1990 PLP 1369 (SCMR)

"It was incumbent upon the plaintiff, in view of the defendant's claim enunciated in the written statement to have produced the original result?-sheet or the Black list so as to say issued by the defendant normally to every school specially when both the Headmasters were in his hand. The Headmaster who issued Ex. P. 1 seems to be quite favourable to the plaintiff when he wishes the plaintiff "every success" in a fail certificate. He has issued this certificate in an abnormal way as normally no such certificates are issued to fail students." The appellate Court reversed the finding on merits recorded by the trial Court in the following words:‑‑

"It is now proved to the hilt that the appellant had in fact passed the said examination securing 618 marks which came to his knowledge in the year 1968 and even after then the provisional certificate was not supplied to him in spite of his best efforts as proved from documents Ex. P. 4 to Ex. P. 7 and documents Ex. D. 2, Ex. D. 2/1, Ex. D. 2/2 thus showing"? that even after 1968, the provisional certificate which seems to have been prepared on 24‑11‑1967 was not supplied to the appellant in time. As discussed above the respondent had definitely a malice against the appellant due to the activities of his father and so admittedly he was intentionally declared to have failed when factually he had passed the examination and so I find that the result of the appellant was wilfully held back with mala fide intention." As regards the document produced by the petitioner to show its bona fides, the first appellate Court held as follows:‑‑ "It was contended that simultaneously a result‑sheet was sent to the school and in the same the appellant was declared a successful candidate and his provisional certificate was also sent to the school and on this aspect document Ex. D. 1 was relied on, the very perusal of which shows that no reliance can be placed on this document. It is full of overwriting on either side. The Roll Number of the appellant has been over written over some other Roll Number showing that it was a late entry to correct the stand of the respondent after the filing of the suit:" and further that‑‑ "document Ex. D. 1 said to be the copy of the same as stated above is nothing but a bundle of forgeries which on the face of it belies .the claim of the respondent:" The claim of the respondent was found otherwise in order and the petitioner was not allowed to raise the plea of the bar of limitation and the suit was decreed. A revision petition was then filed wherein also the petitioner wanted to raise the question of limitation but was not allowed to do so and on merits the conclusions drawn by the first appellate Court were even found suffering from no jurisdictional or legal defect and the order was maintained. The learned counsel for the petitioner has once again by reference to section 3 of the Limitation Act, Order VII rule 11 of the C.P.C. and Articles 2 and 36 of the Limitation Act and referring to the case of Hakim Muhammad Buta and another v. Habib Ahmad and others P L D 1985 SC 153 contended that it could justifiably and competently raise the question of limitation at the first appellate stage notwithstanding the fact that it was not raised at the first opportunity in the trial Court and no issue on it was framed. By reference to Order VI rule 4 the learned counsel for the petitioner contended that the wrongful act was not particularised in such detail as was required under the law. The identity of the individual in the Board who may be responsible for such a wrongful act was not disclosed and the whole Board could not conceivably be so involved. For this, he has relied on Messrs Choudhry Brothers Ltd. Sialkot v. The Jaranwaia Central Co‑operative Bank Ltd., Jaranwala 1968 SCMR 804, The Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 SC 151 and a connected case (C.A. No. 28 of 1973), and Ghulam Shabbir v. Mst. Nur Begum and others P L D 1977 SC

75. He has further contended that the jurisdiction of the Civil Court was barred under sections 27 and 29 of the Ordinance and the definition of `good faith' contained in section 3 clause (22) of the General Clauses Act will hold the field and even if the act of the petitioner was negligent, it was not wrongful for which damages could be claimed. Finally, it has been contended that certain inferences of fact had been drawn which could not be drawn. After hearing the learned counsel for the petitioner and going through the record, we find that the conclusions of fact recorded by the first Court‑are by reference to the record produced at the trial. The Gazette definitely showed the respondent to have failed at the examination. The certificate Ex. P. 1 issued, by the then Headmaster on 3‑7‑1963 showed that the respondent had in fact failed in three subjects and an intimation to that effect was received from the Board, .The certificates Exs. P. 2 and P. 3 further showed that another succeeding Headmaster had refused to recognise the respondent as having passed the examination because according to the material available with him he had failed. The Board's record in respect of the candidate was found to be tainted and overwritten and the first appellate Court has gone to the extent of saying that it was forged. Further, it was Board's responsibility to have ascertained and to have informed in view of the Headmaster's testimony as to what happened to the original certificate which was forwarded to the school. Further, when the respondent approached the Board with regard to his certificate he was given no intimation and the Courts have held that his application for a certificate remained pending with the Board when the suit was filed. With these findings of fact and the alleged litigation over the removal of his father from the Board's employment which has been particularised in fair detail in paragraphs 13 and 14 of the plaint, we find that the technical defects cannot be pleaded by the petitioner with any q success. The facts enumerated above were sufficient to establish lack of good faith on the part of the petitioner and the Courts could justifiably draw conclusions which they have. As regards the plea of limitation, it was taken up at a late stage and it is of no avail to the petitioner in view of section 18 of the Limitation Act because we find concealment apparent at every stage. In its record, the Board is showing the candidate to have passed, in the record transmitted to the school, it is showing that the candidate has failed. The first disclosure was when the detailed marks were supplied. Thereafter, again silence was kept over the application made by the respondent with regard to the certificate and its issuance. If under the law the petitioner was required to issue the certificate to the institution then the Board should have either retrieved it from the institution or should have traced it from the record of the institution to dislodge the case established by the respondent. The respondent had himself no access to the record of the Board or of the institution from which it appeared. The petitioner had access to it. In the circumstances and for reasons given, we find no merit and leave to appeal is refused. H.B.T./B‑167/S ????????????????????????????????????????????????????????????????????????????????? Leave refused.