2009 PLP 675 (YLR)

MUSHIR ALAM, J.

Briefly stating relevant facts appear to be that, the plaintiff contested and was elected from the seat of Provincial Assembly PF 75 on the strength of his purported qualification of B.Com as prescribed under the elections laws. It appears that the defendant No.3 on the basis of cancellation of plaintiff's the B. Corn Degree by the Defendant No.1, challenged his holding of electoral seat before the Peshawar High Court. Plaintiffs successfully challenged the action of Defendant No.1 Karachi University, cancelling his B. Com Degree without notice and hearing him. Consequently Karachi University issued the show-cause notice dated 8th February, 2005 to the plaintiff (page 285), with direction to submit reply within 7 days and appear on 16th February, 2005 for personal hearing. In the show-cause Notice it was specifically alleged:-- "That you appeared in B.Com final Examination from Govt. College of Commerce & Economics vide enrollment No.c10040/91 with seat No.28936/94 in year 1994 but could not clear the Examination, which fact is clear from the result declared by this University. That on receipt of letter from Deputy Director Anti-Corruption Establishment Karachi, the record was checked and it was found that Register A was tampered and Marks written on Register A against your name were clearly overwritten without any initials of tabulator. On checking of Register `B' which always remained in safe custody the tampering of Register A was obvious. That since you have failed to clear the B.Com Examination you are not entitled to possess B.Com Degree, which was obtained by you by fraudulent means after getting the record of the University tampered." Plaintiff was further called upon to show cause as to why his B.com Degree may not be cancelled. Plaintiff submitted 11 page detailed reply dated 15th February, 2005 (page 287), raised preliminary objection as well. The enquiry officer recommended cancellation of the Degree. As a result of enquiry, the marks certificate and the Degree of the plaintiff was cancelled by the defendant University, resultantly plaintiff has filed instant suit claiming following reliefs:

(a) Declare the proceedings taken by the Defendant No.5 under the show-cause notice dated 8th February, 2005 issued by him to the plaintiff to be unlawful and void; (b) Quash the impugned order dated 25th February, 2005 passed by the Defendant No.6; (c) Permanently restrain the defendants from acting on the impugned order dated 25th February, 2005. (d) Grant costs of the suit, and (e) Grant such other relief as may be appropriate in the circumstances. Along with the suit plaintiff has filed C.M.A. No.1447/05 seeking suspension of the impugned order 25th February, 2005 cancelling the B.com Degree awarded to the plaintiff by the defendant No.1. On filing of the suit the office has raised the following objections:

"It appears that the previous suit filed by the plaintiff being Civil Suit No.432/2004 (Annexure `L' page 283) which was withdrawal by the plaintiff on 16th February, 2005 unconditionally and it further appears that the suit is barred under Order II, Rule 2, C.P.C. and sub-Rule (3) of rule 1 of the Order XXIII, C.P.C. (2000 CLC page 1524)." There matter came up for hearing of the office objection as well the listed application. As regard office objections learned counsel for the plaintiff contends that the office objections are ill-founded, misconceived and do not merit consideration. Mr. Fazale Ghani Khan, learned counsel for the Defendant No.4 led the arguments on office objections but also supplemented the same by raising other objections. According to him the suit is barred under section 11(iv), Order II, Rule 2, Order VII, Rule 11(a), C.P.C. and so also under Order XXIII, Rule 1(3), C.P.C. Elaborating his contention, it was contended that the controversy if arises out of the pleadings and defence if available and not taken in earlier round then also bar to raise such plea in a subsequently proceeding is attracted under Explanation (iv) to section 11, C.P.C. As regard second objection it was contended that in earlier round also the plaintiff omitted to seek declarations as to having qualified Bachelor of Commerce, and that challenge to the Gazette of Result was also omitted in first round and so also in the instant suit, it was therefore contended that in terms of Order II, Rule 2, C.P.C. where a plaintiff omits to seeks a relief which though available cannot be allowed to seek such relief in subsequent proceedings, it was further contended that in instant suit also plaintiff has not sought such relief. It was further stated that the plaintiff has not challenged the cancellation of certificate issued by Government Commerce College. Mr. Fazale Khan in support of his contention has placed reliance PLD 1967 Dacca 190 to contend that, still born suit is to be buried at it earliest and PLD 2001 SC 235 in support of his contentions that no relief has been claimed against Government Commerce College and the Gazette of the result also therefore the suit is otherwise not maintainable. As regard objection founded on Order VII, Rule 11(a), C.P.C. it was stated that no cause of action has accrued to the plaintiff to file the suit. As regard objection premised on Order XXIII, Rule 1(3), C.P.C. it was stated that the earlier suit was withdrawn unconditionally, therefore, no fresh suit on the same cause of action can be filed in support refence was made to 1995 CLC

