1999 PLP 1166 (CLC)

It is a case of late entry which is not permissible. (4) The case has been rejected.

4. Mst. Sobia Chand feeling aggrieved thereby brought a civil suit, for a declaration with consequential relief, through Mst. Gulshan Tahira, her real mother as her next friend (claiming that the plaintiff was minor) against the Board of Intermediate and Secondary Education through its Secretary alleging therein that at the time of filing the admission form for matriculation ~' examination the date of birth was incorporated as 2‑3‑1974 inadvertently by the sheer negligence of the staff of the said school and since the defendant had refused to correct the date of birth, she had to take resort to the civil action for a declaration to the effect that the correct date of birth of the plaintiff was 2‑3‑1979 and for a mandatory injunction, as a consequential relief that the date of birth be corrected in the record as 2‑3‑1979 instead of 2‑3‑1974 and a fresh result card be issued, S. This suit was hotly contested by the Board and besides denying the correctness of the allegations made by the plaintiff on facts it was maintained by the Board in their written statement that the jurisdiction of the Civil Court was barred under the provisions of the Boards Act and that the suit was not competent as it had been filed by her mother in spite of the fact that the plaintiff was major.

6. A comparison of the pleadings of the parties gave rise to the following issues:‑‑ (1) Whether the suit is not competent in its present form? O.P.D. (2) Whether the Court lacks jurisdiction to hear the case? O.P.D. (3) Whether the correct date of birth of the plaintiff is 2‑3‑1979 and she is entitled to decree as prayed for? O.P.P. (4) Relief.

7. Parties then led their evidence on these issues. Mst. Gulshan Tahira mother of the plaintiff besides appearing herself as P.W.3 got examined Mirza Aslam Baig son of Muhammad Chiragh Baig (P.W.1) and Hafiz Shahzad Qaiser (P.W.2). Her counsel produced a certificate having been issued by the Headmistress Government English Junior Model School, Dabbi Bazar, Lahore which was brought on record as Exh.P.4, subject to an objection by the opposite party. Shahid Tabassum Legal Assistant, Board of Intermediate and Secondary Education, Lahore appeared as the only D.W. and produced certified copies of certain documents. _ ,,

8. After taking into consideration this evidence and hearing the learned counsel for the parties, the learned Civil Judge seized of the matter answered issues Nos. l and 2 against the defendant and after a detailed discussion on issue No.3 he came to the conclusion that he was of the considered view that Mst, Sobia Chand was born on 2‑3‑1979 He accordingly decreed her suit against the defendant with a direction to the latter to correct her date of birth in the relevant record. He, however, left the parties to bear their own costs.

9. Feeling aggrieved the Board preferred an appeal against this judgment and decree but without success. The learned Additional District Judge upheld the findings on all the issues and dismissed the appeal on 31‑5‑1994 but left the parties to bear their own costs, thus, obliging the Board to file the instant revision petition.

10. I have heard the learned counsel for both the parties. Mr. Shahid Waheed, Advocate, has mainly relied on the provisions of sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act (No.XIII) of 1976 and Punjab Education Code (Rules and Appendices) with particular reference to Rule 29 and has urged that the jurisdiction of the Civil Court ;vas exclusively barred but both the Courts below failed to appreciate the law on the subject in its true perspective. The learned counsel for the respondent has, on the other hand, contended that the concurrent findings of facts by the two Courts below cannot be interfered with.

11. I would like to reproduce the relevant provisions of law and rules for the sake of convenience. Sections 29 and 31 read as under "Section

29. Bar of suit.‑‑‑ No act done, order passed or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court. Section

31. Protection Jof acts and order under the Act.‑‑‑ No suit for damages or other legal proceedings shall be instituted against Government, the Controlling Authority, a Board, a Committee, the officers of the Board, a member or a committee or an officer or employee of a Board in respect. of anything done or purported to have been, done in good faith in pursuance of the provisions of this Act and the regulations and rules made thereunder." The relevant rule runs as under:‑‑ "

29. The minimum age of admission to Class I shall be 5 years and the maximum age for admission to Classes XI and XIII in a college shall be 20 years and 25 years respectively.

