1991 PLP 806 (MLD)

S.48-A

Civil Procedure Code (V of 1908), S.115

Challenge to correctness of date of birth--Locus standi--Person aggrieved could challenge correctness of date of birth entered in record maintained by Government or by University before Civil Court--Plaintiff, if assumed to be debarred from approaching Government or University for correction of his date of birth after two years of his date of entry into service, then his remedy would lie before Civil Court

Copy of birth entry which remained unrebutted conclusively proved that plaintiff was born on specific date as alleged by him and not on that date as stated in record of petitioner Government

Appellate Court was thus competent to reverse judgment and decree of trial Court

Petitioner could not point out any illegality, material irregularity or jurisdictional defect in the elaborate and well-reasoned judgment of Appellate Court--Revision was dismissed in circumstances. Ch. Akhtar Masood for Petitioner. Irshad Ali Qureshi for Respondents. Date of hearing: 6th November, 1990. On 9-10-1983, Dr. Muhammad Afzal Shah (hereinafter to be referred as respondent No.1) filed a suit for declaration to the effect that he was born on 8-12-1938 and the date of birth entered as 1-11-1936 in the service record maintained by the Province of Punjab, Health Department, Lahore (hereinafter referred as petitioner) and University of the Punjab, Lahore (hereinafter referred as respondent No.2) was incorrect. As a consequential relief, he prayed for a direction to the defendants to enter the correct date of his birth, i.e. 8-12-1938. The suit was dismissed for want of evidence. On appeal, it was remanded to the trial Court, who after recording the evidence produced by the parties, again dismissed the suit of the respondent/plaintiff on 18-1-1988. Feeling aggrieved, he filed an appeal which was entrusted to the learned Additional District Judge, Multan (hereinafter referred as Appellate Court), who while accepting the appeal on 20-7-1978 set aside the judgment and decree of the trial Court and decreed the suit as a whole, hence this revision.

2. The learned counsel for the petitioner submitted that it is a case of judgment at variance and the judgment of the Appellate Court is based on misreading and non-reading of evidence; that the Appellate Court has not given any solid reason in support of its decision; that the appeal was barred by time; that the respondent No.1 was estopped from challenging the correctness of the date of his birth entered in the record of the petitioner and respondent No.2 in that, he himself gave his date of birth as 1-11-1936 in his admission form of matriculation examination; that he did not raise any objection to the date of his birth at the time of filing admission form for BA. examination; that he slept over his right for more than 20 years and now it does not lie in his mouth to say that the date of his birth stated in the service record maintained by the petitioner and respondent No.2 was incorrect; that in any case, he was obliged to apply for the correction of his age within two years of the entering into service; that the suit of respondent No.1 was/is barred under section 48-A of the University of the Punjab Act, 1973, which shows that all acts done, orders passed or proceedings taken by the University in good faith are final and cannot be called in question in any Court by a suit or otherwise and that the suit was mala fide inasmuch as the petitioner being at the verge of retirement wanted to prolong his service. The learned counsel for the respondent No.1 has supported the judgment of the Appellate Court.

3. I have considered the submissions made by the learned counsel for the parties with care. I do not feel persuaded to agree with the counsel for the petitioner. He has not been able to point out any misreading/non-reading of material evidence by the Appellate Court, who has applied its conscious mind to the material evidence on record; has given sound and cogent reasons in support of its decision and has also attended to the reasons given by the trial Court for the dismissal of the suit. In short the Appellate Court has considered all legal and factual aspects of the case and also discussed the relevant case-law. Respondent No.1 has satisfactorily explained the inordinate delay in filing the suit. As for the objection of the appeal being barred by time, there is nothing on record to show that the Copying Agency had given an actual date for the delivery of certified copies of the judgment and decree to the respondent No.1. So, he was entitled to exclude the time between the date of the application and the date of delivery of the copies of the judgment and decree and as such, the appeal was quite within, time. In paras. Nos.2, 3, 4 and 5 of the plaint, the respondent/plaintiff has stated that:

5. In short, the respondent/plaintiff's case was that he was born at Kahror Pacca, Tehsil Lodhran, District Multan. However, his father was posted in Sukkur (Province of Sindh), so he (plaintiff) started his education at primary stage in Sukkur. During the partition, the record of the school, where he was studying was destroyed consequently his date of birth was wrongly recorded as 1-11-1936 in the admission form for matriculation examination and that it was only 3/4 months before the filing of the suit when he obtained the copy of birth entry from relevant register maintained at Kahror Pacca that he discovered the mistake in the date of his birth recorded in his service record and in the record of the university as well. There is nothing in evidence to disbelieve the plaintiffs explanation. In the written statement filed by the Province of the Punjab, the denial at paras Nos. 2, 3, 4 and 5 is somewhat evasive. There is no rebuttal at all of the statement of the plaintiff/ respondent that it was only 3/4 months before the filing of the suit that he came to know of his real and true date of birth. I do not see any cogent reason to disbelieve the plea of the respondent/plaintiff. If he came to know of his true date of birth only 3/4 months before the filing of the suit then it was not humanly possible for him to apply for the correction of his date of birth within two years of the date of his entering into service or within two years of the date of the entry of his age in the record of the University. So copy of letter No.SOR-II (S&GAD) 6.4/75, dated 4-9-1975 (Exh.Dl), copy of letter No.SOR-II(S&GAD) 6.4/75, dated 4-9-1975 Exh.D2), Rule 7.3 of Pay, Allowance, etc. of Establishment (Exh.D3), Punjab Financial Rules, Annexure-H (Exh. 134) and copy of Circular Letter No. SOR-IV(S&GAD) 6-7/84 dated 1-4-1986 (Exh.D5) do not apply to the case of the respondent/plaintiff. An examination of these documents will show that the same do not restrain the aggrieved person from challenging the correctness of the date of birth entered in the record maintained by the Provincial Government or by the University before Civil Court. Be that as it may, the fact remains that there was a wrong. If it is' assumed that the petitioner was debarred from approaching the Government or the University f6r the correction of his date of birth after two years of his date entry into the service then his remedy was certainly before the Civil Court. Copy of birth entry Exh.D3 which remains unrebutted conclusively proves that the respondent was born on 8-12-1938 and not on 1-11-1936 as stated in the record of petitioner and respondent No.2. The Appellate Court was quite competent to' reverse the judgment and decree of the trial Court. Learned counsel for the petitioner has not been able to point out any illegality, material irregularity or jurisdictional defect in the elaborate and well-reasoned judgment of the learned 4ppellate Court. The submissions made by him are devoid of force and substance and do not make out a case for interference in exercise of the revisional power of this Court, with the judgment and decree passed by the Appellate Court. Pursuant to the above discussion, the revision application fails and is accordingly dismissed, leaving the parties to bear their own costs. AA./P-130/L Revision dismissed.