P L D 1954 Sind 107 (PLP)

LARI, J.‑Shafaqatullah Qadri the plaintiff filed this suit against the University of Karachi for a declaration that he was eligible for admission to the First Bachelor of Law's Examination of the University of Sind on 8th December, 1950 and the defendants have illegally withheld his result of the First Bachelor of Law's Examination of the University of Karachi in the month of October, 1950. The Plaintiff alleged in the plaint that he passed the Intermediate Science and Agriculture Examination from the Board of High School and Intermediate Examination of United Provinces, India in the year 1950; be obtained migration certificate from the said Board and migrated to Pakistan where he was admitted by Sind Muslim Law College on 8th December, 1950 in the First Bachelor of Law's Examination ; he pursued the course of studies prescribed for two terms from November, 1950 to March, 1951 and from June, 1951 to October, 1951 and thus completed his terms: of studies as prescribed by the Sind University for the First Bachelor of Law's Examination ; during the first term Sind Muslim Law College was affiliated to the University of Sind but the University of Karachi Act came into force on 15th February, 1951 and consequently the College was taken over by the Karachi University on 15th February, 1951 ; the plaintiff completed the second term after the affiliation of the College to the University of Karachi. The plaintiff filed in necessary application form for admission to the First Bachelor of Law's Examination of the University of Karachi, deposited the prescribed examination fee and was duly admitted ; on 12th October, 1951, three days before the First Bachelor of Law's Examination of the University of Karachi, the plaintiff was verbally informed that he was not to be allowed to appear at the Examination as be had been considered ineligible for admission to the examination ; the Vice Chancellor of the University, however, allowed the plaintiff to appear in this examination conditionally, but when the result of the Examination was published, the result of the plaintiff was withheld by the defendants, and that the act of the University of Karachi in withholding the result of the examination was illegal and ultra wires. Hence this suit for the declaration stated above. The University of Karachi filed a written statement in which the main allegations were that only one who had passed Inter mediate Science Examination could be admitted to First Year LL. B. Class; the Plaintiff mis‑represented that he had passed the Intermediate Science Examination although he had passed Intermediate Agriculture Examination only, every applicant, for admission, has to file eligibility certificate at the time of admission and that not being done by the Plaintiff, his admission to First Year LL. B. Class was never valid and complete, the plaintiff no doubt pursued course of studies but as be did not submit eligibility certificate from the Sind University, his admission was illegal and liable to cancellation, the plaintiff was originally allot ted a Roll Number but on scrutiny of application form it was found that the plaintiff was not entitled under the Sind University Act or University of Karachi Act for the admission to the law Course or to appear in the First Year LL. B. Examination and be was accordingly informed by the proper authorities, the plaintiff was allowed to appear at the examination provisionally on the condition that in case standard of Intermediate Agriculture course was found to be lower than that of the Intermediate Science course the result would be cancelled ; and that subsequent investiga tion revealed that the plaintiff was not entitled to appear at the First Year LL. B. Examination and standard of Intermediate Science (Agriculture) was lower than that of Intermediate Science Examination and consequently the result of the plaintiff was withheld. The defendants further alleged that the suit was not maintainable and the Court has no jurisdiction to try the suit. The following issues were framed:- 1. (a) Has this Court jurisdiction to try this suit ? 1. (8) Whether the plaintiff passed his Intermediate Science (Agriculture) Examination from the Board of High School and Intermediate United Provinces (India) ?

2. Whether the plaintiff was admitted to the First Bachelor of Laws course of the University of Sind and' was eligible to appear at the First Bachelor of Laws Examination of the University of Karachi and whether Intermediate Science (Agriculture) Examination is equivalent to the Intermediate Science, Arts, Commerce or any other equivalent examination?

3. Whether the plaintiff suppressed and misrepresented the facts that he is Intermediate Science (Agriculture) and whether the admission made on 8th December 1950 is binding upon the defendants.

4. Whether the action of defendants in withholding the result of the plaintiff is illegal, ultra wires and without jurisdiction.

5. Whether the decision of the defendants in declaring that the plaintiff was ineligible for admission to the first Bachelor of Laws Examination is illegal and ultra vires ?