465. Mr. Fazale Khan further challenged the maintainability of the suit under Order II, Rule 2 it was urged that all controversies are to be raised in one suit. According to him splitting of the claim is not permitted under the law. Reliance was placed on (i) 1990 MLD 2252, (ii) PLD 1970 SC 63, (iii) 2000 CLC 1524, and (iv) 1996 SCMR 1051. Mr. Abbas Ali learned Additional A.G, addition cited one more case i.e. 2003 SCMR 1944. Mr. Nadeem Azhar, Advocate for the defendants Nos.1, 5 and 6 also adopts the arguments of Mr. Fazale Ghani on the legal grounds. Mr. Nadeem Azhar in addition contends that the suit is also barred under section 5 (i) and (ii) of the University of Karachi Act, 1972. Mr. M. Tariq learned counsel for the Defendant No.3 contended that, this Court has no jurisdiction in terms of section 15 of C.P.C. Mr. Munir Malik learned Counsel for the plaintiff refuted the contention of Mr. Fazale Ghani Khan, it was contended objection as to bar under section 11(iv), G.P.C. is not attracted, according to him, in earlier round the relief claimed was not the same and CP. No.1229/2003 was allowed vide order dated 26th January 2005 and defendant No.1 herein was directed to hold a proper enquiry after providing plaintiff an opportunity of absolving himself. It was stated that since the relief sought in the Writ Petition was allowed the suit impugning the same action was accordingly withdrawn. It was therefore, urged that in the instant suit the finding of enquiry has been impugned the bar would not be attracted. As regard bar of suit under sections 51 and 52 of the University of Karachi Act, it was contended that the enquiry was sham and mala fide therefore the bar is not attracted. He placed reliance on (i) PLD 1975 Kar 556, (ii) PLD 1976 Kar 541, (iii) PLD 1965 SC 698 and 671, (iv) PLD 1996 SC 787, (v) 1984 CLC 2782, (vi) 1991 CLC 752, (vii) 1993 CLC 2026, (viii) 1973 SCMR 455, (ix) PLD 1980 SC 307, (x) 1982 SCMR 126, and (xi) PLD 1981 SC

176. Examining the legal objection raised by the office and so also learned counsel for the plaintiff under sec tion 11(iv), Order II, Rule 2, Order VII, Rule 11(a), C.P.C. and so also under Order XXIII, Rule 1(3), C.P.C. In my opinion, learned counsel for the plaintiff is correct to say that the relief claimed in earlier round of litigation was founded on different cause of action, that is action of cancellation of his degree without notice. In fact Constitution Petition before fruits and pursuant to directions given therein enquiry impugned was initiated. Now it is to be seen that the enquiry was carried out as directed by the learned Division Bench and result of the enquiry is in accordance with the University Act or otherwise and whether the bar of jurisdiction as urged would be attracted or not. Barring provisions is couched in sections 51 and 52 of the University of Karachi Act, in following words: "(51) Bar of Jurisdiction.

No Court shall have jurisdiction to entertain any proceedings grant any injunction or make any order in relation to any thing done or purported to have been done or intended to be done under this Act. (52) Indemnity.

No suit or legal proceedings shall lie against Government, the University or any authority, office or employee of Government of University or any person in respect of any thing which is done or purported to have been done or intended to be, or has been done under this Act." Contention of Mr. Munir Malik that, the bar under the sections 51 and 52 of the University Act, would be attracted only where the action impugned is done in accordance with the University of Karachi Act, and not otherwise. According to him, the action impugned is tainted with mala fide, therefore bar under sections 51 and 52 of the Act, is not attracted, the suit is maintainable. On preponderance of case law on the subject, position canvassed by the superior Courts time and again appears to be that a mala fide action or order or one that is bad for want of or, is in excess of statutory sanction or in colourable exercise of jurisdiction or authority cannot qualify to be within the framework of a particular statute, thus, beyond the scope of particular statute and in appropriate cases may be struck down by the Courts of law. A plea as to bar of jurisdiction, could successfully be invoked, if is shown that impugned action was done in a bona fide exercise of powers conferred by the particular statute, rules and regulations framed there under and not otherwise. For reference see K.G Traders v. Deputy Collector of Customs and others PLD 1997 Kar.

