MAULVI ANWARUL HAQ, J. -- On 13.3.2000 the respondent filed a suit against the petitioner.
According to the plaint the petitioner was born on 14.9.1981 at Sir Ganga Ram Hospital, Lahore. In the course of the said birth his mother had to be subject to scissorian procedure; that the father of the petitioner was a Judicial Officer posted at Lahore at the relevant time and the expenses incurred on the said procedure were reimbursed to him by this Court; that the petitioner had been studying in educational institutions and his date of birth was being recorded as 14.9.1981. However, the same came to be recorded as 14.9.1979 instead of 14.9.1981 in record pertaining to his Matriculation Examination held in the year 1995 and the same error crept in the Secondary School Certificate issued by the petitioner in February, 1996; that on 29.2.1996 the respondent made an application to the petitioner for correction of the error. However, no order was passed on this application and ultimately the respondent was constrained to file the present suit. The petitioner in his written statement questioned the jurisdiction of the Civil Court in view of Sections 29 and 31 of the Punjab Boards Act, 1976. The material allegations in the plaint, however, were not denied but only ignorance was expressed. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed the suit vide judgment and decree dated 28.7.2000 while a first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Lahore on 23.10.2000.
2. Learned counsel for the petitioner contends that application of the respondent for correction of his date of birth was pending when the petitioner Board and the learned Courts below have assumed jurisdiction in violation of the aforementioned provisions of law. Learned counsel has, however, very fairly conceded that the documents relied by the respondent and consequently by the learned Courts below are free of doubt. Learned counsel for the respondent, on the other hand, contends that this was a case of failure to exercise jurisdiction on the part of the petitioner Board and the only remedy available to the respondent in the circumstances was to approach the Civil Court.
3.. I have gone through the copies of the records appended with this Civil Revision. I find that there is no denial on the part of the petitioner in its pleadings. In reply to the specific allegation of the respondent that he was born on 14.9.1981 in the circumstances narrated by him in the plaint, and also that his father was reimbursed by this Court the expenses incurred by him on the birth of his child. Learned counsel has also not questioned the authenticity of the documents Ex.P-1 and P-2 produced and proved through an officer of the Ganga Ram Hospital, Lahore showing his birth in the said Hospital on 14.9.1981. Issue No. 3 which covers the merits of the case has, therefore, been correctly decided by the learned Courts below that the date of birth of the respondent is 14.9.1981.
This finding of fact has not at all been questioned by the petitioner Board.
4. Coming to the said contention of the learned counsel it is true that the said provisions of law do bar the jurisdiction of the Courts in the matters to be determined by the petitioner Board and also the filing of the suit against it regarding acts done in good faith. In the present case, however, it stands admitted that the application for correction was filed as far back as on 29.2.1996. The suit was filed on 13.7.2000 i.e. Almost four years thereafter. Now there is no plea and there is no evidence from the side of the petitioner Board as to why it did not decide the matter for four long years. This thus is a case of failure on the part of the Board to exercise the jurisdiction vested in it. Under the law the petitioner Board or for that matter any other public functionary is required to act with reasonable despatch. On the other hand, I find that the only response to the said application filed in the year 1996, according to DW-2 Muhammad Idrees was a latter written on 8.6.2000. It may be that the petitioner had not acted with malice in fact and there are certainly no particulars in the plaint of the said malice but malice may be of fact and then there may be malice in law. To my mind the inaction of the petitioner Board in the matter of taking up and deciding the application for such a long time constitutes malice in law. The respondent was not supposed to wait till eternity. He was pursuing his career and had felt the need for correction of his academic records particularly the date of birth which of course is a matter of importance in the educational career as also the matter of joining service or other employment. The distinction between the malice in fact and malice in law was noted by a Full Bench of this Court, in the case of Malik Ghulam Mustafa Khar and others Vs. Pakistan and others (PLD 1988 Lahore 49). Their Lordship, inter alia, quoted the following excerpt from the treatise "Judiciary under Constitution" by R.C. Chaturvedi", the question of "malice in law" does not necessarily include the imputation of dishonest motive. But it includes the want of necessary care and caution. Malice in law further includes a non-application of mind on the part of the authority vested with powers.
It was then observed that malice in law is thus, different from the malice as known in the common parlance which is usually associated with evil motive influencing the mind of the person committing the malicious act. Thereafter, the following observations of Mr. Justice Muhammad Haleem (as his Lordship then was) in the case of Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others (PLD 1971 Karachi 514) was referred:- ... An order in violation of law is mala fide in law ft though actual malice may not be present in the mind of the Authority passing the order.....
5. The inaction on the part of the petitioner Board coupled with non-application of mind to the application filed by the respondent containing a prayer which has been found to be just by the learned Courts below, therefore, does constitute malice in law and consequently the learned Courts 'below were vested with the jurisdiction to come to the aid of the respondent.
6. In the light of the above discussion I do not find any case being made out for interference with the impugned judgments and decrees within the four corners of Section 115, CPC. The Civil Revision is accordingly dismissed leaving the parties to bear their own costs.