' This is a civil revision petition under section 115, C.P.C. Against the judgment and decree, dated 20- 5-1996 passed by the learned trial Court and judgment and decree, dated 23-7-1999 passed by learned Additional District Judge, Chunian.
2. Briefly stated the facts of the case are that in 1990 Mst. Ishrat Sultana (the respondent/plaintiff appeared in the Secondary School Annual Examination under Roll No,15020 and in the Admission Form the had recorded her date of birth as 4-4-1972 n her own handwriting and gave affidavit to hat effect. Later on the respondent made an pplication, dated 19-6-1991 to the Board of Intermediate and Secondary Education, Lahore (petitioner) for the correction of her date of birth from 4-4-1972 to 21-8-1975. The said application was disposed of by the Board vide Order, dated 12-1-1993 with the observation: "the record of M.C., Chunian has been examined. The entry was made in 1989, it is a case of later entry which is not permissible. Hence, rejected". The respondent filed a suit for declaration and specific relief of correction of her date of birth from 4-4-1972 to 21-8- 1975. The suit was contested by the petitioner/defendant and from the pleadings of the parties the learned Civil Judge framed the following issues:---
(1) Whether the correct date of birth of the plaintiff is 21-8-1975 in her Matriculate Certificate and date of birth 4-4-1972 has been wrongly entered? OPP.
(2) If Issue No,1 is proved in affirmative then whether the plaintiff is entitled to get decree for declaration as prayed for? OPP.
(3) Whether the Court has no jurisdiction to try this suit? OPD.
(4) Whether the plaintiff has not come with clean hands? OPD.
(5) Whether suit is false, frivolous baseless and defendant is entitled to the special costs under section 35-A of C.P.C.? OPD.
(6) Relief.
3. Both the parties led their respective evidence and learned trial Court decreed the suit of the respondent/plaintiff vide judgment, dated 20-5-1996. An appeal was preferred by the petitioner but the same was dismissed by the learned Additional District Judge vide judgment and decree, dated 23-7-1999.
4. Learned counsel for the petitioner has argued that both the Courts below have misread the evidence on record and fell in error while decreeing the suit and dismissing the appeal and that learned trial Court and Appellate Court have failed to appreciate Preliminary objection regarding the jurisdiction of Civil Court.
5. On the other hand learned counsel for the respondent has submitted that there is concurrent finding of both the Courts below and the question of jurisdiction was not pressed at the trial or at the appellate level and that question cannot be agitated now and that the petitioners BISE, is not going to suffer any loss or injury if the date of birth of the poor girl is corrected as requested by her and that the petitioner has no standi or cause of action, whatsoever, to resist the suit, to file an appeal and go to the extent to file even a revision petition and that the said circumstances.
Sufficiently hint at and point out that there is somebody among, the petitioner department who has come personal motive and ulterior ends to deprive the respondent of her legal right by getting her date of birth corrected in accordance with law.
6. I have given due consideration to the valuable arguments of both sides and have gone through the record with their able assistance.
7. So far as the bar of jurisdiction of Civil Court is concerned it is a legal issue and the jurisdiction cannot be conferred by not pressing and that it can lawfully be agitated at any stage and level of the proceedings. Sections 29 and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 (Punjab Act No,XIII of 1976) read as under:--- "29. Bar of suit.---No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court.
31. Protection of Acts and Order under the Act.---No suit for damages or other legal proceedings shall be instituted against Government, the Controlling Authority, a Board, a Committee, a member of a Committee or an officer or employee of a Board in respect of anything done or purported to have been done in good faith in pursuance of the provisions of this Act and the regulations and rules made thereunder."
8. In the case of Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 671), it was observed:-- "Any provision in an enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to .Orders passed with jurisdiction. It can be said as a general rule, without reference to the language used in an enactment, that barring provisions apply only to orders passed with jurisdiction. Of course, it is open to the Legislature to provide that not only acts done under an enactment, but even acts which purport to be done under an enactment will be immune from challenge. Such a provision will, however, be a very exceptional one, a provision which we are likely to come across only during a national emergency."
