1996 PLP 1064 (MLD)

Hence, this revision petition.

9. Contesting the suit, the respondent defendant University of the Punjab admitted that the petitioner appeared as a candidate for the 1970 Annual Examination of M.A. English but maintained that he failed to qualify the same and that the degree claimed or possessed by him was fictitious and forged one. The respondent‑defendant also raised objections regarding maintainability of the suit, cause of action and bona fide of the petitioner‑plaintiff. The pleadings of the parties were accordingly reduced to the following issues by the learned trial Court: ‑‑‑ (1) Whether the suit is barred by the principle of res judicata7 OPD (2) Whether the suit is not maintainable? OPD. (3) Whether the plaintiff has got a cause of action? OPP. (4) Whether the plaintiff has not approached the Court with clean hands? OPD. (5)Whether the plaintiff cleared his M.A. English Examination in 1970? OPP. (6) Whether certificate of scrutiny verifying that the plaintiff had passed his M.A. English Examination in 1970 was issued by a team of scrutinizers of the defendant? OPP. (7) Relief.

10. The facts substantially in issue are embodied in Issue No.5. It is this issue on which hinges the fate of other issues. Issue No.6 has no independent bearing on the merits of the suit because the Scrutinizing Committee was constituted by the Government for certain administrative purposes without associating the University of the Punjab. The evidence on record also shows that the said committee while verifying the record did not verify the testimonials of the staff from the record of the University. The relied upon the record and documents presented to them. The finding or report of this committee is, therefore, not binding on the University of the Punjab.

11. The parties alleged and counter‑alleged a number of facts. They started from the appearance of the petitioner in the examination and while making oral statements retied upon various documents also. The sifting of facts is obviously beyond the scope of revisional jurisdiction of this Court. A perusal of the record, however, indicates that erroneous interpretation of law and evidence has resulted in illegal exercise of jurisdiction and material irregularity sufficient to vitiate the findings of the learned Appellate Court.

12. What led the learned Appellate Court to set aside the judgment and decree of the trial Court and to dismiss the suit was that the petitioner‑plaintiff had failed to prove that he had passed M.A. English Examination. It was further observed by the learned Appellate Court, "In case the respondent/plaintiff had cleared his M.A. English Examination he should have satisfied the relevant authorities and proved that he had passed the said examination".

13. There is no doubt that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. This principle of evidence and proof is, however, subject to certain other circumstances such as envisaged by Articles 119 and 122 of the Qanun‑e‑Shahadat, 1984. The rules of burden of proof are in fact the statements of rebuttable presumptions. When a presumption operates in favour of a party the onus of proof is on the opponent; and when the law has laid the burden of proof on a party, the presumption operates in favour of the opponent. The burden of proof in the sense of introducing evidence constantly keeps on shifting. As the proceedings go on, the burden of proof may be shifted from the party on whom it rested first.

14. Thus, when a plaintiff comes to a Court and asks for certain relief on ` the basis of certain facts, the responsibility to prove those facts has to be on him, but the law makes provision for which in the given circumstances a party on whom the burden of proof lies under Articles 117 and 118 of the Qanun‑e Shahadat, 1984 may shift the onus to the other party.

15. Another aspect of the law of evidence may also be mentioned before proceeding further. By virtue of Article 122, ibid when any act is especially within the knowledge of any person the burden of proving that fact is upon him. This rule is of very general application. It holds good whether the proof of the issue involves the proof of an affirmative or of a negative. In fact it is designed to meet certain exigencies in which it would be impossible or disproportionately difficult for a party to establish a fact which is especially within the knowledge of its opponent and which the latter could prove conveniently. This particularly applies in the case of record or documentary evidence which is required to prove or disprove a certain fact but is in the custody of the opposite‑party. Thus, where a plaintiff has produced the best evidence available to him and has taken all steps necessary for the production of record or evidence, the responsibility for the production of record or evidence especially in the knowledge and custody of the defendant would shift on to the latter.

16. Judging the instant case on this touchstone, we find that the defendant University being the custodian of the record of examination and its result (after the petitioner had produced the result sheet Exh.P.1) it was its bounden duty to E prove that the petitioner‑plaintiff had failed to qualify the examination in question. It is here also that the learned Appellate Court erred in reaching a valid and legal conclusion on Issue No.5.

17. There is no denial to the fact that the petitioner applied for and did appear in the M.A. English Annual Examination of 1970. All further and subsequent proceedings of papers, their" marking, tabulation of result, its announcement etc. etc. fell within the domain of the respondent University. The petitioner was not supposed to have any concern or control over the performance of these functions. Unfortunately the record pertaining to the result was lost or misplaced and in any case was not traceable in the office of the University. The responsibility for the loss of that record has also been fixed by the University Authorities on their own official, namely, Imtiaz Butt. The duplicate record in the form of result sheet Exh.Pl has been prepared by the University Authority themselves. Exh.Pl was admittedly scrutinized and the scrutiny certificate signed by the concerned officers is pasted on Exh.Pl. The genuineness of the signature of the scrutinizers is not denied. Instead it is stated that those signatures were obtained from them through cheating.

18. Be that as it may, it was all a University affair for which the petitioner could not be held responsible and punished merely on suspicion or on oral allegation of this connivance in the matter. The result sheet is official record of the University and has been produced from proper custody the presumption of correctness is, therefore, attached to its contents. And the name of the petitioner appears on it as a successful candidate. Thus, the petitioner‑plaintiff lawfully and successfully discharged the onus that lay upon him. Now it was for the respondent‑defendant to establish the contrary, which it failed to do. The notification of result relied upon by the respondent is not a comprehensive document. A specimen of another notification of result produced by the petitioner i.e. Exh.P12 though latter in time, contains full details of the result of every candidate. If the format of previous notification used to be different, it was for the respondent‑University to prove from other record such other particulars of result as were not given in the notification of 1970 but were necessary to ‑establish the fate of the examination of the petitioner. But the record which could prove other relevant details as given in Exh.P12 and missing in Exh.Pl i.e. the disputed notification of 1970, has not been placed before the Court.

19. The mere oral allegations of P.W.1 that Exh.Pl is not in accord with the formerly prepared result cannot be taken for granted because, as already stated, Exh.Pl is an official record, prepared by the officials of the University and comes from proper custody Moreover, he has not assigned any reason or given any explanation for his adverse remarks against the genuineness of Exh.Pl. Very strong and direct evidence was required to disbelieve its entries. There is nothing to show that P.W.1 in any way and at any stage remained associated with the preparation of the disputed result. He was, therefore, not a proper witness to prove that Exh.Pl was not a genuine document and that the result prepared previously was different from the one given in Exh.Pl. It, therefore, stands proved that the petitioner qualified the M.A. English examination in 1970.

20. The effect of the above discussion is that the finding of the learned Appellate Court on Issue No.5 and order for dismissal of the suit is not tenable in law. The wrong interpretation of law and evidence by the learned Appellate Court has caused material irregularity which resulted in illegal exercise of jurisdiction for the acceptance of appeal of the respondent‑defendant. This revision petition is therefore, allowed, the judgment and decree passed by the learned Appellate Court is set aside and that of the learned trial Court is restored. No order as to costs A.A./A-10/L Revision accepted