1997 PLP 262 (CLC)

3. In the year 1961, the petitioner submitted an application to the respondent‑University for the correction of his date of birth. On 24‑7‑1965 the Assistant Registrar of the University asked the petitioner to submit any documentary proof in support of his claim. Accordingly, another application was submitted by the petitioner to the University stating therein that the date of birth of his elder brother Dr. Muhammad Rafique who is older in age to the petitioner by 2‑1/2 years was 25‑12‑1936 and the same date of birth was entered in his Matriculation Certificate. Finally on 24‑7‑1991 the respondent‑University rejected the application of the petitioner refusing to correct his date of birth. Thereafter the petitioner filed the suit in the Court.

4. Various issues were framed by the learned trial Court.' However, the main issue was decided against the petitioner. This issue is as follows:‑‑ "(6) Whether the correct date of‑birth of the plaintiff was 5‑6‑1939 but on record as 5‑6‑1936? OPP.

5. Learned counsel for the petitioner has submitted that the findings recorded by the learned Courts below suffer from misreading and non‑reading of the evidence on record and that the findings are also based on no evidence or on extraneous considerations. He has referred to the statement of P. W.1 Manzoor Ahmad (brother of the petitioner) who has deposed that besides the petitioner, they are six brothers and have a sister. Same statement was given by P.W.4 Ch. Muhammad Shafique, another brother of the petitioner. They also placed on the record the Matriculation Certificates (Exh. P.2 to Exh. P.5) of Ch. Munir Ahmad, Dr. Muhammad Rafique, Ch. Muhammad Shafique and Ch. Muhammad Latif petitioner. According to their statements, Dr. Muhammad Rafique who passed his Matriculation Examination from the respondent University in the year 1951 was born on 25‑12‑1936 and the same date of birth is entered in his Matriculation Certificate. Both these witnesses deposed that Dr. Muhammad Rafique was 2‑1/2 years older than the petitioner.

6. In the written statement, the respondent‑University has raised many preliminary objections including the stand that the suit was barred by section 48‑A of the University of the Punjab Act, 1973, according to which all acts done, orders passed or proceedings taken by the University are final and cannot be questioned in any Court by suit or otherwise. The preliminary issue on this question as well as other preliminary issues are decided by the learned trial Court in favour of the petitioner and against the respondent‑University. In the appeal which was filed by the petitioner, the findings on issue No.6 alone were challenged. The respondent‑University did not file any cross‑objection before the lower Appellate Court. However, before me the learned counsel for 'the petitioner again argued this question of law that the suit was not competent in view of the provision of section 48‑A of the said Act. As observed above, the findings on this issue were recorded against the University by the learned Courts below which have not been challenged by the University. Even if the contention is allowed to be raised as being a question of law, the same has precisely been answered by the Hon'ble Supreme Court in "The Registrar, University of the Punjab v. Asghar Ali" (1993 SCMR 1681) wherein the following observation was made:‑‑ "It was submitted that the decision of the syndicate had been made in ‑good faith and therefore it could not be assailed in any Court. This argument was raised before the learned Division Bench and the learned Judges have elaborately dealt with it. The learned Judges were correct to arrive at the conclusion that the University cannot disable itself from exercising its power for all times to come and that it must be prepared to consider a genuine case if its circumstances warrant special treatment for it cannot be said that a genuine case demanding correction of date of birth could not arise after December, 1961. Furthermore a point blank refusal to entertain any application for correction of date of birth even in a legitimate case may amount to deliberate avoidance to exercise the power in this respect and if it so happens it would lose the aura of good faith as well as immunity from attack in Court proceedings under section 48‑A of the University of the Punjab Act, for the aggrieved person, can in such circumstances approach the Civil Court for the redress of his grievance. "

7. Learned counsel for the respondents also submitted that the suit was barred by time inasmuch as the suit was filed in the year 1991 whereas the Matriculation Examination was taken by the petitioner in the year 1953 and for the first time the petitioner had approached the University for the correction of his date of birth in the year 1961. He has referred to Article 120 of the Limitation Act which prescribes limitation of six years for filing suit of the present nature. This preliminary objection was answered by the learned counsel for the petitioner submitting that the application of the petitioner for correction of date of birth was finally rejected by the respondent‑University on 24‑7‑1991 which should be date to reckon the period of limitation.

8. As all the preliminary objections including that of the competency of the suit and the limitation for institution of the present suit were decided by the learned trial Court against the respondent‑University and the same were not challenged in appeal, learned counsel for the respondents cannot agitate these points in revision of the petitioner. Besides,' the suit was competently filed challenging refusal of the University to correct the date of birth as held by the Hon'ble Supreme Court in the aforesaid case. So far as the limitation is concerned, the application of the petitioner was finally rejected by the University on 24‑7‑1991 which gave fresh cause of action to the petitioner. Accordingly, the suit was within limitation.

