' SABIHUDDIN AHMED, J.--- This appeal is directed against an order dated 24-12-2002 whereby the appellants' plaint in Suit No,816 of 2002 was rejected under Order VII, rule 11, C.P.C. The undisputed facts appear to be that the appellants Nos.2 to 4 who are the minor children of appellant No,1 were studying in the Karachi Grammer School which is managed and controlled by the respondent. On 23rd May, 2002, a letter was dispatched by the Principal of the school to the appellant No,1 and his wife (parents of appellant No,3) complaining about the academic performance of the respondent No,3 and stating that he will have to repeat the year in school or alternatively he inay be withdrawn from the school. This letter was responded by the appellant No,1 and his wife Dr. Shaha Malik on 29- 5-2002, wherein it was requested that the case of the appellant No,3 be reviewed and he be promoted conditionally.
2. According to the respondent an E-mail addressed to the headmaster of the school from the appellant No,1 was received at about 4-58 p.m. To the following effect:-- ' "Dear J. Calafato, ' It has come to my knowledge that the school rules permit children of 7th and 8th grade to be kept back to repeat the academic term.
' However, this rule does not suit and I believe that the parents of the children should be asked if they want their child to repeat or not. I order the school, knowing my status giving them time latest by Saturday, Mav 25, 2002, to give these children an option either to repeat or be promoted to their respective classes.
'If, as I have instructed, due to any reasons, fails to happen before the given time, serious action against you and the school shall be taken resulting in fatal action.
' Thanking you in advance."
3. According to the appellants, however, no such E-mail was sent by the appellant No,1. It is alleged that a reply to the letter dated 23rd May, 2002 was only communicated on 29-5-2002, however, it is explained that a D.S.P. Of the C.I.D. Visited the appellant No,1 and informed him that he had received a complaint from the respondent regarding threatening E-mail. A copy of the E-mail was delivered to the appellant and his statement was recorded. Thereafter he and the appellant No,3 were also acquired to visit Napier Police Station where their statements were recorded. Accordingly appellant No,1 on hearing of such E-mail addressed a letter to the headmaster dated 4th June, 2002 which was received on 7th June and the contents thereof may be reproduced as follows:-- ' "It has been brought to our knowledge that an E-mail has been received by you. We are very much concerned and worried about it since we have nothing to do with it. Our record with your school is not only flawless but filled with respect for each other which can be verified through the Junior Section administration of KGS.
' Further, we would like to meet you immediately and-discuss about the subject letter that was sent by hand to you with expectations for an early meeting with you that would enable us to prepare Aali, during the holidays, in order to improve his academic performance.
' My residence Phone No, is 5834720.
' Respectfully yours (Sd.) Arif M. Malik.
4. The appellant has further alleged that he also checked the record of his own computer and requested the Cyber internet service to providhim with details of using internet facilities on 24-5- 2002 and found that no such E-mail had been dispatched from his facility. He was also informed by the police that the investigation was over and need not worry.
5. It is further contended that the appellant also met the Headmaster of the middle school to understand the relation and cause behind the whole story but no documentary evidence was furnished to establish any involvement of the appellants in the alleged threatening E-mail. All of sudden, however, he received a letter, dated July 27, 2002 alleging that on account of the aforesaid E-mail containing offensive and threatening remarks the appellant No,1 stood disqualified as "a suitable parent of a student in the school". Consequently the names of all his three children i.e, appellants Nos.2 to 4 were taken off the roll with immediate effect.
6. Consequently the appellants filed Suit No,816 of 2002 on the original side of this Court wherein the following reliefs were claimed.
"(a) Declaration to the effect that the letter, dated 27-7-2002 by which the names of the children of the plaintiff were removed from the roll of the school is illegal and void ab initio.
(b) Declaration to the effect that the children of the plaintiff namely (1) Miss Ana Malik, (2) Master Aali Malik and (3) Master Aamir Malik are the bona fide student of Karachi Grammer School and are entitled to continue their studies at Karachi Grammer School without any interruption and hindrance from the defendant.
(c) For permanent injunction restraining the defendant its agents, representatives, and all persons claiming through or under it authority from harassing, interfering, joining or stopping in any manner the children of the plaintiff namely (1) Miss Ana Malik, (2) Master Aali Malik and (3) Master Aamir Malik from attending their respective classes and from participating in the other school activities.
