Pakistan Railways

BEFORE THE HON’BLE MIAN BASHIR AHMAD BHATTI, ADDITIONAL DISTRICT JUDGE, MULTAN.

In re: Pakistan Railways Vs. Syed Maqbool Hussain Gillani WRITTEN ARGUMENTS ON BEHALF OF RESPONDENT

Respectfully Sheweth: 1.

That brief facts leading to the instant appeal filed by Pakistan Railways are that appellant filed an appeal against the judgment and decree dated 27.11.1998 passed by Mr. Muhammad Yahya Kulachi, Civil Judge 1st Class, Multan through which he decreed the suit of respondent/plaintiff.

2.

That after years of absence from his home and birth place, respondent/plaintiff was posted at his home town, then he had a chance to see some of his elders who told him about his actual date of birth and then for confirmation, he looked into Municipal record and first school record, from where he got documentary confirmation and then without wasting any time, he moved for correction of his date of birth in record and certificates, hence filed a suit for Declaration in the Civil Court, Multan on 11.5.1993, that his actual date of birth is 5.12.1942 and erroneously recorded 9.6.1939 in Matriculation Certificate as well as in Service Record, which is liable to be corrected and consequential relief that defendants be directed to record correct date of birth in plaintiff’s service record. Board of Secondary Education Punjab, Lahore and Pakistan Railways were impleaded as defendants, who contested the suit by filing written statement. Therefore, trial court framed the following issues: -

i)

Whether plaintiff’s date of birth is 5.12.1942 and entries of date of birth as 9.6.1939 in the Matric Certificate under Roll No. 39614 issued on 2.11.1955 by defendant No. 2 is against the facts, void and liable to correction? OPP

ii)

Whether the plaintiff has no cause of action to file this suit? OPD

iii)

Whether plaintiff is estopped to file this suit by his own words and conduct? OPD

iv)

Whether plaintiff’s suit is time barred? OPD

v)

Whether the Civil Court lacks jurisdiction to entertain this suit? OPD

vi)

Whether suit of plaintiff is pre-mature? OPD

vii)

Whether defendants No. 1 & 2 are entitled to special costs under section 35-A C.P.C.? OPD

viii) Relief. 3.

That the trial court recorded evidence of the parties. During pendency of proceeding before trial court, defendants No. 1 & 2 corrected the date of birth in Board’s record on the recommendations of Committee constituted for correction of date of birth who fully examined the Municipal Corporation Multan record and verified the truth and correctness of date of birth of plaintiff as 5.9.42 and accordingly the Board corrected the record and issued an amended/duplicate Matriculation Certificate on 25.6.96 which is available on the trial court file as EX-P3. Plaintiff adduced the said document as additional evidence. Present appellant, Pakistan Railways contested and objected on additional evidence but learned Civil Judge, vide order dated 16.12.1996 rejected their objection. It is pertinent to point out that date of birth in Matriculation Certificate was amended by the Board of Education and that amended Certificate is till to date intact. Pakistan Railways did not challenge the amendment in Matriculation Certificate at any stage. Further entry of bnirth in respondent/plaintiff’s service record is as per Matriculation Certificate (EX-D/2), therefore, department is bound to

amend the date of birth of respondent as per amended Matriculation Certificate, but department is not amending the same with malafide designs. From the record of trial court, it also appears that defendant No. 3 moved an application dated 12.7.1993 under Order VII Rule 11 C.P.C. for dismissal of suit as no cause of action is available to the plaintiff against Pakistan Railways. But this application was turned down by the learned trial court vide order dated 16.5.1994. Defendant No. 3 did not challenge the said order before any Higher forum thus, the said order attained finality. 4.

That after recording evidence of parties and hearing arguments, Mr. Zafar Hassan Bhatti, Civil Judge Ist Class, Multan decreed the respondent/plaintiff’s suit vide judgment/ decree dated 8.4.1997. Pakistan Railways assailed the said judgment/decree in appeal before District Judge, Multan. The said appeal was further assigned to Rao Akbar Ali learned Additional District Judge, Multan who remanded the case to trial court vide judgment dated 17.7.1998. In this judgment, learned Appellate Court upset the findings of trial court on issues No. 1 to 4 whereas findings of trial court on issues No. 5 to 7 were upheld. Issue No. 5 regarding jurisdiction of Civil Court was upheld by trial court and appellant/defendant did not challenge the said order of Appellate Court, therefore said order attained finality and at this stage, appellants are estopped to take plea that Civil Court has no jurisdiction to try the plaintiff’s suit. Even otherwise, in the case of “Province of Punjab Vs. Syed Irshad Hussain Bukhari (2000 PLC (C.S) 787)” and in case of “Regional Commissioiner of Income Tax Vs. Shafi Muhammad Baluch (1997 MLD 2801)” High Court held that Civil Court has the jurisdiction to correct the date of birth of Civil Servant as it does not fall within terms & conditions of service.

5.

That on remand, learned trial court, summoned the complete and original record of Municipal Corporation Multan and School record as Appellate Court directed the trial court to examine the original record of Municipal Corporation Multan

and record of School. Witnesses were examined and appellants/ defendants were offered full opportunity to crossexamine the said witnesses but as is evident from record of trial, evidence of witnesses could not be shaken in any way as is clear from personal observation of the Judge of trial court which he recorded on the file that correct date of birth is 5.12.1942 without any doubt. Therefore, trial court recorded and held that actual date of birth of plaintiff is 5.12.1942. and decided Issue No. 1 in favour of respondent/plaintiff. Thus decreed the respondent/plaintiff’s Civil suit vide judgment/ decree dated 27.11.1998. 6.