9. In the case of 139 Indian Cases 566 (F.B.) it was observed:--- "When it is provided that recourse may be had to a special form of procedure for the purpose of determining a dispute or recovering a valid demand upon the fulfilment of a condition precedent and the condition precedent to the vesting of jurisdiction in the Special Tribunal has not been fulfilled, all the proceedings before that Tribunal are null and void."
10. In the case of Scholastica Muria Percival v. Serajul Islam (PLD 1968 Dacca 241 (D.B.) it was observed:-- "It is a cardinal principle of interpretation that the provisions of an enactment must be considered in the context of the enactment which must be read as a whole. It must also be remembered that the Courts lean against ouster of jurisdiction and strictly construe any limitation upon such jurisdiction."
11. In the case of Abdul Karim v. The State (PLD 1959 Lah. 883) it was observed:--- "The Court may be given jurisdiction for an offence which was committed before the jurisdictional statute was passed. It would be a perfectly valid law and the accused would be tried by such Court."
12. In the case of Adnan v. Major Sher A fzal (1968 PCr.LJ 1373) it was observed:--- "It is well-established principle of law that where Special Tribunal is created (like 'Family Court' under the West Pakistan Family Courts Act, 1964) then by necessary implication the jurisdiction of the ordinary Courts is excluded even in the absence of the express words ousting the jurisdiction of the ordinary Courts."
13. In the case of Government of West Pakistan v. Wali Muhammad Habib (PLD 1961 SC 215) it was observed:-- "The provisions of the Cooperative Societies Act seek to impose restrictions upon the rights vested, under the general law, to have records to ordinary Civil Courts for the adjudication of disputes and, as such, the provisions of such an Act should, according to the accepted principles of construction of statutes, be construed strictly, and unless the person or category of persons sought to be so restricted come within the specified words of a statute, either Expressly or by necessary intendment, they shbuld not be included within their scope. In construing a statute we should also avoid, if possible, creating any repugnancy between its provisions and give meaning and effect to every portion thereof."
14. In the case of AIR 1930 All. 24, it was observed:-- "The jurisdiction existing in Court can only be taken away by the use of precise and distinct words in a statute, or some authorities have held, by necessary implication of the words used."
15. In the case of M.C., Gujranwala v. Ghulam Mustafa (PLD 1958 Lah. 31) it was observed: "Where an expression or a word is capable of a limited as well as a wide sense, only that sense should be assigned to it which is in accord with the spirit and the meaning of the section in which it is used and not inconsistent with those of the other provisions of the Act. But if the expression be open to either the wider or the narrower interpretation and neither can be definitely excluded with reference to the language employed in the section or other provisions of the Act the matter falls to be decided upon certain presumption, known as rules or principles of interpretation of statutes."
16. In the case of AIR 1936 All. 826 it was observed:--- "An alteration of the law of jurisdiction which is embodied in specific statutory enactment, may not be effected by implication in a statute which has nothing whatever to do with jurisdiction."
17. In the case of AIR 1928 Lah. 562, it was observed:--- "It is an established principle of law that when an Act of Legislature gives power to any person for a public purpose from which an individual may receive an injury, then if the mode of redress is also specific in the statute jurisdiction of originary Courts will be ousted."
1$. In the case of Noor Zaman v. Saldano (PLD 1967 Pesh. 343) it was observed:--- "It is a well-established principle of law that where Special Tribunal is created, then by necessary implication the jurisdiction of the ordinary Courts is excluded even in the absence of the express words ousting the jurisdiction of the ordinary Courts. Therefore, the jurisdiction of First Class Magistrate to pass order of maintenance under section 488, Cr.P.C. As well as that of Civil Courts qua 'maintenance' is ousted by the West Pakistan Family Courts Act, 1964 and the Rules made thereunder."
19. In the case of Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and 2 others PLD 1964 SC 260, it was observed that: "that where a superior Court calls for the records of judicial or quasi-judicial authorities or Tribunal, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against."
