' This Civil Revision Application is directed against the order dated 19-3-1996 passed by learned District Judge, Karachi (South) in Miscellaneous Civil Appeal No,2 of 1996 dismissing the appeal filed against the order dated 10-1-1996 passed by II 'Senior Civil Judge, Karachi (South) directing the defendants/petitioners to maintain status quo on application under Order 39, Rules 1 and 2, C.P.C. Filed in Suit No,1364 of 1995.
2. Briefly stated the facts which lead to this Revision are that the respondent/plaintiff filed a suit against the petitioners/defendants named above for declaration and permanent injunction, stating therein that the plaintiff who is an employee of the defendant No,2 was appointed as Inspector of Income Tax on 30-9-1967 and through promotions be reached to his present designation as Deputy Commissioner of Income Tax. He stated that his correct date of birth according to his Service Book maintained by the defendants is 9-1-1938, but through gradation list published by the defendant No,2 for the first time in the year 1991, he came to know that his date of birth was mentioned in the same as 9-1-1936. He entered into correspondence with the defendants through the defendant No,1 and by producing his School Leaving Certificate, Birth Certificate, issued by Municipal Committee, Residence Certificate issued by the Chairman, Union Council and other documents made representations that his correct date of birth is 9-1-1938 and not 9-1-1936. Since he apprehended that on the basis of his incorrect date of birth i,e, 9-1-1936 he may be retired from service at the age of 60 years w,e,f, 9-1-1996 hence he filed the above suit and also made an application under Order 39, Rules 1 and 2, C.P.C., to which the defendant No,1 filed his counter- affidavit in denial of the claim of the plaintiff. He also stated that the Controller of Examinations, University of Sindh has confirmed that the actual date of birth of the plaintiff is 9-1-1936. The learned II Senior Civil Judge, Karachi (South) after hearing both the parties' Advocates passed the order dated 10-1-1996 directing the defendnats/petitioners to maintain the status quo which was existing on the day when the present suit was instituted, till the final disposal of the suit. Being aggrieved by the said order, the defendnats/petitioners preferred appeal bearing M.C.A. No,2 of 1996 before the District Judge, Karachi (South) which also resulted in dismissal on 19-3-1996, against which the present Revision Application is filed in this Court, with a prayer that the orders passed by both the Courts below be set aside.
3. It shall not be out of way to mention, here that before the matter was fixed for Katcha Peshi, on 26-5-1996 the respondent with his statement dated 21-5-1996 alongwith copy of Office Memorandum dated 22-4-1996 from Finance Division, Government of Pakistan addressed to Central Board of Revenue, in which the C.B.R. Was directed to accept the plea of respondent regarding date of his birth without further litigation, in reply to C.B.R.'s Letter dated 18-3-1996. For the first time the above matter was fixed for Katcha Peshi on 26-5-1996, when the learned, advocate of the applicant Mr. Nasrullah Awan requested for time to verify the contents of the said Office Memorandum and with consent of Mr. Muhammad Naseem, Advocate for respondent, the matter was adjourned to 30-5-1996. On 30-5-1996 the learned Advocate for the applicant filed reply to the statement dated 21-5-1996 with a copy of Office Memorandum dated 23-5-1996 from Central Board of Revenue addressed to the Finance Division, Government of Pakistan, upon which the matter was adjourned to 12-6-1996.
4. On 12-6-1996 I have heard Mr. Nasrullah Awan who also produced a copy of letter dated 9-6- 1996 from Central Board of Revenue addressed to the applicant No,
1. I have also heard Mr. Muhammad Farogh Naseem who also produced a copy of letter dated 9-6-1996 from Finance Division to the Central Board of Revenue and the extracts from Rules of Business, 1973.
5. Mr. Nasrullah Awan argued that the actual date of birth of the respondent is 9-1-1936 and not 9- 1-1938, which fact is also confirmed by the Controller of Examinations, University of Sindh. He contended that the respondent stands retired on 8-1-1996 on becoming 60 years of age and both the learned lower Courts have wrongly passed the impugned orders. He also argued that the Civil Court has no jurisdiction into the matter. In support of his contentions he relied upon 1993 M LD 2158, Federation of Pakistan v. Dr. Nasir Mehmood. Khan. To a question that 9-1-1938 is mentioned in the Service Book of the respondent which is maintained by the applicants, he said that it was wrongly mentioned and it is a mistake. One thing is clear that is Service Book of the respondent his date of birth is mentioned as 9-1-1938 while the University certified to be 9-1-1936, which needed a detailed enquiry, and that can be achieved when the suit shall proceed, and each party shall have equal chance to prove its stand.
6. Mr. Muhammad Farogh contended that as per Rules of Business the advice of the Finance Department is binding on the Central Board of Revenue who is in clear terms advised to accept the age of the respondent as 9-1-1938.
7. I have applied my mind to the valuable arguments of the learned Advocate and have also gone through the impugned orders passed by the learned II Senior Civil Judge, Karachi (South) and the District Judge, Karachi (South) and I have no option but to agree with their reasonings in reaching to the conclusions in the matter. In 1993 M LD 2158, the Notification of the retirement was challenged but in the instant case it is not so.
8. Since two different dates of birth of the respondent are borne out of the record maintained by the applicants, as such in deciding application under Order 39, Rules 1 and 2, C.P.C. It cannot be determined as to which of the two dates is correct, for which evidence is needed, hence the Trial Court as well as Appellate Court were justified in passing the impugned orders in the peculiar circumstances of the case.
9. Under the above circumstances, I find no merit in the above Revision Application, as such it is dismissed in limine, with no order as to costs.