6. Whether the plaintiff is entitled to get the declaration prayed for and whether the suit is maintainable ?

7. To what relief, if any, the plaintiff is entitled ? The plaintiff examined himself and exhibited some documents, while the defendant examined three witnesses, S. M. Najmuddin, who has been working as Superintendent in the Karachi University since July, 1951 and was previously employed in the Sind University in the same capacity from July, 1947 Ziauddin Khan D. W. 2 who has been attached as Head Clerk to Sind Muslim Law College since June, 1949 and Nasir Hussain Jafri an Assistant Incharge of Administration Section in the University of Karachi since June, 1951. Issue No. 1 (a). Has this Court jurisdiction to try this suit? The defendants contend that in regard to matters which fall within the jurisdiction of the University, they are the sole judges and their decisions are not open to scrutiny by a Civil Court. The learned counsel for the Plaintiff, however, argued that if the University authorities act without jurisdiction or even while acting within the scope of their authority act in disregard of their statutes and regulations, this Court is competent to review the decision of the defendants. Mr. S. Nasir‑ud‑Din learned counsel for the defendants dealt with case‑law exhaustively and placed before me English, Indian and Pakistani authorities. A reference was made to a series of cases. The Chancellor, Masters and Scholars of The University of Cambridge reported in (Eng. Report Vol. 93 at p. 698.) The Queen on the prosecution of A. J. Tillyard v. The Prin cipal, Fellows and Scholars of Hertford College reported in (L. R. 1877‑1878, Q. B. D., Vol. 3 at p. 693) The King against The Benchers of Gray's Inn. on The Prosecution of Villiam Hart reported in (Eng. Report, Vol. 99 at p: 227.) The King against the Master and Fellows of St. 'Catherine's Hall, Cambridge reported in (Eng. Report, Vol. 100 at p. 991.) and R. v. Dunsheath Ex Parte Meredith reported in (The All Eng. L. R. 1950, Vol. 2 at p. 741.) in which a writ of mandamus was, sought against some educational institutions. Writ of mandamus was refused in those cases where there was a visitor for the University but issued in cases where there was none. These cases are not of much assistance inasmuch as it is an accepted principle that writ of mandamus should not be issued in cases where equally efficacious remedy is available. Next is the case of Ram Ugrah Singh v. The Benaras Hindu University reported in (A I R 1925 All. 253). The question of jurisdiction was not decided in the case but the following observations deserve notice :‑ "When a student enters any University as an under‑graduate, and a fortiori when a graduate of such University presents himself for a course of post‑graduate study he is 'a member of the "Universities" or corporation, and as such he is subject to the authority and discipline of those persons who have been duly placed in authority in this corporation. If he considers himself to be oppressed by some misuse of authority on the part of a person, or body of persons set over him, it is open to him to consider whether he cannot obtain redress from higher authorities within the same corporation. The question whether he has or has not passed a certain examination is one in respect of which by the very act of presenting himself for such exami nation, he submits himself to be the decision of the authorities appointed by the University for the conduct of the same. No Court of law can entertain a claim on his part that he has passed a certain examination when the authorities of the University conducting the examination, and lawfully empowered to adjucate upon its results, declare him to have failed." A number of other decisions by Indian and Pakistani Courts were cited at the bar. Reference may be made to Lachhman Singh v. Natha Singh reported in (940 Lah. 401) K. L. Gauba v. Punjab Cotton Press Co. Ltd. reported in (1941 Lah. 234) Ramani Kanta Bose v. Gauhati University reported in (1951 Assam 163.) Miss Shibani Bose v. Promotha Nath Banerjee reported in (A I R 1952 Cal. 238) Dipa Pal v. University of Calcutta reported in (A I R 1952 Cal. 594.) East Punjab University, Solan v. Tarlok Nath reported in (A I R 1953 Pb. 3) Muhammad Siddiq v. The University of the Punjab reported in (P L D 1954 Lah. 5.) Tapendra Nath Roy v. University of Calcutta reported in (A I R 1954 Cal. 141) and Rai Brij Rai Krishna v. Messr. S. K. Shaw reported in (A I R 1951 (S C) 115.). The principle underlying all these decisions is that if a private tribunal or University act within the scope of their authority and in consonance with their own statutes, regulations and byelaws a Civil Court will not sit in judgment. But if a University were to act beyond their own jurisdiction or in disregard of their own statutes, rules and regulations the Civil Court will have the right to step in. The jurisdiction of Civil Courts is governed by section 9 of the C. P. C. which lays down that the Courts shall have jurisdic tion to try all suits of a Civil Nature excepting suits of which their cognizance is either expressly or impliedly barred. The scope and effect of express or implied bar contemplated by section 9 of the C. P. C. has been considered by their Lordships of the Privy Council in various cases. I may refer to two of them. In the case of Secretary of State v. Mask & Co. reported in (19404P. C. 105) their Lordships were pleased to observe as follows:- "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in confirmity with the funda mental principles of judicial procedure." In the 'case of Lennox Arther Patrick O'Reilly v. Cyril Cuthbert Gittens reported in (A I R 1949 P. C. 313.) their Lordships observed to the effect that if a tribunal did not exceed its jurisdiction and acted honestly and in good faith the Court cannot intervene even if it thought that the penalty was severe or that a very strict standard had not been applied. Reliefs for declaration and injunction are discretionary and can only be granted in exceptional cases and in accordance with principles laid down in the cases reviewed above. A Civil Court will intervene only when an autonomous body either exceeds its jurisdiction or acts in violation of its own statutes. There is nothing in the Karachi University Act to bar the jurisdiction of Civil Courts either expressly or impliedly, but the University being an autonomous body, this Court will not interfere with their decisions unless they act in disregard of their own rules and regulations. The allegations in the plaint determined jurisdiction of the Court and if the plaint alleges as is the case here that the defen dants have violated their own bylaws and statutes the suit will be held competent. It is another matter that after going through' the evidence the Court comes to We conclusion that the defendants have acted within the scope of their authority and in consonance with their own pertinent statutes and byelaws. In view of the above this Court has jurisdiction and the issue is decided accordingly. Issue No. 1 (b).