(d) Costs of the proceedings.
(e) Any other relief deem fit and proper by this Honourable Court."
7. The plaint was accompanied by an application for interim relief and learned Single Judge by an ad interim order, dated 2-8-2002 suspended the operation of the order, dated 27th July, 2002 and directing the respondent to permit the appellants Nos.2 to 4 to attend classes at their own risks and costs.
8. The respondent filed a written statement denying the allegations in the plaint and claiming that "the authenticity of the E-mail was verified by the result of a trace of the returned path conducted by Yahoo and Cyber Net at the request of US-Consulate Security Authority. It was further alleged that the respondent had provided four opportunities to the appellant to clarify the said "threatening E-mail so definitely made from the Internet facility at his residence". But the appellant failed to furnish correct and satisfactory explanation.
9. Alongwith the written statement, the respondent filed an application seeking rejection of plaint under Order VII, rule 11, C.P.C. Contending that the suit was barred by the provisions of sections 42 and 54 of the Specific Relief Act and the plaint did not disclose any legal cause of action. Th application was taken up for hearing by a learned Single Judge and the plaint was rejected vide the impugned order, dated 24-12-2002.
10. Mr. Iqbal Kazi learned counsel for the appellant in the first instance argued that the respondent was a duly registered institution under section 6 of the Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 and the certificate of registration granted by the Executive District Officer Education City District Government, dated 14-1-2003 expressly required that the Institution shall not terminate any staff member or student without the prior approval of the registering Authority. Indeed such a condition does appear to exist in the certificate of administration put with all respects we do not think that the aforesaid condition could be enforced when the termination took place prior to the certification of the respondent under the act as there is nothing to show that it would be given retrospective effect.
11. Mr. Kazi then argued that a plaint could only be rejected if from a bare perusal of a plaint it could be seen that no cause of action could be spelt out. In the instant case the appellant has specifically urged that the impugned action was taken by the respondent without giving the appellant a proper opportunity of being heard and the allegation of dispatching the E-mail in question had been emphatically denied. Mr. K.B. Bhutto learned counsel for the respondent on the other hand argued that the respondent had conducted investigations for determining that the E- mail had been sent from the appellant's facility and four opportunities were given but the appellant was unable to furnish any satisfactory explanation.
12. Be that as it may indeed Mr. Kazi is correct to the extent that the traditional view has been that for the purpose of rejecting a plaint under Order VII, rule 11, C.P.C. Only the contents of the plaint have to be looked into. However, it has lately been modified to the extent that even an undisputed document placed on record can also be looked into for the aforesaid purpose. It may also be added that though the respondent has alleged that four opportunities were provided to the appellant not a single document requiring appellant to do so has been placed on record and there is no explanation whatsoever how the alleged opportunities were provided. Evidently, therefore, the questions whether the appellant had actually sent the E-mail in question and whether the respondent complied with the principles of natural justice in giving the appellant a proper opportunity of being heard are disputed factual controversies which could only be resolved at the trial.
13. Nevertheless, Mr. K.B. Bhutto contended that the decision on the above controversies was irrelevant inasmuch as the respondent was running a private school and had absolute unfettered distinction to admit or expel any student. The appellants Nos.2 to 4 had no vested right to remain in school nor were they under any obligation to do so. The only contract that could be inferred could be that a student has a right to be conducted in a school as long as he pays fee and confirms to the rules of school discipline but such contact is always terminable at the violation of any party. He referred to the observations of the learned Single Judge in para.19 of the impugned judgment to the effect that contracts of personal services cannot be specifically enforced through injunctions and a student cannot be foisted upon a unwilling teacher. Mr. K.B. Bhutto further argued that in any event the appellants could seek declaratory relief only with respect to legal character and right as to property in terms of section 42 of the Specific Relief Act. In the instant case obviously no right as to property could be claimed and the position of the appellants as student of school could not even amount to a matter of legal character. In this context he referred to a Division Bench judgment/of .The Dacca High Court in Burma Eastern Limited v. Burma Eastern Employee Union PLD 1967 Dacca 190 to the following effect:-- ' "The expression 'legal character' or 'status' denotes a character or status conferred by law on an individual or a number of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a `status' or 'character' conferred by law. It is not a creature of contract but of law."
