1989 PLP 368 (MLD)

(3)??????? Which domicile and what method of rules should be basis for allocation of seat to the plaintiff? (4).?????? Whether the plaintiff is entitled to the allocation of seat from the quota of Sind Urban? (5)??????? Whether the defendants have violated the order of status quo? (6)??????? Whether the Court has no jurisdiction? (7)??????? Whether the suit is not maintainable according to law? (8)??????? What should the decree be? The trial Court found that the respondent and his father are holding valid domicile of Sind Urban. It found that there is no restriction in law for change of domicile. He held that the respondent is entitled to the allocation of seat from the quota of Province of Sind (Urban) to which his father belongs by holding present domicile. The trial Court held that the suit is maintainable and he ?decreed the suit against the applicants. The applicants appealed against the judgment and decree to the District Judge. The learned appellate Court confirmed the findings of the trial Court. It is the appellate judgment and decree which are challenged by the applicants in this Civil Revision application. Mr. Akhlaq Ahmed Siddiqui, the learned counsel for the applicants challenged the correctness of the findings of the Courts below that the suit is barred under sections 21(6) and 42 of Specific Relief Act and also finding of fact that father of the respondent opted for Pakistan and is holding domicile of Sind (Urban). The Courts below held that the father of the respondent migrated to Pakistan in 1947 from India and was serving as Deputy Director, Investment Promotion Supplies, Government of Pakistan and was posted in Karachi until his retirement in or about 1966‑67 and respondent's father has been holding properties at Karachi since 1952. The respondent got his education upto post-?graduation at Karachi and he is holding National Identity Card issued at Karachi. The Courts below found that since the father oh respondent had also got property at Peshawar, therefore he obtained previously the Domicile Certificate issued by the Government of N.W.F.P. in or about 1979 for the formal use without having any intention for permanent settlement in the Province of N.W.F.P. and subsequently the respondent and his father had permanently settled in Karachi and they surrendered Domicile Certificate issued in the Province of N.W.F.P. bona fidely. The respondent obtained Domicile Certificate of Karachi (Sind) from the competent authority. The Courts below held that the domicile certificate is lawful and valid and was/is never cancelled by the competent authority. The Courts below also held that the respondent complied with all the rules and regulations for his appearance in the competitive examination held by the applicant No. 2 and he appeared in the said examination specifically numbering in the form and the respondent duly qualified the said examination of. C.S.S. as per result declared in Press note dated 23‑8‑1986 at serial number 240 against Roll No. 1915. The above findings being findings of fact cannot be challenged in this revision on the ground of mis‑appreciation or erroneous appreciation of the evidence on record, as that does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under section 115, Code of Civil Procedure. I am of the humble opinion that it is not open to this Court to question the findings of fact recorded by subordinate Courts in the exercise of its revisional jurisdiction under section 115 of the Code involving questions of jurisdiction, i.e. questions regarding irregular exercise or non‑exercise of jurisdiction, or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law and fact in which questions of jurisdiction are not involved. Moreover, I find on a perusal of the impugned judgment that above?mentioned finding of fact has been arrived at on cogent and convincing consideration of the relevant evidence on record. Accordingly, the aforesaid finding of fact cannot be interfered with on any consideration. The next and the most important question to be decided in this revision is whether the suit is hit by the provisions of sections 21(b) and 42 of the Specific Relief Act. The first point for consideration is whether the respondent is entitled to a legal character within the meaning thereof in section 42 of the Specific Relief Act. Section 42 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right. This section therefore applies when a person is entitled to any legal character or to any right to property. According to Salmond (Salmond on Jurisprudence, 10th Edition, page 229), "a right is an interest recognized and protected by a rule of right. It is any interest, respect for which is a duty, and disregard of which is a wrong: All that is right or wrong, just or unjust, is so by reason of its effect upon the interests of mankind, that is to say, upon the various elements of human well‑being, such as life, liberty, health, reputation, and the uses of material objects If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially affected by it. Conduct which has no influence upon the interests of any one has no significance either in law or morals. Every wrong, therefore, involves some interest attached by it, and every duty involves some interest to which it relates and for whose protection it exists........The interests which thus receive recognition and protection from the rules of tight are called rights". ??????????? According to Holland (HollandPs Elements of Jurisprudence, 125th Edition, page 82:‑ "A right is one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or the force of society": According to Salmond (page 230):‑ "A legal right is an interest recognized and protected by a rule of legal justice‑‑an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty. According to Holland (page 83):‑ A legal right is a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others:' Therefore, according to both Salmond and Holland, every interest or right which is recognized and protected by the State, i.e., by the laws of the State, is a legal right and every such legal right involves a legal duty or obligation. As observed by me earlier "legal character" as used in section 42 is equivalent to legal status and legal status is a legal right when it involves a peculiarity of the personality arising from anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence. The plaintiff/respondent claims legal ,character or legal status by reason of his domicile of Sind (Urban) which was issued by the competent authority. I, therefore, hold that the respondent is entitled to legal character within the meaning thereof in section

42. The Courts below rightly held that the suit was competent. . Both the learned counsel for the parties referred to ESTA CODE 65, a perusal of which would show that the candidates belonging to Pakistan by origin shall be considered for appointments only against the quota of the Province to which the father of such candidate belongs. In the instant case the respondent was born in Pakistan. His parents migrated to Pakistan. He should be considered for appointment from where he himself is domicile and has resided or has been educated for a continuous period of three years. Both the Courts have on consideration of evidence on record, recorded findings of facts against the applicants and held that the respondent surrendered his N.W.F.P. domicile and a domicile of Sind (Urban) was issued to him. They also held that his father migrated to Pakistan and obtained domicile of Sind. Apart from submitting that the appreciation of evidence by the Court below is not proper, no attempt was made to demonstrate that the findings recorded by the Courts below are contrary to law. Hence, those findings cannot be interfered with in this Revision Application. The suit is maintainable and is not barred by the provisions of Civil Servants Act, 1973. For the aforesaid reasons, I find no merit in this revision which is accordingly dismissed. H.B.T./I‑69/K????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.