‑Whether the plaintiff passed his Intermediate Science (Agriculture) Examination from the Board of High School and Intermediate United Provinces (India) ? It is practically admitted that the plaintiff passed Intermediate Science (Agriculture) Examination from the Board of High School and Intermediate Examination, United Provinces (India). Migra tion certificate Exh. 13 would show that the plaintiff had passed Intermediate Science (Agriculture) Examination held in July 1950. The issue is decided accordingly. Issue No. 2.‑Whether the plaintiff was admitted to the First Bachelor of Laws Course of the University of Sind and was eligible to appear at the First Bachelor of Laws Examination of the University of Karachi and whether Intermediate Science (Agriculture) Examination is equivalent to the Intermediate Science, Arts, Commerce or any other equivalent Examination ? Exhibit 5/1 is the application form of the plaintiff for admission to First Year Law Class. It is dated 8th December, 1950. On the back of this application form is an order of the Principal Mr. Hssan Ali. A. Rehman saying' Admit'. This is Exhibit 5/1A and is dated 8th December, 1950. It is clear from these docu ments that the plaintiff was admitted to the First Bachelor of Laws Course of the Sind University, Karachi. Ziauddin Khan however, deposed that the admission was provisional and according to rules admission in the Sind Muslim Law College is provisional till eligibility certificate is obtained from the Sind University. But so far as the order of the Principal is concerned it is unconditional and there is nothing to show that the plaintiff was ever called upon to file eligibility certificate. The first part of the issue is decided in the affirmative. The University of Karachi held the First LL.B. Examina tion in October, 1951, by virtue of section 46 of the University of Karachi Act. Section 46 of the Act runs as follows :‑ " Nothing anything contained in this Act or the Ordinance, any student of any of the recognized Colleges at Karachi, who immediately before the commencement of this Act, was studying for any examination of the University of Sind shall be permitted to complete his course in preparation therefore and the University shall provide for such students instruction s and examinations in accordance with the provisions of the Sind University Act." The University of Sind has framed Ordinances regarding admission to the various classes. Ordinance No. 7 provided that students who had passed the Intermediate Arts, Science or Commerce Examination could be admitted to the First LL.B. Class. Ordinance No. 77 laid down that no candidate will be admitted to the First LL.B. Examination unless be shall have passed the Intermediate Arts, Science or Commerce Examination of the Sind University or an equivalent examination of another University or Board of Intermediate Education recognised by the University and would have kept two terms in a Law College affiliated to the Sind University. It would appear from the above that two conditions had to be fulfilled before a candidate would be admitted to the First LL. B. Examination, Firstly, he must have passed Intermediate Arts, Science or Commerce Examination of Sind University or any Examination of another University or Board of Intermediate Examination recognized equivalent to Intermediate Arts, Science or Commerce Examination of Sind University and secondly, he must have kept two terms in Law College affiliated to the University. It is not disputed that the plaintiff kept two terms in Sind Muslim Law College, which was originally affiliated to Sind University and thereafter to Karachi University but it is contended on behalf of the defendants that Intermediate Science (Agriculture) Examination has not been recognized as equivalent to Intermediate Arts, Science or Commerce Examination of Sind University. Regulation No. 1 framed by the University recogniz ed Intermediate Arts, Science or Commerce Examination of the High School and Intermediate Board in the United Provinces as equivalent to Intermediate Arts, Science or Commerce Examina tion respectively, but it did not recognize Intermediate Science (Agriculture) Examination as equivalent to Intermediate Science Examination. The plaintiff entirely failed to prove that Intermediate Science (Agriculture) is a part or parcel of Intermediate Science Examination. It is quite distinct so far as Sind University is concerned. Even after close of arguments I pointed out to the plaintiff that he could if so advised file regulations of the Board of High School and Intermediate Examination to show that Intermediate Science (Agriculture) is part and parcel of the intermediate Science Examination, but no step was taken by the plaintiff`. I am, therefore satisfied from the evidence on the record that the plaintiff was not eligible to appear at the First Bachelor of Laws Examination of the University and the Intermediate Science (Agriculture) Examination of the Board of High School and Intermediate Examination in the United Provinces is not equivalent to the Intermediate Science, Arts or Commerce Examination of Sind University. The issue is decided accordingly. Issue No. 3,‑Whether the plaintiff suppressed and misrepresented the facts that he is Intermediate Science (Agriculture) and whether the admission made on 8th December 1950 is binding upon the defendants. In the application form Exhibit 5/1 in column No. 11 under heading Examination Passed' the plaintiff noted Intermediate Science (Agriculture). It was contended by the learned counsel for the defendants that the word (Ag.) were written and then cut off and consequently representation was made that the applicant had passed the Intermediate Science. The plaintiff denies this insinuation. A mere perusal would show that the intention was to made it clear that the plaintiff had passed Intermediate Science (Agriculture). Besides, migration certificate had been filed along with the application and migration certificate showed that the plaintiff had passed the Intermediate Science (Agriculture) Examination. It is therefore, clear that the plaintiff did not misrepresent that he had passed the Intermediate Science Examination and not Intermediate Science (Agriculture) Examination. Every admission is made subject to the rules and regulations of the University concerned. It was clearly laid down in the Ordinance that no person could be admitted to the First LL.B. Examination till he had passed the Intermediate Science Examina tion, and the admission by the Principal of the College, though I must say was carelessly done. is not binding on the University.

