The facts in brief giving rise to this Civil Revision Petition are that the petitioner filed suit for declaration with consequential relief against the respondent on 14-3-1992 contending that she had appeared in B.A. Examination held in the year 1984 under Roll No.4099 and that she passed in all subjects except English in which she was shown to have obtained 60 out of 200 marks. The petitioner claimed to have applied for re-checking of her English Paper and on re-checking it was found that answer to one question in English Paper B was not marked, and that on her protest against this omission, she was assured that her paper would be sent back to the examiner for marking the unmarked question. The petitioner further stated that thereafter she left for U.S.A. And got admission in Harvard University and that she stayed there uptill August, 1990. During her stay in the U.S.A., she has been writing letters to the University Authorities for doing the needful but if was not done. After completing her Graduate course from the Harvard University, the petitioner returned to Pakistan and again contacted the University Authority but now she was told that the marking was not done. Finally the petitioner served with a legal notice upon the respondent which also failed to bear any fruit and finally the suit was filed which was contested by the respondent.
After recording the evidence the learned trial Court decreed the suit. However, on appeal the decree was reversed by Rana Zahid Mahmood, Additional District Judge, Lahore vide judgment and decree dated 16-10-1993.
2. The learned counsel for the petitioner has mainly contended that for the omission on the part of the examiner who acted as an agent of the respondent-- University, to mark the answer book properly, the petitioner cannot be made to suffer. The petitioner claims to have approached respondent many times for the redress of her grievance and in spite of the assurance given to her that her paper would be re-evaluated, the needful was not done by the respondent which resulted in .The failure of the petitioner in her B.A. Examination. The learned counsel for the petitioner, however, submits that on the basis of the assurance given by the respondent-University to rectify the omission made in the paper, she got admission in the Harvard University of the U.S.A. And also graduated from the University and that it would be too harsh and would cause irreparable loss to the petitioner if she is again made to appear in B.A. Examination as the consequences of her reappearance in the B/A. Examination would be disastrous inasmuch as it would wash off the effect of her study in the Harvard University and also obtaining the graduation from Harvard University.
3. The learned trial Judge observed that although the relevant record was summoned by the petitioner but the same was not made available by the University. In this connection it was held as follows; "It is clear from the evidence produced by the parties that the University of Punjab despite specific order could not produce the record of Challan No.2122 dated 15-12-1984. The letters marked A.B.
And were also missing. Copy of the legal notice was also not available with the University of Punjab.
Besides the University of Punjab 'had. No knowledge of their own Letter No.,1604 ASI dated 25-9-1991.
The University of Punjab has produced nothing in rebuttal. "
4. The learned counsel for the respondent has taken preliminary objection by stating that the suit was barred by time which was instituted on 14-3-1992 although the examination was held in the year, 1984. The issue relating to the limitation was also discussed and decided by the learned trial Court in favour of the petitioner on the ground that the refusal to accede to the request of the petitioner was conveyed to her on 25-9-1991, therefore, this suit was within a limitation. For the purpose of limitation, the present suit falls under Article 120 of the Limitation Act which provides a period of six years from the time "when the right to sue accrues". Prior to 25-9-1991, the respondent did not reject the request of the petitioner. Therefore, the refusal as conveyed to the petitioner on 25-9-1991 gave the petitioner the right to sue. Accordingly the suit was rightly found by the learned trial Court well within time.
5. On factual plane, the learned counsel for the respondent denied that the petitioner made representations to the respondent-University or that she had deposited the amount for re- checking of her English Paper. The relevant record was in possession of the University who failed to make the same available to the learned trial Court in spite of the orders to that effect. Therefore, the learned trial Court was correct to raise presumption against the respondent and to rely on the statement of the petitioner who entered in the witness-box. The petitioner in her plaint and in her statement categorically stated that she had deposited the requisite amount of fee under Challan No.2122 on 15-12-1984 in the bank in favour of the University for re-checking of English Paper and that the Controller of Examinations of the University of Punjab had promised to get her paper re- marked by the examiner and convey to her the result. The respondent, therefore, ought to have produced the Controller of Examinations in evidence to rebut the plea of the petitioner. This not having been done by the respondent, the assertion made by the petitioner in this behalf stands unrebutted. The fact that the petitioner had deposited the requisite amount of fee for re-checking of her paper on 15-12-1984 vide Challan No.2122, also remained unrebutted as the relevant record was not produced by the respondent-University.