20. In a case of Shah Muhammad v. Khushal Muhammad and 3 others 1981 CLC 1191 (Lahore), it was observed that:--- "that so far as a question of jurisdiction is concerned, it is established proposition of law that in order to see whether the Civil Courts had jurisdiction to try the suit the averments contained in the plaint without adding a single word by way of defence or to have been taken into consideration.
Reliance in this behalf may be placed on Mst. Zainab v. Fazal Dad. The learned counsel for the appellants contended that the jurisdiction of the Court is determined with reference to the allegations made in the plaint and not on the pleas put forth by the defendants. The suits were instituted only on the basis of title and there the plaintiffs did not at all allege that the defendants were their tenants looking at the allegations in the plaint there can be no doubt whatsoever that the Civil Courts had the jurisdiction to try these cases because it is a well-established principle that the nature of the suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up. In Cheta v.
Baija and others AIR 1927 Lahore 452 it was held that in order to ascertain the nature of a suit the general rule is that the allegations in the plaint must, primarily, be looked to and that these allegations govern the question of jurisdiction. The same view was affirmed in Baru and others v.
Naldar and others AIR 1942 Lah.
217. It was also held in Muhammad Yusaf v. Nek Muhammad PLD 1955 Lah. 183 that the jurisdiction of a Court is determined not by pleas of the defendant but by the allegations in the plaint. As indicated above, the plaintiff's suit, according to the allegations in the plaint, were only for the recovery of the possession of the land in dispute on the basis of title as owners of the land, the defendants being treated as trespasser. Their suits were against the defendants not as the tenants but as trespasser. Prima facie therefore, the suits were cognizable by a Civil Court."
21. In a case of Board of Intermediate and Secondary Education, Lahore and others v. Ch. Anjum Pervaiz and another 1989 CLC 64 (Lahore), it was observed that: "Suit by respondent calling in question order of Disciplinary Committee and Appellate Committee, averments of plaint were not showing any particulars of mala tides against disciplinary and Appellate Committee and points raised fully covered by provisions of law, order of trial Court rejecting plaint was restored."
22. In a case of Board of Intermediate and Secondary Education, Lahore through its Chairman and others v. Mst. Salama Afroze and 2 others PLD 1992 Supreme Court 263, it was observed that: "The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. Besides, it has been laid down by this Court in Muhammad Sarwar v. The State PLD 1969 SC 278 that a Judge must know the adage that a Judge must wear all the law of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."
23. In a case Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst.
Sobia Chand (1999 CLC 1166) it was observed that:--- "As regards the question of jurisdiction, I would like to reproduce the following observations of the Supreme Court of Pakistan in Zafar.Ul Ahsan v. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan PLD 1960 SC (Pak.) 113):-- 'If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omission or irregularity alleged will be a matter for that authority, and not for a Court of Law.'
' I am of the considered view that the civil suit brought by the respondent Mst. Sobia Chand was hit by the provisions of sections 29. And 31 of the Punjab Boards of Intermediate and Secondary Education Act, 1976. Section 29 ousts the jurisdiction of a Civil Court when the action is in pursuance of the provisions of the Act while section 31 amongst others, makes provision for exclusion, of the jurisdiction of the Civil Court when the action may not be strictly in accordance with the relevant provisions but only purports to be in accordance therewith, if it had been done in good faith. There is nothing on record to show/suggest that the orders passed by the relevant Committee on the application for correction of the date of birth lacked good faith or had been passed mala tide. I am fortified in arriving at the conclusion by what has been laid down in Muhammad Rafique v. The Board of Intermediate and Secondary Education and others 1998 SCMR 1024 and also in Board of Intermediate and Secondary Education, Lahore and others v. Ch. Anjum Pervaiz and another 1989 CLC 64. In the absence of any allegation with regard to mala fides and lack of good faith on the part of the Committee the jurisdiction of the Civil Court clearly stood ousted. The findings of the two Courts below on the question of jurisdiction were, therefore, also the result of misreading and non- reading of evidence and faulty appreciation of the law on the point. The finding on Issue No,2, is, therefore, also set aside. As regards the competency of the suit I would, like to confine myself to observing that the suit was/is competent because the plaintiff and he next friend proceeded on the assumption that the plaintiff was a minor. The finding on issue No,1, is, therefore, not interfered with".