9. P.W.1 Manzoor Ahmad has deposed that he has six other brothers and a sister and that he was eldest of all. According to him, the petitioner was younger to him as well was to Bashir Ahmad, Rashid Ahmad, Zainab Bibi, Munir Ahmad and Dr. Muhammad Rafique but was elder to Muhammad Shafique P.W.4. He further deposed that there was a difference of age of 2/3 years between all the brothers and the sister and that a difference of age between Dr. Muhammad Rafique and the petitioner was 2 to 2‑1/2 years. He stated that:‑‑ This statement was supported by P.W.2 Abdul Majeed, a paternal cousin of the petitioner. Similarly P.W.4 Ch. Muhammad Shafique who was also holder of Special Power of Attorney on behalf of the petitioner/plaintiff supported the statements of P. W.1 and P.W.2. He deposed that:‑

10. The fact that Dr. Muhammad Rafique and Munir Ahmad, the real brothers of the petitioner, had also passed the Matriculation Examination from the University of the Punjab was not denied. The certificate of Matriculation Examination issued to them was also admitted. According to the Matriculation Certificate of Dr. Muhammad Rafique, he is shown to have been born on 25‑12‑1936. This fact is borne out from the record and also not denied by the respondent‑University.

11. Since the date of birth of Dr. Muhammad Rafique, immediately elder to the petitioner, as entered in the Matriculation Certificate was not disputed by the respondent‑University and the depositions of P.W.1 and P.W.4, that Dr. Muhammad Rafique was older in age by 2‑1/2 years than the petitioner, went unrebutted, the findings on Issue No. 6 recorded by the learned Courts below are against the admitted facts. The fact that the difference of age between the two brothers i.e. Dr. Muhammad Rafique and the petitioner was 2‑1/2 years, was established on record by P.W.1 and P.W.4 whose deposition. remained uncontroverted by the respondents nor was any proof given in rebuttal to the contrary.

12. The explanation furnished by the petitioner and his witnesses that the date of birth was entered in the Admission Form for the ' Matriculation Examination inadvertently and was incorrect, is proved by the evidence on record. All the witnesses have deposed that Dr. Muhammad Rafique is the elder brother of the petitioner and is older to him by 2/2‑1/2 years. The only conclusion, therefore, is that the petitioner was born 2/2‑1/2 years after the birth of Dr. Muhammad Rafique. Muhammad Shafique, the younger brother of the petitioner and his Special Attorney has given specific date of birth of the petitioner in his statement which according to him is 5‑6‑1939. The same date of birth i.e. 5‑6‑1939 was given in the plaint by the petitioner. Although the other witnesses of the petitioner have not mentioned the exact date of birth of the petitioner, yet all of them have specifically stated that the difference of age between the petitioner and Dr. Muhammad Rafique is 2/2‑1/2 years.

13. Learned counsel for the petitioner submitted that no evidence was produced by the respondent‑University to rebut the assertion of the petitioner and the statements of his witnesses who are consistent and unanimous on the point of petitioner's age. The Admission Form of the petitioner on which his Matriculation Certificate was based, would not furnish the proof required to rebut the petitioner's assertion and to discredit his witnesses, as the correctness of the date of birth entered in the documents was challenged in the suit.

14. The learned trial Court has also observed that if the claim of the petitioner that he was born on 5‑6‑1939 is accepted, that would mean that he passed the Matriculation Examination at the age of 13 years which was not possible. He has observed in the following words:‑‑ "If it is presumed that the plaintiff was born on 5‑6‑1939 and he passed his Matriculation Examination in March, 1953 then the difference of age is about 13 years in which it is not possible to complete ten classes including the prep. " There is no evidence on record that the petitioner had also joined the prep class. Further it was not impossible to take the Matriculation Examination at the age of 13 years., Since this presumption is not based on any material on record, it cannot be accepted as an irrefutable conclusion. 15: Learned counsel for the respondent‑University has lastly submitted that there are concurrent findings of fact recorded by the Courts below which ought not to be interfered in exercise of revisional jurisdiction under section 115, C.P.C. He relied on Shah Gul v. Shamim Akhtar (1990 SCMR 110). In this very judgment, the Hon'ble Supreme Court has observed as follows:‑‑ "It is no doubt true that in exercise of revisional jurisdiction it is not open to the High Court to interfere with a finding of fact unless it is based on misreading of evidence or has been arrived at by overlooking some material evidence."

16. The findings recorded by the learned Courts below as observed above, based only on the Admission Form submitted by the petitioner for appearing the Matriculation Examination and the date of birth entered in the. Matriculation Certificate in pursuance thereof. Since this very fact has been challenged in the suit on the grounds that the date of birth was inadvertently given in the Admission Form and was incorrect, it would not form basis of the findings, rather some other proof had to be given by the respondents. The circumstances were explained in the evidence and the exact date of birth was given in the plaint as well as by the witnesses. There was no rebuttal to this fact, and as a matter of fact no evidence could be produced by the University to rebut this fact, as the same was within the exclusive knowledge of the petitioner, his family members and his other relatives and friends. The petitioner produced two of his real brothers, namely, Manzoor Ahmad (P.W.1) and Ch. Muhammad Shafique (P.W.4) and his paternal cousin Abdul Majeed (P.W.2) and the family friend Muhammad Ismaeel (P.W.3), who unanimously deposed that the petitioner is younger to Dr. Muhammad Rafique by 2 to 2‑1/2 years. The date of birth of Dr. Muhammad Rafique as entered in his Matriculation Certificate is not disputed by the other party. Therefore, the only safe conclusion on the basis of the evidence on record is that the date of birth of the petitioner as given in the plaint and also stated by Muhammad Shafique (P.W.4); which remained unrebutted is 5‑6‑1939. Hence the claim of the petitioner appears to be correct. This revision petition is accordingly accepted, the findings on Issue No.6 recorded by the learned Courts below are not maintained and the suit of the petitioner is decreed. Since the learned lower‑Courts have given findings in favour of the respondent‑University, there shall be no order as to costs. A.A./M‑178/L Revision accepted.