1995 PLP (C (PLC(CS))

This petition under section 115 of the C.P.C. calls in question judgment and decree of the learned Additional District Judge, Sargodha dated 10‑6‑1992 upholding the decree of the trial Court dated 25‑2‑1992 whereby the suit for declaration filed by the petitioner claiming that the date of his birth was 3‑10‑1934 and the entries in the Seniority List were illegal and without jurisdiction.

2. In the plaint it was alleged that the plaintiff was born on 3‑10‑1934 which was the date mentioned in the Matriculation Certificate as also the record of his service maintained by the Accountant‑General, Punjab. It was alleged that, however in the seniority list prepared by the respondent the date of his birth was wrongly shown as 3rd of October, 1931 and at certain other time 3‑11‑1931. It may be mentioned that at the time the suit was filed, the petitioner was serving as Superintending Engineer in the employment of the respondent. The respondent contested the suit inter alia on the plea that the jurisdiction of the Civil Court to try it was barred.

3. On the pleadings of the parties, the trial Court framed the following issues on which the parties led their evidence. (1) Whether date of birth of plaintiff is 3‑10‑1934 and entries in seniority list about 3‑10‑1930, 3‑11‑1931 and 3‑10‑1931 are wrong and without jurisdiction? O.P.P. (2) Whether this Court lacks jurisdiction to adjudicate upon the matter in hand? O.P.D. (3) Relief. The dispute went through various stages to different Courts and at one stage was remanded by this Court in C.R. No. 4553/D of 1991 to the trial Court on 10‑9‑1991 for deciding it afresh. In the post‑remand proceedings, the suit was dismissed by the trial Court on 25z2‑1992. That decree was maintained in appeal by the learned Additional District Judge. Hence this petition.

4. Learned counsel for the petitioner has pointed out that although the trial Court had decided both the issues in favour of the petitioner but surprisingly the suit was dismissed on the ground that it was barred by time, a plea which was not raised in the written statement nor put to issue. So far as the judgment of the Additional District Judge was concerned, it was contended that he has misread the record and has also omitted from consideration material evidence.

5. The learned Addl. Advocate‑General has, however, supported the impugned judgments and decrees.

6. There is merit in the contention raised by the learned counsel for the petitioner that the Additional District Judge was not justified in reversing the finding of the trial Court on issue No.

1. The most important evidence to show that the date of birth of the petitioner was 3‑10‑1934 was the service record maintained by the Accountant‑General, Punjab which mentions the date of birth of the petitioner as 3‑10‑1934. It is also not disputed that in, the matriculation certificate the date of the birth of petitioner is also shown to be 3‑10‑1934. This Court had also summoned the original record of the University which also corroborates the stand of the petitioner. It is apparent that the Additional District Judge while setting aside finding of the trial Court has acted on surmises and conjectures rather than the evidence on the record. According to rule 12.1 of the Civil Services Rules, Volume I, Part I, it is the requirement of the Accountant General, Punjab to maintain service record of a Gazetted Officer. Consequently there is no justification for the Additional District Judge to have rejected this evidence.

7. The other ground which prevailed with the Courts below for dismissing the suit filed by the petitioner was that of limitation. As already observed, the objection that the suit was barred by time was not taken in the written statement nor any issue to that effect was framed. The present suit was governed by Article 120 of the Limitation Act, 1908 which provides a period of six years for filing such a suit from the date when right to sue arises. The question when cause of action arose to the petitioner was not purely one of law but was dependent upon facts also. Consequently, such an issue could have been framed on which the parties could have led evidence.

8. Be that as it may, the Courts below have failed to appreciate that the date of birth of the petitioner was corrected by notification dated 23‑10‑1990 (Exh. P‑9) so as to read 3‑1G‑1931 instead of 3‑10‑1930. The cause of action arose on the issuance of the aforesaid notification as the grievance of the petitioner was that instead of correcting the date from 3‑10‑1930 as 3‑10‑1934, the respondent should have ordered the date of birth to be read as 3‑10‑1931. Accordingly, the suit filed by the petitioner could not be held to he barred by time. In view of what has been stated above, this petition is allowed; the impugned judgments and decrees are set aside with the result that the suit filed by the petitioner stands decreed. No order as to costs. A.A./ N‑331/L Petition allowed.