1995 PLP (C (PLC(CS))

This petition under section 115 of Code of Civil Procedure arises out of a suit filed by the petitioner in which he prayed for a declaration that his correct date of birth was 21‑8‑1938 and the entry in the record of Board of Intermediate and Secondary Education showing that he was born on 21‑8‑1935 was incorrect. In addition to the Board of Intermediate and Secondary Education the petitioners had also impleaded Vice‑Chancellor Punjab University and the Government of the Punjab as a party but suit was contested by respondent No.1 alone.

2. On 20‑7‑1993 the suit was decreed by the Civil Judge who found that it has been successfully proved that the petitioner was born in the year 1938 and not in 1935. While coming to this conclusion he relied upon the statement of the maternal uncle of the petitioner namely Muhammad Abdullah P.W.1 as also his own statement as P.W.2 and the medical certificate Exh. P.1. It may also be 1hentioned that the respondents had objected to the maintainability of the suit but that issue was decided in favour of the petitioner.

3. On appeal the learned Additional District Judge affirmed the finding of the trial Court on the issue relating to the jurisdiction namely issue No.2 but his decision on issue No.1 was reversed and it was held that the petitioner had failed to prove through cogent evidence that he was born on 21‑8‑1938. The medical certificate was ruled out of consideration by observing that it had not been proved by examining the Doctor who has issued it.

4. In support of this petition Mr. Shahid Hussain Kadri, learned counsel for the petitioner has contended that Additional District Judge was in error in reversing the finding of the trial Court on issue No.1. He submitted that it was stated by P.W.1 Muhammad Abdullah that he and his sister i.e. the mother of the petitioner were married in 1937 and as such the question of petitioner having been born in the year 1935 does not arise. Unfortunately this part of the statement of P.W.2 was ignored from consideration by the Additional District Judge who observed as the witness did not remember the date of birth of his own children and children of his other brothers and sisters his evidence was of no avail. The Additional District Judge should have recorded a positive finding about the year of marriage of petitioner's parents especially when the trial Court had held that the marriage of mother of the petitioner took place in 1937. While coming to contrary conclusion the reasons which prevailed with trial Court should have been noted. See Madan Gopal and others v. Maran Bepari (PLD 1969 SC 617).

5. Mr. Ijaz Ahmad learned counsel for the respondents has contended with vehemence that the Civil Court lacked jurisdiction to try the suit as the question of age is relatable with terms and conditions of service and the petitioner being a civil servant, the jurisdiction of Civil Court was barred under Article 212 of the Constitution of Islamic Republic of Pakistan read with section 4 of Punjab Service Tribunal Act, 1974. It is unfortunate that while deciding issue No.1 this aspect of the matter was not adverted to either by the trial Court or the Additional District Judge but on the other hand it was held that the Civil Court having ultimate jurisdiction this matter could be assailed before it. That principle of law is‑ well‑established but it is subject to the condition that the jurisdiction should not have been expressly or impliedly barred.

6. The learned counsel also pointed out that the suit on the face of it was barred by time and under section 3 of the Limitation Act/Courts below should have adverted to that aspect even t tough it may not have been pointed out by the other side.

7. From the above it follows that the appeal of the respondents against the decree of the trial Court has not been decided in accordance with law by the Additional District Judge and shall have to be re-decided by him. In view of the above this petition is allowed, the impugned judgment and decree of the Additional District Judge is set aside and the case is remanded to him for decision afresh of the appeal filed by respondent No.1, against the decree of the trial Court in accordance with law. As the dispute remained pending over a long period it is directed that the appeal shall be decided within two months from today. No order as to costs. H.B.T./A‑829/L Order accordingly.