The precise facts giving rise to this Civil Revision are that the respondent instituted a suit on 15-1- 1992 for declaration to the effect that his date of birth is 15-10-1935 and not 15-10-1933 with consequential relief for permanent mandatory injunction against the petitioners. The petitioners resisted the suit on legal as well as factual grounds. The trial Court accordingly framed following issues:- "(1)Whether the suit is barred under Section 48-A of the University of the Punjab Act, 1973? OPD (2)Whether the plaintiff has waived his right? OPD (3)Whether .The suit is barred under Order VII, Rule 11 of CPC? OPD (4)Whether the suit is time barred? OPD (5)Whether the suit is bad for non-joinder of parties? OPD (6)Whether the actual date of birth of the plaintiff is 15-10-1935? OPP (7)Relief."
2. The plaintiff examined Muhammad Siddique, Record Keeper, Municipal Committee, Jehlum as P.W.1 and himself appeared as P.W.2. The petitioners in rebuttal examined Yahya Khan, Junior Clerk, Registration Branch. The trial Court after hearing the arguments proceeded to decree the suit vide judgment and decree dated 17.1.1993. The petitioners filed an appeal in the Court of District Judge, Lahore, who entrusted the same to the Court of Mr. Imam Ullah Khan, Additional District Judge, Lahore. The appellate Court dismissed the appeal vide judgment and decree dated 20.4.1993.
Hence present revision petition.
3. The revision petition was admitted to regular hearing and notices were issued to the respondent.
I have: heard the learned counsel for the parties. The learned counsel for the petitioners argued that the suit was barred under section 48-A of the Punjab university Act. It is added that no cause of action has accrued in favour of the plaintiff against the defendants because the University had made the entry as to the date of birth on the basis of the information supplied by the plaintiff. It is added that there is no evidence on record to prove that the correct date of birth is 15-10-1935. The arguments are concluded with the submission that the suit was bad for non joinder of necessary party i.e. The Province, the employer of the plaintiff.
4. On the other hand, the learned counsel for the plaintiff-respondent has maintained that the plaintiff is seeking only correction of date- of birth in the matriculation certificate and no relief is sought against the Provincial Government, therefore, the latter was not made a party. It was submitted as to cause of action that the plaintiff approached the defendants many times for correction of the date of birth but they did not allow him the relief. He submitted that the case is covered by the judgment of this Court reported as The University of the Punjab, Lahore through Registrar vs. Muhammad Aslam Bora, Advocate and another (PLD 1988 Lah. 658) and the principle laid down in case reported as Government of the Punjab through Secretary, Department of Education, Lahore v. Prot Mst. Jamida Malik and another 1991 MLD 824 is not applicable.
5. I have given my anxious considerations to the arguments of the learned counsel for the parties and perused the record. The case of the plaintiff-respondent as contained in the plaint is that his correct date of birth is 15-10-1935 and some how or the other it was recorded as 15-10-1933. The petitioners have entered the same date of birth, which was incorporated by the plaintiff in the admission form for Matric examination.. He mentioned the same date in all such subsequent papers, forms and documents. On the one hand, the petitioners are not in any way responsible for the alleged incorrect date. On the other hand, they have nothing to gain or loose if the date is corrected. The admitted position is that the plaintiff is a member of provincial civil service and the date of birth shall govern his date of retirement. In other words, if the date remains same he stands retired on 14th October, 1993 on attaining the age of superannuation, therefore, the Provincial Government was a necessary party to the suit. Whether a civil suit is competent or not in respect of terms and conditions of service, the employer should be impleaded because it is the employer, who shall be interested to contest the suit as it would ultimately be affected and aggrieved if suit is decreed. The employer is a necessary party in a suit by an employee in respect of or torching or effecting his terms and conditions of service directly or indirectly. It is the employer who would be naturally interested to contest the suit as ultimately it is to face its consequences. It is true that normally the anxiety of the plaintiff is to have a decree with least possible resistance and this is a reason that the plaintiff would avoid to have necessary parties impleaded. But the basic requirement of law is that nobody should be saddled with a liability without an opportunity of defending itself. The trial of a suit without necessary parties is against public policy and the scheme of the codified law. It is, therefore, obligatory for the Courts to ensure that the necessary and even proper parties are heard before a decree is rendered. It is for this reason that the Courts are empowered to implead such parties even without an application.
But neither the plaintiff in spite of objection did implead the Provincial Government as a party nor Court exercised its jurisdiction under Order I Rule 10, C.P.C., which reads as under:-
10. Suit in name of wrong plaintiff.
(1)
Court may strike out or add parties
(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added."
