, P.W.2, Gulzar Ahmad Qureshi, the then Headmaster, recorded an endorsement, dated 16-8-1968 to 'the effect that as no information about the respondent's success was -supplied to the school, so the form in question could not be attested, by him. Exh P.3 is a certificate issued by the Headmaster of Farooqi Islamia High School, Baghbanpura, Lahore, on 16-8-1968 that the respondent who appeared under Roll Number 61562 in the Secondary School Examination, 1963, was not declared to have passed that examination by the Board and, therefore, the provisional certificate could not be issued in his favour. It has further been certified that no original certificate about the respondent having passed the examination was :received in the school from the petitioner-Board. There is nothing on the record to show that Messrs Abdul Khaliq and Gulzar Ahmad Qureshi,, the ex-Headmasters of Farooqi Islamia High School, were, in any manner, inimical towards the petitioner-Board. As observed by the learned Additional District Judge, they are respectable independent witnesses and it could not, by any stretch of imagination, be justifiably said that they had any reason to depose against the Board.
The learned trial Court, while brushing aside the testimonies of these two witnesses as also the contents of certificates Exhs P.1, P.2 and P.3, observed that it was the duty of the respondent to produce the result statement supplied to the school by the Board of Intermediate and Secondary Education, wherein he was shown to have failed in three subjects. It was, in fact, for the Board to produce such result statement. A duplicate has, of course, been produced by the Board, but the relevant entries in the duplicate are over-written and, therefore, no authenticity can be attached to them. It is an admitted fact that father of the respondent was an employee of the petitioner-Board and had been dismissed on account of his trade union activities. He was, subsequently, re-instated under the orders of the High Court, passed in a writ petition and was paid the entire back benefits.
It cannot also be lost sight of the fact that despite his best efforts, the respondent has not been issued a regular certificate by the Board, of having passed the secondary school examination, except a detailed marks certificate. The respondent, admittedly, applied for such regular certificate. It is also an admitted fact that in 1967, the respondent submitted a form for taking the examination to be held in 1968. On the application so submitted, the office of the petitioner-Board raised certain objections and issued reminders twice, to the respondent. It cannot, therefore, be said that prior to the issuance of detailed marks certificate, the respondent knew about the correct position and he obtained certificate, Exh.P.1, and other documentary evidence only to create evidence in his favour to claim damages from the Board.
14. The respondent while appearing as his own witness, furnished the detailed, break-up of the damages claimed by him and no evidence in rebuttal thereto has been led on behalf of the petitioner.
15. In the light of above observations, the findings recorded by the learned Additional District Judge, are unexceptionable and it cannot be said that there has been non-reading or misreading of evidence. These findings do not suffer from any illegality or material irregularity, within the meaning of section 115. Civil Procedure Code.
16. Regarding the question of limitation, it may be observed that the plea of limitation was not raised in the written statement. No issue in this behalf was, therefore, framed. This plea was raised for the first time at the time of hearing of appeal by the learned Additional District Judge. Ordinarily, a plea of legal nature can be allowed to be raised even at the appellate stage as has been held in Sha Shivaraj Gopalji v. Edappakath Ayissa Bi nd others PLD 1949 P C 143, and Sri Sri Shiba Prasad Singh (deceased) now represented by Kali Prasad Singha v. Maharaja Srish Chandra Nandi PLD 1949 P C 178. But, when such a plea necessitates framing of an issue and leading of evidence by the parties thereon, it cannot be considered, if not raised at the proper stage. In Indus Valley Construction Company Ltd. v. Comentation Intrafor Ltd. 1982 SCMR 1127, it was ruled that when an objection was not raised before the trial Court and no issue was framed regarding such objection, it could not be considered by the Supreme Court at the appellate stage. In Mst. Gul Resha and another v. Mst. Hayadar nd others 1968 SCMR 979, it was observed: "But, in the present case, it appears, that the High Court was right in not allowing this point to be raised for the first time in revision, because, the specific plea in the plaint that the suit was within time, not having been controverted in the written statement, it must be deemed to have been admitted that the suit was within time. In the facts of the present case, therefore, the question of limitation could not arise and was rightly not allowed to be raised."
' In the under consideration case also, in the plaint, it has been specifically averred that the suit is within time. This averment has not been controverted and, therefore, the principle laid down in Gul Resha's case is fully applicable to the present case. In this view of the matter, there is no legal flaw in the findings recorded by the learned Additional District Judge to the effect that the plea of limitation, raised at the appellate stage, could not be considered.
17. The upshot of the above discussion is that there is no merit in the present Civil Revision Petition which is accordingly dismissed.
18. No order is, however, made as to costs.