14. A similar view was taken by this Court in Alavi Sons Ltd. v. The Government of East Pakistan PLD 1968 Kar. 222 and the Lahore High Court in Abdur Rehman Mobashir v. Amir Ali Shah Bokhari PLD 1978 Lah.
113. It was emphasized in the first case that a right acquired under a contract could not be considered to be a matter of legal character.
15. Mr. Lqbal Kazi, however, argued that the provisions of section 42 were not exhaustive and declaratory relief could always be granted by a Civil Court. If the matter fell within the provisions of section 9 and Order VII, rule 7, C.P.C. In support of this view he relied upon the pronouncements of the Supreme Court of India in Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy AIR 1967 SC 436 to the following effect:-- ' "In our opinion section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the section."
16. Mr. Kazi further argued that the above view was reiterated by the Indian Supreme Court in S.G.
Films Exchange v. Brijnath Singhji AIR 1975 SC 1810 where the legal position was explained in the following words:-- , ' "The result is that section 42 merely gives statutory recognition: to a well-recognized type of declaratory relief and subject it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside section 42."
17. Learned counsel then referred to a very recent pronouncement of this Court in W A. Rahim & Sons (Pvt.) Ltd. v. Province of Sindh 2003 CLC 649 wherein after examining a large body of case-law and apparently conflicting judicial pronouncement, the learned Single Judge came to the conclusion that section 42 of the Specific Relief Act was not exhaustive.
18. We have given our anxious consideration to the question involved after having noticed that both view, as to section 42 being exhaustive or otherwise have been taken by superior Courts in the subcontinent. Possibly one reason for divergence of judicial opinion appears to be that when the Specific Relief Act was enacted in 1877 the concept of rights which could be enforced through Courts was largely confined to "status" as understood in a feudal social context or rights pertaining to property in a laissezefaire economy. With the development of jurisprudence over more than a century a large number of other rights which did not strictly' speaking, relate to status of an individual or deal with tangible property came to be recognized by law and some of them in the form of guaranteed fundamental rights. The right of privacy, to carry on the business of one's choice, access to public information and, large body of social and cultural rights neither relate to status in the traditional sense nor tangible property. Keeping in view the well-settled principle that wherever there is a right there must always be a remedy to enforce it persuaded Courts not to remain bound within the technicalities of section 42 for the purposes of granting relief.
19. Moreover, Article 4 of the Constitution guarantees to every citizen the inalienable right to be treated in accordance with law. This guarantees, which has been often described as embodying the right of law does not operate merely against the instrumentalities of the State. Article 5 stipulates obedience to the law and the Constitution as the inviolable obligations of every citizen. It would indeed be anomalous to suggest that a victim of illegal action has to go without redress because sub-Constitutional legislation does not lay down the mode for enforcing his rights. For this reasons too, we are persuaded to hold that the view that the provisions of section 42 of Specific Relief Act are not exhaustive seems to be preferable.
20. Indeed it was urged by Mr. K.B. Bhutto with a great deal of emphasis that the respondent was a purely private school with an absolute unfettered discretion to admit or expel students and any interference in its absolute discretion either on the part of the Court or any other public authority was called for. Frankly with profound respects and acknowledging the autonomy available to the respondent in its working, we are not really impressed by the argument. Though no amount of Government control appears to be involved, any organization running a school by its very nature performs functions of great concern to the public. Perhaps the public interest involved in its working is far more than that in a joint stock company whose Directors have been held to be holders of public offices and for the purposes of Article 199 as held by the Honourable Supreme Court in Maqbool Illahi v. Khan Abdul Rehman PLD 1960 SC 266 and Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244.
21. It needs to be noticed that even prior to the promulgation of the 2001 Ordinance private educational institutions imparting education to more than 50 students could only function upon being registered under the Sindh Registration of unrecognized Education Institutions Ordinance 1962 (West Pakistan Ordinance XI of 1962), and the registering authority was empowered to ensure that the location, furniture and equipment was suitable, its teaching staff was qualified and the rates of tuition fee were not in excess of the scales prescribed or approved by the Department.
Perhaps we can also take judicial notice of the fact that a large number of private schools received aid or other facilities such as amenity plots etc. From the Government and it was upon such a premises that the Supreme Court of United State was able to enforce desegregation in schools whereas the Court's jurisdiction to give directions was recognized to be confined to state institutions only.