541. In the case of Lakhani and Co. v. Trustees of the Port of Karachi (1988 CLC 1950), it was held that, act if under the Act is done even wrongfully would be deemed to have been done under the Act. In the instant case, the plaintiff has impugned the proceedings taken by the Defendant No.5 (Inquiry Officer, office of the Controller of Examination) under the Show-Cause Notice dated 18-2-2005 and orders dated 25-3-2005 based on the finding of the inquiry. A notice above, impugned inquiry was held in compliance of directions given by a Division Bench of this Court in CP No.D-1299/03, University of Karachi was directed " to hold a proper enquiry with regard to the alleged manipulation/ tampering of the Marks Sheet, wherein petitioner is to be provided an opportunity of absolving himself" (in the referred order instead of petitioner was mentioned as respondent No.3). Pursuant to the direction of the learned Division Bench of this Court Defendant No.5 was appointed as enquiry officer, who initiated the enquiry by issuing Show-Cause Notice to the plaintiff. Much was said and debated about the enquiry, learned counsel for the plaintiff had expressed serious reservation as to the enquiry, it was also disputed that the registers A and B were produced or that the plaintiff was confronted with the alleged manipulation or forgery in the record. Mr. Munir Malik, denies that, the plaintiff did any tampering in the University record. It was stated that tampering, if any, was done by the staff of the University and plaintiff had no role to play. According to him, burden was on the University to prove the tampering by the plaintiff in which, they failed. In order to obtain satisfaction as to allegation of tampering in the University 1 record, it was deemed expedient to call for the Register of marks. Pursuant to order dated 14-3-2005 Register A and Register B were produced on 30-3-2005. The registers were examined by the Court as well as by the learned Counsel for the plaintiff. Arguments of all the learned counsel were heard. As noted above, Original Registers "A" and "B" were produced and examined by the Court, certified copies of the relevant pages of the two registers were kept on record of the Court as well supplied to the plaintiff. It was contended by Mr. Nadeem Azhar that the `Register B' always remains in safe custody and Register A remain in office. The manipulation was made in marks recorded in Register A on the basis of which the Degree was obtained. It was further stated that the Register B, is in safe custody therefore the manipulation could not be made. Plaintiff who appeared from Government Commerce College in B.Com Examination under Seat /Roll No.28936/94. On examination of original record of "Register A" by the Court, obliteration and interpolation in Marks was vividly visible in Paper No. V (Statistic and Business Mathematics) and VI (Economics Analysis and Policy) of B.Com Part I, Plaintiff is shown to have secured 45 and 50 marks respectively. He is shown to have secured G 40 marks in paper No. IV (Pakistan Studies), in B. Com Part II, against his Roll/Seat Number 28936. The marks are clearly written in different ink and hand. Tampering, is clearly visible. Contention of Mr. Munir Malik, learned Counsel for the plaintiff that there is no rubbing or sign of erasion visible, therefore the plea of the defendant's University is not substantiated. Contentions seem to be too naive, fact remains that tampering is more than obvious in respect of subject noted above, it matter little in what manner tampering was done, Examination, Register B, which in fact is the master Register, against the name and roll number of the plaintiff it shows that he had secured "00" marks both in Paper V. and VI respectively in B.Com Part I and "00" marks in paper VII B. Corn Part. II. Comparing both the Registers the manipulation and tampering is but manifest. `Register B', is the kept in high security under lock and key of the Registrar. Mr. Munir A. Malik, wanted to challenge the credibility of two registers. I am afraid such plea cannot be sustained for the reason, that the plaintiff did not challenge the statement of charge contained in Para 3 of Show-cause notice, in his rather lengthy reply plaintiff did not offered any explanation to the allegation of tampering of `Register A', nor stated a word about result declared by the University in which he was shown failed. Mr. Nadeem Azher, learned counsel for the Defendants Nos.1, 5 and 6, further pointed out that in the gazette of result for the year 1994 B. Corn. Part II dated 15-2-1995 issued under the University Act, is official document and is available at pages 115 to 205 of the file, he took me through various pages to demonstrate that the number of the plaintiff is missing in all categories either of pass category either of part I or part II, and or withheld. Mr. Munir Malik, learned Counsel, argued that the signatures of the two Tabulators on both the Registers are different; therefore, the veracity is doubtful. He further urged that maintenance of two registers is not provided for in the University Act, therefore cannot be relied upon. It was further contended that plaintiff was not confronted either with the Registers or the gazette at the