It is clear from the above provisions that the Court is fully empowered to add a party whose presence is necessary to effectually and completely adjudicate all the questions involved in the suit. If looked from this angle, the Courts below have failed to exercise the jurisdiction vested in them. This failure alone is sufficient to accept this revision. They failed to appreciate that the decree granted by them would be directly affecting the right of the Provincial Government to retire the plaintiff and it would be justified to object to the decree. It is established law that an aggrieved person though not a party can maintain an appeal. In this behalf reference can be made to the cases of Muhammad Zafarullah Khan v. Muhammad Shafi, Chairman Election Tribunal and others PLD 1976 Lah. 302 and H.M. Saya v. Wazir Ali Industries Ltd PLD 1969 SC 65. Now if the appeal is filed by the Government then there will be no option for the Court but to accept it, implead the Provincial Government as a party and remand the case. This way whole time spent upto that point would go waste. This is why the legislature has empowered the Courts to add necessary parties to the suits without application of any party.
6. Normally speaking, after recording the above finding the revision was to be allowed and suit remanded back to the trial Court for fresh trial after impleading the Provincial Government but I am not following this course because the civil suit is barred by Article 212 of the Constitution of Islamic Republic of Pakistan as discussed in latter portion of this judgment. The remand would be just an exercise in futility.
7. Now coming to the cause of action. The plaintiff admitted in his statement as P.W.2 that he did not make any application to the University for the correction of the record. This fact when considered in. Its proper perspective and in the fight of the defence then it is clear that the plaintiff never approached the petitioners for correction of the date. The cause of action was all a cooked up affair. The learned counsel for the petitioners submitted that the University has established a branch for this purpose. This fact is also clear from the statement of D.W.1. It is held that no cause of action accrued in favour of the plaintiff against the defendants and plaint is also liable to be rejected on this score.
8. The learned counsel for the plaintiff-respondent when confronted by the judgment of this Court in Mst. Jamida Malik's case (Supra) submitted that the plaintiff is not seeking any relief against the Provincial Government or in respect of his terms and conditions, therefore, the suit was not barred by Article 212 of the Constitution of Pakistan. The suit was intelligently framed to avoid the clear bar of Article 212 but the real purpose is to get the date of retirement postponed. This is clear from C.M.
500-C/93 moved by the respondent in this Court. The relevant para is 2, which reads as under:- "2. That there is concurrent finding of both the Courts below in favour of respondent above-named.
The petitioner is presently serving as a Secretary, Punjab Government and his age of superannuation is just nearing. In case, the above titled case is not disposed of earlier, the decree in favour of respondent will become infructuous."
The same position was maintained by his learned counsel on 26-9-1993. It was duly recorded- in the interim order of that date It is, therefore, clear that the real intention is to get the terms and conditions of service changed without impleading the Provincial Government and going to the proper forum. The principle in Prof. Mst. Jamida Malik 1991 MLD 824 held by this Court is applicable with full force to the present case. The case was examined by the Supreme Court in another case reported as Government of the Punjab and another v. Dr. Shamim Waheeda Sheikh 1993 SCMR 1692. The learned counsel for the respondent has failed to point out anything not to follow the rule laid down in Prof. Mst. Jamida Malik's case, therefore, the plaint is being rejected under Order VII, Rule 11, C.P.C.
9. Conversally speaking and accepting the contention of plaintiff, if the revision is dismissed and the government refuses to accept the decree this will be making mockery of the judgment of Courts. Furthermore, then the matter has to be agitated before the Service Tribunal, which will sit in judgment to the decree of the civil Court confirmed by this Court. This definitely is not the purpose of law and it was for this reason that jurisdiction of all Courts in service matters was barred.
10. The whole scheme of the codified law is that there should be adjudication of a dispute in one forum. This is also necessary to avoid contradictory decisions and to give finality to the decisions. It is strange that the plaintiff has not impleaded the Provincial Government as a party in spite of objection of the petitioners. It was for the Courts below to find who is proper and necessary party to the suit. They have, also, not cared.
11. Even otherwise it was a suit for declaration, the conduct of the plaintiff is very material. It is equitable relief and Court would be justified to refuse the relief if the plaintiff's hands were not clean. The plaintiff, in the present cases, is not entitled to any relief for the reasons: firstly, he failed to implead proper parties only with the object to have undue advantage and prosecuted the matter in a Court totally lacking jurisdiction; and secondly, he started service in 1954 and for the civil servant date of birth is material from very first day because it will govern his seniority amongst the same batch and determine his date of his retirement. The respondent did not move till January 1992 when he filed the present suit.
12. The upshot of the above discussion is that while allowing this revision petition the judgments and decrees of the Courts below are set-aside and the plaint is rejected under Order VII, Rule 11, C.P.C. For want of jurisdiction and cause of action. There is no order as to costs.