22. In the circumstances, we are inclined to take the view that even when the respondent is not a department of the Government or an institution substantially owned and managed by it, an element" of public, duty to impart proper education to students who fulfill the fee requirement and agreed to abide by the disciplinary and other regulations of the school is always present. Such duty like all public powers must be exercised fairly and honestly irrespective of any strict legal right existing in favour of the students. Such duty would amount to an obligation in terms of section 3 of the Specific Relief Act, which could always be enforced through a perpetual injunction under section 54. In Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785 the Honourable Supreme Court held that even if declaratory relief could not be granted under the law the prayer for injunction could be treated as independent relief and could always be granted. It would therefore, follow that even if the appellants are found not to be entitled to a declaration as to their entitlement it was always possible for the Court to grant permanent injunction preventing the respondent from violating their obligations ordained by law as held in Arshan Bi v. Maula Bakhsh 2003 SCMR 318.
23. In any event Mr. Iqbal Kazi argued that even in purely private organizations the Courts have insisted that the rules of natural justice must be followed before a drastic action like expunction of a member is taken. He referred to a large number of cases from different jurisdictions, but it may be pertinent to mention two cases decided by our own Courts in Khawaja Muhammad Saeed v. Mr. Justice Shabir Ahmad PLD 1965 Lah. 92 which related to the Cosmopolitan Club Lahore it was held that an opportunity of hearing in accordance with the principles of natural justice must be granted before calling upon a member to resign. Similarly in Abbas Khaleeli v. Saifuddin Valika PLD 1969 Kar.
692 a suit questioning the removal of the President of a hockey club without affording him a proper opportunity of hearing was held maintainable. We are unable to see how a principle, which has been extended to amusement Clubs or private voluntarily bodies should not apply to schools upon whom the career and livelihood prospects, of a student largely depend.
24. In any event even if the respondent's unfettered right to admit or expel a student from its rolls is acknowledged, a very important factor that apparently escaped the attention of the learned Single Judge needs to be highlighted. In the instant case the removal of the appellants Nos.2 to 4 from the school was effected not in the exercise of absolute discretion vesting in the respondent, but on account of certain specific allegations which created a permanent stigma which could also affect the prospects of their admission in any other school. In this context we may refer to the pronouncement of the Honourable Supreme Court in Muhammad Siddiq Javaid v. Government of West Pakistan PLD 1974 SC 393. In this case it was held that the services of a civil servant during the period of his probation could be dispensed with, without notice if his performance was found to be not satisfactory for the purpose of placing his appointment on a permanent footing. At the same time, however, it was held that when these were allegations of corruption or misconduct creating stigma he was entitled to a show-cause notice. We are, therefore, of the view that since the removal in the instant case took place on the basis of specific allegations the appellants were entitled to proper opportunity of being heard and the allegations had to be proved. While we would not like to comment on the credibility of the allegations (lest it might prejudice a proper adjudication on merits) we cannot hold observing that they have to be considered in the totality of circumstances and the acknowledged correspondence requiring a serious appraisal of evidence. It also needs to be considered, assuming that the E-mail was sent by the appellant No,1 or 2, as to how far the appellants Nos.3 and 4 could be penalized of such alleged misdeeds.
25. An equally important aspect of the matter is that even if it is proved that the E-mail was dispatched through the facility available with the appellant No,1 and it is further assumed that he himself was its author it requires to be examined whether the appellants Nos.2 to 4 can be penalized in the form of deprivation of their right to seek education. Does the law allow the sins of parents to visit their children? In Mst. Arshan Bi and others v. Maula Bakhsh and others 2003 SCMR 318, the Honourable Supreme Court has reiterated that a heavy duty is cast upon Courts to do substantial justice and the rules of adversary system based merely on technicalities not reaching the depth of the matter are now a luxury of the past. Even if the appellants were found not 'entitled to a declaration and injunction in terms of section 42, the Court could still examine whether relief by way of cancellation of the impugned order, dated 25-7-2002 could be granted under section 39 of the Specific Relief Act. As was observed in the abovementioned case the plaintiff could always be granted an opportunity to amend the plaint.
26. For the foregoing reasons, we passed a short order on 4-9-2003, disposing of the petition in the following terms:- "For reasons to be recorded, the appeal is allowed and the impugned order is set aside. Interim order passed earlier is restored. However, it is expected that the learned Single Judge will dispose of the suit within six months."
' We must express our gratitude to the learned counsel for the parties for their invaluable assistance.
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