24. In case Ijaz Mahmood v. Board of Intermediate and Secondary Education, 86-Mozang Road, Lahore through its Chairman, 1999 CLC 984, it was observed that: "The, next question for me to examine is whether the Board has rightly acted in this matter? The respondent Board is a creation of the Punjab Boards of Intermediate and Secondary Education Act, 1976, Punjab Act No,X111 of 1976. Under section 20 a Board, subject to approval of the Government; can frame regulations not inconsistent with the provision of the Act, to carry out the purposes of the Act, section 32 of this Act provides that 'notwithstanding anything to the contrary contained in this Act, the regulations set out in the Schedule shall be deemed to be the first regulations framed by the Board under section 20 of this Act'. Chapter 3 of the Schedule contains General Regulations.
Under Regulation No,3(5), the Board has the power to make regulation on the subject of 'Changes in dates of birth'. Regulation No,5 is the Regulation directly in question and the same is reproduced below: 'The date of birth of a candidate who has either applied for appearing in the Secondary School Examination or has already passed the examination, may be corrected; provided that:
(1) The application is made within 2 years from the declaration of the e result of Secondary School Examination on payment of Rs,150 or from 2 to 5 years on payment of Rs,250 or from five to ten years on payment of Rs,350 or after ten years on payment of Rs,1,000 as a special fee; provided further that the fee once received shall not be refunded.
(2) The Board is satisfied after enquiry and inspection of school records pertaining to the first admission of a particular candidate in a recognized school that the mistake was due to a clerical error in transferring the date of birth from one record, register or document to another record, register or document. OR ' If the entry of the date of birth on first joining a recognized school is not available or is reported to be incorrect then the birth certificate containing all entries pertaining to his name in the Municipal Birth Register be supplied; provided that the. Name of the candidate and the name of the father of the candidate are clearly mentioned in these entries. OR ' If the entry of the date of birth of son/daughter of a military personnel on first joining a recognized school is available but reported to be incorrect, then the Casualty Report (Birth Certificate) containing all entries pertaining to the name in the Central Officers' Record Office (G.H.Q.), Rawalpindi, and in the relevant regimental centres for other ranks be supplied provided that the name of the candidate and the name of the father of the candidate are clearly mentioned in these entries. OR ' If the entry of the date of birth of son/daughter of Air Force/Naval Personnel on first joining a recognized school is available but reported to be incorrect, then the Casualty Report (Birth Certificate) containing all the entries pertaining to the name in the P.A.F. Record Office, Mauripur, Karachi and the Naval Headquarters, Karachi be supplied provided that the name of the candidate and the name of the father of the candidate are clearly mentioned in these entries.
' The school records are corrected in the same manner as the records in the office of the Board.
' Notwithstanding anything contained this regulation the Chairman may accept a certificate of a school duly attested by the foreign mission of Pakistan in a Foreign Country.
' It will be seen that nowhere in the above regulation an entry in a Municipal Birth Register has been made binding on the Board. Under proviso (2) the Board has to be satisfied after enquiry and inspection of school records pertaining to first admission of a particular candidate in a recognized school that mistake was due to clerical error in transferring the date of birth from one record, register or document to another record, register or document, before it can correct the record. In the alternative, the Board can refer to the Municipal Birth Certificate, if entry of the date of birth on first joining a recognized school was not available or is reported to be incorrect, for the same purpose. Under proviso (3) the entry can be corrected only if 'The school records are corrected in the same manner as the records in the office of Board' ."
25. For the above reasons, it appears that both the Courts below have exercised a jurisdiction not vested in them by law. As such, the impugned orders, dated 20-5-1996 and 23-7-1999 cannot be maintained and the same are set aside and the revision is accepted with costs and the suit is dismissed.