time of enquiry and hearing therefore the enquiry is sham. He further urged that plaintiff was denied opportunity to lead evidence or to cross-examine. He further contended that there is nothing on record that the University took any action against its delinquent concern and therefore the plaintiff cannot be victimized out of political vengeance of his political rival. I have considered the arguments. Cancellation of result is provided for in Regulations framed under section 29(e) of the University Act. Regulations 7(iv) provides for major penalty of Cancellation to Examination, results or withdrawal of Certificate granted. Regulation No.23 provided for, the tabulations and checking of the results. It is provided that two tabulators shall prepare the result independent of the other. Contention of Mr. Malik that the signatures of tabulators vary in the two Register, is rightly explained by Mr. Nadeem Azhar, that signature of Tabulator of Register "A" has endorsed his full signature at Serial No. land the same Tabulator has or initialed instead affixing full signature in "Register B" at Serial No.2. Likewise Tabulator of Register "B" has signed at Serial No.1 in Register "B" and at Serial No.2 in Register A. Regulation No.23 fully support and explains the practice of maintaining of two Registers, therefore, no exception 'could be taken to such practice. It is also quite understandable that one register is kept under strict surveillance and security control and other is kept for day to day issuance of marks sheets and Degrees. Results are published as provided for in Regulation No.24 framed under section 29(1) (e) of the University Act. Legal sanctity is attached to the official acts. Copy of the full result has been placed on record by the plaintiff himself, though; Mr. Malik submits that it was filed by the University of Karachi in legal proceedings in Peshawar. Fact remains that no challenge was thrown on such result published under the sanction of University regulations. It also supports the finding of the enquiry, that the plaintiff failed in his B.Com examinations. Contention of Mr. Munir Malik, that the impugned action was taken at the behest of defendant No.3 and at the motion of Defendant No.2, the Anti Corruption Department. It may be observed that any Educational Institution and University of Karachi, is no exception, may on detection of fraud, forgery, tampering or manipulation of its record done by whom so ever to, benefit any one, may not only ratify and correct its record but also cancel the Result, Award, Degree or Certificate based on fraud, forgery, tampering or manipulation of its record, in additional to setting into motion the criminal prosecution and penal action against all those found responsible. (See also Shahida and another v. Board of Intermediate and Secondary Education, Larkana, PLD 2001 SC 26). Contentions of Mr. Munir Malik, that the plaintiff, do possess genuine Degree, there is no allegation that it is forged, according to him, it bears signature of the authorities concerned and has been validly issued. Indeed, the Degree is not forged, but it has been procured by employing fraudulent means on the basis of tampered and manipulated record as detailed above. When the very foundation on the basis of which the Degree is issued is demolished the Degree also loses its very credibility and legal sanction. It is settled principle of law that the fraud vitiate most solemn transaction, where the edifice is demolished the entire superstructure built thereon crumbles on the ground. Plaintiff cannot claim any right in the Degree, which is bereft of any foundation i.e. the "00" marks he secured in three papers as is fortified by the Result contained in the "Register B" coupled with the result published under the Regulations framed under the Act. Attending last contention of Mr. Munir Malik, that tampering if any was not done by the plaintiff, therefore, he cannot be made to suffer for the wrong and misdeeds of the University staff. Answer is simple; it is the plaintiff, who is the beneficiary of all the tampering, and net the University, though some of the miscreant and scrupulous black sheep amongst the staff of the University must have made personal monetary gains would not improve the case of the plaintiff. Plaintiff failed to show, that the enquiry or for that matter proceeding taken pursuant thereto was illegal or that he was not afforded opportunity of show cause and hearing or for that matter the impugned action was beyond and authority, scope and or purview of University of Karachi Act. Foundation of the claim of the plaintiff in suit is based on fraudulent conduct twice, findings were given by the University against the plaintiff, even on physical examination of original Registers A and B, substantiate the finding recorded in the enquiry. Therefore in my opinion, giving any benefit to the plaintiff of any procedural deviation, would amount to giving premium to the wrongful manner in which the Degree was procured. In view of the foregoing discussion, the suit is clearly barred under barring provision of sections 51 and 52 of the University of Karachi Act, is accordingly dismissed along with all the pending applications. S.A.K./I-36/K Suit dismissed.