4. Issues No. 4 and 5.‑Whether the action of defendants in withholding the result of the plaintiff is illegal, ultra vires and without jurisdiction ?

5. Whether the decision of the defendants in declaring that the plaintiff was ineligible for admission to the first Bachelor of Laws Examination is illegal and ultra vires ? I have already decided under the foregoing issues Nos. 2 and 3 that the plaintiff was not eligible for the First Bachelor of Laws Examination held by the University of Karachi and his admission to First LL.B. Class was not binding on the University of Karachi. 1 may add that when the plaintiff was intimated that he could not be allowed to appear at the Examination. he made an application to the Vice‑Chancellor in the following words: " I request you to kindly allow me to appear in First LL.B. Examination provisionally. If on enquiry you find that the standard of Phy. Chem. in the Intermediate Science (Agricul ture) course is lower than in the Intermediate Science Course then my result may be cancelled." The plaintiff was allowed to appear conditionally. The Vice -Chancellor made enquiries and thereafter passed an order on 26th January 1952. This order is Exhibit 8/2 and is addressed to the Registrar. It runs as follows:- "Mr. Shafqatullah Qadri has failed to produce any paper to show that the standard of Physics and Chemistry in the examination passed by him is the same as that of Physics and Chemistry in the I. Sc. Examination of the U. P. Board. On the other hand, it is obvious from the statement of Mr. Abdul Alim, Ex. Principal of the Hafaz Siddique Meston Islamia Inter College, Sheikhupore and Badaun, that the Standard of Physics and Chemistry as well as of Mathematics for the Inter Science Examination of the U. P. Board is considerably higher than the standard of those subjects in the Intermediate Agriculture examination. The purpose of the rule framed by the Sind University which we have been following this year, is to debar students who have taken a course in Intermediate with a strong agricultural bias, which is the first stage in specialization in that subject, from joining the B. A., B. Sc., or the LL. B. class, and there is no reason for departure from that rule in this case. In keeping with the undertaking given by Mr. Shafqatullah Qadri his First LL.B. result should be cancelled. Please put up a report about the case of Mr. Waris Ali Khan cited by Mr. Qadri." The Vice‑Chancellor was competent and fully justified to pass the order that he did. In view of the above it must be held that the defendants were justified in withholding the result of the plaintiff and their action was neither illegal nor without jurisdiction. Issue No. 6.‑‑Whether the plaintiff is entitled to get the declaration prayed for and whether the suit is maintainable? It was contended by Mr. S. Nasir‑uddin, who has taken great pains in preparing the case, that Section 42 of the Specific Relief Act is exhaustive and the suit as framed does not fall within the scope of section

