1998 PLP 376 (SCMR)

Respondent in person. Date of hearing: 7th November, 1997. The present civil appeal is directed against an order passed by a learned Judge of the High Court of Sindh on 30-4-1997 in revision, upholding, an order of the learned District Judge, Karachi South, dated 19-3-1996 affirming grant of temporary injunction in favour of the plaintiff-respondent whereby the direction was issued by the learned trial Judge to the petitioners ;not to retire the respondent on 9th January, 1996 as his age of superannuation would fall on 8th January, 1998. ,

2. The factual background narrated by this Court in the first' round of litigation between the parties are as under. The dispute in this petition is about the date of birth of the respondent. He was appointed as an Inspector in Income-Tax Department on 30-9-1967, promoted as an Assistant Income-Tax Officer on 18-1-1973, further promoted to Grade-17 on 26-5-1988 and in Grade-18 on 17-1-1993. On the publication of gradation list in 1991, the respondent allegedly came to know that his date of birth was wrongly entered in the service book as 9-1-1936 instead of 9-1-1938. It is stated that Controller of Examination, University of Sindh, has also confirmed that the date of birth of the respondent was 9-1-1936 but his representation for correction of date of birth was allegedly rejected by the departmental authorities. The respondent, therefore, filed a declaratory suit .(No.1364 of .1995) for alteration of date of birth alongwith an application under Order XXXIX, Rules 1 and 2, C.P.C. for interim injunction. The learned Senior Civil Judge No. l (South), Karachi vide order dated 10-1-1996 granted status quo ante. The appeal filed by the petitioners against the aforesaid order was dismissed by the learned District Judge (South), Karachi, vide order dated 19-3-1996. Being aggrieved with the aforesaid orders, the petitioners invoked revisional jurisdiction of High Court of Sindh at Karachi for redress. The revision application was also dismissed by the High Court vide impugned order dated 7-7-1996. Hence this petition for gave to appeal.

3. Learned counsel for the petitioner has contended that the respondent had no prima facie case in his favour in view of two precedents of this Court reported as: (i) M.R. Khalid v. Chief Secretary, Punjab and another (1994 SCMR 1633) and WAPDA through its Chairman and another v. Muhammad Nawaz Khan and another (1995 SCMR 1216). The learned counsel further submitted that on the authority of Imam Bux v. Province of West Pakistan through the Deputy Commissioner, Khairpur (1970 SCMR 491) the respondent had already retired before the issuance of the interim injunction and that in these circumstances the learned trial Judge, the learned District Judge and the learned Judge in Chambers of the High Court had erred to have issued any injunction because the order of retirement had become effective on 9-1-1996

4. The respondent who had appeared in person has attempted to defend the impugned orders passed in his favour by the two Courts below and the High Court.

5. In the light of well-settled principles for the grant or refusal of temporary injunction in accordance with law, which are, firstly, whether the plaintiff has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of the injunction, and thirdly, whether the plaintiff would suffer an irreparable loss if the injunction is refused, the two Courts below and the learned Judge of the High Court have not comprehended the above principles including the one whether the respondent had a prima faice good case. In the case in hand the respondent had not been able to show that a prima facie good case existed in his favour in view of the two cases, namely, M.R. Khalid v. Chief Secretary, Punjab and another and WAPDA through its Chairman and another v. Muhammad Nawaz Khan (supra). In the case of M.R. Khalid, the petitioner therein had taken the Competitive Examination and hail himself declared at that juncture his date of birth to be 2-6-1930. He remained in service for about 35 years thereafter. His name together with his declared date of birth appeared in the gradation lists and civil lists periodically published by the Provincial Government but he did not object to the incorrect publication of his date of birth till a few years before his retirement. The mere fact that he was able to obtain a decree from the Additional District Judge did not advance his case, as the Government was not a party to that civil suit brought by him; that though the Government has undoubtedly the power to correct an incorrectly recorded date of birth of a civil servant but the silence of the petitioner over the major portion of his service was such that he did not merit a favourable decision from the Government. The civil petition filed by M.R. Khalid was, therefore, dismissed. In the case of Muhammad Nawaz Khan (supra), this Court had observed as under:-- "During the last 30 years or so, the respondent never raised any objection to his date of birth as entered in the service record and now that he is retiring on 20-3-1995, he has come up with a decree from the Civil Court with a view to gain some more years in service. In the submission of the learned counsel, petitioner department is not bound by the Court's decree as it was not a party thereto. Learned counsel points out that in somewhat similar circumstances, this Court has held in the case of M.R. Khalid v. Chief Secretary, Punjab (1994 SCMR 1633) that silence of a civil servant over the major portion of his service was such that he did not merit a favourable decision from the Government in the matter of correction of his date of birth. Contention raised needs consideration."

6. We may very relevantly refer to the fact that a challenge to the date of birth which was impugned in the declaratory suit was made a little before the original date of retirement, namely, 9-1-1996. The precedent of this Court in the case of Imam Bux (supra) supports the contention that the trial Judge, the learned Additional District Judge and the learned Single Judge in the High Court should not have issued any injunction because order of retirement had already become effective. Even otherwise, no irreparable loss will be caused to the respondent. In case he succeeds in his suit, he will be considered as still in Government service and will be entitled to recover his emoluments from the Government.

7. In the case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139), which was a promotion case, a Full' Bench of this Court had enunciated the law that under clause (d) of section 56 of the Specific Relief Act, (I of 1877) which prohibits the grant of an injunction which interferes with the public duties of any Department of the Central Government or the Provincial Government should not generally be issued. In the precedent case also the appellant therein had been reverted by an order, dated 18-11-1965 whereas he had instituted a suit on 20-11-1965, two days thereafter. It was, therefore, held that under Order XXXIX, rule 1 of the C.P.C., status quo can be maintained between the parties in accordance with the situation as it obtains at the time of the institution of the suit and not to a point of time prior thereto. In the instant case in the revision filed in the High Court, the learned Single Judge with all respect has unfortunately disposed of the matter summarily deciding it in favour of the respondent because he had agreed with the two Courts below without having recourse to section 56(d) of the Specific Relief Act (I of 1877) which placed an embargo on the powers of the Court in granting temporary injunctions against Government departments without resort being had to the other weighty and relevant considerations in the grant or refusal of a temporary injunction.

8. In the result we convert this petition into appeal and allow it. In consequence, the impugned orders passed by the Trial Court, the Court of Appeal and the High Court granting and upholding order of status quo ante are set aside. The trial Court is directed to conclude the proceedings in the suit and dispose it of within two months. The record of the case, if it had been requisitioned, should be transmitted immediately to the Trial Court. A.A./R-13/S Appeal accepted.