That appellant assailed the aforesaid judgment/decree dated 27.11.1998 of Civil Court second time in the present appeal. Appellant filed the present appeal on 4.2.1999 which is hopelessly barred by time.

7.

That the fact of appeal being time barred is admitted by appellant in Para 5 of appeal. From the contents of application for condonation of delay, it appears that after judgment/decree dated 27.11.1998, appellant applied for certified copy on 30.11.1998, copy prepared on 15.12.1998 and same was delivered on 17.12.98 as such maximum period for filing of present appeal was upto 14.1.1999. Thereafter, appellant again on 30.1.1999 filed an application for obtaining certified copy of judgment/decree dated 27.11.1998 second time on 30.1.99, certified copy was prepared and delivered on the same dated i.e. 30.1.1999 but again appellant filed the appeal with 4 days delay on 4.2.2000 after obtaining certified copy of impugned judgment on 30.1.1999 and there is no explanation of the said delay or delay caused earlier which is very much material for filing of appeal. As a whole appeal was filed with delay of 20 days. The contention taken by the appellant that as certified copies were obtained by Mr. Sh. Rahim Nawaz, Advocate and he was observing “ETEKAF”. Therefore, appeal could not be filed as certified copies were misplaced. This contention of appellant is totally false and concocted, as 1st Ramzan-ul-Mubarak was on 21.12.1998

(Monday) and “ETEKAF” is observed on 20th Ramzan which falls on 9.1.1999 (Saturday). 29th Ramzan falls on 18.1.1999 (Monday) and Eid-ul-Fitr falls on 19/20-1-1999 (Tuesday & Wednesday). From this, it appears that after collection of certified copy on 17.12.1998, there was sufficient time of 28 days with appellant to file appeal. Even on obtaining certified copies, Mr. Sh. Rahim Nawaz wrote a letter dated 17.12.1998, to the Pakistan Railways that to avoid delay, appeal must be filed before 7.1.1999 as maximum it can be filed till 10.1.99. But present appellant did not care to file appeal within time and filed a time barred appeal without any sufficient ground as recognized by law on the point as such delay caused in the filing of appeal cannot be condoned as held by the Superior courts of Pakistan in series of judgments. Contention taken in application that Railways appointed other counsel is also wrong as present appeal filed by Choudhary Muhammad Shafiq who is conducting Railways cases from last many years. The Supreme Court of Pakistan in case reported in PLD 1995 SC 472 held that “once the limitation start, it cannot be stopped, and limitation in appellant’s case was started from 18.12.1998. 8.

That Section 3 of Limitation Act which is reproduced as under: “3.

Dismissal of suit, etc., instituted, etc., after period

limitation.---Subject to the provisions contained in Section 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed, although limitation has not been set up as a defence.” From bare reading of the aforesaid provisions of law, it becomes absolutely clear that court of law is bound to first decide the point of limitation and in case suit or appeal is barred by time, same should be dismissed, as held in PLJ 1996 Lah. 939, 1997 CLC 268, 1998 SCMR 785 also at page 2376 of the same year: -

That to ignore clear provision of law of Limitation is “Mockery of law of Limitation” It is further held in multiple cases that time barred appeal to be dismissed without entering on merits and Govt. stands on no different footing than an ordinary litigant and indulgence can be shown in their favour as they have better set up and organization to prosecute their case as compare to common litigants. Therefore, Govt. is to be treated as ordinary litigant. Few citations are quoted as under: (i)

PLD 1973 Notes 85

(ii)

PLJ 1985 SC 186

(iii)

PLD 1995 SC 472

(iv)

1998 SCMR 2732, 307, 2376

(v)

1997 SCMR 959

(vi)

PLD 1999 Lah. 182

(vii) PLD 1994 Lah. 153 (viii) 1997 CLC 434 (ix)

1999 PLC SC 1244

(x)

1997 MLD 2801

(xi)

2000 PLC (C.S) 787 [Lahore High Court]

(xii) NLR 1991 Service 39 [Lahore High Court] (xiii) Judgment dated 1.3.1999 in Civil Revision No. 722D/98 9.

That it is important to mention here that in compliance of civil court judgment/decree appellant/defendant i.e. I.G. Pakistan Railway Police corrected the Service record of appellant vide Memo No. A-31/118-PRP dated 1.8.1998 but thereafter provisionally withdrew the same vide Memo No. A-31/118PRP dated 18.9.1998 and respondent/plaintiff was retired provisionally subject to outcome of the present appeal. This correction in service record was made much prior to filing of instant time barred appeal, therefore, this vested right of correction of service record of the respondent/plaintiff cannot be withdrawn by time barred appeal and principle of law of

“locus Poenitaintia” and estoppel will be applicable, hence, time barred appeal is liable to be dismissed. 10.

That an appeal of identical nature titled Housing & Physical Planning Department Vs. Shaukat Ali Khan was filed before Additional District Judge, Multan which was dismissed only on the points of limitation Govt. Department filed Civil Revision Petition No. 722-D/98 in the Hon’ble High Court, which was also dismissed on the point of limitation, thus judgment of lower court was confirmed. Copies are being annexed. In view of above respectful submissions, appeal is devoid of force, therefore, same is liable to be dismissed with cost in the interest of justice. Respondents/Plaintiffs Dated: 4.11.2000. Through: Muhammad Amin Malik, Advocate High Court, 38-Muhammadan Block, District Courts, Multan.