42. He placed before me all the important authorities for and against his contention. There is conflict of judicial authority, as to whether section 42 of the Specific Relief Act is exhaustive. The earliest case is that of Privy Council, Robert Fischer v. The Secretary of State for India in Council reported in (I L R 39 Mad. 808). Their Lordships observed as follows :‑ "Now in tree first place it is at least open to doubt whether the present suit is within the purview of section 42 of the Specific Relief Act. There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of section 50 of the Chancery Procedure Act of 1852, 15 and 16 Vict., Cap. 86, as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the act of 1852. It is, in substance, a suit to have the true construction of a statute declared and to have an act done in contravention of the statute, rightly understood, pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind. But even assuming that the Specific Relief Act applies to such a suit as this, what is the result...,. ?" Relying on the above the Madras High Court, held in M. Ramchandra Rao v. The Secretary of State for India in Council reported in (I L R 22 Mad. 270 at 282.) that even though a suit was not covered by section 42 of the Specific Relief Act still it was maintainable. To the same effect is another decision of the Madras High Court reported in I L R 43 Mad. page

410. Their Lordships observed :‑ "that the ruling of the Privy Council in Robert Fischer v. The Secretary of State for India in Council (supra) suggests that section 42 of the Specific Relief Act is not exhaustive of cases in which declaratory suits may be maintained." The above cases do not take note of a later privy Council decision in Sheoparsan Singh v. Ramnandan Prasad reported in (A I R 1916 P. C. 78.). Their Lordships of Privy Council observed as follows:‑ "The Court's power to make a declaration without more is derived from section 42 of the Specific Relief Act, and regard must therefore be had to its precise terms. This observation is indicative of their Lordships' opinion that section 42 of the Specific Relief Act was exhaustive and no more declaration could be allowed unless it could be brought within the four corners of section 42 of the Specific Relief Act. Similar view has been held by Calcutta and Lahore High Courts. Reference may be made to cases of Subedar Shingara Singh v. Brigadier C. H. D. O. Callaghan (A I R (33) 1946 Lah. 247) and Narayanprosad Jhun jhunwalla v. The Indian Iron & Steel Co., Ltd., reported in (A I R 1953 Cal. 695.). The observations of their Lordships of Privy Council in 22 Madras page 282 and 1916 Privy Council page 78 suggest contradictory conclusions, and in such a case the latter decision has to be followed If it was to be held that mere declaratory relief can be given beyond the scope of section 42, proviso to section 42 would become nugatory and redundant. The proviso to section 42 says that no Court shall make any declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so If mere declaration could be given outside the provisions of section 42 the proviso would lose its efficacy. I, therefore, hold that section 42 of the Specific Relief Act is exhaustive of the relief provided by it. No person can file a suit under section 42 of the Specific Relief Act unless he be entitled to any legal character. The plaintiff has failed to show that be was entitled to be a candidate for appearance at the First LL. B Examination or that he passed the First LL. B. Examination at which be was allowed to appear provisionally. The plaintiff, therefore, has failed to show that he is entitled to any legal character and consequently the suit must fail. The suit was however maintainable as no further relief under the circumstances of the case could be claimed. Issue No. 7.‑To what relief, if any, the plaintiff is entitled ? The above discussion would show that the plaintiff is not entitled to any relief. The suit accordingly fails and I hereby dismiss it. The plaintiff was unconditionally admitted by the principal of the Sind Muslim Law College, although on the face of the application he was not entitled to such admission. The fault, however, lay with the college authorities who allowed him to appear and complete his course. The plaintiff as student and layman must have felt that he had every reason to appear at the examination. Absence of due care on the part of the principal has led to this case and loss of the valuable time of the plaintiff. Had the college authorities been a party I would have ordered them to bear the cost of the plaintiff. The University, however is not responsible for the act of the Principal. I order that the parties do bear their own cost. The suit is dismissed with directions that the parties do bear their own cost. A. H Suit dismissed.