6. In my opinion this was not the case of awarding grace marks. The Vice-- Chancellor of the Punjab University was bound to get the paper in question re-evaluated in accordance with Regulation No.23 of the Regulations of the University of Punjab for which the requisite fee was deposited by the petitioner. Regulation No.23 is as follows:--- "23. The Vice-Chancellor or an officer authorized by him may, on receipt of an application in the prescribed form addressed to the Vice-Chancellor and accompanied by a fee of Rs.100 per subject (A & B) satisfy himself that;---
(a) the result of the applicant has been correctly compiled and declared (this will include checking of answer-books, award lists and result--sheets);
(b) the answer-book is in the handwriting of the candidate himself. (In exceptional cases, the Vice- Chancellor may in his discretion, allow the answer book to be shown to the candidate or his guardian for verification of handwriting). This, however, shall not fetter the discretion of the Vice- Chancellor to get a particular answer book or answer books re-examined in exceptional cases where there is a strong ground to believe that the same have not been justly evaluated.
Provided further that the benefit of grant of average marks will not be given to candidates in cases of re-checking of answer-books after declaration of their results, if their answer book/s is/are lost at the time of re-checking. They will, however, have the option to reappear in the paper/s in the next examination, if otherwise eligible. The candidate will also be allowed to claim refund of fee for re--checking;
7. Since the re-checking/re-evaluation was not done in accordance with Regulation No.23 and meanwhile the answer sheets, according to the respondent, were destroyed, the petitioner was entitled to be awarded average marks in English Paper ' B' also in accordance with Regulation No.6 which is as follows:--- "If a candidate's paper is lost after having been received by the Superintendent of the Examination Centre or by one of his assistants, and if he passes in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examinations, and if he obtains pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller of Examinations, subject to the approval of the Vice-Chancellor, shall be final: Provided that if an answer book/s received by an Examiners is/are lost before or after evaluation, average of the marks obtained by the candidate in other papers in which he had appeared shall be awarded to him in the said paper. The candidate shall, however, have the option either to avail the average of the marks or to reappear in the paper: Provided further that the benefit of grant of average marks will not be given to candidates in cases of re-checking of answer-books after declaration of their results, if their answer book/s is/are lost at the time of, re-checking. They will, however, have the option to reappear in the paper/s in the next examination, if otherwise eligible. The candidate will also be allowed to claim refund of fee for rechecking."
8. Admittedly, the petitioner appeared in the B.A. Examination and her papers including the English Paper, were received by the University. As observed above, the factum of re-checking of the English Paper is also established. The petitioner who has successfully graduated from the Harvard University (renowned University of the world) cannot be deprived of her legitimate right because of any hypertechnical objection or because of the omissions made by the respondent University or by any of the examiners on its behalf. The observation in the appellate judgment passed by the learned Additional District Judge, Lahore on 16-10-1993, holding that, "I agree with the contention of the appellant's counsel that the evidence of the respondent is without corroboration and her statement is solitary in the field which does not find any support from P.W. 2 who is University employee. It could, therefore, be said that there was no material with the learned trial Court to hold that Issue No.3 stood proved", is not tenable. The statement of the petitioner was consistent with the averments made in the plaint. The evidence in rebuttal could be produced by the respondent- University who were in possession of the relevant record. Although the case was still in dispute, yet the answer book of English Paper was destroyed by the University. If the answer book was not destroyed, the assertions of the petitioner would have been proved or contradicted beyond doubt.
Similarly, if the record was also made available by the University to the learned trial Court, presumptions would also not have been raised against the University. I, therefore, in the light of the above discussion, accept this revision petition, set aside the appellate judgment and decree dated 16-10-1993 and restore the judgment and decree passed by the learned trial Court with the modification and direction to the respondent-University to award average marks in English Paper to the petitioner, in accordance with Regulation No.6, quoted above, on the basis of the marks obtained by her in other papers. No order as to costs.