SARFRAZ KHAN vs FEDERATION OF PAKISTAN

S. A. NUSRAT, J.--The judgment under appeal, dated 26-1-1985 was passed by the Lahore High Court in the background of the following facts:--

2. The appellant was employed as a Painter in 501 Central Workshop E.M.E. Rawalpindi, on 1-2-1942.

According to his own showing, the date of his birth was recorded in his service record as 1st February, 1923 at the time of his joining the service. The appellant, when he was at the verge of retirement, filed a suit, on 3-4-1982 in the Court of Senior Civil Judge, Rawalpindi claiming relief as under:-- 'Hence prayed that a decree for declaration to the effect that the date of birth of the plaintiff i.e. 19 July, 1927 mentioned in birth certificate of the plaintiff issued by Mansehra Municipal Committee is correct and actual date of birth of the .Plaintiff and service record be corrected accordingly and plaintiff be allowed to continue service up to 19 July, 1987.'

3. The suit was resisted by the respondent, inter alia, on the ground that it was barred by time as well as under section 42 of the Specific Relief Act and P.A. No. 35 of 1968. On the pleadings of the parties, the following issues were framed by learned Civil Judge: (1)Whether the plaintiff has no cause of action? O.P.D.

(2)Whether the suit is time-barred? O.P.D.

(3)Whether the suit is not maintainable under section 42, Specific Relief Act and under P.A.O. No. 35/68? O.P.D.

(4)Whether the defendant is entitled for special costs, if so, to what amount? O.P.D.

(5)Whether the plaintiff is entitled for the relief claimed? O.P.P.

(6)Relief.

The above issues were decided by the trial Court in favour of the appellant and the suit was decreed as prayed on 20-6-1983. The respondent's appeal against the said judgment and decree was dismissed by the learned Additional District Judge, on 12-11-1983. This led to the filing of a revision by the respondent in the High Court which was allowed as per impugned judgment. The appellant has now come up in appeal.

4. Leave to appeal was granted, inter alia, to examine the following two questions:

(1) Whether the High Court should have interfered with the concurrent finding of fact rendered in petitioner's favour by the two learned lower Courts in its revisional jurisdiction; and

(2) Whether the civil Court had the jurisdiction to entertain the suit filed by the petitioner and grant him the relief as was shown in decree passed in his favour.

5. We heard Mr. Bashir Ahmed Ansari, learned counsel for the appellant and Mr. Munir A. Shaikh, learned Deputy Attorney-General and have gone through the impugned judgment as well as of the Courts below.

6. It was contended by the learned counsel for the appellant that in view of concurrent findings of fact recorded by the two Courts below in favour of the appellant, no interference was permissible in the exercise of revisional jurisdiction by the High Court. The learned counsel, inter alia, referred to a decision of this Court in the case of Kanwal Nain v. Fateh Khan PLD 1983 SC 53.

7. Mr. Munir A. Shaikh, learned Deputy Attorney-General on the other hand, stated that it was a case of gross irregularity as the Courts below had completely failed and overlooked the documentary evidence produced on behalf of the respondent which was available on the record. He referred to the judgment of the trial Court which mainly discusses the evidence of the respondent and the correctness or otherwise of Exh. P/1, which is a certified copy from the birth register of village Natrar Police Station Mansehra for the year 1927. It shows the birth of a son of Haider, a Turk Muslim as 14- 7-1927.

8. The appellant had unequivocally stated before the trial Court in his cross-examination that he had produced a birth certificate at the time of joining the service. No allegation was made by him in the plaint that his age was wrongly entered in the service documents in disregard of such birth certificate. Nor any attempt was made to summon the alleged birth certificate from the department at the trial of the suit. The respondent's evidence comprising Exh. P.8 and P.10 was neither examined nor discussed by the learned two Courts. A passing reference to Exh. D.8 was made by the trial Court in the following manner; 'From the oral evidence produced on the record the fact stands established that the certificate EXh.P.1, produced by plaintiff concerns him. There is no rebuttal of plaintiff's this evidence on the record. Except Exh. D.8 a form filed by the plaintiff himself, on 27-9-1955 in which his date of birth is shown as 1-2-1923. The plaintiff has rebutted the correctness of this date of birth by producing document Exh. P.1 which is issued by District Health Officer, Mansehra.'

The said Exh. D.8 is a certificate, dated 26-9-1955 signed by the appellant himself and countersigned by the Commander, 501 Central Workshop and reads as follows:-- Age Certificate Certified that 1, Sarfaraz Khan T.No. 3102 accept 1-2-1923 (First February Nineteen hundred and Twenty-three) as correct date of my birth.

Dated: 26-9-1955.(Sd.)Sarfraz Khan.

Countersigned: The above date has been personally verified by me "from his S /Card and is correct.

(Sd.)

It. -Col. Commanding 501, Central Wksp.'

Additionally Exh. D.10, dated 8-9-1963 is a pro forma furnished by the appellant duly signed by him and countersigned by Commander, 501 Central Workshop. In column III of the said pro forma the date of his birth was given by the appellant as 1-2-1923 which is in accord with the date shown in Exh. D.B. The signature on the said exhibit were not denied by the appellant. The learned counsel for the appellant was unable to explain why the age in the relevant service documents came to be recorded as shown therein unless it was based on the information furnished by the appellant. No mala fide was alleged against any officer of the department. These two Exhs. P. 8 and P. 10, as rightly pointed out by the learned Deputy Attorney General, were thus completely ignored by the learned trial Court and the first appellate Courts. The disregard of the said evidence produced by the respondent as discussed above clearly amounted to gross irregularity and answer the objection of the learned counsel for the appellant. The reasoning given by the learned Judge ire the High court for setting aside the judgments of the learned two Courts below, in the facts and circumstances of the case, is unexceptionable.

9. The learned Deputy Attorney-General also pointed out that the relief claimed in the plaint to the effect that the plaintiff be allowed to continue service upto 19th July, 1987 was completely outside the purview and jurisdiction of the learned trial Court and no such relief could have been granted.

The learned counsel for the appellant was unable to meet this objection.

10. For the reasons mentioned above, we find no merits in this appeal, which is dismissed with no order as to costs.