12. It is pertinent to note that both the learned Courts below failed to take into consideration the contents of the application submitted by Mst. Sobia Chand for the correction of her birth entry in the relevant record wherein she had specifically mentioned that the date of birth was wrongly entered (by her or some body on her behalf) at the time of her admission to the 6th Class. It was, therefore, obviously wrongly alleged in the plaint that at the time ;.filing the form for matriculation examination the date of birth was incorporated as 2‑3‑1974 inadvertently and by sheer negligence of the staff of the said school. (underlining is mine). In fact a perusal of the contents of the plaint gives an impression that the plaintiff was making a reference to "the sheer negligence" of the staff of Government English Junior‑ Model School, Dabbi Bazar. She (or somebody on her behalf, may be. her mother) appears to have wilfully and intentionally withheld the information with regard to her having sent her admission forms for matriculation examination through Government Tehzeeb‑ul Banat High School, Takia Sadhuan, Lahore. If the entry with regard to her birth was wrongly made‑ while seeking admission in the 6th class, the staff of ,the A school could not be blamed for any (imaginary) mistake in the admission form. The entry of her date of birth as 2‑3‑1974 was in accordance with the entry in her admission form submitted at the time of her admission in the 6th Class and that is how the Headmistress also put her signatures on the form appending therewith the requisite certificate with regard to the entries having been correctly made therein. Mst. Gulshan Tahira (P.W.3) also failed to make a mention of the fact that after Mst. Sobia Chand had done her junior school from Dabbi Bazar she was admitted in Government Tehzeeb‑ul‑Banat School. She adopted an evasive attitude when she was subjected to cross‑examination. She denied any knowledge as to why . Mst. Sobia Chand was not got admitted to class I. It is really interesting to note that she and the aunt (Phoophi) of the plaintiff had gone to school for the admission of Mst. Sobia Chand. Both of them are teachers. She admitted the suggestion as correct that a child less than 5 years of age could not be admitted to a school, but volunteered that if the child is fairly intelligent she/he could be admitted. I fail to understand as to how at the time of her alleged admission in class III (on 10‑4‑1984) no attention was paid by the relevant school staff that in view of the rules on the subject the child could not he admitted in class III when she was hardly five years of age. If no child of less than 5 years could be admitted to class I the only analogy deducible therefrom would be that the child should have been at least 8 years of age for admission to class III. Still further I find considerable force in the contention of the learned counsel for the petitioner that if the correction sought for was allowed, the petitioner would have hardly been 13 years of age at the time of her having done her matriculation. I am also not pursuaded to agree with the learned Additional District Judge that the birth certificate issued by the Municipal Corporation Lahore is a public document and is primary evidence in respect of the date of birth of the respondent, particularly so when the entry in the birth record was got made in the year 1992. This entry, to have been to ken as a primary evidence in respect of the date of birth of the respondent, should have been made in the Q year 1979 and not in 1992, as asserted by Shahid Tabassum, Legal Assistant D.W.1. The findings of both the Courts below on issue No. 3, therefore, cannot sustain in law and also on facts.

13. As regards the question of jurisdiction, I would like to reproduce the following observations of the Supreme Court of Pakistan in Zafar‑ul‑Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan PLD 1960 SC (Pak,) 113:‑‑ "If a statute provides that an order made by an authority acting under it shall not be. called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not for a Court of law. " I am of the considered view that the civil suit brought by the respondent Mst. Sobia Chand was hit by the provisions of sections 29 and 31 o: the Punjab Boards of Intermediate and Secondary Education Act, 1976. Section 29 ousts the jurisdiction of a Civil.Courts when the action is in pursuance of the provisions of the Act while section 31 amongst others, makes provision for exclusion, of the jurisdiction of the .Civil Court when the action may not be strictly in accordance with the relevant provisions but only purports to be in accordance therewith, if it had been done in good faith. There is nothing on record to show/suggest that the orders passed by the relevant Committee on the application for correction of the date of birth lacked good faith or had been passed mala fide. I am fortified in arriving at this conclusion by what has been laid down in Muhammad Rafiq v. The Board of Intermediate and Secondary Education and others 1998 SCMR 1024 and also in Board of Intermediate and Secondary Education, Lahore and others v. Ch. Anjum‑ Pervaiz and another NLR 1.988 UC

364. In the absence of any allegation with regard to mala fides and lack of good faith on the part of the Committee the jurisdiction of the Civil Court clearly stood ousted. The findings of the two Courts below on the p question of jurisdiction were, therefore, also the result of mis‑reading and non- reading of evidence and faulty appreciation of the law on the point. The finding l on issue No.2 is, therefore, also set aside. As regards the competency of the suit I would like to confine myself to observing that the suit was/is competent because the plaintiff and her next friend proceeded on the assumption that the E plaintiff was a. minor. The finding on Issue No. l is, therefore, not interfered with

15. Before parting with this judgment i would like to observe that although jurisdiction under section 115, C.P.C. is discretionary in nature yet the revisional Court would not interfere if it comes to the conclusion that substantial justice had been done or where it is shown to the satisfaction of the Court that the petitioner had not come with clean hands, but where it is established that F there had been miscarriage of justice on account of the fact that the Courts had acted in exercise of their jurisdiction illegally the findings though concurrent become amenable to the revisional jurisdiction of the High Court because the jurisdiction under this section is primarily meant to correct errors in the making 7 of orders and proceedings conducted by the subordinate Courts.

16. For all these reasons I accept this revision petition, set aside the findings of the two Courts below on issues Nos.2 and 3 and consequently the suit of Mst. Sobia Chand is liable to be dismissed and it is accordingly dismissed. Parties are, however, left to bear their own costs throughout regard being had to the facts and circumstances of the case. Q.M.H./M.A.K./B‑50/L Revision accepted.